Congressional Record: June 7, 2001 (Senate)
Page S5969-S5985
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. AKAKA (for himself, Mr. Levin, and Mr. Grassley):
S. 995. A bill to amend chapter 23 of title 5, United States Code, to
clarify the disclosures of information protected from prohibited
personnel practices, require a statement in non-disclosure policies,
forms, and agreements that such policies, forms and agreements conform
with certain disclosure protections, provide certain authority for the
Special Counsel, and for other purposes; to the Committee on
Governmental Affairs.
Mr. AKAKA. Mr. President, today I am introducing amendments to the
Whistleblower Protection Act, WPA, that will strengthen protections for
federal employees who disclose waste, fraud, and abuse. I am proud to
be joined by Senators Levin and Grassley, two of the Senate's leaders
in protecting employees from retaliatory actions. The Senators from
Michigan and Iowa were the primary sponsors of the original 1989 Act,
as well as the 1994 amendments, both of which were passed unanimously
by Congress.
One of the basic obligations of public service is to disclose waste,
fraud, abuse, and corruption to appropriate authorities. The WPA was
intended to protect federal employees, those often closest to
wrongdoing, from workplace retaliation as a result of making such
disclosures. The right of federal employees to be free from workplace
retaliation, however, has been diminished by a pattern of court rulings
that have narrowly defined who qualifies as a whistleblower under the
WPA, and what statements are considered protected disclosures. These
rulings are inconsistent with congressional intent. There is little
incentive for federal employees to come forward because doing so could
put their careers at substantial risk.
The bill we introduce today will restore congressional intent
regarding who is entitled to relief under the WPA, and what disclosures
are protected. In addition, it codifies certain anti-gag rules, extends
independent litigating authority to the Office of Special Counsel, OSC,
and ends the sole jurisdiction of the United States Court of Appeals
for the Federal Circuit over whistleblower cases.
In the Civil Service Reform Act of 1978, CSRA, Congress included
statutory whistleblower rights for ``a'' disclosure evidencing a
reasonable belief of specified misconduct, with certain listed
statutory exceptions--classified or other information whose release was
specifically barred by other statutes. Unexpectedly, the court and
administrative agencies created several loopholes that limited employee
protections. With the WPA, Congress closed these loopholes by changing
protection of ``a'' disclosure to ``any'' disclosure meeting the law's
standards. However, in both formal and informal interpretations of the
Act, loopholes continued to proliferate.
Congress strengthened its scope and protections by passing 1994
amendments to the WPA. The Governmental Affairs Committee report on the
1994 amendments refuted prior interpretations by the Federal Circuit
and the Merit Systems Protection Board, MSPB, as well as subsequent
enforcement action by the Office of Special Counsel that there were
exceptions to ``any.'' The Committee report concluded, ``The plain
language of the Whistleblower Protection Act extends to retaliation for
`any disclosure,' regardless of the setting of the disclosure, the form
of the disclosure, or the person to whom the disclosure is made.''
Since the 1994 amendments, both OSC and MSPB generally have honored
congressional boundaries. However, the Federal Circuit continues to
disregard clear statutory language that the Act covers disclosures such
as those made to supervisors, to possible wrongdoers, or as part of an
employee's job duties.
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In order to protect the statute's foundation that ``any'' lawful
disclosure that the employee or applicant reasonably believes is
credible evidence of waste, fraud, abuse, or gross mismanagement is
covered by the WPA, our bill codifies the repeated and unconditional
statements of congressional intent and legislative history. It amends
sections 2302(b)(8)(A) and 2302(b)(8)(B) of title 5, U.S.C., to cover
any disclosure of information ``without restriction to time, place,
form, motive or context, or prior disclosure made to any person by an
employee or applicant, including a disclosure made in the ordinary
course of an employee's duties that the employee or applicant
reasonably believes is credible evidence of'' any violation of any law,
rule, or regulation, or other misconduct specified in section
2302(b)(8).
The bill also codifies an ``anti-gag'' provision that Congress has
passed annually since 1988 as part of the appropriations process. It
bans agencies from implementing or enforcing any nondisclosure policy,
form or agreement that does not contain specified language preserving
open government statutes such as the WPA, the Military Whistleblower
Protection Act, and the Lloyd Lafollette Act, which prohibits
discrimination against government employees who communicate with
Congress. Gag orders imposed as a precondition for employment and
resolution of disputes, as well as general agency policies barring
employees from communicating directly with Congress or the public, are
a prior restraint that not only has a severe chilling effect, but
strikes at the heart of this body's ability to perform its oversight
duties. Congress repeatedly has reaffirmed its intent that employees
should not be forced to sign agreements that supercede an employee's
rights under good government statutes. Moreover, Congress unanimously
has supported the concept that federal employees should not be subject
to prior restraint from disclosing wrongdoing nor suffer retaliation
for speaking out.
The measure also provides the Special Counsel with greater litigating
authority for merit system principles that the office is responsible to
protect. Under current law, the OSC plays a central role as public
prosecutor in cases before the MSPB, but cannot choose to defend the
merit system in court. Our legislation recognizes that providing the
Special Counsel this authority to seek such review, in precedential
cases, is crucial to ensuring the promotion of the public interests
furthered by these statutes.
Lastly, the bill would end the Federal Circuit's monopoly over
whistleblower cases by allowing appeals to be filed in the Federal
Circuit or the circuit in which the petitioner resides. This restores
normal judicial review, and provides employees in states such as my
home state of Hawaii, the option of a more convenient forum, rather
than necessitating a 10,000 mile round trip from Hawaii to Washington,
D.C.
This bill will begin the needed dialogue to guarantee that any
disclosures within the boundaries of the statutory language are
protected. As the Chairman of the Federal Services Subcommittee, I plan
to hold a hearing on the Whistleblower Protection Act and the
amendments we are proposing today.
Protection of Federal whistleblowers is a bipartisan effort.
Enactment of the original bill in 1989 and the 1994 amendments enjoyed
unanimous bicameral support, and I am pleased that Representatives
Morella and Gilman will introduce identical legislation in the House of
Representatives in the near future. I also wish to note that our bill
enjoys the strong support of the Government Accountability Project and
the National Whistleblower Center, and I commend both of these
organizations for their efforts in protecting the public interest and
promoting government accountability by defending whistleblowers.
I urge my colleagues to join in the effort to ensure that the
congressional intent embodied in the Whistleblower Protection Act is
codified and that the law is not weakened further. I ask unanimous
consent that letters in support of our bill from the National
Whistleblower Center and the Government Accountability Project and the
text of the bill be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 995
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION
BY FEDERAL EMPLOYEES.
(a) Clarification of Disclosures Covered.--Section
2302(b)(8) of title 5, United States Code, is amended--
(1) in subparagraph (A)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, or prior
disclosure made to any person by an employee or applicant,
including a disclosure made in the ordinary course of an
employee's duties that the employee or applicant reasonably
believes is credible evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation'';
(2) in subparagraph (B)--
(A) by striking ``which the employee or applicant
reasonably believes evidences'' and inserting ``, without
restriction to time, place, form, motive, context, or prior
disclosure made to any person by an employee or applicant,
including a disclosure made in the ordinary course of an
employee's duties to the Special Counsel, or to the Inspector
General of an agency or another employee designated by the
head of the agency to receive such disclosures, of
information that the employee or applicant reasonably
believes is credible evidence of''; and
(B) in clause (i), by striking ``a violation'' and
inserting ``any violation''; and
(3) by adding at the end the following:
``(C) a disclosure that--
``(i) is made by an employee or applicant of information
required by law or Executive order to be kept secret in the
interest of national defense or the conduct of foreign
affairs that the employee or applicant reasonably believes is
credible evidence of--
``(I) any violation of any law, rule, or regulation;
``(II) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety; or
``(III) a false statement to Congress on an issue of
material fact; and
``(ii) is made to--
``(I) a member of a committee of Congress having a primary
responsibility for oversight of a department, agency, or
element of the Federal Government to which the disclosed
information relates;
``(II) any other Member of Congress who is authorized to
receive information of the type disclosed; or
``(III) an employee of the executive branch or Congress who
has the appropriate security clearance for access to the
information disclosed.''.
(b) Covered Disclosures.--Section 2302(b) of title 5,
United States Code, is amended--
(1) in the matter following paragraph (12), by striking
``This subsection'' and inserting the following:
``This subsection''; and
(2) by adding at the end the following:
``In this subsection, the term `disclosure' means a formal
or informal communication or transmission.''.
(c) Nondisclosure Policies, Forms, and Agreements.--
(1) Personnel action.--Section 2302(a)(2)(A) of title 5,
United States Code, is amended--
(A) in clause (x), by striking ``and'' after the semicolon;
and
(B) by redesignating clause (xi) as clause (xii) and
inserting after clause (x) the following:
``(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement; and''.
(2) Prohibited personnel practice.--Section 2302(b) of
title 5, United States Code, is amended--
(A) in paragraph (11), by striking ``or'' at the end;
(B) in paragraph (12), by striking the period and inserting
``; or''; and
(C) by inserting after paragraph (12) the following:
``(13) implement or enforce any nondisclosure policy, form,
or agreement, if such policy, form, or agreement does not
contain the following statement:
`` `These provisions are consistent with and do not
supersede, conflict with, or otherwise alter the employee
obligations, rights, or liabilities created by Executive
Order No. 12958; section 7211 of title 5, United States Code
(governing disclosures to Congress); section 1034 of title
10, United States Code (governing disclosure to Congress by
members of the military); section 2302(b)(8) of title 5,
United States Code (governing disclosures of illegality,
waste, fraud, abuse, or public health or safety threats); the
Intelligence Identities Protection Act of 1982 (50 U.S.C. 421
et seq.) (governing disclosures that could expose
confidential Government agents); and the statutes which
protect against disclosures that could compromise national
security, including sections 641, 793, 794, 798, and 952 of
title 18, United States Code, and section 4(b) of the
Subversive Activities Control Act of 1950 (50 U.S.C. 783(b)).
The definitions, requirements, obligations, rights,
sanctions, and liabilities created by such Executive order
and such statutory provisions are incorporated into this
agreement and are controlling.' ''.
(d) Authority of Special Counsel Relating to Civil
Actions.--
[[Page S5972]]
(1) Representation of special counsel.--Section 1212 of
title 5, United States Code, is amended by adding at the end
the following:
``(h) Except as provided in section 518 of title 28,
relating to litigation before the Supreme Court, attorneys
designated by the Special Counsel may appear for the Special
Counsel and represent the Special Counsel in any civil action
brought in connection with section 2302(b)(8) or subchapter
III of chapter 73, or as otherwise authorized by law.''.
(2) Judicial review of merit systems protection board
decisions.--Section 7703 of title 5, United States Code, is
amended by adding at the end the following:
``(e) The Special Counsel may obtain review of any final
order or decision of the Board by filing a petition for
judicial review in the United States Court of Appeals for the
Federal Circuit if the Special Counsel determines, in the
discretion of the Special Counsel, that the Board erred in
deciding a case arising under section 2302(b)(8) or
subchapter III of chapter 73 and that the Board's decision
will have a substantial impact on the enforcement of section
2302(b)(8) or subchapter III of chapter 73. If the Special
Counsel was not a party or did not intervene in a matter
before the Board, the Special Counsel may not petition for
review of a Board decision under this section unless the
Special Counsel first petitions the Board for reconsideration
of its decision, and such petition is denied. In addition to
the named respondent, the Board and all other parties to the
proceedings before the Board shall have the right to appear
in the proceedings before the Court of Appeals. The granting
of the petition for judicial review shall be at the
discretion of the Court of Appeals.''.
(e) Judicial Review.--Section 7703 of title 5, United
States Code, is amended--
(1) in the first sentence of subsection (b)(1) by inserting
before the period ``or the United States court of appeals for
the circuit in which the petitioner resides''; and
(2) in subsection (d)--
(A) in the first sentence by striking ``the United States
Court of Appeals for the Federal Circuit'' and inserting
``any appellate court of competent jurisdiction as provided
under subsection (b)(2)''; and
(B) in the third and fourth sentences by striking ``Court
of Appeals'' each place it appears and inserting ``court of
appeals'' in each such place.
____
National Whistleblower Center,
Washington, DC, June 6, 2001.
Hon. Daniel K. Akaka,
Chairman, Subcommittee on International Security,
Proliferation, and Federal Services, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: The National Whistleblower Center is
pleased to announce its support for your bill to update and
strengthen the Whistleblower Protection Act (WPA). We would
like to commend your leadership in introducing this
significant and important legislation.
The National Whistleblower Center was established because
of the critical role that credible whistleblowers play in the
effective functioning of our system of checks and balances.
Despite this critical role, federal whistleblowers have not
always enjoyed the same rights as other citizens. The Center
has therefore maintained an on-going vigilance and commitment
to preserving the integrity of the whistleblower process.
In recent years, protections for whistleblowers have
eroded. This is mainly due to recent decisions in cases
before the U.S. Court of Appeals for the Federal Circuit,
which presently holds a monopoly on appeals under the WPA.
The Center is therefore enthusiastic in its support of the
provision in your bill that offers employees an additional
venue for appeals.
Your bill would also codify so-called ``anti-gag'' language
that has been included each year for the past twelve years in
appropriations bills. The language has been needed to avoid
ambiguity in the government's efforts to prevent improper
disclosures of information. The ambiguity created a chilling
effect for employees who otherwise had the right to make
proper disclosures to Congress and elsewhere. This provision
would clear a major hurdle in protecting the rights of
employees to disclose instances of wrongdoing by government
officials.
The Center is concerned that, in the larger picture,
improvements in the whistleblower protection system require
more fundamental changes. For instance, there should be
tougher provisions to hold accountable those managers who
retaliate against whistleblowers. In addition, those who
bring their cases under laws other than the WPA have had much
greater success. This is in part because of adverse decisions
by the Federal Circuit, but it also suggests that the WPA is
not as whistleblower-friendly in practice as we hoped it
would be when we passed and amended the WPA. These are issues
to be addressed down the road, and the Center would be happy
to provide you the benefit of our experience in these
matters.
Nonetheless, your bill, if passed, would make an important
and necessary contribution toward improvements in the
protection of whistleblowers under the WPA. Again, we commend
your leadership in the introduction of this bill, and we look
forward to working with you and your co-sponsors during the
hearing process and throughout the legislative process.
Sincerely,
Kris J. Kolesnik,
Executive Director.
____
Government Accountability Project,
Washington, DC, June 7, 2001.
Hon. Daniel K. Akaka,
Chairman, Subcommittee on International Security,
Proliferation and Federal Services, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: The Government Accountability Project
(GAP) commends your leadership in sponsoring legislation to
revive and strengthen the Whistleblower Protection Act (WPA).
This is the primary civil service law applying merit system
rights to good government safeguards. Your initiative is
indispensable to restore legitimacy for the law's unanimous
congressional mandate, both in 1989 when it was passed
originally and in 1994 when it was unanimously strengthened.
We similarly appreciate the partnership of original
cosponsors Senators Levin and Grassley. They remain visible
leaders from the pioneer campaigns that earned this
legislative mandate.
GAP is a non-partisan, non-profit public interest
organization whose mission is supporting whistleblowers,
those employees who exercise free speech rights to challenge
betrayals of the public trust about which they learn on the
job. We advocated initial passage of whistleblower rights as
part of the Civil Service Reform Act of 1978, and have led
outside campaigns for passage of the WPA, as well as
analogous laws for military service members, state, municipal
and corporate employees in industries ranging from airlines
to nuclear energy. Last year GAP drafted a model
whistleblower law approved by the Organization of American
States (OAS) for implementation of the Inter-American
Convention Against Corruption.
Unfortunately, your leadership is a necessity for the Act
to regain legitimacy. In 1994 on paper it reflected the state
of the art for whistleblower rights. Despite pride in helping
to win its passage, GAP now must warn those seeking help that
the law is more likely to undermine than reinforce their
rights. This is because the Federal Circuit Court of Appeals,
which has a monopoly on appellate judicial review, has
functionally erased basic statutory language and implicitly
added new provisions that threaten those seeking help. Your
legislation both solves the specific problems, and includes
structural reform to prevent their recurrence by restoring
normal judicial review. Congress had to approve both the 1989
and 1994 legislation to cancel previous instances of judicial
activism by this same court. This pattern must end for the
law again to become functional.
Your bill also incorporates an appropriations rider
approved for the last 13 years, known as the ``anti-gag
statute.'' This provision requires agencies to notify
employees that any restrictions on disclosures do not
override their rights under the WPA, or other open government
laws such as the Lloyd Lafollette Act protecting
communications with Congress. The rider has worked. It has
proven effective and practical against agency attempts to
impose secrecy through orders or nondisclosure agreements
that cancel Congress and the public's right to know. It is
time to institutionalize this success story.
Even if implemented as intended, the 1989 and 1994
legislation was a beginning, rather than a panacea. More work
is necessary to disrupt the deeply ingrained tradition of
harassing whistleblowers. Based on our experience, issues
such as the following must be addressed for the law to
fulfill its promise--closing the ``security clearance
loophole'' that permits merit system rights to be
circumvented through removing clearances that are a condition
for employment; providing meaningful relief for those who win
their cases; preventing retaliation by creating personal
accountability for those who violate the merit system; and
giving whistleblowers access to jury trials to enforce their
rights.
Your legislation is a reasonable and essential first step
on the road to recovery for whistleblower rights in the merit
system. It sends a clear message that congress was serious
when it passed this law in 1989 and strengthened it in 1994.
Congressional persistence is a prerequisite for those who
defend the public to have a decent chance of defending
themselves. We look forward to working with you and your co-
sponsors in passing this legislation.
Sincerely,
Tom Devine,
Legal Director.
Doug Hartnett,
National Security Director.
Mr. LEVIN. Mr. President, I am pleased to join Senators Akaka and
Grassley today in sponsoring amendments to the Whistleblower Protection
Act that will strengthen the law protecting employees who blow the
whistle on fraud, waste, and abuse in federal programs. I sponsored the
Whistleblower Protection Act in 1989 which strengthened and clarified
the intent of whistleblower rights in the merit system. But recent
holdings by the United States Court of Appeals for the Federal Circuit
have corrupted the intent of Congress, with the result that additional
clarifying language is sorely needed. The Federal Circuit has seriously
misinterpreted key provisions of the whistleblower law, and the bill we
are introducing today is intended to correct those misinterpretations.
Congress has long recognized the obligation we have to protect a
Federal
[[Page S5973]]
employee when he or she discloses evidence of wrongdoing in a Federal
program. If an employee reasonably believes that a fraud or
mismanagement is occurring, and that employee has the courage and the
sense of responsibility to make that fraud or mismanagement known, it
is our duty to protect the employee from any reprisal. We want Federal
employees to identify problems in our programs so we can fix them, and
if they fear reprisal for doing so, then we are not only failing to
protect the whistleblower, but we are also failing to protect the
taxpayer. We need to encourage, not discourage, disclosures of fraud,
waste and abuse.
Today, however, the effect of the Federal Circuit decisions is to
discourage the Federal employee whistleblower and overturn
Congressional intent. The Federal Circuit has misinterpreted the plain
language of the law on what constitutes protected disclosure under the
Whistleblower Protection Act. Most notably, in the case of Lachance
versus White, decided on May 14, 1999, the Federal Circuit imposed an
unfounded and virtually unattainable standard on Federal employee
whistleblowers in proving their cases. In that case, John E. White was
an education specialist for the Air Force who spoke out against a new
educational system that purported to mandate quality standards for
schools contracting with the Air Force bases. White criticized the new
system as counterproductive because it was too burdensome and seriously
reduced the education opportunities available on base. After making
these criticisms, local agency officials reassigned White, removing his
duties and allegedly isolating him. However, after an independent
management review supported White's concerns, the Air Force canceled
the program White had criticized. White appealed the reassignment in
1992 and the case has been in litigation ever since.
The administrative judge initially dismissed White's case, finding
that his disclosures were not protected by the Whistleblower Protection
Act. The MSPB, however, reversed the administrative judge's decision
and remanded it back to the administrative judge holding that since
White disclosed information he reasonably believed evidenced gross
mismanagement, this disclosure was protected under the Act. On remand,
the administrative judge found that the Air Force had violated the
Whistleblower Protection Act and ordered the Air Force to return White
to his prior status; the MSPB affirmed the decision of the
administrative judge. OPM petitioned the Federal Circuit for a review
of the board's decision. The Federal Circuit reversed the MSPB's
decision, holding that there was not adequate evidence to support a
violation under the Whistleblower Protection Act. The Federal Circuit
held that the evidence that White was a specialist on the subject at
issue and aware of the alleged improper activities and that his belief
was shared by other employees was not sufficient to meet the
``reasonable belief'' test in the law. The court held that ``the board
must look for evidence that it was reasonable to believe that the
disclosures revealed misbehavior [by the Air Force] . . .'' The court
went on to say:
In this case, review of the Air Force's policy and
implementation via the QES standards might well show them to
be entirely appropriate, even if not the best option. Indeed,
this review would start out with a ``presumption that public
officers perform their duties correctly, fairly, in good
faith, and in accordance with the law and governing
regulations. . . . And this presumption stands unless there
is `irrefragable proof to the contrary'.''
The fact that the Federal Circuit remanded the case to the MSPB to
have the MSPB reconsider whether it was reasonable to believe that what
the Air Force did in this case involved gross mismanagement was
appropriate. But, the Federal Circuit went on to impose a clearly
erroneous and excessive standard on the employee in proving
``reasonable belief,'' requiring ``irrefragable'' proof that there was
gross mismanagement. Irrefragable means ``undeniable, incontestable,
incontrovertible, incapable of being overthrown.'' How can a Federal
employee meet a standard of ``irrefragable'' in proving gross
mismanagement? Moreover, there is nothing in the law or the legislative
history that even suggests such a standard with respect to the
Whistleblower Protection Act. The intent of the law is not for the
employee to act as an investigator and compile evidence to have
``irrefragable'' proof that there is fraud, waste or abuse. The
employee, under the clear language of the statue, need only have ``a
reasonable belief'' that there is fraud, waste or abuse occurring
before making a protected disclosure. This bill will clarify the law so
this misinterpretation will not happen again.
The bill addresses a number of other important issues as well. For
example, the bill adds a provision to the Whistleblower Protection Act
that provides specific protection to a whistleblower who discloses
evidence of fraud, waste, and abuse involving classified information if
that disclosure is made to the appropriate committee of Congress or
Federal executive branch employee authorized to receive the classified
information.
In closing, I want to thank Senator Akaka for his leadership in this
area.
Mr. GRASSLEY. Mr. President, I rise with determination to join
Senators Akaka and Levin introducing legislation on an issue that
should concern us all: the integrity of the Whistleblower Protection
Act of 1989. I enclose editorials and op-ed commentaries, ranging from
the New York Times to the Washington Times highlighting the needs for
this law to be reborn so that it achieves its potential for public
service. Unfortunately, it has become a Trojan horse that may well be
creating more reprisal victims than it protects. The impact for
taxpayers could be to increase silent observers who passively conceal
fraud, waste and abuse. That is unacceptable.
I was proud to be an original co-sponsor of this law when it was
passed unanimously by Congress in 1989, and when it was unanimously
strengthened in 1994. Both were largely passed to overturn a series of
hostile decisions by administrative agencies and an activist court with
a monopoly on the statute's judicial review, the Federal Circuit Court
of Appeals. The administrative agencies, the U.S. Office of Special
Counsel and the Merit Systems Protection Board, appear to have gotten
the point. They have been operating largely within statutory
boundaries. Despite the repeated unanimous congressional mandates,
however, the Federal Circuit has stepped up its attacks on the
Whistleblower Protection Act. Enough is enough.
The legislation we are introducing today has four cornerstones,
closing loopholes in the scope of WPA protection; restoring a realistic
test for when reprisal protection is warranted; restoring the normal
structure for judicial review; and codifying the anti-gag statute
passed as an appropriations rider for the last 13 years. Each is
summarized below.
As part of 1994 amendments unanimously passed by Congress to
strengthen the Act, the legislative history emphasized, ``[I]t also is
not possible to further clarify the clear language in section
2302(b)(8) that protection for `any' whistleblowing disclosure truly
means `any.' A protected disclosure may be made as part of an
employee's job duties, may concern policy or individual misconduct, and
may be oral or written and to any audience inside or outside the
agency, without restriction to time, place, motive or content.''
Somehow the Federal Circuit did not hear our unanimous voice. Without
commenting on numerous committee reports and floor statements
emphasizing this cornerstone, it has been creating new loopholes at an
accelerated pace. Its precedents have shrunk the scope of protected
whistleblowing to exclude disclosures made as part of an employee's job
duties, to a co-worker, boss, others up the chain of command, or even
the suspected wrongdoer to check facts. Under these judicial loopholes,
the law does not cover agency misconduct with the largest impact,
policies that institutionalize illegality or waste and mismanagement.
Last December it renewed a pre-WPA loophole that Congress has
specifically outlawed. The court decreed that the law only covers the
first person to place evidence of given misconduct on the record,
excluding those who challenge long term abuses, witnesses whose
testimony supports pioneer whistleblowers, or anyone who is not the
Christopher Columbus for any given scandal.
There is no legal basis for any of these loopholes. None of these
loopholes came from Congress. In fact, all
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contradict express congressional intent. Since 1978, the point of
Federal whistleblower protection has been to give agencies the first
crack at cleaning their own houses. These loopholes force them to
either remain silent, sacrifice their rights, or go behind the back of
institutions and individuals if they want to preserve their rights when
challenging perceived misconduct. They proceed at their own risk if
they exercise their professional expertise to challenge problems on the
job. They can only challenge anecdotal misconduct on a personal level,
rather than institutionalized.
Our legislation addresses the problem by codifying the congressional
``no exceptions'' definition for lawful, significant disclosures. The
legislation also reaffirms the right of whistleblowers to disclose
classified information about wrongdoing to Congress. National security
secrecy must not cancel Congress' right to know about betrayals of the
public trust.
In a 1999 decision, the Federal Circuit functionally overturned the
standard by which whistleblowers demonstrate their disclosures deserve
protection: lawful disclosures which evidence a ``reasonable belief''
of specific misconduct. Congress did not change this standard in 1989
or 1994 for a simple reason: it has worked by setting a fair balance to
protect responsible exercises of free speech. Ultimate proof of
misconduct has never been a prerequisite for protection. Summarized in
lay terms, ``reasonable belief'' has meant that if information would be
accepted for the record of related litigation, government
investigations or enforcement actions, it is illegal to fire the
employee who bears witness by contributing that evidence.
That realistic test no longer exists. In Lachance v. White, the
Federal Circuit overturned the victory of an Air Force education
specialist challenging a pork barrel program whose concerns were so
valid that after an independent management review, the Air Force agreed
and canceled the program. Unfortunately, local base officials held a
grudge, reassigning Mr. White and stripping him of his duties. He
appealed under the WPA and won before the Merit Systems Protection
Board. The Federal Circuit, however, held that he did not demonstrated
a ``reasonable belief'' and sent the case back. That raises questions
on its face, since agencies seldom agree with whistleblowers.
The court accomplished this result disingenuously. While endorsing
the existing standard, it added another hurdle. It held that to have a
reasonable belief, an employee must overcome the presumption that the
government acts fairly, lawfully, properly and in good faith. They must
do so by ``irrefragable'' proof. The dictionary defines
``irrefragable'' as ``uncontestable, incontrovertible, undeniable, or
incapable of being overthrown.'' The bottom line is that, in the
absence of a confession, there is no such thing as a reasonable belief.
If there is no disagreement about alleged misconduct, there is no need
for whistleblowers.
The court even added a routine threat for employees asserting their
rights. Although Congress has repeatedly warned that motives are
irrelevant to assess protected speech, the court ordered the MSPB to
conduct factfinding for anyone filing a whistleblower reprisal claim,
to check if the employee had a conflict of interest for disclosing
alleged misconduct in the first place. This means that while
whistleblowers have almost no chance of prevailing, they are guaranteed
to be placed under investigation for challenging harassment.
Ironically, in 1994 Congress outlawed retaliatory investigations, which
have now been institutionalized by the court.
In the aftermath, whistleblower support groups like the Government
Accountability Project must warn those seeking guidance that if they
assert rights, they will be placed under investigation and any eventual
legal ruling on the merits inevitably will conclude they deserve
punishment and formally endorse the retaliation they suffered. The
White case is a decisive reason for those who witness fraud, waste and
abuse to remain silent, instead of speaking out. Profiles in Courage
are the exception, rather than the rule. Our legislation ends the
presumptions of ``irrefragable proof'' and protects any reasonable
belief as demonstrated by credible evidence.
This is the third time Congress has had to reenact a unanimous good
government mandate thrown out by the Federal Circuit. This is also
three strikes for the Federal Circuit's monopoly authority to
interpret, and repeatedly veto, this law. It is time to end the broken
record syndrome.
The Civil Service Reform Act of 1978 contained normal ``all
circuits'' court of appeals judicial review under the Administrative
Procedures Act. This was the same structure as all other employment
anti-reprisal or anti-discrimination statutes. In 1982, the Federal
Circuit was created, with a unique monopoly on appellate review of
civil service, patent and copyright, and International Trade Commission
decisions. Unfortunately, this experiment has failed. Our amendment
restores the normal process of balanced review. Hopefully, that will
restore normal respect for the legislative process.
In 1988, I was proud to introduce an appropriations rider to the
Treasury, Postal and General Government bill which has been referred to
as the ``anti-gag statute.'' It has survived constitutional challenge
through the Supreme Court, and been unanimously approved in each of the
last 13 appropriations bills. This provision makes it illegal to
enforce agency nondisclosure policies or agreements unless there is a
specific, express addendum informing employees that the disclosure
restrictions do not override their right to communicate with Congress
under the Lloyd Lafollette Act or other good government laws such as
the Whistleblower Protection Act.
The provision originally was in response to a new, open-ended concept
called ``classifiable.'' That term was defined as any information that
``could or should have been classified,'' or ``virtually anything,''
even if it were not market secret. This effectively ended anonymous
whistleblowing disclosures, imposed blanket prior restraint, and
legalized after-the-fact classification as a device to cover up fraud
or misconduct. Since employees no longer were entitled to prior notice
that information was secret, the only way they could act safely was a
prior inquiry to the agency whether information was classified. That
was a neat structure to lock in secrecy when its only purpose is to
thwart congressional or public oversight. I am proud that the anti-gag
statute has worked, and the strange concept of ``classifiable'' is
history. After 13 years and over 6,000 individual congressional votes
without dissent, it is time to institutionalize this merit system
principle.
It should be beyond debate that the price of liberty is eternal
vigilance. I want to recognize the efforts of those whose stamina
defending freedom of speech has applied that principle in practice.
Senator Levin has been my Senate partner from the beginning of
legislative initiatives on this issue. His leadership has proved that
whistleblower protection is not an issue reserved for conservatives or
liberals, Democrats or Republicans. Like the First Amendment,
whistleblower protection is a cornerstone right for Americans.
Nongovernmental organizations have made significant contributions as
well. The Government Accountability Project, a non-profit, non-partisan
whistleblower support group, has been a relentless watchdog of merit
system whistleblower rights since they were created by statute in 1978.
Thanks to GAP, my staff has not been taken by surprise as judicial
activism threatened this good government law. Kris Kolesnick, formerly
with my staff and now with the National Whistleblower Center, worked on
the original legislation while on my staff and continues to work in
partnership with me.
In the decade since Congress unanimously passed this law, it has been
a Taxpayer Protection Act. My office has been privileged to work with
public servants who exposed indefensible waste and mismanagement at the
Pentagon, as well as indefensible abuses of power at the Department of
Justice. I keep learning that whistleblowers proceed at their own risk
when defending the public. In case after case I have seen the proof of
Admiral Rickover's insight that unlike God, the bureaucracy does not
forgive. Nor does it forget.
It also has been confirmed repeatedly that whistleblowers must prove
their commitment to stamina and persistence in order to make a
difference
[[Page S5975]]
against ingrained fraud, waste and abuse. There should be no question
about Congress', or this Senator's commitment. Congress was serious
when it passed the Whistleblower Protection Act unanimously. It is not
mere window dressing. As long as whistleblowers are defending the
public, we must defend credible free speech rights for genuine
whistleblowers. Those who have something to hide, the champions of
secrecy, cannot outlast or defeat the right to know both for Congress,
law enforcement agencies and the taxpayers. Every time judicial or
bureaucratic activists attempt to kill this law, we must revive it in
stronger terms. Congress can not watch passively as this law is gutted,
or tolerate gaping holes in the shield protecting public servants. The
taxpayers are on the other side of the shield, with the whistleblowers.
Mr. President, I ask unanimous consent that the October 13, 1999
article from The Washington Times and the May 1, 1999 article from The
New York Times be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Times, Oct. 13, 1999]
Silent Whistleblowers
worker protections are under attack
(By Tom Devine and Martin Edwin Anderson)
Judicial activism is always suspect, but when it overturns
laws protecting the public's interest in order to shield
bureaucratic secrecy, it makes a mockery of the legal system
itself.
The issue has become a front-burner in Congress as it takes
a new look at a significant good-government law that twice
won unanimous passage. In the aftermath of extremist judicial
activism that functionally overturned the statute, a crucial
campaign has been launched this week on the Hill to enlist
members as friends of the court in a brief seeking Supreme
Court review of the circuit court decision.
At issue is a ruling made final in July by the Federal
Circuit Court of Appeals, which disingenuously overturned two
laws unanimously passed by Congress--the code of Ethics for
Government Service and the Whistleblower Protection Act. The
decision, White vs. Lachance, was the handiwork of a chief
judge whose previous job involved swinging the ax against
federal workers who dared to commit the truth.
At issue is the fate of Air Force whistleblower John White,
who lost his job in 1991 after successfully challenging a
pork-barrel ``quality management'' training program as
mismanagement. Government and private sector experts
concurred with Mr. White, and universities affected by it
began heading for the door. Even the Air Force agreed,
canceling it after outside experts agreed with Mr. White.
Thrice the Merit Systems Protection Board (MSPB), an
independent federal agency, ruled in Mr. White's favor. Each
time the Justice Department appealed on technicalities. Now
the federal court went further than asked while speculating
that Mr. White's disclosures may not have evidenced a
``reasonable belief''--the test for disclosures to be
protected.
The court camouflaged its death-knell for the whistleblower
law in banal legalese, defining ``reasonable belief'' as,
``Could a disinterested observer with knowledge of the
essential facts reasonably conclude gross mismanagement?''
But the bland explanatory guidance exposed a feudalistic duty
of loyalty to shield misconduct by bureaucratic bosses:
``Policymakers have every right to expect loyal, professional
service from subordinates.'' So much for the Code of Ethics
for Government Service, which establishes the fundamental
duty of federal employees to ``put loyalty to the highest
moral principles and to country above loyalty to persons,
party or Government department.''
The court also disarmed the whistleblower law, claiming it
``is not a weapon in arguments over policy.'' Yet when it
unanimously approved 1994 amendments, Congress explicitly
instructed, ``A protected disclosure may concern policy or
individual misconduct.''
Worse was a court-ordered ``review'' as a prerequisite to
find a ``reasonable belief'' of wrongdoing. It must begin
with the ``presumption that public officers perform their
duties correctly, fairly, in good faith and in accordance
with the law. . . . [T]his presumption stands unless there is
`irrefragable' proof to the contrary.''
``Irrefragable,'' according to Webster's Dictionary, means
``incapable of being overthrown, incontestable, undeniable,
incontrovertible.'' The court's decision kills freedom of
speech if there are two rational sides to a dispute--leaving
it easier to convict a criminal than for a whistleblower to
be eligible for protection. The irrefragable presumption of
government perfection creates a thick shield protecting big
government abuses--precisely the opposite of why the law was
passed.
Finally, the court ordered the MSPB to facilitate routine
illegality by seeking evidence of a whistleblower's conflict
of interest during every review. Retaliatory investigations--
those taken ``because of'' whistleblowing activities--are
tantamount to witch-hunts and were outlawed by Congress in
1994. For federal employees, the Big Brother of George
Orwell's ``1984'' has arrived 15 years late.
Key to understanding the decision is the role played by
Chief Judge Robert Mayer. Previously, Judge Mayer served as
deputy special counsel in an era when MSPB's Office of
Special Counsel (under its Chief Alex Kozinski, now a 9th
Circuit Court of Appeals judge) tutored managers and taught
courses on how to fire whistleblowers without leaving
fingerprints. Congress passed the WPA in part to deal with
these abuses.
Now Judge Mayer's judicial revenge is a near-perfect
gambit, as his court has a virtual monopoly on judicial
review of MSPB whistleblower decisions.
Congress must act quickly to pass a legislative definition
of ``reasonable belief'' that eliminates the certainty of
professional suicide for whistleblowers and restores the
law's good-government mandate. It also needs to provide
federal workers the same legal access enjoyed by private
citizens; jury trials and all circuits judicial review in the
appeals courts.
It is unrealistic to expect federal workers with second-
class rights to provide first-class public service. Returning
federal workers to the Dark Ages is an inauspicious way to
usher in a new millennium.
____
[From the New York Times, May 1, 1999]
Helping Whistle-Blowers Survive
Jennifer Long, the Internal Revenue Service agent who
nearly lost her job two weeks ago after publicly blowing the
whistle on abuses at the agency, was rescued at the last
minute by the intervention of an influential United States
Senator. But the fact that her employers had no inhibitions
about harassing her is clear evidence that the laws
protecting whistle-blowers need to be strengthened. As they
stand, these laws merely invite the kind of retaliation that
Mrs. Long endured.
A career tax auditor, Mrs. Long was the star witness at
Senate Finance Committee hearings convened in 1997 by William
Roth of Delaware to investigate complaints against the I.R.S.
She was the only I.R.S. witness who did not sit behind a
curtain and use a voice distortion device to hide her
identity. She accused the agency of preying on weaker
taxpayers and ignoring cheating by those with the resources
to fight back. She has since said that she was subject to
petty harassments from the moment she arrived back at her
district office in Houston. Then, on April 15 of this year,
she was given what amounted to a termination notice, at which
point Mr. Roth intervened with the I.R.S. commissioner and
saved her job--at least for now.
Had he not intervened, Mrs. Long's only hope of vindication
would have been the remedies provided by the Civil Service
Reform Act of 1978 and the Whistle-Blower Protection Act of
1989. These two statutes prescribe a tortuous and uncertain
appeals process that in theory guarantees a whistle-blower
free speech without fear of retaliation, but in practice is
an exercise in frustration. Despite recent improvements, only
a handful of Federal employees, out of some 1,500 who
appealed in the last four years, have prevailed in rulings
issued by the Government's administrative tribunal, the Merit
System Protection Board. Overwhelmingly, the rest of the
cases were screened out on technical grounds or were settled
informally with token relief.
A few prominent whistle-blowers have won redemption outside
the system. Frederic Whitehurst, the chemist who was
dismissed after disclosing sloppiness and possible dishonesty
in the Federal Bureau of Investigation's crime laboratory,
won a sizable cash settlement because he had a first-class
attorney who mounted an artful public relations campaign.
Ernest Fitzgerald, the Pentagon employee who disclosed
massive cost overruns, survived because he was almost
inhumanly persistent and because his cause, like Mrs. Long's,
attracted allies in high places. But the prominence of an
issue does not guarantee survival for the employee who
discloses it. Notra Trulock, the senior intelligence official
at the Energy Department who tried to alert his superiors to
Chinese espionage at a Government weapons laboratory, has
since been demoted.
Senator Charles Grassley, an Iowa Republican, has been
seeking ways to strengthen the 1989 law with the help of the
Government Accountability Project, a Washington advocacy
group that assists whistle-blowers. One obvious improvement
would be to give whistle-blowers the option to press their
claims in the Federal courts, where their cases could be
decided by a jury. To guard against clogging the system with
frivolous litigation, the cases would first be reviewed by a
nongovernment administrative panel. But the point is to give
whistle-blowers an avenue of appeal outside the closed loop
in which they are now trapped.
A reform bill along these lines passed the House in 1994
but died in the Senate. With Mrs. Long's case fresh in mind,
the time has come for both Houses to re-examine the issue.
______
