Congressional Record: June 10, 2003 (Senate)
Page S7621-S7643
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. AKAKA (for himself, Mr. Levin, Mr. Leahy, Mr. Durbin, and
Mr. Dayton):
S. 1229. 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 nondisclosure 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 rise to introduce the Federal
Employee Protection of Disclosures Act with Senators Levin, Leahy,
Durbin, and Dayton to amend the Whistleblower Protection Act, WPA.
These amendments are necessary to protect Federal employees from
retaliation and protect the American people from government waste,
fraud, and abuse. The Federal Employee Protection of Disclosures Act
builds on the foundation laid in the 107th Congress with S. 995 and S.
3070, the latter of which was favorably reported by the Governmental
Affairs Committee last year. The bill also incorporates recommendations
received during a hearing I chaired on similar legislation in 2001.
Last year, Time magazine honored Sherron Watkins, Colleen Rowley, and
Cynthia Cooper as its "persons of the year." These brave women are
whistleblowers--Colleen Rowley is the Minneapolis FBI agent who penned
the memo on the FBI headquarter's handling of the Zacarias Mousssoui
case. In 2002, Ms. Rowley and the two other women went public with
disclosures of mismanagement and wrongdoing within their workplaces.
They captured the nation's attention and earned our respect in their
roles as whistleblowers. Congress encourages Federal employees like Ms.
Rowley to come forward with information of threats to public safety and
health through the WPA, which has been amended twice in order to shore
up congressional intent.
Once again, Congress must act to guarantee protections from
retaliation for Federal whistleblowers. First and foremost, our bill
would codify the repeated and unequivocal statements of congressional
intent that Federal employees are to be protected when making "any
disclosure" evidencing violations of law, gross mismanagement, or a
gross waste of funds. The bill would also clarify the test that must be
met to prove that a Federal employee reasonably believed that his or
her disclosure was evidence of wrongdoing. Despite the clear language
of the WPA that an employee is protected from disclosing information he
or she reasonably believes evidences a violation, the Federal Circuit
Court of Appeals, which has sole jurisdiction over whistleblower cases,
ruled in 1999 that the reasonableness review must begin with the
presumption that public officers perform their duties in good faith and
that this presumption stands unless there is "irrefragable proof" to
the contrary. By definition, irrefragable means impossible to refute.
To address this unreasonable burden placed on whistleblowers, our bill
would replace the "irrefragable proof" standard with "substantial
evidence."
The bill would provide some method of relief for those whistleblowers
who face retaliation by having their security clearance removed.
According to former Special Counsel Elaine Kaplan, removal of a
security clearance in this manner is a way of camouflaging retaliation.
To address this issue, the bill would make it a prohibited personnel
practice for a manager to suspend, revoke or take other action with
respect to an employee's security clearance in retaliation for
whistleblowing and allow the Merit Systems Protection Board, MSPB, to
review the action. Under an expedited review process, the MSPB may
issue declaratory and other appropriate relief, but may not direct the
President to restore a security clearance. MSPB and subsequent
Congressional review of the agency's action provides sound oversight
for this process without encroaching upon the President's authority in
the national security arena.
The measure would also provide independent litigating authority to
the Office of Special Counsel, OSC. Under current law, OSC has no
authority to request MSPB to reconsider its decision or to seek review
of a MSPB decision by the Federal Circuit. The limitation undermines
both OSC's ability to protect whistleblowers and the integrity of the
WPA. As such, our bill would provide OSC authority to appear in any
civil action brought in connection with the WPA and obtain review of
any MSPB order where OSC determines MSPB erred and the case will impact
the enforcement of the WPA. The bill would also help protect the
integrity of the Act by removing sole jurisdiction of such cases from
the Federal Circuit and provide for review of whistleblower cases in
the same manner that is afforded in Equal Employment Opportunity
Commission cases. This review system is designed to address holdings by
the Federal Circuit which have repeatedly ignored congressional intent.
Enactment of the Federal Employee Protection of Disclosures Act will
strengthen the rights and protections afforded to Federal
whistleblowers and encourage the disclosure of information vital to an
effective government. Congress should act quickly to assure
whistleblowers that disclosing illegal activities within their agencies
will not be met with retaliation. I urge my colleagues to join with me
in protecting the dedicated Federal employees who come forward to
disclose wrongdoing to help the American people.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
[[Page S7637]]
S. 1229
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) Short Title.--This Act may be cited as the "Federal
Employee Protection of Disclosures Act".
(b) 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 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 evidence of"; and
(B) in clause (i), by striking "a violation" and
inserting "any violation (other than a violation of this
section)"; 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
direct and specific 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 and who is authorized to receive
information of the type disclosed;
"(II) any other Member of Congress who is authorized to
receive information of the type disclosed; or
"(III) an employee of Congress who has the appropriate
security clearance and is authorized to receive information
of the type disclosed.".
(c) 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.".
(d) Rebuttable Presumption.--Section 2302(b) of title 5,
United States Code, is amended by adding after the matter
following paragraph (12) (as amended by subsection (c) of
this section) the following:
"For purposes of paragraph (8), any presumption relating
to the performance of a duty by an employee who has authority
to take, direct others to take, recommend, or approve any
personnel action may be rebutted by substantial evidence.".
(e) Nondisclosure Policies, Forms, and Agreements; Security
Clearances; and Retaliatory Investigations.--
(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 (xiv) and
inserting after clause (x) the following:
"(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement;
"(xii) a suspension, revocation, or other determination
relating to a security clearance;
"(xiii) an investigation of an employee or applicant for
employment because of any activity protected under this
section; 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
a semicolon; 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.'; or
"(14) conduct, or cause to be conducted, an investigation
of an employee or applicant for employment because of any
activity protected under this section.".
(3) Board and court review of actions relating to security
clearances.--
(A) In general.--Chapter 77 of title 5, United States Code,
is amended by inserting after section 7702 the following:
"Sec. 7702a. Actions relating to security clearances
"(a) In any appeal relating to the suspension, revocation,
or other determination relating to a security clearance, the
Merit Systems Protection Board or any reviewing court--
"(1) shall determine whether section 2302 was violated;
"(2) may not order the President to restore a security
clearance; and
"(3) subject to paragraph (2), may issue declaratory
relief and any other appropriate relief.
"(b)(1) If, in any final judgment, the Board or court
declares that any suspension, revocation, or other
determination with regards to a security clearance was made
in violation of section 2302, the affected agency shall
conduct a review of that suspension, revocation, or other
determination, giving great weight to the Board or court
judgment.
"(2) Not later than 30 days after any Board or court
judgment declaring that a security clearance suspension,
revocation, or other determination was made in violation of
section 2302, the affected agency shall issue an unclassified
report to the congressional committees of jurisdiction (with
a classified annex if necessary), detailing the circumstances
of the agency's security clearance suspension, revocation, or
other determination. A report under this paragraph shall
include any proposed agency action with regards to the
security clearance.
"(c) An allegation that a security clearance was revoked
or suspended in retaliation for a protected disclosure shall
receive expedited review by the Office of Special Counsel,
the Merit Systems Protection Board, and any reviewing
court.".
(B) Technical and Conforming Amendment.--The table of
sections for chapter 77 of title 5, United States Code, is
amended by inserting after the item relating to section 7702
the following:
"7702a. Actions relating to security clearances.".
(f) Exclusion of Agencies by the President.--Section
2302(a)(2)(C) of title 5, United States Code, is amended by
striking clause (ii) and inserting the following:
"(ii)(I) the Federal Bureau of Investigation, the Central
Intelligence Agency, the Defense Intelligence Agency, the
National Imagery and Mapping Agency, the National Security
Agency; and
"(II) as determined by the President, any Executive agency
or unit thereof the principal function of which is the
conduct of foreign intelligence or counterintelligence
activities, if the determination (as that determination
relates to a personnel action) is made before that personnel
action; or".
(g) Attorney Fees.--Section 1204(m)(1) of title 5, United
States Code, is amended by striking "agency involved" and
inserting "agency where the prevailing party is employed or
has applied for employment".
(h) Compensatory Damages.--Section 1214(g)(2) of title 5,
United States Code, is amended by inserting "compensatory
or" after "forseeable".
(i) Disciplinary Action.--Section 1215 of title 5, United
States Code, is amended in subsection (a), by striking
paragraph (3) and inserting the following:
"(3)(A) A final order of the Board may impose--
"(i) disciplinary action consisting of removal, reduction
in grade, debarment from Federal employment for a period not
to exceed 5 years, suspension, or reprimand;
"(ii) an assessment of a civil penalty not to exceed
$1,000; or
"(iii) any combination of disciplinary actions described
under clause (i) and an assessment described under clause
(ii).
"(B) In any case in which the Board finds that an employee
has committed a prohibited personnel practice under section
2302(b) (1), (8), or (9), the Board may order disciplinary
action if the Board finds that the activity or status
protected under section 2302(b) (1), (8), or (9) was a
motivating factor for the employee's decision to take, fail
to take, or threaten to take or fail to take a personnel
action, even if other factors also motivated the decision.".
(j) Disclosures to Congress.--Section 2302 of title 5,
United States Code, is amended by adding at the end the
following:
[[Page S7638]]
"(f) Each agency shall establish a process that provides
confidential advice to employees on making a lawful
disclosure to Congress of information that is specifically
required by law or Executive order to be kept secret in the
interest of national defense or the conduct of foreign
affairs.".
(k) Authority of Special Counsel Relating to Civil
Actions.--
(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)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Special
Counsel. 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.
"(2) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act,
this paragraph shall apply to any review obtained by the
Special Counsel. 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 or any court of appeals of competent
jurisdiction as provided under subsection (b)(2) 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.".
(l) Judicial Review.--
(1) In general.--Section 7703(b) of title 5, United States
Code, is amended by striking paragraph (1) and inserting the
following:
"(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2) of this subsection, a petition to review a
final order or final decision of the Board shall be filed in
the United States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any petition for
review must be filed within 60 days after the date the
petitioner received notice of the final order or decision of
the Board.
"(B) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act, a
petition to review a final order or final decision of the
Board shall be filed in the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent
jurisdiction as provided under subsection (b)(2).
Notwithstanding any other provision of law, any petition for
review must be filed within 60 days after the date the
petitioner received notice of the final order or decision of
the Board.".
(2) Review obtained by office of personnel management.--
Section 7703 of title 5, United States Code, is amended by
striking subsection (d) and inserting the following:
"(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director
of the Office of Personnel Management. The Director of the
Office of Personnel Management may obtain review of any final
order or decision of the Board by filing, within 60 days
after the date the Director received notice of the final
order or decision of the Board, a petition for judicial
review in the United States Court of Appeals for the Federal
Circuit if the Director determines, in his discretion, that
the Board erred in interpreting a civil service law, rule, or
regulation affecting personnel management and that the
Board's decision will have a substantial impact on a civil
service law, rule, regulation, or policy directive. If the
Director did not intervene in a matter before the Board, the
Director may not petition for review of a Board decision
under this section unless the Director first petitions the
Board for a 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 proceeding before
the Court of Appeals. The granting of the petition for
judicial review shall be at the discretion of the Court of
Appeals.
"(2) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act,
this paragraph shall apply to any review obtained by the
Director of the Office of Personnel Management. The Director
of the Office of Personnel Management may obtain review of
any final order or decision of the Board by filing, within 60
days after the date the Director received notice of the final
order or decision of the Board, a petition for judicial
review in the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction as
provided under subsection (b)(2) if the Director determines,
in his discretion, that the Board erred in interpreting a
civil service law, rule, or regulation affecting personnel
management and that the Board's decision will have a
substantial impact on a civil service law, rule, regulation,
or policy directive. If the Director did not intervene in a
matter before the Board, the Director may not petition for
review of a Board decision under this section unless the
Director first petitions the Board for a 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 proceeding before the court of appeals. The granting
of the petition for judicial review shall be at the
discretion of the Court of Appeals.".
(m) Nondisclosure Policies, Forms, and Agreements.--
(1) In general.--
(A) Requirement.--Each agreement in Standard Forms 312 and
4414 of the Government and any other nondisclosure policy,
form, or agreement of the Government shall contain the
following statement: "These restrictions 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 disclosure that may compromise the
national security, including sections 641, 793, 794, 798, and
952 of title 18, United States Code, and section 4(b) of the
Subversive Activities 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."
(B) Enforceability.--Any nondisclosure policy, form, or
agreement described under subparagraph (A) that does not
contain the statement required under subparagraph (A) may not
be implemented or enforced to the extent such policy, form,
or agreement is inconsistent with that statement.
(2) Persons other than government employees.--
Notwithstanding paragraph (1), a nondisclosure policy, form,
or agreement that is to be executed by a person connected
with the conduct of an intelligence or intelligence-related
activity, other than an employee or officer of the Federal
Government or a State or local government, may contain
provisions appropriate to the particular activity for which
such document is to be used. Such form or agreement shall, at
a minimum, require that the person will not disclose any
classified information received in the course of such
activity unless specifically authorized to do so by the
United States Government. Such nondisclosure forms shall also
make it clear that such forms do not bar disclosures to
Congress or to an authorized official of an executive agency
or the Department of Justice that are essential to reporting
a substantial violation of law.
(n) Clarification of Whistleblower Rights for Critical
Infrastructure Information.--Section 214(c) of the Homeland
Security Act of 2002 (Public Law 107-296) is amended by
adding at the end the following: "For purposes of this
section a permissible use of independently obtained
information includes the disclosure of such information under
section 2302(b)(8) of title 5, United States Code.".
(o) Effective Date.--This Act shall take effect 30 days
after the date of enactment of this Act.
Mr. LEVIN. Mr. President, I am pleased to join Senators Akaka, Leahy,
Durbin and Dayton today in introducing the Federal Employees Protection
of Disclosures Act. Our bill strengthens the law protecting employees
who blow the whistle on fraud, waste, and abuse in Federal programs.
Whistleblowers play a crucial role in ensuring that Congress and the
public are aware of serious cases of waste,
[[Page S7639]]
fraud, and mismanagement in government. Whistleblowing is never more
important than when our national security is at stake. Since the
terrorist attacks of September 11, 2001, courageous individuals have
stepped forward to blow the whistle on significant lapses in our
efforts to protect the United States against potential future attacks.
Most notably, FBI Agent Coleen Rowley alerted Congress to serious
institutional problems at the FBI and their impact on the agency's
ability to effectively investigate and prevent terrorism.
In another example, two Border Patrol agents from my State of
Michigan, Mark Hall and Bob Lindemann, risked their careers when they
blew the whistle on Border Patrol and INS policies that were
compromising security on the Northern Border. Their disclosure led to
my holding a hearing at the Permanent Subcommittee on Investigations in
November 2001, that exposed serious deficiencies in the way Border
Patrol and INS were dealing with aliens who were arrested while trying
to enter the country illegally. Since the hearing, some of the most
troublesome policies have been changed, improving the security
situation and validating the two agents' concerns. Despite the fact
that their concerns proved to be dead on, shortly after they blew the
whistle, disciplinary action was proposed against the two agents.
Fortunately in this case, whistleblower protections worked. The Office
of Special Counsel conducted an investigation and the decision to
discipline the agents was reversed. However, that disciplinary action
was proposed in the first place is a troubling reminder of how
important it is for us to both strengthen protections for
whistleblowers and empower the Office of Special Counsel to discipline
managers who seek to muzzle employees.
Agent Rowley, Mark Hall and Bob Lindemann are simply the latest in a
long line of Federal employees who have taken great personal risks in
blowing the whistle on government waste, fraud, and mismanagement.
Congress has long recognized the obligation we have to protect a
Federal 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 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.
I sponsored the Whistleblower Protection Act in 1989 which
strengthened and clarified whistleblower rights, as well as the bill
passed by Congress to strengthen the law further in 1994.
Unfortunately, however, repeated 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 case of LaChance versus White represents perhaps the most notable
example of the Federal Circuit's misinterpretation of the whistleblower
law.
In LaChance, decided on May 14, 1999, the court 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, relieving
him of 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 the case 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 subsequently 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'."
It was appropriate for the Federal Circuit to remand the case to the
MSPB to have it reconsider whether it was reasonable for White to
believe that what the Air Force did in this case involved gross
mismanagement. However, the Federal Circuit went on to impose a clearly
erroneous and excessive standard for him to demonstrate his
"reasonable belief"--requiring him to provide "irrefragable" proof
that the Air Force had engaged in 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? It is a
virtually impossible standard of proof to meet. Moreover, there is
nothing in the law or legislative history that even suggests such a
standard applies to the Whistleblower Protection Act. The intent of the
law is not for a Federal employee to act as an investigator and compile
"irrefragable" proof that the Federal Government, in fact, committed
fraud, waste or abuse. Rather, under the clear language of the statute,
the employee needs only to have "a reasonable belief" that there is
fraud, waste or abuse occurring in order to make a protected
disclosure.
LaChance is only one example of the Federal Circuit misinterpreting
the law. Our bill corrects LaChance and as well as several other
Federal Circuit holdings. In addition, the bill strengthens the Office
of Special Counsel and creates additional protections for federal
employees who are retaliated against for blowing the whistle.
One of the most important issues addressed in the bill is to clarify
again that the law is intended to protect a broad range of
whistleblower disclosures. The legislative history supporting the 1994
Whistleblower Protection Act amendments 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."
Despite this clear Congressional intent that was clearly articulated
in 1994, the Federal Circuit has acted to push a number of
whistleblower disclosures outside the protections of the whistleblower
law. For example, in Horton versus the Department of the Navy, the
Federal Circuit ruled that a whistleblower's disclosures to co-workers,
or to the wrong-doer, or to a supervisor were not protected by the WPA.
In Willis versus the Department of Agriculture, the court ruled that a
whistleblower's disclosures to officials in
[[Page S7640]]
the agency chain of command or those made in the course of normal job
duties were not protected. In Huffman versus Office of Personnel
Management, the Federal Circuit reaffirmed Horton and Willis. And in
Meuwissen versus Department of Interior, the Federal Circuit held that
a whistleblower's disclosures of previously known information do not
qualify as "disclosures" under the WPA. All of these rulings violate
clear Congressional intent to afford broad protection to whistleblower
disclosures.
In order to make it clear that any lawful disclosure that an employee
or job applicant reasonably believes is evidence of waste, fraud,
abuse, or gross mismanagement is covered by the WPA, the bill codifies
previous statements of Congressional intent. Using the 1994 legislative
history, it amends the whistleblower statute 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 the whistleblower law. I want to
emphasize here that, other than the explicitly listed exceptions
identified in the statute, we intend for there to be no exceptions,
inferred or otherwise, as to what is a protected disclosure. And the
prohibition on inferred exceptions is intended to apply to all
protected speech categories in section 2302(b)(8) of the law. The
intent here, again, is to make it clear that when the WPA speaks of
protecting disclosures by federal employees "any" means "any."
The bill also addresses the clearly erroneous standard established by
the Federal Circuit's LaChance decision I mentioned earlier. Rather
than needing "irrefragable proof" to overcome the presumption that a
public officer performed his or her duties correctly, fairly, in good
faith, and in accordance with the law and regulations, the bill makes
it clear that the whistleblower can rebut this presumption with
"substantial evidence." This burden of proof is a far more reasonable
and appropriate standard for whistleblowing cases.
In the 1994 WPA amendments, Congress attempted to expand relief for
whistleblowers by replacing "compensatory" damages with all direct or
indirect "consequential" damages. Again, despite clear Congressional
intent, the Federal Circuit has narrowed the scope of relief available
to whistleblowers who have been hurt by adverse personnel actions. Our
legislation would clarify the law to provide whistleblowers with relief
for "compensatory or consequential damages."
The Federal Circuit's repeated misinterpretations of the
whistleblower law are unacceptable and demand Congressional action. In
response to the court's inexplicable and inappropriate rulings, our
bill would suspend for five years the Federal Circuit's exclusive
jurisdiction over whistleblower appeals. It would instead allow a
whistleblower to file a petition to review a final order or final
decision of the MSPB in the Federal Circuit or in any other United
States appellate court of competent jurisdiction as defined under 5
U.S.C. 7703(b)(2). In most cases, using another court would mean going
to the federal circuit where the contested personnel action took place.
This five year period would allow Congress to evaluate whether other
appellate courts would issue whistleblower decisions which are
consistent with the Federal Circuit's interpretation of WPA protections
and guide Congressional efforts to clarify the law if necessary.
In addition to addressing jurisdictional issues and troublesome
Federal Circuit precedents, our bill would also make important
additions to the list of protected disclosures. First, it would subject
certain disclosures of classified information to whistleblower
protections. However, in order for a disclosure of classified
information to be protected, the employee would have to possess a
reasonable belief that the disclosure was direct and specific evidence
of a violation of law, rule or regulation, gross mismanagement, a gross
waste of funds, an abuse of authority, a substantial and specific
danger to public health or safety, or a false statement to Congress on
an issue of material fact. A whistleblower must also limit the
disclosure to a member of Congress or staff of the executive or
legislative branch holding the appropriate security clearance and
authorized to receive the information disclosed. Federal agencies
covered by the WPA would be required to establish a process to provide
confidential advice to employees on how to lawfully make a protected
disclosure of classified information to Congress.
Current law permits Federal employees to file a case at the MSPB when
they feel that a manager has taken a personnel action against them in
retaliation for blowing the whistle. The legislation would add three
new personnel actions to the list of adverse actions that cannot be
taken against whistleblowers for engaging in protected activity. These
actions would include enforcement of any nondisclosure policy, form or
agreement against a whistleblower for making a protected disclosure;
the suspension, revocation, or other determination relating to a
whistleblower's security clearance; and an investigation of an employee
or applicant for employment if taken due to their participation in
whistleblowing activity.
It is important to note that, if it is demonstrated that a security
clearance was suspended or revoked in retaliation for whistleblowing,
the legislation limits the relief that the MSPB and reviewing court can
order. The bill specifies that the MSPB or reviewing court may issue
declaratory and other appropriate relief but may not direct a security
clearance to be restored. Appropriate relief may include back pay, an
order to reassign the employee, attorney fees, or any other relief the
Board or court is authorized to provide for other prohibited personnel
practices. In addition, if the Board finds an action on a security
clearance to have been illegal, it may bar the agency from directly or
indirectly taking any other personnel action based on that illegal
security clearance action. Our legislation would also require the
agency to review and provide a report to Congress detailing the
circumstances of the agency's security clearance decision, and
authorizes expedited MSPB review of whistleblower cases where a
security clearance was revoked or suspended. The latter is important
because a person whose clearance has been suspended or revoked and
whose job responsibilities require clearance may be unable to work
while their case is being considered.
Our bill would also add two prohibited personnel practices to the
whistleblower law. First, it would codify the "anti-gag" provision
that has been in force since 1988, by virtue of its inclusion in
appropriations bills. Second, it would prohibit a manager from
initiating an investigation of an employee or applicant for employment
because they engaged in a protected activity, including whistleblowing.
Another issue addressed in the bill involves certain employees who
are excluded from the WPA. Among these are employees who hold
"confidential policy-making positions." In 1994, Congress amended the
WPA to keep agencies from designating employees confidential
policymakers after the employees filed whistleblower complaints. The
WPA also allows the President to exclude from WPA jurisdiction any
agency whose principal function is the conduct of foreign intelligence
or counterintelligence activities. Our legislation maintains this
authority but makes it clear that a decision to exclude an agency from
WPA protections must also be made prior to a personnel action being
taken against a whistleblower from that agency. This provision is
necessary to ensure that agencies cannot argue that employees are
exempt from whistleblower protections after an employee files a claim
that they were retaliated against.
Another key section of the bill would strengthen the Office of
Special Counsel. OSC is the independent federal agency responsible for
investigating and prosecuting federal employee complaints of
whistleblower retaliation. Current law, however, limits OSC's ability
to effectively enforce and defend whistleblower laws. For example, the
law provides the OSC with no authority to request the Merit Systems
Protection Board to reconsider one of its decisions or to seek
appellate review of an MSPB decision. Even when
[[Page S7641]]
another party petitions for a review of a MSPB decision, OSC is
typically denied the right to participate in the proceedings.
Our bill would provide explicit authority for the Office of Special
Counsel to appear in any civil action brought in connection with the
whistleblower law. In addition, it would authorize OSC to obtain
circuit court review of any MSPB order in a whistleblowing case if the
OSC determines the Board erred and the case would have a substantial
impact on the enforcement of the whistleblower statute. In a letter to
me addressing these provisions, Special Counsel Elaine Kaplan said, "I
believe that these changes are necessary, not only to ensure OSC's
effectiveness, but to address continuing concerns about the whittling
away of the WPA's protections by narrow judicial interpretations of the
law." I ask unanimous consent that the OSC letter be printed in the
Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
U.S. Office of Special Counsel,
Washington, DC, September 11, 2002.
Hon. Carl Levin,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Levin: Thank you for giving me the opportunity
to comment on the proposed Title VI of H.R. 5005, concerning
the protection of federal employee whistleblowers.
As the head of the U.S. Office of Special Counsel (OSC),
the independent federal agency that is responsible for
investigating and prosecuting federal employees' complaints
of whistleblower retaliation, I share your recognition that
it is crucial to ensure that the laws protecting
whistleblowers are strong and effective. Federal employees
are often in the best position to observe and identify
official misconduct or malfeasance as well as dangers to the
public health and safety, and the national security.
Now, perhaps more than ever before, our national interest
demands that federal workers feel safe to come forward to
bring appropriate attention to these conditions so that they
may be corrected. Further, and again more than ever, the
public now needs assurance that the workforce which is
carrying out crucial operations is alert, and that its
leaders welcome and encourage their constructive
participation in making the government a highly efficient and
effective steward of the public interest.
To these ends, Title VI contains a number of provisions
that will strengthen the Whistleblower Protection Act (WPA)
and close loopholes in the Act's coverage. The amendment
would reverse the effects of several judicial decisions that
have imposed unduly narrow and restrictive tests for
determining whether employees qualify for the protection of
the WPA. These decisions, among other things, have held that
employees are not protected against retaliation when they
make their disclosures in the line of duty or when they
confront subject officials with their suspicions of
wrongdoing. They have also made it more difficult for
whistleblowers to secure the Act's protection by interposing
what the Court of Appeal for the Federal Circuit has called
an "irrefragable" presumption that government officials
perform their duties lawfully and in good faith.
In addition to reversing these rulings, Title VI would
grant the Special Counsel independent litigating authority
and the right to request judicial review of decisions of the
Merit Systems Protection Board (MSPB) in cases that will have
a substantial impact upon the enforcement of the WPA. I
firmly believe that these changes are necessary, not only to
ensure OSC's effectiveness, but to address continuing
concerns about the whittling away of the WPA's protections
by narrow judicial interpretations of the law. The changes
would ensure that, OSC, the government agency charged with
protecting whistleblowers, will have a meaningful
opportunity to participate in the shaping of the law.
Further, Title VI would strengthen OSC's capacity to use
its disciplinary action authority to deter agency
supervisors, managers, and other officials from engaging in
retaliation, and to punish those who do so. The amendment
does this in two ways. First, it clarifies the burden of
proof in disciplinary action cases that OSC brings by
employing the test first set forth by the Supreme Court in
Mt. Healthy School District v. Board of Education. Under this
test, in order to secure discipline of an agency official
accused of engaging in whistleblower retaliation, OSC would
have to show that protected whistleblowing was a
"significant, motivating factor" in the decision to take or
threaten to take a personnel action. If OSC made such a
showing, the MSPB would order appropriate discipline unless
the official showed, by preponderant evidence, that he or she
would have taken or threatened to take the same action even
had there been no protected activity.
This change is necessary in order to ensure that the burden
of proof in these cases is not so onerous as to make it
virtually impossible to secure discipline against
retaliators. Under current law, OSC bears the unprecedented
burden of demonstrating that protected activity was the but-
for cause of an adverse personnel action against a
whistleblower. The amendment would correct the imbalance by
imposing the well-established Mt. Healthy test in these
cases.
In addition, the bill would relieve OSC of attorney fee
liability in disciplinary action cases in which it ultimately
does not prevail. The amendment would shift liability for
fees to the manager's employing agency, where an award of
fees would be in the interest of justice. The employing
agency would indemnify the manager for these costs which
would have been incurred by him in the course of performing
his official duties.
Under current law, if OSC ultimately does not prevail in a
case it brings against a manager whom our investigation shows
has engaged in retailiation, then we must pay attorney fees,
even if our prosecution decision was an entirely reasonable
one. For a small agency like OSC, with a limited budget, the
specter of having to pay large attorney fee awards simply
because we do not ultimately prevail in a case, is a
significant obstacle to our ability to use this important
authority to hold managers accountable. It is, moreover, an
unprecedented burden; virtually all fee shifting provisions
which could result in an award of fees against a government
agency, depend upon a showing that the government agency has
acted unreasonably or in bad faith.
In addition to these provisions, the bill would also
provide that for a period of five years, beginning on
February 1, 2003, there would be multi-circuit review of
decisions of the MSPB, just as there is now multi-circuit
review of decisions of the MSPB's sister agency, the
Federal Labor Relations Authority. This experiment will
give Congress the opportunity to judge whether providing
broader perspectives of all of the nation's courts of
appeals will enhance the development of the law under the
WPA.
There are several other provisions of the amendments that
would strengthen the Act's coverage and remedies. The
amendments, for example, would extend coverage of the WPA to
circumstances in which an agency initiated an investigation
of an employee or applicant in reprisal for whistleblowing or
where an agency implemented an illegal non-disclosure form or
policy. The amendments also would authorize an award of
compensatory damages in federal employee whistleblower cases.
Such awards are authorized for federal employees under the
civil rights acts, and for environmental and nuclear
whistleblowers, among others, under other federal statutes.
Given the important public policies underlying the WPA, it
seems appropriate that the same sort of make whole relief
should be available to federal employee whistleblowers.
Finally, Title VI contains a provision that would provide
relief to employees who allege that their security clearances
were denied or revoked because of protected whistleblowers,
without interfering with the longstanding authority of the
President to make security clearance determinations. The
amendment would allow employees to file OSC complaints
alleging they suffered a retaliatory adverse security
clearance determination. OSC would be given the authority to
investigate such complaints and the MSPB would have the
authority to issue declaratory and appropriate relief other
than ordering the restoration of the clearance. Further,
where the Board found retaliation, the employing agency would
be required to conduct its own investigation of the
revocation and report back to Congress.
The amendment provides a balanced resolution of the tension
between protecting national security whistleblowers against
retaliation and maintaining the President's traditional
prerogative to decide who will have access to classified
information. Especially in light of the current heightened
concerns about issues of national security, this change in
the law is clearly warranted.
Thank you again for providing me with an opportunity to
comment on these amendments, and for your continuing interest
in the work of the Office of Special Counsel.
Sincerely,
Elaine Kaplan.
Mr. LEVIN. OSC currently has the authority to pursue disciplinary
action against managers who retaliate against whistleblowers. However,
Federal Circuit decisions, like LaChance, have undermined the agency's
ability to successfully pursue such cases. The Special Counsel has said
that "change is necessary in order to ensure that the burden of proof
in these cases is not so onerous as to make it virtually impossible to
secure disciplinary action against retaliators." In addition to it
being difficult to win, if the OSC loses a disciplinary case, it has to
pay the legal fees of those against whom OSC initiates disciplinary
action. In its letter, OSC said that "the specter of having to pay
large attorney fee awards . . . is a significant obstacle to our
ability to use this important authority to hold managers accountable."
Our bill addresses these problems by establishing a reasonable burden
of proof for disciplinary actions and requiring the employing agency,
not the OSC, to reimburse the prevailing party for attorney fees in a
disciplinary proceeding.
Finally, the bill addresses a new issue that has arisen in connection
[[Page S7642]]
with the recent enactment of the Homeland Security Act or HSA. To
evaluate the vulnerability to terrorist attack of certain critical
infrastructure such as chemical plants, computer networks and other key
facilities, the HSA asks private companies that own these facilities to
submit unclassified information about them to the government. In doing
so, the law also created some ambiguity on the question of whether
federal employee whistleblowers would be protected by the WPA if they
should disclose information that has been independently obtained by the
whistleblower about such facilities but which may also have been
disclosed to the government as under the critical infrastructure
information program.
While I believe it was Congress' intent to extend whistleblower
protections to federal employees who disclose such independently
obtained information, the law's ambiguities are troublesome in the
context of the tendency of the Federal Circuit to narrowly construe the
scope of protections afforded by the WPA. Our bill would thus clarify
that whistleblower protections do extend to federal employees who
disclose independently obtained information that may also have been
disclosed to the government as part of the critical infrastructure
information program.
We need to encourage federal employees to blow the whistle on waste,
fraud and abuse in federal government agencies and programs. These
people take great risks and often face enormous obstacles in doing what
they believe is right. The Congress and the country owe a particular
debt of gratitude to those whistleblowers who put their careers on the
line to protect national security. Since September 11, 2001, we have
seen a number of examples of how crucial people like Coleen Rowley,
Mark Hall and Bob Lindemann are to keeping our country safe. I request
unanimous consent to print a letter from Agent Rowley in the Record. In
the letter she says that when she blew the whistle, she was lucky
enough to garner the support of many of her colleagues and members of
Congress. However, her letter warns that for every Coleen Rowley,
"there are many more who do not benefit from the relative safety of
public notoriety." It is to protect those responsible, courageous many
that we offer this legislation. We need more like them.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
September 2, 2002.
Dear Senators: I have proudly served in federal law
enforcement for over 21 years. Prior to my personal
involvement in a specific matter, I did not fully appreciate
the strong disincentives that sometimes keep government
employees from exposing waste, fraud, abuse, or other
failures they witness on the job. Nor did I appreciate the
strong incentives that do exist for agencies to avoid
institutional embarrassment.
The decision to step forward with information that exposed
my agency to scrutiny was one of the most difficult of my
career. I did not come to it quickly or lightly. I first
attempted to warn my superiors through regular channels. Only
after those warnings failed to bring about the necessary
response and congressional inquiry was initiated, did it go
outside the agency with my concerns. I had no intention or
desire to be in the public spotlight, so I did not go to the
news media. I provided the information to Members of Congress
with oversight responsibility. I felt compelled to do so
because my responsibility is to the American people, not to a
government agency.
Unfortunately, the cloak of secrecy which is necessary for
the effective operation of government agencies involved in
national security and criminal investigations fosters an
environment where the incentives to avoid embarrassment and
the disincentives to step forward combine. When that happens,
the public loses. We need laws that strike a better balance,
that are able to protect effective government operation
without sacrificing accountability to the public. I was lucky
enough to garner a good deal of support from my colleagues in
the Minneapolis office and Members of Congress. But for every
one like me, there are many more who do not benefit from the
relative safety of public notoriety. They need credible,
functioning rights and remedies to retain the freedom to
warn.
I also need to state that I write this letter in my
personal capacity, and that it reflects my personal views
only, not those of the government agency for which I work.
Thank you for your consideration.
Coleen Rowley.
Mr. LEVIN. I ask unanimous consent to print in the Record a section-
by-section explanation of the bill.
There being no objection, the analysis was ordered to be printed in
the Record, as follows:
Section-by-Section Analysis of the Federal Employee Protection of
Disclosures Act
The Federal Employee Protection of Disclosures Act would
strengthen protections for federal employees who blow the
whistle on waste, fraud and abuse in the federal government.
Protected Whistleblower Disclosures. To correct court
decisions improperly limiting the disclosures protected by
the Whistleblower Protection Act (WPA), section (b) of the
bill would clarify Congressional intent that the law covers
`any' whistleblowing disclosure, whether that disclosure is
made as part of an employee's job duties, concerns policy or
individual misconduct, is oral or written, or is made to any
audience inside or outside an agency, and without restriction
to time, place, motive or context. This section would also
protect certain disclosures of classified information to
Congress when the disclosure is to a Member or legislative
staff holding an appropriate security clearance and
authorized to receive the type of information disclosed.
Informal Disclosures. Section (c) would clarify the
definition of "disclosure" to include a formal or informal
communication or transmission.
Irrefragable Proof. In LaChance v. White, the U.S. Court of
Appeals for the Federal Circuit imposed an erroneous standard
for determining when an employee makes a protected disclosure
under the WPA. Under the clear language of the statute, an
employee need only have a reasonable belief that he or she is
providing evidence of fraud, waste or abuse to make a
protected disclosure. But the court ruled that an employee
had to have "irrefragable proof" meaning undeniable and
incontestable proof to overcome the presumption that a public
officer is performing their duties in accordance with law.
Section (d) would replace this unreasonable standard of proof
by providing that a whistleblower can rebut the presumption
with "substantial evidence."
Prohibited Personnel Actions. Section (e)(1) would add
three actions to the list of prohibited personnel actions
that may not be taken against whistleblowers for protected
disclosures: enforcement of a nondisclosure policy, form or
agreement; suspension, revocation, or other determination
relating to an employee's security clearance; and
investigation of an employee or applicant for employment due
to protected whistleblowing activities.
Nondisclosure Actions Against Whistleblowers. Section
(e)(2) would bar agencies from implementing or enforcing
against whistleblowers any nondisclosure policy, form or
agreement that fails to contain specified language preserving
the right of government employees to disclose certain
protected information. It would also prohibit a manager from
initiating an investigation of an employee or applicant for
employment because they engaged in protected activity.
Retaliations Involving Security Clearances. Section (e)(3)
would make it a prohibited personnel practice for a manager
to suspend, revoke or take other action with respect to an
employee's security clearance in retaliation for
whistleblowing. This section would also authorize the Merit
Systems Protection Board (MSPB) to conduct an expedited
review of such matters and issue declaratory and other
appropriate relief, but would not empower MSPB to restore a
security clearance. If MSPB or a reviewing court were to find
that a security clearance decision was retaliatory, the
agency involved would be required to review its security
clearance decision and issue a report to Congress explaining
it.
Exclusions from WPA. Current law allows the President to
exclude certain employees and agencies from the WPA if they
perform certain intelligence related or policy making
functions. In 1994, Congress amended the WPA to stop agencies
from removing employees from WPA coverage after the employees
filed whistleblower complaints. Section (f) would also
require that removal of an agency from the WPA be made prior
to a personnel action being taken against a whistleblower at
that agency.
Attorney Fees. The Office of Special Counsel (OSC) has
authority to pursue disciplinary action against managers who
retaliate against whistleblowers. Currently, if OSC loses a
disciplinary case, it must pay the legal fees of those
against whom it initiated the action. Because the amounts
involved could significantly deplete OSC's limited resources,
section (g) would require the employing agency, rather than
OSC, to reimburse the manager's attorney fees.
Compensatory Damages. In the 1994 WPA amendments, Congress
attempted to expand relief for whistleblowers by replacing
"compensatory" damages with direct and indirect
"consequential" damages. Despite Congressional intent, the
Federal Circuit narrowed the scope of relief available to
whistleblowers. To correct the court's misinterpretation of
the law, section (h) would provide whistleblowers with relief
for compensatory or consequential damages.
Burden of Proof in Disciplinary Actions. Currently, when
OSC pursues disciplinary action against managers who
retaliate against whistleblowers, OSC must demonstrate that
an adverse personnel action would not have occurred "but
for" the whistleblower's protected activity. Section (i)
would establish a more reasonable burden of proof by
requiring OSC to demonstrate that the whistleblower's
protected disclosure was
[[Page S7643]]
a "motivating factor" in the decision by the manager to
take the adverse action, even if other factors also motivated
the decision. This burden would be similar to the approach
taken in the 1991 Civil Rights Act.
Disclosures to Congress. Section (j) would require agencies
to establish a process to provide confidential advice to
employees on how to lawfully make a protected disclosure of
classified information to Congress.
Authority of Special Counsel. Under current law, OSC has no
authority to request MSPB to reconsider a decision or seek
appellate review of a MSPB decision. This limitation
undermines OSC's ability to protect whistleblowers and
integrity of the WPA. Section (k) would authorize OSC to
appear in any civil action brought in connection with the WPA
and request appellate review of any MSPB order where OSC
determines MSPB erred and the case would have a substantial
impact on WPA enforcement.
Judicial Review. In 1982, Congress replaced normal
Administrative Procedures Act appellate review of MSPB
decisions with exclusive jurisdiction in the U.S. Court of
Appeals for the Federal Circuit. While the 1989 WPA and its
1994 amendments strengthened and clarified whistleblower
protections, Federal Circuit holdings have repeatedly
misinterpreted key provisions of the law. Subject to a five
year sunset, section (l) would suspend the Federal Circuit's
exclusive jurisdiction over whistleblower appeals and allow
petitions for review to be filed either in the Federal
Circuit or any other federal circuit court of competent
jurisdiction.
Nondisclosure Restrictions on Whistleblowers. Section (m)
would require all federal nondisclosure policies, forms and
agreements to contain specified language preserving the right
of government employees to disclose certain protected
information. This section would codify the so-called anti-gag
provision that has been included in federal appropriations
bills since 1988.
Critical Infrastructure Information. Section (n) would
clarify that section 214(c) of the Homeland Security Act
(HSA) maintains existing WPA rights for independently
obtained information that may also qualify as critical
infrastructure information under the HSA.
____________________
Congressional Record: June 10, 2003 (Senate)
Page S7602
FEDERAL EMPLOYEE PROTECTION OF DISCLOSURES ACT
Mr. LEAHY. Mr. President, I am proud to be an original cosponsor of
the Federal Employees Protection of Disclosures Act, a bill to ensure
that Federal employees can report fraud, waste, and abuse within their
employer Federal agencies without fear of retaliation. I cosponsored
this much needed reform in the last Congress and commend the junior
Senator from Hawaii for reintroducing it today. Congress must encourage
Federal employees with reasonable beliefs about governmental misconduct
to report such fraud or abuse, but it must also protect those who blow
the whistle rather than leave them vulnerable to reprisals.
Unfortunately, whistleblower protections under current law have been
weakened by the Federal circuit, the court that now possesses exclusive
appellate jurisdiction over such claims. The Federal circuit has issued
a number of rulings that erode whistleblower rights in direct
contradiction to the plain language of the law and the congressional
intent of established whistleblower protections. The potential chilling
effect of these decisions threatens to undermine the fundamental
purpose underlying whistleblower laws. The Federal Employees Protection
of Disclosures Act will address this problem by expanding judicial
review of such cases to all Federal circuit courts of competent
jurisdiction. Jurisdiction will then include the place where the
whistleblower lives or where the Government misconduct occurred.
The bill also updates the current law. For example, it clarifies that
whistleblower disclosures can come in many forms--such as oral or
written, or formal or informal disclosures. It also broadens current
law to reflect that reporting occurs in many different areas, such as
over policy matters or individual misconduct. The law expands the
current list of prohibited personnel actions against a whistleblower in
two ways: One, the opening of an investigation of the employee, and
two, the revocation of a security clearance. The bill also ensures that
appropriate disciplinary actions are taken against managers who
negative actions toward employees were motivated in any way by the
employee's whistleblowing. More practical reforms are also included,
such as making the collecting of attorney's fees available to
whistleblowers who prevail in court. In addition, under the bill,
consequential damages may be suffered by the employee if they are the
result of a prohibited personnel practice.
Whistleblower information is one tool in helping the Government and
private sector find ways to prevent future terrorist attacks as well.
Though certain safeguards remain for intelligence-related or policy-
making functions, the Federal Employees Protection of Disclosures Act
maintains existing whistleblower rights for independently obtained
critical infrastructure information without fear of criminal
prosecution. These protections are needed to encourage individuals to
submit information to the Government about cyberattacks or other
threats that might affect the Nation's critical infrastructures.
Whistleblowers have proven to be important catalysts for much needed
Government change over the years. From corporate fraud to governmental
misconduct to media integrity, the importance of whistleblowers in
galvanizing positive change cannot be questioned. I urge my fellow
Senators to support this important bill.
____________________
