Congressman Platts' statement on the House Government Reform Committee's passage of the "Whistleblower Protection Enhancement Act"

H.R. 3281, "The Whistleblower Protection Enhancement Act," is a bipartisan bill which seeks to restore protections for federal employees who report illegalities, gross mismanagement and waste, and substantial and specific dangers to the public health and safety.  It is the House companion to legislation, S. 2628, introduced in the Senate by Senators Daniel Akaka and Charles Grassley.  The Senate bill was approved unanimously by the Senate Committee on Governmental Affairs on July 21, 2004. 

 

The substitute amendment I am offering today is compromise language which has grown out of discussions between Chairman Davis and myself, the majority and minority staffs, and interested stakeholders like the Government Accountability Project (GAP).  I would like to thank all involved.  Although the substitute amendment does not contain all the provisions I had hoped for, it is a solid step in the right direction.  Passage out of Committee today will hopefully put us in a position to come to an agreement with the Senate and enhance protections for federal whistleblowers before the end of the 108th Congress.    

 

To provide context for the legislation we are considering today, it is important to review the legislative history in the area of whistleblower protections for federal employees.  As a result of findings that the civil service protections of the time were inadequate, Congress and the first Bush Administration enacted into law the Whistleblower Protection Act (WPA) of 1989, which expressly stated that "any" protected disclosure of waste, fraud, and abuse by a federal employee is covered by the law.  Unfortunately, as interpreted by the Merit Systems Protection Board (MSPB) and the Federal Circuit Court (which has monopoly jurisdiction over whistleblower appeals), loopholes began to develop in the WPA.  Accordingly, Congress strengthened the law in 1994.  It is noteworthy that the report accompanying the WPA amendments of 1994 expressed great frustration with the way the WPA was being interpreted. 

 

According to the report: Perhaps the most troubling precedents involve the Board's inability to understand that "any" means "any."  The WPA protects "any" disclosure evidencing a reasonable belief of specified misconduct, a cornerstone to which the MSPB remains blind.  The only restrictions are for classified information or material the release of which is specifically prohibited by statute.  Employees must disclose that type of information through confidential channels to maintain protection; otherwise there are no exceptions. 

 

Unfortunately, we are once again largely back to where we started.  Since the 1994 amendments, 75 whistleblower cases have come before the Federal Circuit Court.  However, only one whistleblower has prevailed.  Among the reasons are a number of decisions which have continued to create exceptions to the law, including decisions stating that an employee is not protected by the WPA if:
. the employee directs criticism to other witnesses or a supervisor in an attempt to start the process of challenging misconduct; or,
. the information disclosed was done in the course of the employee's ordinary job duties; or,
. the information "disclosed" has already been raised by someone else.

 

In addition, the Federal Circuit has stated that-for a federal employee to "reasonably believe" there is evidence of waste, fraud, and abuse, as required by the law-he or she must overcome with "irrefragable proof" the presumption that the agency was acting in good faith.  This is an unheard of legal standard, defined in the dictionary as "impossible to refute."  In other words, the agency pretty much has to admit to the waste, fraud, or abuse. 

The substitute amendment, like the underlying legislation, would clarify Congressional intent that "any" whistleblower disclosure includes disclosures "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".  Also like the underlying bill, the substitute amendment would replace the "irrefragable proof" standard with the much more common standard of showing "substantial evidence." 

 

Other provisions within the amendment would: codify an anti-gag rule that has been a rider in every Treasury Appropriations bill since 1988; expressly prohibit retaliatory investigations of employees; continue protections for whistleblowers who were subjected to prohibited personnel actions prior to their agency or unit being exempted from the WPA; and, require a GAO study to determine the extent to which security clearances are revoked due to protected whistleblowing.    

 

In conclusion, I would like to once again thank each of the parties who have been involved in the ongoing development of this legislation.  I would also like to thank those courageous citizens who have exposed waste, fraud, and abuse in the federal government by becoming whistleblowers.  I yield back the balance of my time.