Statement in Favor of the Whistleblower Protection Enhancement Act of 2007

On March 14, 2006, the full United States House of Representatives voted 331 to 94 to pass legislation (H.R. 985) introduced by Representatives Henry Waxman, Todd Platts, Chris Van Hollen, and Tom Davis to restore and strengthen protections for whistleblowers who uncover waste, fraud, and abuse within the federal government.  Congressman Platt's comments in support of the bill follow:   

Mr. PLATTS . Mr. Chairman, I yield myself as much time as I may consume.

Mr. Chairman, H.R. 985, the Whistleblower Protection Enhancement Act, is a bipartisan bill which seeks to restore protections for civil servants who report illegalities, gross mismanagement and waste, and substantial and specific dangers to the public health and safety.

H.R. 985 contains many of the provisions of legislation which I introduced during the 109th Congress, H.R. 1317. It represents consensus language crafted through bipartisan negotiations among myself, Chairman Waxman, Ranking Member Davis, Representative Van Hollen, as well as the majority and minority staffs of the Oversight and Government Reform Committee, and interested stakeholders groups such as the Government Accountability Project. I certainly would like to thank all who have been involved in this process.

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 finding that the civil service protections of the time were inadequate, Congress, in 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 and the Federal circuit court, 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, it states, "Perhaps the most troubling precedents involved 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, 177 whistleblower cases have come before the Federal Circuit Court; however, only two whistleblowers have 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 Court has stated in one case 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.

H.R. 985 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 the employee's duties." In addition, H.R. 985 would end any uncertainty about the irrefragable proof standard, making it clear that the "substantial evidence standard" applies to all five categories for legally protected whistleblowing disclosures. Appellate courts could not impose additional burdens for a particular category, as I understand occurred in the case of White v. Department of Air Force with respect to "gross mismanagement."

Other provisions within H.R. 985 which are either identical or similar to provisions within previous versions of this legislation include:

Allowing employees the option to have their claims decided in Federal District Court if the Merit Systems Protection Board does not act on a claim within 180 days;

Ending the monopoly jurisdiction of the United States Court of Appeals for the Federal Circuit over appeals under the Whistleblower Protection Act;

Conducting a GAO study on the revocation of security clearances in retaliation for whistleblowing;

Extending whistleblower protections to the Transportation Security Administration baggage screeners;

Enhancing whistleblower protections for employees of government contractors;

Codifying an anti-gag rule that was first included in the Treasury Appropriations bill for 1988 and every year thereafter; and,

Continuing protections for whistleblowers who were subjected to prohibited personnel actions prior to their agency or unit being exempted from the WPA.

In conclusion, I would like to once again thank each of the parties who have been involved in the ongoing development of this critically important legislation. I would also like to thank those courageous citizens who have blown the whistle on waste, fraud, and abuse in the Federal Government. If we truly want to eliminate waste, fraud, and gross mismanagement throughout the Federal Government, then we need to empower and protect our Federal employees who are on the front lines of government operations and best positioned to witness this waste, fraud, and gross mismanagement. This legislation provides such empowerment and protection. I urge a "yes" vote.

Mr. Chairman, I reserve the balance of my time.

Prior to the passage of H.R. 985, the full House adopted two amendments offered by Rep. Platts by vote.  An explanation of these amendments follows: 

Mr. PLATTS. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, this amendment would require the Merit Systems Protection Board to rely on a consistent standard for clear and convincing evidence, which is the burden of proof that must be met to sustain an agency's affirmative defense that it would have taken the same personnel action in question independent of an employee's protected contact.
Under the amendment, clear and convincing evidence will be defined as "evidence indicating that the matter to be proved is highly probable or reasonably certain." This standard is consistent with United States Supreme Court precedent and administrative decisions for remedial employment statutes.
By way of background, when Congress passed the Whistleblower Protection Act of 1989, it intended to toughen the legal burden of proof for a Federal agency's affirmative defense once a whistleblower establishes a prima facie case of retaliation from "preponderance of the evidence" to "clear and convincing evidence." However, just the opposite has occurred. The clear and convincing evidence standard is now the primary basis cited to rule against whistleblowers in decisions on merits.
The reason behind this is that the Merit Systems Protection Board has created a unique test for clear and convincing evidence which is inconsistent with long-established judicial and administrative norms. In assessing the standard, the board considers three factors:
First, the merits of an agency's stated independent justification for acting against a whistleblower; second, whether there was a motive to retaliate; and third, whether the action reflects discriminatory treatment compared to that afforded employees who have not engaged in protective conduct.
The three-part test leaves the board with broad discretion in any given case with respect to how many criteria an agency must demonstrate and what level of proof must be demonstrated for each factor.
Adoption of this amendment is necessary in order to restore congressional intent in passing the Whistleblower Protection Act.
Through the WPA and this legislation we are now considering, Congress has defined the terms for two of the three tests an employee must pass to obtain relief: "reasonable belief" and "contributing factor." For the administrative process to function as intended, Congress must also define "clear and convincing evidence."
Accordingly, I urge a "yes" vote on the amendment. I appreciate this amendment being made in order by the Rules Committee.
 

Mr. PLATTS. Mr. Chairman, I yield myself as much time as I may consume.
This amendment is intended to address situations in which an employee faces retaliation for being associated with whistleblowers through his or her testimony in a legal proceeding, and to encourage cooperation with Inspector General and Office of Special Counsel investigations, as well as compliance with the law.
Oddly, under current law, whistleblowers who make their disclosures of waste, fraud or abuse in the context of another employee's legal appeal, a grievance hearing, an Inspector General or Office of Special Counsel investigation are not given the same protections as other whistleblowers, such as those who blow the whistle on national television. This simply does not make sense.
My amendment would rectify this situation in three ways. First, the amendment would clarify that a protected disclosure cannot be disqualified because of the forum in which it is made, such as through witness testimony in another employee's appeal.
Second, the amendment would establish more realistic burdens of proof, the same as exist in most whistleblower cases, for those who were retaliated against because they testified on behalf of an employee exercising their legal rights, because they cooperated with an Inspector General or Special Counsel investigation, or because they refused to obey an order that would have required a violation of the law.
And third, the amendment gives these whistleblowers access to the same due process rights as other whistleblowers.
Testifying under oath, cooperating with an Inspector General or Special Counsel investigation, and refusing orders to violate the law are all important ways by which public servants can expose waste, fraud and abuse in the government. Accordingly, I urge a "yes" vote on the amendment.  

Mr. Chairman, I reserve the balance of my time.