Statement - OGR Committee Passage of the Whistleblower Protection Enhancement Act of 2011

Mr. Chairman, I am pleased to have joined you, Ranking Member Cummings, and Rep. Van Hollen in introducing the legislation that we are considering today.  As you referenced, I first became involved in the issue of whistleblower protections in 2004, when I introduced the Whistleblower Protection Enhancement Act as H.R. 3281.  That bill was reported out of committee by voice vote but not considered in the full House.  I reintroduced the bill the next session as H.R. 1317, with the bill again being reported out of committee – this time with even stronger protections.  Rep. Van Hollen and I offered the text of the bill as an amendment on the House floor in 2009, which the full United States House of Representatives adopted by voice vote.  I was pleased to join with Congressman Waxman and Van Hollen in sponsoring other variations of the bill in 2007 and 2009, as I am truly pleased to join with you, Mr. Chairman, Ranking Member Cummings, and Congressman Van Hollen in sponsoring the bipartisan bill before the Committee today. 

The Whistleblower Protection Enhancement Act will strengthen the inadequate protections currently afforded to federal employees who report illegalities, gross mismanagement and waste, and substantial and specific dangers to the public health and safety.  To provide context, 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 certain categories 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 of 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, 219 whistleblower cases have come before the Federal Circuit Court of Appeals. However, only three whistleblowers have prevailed.  Among the reasons are a number of decisions which have created exceptions to the law, including decisions stating that an employee is not protected by the WPA if:

• the employee directs criticism to a supervisor in an attempt to start the process of challenging misconduct;
• the information “disclosed” has already been raised by someone else; or,
• the information disclosed was done in the course of the employee’s ordinary job duties. 

In addition, the Federal Circuit at one point even 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.”

With the enactment of the Whistleblower Protection Enhancement Act we are considering here today, there should no longer be any uncertainty.  The Act would overturn the court and administrative decisions that undermine existing whistleblower protections.  Other significant reforms included in the legislation before us include: 

• granting employees access to federal court under certain circumstances if the Merit Systems Protection Board (MSPB) does not take action within 270 days;
• allowing certain precedent-setting cases to be reviewed by the U.S. Court of Appeals for the D.C. Circuit, instead of the Federal Circuit; and,
• strengthening the procedures in place for investigations of whistleblower complaints related to national security matters.

In conclusion, I would like to extend thanks to all, Members, committee staff, and good government organizations such as the Government Accountability Project and the Project on Government Oversight, who have worked on this issue over the past seven years – including the most recent changes to the bill that will hopefully broaden its appeal sufficiently for enactment into law.  I would also like to thank those federal employees with the courage to come forward and report waste, fraud, and abuse.  With the fiscal challenges currently facing the country, the need for such courage has never been greater.   I yield back the balance of my time.