House Government Reform Committee Passes Whistleblower Protection Bill

Mr. Chairman, let me begin by thanking you, Ranking Member Waxman, the majority and minority staffs of this Committee, and interested stakeholders such as the Government Accountability Project (GAP) and said organization's Legal Director, Tom Devine.  All have worked hard to bring us to where we are today.

H.R. 1317, "The Whistleblower Protection Enhancement Act," is a strongly 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.  Similar legislation was approved unanimously by this Committee last year.  The Senate companion introduced by Senators Daniel Akaka and Charles Grassley, S. 494, was approved unanimously by the Senate Committee on Governmental Affairs on May 25, 2005.

The manager's amendment I am offering today will add an important provision to the underlying legislation related to how whistleblower claims are heard and adjudicated.  Namely, if the Office of Special Counsel (OSC) does not take action within 180 days in response to a whistleblower complaint filed with them, a federal employee could chose to have his or her claim decided in federal district court.  This would include a right to a jury trial.  Currently, the only recourse for most federal whistleblowers is the Merit Systems Protection Board (MSPB).  A right to a jury trial, however, is afforded to corporate whistleblowers and employees of the Department of Energy.  Extending it to other federal employees would be, as GAP has said, "a landmark good government breakthrough."  

In addition to this historic structural change, the manager's amendment includes those provisions in the underlying bill aimed at plugging loopholes which have developed in whistleblower protections over the last ten years.   To provide context for the legislation we are considering, 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, 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, here today we are once again largely back to where we started.  Since the 1994 amendments, a number of decisions have created 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 at one point 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 would pretty much have to admit to the waste, fraud, or abuse.  The Federal Circuit Court appears to have abandoned this standard in a December 2004 opinion, and we ought to now ensure it is clearly and permanently abandoned.     

H.R. 1317 and the manager's amendment 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, they ban the "irrefragable proof" standard from whistleblower jurisprudence, statutorily clarifying that the much more common standard of "substantial evidence" is the appropriate standard.

The manager's amendment would also correct an error in the original draft of H.R. 1317 which could have unintentionally diminished whistleblower rights for homeland security personnel.  Other provisions would: 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; codify an anti-gag rule that has been a rider in every Treasury Appropriations bill since 1988; 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 urge the adoption of the manager's amendment.