[Senate Hearing 107-160]
[From the U.S. Government Publishing Office]
S. Hrg. 107-160
S. 995--WHISTLEBLOWER PROTECTION ACT AMENDMENTS
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HEARING
before the
INTERNATIONAL SECURITY, PROLIFERATION AND FEDERAL SERVICES SUBCOMMITTEE
of the
COMMITTEE ON
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JULY 25, 2001
__________
Printed for the use of the Committee on Governmental Affairs
_______
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COMMITTEE ON GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia PETE V. DOMENICI, New Mexico
THOMAS R. CARPER, Delaware THAD COCHRAN, Mississippi
JEAN CARNAHAN, Missouri ROBERT F. BENNETT, Utah
MARK DAYTON, Minnesota JIM BUNNING, Kentucky
Joyce A. Rechtschaffen, Staff Director and Counsel
Hannah S. Sistare, Minority Staff Director and Counsel
Darla D. Cassell, Chief Clerk
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INTERNATIONAL SECURITY, PROLIFERATION AND FEDERAL SERVICES SUBCOMMITTEE
DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan THAD COCHRAN, Mississippi
ROBERT G. TORRICELLI, New Jersey TED STEVENS, Alaska
MAX CLELAND, Georgia SUSAN M. COLLINS, Maine
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
JEAN CARNAHAN, Missouri PETE V. DOMENICI, New Mexico
MARK DAYTON, Minnesota ROBERT F. BENNETT, Utah
Nanci E. Langley, Deputy Staff Director
Mitchel B. Kugler, Minority Staff Director
Brian D. Rubens, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Akaka................................................ 1
Senator Carper............................................... 11
Senator Levin................................................ 12
WITNESSES
Wednesday, July 25, 2001
Hon. Charles E. Grassley, a U.S. Senator from the State of Iowa.. 2
Hon. Elaine Kaplan, Special Counsel, Office of Special Counsel... 5
Hon. Beth S. Slavet, Chairman, U.S. Merit Systems Protection
Board.......................................................... 8
Thomas Devine, Legal Director, Government Accountability Project. 25
Alphabetical List of Witnesses
Devine, Thomas:
Testimony.................................................... 25
Prepared statement with attachments.......................... 54
Grassley, Hon. Charles E.:
Testimony.................................................... 2
Prepared statement........................................... 37
Kaplan, Hon. Elaine:
Testimony.................................................... 5
Prepared statement........................................... 39
Slavet, Hon. Beth S.:
Testimony.................................................... 8
Prepared statement........................................... 44
Appendix
Copy of S. 995................................................... 29
Stuart E. Schiffer, Acting Attorney General, Civil Division,
Department of Justice, prepared statement...................... 74
Colleen M. Kelley, National President, National Treasury
Employees Union, prepared statement............................ 97
Questions and responses from:
Hon. Elaine Kaplan, submitted by Senator Akaka............... 99
Hon. Elaine Kaplan, submitted by Senator Cochran............. 103
Hon. Elaine Kaplan, submitted by Senator Levin............... 111
Hon. Beth S. Slavet, submitted by Senator Cochran............ 116
Hon. Beth S. Slavet, submitted by Senator Levin.............. 122
Hon. Beth S. Slavet, submitted by Senator Akaka.............. 123
Thomas Devine, submitted by Senator Cochran.................. 131
Stuart Schiffer, submitted by Senator Akaka.................. 132
S. 995--WHISTLEBLOWER PROTECTION ACT AMENDMENTS
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WEDNESDAY, JULY 25, 2001
U.S. Senate,
Subcommittee on International Security,
Proliferation and Federal Services,
of the Committee on Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Daniel K.
Akaka, Chairman of the Subcommittee, presiding.
Present: Senators Akaka, Cochran, Levin, and Carper.
OPENING STATEMENT OF CHAIRMAN AKAKA
Senator Akaka. This meeting will come to order. Today's
hearing will examine S. 995, legislation to strengthen
protections for Federal employees who exercise one of the basic
obligations of public service, that is disclosing waste, fraud,
abuse or substantial and specific danger to public health or
safety. Unfortunately, the right of Federal employees to be
free from workplace retaliation after such disclosures has been
diminished by a pattern of court rulings that have narrowly
defined who qualifies as a whistleblower. These rulings are
inconsistent with clear, congressional intent and have had a
chilling effect on whistleblowers coming forward with
significant disclosures.
We are pleased to have with us today forceful advocates for
Federal whistleblowers and defenders of the merit system. I
wish to thank Senator Grassley for taking time out of his busy
schedule to be here with us today. We are pleased to welcome
the Hon. Elaine Kaplan, Special Counsel of the Office of
Special Counsel; the Hon. Beth Slavet, Chair of the Merit
Systems Protection Board; and Thomas Devine, Legal Director of
the Government Accountability Project. A representative of the
Department of Justice was invited to testify but was unable to
attend. I ask that the Department's written statement be
submitted for the record,\1\ as well as a statement from the
National Treasury Employees Union,\2\ in support of the bill.
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\1\ The prepared statement of Stuart E. Schiffer, Acting Attorney
General, Civil Division, Department of Justice, appears in the Appendix
on page 74.
\2\ The prepared statement of Colleen M. Kelley, National
President, National Treasury Employees Union, appears in the Appendix
on page 97.
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S. 995 seeks to restore congressional intent regarding who
is entitled to relief under the Whistleblower Protection Act
and what constitutes a protected disclosure. It codifies
certain anti-gag statutes that have been added yearly to the
Treasury Postal Appropriations bill for the past 13 years. The
bill also extends independent litigating authority to the
Office of Special Counsel and ends the sole jurisdiction of the
U.S. Court of Appeals for the Federal Circuit over
whistleblower cases. It was hoped that the Federal Circuit
would develop an expertise in whistleblower law, instead they
developed a pattern of hostility. As the Chairman of the
International Security, Proliferation and Federal Services
Subcommittee, I will work to guarantee that any disclosure
within the boundaries of the statutory language are protected.
We cannot afford to let this lobby weaken further.
The exceptions resulting from the Federal Circuit's rulings
have removed protection where it counts the most, for the
Federal employees who are acting as public servants or carrying
out their responsibilities to the public as employees of their
agencies. Protection of Federal employees from whistleblower
retaliation has been a bipartisan effort and enjoyed bicameral,
unanimous support in passage of the 1989 law and the Act's 1994
amendments. I am pleased to note that Representatives Morella
and Gilman introduced H.R. 2588, a companion bill to S. 995 on
Monday. Codifying congressional intent to protect Federal
employees who disclose wrongdoing should be a critical part of
our efforts to have an efficient and effective government.
I would like to point out that Senator Grassley and Senator
Levin, two of the Senate's most passionate leaders in
protecting Federal employees from retaliation, joined me in
introducing S. 995 last month. I also wish to thank my good
friend, Senator Cochran, for his keen interest in the welfare
of our public servants. At this time, I would like to thank
Senator Grassley for coming and I look forward to your
statement to the Subcommittee.
TESTIMONY OF HON. CHARLES E. GRASSLEY,\1\ A U.S. SENATOR FROM
THE STATE OF IOWA
Senator Grassley. Well, I have heard your statement and it
has outlined very much some problems we have to deal with, and
obviously, the legislation that you have introduced advances
the ball a long ways. And to some extent, I sometimes wonder
the extent to which we can do enough to encourage the
protection because of the fact that it is such a good source of
information. So you are demonstrating your outstanding
leadership by advancing this legislation to make important
changes in the Whistleblower Protection Act.
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\1\ The prepared statement of Senator Grassley appears in the
Appendix on page 37.
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I think you have made some reference to my championing the
rights of Federal whistleblowers. I think I have been doing
this since 1983. This is because of my strong belief that
disclosures of wrongdoing by whistleblowers are an integral
part of our system of checks and balances of government. It
really helps make our democracy work and work in a responsible
way. In other words, our government must be responsible and
must be responsive, and I think whistleblowers, knowing where
there are problems, help us along that process. It may not be,
obviously, the only source of information or the only checks
and balances, but it is an important part of them.
When Congress, for instance, performs its oversight
function, and if we do it effectively, it is usually because of
information provided to us by insiders and whistleblowers.
Recently, the U.S. Senate has performed extensive oversight
work of the IRS and now the FBI. We have begun to tackle rather
difficult issues of how to change the divergent cultures of
these two agencies. This was not possible without the insight
of insiders and whistleblowers from the agencies. Those are the
people, who come forward and perform such a public service, I
think deserve to be well protected and even rewarded.
I have had the opportunity--I think it was before he became
President--I have not followed up with it since President Bush
has been sworn in, but during the opportunities that I had on
numerous occasions to be with him in the State of Iowa during
the caucus, I spoke about whistleblowers quite often and I
said--you always make the joke if I were President, what I
would do. I am never going to be President, but I said that I
would have a Rose Garden ceremony once a month to honor
whistleblowers, because I think that instead of being seen as a
skunk at a Sunday afternoon picnic, as too often they are, they
ought to be seen as patriotic Americans doing what they think
is right to make our government work effectively.
Now that is not saying that everybody who comes to blow a
whistle is always right and needs to be protected, but we ought
to give the opportunity to look at and consider very sincerely
what people come forth. Some has basis and some does not. But
where it does have basis, it ought to be respected in our
system of government, not as it sometimes is, where there is
such peer pressure to go along and to get along, that we
sometimes honor those that cover up more than we honor those
that bring things out into the sunshine. Obviously, the old
saying of the sunshine, there is not going to be any moss or
mold there. Or as another person said on the Supreme Court, I
think, where the sun shines in, that is going to keep our
system of government working better.
Now in addition to my support in the past, we have had
celebrated whistleblower cases like Ernie Fitzgerald, Chuck
Spinney, and Fred Whitehurst who are also joined with many of
my colleagues to sponsor legislation to protect whistleblowers.
Included in these laws are the False Claims Act Amendments of
1986; the Whistleblower Protection Act of 1989; the 1994
Amendments to the Whistleblower Protection Act; Whistleblower
protection laws for airline safety, and the anti-gag rider that
we have passed yearly on the appropriation bills. In many of
these, if not all of these efforts, I was joined by my good
friend, Senator Levin, who over the years has shown great
leadership in advancing the cause of whistleblowers.
Senator Levin is a prime co-sponsor of the bill that you
are considering and I likewise commend him, as I did you,
Senator Akaka, for your dedication to this cause. Congress has
demonstrated again and again its commitment to protecting
whistleblowers, yet all too often the intent of Congress is
undermined by a hostile bureaucracy. Presidential demonstration
of support for whistleblowers, as I indicated to you, may be
somewhat tongue-in-cheek through a Rose Garden ceremony. At the
top level of government, if there is support for this process,
it means that we are going to have more responsive government,
because when people know that wrongdoing is going to be made
public, there is obviously going to be less wrongdoing.
It seems that the amendments that are before us and that
are already on the books, some passed and some hopefully will
be passed, met with efforts to undermine the will of Congress,
and at each time whistleblowers are put more and more behind
the eight ball. In my view, this bill is a minimum, yet
important step toward giving whistleblowers a fair shot against
retaliation. Bureaucracy has become a growth industry of
creative ways to get whistleblowers. So Congress is obliged to
respond with equally creative protection against reprisals.
That is how we are able to preserve our prerogative to obtain
meaningful information from the Executive Branch.
There are several very good sections of S. 995, but I would
like to address just a couple of the most important ones. The
current requirement of undeniable proof as a standard for
whistleblowers to meet is not at all helpful, to put it mildly.
This bill would overturn that. It would also end the Federal
Circuit's monopoly on appeals for whistleblower cases by
allowing reviews by other circuits. And finally, this bill
would codify the anti-gag rider we have included in our yearly
appropriation bills every year since 1988.
Inasmuch as whistleblower protections are constantly fluid
propositions, I would like to raise some additional concerns
that go beyond this bill that I believe you should consider.
First, I am concerned about the issue of security clearances. I
am aware of several instances where a whistleblower's security
clearance has been pulled as a means of retaliation. The
pulling of a security clearance effectively fires employees. A
whistleblower does not have rights to a third-party proceeding
in these instances. I think this matter needs to be reviewed
and it should be possible to find a balance between the
legitimate security concerns of the government and ensuring
that pulling a security clearance is not used as a back door to
get whistleblowers.
Second is the issue of accountability. The Office of
Special Counsel has the authority to investigate and prosecute
managers who retaliate against whistleblowers, but in any
disciplinary litigation, the Office of Special Counsel has two
strikes against it. First, OSC is faced with higher standards
of proof that predate the more reasonable standards contained
in the Whistleblower Protection Act. And second, if the Office
of Special Counsel loses, it must pay the manager's attorney's
fees from its own operating budget. Both of these create a
disincentive to the Office of Special Counsel carrying out its
disciplinary authority in holding management accountable.
Finally is the issue of remedies. In 1994 amendments to the
Whistleblower Protection Act--that Act created a remedy of
consequential damages for reprisals. Prior to that, damages
were compensatory. Sequential damages were intended to be
interpreted as greater than compensatory damages. Instead they
have been interpreted as being less than compensatory damages.
This should be reviewed to help ensure that whistleblowers are
adequately compensated.
Mr. Chairman, again, I commend you and Senator Levin for
your continued leadership advancing any legislation, but most
importantly this one, and maybe even hopefully before this is
through, beyond this legislation to protect whistleblowers. It
is my hope, and I know my colleagues share my view, that we can
write legislation to encourage whistleblowers to disclose
information about wrongdoing and to protect them against
reprisals for doing so. So I look forward to working with you,
Senator Akaka.
Thank you very much.
Senator Akaka. Thank you very much, Senator Grassley. I
look forward to working with you on this, too, and with Senator
Levin. I want to invite you, if your schedule permits, to join
me at the dais.
Senator Grassley. I knew a long time ago that you had
invited me, but I just will not be able to do it. I was hoping
I could. Thank you very much.
Senator Akaka. Thank you. Those of you who are present at
this hearing now realize why I called Senator Grassley a
passionate leader.
Senator Grassley. Thank you.
Senator Akaka. At this time I welcome back to the
Subcommittee our next witnesses. Special Counsel Kaplan and
MSPB Chair Slavet, please come to the witness table and be
seated. We appreciate your being here with us today. While
neither one of you needs an introduction, let me thank you both
for your efforts on behalf of Federal employees.
Ms. Kaplan, you may proceed with your statement and I want
to ask all witnesses that you limit your oral presentation to 5
minutes and we will place your full statement in the record.
Thank you very much.
TESTIMONY OF HON. ELAINE KAPLAN,\1\ SPECIAL COUNSEL, OFFICE OF
SPECIAL COUNSEL
Ms. Kaplan. Good afternoon. I would like to thank the
Subcommittee for giving me the opportunity to participate in
today's hearing concerning S. 995, a bill that would strengthen
the effectiveness and enforcement of the Whistleblower
Protection Act. I would also like to publicly thank you,
Senator Akaka, as well as Senators Levin and Grassley, for your
leadership on this issue and your commitment to ensuring that
the Whistleblower Protection Act fulfills its original promise,
to protect Federal employee whistleblowers against retaliation.
Finally, let me also express my public appreciation for the
efforts of the Government Accountability Project to ensure that
the protection of Federal employee whistleblowers remains a
front-burner issue for Congress and the public at-large.
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\1\ The prepared statement of Ms. Kaplan appears in the Appendix on
page 39.
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As you know, the primary mission of the Office of Special
Counsel, the agency I head, is to protect Federal employee
whistleblowers against retaliation. We do our job by
investigating employees' complaints by pursuing remedies on
behalf of whistleblowers and by seeking the discipline of
agency officials who engage in retaliation. In addition, we
also educate other Federal agencies and the public about
whistleblower protection and the important contribution
whistleblowers make to the public interest.
The bill before the Subcommittee today, S. 995, has been
conceived in the wake of several decisions issued by the Court
of Appeals for the Federal Circuit, which have narrowed the
scope of the protection provided to whistleblowers under the
Whistleblower Protection Act. As you know, this is not the
first time that Congress has been confronted with concerns
about the Federal Circuit's approach to this particular law.
Thus, Congress harshly criticized that court's decisionmaking
in 1989 when the Whistleblower Protection Act was enacted and
did so 5 years later in 1994 during the consideration of the
Office of Special Counsel Reauthorization Act.
At that time, the House Committee considering the law
observed that the case law developed by the Federal Circuit,
``represented a steady attack on achieving a legislative
mandate for effective whistleblower protection,'' and that,
``realistically, it is impossible to overturn destructive
precedents as fast as they are issued.''
Notwithstanding the strong criticism, the Federal Circuit
continues to routinely read the Whistleblower Protection Act's
protections narrowly. For example, in LaChance v. White, the
court raised the bar for whistleblowers seeking to establish
that their disclosures qualify them for protection by endorsing
what it called an irrefragable presumption that government
officials discharged their duties properly and lawfully.
Moreover, in that case, the court suggested it was appropriate
to examine a whistleblower's personal motivations in deciding
whether the whistleblower should receive the Act's protection.
We agree with the sponsors of S. 995 that LaChance and
other Federal Circuit decisions, such as the Whorton and Willis
opinions, establish unduly narrow and restrictive tests for
determining whether employees qualify for the protection of the
law. We also agree it is time for Congress to consider ending
the Federal Circuit's monopoly on review of these cases by
providing for all circuits review.
Today, I would like to briefly address and express our
strong support for the provisions of the Act that would grant
the Office of Special Counsel independent litigating authority
and the right to request judicial review of MSPB decisions in
cases that will have a substantial impact on enforcement of the
law. I firmly believe that both of these changes are necessary
not only to ensure our effectiveness as an agency, but also to
address the continuing concerns that motivate S. 995, that is,
the whittling away of the WPA's protections by narrow judicial
interpretations of the law.
The basis for my belief is set forth in some detail in my
accompanying statement, which I would ask to be included in the
record. Let me just summarize quickly. While the current
statutory scheme gives OSC a central role as public prosecutor
in cases in front of the Merit Systems Protection Board, we
have no authority right now to seek judicial review of an
erroneous MSPB decision. Moreover, our ability to influence
even the MSPB's interpretation of the law is limited because
the majority of the MSPB's decisions arise in cases of
individual rights of action cases to which OSC is not a party.
As a practical matter, until the Board issues its final
decisions in particular cases, there is really no way for us to
know that they will resolve important legal questions. Under
existing law, OSC has no procedural device that would permit us
to ask the Board to reconsider its decision, much less a right
to ask a court to review them.
Ironically, the Office of Personnel Management has the
authority to seek judicial review of MSPB decisions in any case
where the Board's decision will have a substantial impact on
the interpretation of civil service laws, rules and
regulations, including the Whistleblower Protection Act.
Further, OPM has the authority to ask the MSPB to reconsider a
decision after it has been issued, again, even if OPM was not
originally a party to the case. OPM, of course, does not have
the protection of whistleblowers as its primary mission. That
is our job. In fact, it was OPM that brought the LaChance v.
White case to the Federal Circuit and OPM, represented by the
Justice Department, that urged the court to adopt a narrow
interpretation of the Act.
This bill would provide the Special Counsel with similar
authority to ask the Board for reconsideration and seek
judicial review in important cases. It would ensure that the
government agency charged with protecting whistleblowers will
have an equal opportunity to participate in the shaping of the
law. OSC would serve as a counterweight to the Justice
Department, whose client is most often the Federal agency
defending itself against retaliation charges. Moreover, by
granting OSC independent litigating authority, the bill also
ensures that OSC will be able to craft its own positions and
advocate on its own behalf when Whistleblower Protection Act
cases reach the Court of Appeals.
Under existing law, the Special Counsel must be represented
by the Justice Department in all court proceedings. This has
effectively led to OSC being shut out of the vast majority of
cases which involved interpretation of the Act. The Justice
Department's position is that because we lack independent
litigating authority, we cannot participate, even as an amicus,
where another party has invoked the jurisdiction of the Court
of Appeals in a whistleblower retaliation case.
The Justice Department has agreed that we can participate
in a limited category of cases where we are defending an MSPB
order of discipline against a retaliating agency manager. But
even in those cases, we must be represented by Justice
Department attorneys. While the attorneys at the Justice
Department are highly professional and competent, it is
completely unacceptable for the Justice Department to make
final decisions about how OSC cases should be briefed and
argued. Not only do we routinely investigate and prosecute
cases of retaliation against the Justice Department and its
component agencies, the attorneys at the Justice Department
routinely represent agencies in the Federal Circuit against
charges of retaliation. Its institutional interests are
directly in conflict with those of the Office of Special
Counsel.
If we are going to be a truly independent watchdog, then
the Special Counsel, and not the Justice Department's Civil
Division, has to have the authority to decide what arguments to
make and what positions to take in the Court of Appeals.
Finally, let me summarize in short. Under current law, the
Special Counsel, whom Congress intended would be a vigorous,
independent advocate for the protection of whistleblowers, can
scarcely participate at all in the arena in which the law is
largely shaped, the Court of Appeals for the Federal Circuit.
Further, when we do appear in court, we must be represented by
an agency that we routinely investigate through attorneys whose
exposure to the Whistleblower Protection Act otherwise occurs
only when they argue cases on behalf of agencies accused of
engaging in retaliation.
Need I say more? Congress has consistently expressed its
intention that we take an aggressive role in protecting
whistleblowers against retaliation. In the 3 years since I
became Special Counsel, the staff and I attempted to do
whatever was possible within our limited resources to achieve
that goal. I believe that we have made a lot of progress in the
last 3 years towards increasing our effectiveness, and that we
have reassured some of our staunchest former critics that OSC
is deeply committed to its mission. We would ask, therefore,
that we be provided the tools that we need to do the job right
by affording us both the authority to request judicial review
and independent litigating authority.
Thank you.
Senator Akaka. Thank you very much, Ms. Kaplan.
Ms. Slavet, you may give your statement at this time. And
again, I want to remind you about the 5-minute limit. Go ahead.
TESTIMONY OF HON. BETH S. SLAVET,\1\ CHAIRMAN, U.S. MERIT
SYSTEMS PROTECTION BOARD
Ms. Slavet. I will do my best, Senator. Good afternoon,
Chairman Akaka. Ranking Member Cochran is not here, but other
distinguished Members of the Subcommittee, thank you for the
opportunity to appear before you on behalf of the MSPB to
discuss S. 995, the Whistleblower Protection Act Amendments of
2001. I would also like to acknowledge the presence of my
distinguished colleagues, Vice Chair Barbara Sapin, and Member
Suzanne Marshall, and extend my appreciation to them for their
contribution to the work of the Board.
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\1\ The prepared statement of Ms. Slavet appears in the Appendix on
page 44.
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Chairman Akaka, I want to recognize the important work that
you, the Subcommittee, and the full Governmental Affairs
Committee, as well as Senator Grassley and Senator Levin
specifically, have done to benefit Federal workers. Your
efforts on behalf of Federal whistleblowers is a further
demonstration of your commitment to ensure the efficiency of
government operations and oversight of the public interest to
the protection of rights accorded government employees.
Today, I would like to briefly share some of the
observations we at the Board have made about the proposed
amendments to the Whistleblower Protection Act, their impact on
current law, Federal employees and agencies, and their impact
on the Board itself. Due to time constraints, I will not
address the issues I raise today in any great detail, and have
submitted in the written statement that you have kindly
accepted into the record. In addition, because the Board is a
quasi-judicial agency and adjudicates cases under the WPA, we
take no position on the substantive or procedural provisions of
the proposed amendments, in order to avoid any appearance of
prejudgment.
The three substantive areas I would like to address
concerning the amendments are basically the credible evidence
standard in section 1(a), the need to reconcile the
implications of these amendments on retaliation claims under
sections 2302(b)(8) and (b)(9) of the WPA, and the apparent
absence of an effective remedy for Federal employees or
applicants for Federal employment due to a violation of the
anti-gag provisions of the legislation.
Currently, secton 2302(b)(8) of the WPA requires that a
whistleblower have a reasonable belief that the matter
disclosed evidences one of the conditions described in that
section. It appears that section 1(a) of the bill, the proposed
amendments, would eliminate the reasonable belief standard for
all whistleblowers, except those who make disclosures in the
course of their duties. This latter category of employees would
need to have a reasonable belief supported by ``credible
evidence.'' If enacted, this provision of the bill could have
the unintended consequence of actually making it more difficult
for some employees to show that their disclosures were
protected, because they would need to meet a higher standard
and show that their reasonable belief is supported by credible
evidence.
The language in section 1(a) of the bill that eliminates
restrictions and disclosures based on their form or context
also raises a serious question of whether Congress intends to
include as part of whistleblower disclosures covered section
2302(b)(8), which is limited to whistleblowing itself, actions
that are covered by another prohibited personnel practice,
codified at 5 U.S.C. Sec. 2302(b)(9). The section (b)(9)
provision protects employees who file a complaint, appeal or
grievance from reprisal. If this is the case, the proposal
needs to be reconciled with the distinction between reprisal
for whistleblowing, prohibited by section 2302(b)(8), and
reprisal for filing a complaint, appeal or grievance, which is
prohibited by section 2302(b)(9).
The Board has generally held that an employee's
discrimination complaint does not by itself constitute a
prohibited whistleblowing disclosure under section 2302(b)(8)
even though the complaint alleges retaliatory discrimination in
violation of law. In addition, permitting Federal employees to
file whistleblowing complaints alleging reprisal for filing a
complaint, appeal or grievance, as these new sections would
permit, would impact the remedies currently available under
other statutory complaint, appeal and grievance schemes.
Extending whistleblowing protection to employee discrimination
complaints could result in serious deficiencies in the
enforcement programs administered by the OSC and the EEOC. The
EEOC has been recognized as the lead agency for enforcing the
prohibitions against discrimination in Federal employment. For
this and other reasons, the Subcommittee may wish to clarify
the implications of the provisions and the interplay between
sections (b)(8) and (b)(9) and sections 1(a) and 1(b) of the
proposed legislation.
Another important area I would like to bring to the
attention of the Subcommittee concerns the anti-gag provisions.
Section 1(c) of the bill mandates that those Federal agencies
that implement or enforce nondisclosure policies, forms or
agreements include notice in such policies, forms or agreements
of the applicable protection under the WPA. It would become a
new personnel act--prohibited personnel practice. Cases
involving this new prohibited personnel practice would reach
the Board in one of two ways; either through the Special
Counsel, seeking corrective or disciplinary action--corrective
action for the employee harmed or disciplinary action against
the employee who took the action.
The specific corrective action will vary with the
circumstances of each case and would generally involve
overturning or, at least, modifying the personnel action that
was the basis for the prohibited personnel practice. The
problem this creates is that while ordering disciplinary action
might prove an effective deterrent to agency managers
contemplating the implementation or enforcement of defective
nondisclosure policies, it appears that the most likely
corrective action the Board could order is that the agency
ceases implementation or enforcement of the particularly
defective document.
The question then becomes: What are the results that the
Subcommittee wishes to achieve, or whether it wishes to address
other adverse impacts of employees of these defective forms?
That is, if an employee comes before us and is heard and is,
for example, fired because of their refusal to sign a defective
disclosure form, one would presumably think that one remedy you
might want us to have would be to put that employee back in
place, to not have the failure to sign that defective
disclosure agreement be the reason for their termination.
However, because of certain Supreme Court decisions, as well as
Federal Circuit decisions, we would not be able to reach that.
So I would ask the Subcommittee to clarify as to what exactly
you want our authority to be.
There are two other issues that I would like to address,
and I see that my time is really up, but with your permission--
the first is, and I am probably the only one here speaking on
this, but it concerns the elimination of the Federal Circuit's
exclusive jurisdiction over MSPB matters. This can be expected.
A uniform body of MSPB case law has actually evolved from
decisions of the Federal Court, as well as decisions of the
MSPB itself. We are concerned that the disturbance of this
uniformity may have a significant impact on the treatment of
Federal workers throughout the country. I would invite you and
your colleagues to read our prepared statement for our thoughts
on this issue.
Finally, in my remaining time, I would bring the
Subcommittee's attention to the impact the legislation would
actually have on the Board's operations. The expansive
definitions of protected disclosures, which substantially
broadens our jurisdiction, would result in the increase of
cases that we hear on the merits, as opposed to jurisdiction.
These cases are also very complex and they require a lot of
hours devoted to adjudication, much more than the normal
adverse actions that we adjudicate. They take significantly
more time to process than other parts of our Board's
jurisdiction. Section 1(d) of the bill seeks to amend other
sections of Title V to provide OSC with independent litigating
authority in certain circumstances. But again, even if OSC
seeks reconsideration in a minimum number of cases, we can
expect a significant impact on Board resources, because the
records are usually voluminous in this case, they frequently
involve novel legal issues, and they require extensive
research.
Finally, section 1(e) of the bill seeks to permit review of
any decision of the MSPB in any appellate court of competent
jurisdiction, thereby eliminating the exclusive jurisdiction of
the Court of Appeals over MSPB cases. Again, this would have
significant results in our travel costs and our litigation
expenses for the Board. In the past few years the Congress has
showed your confidence in our ability to adjudicate cases by
giving us increasing amounts of jurisdiction over different
statutes; the Uniform Services Employees and Re-employment Act,
VEOA, and jurisdiction over employees involving the Federal
Aviation Administration.
Again, these new laws involve novel and complex issues. We
appreciate the confidence that Congress has shown in us, but
with these added responsibilities, we have also had to undergo
a one-third cut in personnel over the past 8 years, yet we have
still maintained what we think is a very high level of quality
service to our constituents. In order for the Board, however,
to continue to meet GPRA goals, the Government Performance and
Results Act plan, and fulfill the increased responsibilities
imposed on the agency by this new legislation, we are going to
require additional resources.
I appreciate the opportunity to comment here on these
proposals. I hope our analysis is helpful to the Subcommittee's
deliberations, and we certainly hope that the Subcommittee will
permit the Board to continue the important work that we do by
giving favorable consideration to our request for authorization
that is now pending before the full Committee.
Thank you. I would be pleased to respond to any questions
at this time.
Senator Akaka. Thank you very much for your testimony. We
have been joined by my friend and colleague, Senator Carper
from Delaware, and I want to give him the opportunity to make
any statement he would like to make at this point.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Thank you very much for the opportunity. I
am not going to interrupt the testimony and, unless I get
called out of here, I look forward to asking a question or two,
but we thank our witnesses for being here.
Thank you, sir.
Senator Akaka. Thank you. Again, I want you to know that
all your statements and your full testimony will be included in
the record.
Before I begin, I would like to note and I think you should
know this, that due to time constraints, we were unable to do a
reasonable review of your written testimony, Ms. Slavet, and I
appreciate the in-depth and the complex legal analysis you
provided, and also your suggestions of clarifying and amending
parts of that. I appreciate that.
Ms. Slavet. Thank you, sir. I am sorry. I know we got the
statement to you later than we were required to and I
appreciate your forbearance with us.
Senator Akaka. Before we proceed with questions, I am
delighted to have my friend and colleague, Senator Levin, here.
As I used the word passionate for Senator Grassley, I want to
use the same word with Senator Levin, that he is a passionate
leader on whistleblowers. I invite him to give any statement he
may have.
OPENING STATEMENT OF SENATOR LEVIN
Senator Levin. Thank you, Senator Akaka. That is quite a
compliment coming from you and I appreciate it a great deal. I
am sorry that I am late. First, let me thank Chairman Akaka for
calling this hearing, for being so dedicated in his efforts to
fix the Federal employee protection system that so many have
worked so long to strengthen, and that of course is the
Whistleblower Protection Act.
Recent decisions by the U.S. Court of Appeals for the
Federal Circuit have violated the intent of Congress with the
result that clarifying language is very badly needed. 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 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 that employee
from any reprisal. We want Federal employees to identify
problems in our programs so that 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.
We need to encourage, not discourage, disclosures of fraud,
waste and abuse. Today, however, the effect of the Federal
Circuit decisions is to discourage the Federal employee
whistleblower and ignore congressional intent to achieve that
result. Tom Devine of the Government Accountability Project
notes in his testimony today that since 1994 whistleblowers
seeking relief have lost all 69 decisions on the merits before
the Federal Circuit. Nothing that I can think of is much more
discouraging than a zero batting average.
The Federal Circuit has misinterpreted the plain language
of the law on what constitutes protected disclosure under the
Whistleblower Protection Act. Most notably, in the case
LaChance v. White, decided in May of 1999, the Federal Circuit
imposed an unfounded and virtually unattainable standard on
Federal employee whistleblowers improving their cases. In that
case, the Federal Circuit said that review of the conduct of an
agency alleged to have retaliated against the whistleblower
would start out with, ``a presumption that public officers
perform their duties correctly, fairly, in good faith and in
accordance with the law in governing regulations,'' but then
proceeded to announce that, ``this presumption stands unless
there is irrefragable proof to the contrary.''
The Federal Circuit imposed a clearly erroneous and
excessive standard on the employee to provide irrefragable
proof that there was waste, fraud or abuse. Irrefragable means
undeniable, incontestable, incontrovertible, incapable of being
overthrown. That is the dictionary definition. How can a
Federal employee meet a standard of irrefragable in proving
waste, fraud and abuse? I think that is a much tougher standard
than the one that exists in a criminal case. There is nothing
in the law--there is nothing in the legislative history that
even suggests such a standard with respect to the Whistleblower
Protection Act. The intent of the law is not for the employee
to act as investigator and compile incontrovertible proof that
there is fraud, waste or abuse. Again, this is a standard
tougher than ``beyond a reasonable doubt.'' Under the clear
language of the statute, the employee need only have a
reasonable belief--those are the words we wrote--reasonable
belief that there is waste, fraud or abuse occurring before
making this protected disclosure.
Now that is but one area of the law that Senator Akaka's
bill, which has been supported by a number of us, attempts to
address. There are numerous other areas that we will be
discussing today, and I am looking forward to discussing these
with our witnesses who are so familiar with the current law and
who work day in and day out to enforce it and to protect
Federal employees.
Again, I want to learn how recent court cases have affected
whistleblower rights and the ability of those involved in
carrying out the law to protect those rights and whether or not
those decisions implement the clear intent of Congress. I want
to again thank our Chairman for calling these hearings. It is a
very important subject. Whistleblower protection is something
that we must pay attention to if we are going to protect the
taxpayer as well as the whistleblower.
Senator Akaka. Thank you very much, Senator Levin, for your
statement.
Now we will begin questions to our witnesses. I have
questions, first for Ms. Kaplan. The Office of Special Counsel,
as chief protector of Federal employees in the area of
whistleblower activities, receives, without question, many
complaints. As I understand it, all complaints are screened by
your office to determine if future action is warranted. This
screening process also includes a review of the evidence and
law to determine whether Special Counsel can prove a case. My
question has two parts. Can you describe how the decisions made
by the Federal Circuit have affected this screening? And
second, in particular, how has what was mentioned by Senator
Levin--how has the irrefragable proof standard for
whistleblowers changed your screening process?
Ms. Kaplan. Those are good questions, Senator Akaka. What
we have done is that we have attempted to read those decisions
as narrowly as possible consistent with our obligation,
obviously, to follow the Federal Circuit's mandates. I am very
hesitant to close cases, in general, because a disclosure is
not protected on one of these bases. So we try to bend over
backward, I would say, to look at the cases, such as LaChance
v. White and some of other decisions we have discussed today,
Willis, and read them as narrowly as possible.
But that being said, there is no question that we are, on
occasion, presented with cases where there is no way around it,
whether we agree with the Federal Circuit's reasoning, whether
we think it is consistent with the legislative history of the
Act or not, we may have to close a case. This has occurred, for
example, with the Willis Doctrine, which provides that when an
employee makes a disclosure in the course of performing their
duties, the disclosure may not be protected. The Board recently
read this decision in a way that will try to make it consistent
with the legislative history of the Act and we have applied,
now, the Board's narrower interpretation. Nonetheless, every
time we get one of these kind of decisions, we have to re-
examine again how we are going to treat the cases that come
before our office.
Senator Akaka. Chairwoman Slavet has suggested that
providing for multi-circuit review of Board decisions could
result in a lack of uniform treatment of Federal employees.
Would you comment on that?
Ms. Kaplan. I do not necessarily think that that is true. I
think, actually, under the Administrative Procedure Act, the
standard is that agency decisions can be reviewed in any
circuit in the country. Really, the system of review that is
set up under this statute is the exception rather than the rule
for administrative agency decisions. Indeed, the current law
provides for multi-circuit reviews of decisions of our sister
agency, the Federal Labor Relations Authority. EEO cases
involving Federal employee issues are heard in district courts
and courts of appeals all over the country, and I am really not
sure why whistleblower protection cases should be treated any
differently or why it would create a big problem of lack of
uniformity.
Whistleblower cases often involve legal issues that are
very similar to those that are raised in employment
discrimination cases. They are very similar to issues raised in
unfair labor practices cases that are before the Federal Labor
Relations Authority. These cases are appealed to every circuit
court in the land. So I would respectfully disagree with
Chairman Slavet on that point. I do not think that--I do not
see it as a problem, and I see good reasons for it.
Senator Akaka. In 1988, President Reagan vetoed the
Whistleblower Protection Act amid concerns that such protection
would be used by inefficient employees to delay adverse actions
of their employers. Is there any evidence of this type of abuse
occurring? Do you feel that by clarifying the intent of
Congress, that any disclosure of government wrongdoing deserves
protection, and by removing the Federal Circuit's bar of
protection for secondary sources, that there will be an
escalation of fraudulent whistleblower cases? And finally,
would S. 995 affect OSC's ability to curb such fraudulent
actions?
Ms. Kaplan. Frankly, since I became Special Counsel 3 years
ago--actually, this question, a similar question was asked at
my confirmation hearing, because there is an old canard that
goes around that people are using the system in some way to
prevent legitimate personnel actions being taken against them.
People can try whatever they want. There are people who would
try to abuse the system, but they invariably will not succeed,
because we are going to look at the cases to see if there is at
least enough evidence to move a case forward for investigation.
People cannot stop a personnel action simply by filing a
complaint with the Office of Special Counsel. So I think this
is a bit, as I say, of an old canard and I do not see how
enhancing the laws that protect people who really deserve
protection is going to result in people taking advantage of the
system.
Senator Akaka. The Office of Special Counsel is sometimes
characterized as a watchdog of the Civil Service, yet, in the
majority of whistleblower cases, your office may not be a
party. These cases may result in decisions that are detrimental
to the interest that your office represents. Under current law,
how can your office make sure that important legal issues are
properly raised and litigated when your office is not a party?
And second, how would S. 995 affect your ability in this area?
Ms. Kaplan. Well, under current law, it is very difficult
for us to participate in cases where we are not a party. Now,
there are occasions where the Merit System Protection Board,
for example, has solicited in advance the views of interested
parties about legal issues. This came up a few years ago. There
was a question about whether revocation of a security clearance
should be covered under the Whistleblower Protection Act. The
Board solicited briefs, and we were able in that case to file a
brief and argue that security clearance revocation should be
covered, unsuccessfully, unfortunately.
In general, unless the Board flags the case ahead of time,
it is very hard for us to know which cases are going to involve
important issues. That is why we are seeking the kind of
authority that OPM has after the Board issues a decision for us
to be able to come in and provide the Board with our
perspective as the independent watchdog on the legal issues
raised in the case. Currently, it is very difficult and it has
been quite frustrating to me, because I have had the staff sort
of trying to predict ahead of time when the Board's decisions
will be resolving important issues, when they will simply be
deciding the cases on alternative grounds that are not so
important, very difficult and I think that is why we need S.
995.
Senator Akaka. I now have questions for Ms. Slavet. But
before I ask my questions, I would like to thank you for
drawing attention to the apparent inconsistency with reasonable
belief standards among various classes of whistleblowers. The
intent of S. 995 was not to eliminate the reasonable belief
standard for certain whistleblowers, rather the bill was
designed to make this standard applicable for all
whistleblowers, regardless of the nature of the disclosure. The
inadvertent omission of a comma after the word duties in
section 1(a) of the bill does appear to change the reasonable
belief standard and that it is not our intention.
On behalf of the sponsors of the bill, I would like to
thank you for bringing the oversight to our attention and I
would like to assure you that this situation will be rectified.
We welcome any other technical corrections to the bill. Thank
you very much.
Ms. Slavet. Senator, with regard to the credible evidence
sections, specifically, the Court of Appeals, actually both in
LaChance v. White and in another decision, I believe called
Herman, also tended to talk about evidence. Usually, the court
should be looking to adopt and defer to the Board's decisions,
but sometimes they decide to review the evidence themselves. So
I do have some concerns about the use of the words credible
evidence in the bill itself with regard to it expressing
congressional intent, and whether that term itself may need to
be relooked at, because I understand that the sponsors are not
trying to make it more difficult for whistleblowers.
Senator Akaka. Thank you. Ms. Slavet, does the MSPB agree
that the irrefragable proof standard established by the Circuit
Court in LaChance v. White to overcome the presumption of
government regularity, is congruent with the spirit of
congressional intent to protect whistleblowers?
Ms. Slavet. Well, sir, I think it is ultimately Congress'
decision to decide whether it is congruent with your intent or
not. I will point out in a recent decision called Keenan v.
Department of Defense, the Board distinguished LaChance v.
White, and the only time I have ever seen the irrefragable
proof expression actually used has to do with contract cases
involving the government. So it is not a term that we used or
certainly have ever seen in the legislative language or the
legislative history of the Act.
Senator Akaka. Does the MSPB believe that the congressional
mandate of protecting any disclosure, as outlined in the
legislative history of 1994 amendments, is being heeded by the
circuit court?
Ms. Slavet. Has been heeded?
Senator Akaka. Heeded, yes.
Ms. Slavet. I would say there has been an attempt. There
have been a number of cases, again, and I am somewhat loathe to
criticize our previewing in court in public, and I am sure you
understand that. You mentioned and I think Tom Devine's
testimony talked about the 1994--no wins for whistleblowers
since 1994. The only case that I am aware of in which the Court
of Appeals has recognized and found on behalf of whistleblowers
was a 1993 case called Morano v. Department of Justice, in
which the Justice Department had actually itself done an
internal investigation and found that there was a serious
problem.
So the track record, certainly, has not been one, in terms
of statistics or in terms of language, that appears to be as
protective to whistleblowers as either OSC or the Merit System
Protection Board has. There have been a number of cases where
we have clearly, in unanimous decisions--we find or refer to
certain expressions in Court of Appeals decisions as dicta
because we did not see that they were necessary to the holding.
We are bound by the holding of the cases, but not the dicta of
the cases, and we have examined that carefully to make sure
that we make the distinction to be responsible to the language
that Congress has provided us with.
Senator Akaka. I know that the Board has conducted studies
on whistleblowing and whistleblower protections. What has been
the results of these studies, especially your most recent merit
principles survey?
Ms. Slavet. The most recent survey, which actually has not
even--we have not even published the results yet, because it is
going to be part of our draft report, indicates that 44 percent
of those who said that they had made a formal disclosure of
fraud, waste or abuse had felt that they had experienced
retaliation as a result. The survey did not ask for detailed
information on the nature of the disclosures, the form of the
perceived retaliation, and obviously, there may be a disconnect
between the legal term and what people perceived, but it was 44
percent.
I would also point out that an earlier study--it is sort of
interesting, because an earlier 1993 study indicated that while
fear of reprisal was a reason given by at least 33 percent of
employees who chose not to report illegality because of
concerns about retaliation, an actual higher percentage, 59
percent of the respondents chose not to report, an observed
activity that they thought needed to be corrected because they
thought nothing would be done. So, actually, more people do not
report, not because of the potential chilling effect, but
because they are discouraged and frustrated and they think: Why
bother? Nothing is going to be done.
I thought that was a very interesting statistic and
response, and certainly, something that I would not necessarily
have expected. But I think it does go to the good government
policy of not just protection for whistleblowers in terms of
retaliation, but actual encouragement of whistleblowers and
whether the government is responding to their concerns.
Senator Akaka. My last question is more of a statement than
a question. In your testimony you note that a possible negative
consequence of this bill could be an increase in your agency's
workload by substantially broadening your jurisdiction. You
note that 34 percent of cases are dismissed on jurisdictional
grounds. Your statement provides the example of one case that
was dismissed based on the Willis case. Ironically, Willis is
one of the very cases that we are trying to overturn with this
bill. I hope that an increase in workload, whether through more
cases being filed or through more cases being heard on the
merits, will not be a reason to deny justice and basic
employment rights to the men and women who come forward, often
at personal risk, to disclose agency wrongdoing.
Ms. Slavet. I totally agree with you, sir, and in that
particular case that we talked about, we actually initially
reversed the AJ's finding, but one of the things we need to
understand in these cases is, one, if we are denying on
jurisdiction and they go to the merits, we are going to get
more loser cases on the merits. I personally have no problem
with that. I think a lot of these are evidentiary and very
fact-based, and the evidence needs to be heard. So there will
be more losing decisions on the merits, as opposed to on
jurisdictional grounds, and that is no problem. But it will
take, because they are on the merits, much longer hearings and
much more process, more cross-examination of witnesses, direct
examination of witnesses. All that will be involved. Longer
decisions will be involved.
So, I totally agree with you, but it is better for those
cases, perhaps; that is Congress' determination to see whether
they should be dismissed on the merits because the agency has
had its burden and met its burden to show by clear and
convincing evidence that it would have taken the action anyway,
than on jurisdictional grounds.
Senator Akaka. I would like to call on my colleague, Mr.
Levin, for any questions he may have for this panel.
Senator Levin. Thank you, Mr. Chairman. Before I turn to
questions, let me commend your office, Ms. Kaplan, on the way
in which you have operated. The Government Accountability
Project does not usually pull its punches when it gives its
opinion about whistleblower protection matters, and in today's
testimony, Tom Devine, the legal director of the accountability
project, says that you have won the respect, in his words, ``of
even the most disillusioned critics.'' So that is a pretty big
compliment.
Ms. Kaplan. I take it as a compliment. Now let us hope it
last past this hearing.
Senator Levin. All right. I would share that hope of yours,
but at any rate, it is quite a compliment.
Ms. Kaplan. I appreciate that.
Senator Levin. Congratulations. As you heard in my opening
statement, I am particularly troubled by the Federal Circuit's
decision in LaChance, which set out an impossible standard of
proof: ``Irrefragable proof.'' It is not only an impossible
standard, it is darn near unpronounceable, by the way. For a
whistleblower to have to show uncontrovertible evidence, it
seems to me, is way beyond any plaintiff's worst nightmare. I
do not know of any situation, and perhaps there is one with
Federal contracts, that one of you said that the word came
from. Was that you?
Ms. Slavet. Involving Federal contracts, yes, that is where
I first learned the standard in doing some contract law. But it
is--the burden is on the contractor. It has to do with a very
narrow provision vis-a-vis the particular agency involved. It
is a real term of art, involving a very particular and narrow
area of the law. That is the only time I have ever seen it.
Senator Levin. Was that in the statute or was that in a
court decision?
Ms. Slavet. I believe it was in court of claims decisions.
For example, the Department of Defense is saying that the
contractor did not produce what they needed to produce and they
are saying that they--but I would have to check the exact
situation.
Senator Levin. Did this come out of the blue, as far as
both of you were concerned?
Ms. Slavet. Yes.
Ms. Kaplan. Well, I ran to my dictionary, because I had
been practicing law for a long time, and I had never even seen
the word before, in the context of an employment case. So, yes,
it was odd.
Senator Levin. Well, as somebody who has been involved in
whistleblower protection, I have got to tell you that this
standard came totally out of the blue, as far as I am
concerned. I do not know where a court could possibly have dug
up that kind of a standard, and I know you are reluctant to be
critical, but I am not.
Ms. Slavet. I think, sir, it had to do with when the
contractor was trying to claim a particular kind of damages
against the government.
Senator Levin. I am not going back to that. I am being
critical of the court for figuring out----
Ms. Slavet. Where they got this term.
Senator Levin. I cannot imagine what law clerk dug that up
somewhere.
Ms. Kaplan. Well, if you look at the decision I was just--
--
Senator Levin. I do not mean to demean law clerks, by the
way. It may have been a very politically correct statement. It
may have been the judges themselves that dug it up.
Ms. Slavet. I want to make it clear, I am not defending
that.
Senator Levin. Keep going. You are doing well.
Ms. Slavet. That decision.
Senator Levin. Good. What has been the effect of that, as a
practical matter? I have heard testimony that you have tried to
narrow its impact, but has it had a real effect on the real
world of real whistleblowers?
Ms. Kaplan. I imagine that my friend, Tom Devine, would
probably be able to address that more than I would, but as I
said initially--first, I did not know what the word meant, so I
decided we did not have to follow it anyway. No, we looked at
it and, in our opinion, and I think this has been the Board's
view of it, as well, we viewed that and have viewed it as dicta
in the decision. It is certainly dicta that is very hostile to,
I think, the underlying notion of protecting whistleblowers.
So we have tried, and I think still being true to our
obligation to follow court decisions, to view it as dicta, and
it does not affect the way that we treat cases, but I would say
if we were to bring a case before the Board or before the
Federal Circuit that was on the margins, that we might have a
hard time with that standard, because I am sure that would be
thrown in our faces.
Senator Levin. You, as the Special Counsel, were not able
to participate in the LaChance case; is that correct?
Ms. Kaplan. That is correct.
Senator Levin. And that is because----
Ms. Kaplan. According to the Justice Department, our
lawyer.
Senator Levin. That is because you do not, according to
them, have independent litigation authority?
Ms. Kaplan. That is correct.
Senator Levin. This bill would correct that?
Ms. Kaplan. Yes, it would.
Senator Levin. Do you know if the Justice Department has
taken a position on our bill in that regard?
Ms. Kaplan. I know that they submitted some testimony
today. I do not know. I do know that they very jealously guard
their authority to represent Federal agencies in court, but I
also know that it would not be surprising to me if they opposed
it. But it is not inconsistent with the kind of authority that
other agencies, like the Federal Labor Relations Authority, the
Merit Systems Protection Board, and other independent agencies
that deal with Federal employee issues possess.
Ms. Slavet. Just make sure the record is clear, we have
litigating authority with regard to our jurisdiction and
timeliness, and that is all, because when these cases come up--
and Special Counsel cases. That is, we defend, in particular,
parts of whistleblower cases, but generally most of the cases
in front of us come up between an appellant and an agency, and
if OPM is defending--if OPM or the agency defends, it is
between those parties and we are not a party to that
litigation.
Senator Levin. Now, where you find for the agency and the
employee wants to appeal, the employee is on his own; is that
correct? He has to get his own private counsel?
Ms. Slavet. Yes, sir.
Senator Levin. He does not have the Office of Special
Counsel there to support him, even though the Office of Special
Counsel supported the employee's position before the Board; is
that true?
Ms. Slavet. Well, usually what happens in those cases, in
individual right of action cases--that is, most of the cases
that we deal with involving this area of law, what is called
IRAs, individual rights of action, which Congress passed
before. These are the cases that have come through Special
Counsel. Special Counsel has determined that there is not merit
in the case. They then come to us, and they have the right to
appeal directly to us, and then we issue a decision.
Senator Levin. If the decision is against the employee, the
employee does not have the benefit of the Office of Special
Counsel on the appeal; is that correct?
Ms. Slavet. Yes, unless the Office of Special Counsel may
decide--and this happened that there are--I mean, every
decision that we do issue----
Senator Levin. Unless they decide what? If you could finish
that----
Ms. Slavet. There has been one particular case where the
Special Counsel--they cannot represent the employee, but they
have gone in and dealt with the Justice Department and OPM,
indicating what they thought the position of the government
should be.
Senator Levin. But they cannot represent the employee.
Ms. Slavet. Not as far as I know.
Senator Levin. If the agency loses the case before you and
he appeal, however, he is represented by the Justice
Department; is that correct, or by his own counsel?
Ms. Slavet. They would be represented by the Justice
Department, but the case would have to come to us a second
time, because the Office of Personnel Management would have to
decide that the decision that we issued had a substantial
impact on civil service law. So we act as a second gate. So not
every case where they lose can they go to the Court of Appeals,
but, yes, they can go to the Court of Appeals, and that is what
happened in LaChance v. White.
Senator Levin. Every case that they lose----
Ms. Slavet. Every case----
Senator Levin. Not that they win--I am talking about every
case that they lose.
Ms. Slavet. Every case that they lose, they could appeal,
but only by going first to the Office of Personnel Management,
having the Office of Personnel Management asking us for
reconsideration, and then passing the test that it would have a
substantial impact on civil service law.
Senator Levin. And if they do not pass that test, can they
still appeal?
Ms. Slavet. No, the court would say you are out.
Senator Levin. But they can appeal, but then the court
could say you are out, but they have a right to appeal?
Ms. Slavet. Yes, they have a right to appeal, but it is a
high test for them to meet.
Senator Levin. And they have counsel when they appeal?
Ms. Slavet. Yes, sir, the Justice Department.
Senator Levin. Have you looked at the comma question which
Chairman Akaka made reference to?
Ms. Slavet. Yes, sir.
Senator Levin. Does that solve the problem?
Ms. Slavet. I do not think it solves the whole problem,
because it still has the credible evidence standard, and I will
say the attorney who was looking at this for me had said to me
we should have a comma in there, and I said to him, ``I really
cannot go to the Hill and tell them they need to add a comma.''
Senator Levin. Well, I think we caught it, and now that we
have caught it, you would agree we ought to add a comma.
Ms. Slavet. I have no problem with your having caught it,
sir.
Senator Levin. The bigger problem is the words ``credible
evidence of,'' which presumably you believe should not be
necessary?
Ms. Slavet. My concern is----
Senator Levin. Let me rephrase my question. If the court
had read to words ``reasonably believes'' the way every other
court has always read the words ``reasonably believes,'' we
would not be here on this issue, on that particular issue. In
order to reinforce our point, we have had to write words such
as ``reasonably believes there is credible evidence of,'' to
tell the court we really mean what we are saying. As far as I
know, that is the only reason to put the words in there. I do
not know how else to do it, except perhaps to tell the court,
if the employer/applicant reasonable believes (and we really
mean that). I do not know any other way to do it, except with
these words.
Now, I think that is what is driving us towards those
words. Now, what you are saying is basically you should not
need those words. They do not add anything as far as you are
concerned. In fact, they may unintentionally complicate life
for the employee; is that a fair statement?
Ms. Slavet. Yes. May I add something?
Senator Levin. Now you can get a word in edgewise.
Ms. Slavet. There has been a lot of talk about LaChance v.
White and the words ``irrefragable proof.'' Assuming for the
moment that that is dicta, there are other parts of LaChance v.
White and some other Court of Appeals decisions that talk and
go into the evidence also. That is, in terms of deference, it
is not like the court is indicating that, with regard to
evidence, we, of course, defer to whatever the MSPB found.
Frequently, moreover in some of these cases, there are not
published Board decisions. It comes from an individual initial
decision from an AJ. So it seems to me whenever you start
talking in statutory language about evidence, you are telling
the reviewing authority that they can examine the evidence. And
as soon as you have a Court of Appeals examining evidence, as
opposed to clear issues of law, they are going to mess around
with it.
Senator Levin. Any worse than they already have?
Ms. Slavet. I cannot predict the future, Senator.
Senator Levin. Well, let me see if I can figure out another
way to go at this problem. Should we eliminate the presumption
that the government agency acted appropriately? Would that send
a clearer message to the court? There is no presumption
anymore. We could do that, I presume.
Ms. Kaplan. I believe that the language may need to be
tinkered with a little bit, because there are some aspects of
it that are vague and could be interpreted to do what we do not
want to do, which is to raise the bar for whistleblowers, and I
think it would be worth considering, as we go through the
legislative process, ways to accomplish what we all, I think,
agree is necessary. And the problem is, as you pointed out, the
language was already clear. It is the same thing with the any-
disclosure portion of this debate. Any disclosure should mean
any disclosure, but now we have to put in all these complicated
qualifiers because it has not been interpreted that way. So I
think we are going to have to be very careful about the
language that we choose, and there may be a way of just
throwing in the words irrefragable proof in there--no
irrefragable burden of proof applies--and then at least every
lawyer in town would find out what irrefragable means, every
employment lawyer.
Senator Levin. Let me pursue a question with you that the
Chairman raised, and that has to do with the Willis case and
the Langer case.
Ms. Slavet. The Willis case and the----
Senator Levin. Langer. In your statement, you indicated
that, in fiscal year 2000, 34 percent of the individual right-
of-action appeals filed at the MSPB were dismissed for lack of
jurisdiction because the whistleblower did not make a protected
disclosure. You referred to the Langer case, where the Board
dismissed the case because the employee failed to show that he
made a protected disclosure under the Whistleblower Protection
Act, and you state that the Board relied on Willis in reaching
the decision. In the Willis case, the court did not find there
to be a protected disclosure, because the disclosure was to the
employee's supervisor, and it was made in the normal course of
his duties. Now, were either of those a reason for the court's
decision in the Langer case, first of all?
Ms. Slavet. You are really catching me here, Senator.
Senator Levin. OK, well, let me keep going. I have a
problem with the court's holding in the Willis case, and I
would like to know if you can tell us how many other Board
cases were dismissed that primarily relied on those same
holdings in Willis? Are you able to tell us that?
Ms. Slavet. We would not have those statistics, and there
are two kinds of decisions the Board issues, one a precedential
decision, which is the full Board, and that there are non-
precedential decisions, which are either the initial decisions
or the administrative judge's, which right now an appellant can
take directly to the Federal Circuit Court of Appeals, or what
we call short-term decisions, where the appellant has appealed
to us and for some reason which may have nothing to do with the
whistleblowing complaint, which may have nothing to do with
what happened in the AJ's decision, we decide there is some
other reason that we would dismiss the case without discussion
of why. Then those cases can go up further to the Federal
Circuit, and the Federal Circuit has not had the expertise of
the full Board looking at those particular cases.
Senator Levin. If you can give us any additional statistics
for the record, would you do that?
Ms. Slavet. The only statistic I can give you----
Senator Levin. No, I am saying for the record.
Ms. Slavet. OK.
Senator Levin. Now, there is another comment in your
statement that I would like to press you on. It says, ``Under
the proposed legislation, appeals that the Board previously
dismissed, such as Langer, would likely be heard on the merits
and would have a substantial impact on the Board's resources.
Similarly, expansion of disclosures protected under the Act, to
include those that are made to an employee's supervisor in the
normal course of his or her duties, as well as those that are
made to the alleged wrongdoer, would result in a significant
increase in the Board's overall workload, in both of those
cases.''
Now, if the court was incorrect in interpreting the intent
of Congress, and decisions--your decisions--were based and are
being based on an erroneous holding, if that is true, should
not we correct the process? Should not we welcome the increase
in the workload?
Ms. Slavet. Well, let me make two points.
Senator Levin. If your workload is reduced because of
erroneous decisions by a court which deny whistleblowers
access, it seems to me you would be the first to say, ``Hey, we
want justice to be done. We want congressional intent to be
carried out, and we want whistleblowers to be protected and not
to have their cases dismissed based on court decisions which
Congress determines are not what the congressional intent is.''
Ms. Slavet. I am speaking here as the chairman of the
Board, which is different than my position as an adjudicator,
and I have to tread that line carefully, and particular
decisions, in terms of my particular opinion, is what you are
asking, there have been a number of cases where I have
dissented or concurred and let the court know very explicitly
that I disagree with its interpretation of the WPA amendments
of 1994. For example, with the words, giving a comparison,
``any disclosure.'' So I feel that I personally have been very
true to the congressional language and the congressional
intent.
Senator Levin. Even though that might increase the
workload.
Ms. Slavet. Yes, absolutely. I have no problems with the
increase in the workload. But that is for you to decide, not
for me to decide.
Senator Levin. Final question, if I can, Mr. Chairman--this
goes to you, Ms. Kaplan. The bill contains a provision that
will allow the whistleblower to appeal a Board decision either
to the U.S. Court of Appeals for the Federal Circuit or to the
U.S. Appeals Court for the circuit in which the petitioner
resides. Previously, the law, as you know, required all appeals
to go to the U.S. Court of Appeals for the Federal Circuit. Do
you agree with the bill's provision which would allow the
option?
Ms. Kaplan. Yes, I do.
Senator Levin. Now, our bill allows the Special Counsel to
seek review in the U.S. Court of Appeals for the Federal
Circuit, but not in any of the U.S. Circuit Courts of Appeals.
Do you think that we should include the Special Counsel in the
expansion of appellate authority and let the Special Counsel
have the same option of seeking appeal in the Federal Circuit
or one of the Circuit Courts of Appeals?
Ms. Kaplan. Yes, I think we should have the same right of
appeal outside of the Federal Circuit. If I might offer an
explanation for why there is this curious anomaly in the way
the bill, as it is currently drafted--we were asked to draft
language that would give us the authority to ask the Board for
reconsideration or appeal the cases. This was before there was
a provision in the bill for multi-circuit review. So we
provided this--basically the same as the current authority for
OPM, and that is how it happened. But, of course, in the final
drafting of the bill, it would have to be consistent.
Senator Levin. Mr. Chairman, could I just take 1 more
minute? I said that was my last question, but I have been
reminded that there is a particular area of interest that I
would like to clarify with you, Ms. Kaplan. Under the current
law, the revocation or denial of a security clearance in
retaliation for whistleblowing is not considered a prohibited
personnel action. This leads to a situation where a Federal
employee can blow the whistle on waste, fraud or abuse, and
then, in retaliation for so doing, have his or her security
clearance withdrawn and then be fired because he or she no
longer has a security clearance.
The employee can only challenge the firing under the
Whistleblower Protection Act, not the withdrawal of the
security clearance, which makes the challenge significantly
harder, because now the agency has a strong reason for the
firing, since the employee no longer has a security clearance,
which may be a requirement of the job. Do you think the
revocation or denial of a security clearance should be a
prohibited personnel action, and if you do believe that, should
we add that provision to the bill?
Ms. Kaplan. Well, we just took the position in a matter
before the Board a couple of years ago that the law already--
that when the law was amended, I guess in 1994, that the law
already covers security clearance revocations. We explained in
front of the Board why we thought there were good policy
reasons for doing that. It is sort of Kafkaesque. If you are
complaining about being fired, and then one can go back and
say, ``Well, you are fired because you do not have your
security clearance and we cannot look at why you do not have
your security clearance,'' it can be a basis for camouflaging
retaliation. So I do think it is something that should be
considered, and it would close a significant loophole in the
law.
Senator Levin. Do you have any comments on that, Ms.
Slavet?
Ms. Slavet. Only to say that the Supreme Court has been
very clear on this, and the Congress would need to be
absolutely explicit, and when the issue was addressed
previously in 1994, Congress clearly was not explicit. There
was a disconnect between what the House and what the Senate
did, and while again it is Congress' right and Congress should
look at that potential--at that loophole--I have no problem
defending the Board's decision that determines that Congress
did not provide for the revocation of a security clearance
being a prohibited personnel practice. The language just did
not do it.
Senator Levin. Under existing law.
Ms. Slavet. Under existing law, correct, sir.
Senator Levin. Thank you. Mr. Chairman, thank you again for
your leadership in this area.
Senator Akaka. Thank you very much, Senator Levin. In the
interest of time, I have additional questions that I will
submit in writing to our witnesses, and I would like to thank
you for your testimony and responses to our questions. We look
forward to working with you in developing the best possible
legislation to protect Federal employees from work place
retaliation. Thank you very much, and you may be excused. We
now ask Mr. Devine to come to the witness table. Please remain
standing. Raise your right hand. Do you solemnly swear to tell
the truth, the whole truth, and nothing but the truth, so help
you, God?
Mr. Devine. Yes.
Senator Akaka. Thank you. You may be seated. Mr. Devine, as
a well-known advocate for whistleblowers, not only in the
United States, but throughout the world, we are certainly glad
that you have been able to join us. We invite you to give your
oral statement, which is limited to 5 minutes. Be assured that
your entire statement will be included in the record. You may
begin.
TESTIMONY OF THOMAS DEVINE,\1\ LEGAL DIRECTOR, GOVERNMENT
ACCOUNTABILITY PROJECT
Mr. Devine. Thank you. GAP commends your leadership to
revise the primary civil service law applying merit system
rights to Congress and the public's right to know. S. 995 is
responsible good-government legislation, and it is essential to
restore legitimacy for this law's unanimous congressional
mandate, both in 1989, when it was passed originally, and in
1994, when it was unanimously strengthened, and it is fitting
that Senators Levin and Grassley are original co-sponsors,
because they were pioneers in both campaigns that are in this
mandate.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Devine, with attachments, appears
in the Appendix on page 54.
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In 1994, the WPA was the state-of-the-art for whistleblower
rights. Despite pride in helping win its passage, GAP must now
warn those seeking help that the law is more likely to
undermine than to reinforce their rights, and this is because
the Federal Circuit Court of Appeals, which has a monopoly in
appellate judicial review, has set the pace for hostile
judicial activism, functionally overturning the law by
rewriting basic statutory language. The repeated unanimous
congressional mandates for the Whistleblower Protection Act
should not be surprising. Whistleblowers are the Achilles heel
of bureaucratic corruption. Bipartisan legislative champions of
this law have called it the Taxpayer Protection Act, and voters
from all backgrounds agree with that. Nearly 100 citizens
organizations have signed a petition in support of this bill.
In the working group for the amendments on your
legislation, it includes organizations such as the NAACP and
Common Cause, to the Patrick Henry Society and the National
Taxpayers Union, scientific organizations such as the Union of
Concerned Scientists, good-government watchdogs, such as the
Project on Government Oversight and OMB Watch. Whatever our
political views, we all recognize that without viable rights,
Federal employees will be bureaucrats as the rule and public
service as the exception. We can count on Federal workers to
defend the public if they cannot defend themselves.
Before going into the track record of the law today, I
would like to first give credit where it is due. Chairman Beth
Slavet has been a faithful defender of congressional language
in attempting to limit damage from Federal Circuit threats to
the statute's legitimacy. And at the Office of Special Counsel,
based on our experience during Special Counsel Elaine Kaplan's
administration, we have come to expect that the staff will
handle reprisal cases with persistence, poise, professionalism,
and most of all, hard work.
That is not to say we do not deeply disagree with numerous
judgment calls made by these agencies, but they should be put
in perspective. This leader's commitment to the merit system is
beyond credible debate. At the level of administrative
leadership, the law is in good hands, and it is also beyond
credible debate that the OSC's voice in court would strengthen
our merit system. While you are waiting for your bill to get
passed, I would urge them to file more amicus briefs before the
Merit System Protection Board and show their stuff in that
forum that is available.
Without the effort of this administrative leader, however,
reprisal rights would be skyrocketing. The Federal Circuit
Court of Appeals has intensified a relentless pattern of
hostile judicial activism since 1994 amendments strengthened
this law by reversing a lower Federal Circuit precedent. We
have studied every published decision through June 29 of this
year. I would like to break down the 0-69 track record a little
bit for cases on the merits where whistleblowers sought relief.
In 1998, it was 0-17; 1999, 0-14; year 2000, 0-15; through June
29 of this year, 0-12. These facts speak for themselves.
Whistleblowers do not have a fighting chance.
In reviewing the provisions of S. 995, I do not want to
review the points that have been made earlier. The first
cornerstone is closing the loopholes by putting the ``any''
back in ``any,'' and I will not reiterate the loopholes that
have been covered in the discussion, but do want to highlight a
few other ones that are worth your note. One is that
whistleblowers are no longer protected when they challenge
policies rather than specific events. This is also contrary to
the legislative history. But these are the scenarios that count
the most for the taxpayers, where we are institutionalizing
waste or illegality or substantial threats to public health and
safety. It shrinks the law's relevance to personal
eccentricity.
You are not a whistleblower anymore if you disclose non-
government illegality, which could doom Federal workers who
reveal misconduct by special interests. Supposedly, that is the
point of Federal regulation. You are not covered if you expose,
``minor,'' illegality, which the Federal Circuit illustrated
through a case involving records falsification through
backdating. I thought that was a crime. Another one that is not
covered anymore are disclosures that are, ``unnecessary,'' to
solve a problem. Boy, that is a subjective blank check to
punish those who had been vindicated.
Perhaps the most surreal is no one is protected from making
any disclosure after initial exposure of given misconduct,
which revised a discredited doctrine--ingrained, long-term
corruption that was specifically overruled in 1999 when this
law was passed. It means only the Christopher Columbus of a
scandal is eligible for protection. This is an accelerating
pattern of loopholes. In the aftermath, seeking Whistleblower
Protection Act coverage is like driving on a road with more
potholes than pavement.
To go to the second cornerstone of this law, restoring
rationality to the reasonable belief test, I will not repeat
the debate that has happened, that has been summarized so far,
except to note that the circumstances of this particular
decision are very startling, because in this case, where the
court said the employee did not have a reasonable belief of
evidence, the agency, the Air Force, actually ended up agreeing
with the whistleblower's concerns, and as Eric Fitzgerald, who
is in the audience today, will confirm, the Air Force does not
agree with whistleblowers very often, but this was a case where
they said the person's belief was not reasonable.
The irrefragable standard, of course, is the magic word
here. And far be it for me to urge that they should be given
any more weight than the leaders of the administrative agency
have given it, but the court did say it is the first step in
deciding whether there is a reasonable belief, and with
irrefragable meaning undeniable and incapable of being
overthrown, some say there is no such thing as a whistleblower
unless the individual wrongdoer confesses, and then who needs a
whistleblower? The irrefragable proof standard means a coverup
overturns a Federal employee's rights under the Whistleblower
Protection Act, and it is because of that that we must know,
first, all who inquire that if they spend thousands of dollars
and years of struggle to pursue their rights and they survived
the gauntlet of loopholes, they inevitably will earn a formal
legal ruling endorsing the harassment they received.
The court could not have created a stronger incentive for
Federal workers to be silent observers and look the other way.
The decision clearly conflicts with President Bush's first act
on January 20, when he signed an executive order requiring
Federal employees to disclose fraud, waste, abuse, and
corruption. Well, what a Catch 22. If they obey the President,
Federal employees waive their rights. I think, listening to
Senator Grassley's idea about a Rose Garden, if we do not get
some genuine rights for these workers, that Rose Garden
ceremony is going to have to be a closed-casket one, in terms
of being able to survive in the Executive Branch.
The third cornerstone is structural reform, restoring all-
circuits review. We had this in the law from 1978 to 1982. It
is not a new concept which is untested. This will now be the
third time that Congress has had to pass the Whistleblower
Protection Act, because the same court has functionally
overturned a merit system right first created in 1978. It is
time for structural change to stop the broken record syndrome.
Enough is enough. S. 995 restores normal judicial review in the
circuit courts, which has been functional for the EEOC, or the
FLRA, and which is available to all other Americans who are
aggrieved by administrative law decisions. We cannot expect
whistleblowers, Federal employers, to give first-class service
to the public when they only have second-class rights.
The fourth cornerstone of the anti-gag statute at this
point is almost a housekeeping measure. It has passed
unanimously 13 times in appropriations law, but it does not
have a remedy, and rights without remedies do not help much. It
is time to institutionalized this success story. I will not go
into the specific recommendations out of respect for the time
limits of the hearing, but we commend you for your leadership
in putting this proposal on the table. It sends a clear message
that Congress was seriously when it passed this law in 1989 and
strengthened it, and as every whistleblower will tell you,
persistence is a prerequisite for those who defend the public,
to have a decent chance of defending themselves.
Senator Akaka. Thank you very much for sharing your
descriptive insights with us today, and again I commend you and
the Government Accountability Project for all of the work you
have done with Federal whistleblowers. I have one question for
you. The MSPB has taken steps to limit the application of some
of the Federal Circuit decisions that led to the drafting of S.
995. For example, in applying two Federal Circuit decisions
that established case law in conflict with the congressional
intent, the Board has stated that, ``Isolated statements from
Federal Circuit opinions should not be cited for broad rules.''
However, limiting the scope and meaning of Federal Circuit
opinions in an effort to make these rulings consistent with
congressional intent should not be the job of the MSPB.
The Federal Circuit's opinions should be in accordance with
the will of Congress, and provide guidance to the Board, rather
than being a hindrance to them in carrying out their duties.
Can you discuss the scope of the impact of these restrictive
Federal Circuit rulings? That is, who, other than MSPB, bound
by or adversely influenced by these decisions?
Mr. Devine. Well, they certainly influence our
organization. We do not like having to tell people who want to
challenge fraud, waste or abuse, that there are liable to be
engaging in an act of professional suicide. It is very painful
for our organization, and they also have a real spillover
affect throughout the legal system. The Federal Circuit is the
highest court in the land that hears cases under the premier
statute protecting whistleblowers--other forums, such as State
courts considering, wrongful discharge cases, the
administrative judges who hear these cases every day at the
Merit Systems Protection Board--the spillover effect of the
Federal Circuit doctrines is very, very severe.
It has been contagious throughout the legal system, and, of
course, the Board's statement is well-taken, that it cannot
over-generalize from a particular phrase or passage in an
opinion. That would be more meaningful, though, if those
particular phrases or passages were in isolation. When it has
happened 69 times in a row since 1995, and when these passages
get expanded upon and solidified after the Board makes careful
decisions distinguishing the limits of them, we have gotten
beyond the point where it is realistic to hope that damage
control through careful reading and detailed, cautious
interpretation of the boundaries of Federal Circuit decisions
is going to be a solution. We have to have structural reform at
this point.
Senator Akaka. Well, I thank you very much for your
response, Mr. Devine. I have no further questions at this time.
I will submit any further questions I have for the record. I
want to thank you today, and also the other witnesses. You have
been part of the discussion of this important legislation.
There is no question your comments and those of the other
witnesses are very important to us, and I look forward to
working with all of you.
If there are no further questions, this meeting stands
adjourned.
[Whereupon, at 4:19 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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