    [Senate Hearing 107-160]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 107-160

                S. 995--WHISTLEBLOWER PROTECTION ACT AMENDMENTS

    =======================================================================

                                    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

                                    _______

                      U.S. GOVERNMENT PRINTING OFFICE
    75-481                     WASHINGTON : 2002

    ____________________________________________________________________________
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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

                                     ------

    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

                                     ------
    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

                                  ----------

                            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.
    ---------------------------------------------------------------------------
        \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.
    ---------------------------------------------------------------------------
        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.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Senator Grassley appears in the
    Appendix on page 37.
    ---------------------------------------------------------------------------
        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.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Ms. Kaplan appears in the Appendix on
    page 39.
    ---------------------------------------------------------------------------
        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.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Ms. Slavet appears in the Appendix on
    page 44.
    ---------------------------------------------------------------------------
        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.
    ---------------------------------------------------------------------------
        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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