[Senate Hearing 108-414]
[From the U.S. Government Publishing Office]
S. Hrg. 108-414
S. 1358--THE FEDERAL EMPLOYEE PROTECTION OF DISCLOSURES ACT: AMENDMENTS
TO THE WHISTLEBLOWER PROTECTION ACT
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
S. 1358
TO AMEND CHAPTER 23 OF TITLE 5, UNITED STATES CODE, TO CLARIFY THE
DISCLOSURES OF INFORMATION PROTECTED FROM PROHIBITED PERSONNEL
PRACTICES, REQUIRE A STATEMENT IN NONDISCLOSURE POLICIES, FORMS, AND
AGREEMENTS THAT SUCH POLICIES, FORMS, AND AGREEMENTS CONFORM WITH
CERTAIN DISCLOSURE PROTECTIONS, PROVIDE CERTAIN AUTHORITY FOR THE
SPECIAL COUNSEL, AND FOR OTHER PURPOSES
__________
NOVEMBER 12, 2003
__________
Printed for the use of the Committee on Governmental Affairs
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WASHINGTON : 2003
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COMMITTEE ON GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah THOMAS R. CARPER, Deleware
PETER G. FITZGERALD, Illinois MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama MARK PRYOR, Arkansas
Michael D. Bopp, Staff Director and Chief Counsel
Jennifer A. Hemingway, Professional Staff Member
Michael J. Russell, Staff Director, Financial Management,
The Budget, and International Security Subcommittee
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Lawrence B. Novey, Minority Counsel
Jennifer L. Tyree, Minority Counsel, Financial Management,
The Budget, and International Security Subcommittee
Amy B. Newhouse, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Fitzgerald........................................... 1
Senator Akaka................................................ 2
Senator Levin................................................ 4
WITNESSES
Wednesday, November 12, 2003
Peter Keisler, Assistant Attorney General, Civil Division, U.S.
Department of Justice.......................................... 5
Elaine Kaplan, Attorney, Bernabei and Katz, PLLC................. 14
Thomas Devine, Legal Director, Government Accountability Project. 16
Stephen M. Kohn, Chairman, Board of Directors, National
Whistleblower Center........................................... 18
William Bransford, Partner, Shaw, Bransford, Veilleux & Roth,
P.C., on behalf of the Senior Executives Association........... 20
Hon. Charles E. Grassley, a U.S. Senator from the State of Iowa.. 27
Alphabetical List of Witnesses
Bransford, William:
Testimony.................................................... 20
Prepared statement........................................... 160
Devine, Thomas:
Testimony.................................................... 16
Prepared statement with attachments.......................... 72
Grassley, Hon. Charles E.:
Testimony.................................................... 27
Prepared statement........................................... 167
Kaplan, Elaine:
Testimony.................................................... 14
Prepared statement with an attachment........................ 63
Keisler, Peter:
Testimony.................................................... 5
Prepared statement with an attachment........................ 31
Kohn, Stephen M.:
Testimony.................................................... 18
Prepared statement with attachments.......................... 132
Appendix
Susanne T. Marshall, Chairman, U.S. Merit Systems Protection
Board, prepared statement...................................... 175
Questions and responses for the Record from:
Ms. Marshall................................................. 182
Mr. Keisler.................................................. 185
Ms. Kaplan with an attachment................................ 193
Mr. Devine................................................... 199
Mr. Kohn..................................................... 203
Mr. Bransford................................................ 215
Copy of S. 1358.................................................. 218
S. 1358--THE FEDERAL EMPLOYEE PROTECTION OF DISCLOSURES ACT: AMENDMENTS
TO THE WHISTLEBLOWER PROTECTION ACT
----------
WEDNESDAY, NOVEMBER 12, 2003
U.S. Senate,
Committee on Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 3:37 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Peter G.
Fitzgerald presiding.
Present: Senators Fitzgerald, Levin, and Akaka.
OPENING STATEMENT OF SENATOR FITZGERALD
Senator Fitzgerald. The Committee will now come to order.
Having completed the hearing on the nomination of Scott Bloch
for the position of Special Counsel, we move now to a related
hearing to consider legislation, S. 1358, the Federal Employee
Protection of Disclosures Act. I am chairing this hearing
because the bill was referred to and polled out by the
Subcommittee on Financial Management, the Budget, and
International Security which I Chair. I am pleased to recognize
the Ranking Member, Senator Akaka, who is not only the Ranking
Member of the Subcommittee on Financial Management but also the
lead sponsor of S. 1358 which we will consider today.
The Federal Employee Protection of Disclosures Act was
introduced on June 26, 2003, by Senators Akaka, Grassley,
Levin, Leahy, and Durbin. Senator Dayton joined as a co-sponsor
of the bill on July 9, 2003. On October 8, 2003, the
Subcommittee on Financial Management polled this bill out to
the full Governmental Affairs Committee for consideration.
To put this bill in historical context, 1989 was a landmark
year for whistleblower protection. By a vote of 97 to 0, the
Senate passed Senator Levin's Whistleblower Protection Act,
which subsequently was signed into law. Among other
innovations, the Whistleblower Protection Act introduced a
burden of proof allocation that was unprecedented, but has
since become the benchmark for whistleblower protection laws.
In essence, the 1989 law eases the burden for employees to
establish a prima facie case of retaliation for whistleblowing
activity. And once the employee establishes that prima facie
case, the burden then shifts to the agency to prove by clear
and convincing evidence, which is one of the highest
evidentiary burdens in civil law, that the agency would have
taken the same action in the absence of the employee's
whistleblowing.
In 1994, Congress further strengthened whistleblower
protections. In 2001, Congress considered legislation similar
to the bill we consider today but did not take final action
before adjournment, sine die. S. 1358 would amend Federal
whistleblower laws to, among other things, clarify the scope of
protected disclosures, specifically to address certain court
decisions that limit that scope; include actions with respect
to security clearances within the scope of prohibited personnel
practices; include investigations within the scope of
prohibited personnel practices; require an informative
statement in non-disclosure policies and agreements; provide
independent litigating authority for the Office of Special
Counsel; and open appeals to all Federal Circuits rather than
the current exclusive jurisdiction of the U.S. Court of Appeals
for the Federal Circuit.
We owe much to the many Federal employees who have had the
courage and fortitude to reveal government waste, fraud, abuse
and gross fiscal mismanagement. Over the years these
whistleblowers have saved the taxpayers hundreds of millions of
dollars and disclosed endangerment of public safety by
officials in the Federal Government. It behooves us in Congress
to encourage this bravery in the Federal workforce. We
compliment Senator Grassley, Senator Levin, and Senator Akaka
for their consistent and forceful advocacy of efforts to
strengthen protections for whistleblowers.
On the other side of the ledger, we want to remain mindful
of the challenges in managing the vast Federal workforce. Many
whistleblowers are heroes. But some who claim that mantle in
fact dishonor those who are. And for many Federal supervisors
who are unfairly accused of retaliation, the experience can be
damaging. Whistleblower challenges and the ensuing litigation
can be expensive and time-consuming, diverting valuable agency
resources to protracted defense.
Moreover, the easier it becomes to establish a prima facie
case of whistleblower retaliation, the more likely it becomes
that Federal managers will hesitate to take steps to eliminate
unproductive or counterproductive appointees, impose reasonable
disciplinary measures, or insist on efficiencies that some
workers might challenge as retaliatory. Therefore, in
revisiting this important area of law, I look forward to
hearing specifically from the witnesses how their views best
promote this delicate balance between encouraging good faith
whistleblowing on the one hand, and on the other, encouraging
proactive and non-risk averse management of the Federal
workforce.
Before I introduce our first witness I would like to turn
to our Ranking Member, Senator Akaka, for his opening
statement.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. Thank you, Mr. Chairman. Thank you very much
for having this hearing today on S. 1358, the Federal Employee
Protection of Disclosures Act, which makes needed changes to
the Whistleblower Protection Act. I want to add my welcome to
the Hon. Peter Keisler to our hearing.
Our legislation would enhance the Federal Government's
efforts to eliminate waste, fraud and abuse by strengthening
the rights and protections available to whistleblowers. This
bill is essentially the same as S. 3070 which the Committee on
Governmental Affairs favorably reported to the Senate on
October 9, 2002. Whistleblowers play a crucial role in alerting
Congress and the public to serious cases of government
wrongdoing and mismanagement.
Following the events of September 11, courageous Federal
employees stepped forward to blow the whistle on significant
lapses in our efforts to protect this country and its people
from terrorism. FBI agent Colleen Rowley alerted Congress to
serious institutional problems at the FBI which impacted the
agency's ability to investigate terrorist activities and
prevent terrorism. Border Patrol agents Mark Hall and Bob
Lindemann alerted us to serious security lapses at our northern
border.
The importance of whistleblowing was highlighted when Time
magazine named Ms. Rowley and two other whistleblowers as its
Persons of the Year. These brave Americans captured the
Nation's attention and earned our respect for risking their
careers for the public good.
Although nearly a year has passed since whistleblowers
gained national attention, we should not forget the
contributions they make to our everyday lives. Just last week,
Senator Fitzgerald and I held a hearing on abuses in the mutual
funds industry where witnesses testified that it was a
whistleblower who first brought attention to this problem.
Specifically, Stephen Cutler, Director of Enforcement at the
Securities and Exchange Commission said, ``tips from
whistleblowers are critical to our program.''
Through passage of the Whistleblower Protection Act in 1989
and the subsequent strengthening amendments in 1994, Congress
has encouraged Federal employees to come forward with
information of threats to public safety, government waste,
fraud, and mismanagement. Congress has passed strong laws to
encourage the disclosure of critical information, but we also
need the courts to interpret the law consistent with
Congressional intent. Without judicial decisions consistent
with the intent and spirit of the Whistleblower Protection Act
Federal employees will continue to fear reprisal for blowing
the whistle. As a result, we fail to protect not only the
whistleblower but we fail to protect taxpayers and national
security as well.
Our bill is intended to close loopholes which have made it
impossible for whistleblowers to come forward without the
threat of retaliation. Based on the repeated misinterpretation
of Congressional intent and the track record of the Federal
Circuit, Court of Appeals, it is clear why Federal employees
would fear making disclosures evidencing government wrongdoing.
Since the 1994 amendments to the WPA, the Federal Circuit,
which has sole jurisdiction over appeals, has issued only 75
decisions on the merits of the whistleblower cases, and in 74
of those cases the whistleblowers lost.
A free society should not fear the truth. Public servants
should report government mismanagement, threats to national
security, or specific dangers to public health. People will not
speak out if they do not feel protected from retaliation. That
is why the Whistleblower Protection Act must be strengthened.
I look forward to hearing from our witnesses and working
with you, Mr. Chairman, to protect the American public and our
Federal whistleblowers. I also want to add to the list of those
Governmental Affairs Committee colleagues who are co-sponsors
to our bill the name of Senator Pryor. Thank you, Mr. Chairman.
Senator Fitzgerald. Thank you very much, Senator Akaka.
Senator Levin, do you wish to proceed?
OPENING STATEMENT OF SENATOR LEVIN
Senator Levin. Mr. Chairman, thank you, I do have an
opening statement. First let me begin by thanking you for
chairing this hearing on a very important bill. I know you are
fitting this into an incredibly difficult schedule and we are
very much in your debt, those of us who have spent a lot of
time on this subject. I know the Chairman himself is very much
interested in whistleblowing and protecting whistleblowers and
doing a lot of other important things to make this government
work better.
I do not know if Senator Grassley was here a moment ago or
not, but I also want to thank him, and obviously Senator Akaka
for their efforts on behalf of whistleblowers. I hope that we
can mark up this bill next year. But today's hearing is
essential to that markup.
The Office of Special Counsel who was before us today, at
least the nominee for that office, is an independent agency. We
have got to defend that independence. Whistleblowers often
reveal embarrassing, sometimes damaging information about
people whom they work for, or the government agencies where
they are employed. There can be significant pressures on the
Special Counsel to ignore retaliation that may have occurred or
to pursue cases less vigorously than they ought to be pursued.
But the OSC is our first line of defense, and it is important
that we give the OSC those powers.
It is also important that we strengthen the whistleblower
in a number of other ways. That includes the power of the OSC
to appeal decisions, and participate in those appeals. There is
no reason why the OSC should not be allowed to appeal the
decision when a decision is contrary to the needs of
whistleblower protection.
We have also got to address some of the holdings of the
U.S. Court of Appeals for the Federal Circuit. Some of these
decisions have been totally inconsistent with Congressional
intent. In the case of Lachance vs. White,--and I know our
witness from the Justice Department will address this case
today--we have an example of where the Congress has adopted a
reasonable standard of proof and the Court of Appeals has taken
that standard and turned it into an impossible hurdle. In that
case, the Lachance case, the court imposed an unattainable
standard on Federal employee whistleblowers to prove their
cases.
The Federal court ruled in that case that in order for a
whistleblower to demonstrate reasonable belief that his
disclosure was evidence of gross mismanagement he has to
demonstrate with irrefragable proof that the government had
acted in violation of the law. Now that is an impossible
standard. That is undeniable, incontestable, incontrovertible,
incapable of being overthrown proof. That proof does not exist
in any case unless there is a plea of guilty. Yet that is the
kind of decision that we have gotten from the Federal Circuit.
So our bill is intended to address the powers of the Office
of Special Counsel. I had hoped to be here earlier and I could
not be because of the Defense bill being on the floor and I had
to manage that bill, to ask our nominee for that position;
whether or not there would be support for the bill that Senator
Akaka, Senator Grassley, I and others have introduced. But in
the absence of being able to address those issues directly with
our nominee we look forward to raising those questions with the
Justice Department and our other witnesses today, and getting
answers to those questions from the nominee in written form.
Again, I just want to thank you, Mr. Chairman, for your
commitment to so many good government causes.
Senator Fitzgerald. Thank you, Senator Levin. I would now
like to introduce our witness on our first panel. The Hon.
Peter Keisler serves as Assistant Attorney General for the
Civil Division in the U.S. Department of Justice. He has also
served as Principal Deputy Associate Attorney General and
Acting Associate Attorney General. Prior to his appointments at
the Justice Department, Mr. Keisler was a partner at Sidley,
Austin, Brown and Wood in their Washington, DC office. I would
note that esteemed law firm is headquartered in Chicago. He
also served in the Reagan Administration as Associate Counsel
to the President and as a law clerk to U.S. Supreme Court
Justice Anthony Kennedy, as well as Judge Robert H. Bork of the
U.S. Court of Appeals for the District of Columbia Circuit.
In the interest of time your full statement will be
included in the record and we ask that you limit your summary
statement to 5 minutes. Mr. Keisler, you may proceed with your
opening statement.
TESTIMONY OF PETER KEISLER,\1\ ASSISTANT ATTORNEY GENERAL,
CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Keisler. Thank you very much, Mr. Chairman and Members
of the Committee. I very much appreciate the opportunity to
appear before you today and to include my full statement in the
record. I will just briefly summarize our principal concerns
with S. 1358.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Keisler appears in the Appendix
on page 31.
---------------------------------------------------------------------------
But let me first begin by emphasizing that the Department
is strongly committed to the protection of whistleblowers who
bring to light evidence of fraud, abuse, mismanagement, and
violations of the law in the government. The current law
though, we believe, adequately protects the interest of
whistleblowers and we think the costs associated with this
bill, both in terms of its impact on important national
security interests and the inefficiencies it could create in
the management of the Federal workforce outweigh the
incremental increase in protections that the bill might afford.
We are particularly concerned about the provisions of the
bill that relate to security clearances and classified
information. For example, the bill would permit the Merit
Systems Protection Board and the Federal Circuit to review
security clearance determinations. Review by those non-expert
bodies would, we believe, have a substantial chilling effect
upon the decisionmaking process of security professionals. If a
security professional knows that his or her decision will be
second-guessed by the MSPB and that any reverse decision may
subject his agency to substantial damages, that possibility
will inevitably be considered in the security clearance
decision, even though the only appropriate and permissible
standard that should be considered is whether the clearance is
clearly consistent with national security.
Beyond that objection, we do not believe the amendment in
that respect is necessary. Currently, Executive Order 12968
requires all agencies to establish an internal review board to
consider appeals of security revocations.
We have one at the Department of Justice which is fairly
typical. Background investigations are reviewed by career
adjudicators on the Department's security staff and any
recommendation to deny or revoke a security clearance is
reviewed personally by the director of that staff, also a
career employee of the Department. If the director's decision
is to deny or revoke a clearance, then a comprehensive written
statement of reasons must be provided to the employee or the
applicant, who may also request access to any documents relied
upon, including the investigative file. The employee may then
request reconsideration by the director and is given a
statement of reasons and the result of that reconsideration as
well.
If the employee continues to object, he may then be given
an opportunity to appeal to a high-level panel appointed by the
Attorney General and comprised of three members, two of whom
are from outside the security field. The members of the
Department's panel are all high-ranking career employees. The
employee may be represented by counsel, there is a transcript
of the hearing, and the final decision is in writing and final.
We believe that by providing the employee with a written
explanation of the reasons for a clearance denial and with an
appeal to a high-level panel that had no role in the initial
decision we have provided a process that is fundamentally fair
to the employee and that provides sufficient procedures to
ensure that a security clearance decision is not based upon
unlawful reprisal.
The bill would also allow individuals to make unauthorized
disclosures of classified information to members of Congress
and their staff who possess security clearances. We oppose
these provisions because we believe they would interfere with
the Executive Branch's constitutional responsibility to control
and protect information relating to national security. And more
specifically, the determination which individuals have a need
to know specific types of classified information.
Executive Branch agencies frequently provide classified
information to the Congressional Intelligence Committees in
fulfilling our obligations to keep them fully informed about
intelligence matters within their purview. We also provide
classified information from time to time to other committees in
response to requests from their chairmen in the context of
Congressional oversight regarding Executive Branch operations.
The decisions about the provision of such information are made
within the Executive Branch based upon assessments about
whether the particular Congressional entity has a need to know
the classified information, which remains an important standard
in avoiding unnecessary disclosures that would not be
consistent with our national security interests.
We believe the Executive Branch should retain the
responsibility to determine the dissemination of classified
information, both within the branch and to the Legislative
Branch. This bill would encourage the disclosure of classified
information outside of that carefully considered process.
We also object to the provision which would prohibit the
consideration of time, place, form, motive, context, or prior
disclosure in considering whether an individual made a
protected disclosure under the law. The context in which an
alleged disclosure is made is essential to determining whether
the statement made by an employee is the type of statement that
falls within a common sense definition of disclosure.
By prohibiting the consideration of context, the bill
transforms any statement that potentially suggests a
disagreement about law or policy into a protected disclosure.
Thus, because employees make those types of statements on a
regular basis, the bill would potentially allow almost any
Federal employee to claim whistleblower status in the face of
legitimate personnel actions. This protection, which would then
require management to justify its action by the much higher
clear and convincing standard, would create costly
inefficiencies in the operation of the Federal workforce and
also would detrimentally impact the morale of good workers.
The bill would provide the Special Counsel independent
litigating authority and authorize him to appeal decisions of
the MSPB and whistleblower cases, and represent himself before
the Federal Circuit. We object to this provision, as we
generally do to any extension of independent litigating
authority beyond the Department of Justice for two primary
reasons. First, it could result in the undesirable situation of
two different parts of the government litigating against each
other and taking different positions in court. The government,
we believe, should speak with one voice.
Second, it undermines the centralized control the
Department maintains over litigation involving the government
in the Federal courts. Centralized control furthers a number of
important policy goals, including the presentation of uniform
positions on significant legal issues, the objective litigation
of cases by attorneys unaffected by concerns of a single agency
that may be inimicable to the interest of the government as a
whole, and the facilitation of presidential supervision over
Executive Branch policies implicated in government litigation.
Finally, we object to the proposal to permit review of MSPB
decisions by the regional Circuit Courts of Appeals rather than
the currently exclusive review by the Federal Circuit. Review
by the regional circuits would result in a fractured personnel
system causing confusion among both the employing agencies and
the employees about their respective rights and
responsibilities. And it would inevitably require the Supreme
Court to intervene more in Federal personnel matters to resolve
inconsistencies among the circuits.
I thank the Committee for the opportunity to testify and I
am pleased to answer any questions you might have.
Senator Fitzgerald. Thank you, Mr. Keisler. I want to ask
you right off the bat what you think about what Senator Levin
said in his opening statement. He noted, I think it was the
Lachance vs. White case, that imposed the irrefragable proof
standard. Is that not pretty much an impossible level of proof
for the whistleblower?
Mr. Keisler. Pretty much, Mr. Chairman. I am not here to
defend that. My understanding is that discussion in Lachance
was dicta. That the MSPB when it next considered the issue said
essentially, the Federal Circuit cannot have meant what it
said. And no case that I am aware of, either before the MSPB or
the Federal Circuit since then has actually applied the
irrefragable proof standard.
I would certainly agree that it would not be appropriate.
We think the standard should be what it normally is in a case
like this, which is proof by a preponderance of the evidence.
Senator Fitzgerald. Are there any aspects of the current
whistleblower law that you think should be improved, or is it
your contention that the current law adequately protects
whistleblowers?
Mr. Keisler. Our feeling is that the current law provides
adequate protection. We are always open to considering
proposals that this Committee or others in Congress might have
about ways in which it could be improved, but we generally
think the current law strikes a sufficient balance.
Senator Fitzgerald. Is it your understanding that an
employee who discloses information that is already known is not
a protected whistleblower?
Mr. Keisler. That is the holding of the Federal Circuit, I
think in the Wissen case, that a disclosure is something that
was not previously laid bare, something that is being revealed
for the first time. So that one of the tests that has been
applied to determine whether a disclosure provides protection
under the statute is whether the individual making the
disclosure is informing of something new or instead reporting
about something that is already known. Only in the former case,
I think, does it get that protection under existing law.
Senator Fitzgerald. Could you describe for this Committee
more precisely what you mean by the burden you fear will be
imposed on management of the Federal workforce? What are some
of the financial, managerial, and human costs involved in
participating in these whistleblower applications and
adjudications?
Mr. Keisler. Of course, any time someone is accused of
acting improperly, that imposes a personal cost on that person
and a financial cost on either that person or the government in
litigating it. That does not mean that there should not be an
opportunity to bring these charges. There are very important
interests that are implicated, as each Member of the Committee
has said. But we think it is important that the law strike a
balance between the needs of managers in the workplace to take
appropriate personnel actions when adverse decisions need to be
made, and the important need to protect legitimate
whistleblowers who are bringing to light information about
fraud, abuse, mismanagement, or violations of the law.
Senator Fitzgerald. I listened with great interest to your
concerns about imposing the machinery of whistleblower
protection into the sensitive arena of security clearances. But
I wonder if I could ask you, on the other side of the ledger,
what meaningful recourse is there for Federal employees who are
subject to retaliation by revocation of their security
clearance?
Mr. Keisler. Every department and agency under the
executive order is required to have its own independent,
internal review process. When I say independent, I mean
independent of the initial decisionmaker who will first decide
to revoke or deny a security clearance.
We have one in the Department of Justice. The three members
of that board are at the deputy assistant attorney general
level. I can tell you, it is a robust process. It is not a
rubber stamp. It frequently results in decisions being
reversed. That panel is empowered to consider all evidence, to
look at the entire totality of the case that the employee or
applicant presents. In that respect, it functions much more
broadly than any court or administrative agency would be able
to do because their general practice would be to give deference
to the administrative decision in the first instance. This
board gives no deference to the initial decision to deny or
revoke a security when it is asked to review it. It looks at it
afresh, and as I said, frequently makes a decision to reverse
the decision.
The employee or applicant has all aspects of due process
before that board: The right to be represented by counsel, the
right to present testimony, a written record is created, and a
statement of reasons is created. So that has been our effort to
make sure that, while we have not supported outside review of
clearance decisions, that there is a measure of due process and
second look given to those decisions because we recognize they
are important. They are important not only for the government
but they are important for the employee or applicant, in many
cases whose job may require a security clearance.
Senator Fitzgerald. Senator Akaka.
Senator Akaka. Thank you very much, Mr. Chairman.
Mr. Keisler, the Department opposes the provision in S.
1358 granting MSPB the right to review secret clearances
relating to retaliation for a protected activity. I understand
this opposition is in part to the current internal review
process for security clearance matters. What is the track
record for the internal security clearance review process in
restoring clearances to whistleblowers?
Mr. Keisler. I can only speak generally. I do not have
statistics on that, and even my general knowledge is limited to
what we have done in the Department of Justice. But I have been
told by the security officials there that this is a process
which quite frequently results in reversals of initial
decisions to deny or revoke clearances. That it is a meaningful
process and one in which the look is genuinely a fresh one.
Senator Akaka. Thank you. The Department objects to the
provision clarifying that employees may make disclosures of
classified information to Congress because DOJ believes an
employee would have the unilateral authority to decide who
should receive classified information and when.
However, the WPA already provides that employees can make
classified disclosures to the Special Counsel and an agency's
inspector general. Furthermore, the law states that nothing in
the WPA shall be construed to authorize the taking of any
personnel actions against any employee who discloses
information to Congress.
In light of these existing statutory provisions on the
disclosure of classified information, can you elaborate on the
Department's objection to this provision?
Mr. Keisler. Certainly, Senator, and thank you for giving
me that opportunity. First of all, I would like to be clear
about what our position is and is not. We do believe that as a
general matter, government employees have the right to go to
Members of Congress and their staff with information about
misconduct or legal violations without getting prior approval
from the Executive Branch. The exceptions, we believe, to that
general principle are in those instances in which that kind of
action would undermine the President's constitutionally-based
authority to carry out his particular responsibilities.
Congress' oversight is constitutionally based. The
President has some constitutionally-based powers and sometimes
there is tension between the two. The category in which this
most often arises, of course, is the President's
constitutionally-based power that the Supreme Court recognized,
to control access to national security information.
Our belief is that when there is a tension between the
President's constitutional powers and Congress' constitutional
need and power to conduct oversight, that is something that
should be worked out through the committees, through the
oversight process, but not that each individual employee with
access to classified information should be able to make the
determination for himself or herself that a disclosure should
be made.
Senator Akaka. The Department of Justice has expressed
extremely strong opposition to this legislation. The Department
also opposed the 1989 Whistleblower Protection Act and the 1994
amendments. What changes would you recommend in order to gain
the Department's support?
Mr. Keisler. I have not come here, Senator, with proposals
to change the law. As I said, I think we do believe that the
current law strikes a good balance, but that is always subject
to further proposals and consultations. I do not want anything
I just said to suggest that we would not be happy to work with
the Committee to further develop ideas and consult.
Senator Akaka. Thank you very much for your responses.
Thank you, Mr. Chairman.
Senator Fitzgerald. Senator Levin.
Senator Levin. Thank you. In answer to Senator Akaka's
question you indicated that the internal appeal process
relative to the loss of security clearance has produced
reversals.
Mr. Keisler. That is what I am told, Senator.
Senator Levin. But you did not know what percentage of
cases or how often. Could you do that bit of research for us
and give the Committee those numbers?
Mr. Keisler. I will see what I can find out.
Senator Levin. The question of whether or not Members of
Congress ought to be able to receive classified information
from whistleblowers you say should not be the unilateral
decision of a whistleblower. Should Members of Congress be
allowed to make a decision--if a whistleblower comes to us and
we have clearance obviously, a whistleblower has clearance and
they say, this information is classified and I cannot give it
to you under the current law, but if you request it, that would
be different I gather then in your eyes, would it?
Mr. Keisler. I think that would be a protected disclosure
by the employee.
Senator Levin. So what the employees need to do then, and
we ought to make it clear in the law, is that if the Member of
Congress, after being informed that the employee has classified
information but has not disclosed what it is, then says, yes, I
would like to receive that information, there should be
protection for the whistleblower?
Mr. Keisler. Yes, and I think that is protected under the
law as it is written now because any disclosure to anyone, as
long as it is not a disclosure of the information that is
required by law or executive order to be secret, is a protected
disclosure. So if an employee went to you, Senator, or your
staff and said, I know something very important. I cannot tell
you the contents of it because it is classified, but you should
pursue this; someone yesterday gave you misleading testimony or
whatever, that would not----
Senator Levin. No, not quite that. Not, you should pursue
this. But if you ask me what that information is, than I can
respond to your request. Is that protected?
Mr. Keisler. I am sorry, I did not fully understand your
question. My conception was they would come to you and say,
there is something you need to pursue and you would come demand
it from us. No, I do not think it is currently protected under
the law.
Senator Levin. My question is, should we not have the
right, as cleared, elected officials to seek classified
information from anybody who has received that information
properly?
Mr. Keisler. I think that would trench upon the President's
authority to make the need-to-know determination. Because, as
you know, the decision about whether information can be
disclosed to any particular individual inside the Executive
Branch or anywhere is a combination of, is the person cleared
and is there a need to know. We regard the President's
authority in this regard to encompass both categories of
decision, so under our view of his constitutional role we would
think that should proceed through other channels.
Senator Levin. You want to give the President that
exclusive right to decide whether or not a Member of Congress
should be allowed to seek classified information from a member
of the Executive Branch? That is really an extreme position, I
will tell you, because we ask questions all the time on our
committees of members of the Executive Branch which require
them to give us classified information, and obviously in a
setting which is cleared. We do that all the time.
The position that you are taking is that the President
ought to have a right to say, sorry, that person is in the
Executive Branch. We are not going to respond to the question
from the Member of Congress, or in my hypothetical, from the
member of Congress who asked the whistleblower, what is that
information. It is a very extreme position.
Mr. Keisler. I think when you use the word exclusive,
Senator, I think in some----
Senator Levin. I think you used the word exclusive.
Mr. Keisler. Then when I use the word exclusive, I may not
have fully captured the reality of the way things would work. I
would presume in that circumstance there would be a back and
forth between this branch and the Executive Branch, and there
would be a need for negotiation and accommodation. But our
position is that when the Executive Branch is engaged in that
kind of process it should be the President or his delegees who
do the negotiating, who set the terms on that side of the
divide and that lead to the accommodation, not that each
employee is authorized to make the disclosure.
Senator Levin. Upon request.
Mr. Keisler. Upon request, yes.
Senator Levin. So that when someone comes in front of us
from the Department of Defense over at the Armed Services
Committee and we ask that person for information which is
classified, you are saying that person does not have the
responsibility and does not have the obligation to respond to
the question until they clear that with whoever these powers
are in the Executive Branch that you want all information that
is classified cleared with before it is shared with Congress.
That seems to be what you are saying.
Mr. Keisler. You are obviously so much more familiar with
the way these interchanges work than I am, Senator, but my
assumption would be that when someone comes before you they
have a sense in advance of the parameters of what they are
permitted to disclose.
Senator Levin. No, frequently that is not the case. They do
not always know the questions that we are going to ask in
advance.
Mr. Keisler. If a witness were in genuine doubt as to
whether a piece of--whether his or her higher-ups, the ones
with authority, would approve the disclosure of the information
and that witness did not know whether that would be approved, I
would take the position that the prudent thing would be for
them to go back and find out whether that is appropriate.
Senator Levin. That is a very extreme position. When
Congress asks questions, in a proper setting that is cleared,
from someone who has that information, whether it is classified
or not, we have a right to that information. We do not expect
to, nor should we be put in a position where that person says,
gee, I do not know whether I want to answer that question
because I did not expect you to ask that question, and I have
to go back to my superiors to see whether or not I can answer
the question. That is not acceptable, and I do not think any
Executive Branch has taken that position to date that I know
of, and I do not believe any court would sustain that.
Congress has a right to information from the Executive
Branch unless there is a privilege, an executive privilege, for
instance, which is exercised. But the fact that it is
classified, when we are cleared to receive classified
information, is not a reason that can be sustained. So I think
your position on this is really an extreme position. The red
light is on. I only had one more question but I do not want
to----
Senator Fitzgerald. You can go ahead, continue if you wish.
Senator Levin. On the irrefragable proof, and I was glad to
hear your answer on that question, I take it then that the
Justice Department would support that part of the bill which
would eliminate that from anyone's mind as being the proper
standard.
The reason it is important is because when it comes to
settling these cases, if the whistleblower has to face the
prospect of an appeal if he pursues his claim, to a court which
has adopted that standard, it is going to make settlement much
more--it is not going to be as good a settlement, obviously,
for the whistleblower if they think that is the standard which
will be applied at the end of the line.
My question though specifically is, will the Justice
Department support at least that portion of the bill which puts
into law that standard which you adopted, the preponderance of
the evidence standard?
Mr. Keisler. I am not certain that the portion of the bill
that seeks to reverse the irrefragable proof standard actually
installs a preponderance of the evidence standard. I think it
may say something more like, the individual need only have
substantial evidence, which would be a weaker standard than
preponderance of the evidence. But in terms of our position
about what it should be, we think it should be preponderance of
the evidence. We do not think it should be irrefragable proof.
Senator Levin. In any event, we can agree it should not be
irrefragable.
Mr. Keisler. It should not be irrefragable proof. I did not
even know what the word irrefragable meant before I read that
decision.
Senator Levin. I looked it up and it is quite an
extraordinary word.
Thank you, Mr. Chairman.
Senator Fitzgerald. Thank you, Senator Levin.
Mr. Keisler, thank you very much for appearing before us.
We appreciate you coming over to the Hill to testify. If there
are no further questions we will proceed to panel two.
I would like to introduce our panelists on the second
panel. Elaine Kaplan currently is practicing law in the firm of
Bernabei & Katz in Washington, DC. Ms. Kaplan was nominated by
President Clinton in 1997 and confirmed by the Senate in April
1998 to be Special Counsel of the Office of Special Counsel.
During her tenure she was credited for implementing many new
programs to improve the operations of the Office of Special
Counsel and the interagency process regarding personnel
practices. Prior to her role as Special Counsel Ms. Kaplan
served as Deputy General Counsel of the National Treasury
Employees Union where she represented the interests of union
members in the areas of labor and administrative law as well as
racial and sexual discrimination.
Thomas Devine serves as legal director of the Government
Accountability Project, a non-profit organization dedicated to
promoting government and corporate accountability by advancing
free speech and ethical conduct in the workplace and defending
the rights of whistleblowers. Mr. Devine has published a number
of articles regarding whistleblower protections and has worked
for over 20 years to develop and promote policies and laws
pertaining to whistleblowers.
Stephen M. Kohn serves as Chairman at the National
Whistleblower Center, a non-profit advocacy center dedicated to
working with whistleblowers. Mr. Kohn has litigated
whistleblower cases for a number of years, including the
successful lawsuit against the Department of Justice, the FBI,
and the Clinton Administration that compelled implementation of
regulations to enforce whistleblower protections for FBI
employees.
William Bransford is General Counsel to the Senior
Executives Association and a partner in the law firm of Shaw,
Bransford, Veilleux & Roth where he has practiced since 1983.
The Senior Executives Association was founded in 1980 as a non-
profit corporation and it represents more than 7,000 career
Federal executives. In his practice, Mr. Bransford represents
Federal executives, managers and employees in cases regarding
personnel and employment practices before the U.S. District
Courts, the Merit Systems Protection Board, the Equal
Employment Opportunity Commission, the Office of Special
Counsel, and with offices that adjudicate security clearances.
Thank you all for being here. In the interest of time, your
full statements will be included in the record, and we ask that
you limit your summary statement to 5 minutes. We are going to
strictly enforce the 5-minute limit. Thank you. Ms. Kaplan.
TESTIMONY OF ELAINE KAPLAN,\1\ ATTORNEY, BERNABEI AND KATZ,
PLLC
Ms. Kaplan. Thank you, Mr. Chairman. Good afternoon. I
appreciate being invited by the Committee to offer my
perspectives on S. 1358. My testimony is based on my experience
as the head of the Office of Special Counsel as well as an
attorney in private practice who represents whistleblowers in
both the private and public sector.
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. Kaplan with an attachment appears
in the Appendix on page 63.
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In July 2001, as Special Counsel I testified in favor of S.
995, which was an earlier effort to strengthen and improve the
Whistleblower Protection Act. There have been two significant
developments since the Committee considered S. 995 which I
think are worth mentioning. First, after the terrorist attacks
of September 11, our national focus shifted dramatically. We
all have heightened concerns and a greater sensitivity to
issues of national security.
Second, since the Committee considered S. 995, the Nation's
markets have been rocked by a series of corporate scandals and
in the aftermath of these scandals Congress enacted the
Sarbanes-Oxley Act which extends whistleblower protection to
employees of publicly traded corporations.
I mentioned the terrorist attacks of September 11 and the
corporate scandals that led to the passage of Sarbanes-Oxley to
make a point about DOJ's opposition to S. 1358. Both as Special
Counsel and for many years before as an attorney practicing in
the area of Federal sector employment it has been my experience
that whenever amendments are proposed to strengthen the
Whistleblower Protection Act, the Department of Justice opposes
them. It usually uses the same objection, similar to the ones
that we heard today, which are that strengthening the law will
inhibit managers from taking legitimate actions against poor
performers or bad employees. It also says that making changes
to the act's enforcement scheme, giving the Special Counsel
greater authority will undermine what it calls uniform
application of the law and interfere with DOJ's control over
litigation in the Federal courts.
I think that this reflexive opposition to this bill is
really bad public policy, especially in a post-September 11
world. Today more than ever our emphasis should be not only on
protecting whistleblowers but on encouraging them to come
forward. That was certainly what Congress concluded when it
extended whistleblower protection to corporate employees. It
certainly is no less important that Federal employees who are
sometimes on the front lines of the war against terror feel
safe reporting security risks as it is that employees of
Fortune 500 companies are protected when disclosing account
scandals.
Now DOJ is frequently fixated on the notion that enhancing
protection for Federal employees and closing loopholes in the
act will protect bad employees. As the head of OSC I frequently
heard this trotted out and it is sort of an old canard, that
the law protects bad employees, or that employees cynically
invoke the act's protection in order to make themselves immune
from legitimate personnel actions. This is like an urban legend
in my opinion. The fact is that weak claims, most of the them
are closed--all weak claims are closed in the administrative
process. The majority of cases filed with the Office of Special
Counsel because the law is clear and nothing in this law
changes the fact that it is not illegal to take appropriate
action against bad employees even if they are whistleblowers.
Now let me give you a couple of examples of why this law is
important and why existing law has these common sense lapses in
it. I think it makes good sense to prevent agency officials
from retaliating against an employee who is making a protected
disclosure, even if they are doing it as part of their duties
and through their chain of command. In fact I think it is
counterintuitive to protect people only when they go outside
their chain of command. One would think that it would be in
management's interest to encourage people to stay inside the
chain of command rather than going, for example, to the
Washington Post or the New York Times.
So let me give you an example of how this would work. Let
us say there is a security screener at National Airport who
works for the Transportation Security Administration and they
notice that the x-ray machines are malfunctioning on a regular
basis. The screener suspects that because of these malfunctions
a number of passengers may be permitted to board airlines
without being screened. It is part of his job to report these
malfunctions to his supervisor.
So he goes to his supervisor and he tells them about the
malfunctioning machines and his supervisor says to him, do not
write up a report. Just go back to work. It is a lot of extra
paperwork. And the supervisor does not want it to get out that
the screening machines at National Airport are not working. He
says, do not worry about it. I will take care of it. We will
get the problem fixed.
One week later the employee comes back again, the problem
has not been fixed. This time he tells his supervisor, if
nothing is done, he is going to report the supervisor, his
inaction, up the chain of command or maybe to the IG, and the
supervisor fires the employee.
Now under current law this employee has no recourse.
Because he has made his disclosure as part of his regular job
duties he is not protected by the anti-retaliation provisions
of the Whistleblower Protection Act. In fact a security
screener at TSA, this employee does not even have normal
adverse action protections that other employees have.
The same scenario could play out in any number of contexts:
An inspector at the Nuclear Regulatory Commission who suffers
retaliation when he recommends that a power plant's license be
revoked for violating safety regulations; an auditor who is
denied a promotion because he found improprieties in a Federal
grant program; or an investigator in an IG's office who is
geographically reassigned because he has reported misconduct by
a high-level agency official.
I see that my time is up and I will refer you back to my
written statement. But I do think that it is really important
for the Committee to consider this balance between broadening
the rights for whistleblowers and management prerogatives to
understand that is really in management's interest to have
broad protection for whistleblowers because it is in
management's interest to understand what is going on in the
work site and to created an open environment. Thank you.
Senator Fitzgerald. Thank you, Ms. Kaplan. Mr. Devine.
TESTIMONY OF THOMAS DEVINE,\1\ LEGAL DIRECTOR, GOVERNMENT
ACCOUNTABILITY PROJECT
Mr. Devine. Thank you for requesting this testimony. GAP
and a bipartisan, trans-ideological coalition of over 100
citizens and good government organizations strongly support
this Committee's efforts to put the protection back in the
Whistleblower Protection Act. S. 1358 is a modest good
government bill that restores legitimacy for a public policy
mandate that Congress has passed unanimously three times. It
does not expand the intended scope of any prior Congressional
actions. Most accurately, this bill could be called the
Whistleblower Protection Restoration Act.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Devine with attachments appears
in the Appendix on page 72.
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I serve as the Legal Director of the Government
Accountability Project and for 25 years we have been helping
whistleblowers. I would like to begin by seconding Ms. Kaplan's
closing remark, that this law will help managers as much as it
will help anyone else. Whistleblower protection within an
organization, if we close the loopholes that are barring it
currently, serves management's right to know. The way the
current law has been skewed there is only a potential to serve
Congress or the public's right to know, and managers are liable
to be the last ones to learn about problems because of the way
the statute has been twisted.
In 25 years we could not avoid learning some lessons about
which reforms work in practice and which are illusory. S. 1358
is the real thing. If enacted, the Whistleblower Protection Act
will again be a genuine metal shield that gives a fighting
chance for those who rely on it to defend themselves. If we
keep the status quo, it is going to be a cardboard shield
behind which anyone relying on it is sure to die
professionally. It also will continue to be a magnet for
cynicism.
This bill does basically two things. It restores the
boundaries that Congress has already set, and second, it gives
structural reform so that Congress will not have to pass this
law a fifth time, or more. Enough is enough.
I think we should briefly review why Congress keeps
reaffirming a unanimous mandate for whistleblower rights. It is
because they are the human factor which is the Achilles heel of
bureaucratic corruption. They warn us of preventable disasters
before we are limited to damage control, or picking up the
pieces. They are society's modern Paul Reveres. Since the
September 11 tragedy, increasingly they have been playing an
invaluable role.
As the news media increasingly has recognized,
whistleblowers on national security breakdowns have been the
only reliable, trustworthy lifeline for Congress and the public
to learn about terrorist threats which were caused by
bureaucratic negligence and sustained by abuses of secrecy.
Their message has been consistent: Too often the bureaucracy
has been satisfied to maintain the appearance of security
rather than implementing well-known solutions to long-confirmed
and festering problems. We cannot have those voices silenced if
we are going to prevent another tragedy in our Nation.
My testimony gives numerous examples of whistleblowers
whose warnings have been vindicated in retrospect but who are
still isolated from their areas of expertise, relegated to
updating the telephone books at their agencies, or serving as
travel agents for people on foreign assignments, despite the
fact that they have gone to the mat and risked their careers
disclosing still unsolved problems that sustain our
vulnerability to terrorism. Our Nation does not have the luxury
to waste these talents.
Let me give a brief rebuttal of the Justice Department's
specific arguments. On security clearances, they stated that
since the Merit Board is not an expert body this would chill
the professionals. The Merit Board would not be acting on
anything outside of their expertise, which is determining
whether there have been merit system violations like
retaliation. They would not be touching the technical issues
that they do not have expertise for.
The gentleman from the Justice Department said, we have
these review boards and they work great at Justice. Justice is
not any institutional guarantee of due process for the rest of
the Executive Branch. Let me share with you some of the results
from the other agencies. There is everywhere an institutional
conflict of interest. The body that is acting as judge and jury
normally would be the adverse party in the case. That is not a
healthy premise. There are no timeframes for these decisions.
Whistleblowers are routinely forced to wait over 3 years before
they are told what they have been accused of. The gentleman did
not talk about timeframes at Justice. One of their DOJ
whistleblowers was waiting 2 years to get any explanation for
the loss of his clearance.
They are not allowed to confront their accusers when they
have a hearing. They are not allowed to present witnesses
themselves, or present their own evidence. While there may be
exceptions, as a rule, security clearance hearings at internal
review boards are frequently analogized to Kafka's, The Trial.
Only unlike that book, they are not a 19th Century nightmare
novel. They are the 21st Century reality.
Justice's other arguments are similarly specious. On it
being unconstitutional to give classified information to
Congress for whistleblowing disclosures, that issue was decided
in 1998 with the Intelligence Whistleblower Protection Act.
This is just housecleaning to extend it to the merit system.
Further, Federal employees every day have to make that decision
to almost 3 million people who have clearances but are not in
Congress. Why should Congress be the only group that does not
have the right to make a judgment call about whether a cleared
individual has a need to know? You folks deserve it more than
the other outlets.
On loopholes, the gentleman said that this bill would make
any potential disagreement potential protected whistleblowing.
This bill does not change the substance at all for what
qualifies for whistleblowing except in the irrefragable proof
area. It just means you cannot be disqualified because of
cosmetics like formality or context. Thank you, Mr. Chairman.
Senator Fitzgerald. Thank you, Mr. Devine. Mr. Kohn.
TESTIMONY OF STEPHEN M. KOHN,\1\ CHAIRMAN, BOARD OF DIRECTORS,
NATIONAL WHISTLEBLOWER CENTER
Mr. Kohn. Thank you, Chairman Fitzgerald and Senator Levin,
for holding this hearing.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Kohn with attachments appears in
the Appendix on page 132.
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I come with a different perspective than other witnesses. I
have litigated whistleblower cases for almost 20 years and I
use all of the laws, not just the Whistleblower Protection Act.
I have come to avoid the WPA at all costs. I have won cases in
reinstatements for Federal employees by avoiding the WPA. I
will give you an example why.
I put together Table No. 1 which is in the testimony and on
the overheads. These are laws, whistleblower laws that are
apples to apples to the WPA. They are administrative laws. They
are investigated by administrative agencies. They are litigated
before an administrative judge. Their final decisions are
rendered in Washington, DC by a centralized board, yet look at
the differences. In every other law there is all-circuit
review. Only the WPA does not happen. That single difference
has fundamentally undermined whistleblower protection, because
all-circuit review is in practice the peer review procedure
utilized by judges on a daily basis for their own oversight and
accountability.
When a judge under the Pipeline Act or the Superfund Act or
the Energy Reorganization Act writes a decision in the Fourth
Circuit, they know when that issue comes up in the Second
Circuit or the Third Circuit or the Tenth Circuit, other judges
will look at it and perhaps criticize them. That is the
fundamental way that the whole appellate system works. By
segregating the WPA out and only having one circuit review, you
have taken away the key oversight mechanism for the Federal
appellate judiciary, and that alone has rendered the WPA
totally inefficient and ineffective.
If you look at the other issues that are also raised by
this legislation you will also see the WPA standing out.
Critical is the administrative agency right to file an appeal.
I know now they want OSC to be able to come in and file an
appeal. Under all these laws, the administrative agency with
the authority over these laws goes into the Courts of Appeals
regularly and argues for the whistleblower if they have
determined the whistleblower had merit. That is an outcome
determinative factor.
When a government lawyer comes into a Court of Appeals and
says, this whistleblower had merit, the judges listen a lot
harder than as, in the testimony of the government, a pro se.
They brag that the Federal Circuit has nice procedures for pro
se appellants. Anyone who has clerked at a Court of Appeals
knows, they may have nice procedures for pro se, but are they
going to listen and what is the outcome issue?
Also on the critical issue of report to supervisors, the
Federal Circuit stands alone--every other court, and there were
many decisions on this, and this was fought out in the circuits
over a period of years. The Supreme Court denied cert. They did
need to take cert because it all worked out. In every other law
they protect those reports to supervisors.
So let us now go to Table No. 5. That one issue alone, do
you support the whistleblower who has the courtesy and the
respect and the common sense to follow the chain of command is
outcome determinative. I went through the last 20 reported
decisions of the U.S. Court of Appeals under the laws set forth
in Table 1 and I was actually shocked to find that in all 20
cases where the employee won it was an internal report. If
those same whistleblowers who beat the higher standards, who
showed the pretext, who showed the retaliation, who served the
public interest had their cases heard in the Federal Circuit
the outcome would have been zero.
That is what the common sense practitioner sees every day.
I spend hours figuring out how to keep my clients out of the
Federal Circuit.
I know my time is up. One last chart, Table No. 6, which
just shows--I went through the last ten decisions issued by the
Department of Labor in support of a whistleblower this year, 60
percent of those valid whistleblowers would have automatically
lost their cases in the Federal Circuit. The critical piece of
your legislation is the all-circuit review. I support all the
other aspects of it, but without all-circuit review, Federal
whistleblowers will never obtain legitimate protection. Thank
you very much.
Senator Fitzgerald. Thank you Mr. Kohn. Mr. Bransford.
TESTIMONY OF WILLIAM BRANSFORD,\1\ PARTNER, SHAW, BRANSFORD,
VEILLEUX & ROTH, P.C., ON BEHALF OF THE SENIOR EXECUTIVES
ASSOCIATION
Mr. Bransford. Thank you, Mr. Chairman. On behalf of the
Senior Executives Association, we appreciate the invitation to
testify this afternoon on our views related to S. 1358. SEA is
grateful to the Members of the Committee for their interest in
improving the law protecting whistleblowers as well as
protecting the process by which it is determined whether a
whistleblower has been subjected to prohibited reprisal.
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\1\ The prepared statement of Mr. Bransford appears in the Appendix
on page 160.
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In general, SEA is supportive of this legislation, but in
several instances we think the bill has gone too far. The first
sections of the bill greatly expand the definition of what
constitutes a protected disclosure and in our opinion these
provisions seem designed to overturn precedent from the Federal
Circuit. While SEA is generally supportive of these changes and
believes the precedent from the Federal Circuit should be
clarified, we do have concerns related to the current
Whistleblower Protection Act and what we think will be an over-
reaction to the changes in S. 1358 if the following concerns
are not also addressed.
SEA's primary concerns are that these changes to S. 1358 do
not protect the right of a manager to continue to manage an
employee who has made a bad faith disclosure. As a result,
managers potentially face a claim of whistleblower reprisal for
making virtually any adverse personnel decision that touches
upon the whistleblower no matter how justified the action may
be. SEA believes that a provision in the act providing for some
sort of penalty for filing bad faith whistleblower claims would
serve to discourage those non-legitimate claims.
In the alternative, the bill should be changed to deny
protection for disclosures made by an employee solely to avoid
accountability for the employee's misconduct or poor
performance. In other words, we are addressing that provision
in the law that talks about making motive irrelevant to the
case.
Additionally, SEA is concerned that S. 1358 could be
interpreted to expand the scope of protected disclosures to
cover the policy decisions of a manager, particularly if a
policy disagreement by the employee is voiced only to the
manager but is couched in terms of legality. We believe it
should not be the intent of S. 1358 to protect the disclosures
of employees whose disagreement with the administration's
policy objectives being carried about by their supervisor is
made only to the supervisor and then is followed by a
recalcitrant attitude being demonstrated by the employee. We
are suggesting changes that allow the MSPB to deny protection
for disclosures that relate only to agency policy decisions
which a reasonable employee should follow.
SEA supports the new fourteenth prohibited personnel
practice which prohibits referring a matter for investigation
because of any activity protected under 5 U.S.C. Sec. 2302.
However, we are concerned that managers have adequate
protection if they refer a matter for investigation for other
legitimate reasons. To correct this we propose the language in
Section 1(h) of the bill which allows a manager to avoid
liability for reprisal by proving the personnel action at issue
would have occurred anyway also be made applicable to the new
prohibitions of retaliatory investigations.
Section 1(e) of the bill establishes a new Section 7702a in
Title 5 setting forth a new process if a security clearance
decision appears motivated by whistleblower reprisal. We think
the bill may go too far by requiring this new procedure for
agency review of security clearances for all violations of
Section 2302. We propose that the new process be limited to
whistleblower reprisals in violation of 5 U.S.C.
Sec. 2302(b)(8), specifically only whistleblower reprisals
cases.
SEA supports the provisions in Section 1(g) of S. 1358
concerning attorneys fees. The current law allowing such fees
has been interpreted to require the fees for managers who
successfully defend charges be paid by the Office of Special
Counsel. Such a change in the law would allow the Office of
Special Counsel to make prosecutorial decisions without concern
for the impact of the decision on the office's budget.
SEA opposes granting an appeal directly to other Circuit
Courts of Appeals other than the Federal Circuit. SEA has
consistently supported a Federal employee's right to appeal to
the MSPB during recent debates concerning homeland security and
DOD. And where we assert our position, one of the criticisms of
the MSPB that we are given in response is that the MSPB appeal
process is too complex. The level of complexity will only
increase with the availability of multiple Circuit Courts of
Appeals being put into the new law.
Also it appears that the only reason to allow appeals to
multiple circuits is a dissatisfaction with the Federal
Circuit. If this is the case, Congress can always legislatively
overrule the Federal Circuit, as it did in 1994 and as it
appears ready to do in S. 1358. SEA contends this is preferable
to the confusing complexity that will be caused by the varying
decisions that will be issued by different Courts of Appeals.
On behalf of SEA, we thank you for your willingness to
introduce these amendments to the Whistleblower Protection Act.
Thank you.
Senator Fitzgerald. Thank you, Mr. Bransford.
Mr. Devine and Mr. Kohn, you are certainly to be commended
for your dedicated and forceful advocacy on behalf of
whistleblowers, and you have worked hard at calling attention
to this important aspect of the law. But I am wondering whether
you have ever had the opportunity to defend Federal managers or
supervisors, and whether in that way or some other way you have
ever had the opportunity to see whistleblower adjudications
through the eyes of a Federal manager accused of retaliation.
Mr. Kohn. I have only represented whistleblowers, but mark
my word, in representing whistleblowers you come to learn
supervisor's motives and what they go through extremely well,
through the depositions, through the trials, through the
settlement process. I have also represented many Federal
managers, including Senior Executive Service employees, people
with significant and large-scale managerial responsibility who
have themselves become whistleblowers and have talked to me
about issues related to management of employees.
So I understand that there is a management side, but what I
want to state is that for an employee to actually win a
whistleblower case, it is very difficult. Most lose. When you
look at the statistics between the other circuits and the
Federal Circuit and how the outcome is, it is clear that valid
whistleblowers are continuously losing in and under the WPA.
One valid whistleblower losing a case is something that is
known to many managers and many other employees.
Senator Fitzgerald. Mr. Devine.
Mr. Devine. I represent Federal managers regularly because
they blow the whistle as well, and one of the lessons we have
learned is that the higher up in the chain of command that a
whistleblower occupies, the more intensive the dissent is
liable to be because their disclosure is more threatening. We
are very sensitive to the pressures that they face. One of our
organization's first priorities is always to try to work with
the manager who is on the other side of a reprisal case to see
if we can change the dynamic from accusations and conflict to
problem solving about the disclosure. To see if they can work
together to make a difference, and then if we can mediate a
settlement. Because if there is any lesson we have learned,
there are not any winners in a win-lose scenario. But unless we
have a credible, legitimate system of rights there will not be
any disclosures either.
Senator Fitzgerald. Senator Akaka.
Senator Akaka. Thank you, Mr. Chairman. My first question
is to Mr. Bransford. Some say that clarifying the scope of
protection for whistleblowers would fuel the perception that
Federal managers cannot fire poor performers. However, I am
curious of the training managers receive for handling poor
performing employees. Can you comment on that as well as what
additional training managers would need should S. 1358 be
enacted as currently drafted?
Mr. Bransford. Senator, that is a problem that has been
repeatedly pointed to within the Federal Government, that
managers do not receive this training. This training is
available. It is offered. However, not every manager receives
it. There used to be a 40-hour or 80-hour training course for
new managers that OPM required. But there are training
opportunities available and I agree that managers should
receive training on such things as how to handle poor
performers, how to avoid retaliation claims, what the
Whistleblower Protection Act means and what a manager's
obligations are under those laws. I know Senator Voinovich has
proposed legislation specifically, I think it was in the last
Congress, requiring such training, but that has not been
enacted. But I do agree that would help.
Senator Akaka. Thank you.
Ms. Kaplan, as the former Special Counsel for 5 years you
are in a unique position to comment on how the provisions in S.
1358 would impact the Office of Special Counsel. Although many
agencies have independent litigating authority, would you
please elaborate on the need for this authority as a result of
any conflicts of interest with the Justice Department?
Ms. Kaplan. That is one of my favorite topics, or it used
to be. I felt very strongly when I was Special Counsel that it
was important for the office to have independent litigating
authority because the office was created as an independent
entity to promote the merit system and to protect
whistleblowers.
The Justice Department is the government's lawyer, but
frequently, in fact always, the Justice Department appears in
court defending the agencies accused of retaliation. So they
are really the management lawyer. My view always was that it
would have helped the development of the law for the Federal
Circuit to have been able to hear from the Office of Special
Counsel when the cases were in the Court of Appeals where most
of the law is developed. A lot of what is being complained
about today's Federal Circuit, narrowing of the law by the
Federal Circuit, in my opinion, as Mr. Kohn pointed out, if you
have a government entity in there that is arguing for a broader
interpretation of the law, the court is likely to pay greater
attention than it does when, for example, you have a pro se
petitioner, which you frequently do in the Federal Circuit.
So I think it is quite important, and I know that
frequently the Justice Department takes the position that it is
an odd situation because you might have one government agency
in the court, and then the Justice Department in the court
taking different positions. But actually that is very common in
these Federal sector cases. You have a Federal Labor Relations
Authority and a Merit Systems Protection Board that appears in
court against the Justice Department. So I think it is a really
important authority for the office to have and I would
certainly urge the Committee to carefully consider it.
Senator Akaka. Thank you. My next question is for both Mr.
Devine and Mr. Kohn. Mr. Bransford suggests that there should
be some form of penalty for bad faith whistleblowers due to the
impact on Federal managers. What is your opinion on this
proposal? Mr. Devine.
Mr. Devine. Senator, there is a penalty now for filing a
frivolous lawsuit. You spend tens of thousands of dollars at a
minimum, you have the cloud of this conflict hanging over your
head for years, and then you end up with a formal legal ruling
endorsing what you are complaining about. That is quite a
penalty. And probably the most significant answer to Mr.
Bransford's suggestion is that his idea is premature, because
right now almost all employees, or the overwhelming majority of
employees who file their cases and if they are not resolved by
settlement, end up suffering the penalty I described.
If we had a problem where there was a surge of
whistleblower rights cases that was flooding the board, or
there was a rash of questionable decisions backing
whistleblowers, then we would have a real problem. But we do
not right now. The bottom line for this statute is more than
enough deterrence for any bad faith lawsuits.
Since Congress significantly strengthened this law in 1994
the track record for whistleblowers in decisions on the merits
at the Federal Circuit is 1 in 84. Since the 1999 Lachance
decision, the track record at the full board for whistleblower
decisions is 2 in 27. Even the board's written testimony about
administrative judge decisions shows at that early level there
is only 10 percent who prevail in decisions on the merits. That
is between two and three times less than all the other
whistleblower statutes that Mr. Kohn was describing to you.
We just do not have a problem with people filing too many
suits because they think that they have got too easy a chance
to win. Our problem is they do not have a fighting chance at
all.
Senator Akaka. Mr. Kohn.
Mr. Kohn. Thank you, Senator. This issue again--and I like
the word urban legend--is an urban legend. There is another
body of law just to look at, which are the Department of Labor
whistleblower decisions and cases that are very similar to the
MSPB structurally. This issue has come up 100 times
theoretically. When you go down and read those decisions what
you find is there are very few cases--and I have read every one
of them. I have written five books on it. I have sat and read
every one of the cases. Just one or two or three that would
come to the frivolous cases.
So when it has gone up to the Secretary of Labor, be it a
Republican or a Democrat, they have consistently said, you know
what, there is no need to have any sanction and we will not
even allow it. So even though they would have had the
discretion to impose it, they decided by case law it was
against the public policy and there is really no need. So it is
just a theory.
I do want to correct my testimony, Senator Fitzgerald, one
way. Although I do not directly represent managers against
employees, since I do represent managers, often they have
problems with employees, and I do give counsel to them on how
to deal with employees, but not in court. So I just wanted to
clarify that answer. Thank you.
Senator Akaka. Thank you. My time is up.
Senator Fitzgerald. Senator Levin.
Senator Levin. Thank you, Mr. Chairman. Thank you all for
your testimony. It is invaluable.
On the question of independent litigating authority, Ms.
Kaplan, I think you testified relative to the importance of
that existing. I am wondering whether or not our other
witnesses think that the Office of Special Counsel ought to
have that authority to appeal to the circuit?
Mr. Devine. Senator Levin, we believe this is a no-brainer.
There simply is no rational basis to gag the institutional
defender of the merit system from the final decisive stages of
litigation that control the evolution of the merit system. It
is an inherent structural imbalance in the input to the courts.
We do not think this is a tough one.
Senator Levin. Mr. Kohn.
Mr. Kohn. I think it is not only not tough, it is critical.
I have been on both sides. I have been in court where the
government has been on my side at the Appeals Court. I see it
much easier. I have been against the government and I see the
skepticism. It is much harder.
But if you look at some of the decisions like Chevron, the
Supreme Court decisions where they discuss the type of
deference a Court of Appeals by law must give a responsible
administrative agency, then it becomes absolutely critical
because when you go before the Court of Appeals who is speaking
for the government and for the Whistleblower Protection Act? If
it is the Department of Justice, they are going to give Chevron
deference to interpretation to DOJ. They will naturally do
that, even if they do not write it in their decision. If the
Office of Special Counsel were permitted to go before the Court
of Appeals they would then give Chevron deference to their
interpretation. That is outcome determinative in many cases.
That is the way the courts are used to dealing with reviews of
administrative orders. Thank you.
Mr. Bransford. I have recently been party to cases where
the MSPB and the Department of Justice were on opposite sides
of the same issue in the Federal Circuit and it works just
fine. I see no reason why the Special Counsel cannot also be
given that type of authority. I personally have benefited by
the fact that the Special Counsel did not have--or at least my
clients benefited by the fact that the Special Counsel did not
have that authority because OPM made decisions not go forward
to the Federal Circuit. I agree with Ms. Kaplan completely that
if the Federal Circuit could have the benefit of the Special
Counsel's input in decisions some of these cases would be
different. I am in support of independent litigating authority.
Senator Levin. Thank you. On this irrefragable proof
standard, it was good to hear from the Department of Justice
that they do not support it. I am wondering if each of you
would comment on whether or not then it is relevant? Because
MSPB says it does not follow that so-called dicta. I am not
sure it is dicta, by the way, but it says it is not going to
follow it. Does that mean that it does not have an impact, that
opinion of the Court of Appeals in Lachance? Does it mean there
is no impact to it because MSPB says it is not going to be
followed by them? Let us start with you, Ms. Kaplan.
Ms. Kaplan. No, I do not think it means that at all.
Obviously, when you have a decision from the Court of Appeals
and there is only one Court of Appeals that hears these cases,
even if you could call it dicta--and I used to like to call it
dicta as well because I did not want to follow it--but you
still have to pay attention to even that which is called dicta
by a Court of Appeals. I think if the Justice Department
agrees, and I think this is a new position for them, that it is
inappropriate, then I think the legislation should clarify that
so we will not have the problem in the future.
Senator Levin. Mr. Devine.
Mr. Devine. I think the primary significance of the MSPB's
recent views on this is that it should make the amendment non-
controversial. As far as the Department of Justice dismissing
it as dicta, they have not quite been able to keep their
position straight. In their September letter to the Committee
this year they said that the irrefragable proof standard had
been helpful for them in winning cases. Now they are saying it
is not relevant. I think they were right the first time around.
Administrative judges have been influenced by this precedent.
It has had a significant impact on the quality of settlements.
And the decision is being quoted in other forums. It has been
contagious at the State and local level. This is an
indefensible doctrine which has to be eliminated.
We are very appreciative of the board's support for
recognizing the obvious about this standard. Unfortunately, the
Merit Board cannot overturn a Federal Circuit decision. Only
Congress can do that.
Senator Levin. Thank you. Mr. Kohn.
Mr. Kohn. Senator Levin, I would want to second the
questions and points made by Senator Akaka on this very issue.
I personally have sat in settlement negotiations in Federal
cases in which that case comes out and they say, you had better
take what we are putting out. You will lose. Don't you see this
decision here? Not just by the opposition but by good-faith
administrative judges of the MSPB saying, don't you want to do
what is best for your client? Look what is going to happen. As
long as that case is out there, it is and will be used to the
detriment of valid whistleblowers.
Senator Levin. Thank you. Mr. Bransford.
Mr. Bransford. I never thought the decision meant that the
degree of proof was overwhelming. In fact, I support the idea
that that language is dicta. I viewed Lachance vs. White as
being primarily a case about whether policy disagreements rise
to the level of whistleblowing.
Having said that, SEA would support legislation that
clarifies that, and I think either the substantial evidence or
preponderance of the evidence standard as suggested by Justice
would be appropriate. Something to make it clear that the
presumption could be overcome with some level of reasonable
evidence.
Senator Levin. My time is up. I just have one more question
if there is another round, Mr. Chairman.
Senator Fitzgerald. I have been told that we have a vote on
now and there are 12 minutes and 30 seconds left. What I would
like to do now is to thank this panel. I could give Senator
Levin--Senator Grassley has now arrived and he wishes to make a
statement.
Senator Levin. I would just ask my question for the record.
Senator Fitzgerald. Sure, go ahead and ask your question
for the record.
Senator Levin. Just for the record, I will just ask a
question about the Willis vs. Department of Agriculture case
which, as I understand it, decided if a person blows the
whistle on wrongdoing but did it within the agency chain of
command then the whistleblowing does not constitute a protected
disclosure under the law. We have addressed that a little bit
here this afternoon.
But my question is what your reaction is to that decision
and the language in our bill that is set forth, whether or not
that is the best way to address the problem raised by that
decision, if you find or if you believe that there is a problem
raised by the decision. If you could just give us that--not
here, because we are out of time, but just for the record in a
written response, I would appreciate it.
Senator Fitzgerald. Thank you very much, Senator Levin. And
thank you to all members of the panel. We appreciate your being
here. Your testimony was great. Thank you very much.
At this point I would like to call on our distinguished
colleague, Senator Grassley. Senator Grassley has been busy
with the Medicare hearings and he wanted to make sure he had a
chance to come over here and make a statement. We appreciate
his willingness to be here. I think we can allow Senator
Grassley to proceed and then we can all make our vote.
Senator Grassley is, of course, from Iowa. He is the
chairman of the Senate Committee on Finance. Senator Grassley
was elected in 1980 and he has been a leader for many years in
protecting the rights of whistleblowers. Senator Grassley was a
co-author of the Whistleblower Protection Act of 1989 as well
as the author of the whistleblower amendments to the False
Claims Act in 1986. Senator Grassley has worked tirelessly
through the legislative process to promote government
accountability by ensuring that Federal employees have the
opportunity to make whistleblower disclosers without
retaliation.
Senator Grassley, the Committee welcomes your statement at
this time, and we thank you for being here.
TESTIMONY OF HON. CHARLES GRASSLEY,\1\ A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. Thank you very much. Obviously, as you
mentioned, those very important bills we have been involved
with in the past that also included Senator Levin and Senator
Akaka on those, and I am glad to be joining you on this very
important piece of legislation at all.
---------------------------------------------------------------------------
\1\ The prepared statement of Senator Grassley appears in the
Appendix on page 167.
---------------------------------------------------------------------------
The two bills that you have referred to, already law,
largely passed to overturn a series of hostile decisions by
administrative agencies in the Federal Circuit Court of Appeals
monopoly on the statute's judicial review. I think we have come
to the conclusion that enough is enough. The Whistleblower
Protection Act has become a Trojan horse that may well be
creating more reprisal victims than it protects. The impact for
taxpayers could be to increase the number of silent observers
who passively conceal fraud, waste and abuse. That is why the
legislation that we are discussing today is so very vital to
the American taxpayer.
Our bill has five cornerstones: Providing protection for
national security whistleblowers; closing loopholes in the
scope of the whistleblower protection; restoring a realistic
test for when reprisal protection is warranted; restoring the
normal structure for judicial review; and codifying the anti-
gag statute passed as an appropriation rider for the last 14
years.
While all the provisions in this bill are critical to
proper functioning of whistleblower rights, the provisions that
protect national security whistleblowers is particularly so.
The provisions prohibit a manager from suspending, revoking, or
taking any other retaliatory action with respect to an
employee's security clearance in retaliation for
whistleblowing.
Since September 11, government agencies seemed to have
placed a greater emphasis upon secrecy and restricted
information for security reasons. There might be some reasons
why that is understandable, but with these restrictions come a
greater danger for stopping the legitimate disclosure of
wrongdoing and mismanagement, especially in public safety and
security.
Although the entire bill is important, I am having to
confine my comments today to national security. In their views'
letter dated November 10, 2003, the Department argued that
these whistleblower protections constitute ``an
unconstitutional interference with the presidential
constitutional responsibilities respecting national security
and foreign affairs.'' We have an Iowa expression that fits
that and that would be hogwash.
During the 105th Congress, the Select Committee on
Intelligence thoroughly addressed the issue in our hearing
entitled Disclosure of Classified Information to Congress. The
Senate heard testimony from Dr. Louis Fisher, a Congressional
Research Service senior specialist and also from a law
professor, Peter Raven-Hansen of George Washington. These two
highly respected scholars disagreed with the Department of
Justice's opinion when it was offered then. Professor Raven-
Hansen explained that ``the President and Congress have both
historically and as a matter of constitutional text, shared
authority over classified information from the very
beginning.''
The Department argued then as it does now, that the
President's power to regulate classified information is implied
in his command authority as Commander-in-Chief. While this may
be correct, the Justice Department fails to recognize that the
Congress has equal, and some might argue, greater authority
with regard to classified information. Nine times the
Constitution explicitly gives the Congress responsibility for
national security and foreign affairs. Additionally, according
to Professor Raven-Hansen the Congress' power over this subject
is implicit in Congress' residual authority to make all laws
necessary and proper to carry out not only their vast national
security powers but also the President's.
The Department of Justice relies heavily on the case of
Department of Navy vs. Egan. Their reliance on this case is
misguided. According to Professor Raven-Hansen, the Egan case
``stands simply for the proposition that the President has
inherent authority to regulate classified information and does
not need a statute to do so. It does not mean that he could
violate the statute if Congress passed one regulating such
matters.''
Consequently, Congress has the authority to prohibit the
retaliatory taking of a security clearance. I do not want
anyone to think that Congress is trying to force something down
the administration's throat. Last year my staff and the staffs
of Senator Levin, Akaka, and Gramm sat down with the Department
of Justice and White House to work out this provision. We even
agreed to make a number of suggested changes. But
unfortunately, at the end of the day we are not going to agree.
Nonetheless, this provision is critical to the proper
oversight of the Federal Government. In the 14 years since
Congress unanimously passed the Whistleblower Protection Act it
has been the taxpayers protection act as well. My office has
been privileged to work with public servants who exposed
indefensible waste and mismanagement at the Pentagon as well as
indefensible abuses of power at the Department of Justice.
Unfortunately, these courageous whistleblowers proceed at their
own risk when defending the public.
It has been confirmed repeatedly that whistleblowers must
prove their commitment to stamina and persistence in order to
make a difference against ingrained fraud, waste and abuse.
There should be no question about Congress' or this Senator's
commitment, as long as whistleblowers are defending the public,
we must defend credible free speech rights for genuine
whistleblowers. Congress cannot watch passively as a gaping
hole expands in the shield protecting public servants. The
taxpayers are on the other side of the shield with the
whistleblower.
Thank you very much.
Senator Fitzgerald. Senator Grassley, thank you for that
very powerful statement. Thank you for making it over here. I
know you are very busy. I would like to thank my colleagues for
being here.
We will keep the record open until Tuesday, November 18 at
5 p.m. This meeting is now adjourned. Thank you.
[Whereupon, at 5:13, p.m., the Committee was adjourned.]
A P P E N D I X
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