[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]



FIVE YEARS LATER: A REVIEW OF THE WHISTLEBLOWER PROTECTION ENHANCEMENT 
                                  ACT

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                         GOVERNMENT OPERATIONS

                                 OF THE

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            FEBRUARY 1, 2017

                               __________

                           Serial No. 115-10

                               __________

Printed for the use of the Committee on Oversight and Government Reform


         Available via the World Wide Web: http://www.fdsys.gov
                      http://www.house.gov/reform
              Committee on Oversight and Government Reform

                     Jason Chaffetz, Utah, Chairman
John J. Duncan, Jr., Tennessee       Elijah E. Cummings, Maryland, 
Darrell E. Issa, California              Ranking Minority Member
Jim Jordan, Ohio                     Carolyn B. Maloney, New York
Mark Sanford, South Carolina         Eleanor Holmes Norton, District of 
Justin Amash, Michigan                   Columbia
Paul A. Gosar, Arizona               Wm. Lacy Clay, Missouri
Scott DesJarlais, Tennessee          Stephen F. Lynch, Massachusetts
Trey Gowdy, South Carolina           Jim Cooper, Tennessee
Blake Farenthold, Texas              Gerald E. Connolly, Virginia
Virginia Foxx, North Carolina        Robin L. Kelly, Illinois
Thomas Massie, Kentucky              Brenda L. Lawrence, Michigan
Mark Meadows, North Carolina         Bonnie Watson Coleman, New Jersey
Ron DeSantis, Florida                Stacey E. Plaskett, Virgin Islands
Dennis A. Ross, Florida              Val Butler Demings, Florida
Mark Walker, North Carolina          Raja Krishnamoorthi, Illinois
Rod Blum, Iowa                       Jamie Raskin, Maryland
Jody B. Hice, Georgia                Vacancy
Steve Russell, Oklahoma              Vacancy
Glenn Grothman, Wisconsin            Vacancy
Will Hurd, Texas                     Vacancy
Gary J. Palmer, Alabama
James Comer, Kentucky
Paul Mitchell, Michigan

                   Jonathan Skladany, Staff Director
                    William McKenna, General Counsel
                    Tristan leavitt, Senior Counsel
                    Sharon Casey, Deputy Chief Clerk
                 David Rapallo, Minority Staff Director
                                 ------                                

                 Subcommittee on Government Operations

                 Mark Meadows, North Carolina, Chairman
Jody B. Hice, Georgia, Vice Chair    Gerald E. Connolly, Virginia, 
Jim Jordan, Ohio                         Ranking Minority Member
Mark Sanford, South Carolina         Carolyn B. Maloney, New York
Thomas Massie, Kentucky              Eleanor Holmes Norton, District of 
Ron DeSantis, Florida                    Columbia
Dennis A. Ross, Florida              Wm. Lacy Clay, Missouri
Rod Blum, Iowa                       Brenda L. Lawrence, Michigan
                                     Bonnie Watson Coleman, New Jersey
                            
                            
                            
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on February 1, 2017.................................     1

                               WITNESSES

Mr. Robert P. Storch, Deputy Inspector General, U.S. Department 
  of Justice, Chair, Whistleblower Ombudsman Working Group, 
  Council of the Inspectors General on Integrity and Efficiency
    Oral Statement...............................................     5
    Written Statement............................................     8
Mr. Eric Bachman, Deputy Special Counsel for Litigation and Legal 
  Affairs, Office of Special Counsel
    Oral Statement...............................................    12
    Written Statement............................................    14
Mr. Thomas M. Devine, Legal Director, Government Accountability 
  Project
    Oral Statement...............................................    25
    Written Statement............................................    27
Ms. Elizabeth Hempowicz, Policy Counsel, Project on Government 
  Oversight
    Oral Statement...............................................    50
    Written Statement............................................    52

                                APPENDIX

Letter of January 26, 2017, to White House Counsel submitted by 
  Ms. Watson Coleman.............................................    78

 
FIVE YEARS LATER: A REVIEW OF THE WHISTLEBLOWER PROTECTION ENHANCEMENT 
                                  ACT

                              ----------                              


                      Wednesday, February 1, 2017

                  House of Representatives,
             Subcommittee on Government Operations,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittee met, pursuant to call, at 2:14 p.m., in 
Room 2154, Rayburn House Office Building, Hon. Mark Meadows 
[chairman of the subcommittee] presiding.
    Present: Representatives Meadows, Hice, Jordan, DeSantis, 
Ross, Blum, Connolly, Cummings, Maloney, Clay, Lawrence, and 
Watson Coleman.
    Mr. Ross. [Presiding.] The Subcommittee on Government 
Operations will come to order. Without objection, the chair is 
authorized to declare a recess at any time.
    I will defer at this time to the ranking member of the 
subcommittee for an opening statement.
    Mr. Connolly. Thank you, Mr. Chairman. And I know Mr. 
Meadows will be here shortly.
    Federal employees who blow the whistle on waste, fraud, and 
abuse are on the front lines in the effort to ensure that our 
government functions efficiently and effectively. This 
committee has a long history of strong bipartisan support for 
those whistleblowers, and I want to thank the chairman, Mr. 
Meadows, for holding today's hearing to examine how we can 
continue to improve protections for those employees.
    Whistleblower protection is rooted in civil service 
protections. Due process and merit-based hiring and promotion 
free of discrimination, retaliation, and political influence 
form the bedrock of the very whistleblower protections we are 
concerned about and have been for a long time on this committee 
and subcommittee.
    Five years ago, the bipartisan Whistleblower Protection 
Enhancement Act of 2012 significantly strengthened the rights 
of Federal employees who disclose waste, fraud, and abuse. This 
legislation marks substantial progress, but as we discovered, 
gaps remain, and we must continue to work to protect all 
Federal employees who disclose wrongdoing.
    I look forward to hearing from our witnesses today about 
challenges to protecting those whistleblowers under current 
law, such as vacancies at the MSPB, loopholes for sensitive 
positions, retaliatory investigations, as well as proposals to 
address those challenges. In fact, tomorrow this committee, the 
Oversight and Government Reform Committee, will be marking up a 
bill that I cosponsored, H.R. 657, the Follow the Rules Act.
    Last year, a Federal court ruled that an employee who 
refused to obey an order is protected from retaliation only if 
that order violates a statute, which was never the intent of 
the law. This bill clarifies that the Whistleblower Protection 
Act, as originally intended, protects employees who refuse to 
violate a rule or a regulation. It need not be a statute.
    But legislative changes will not be enough. Congress must 
provide inspectors general and the Office of Special Counsel 
with the resources they need to investigate and enforce 
whistleblower protections under the law.
    For example, we've heard reports of egregious whistleblower 
retaliation at TSA. OSC has already taken action in some of 
those cases, but there is a backlog. Without additional 
resources, these whistleblowers won't be protected; in fact, 
one hears descriptions at TSA that sound like the Wild West. 
And a lot of cleanup has to occur there, not only 
whistleblowers but performance, measurements, and the like.
    Finally, we can't ignore the committee's oversight 
responsibility. I was alarmed to hear news reports last week, 
only days after the inauguration, that certain Federal agencies 
had issued gag orders on Federal employee communications. One 
memo issued by the acting secretary of the Department of Health 
and Human Services on the very first day in office of the new 
President states, and I quote, ``No correspondence to public 
officials, that is Members of Congress, governors and the like, 
unless specifically authorized by me or my designee shall be 
sent between now and December 3rd.''
    That language, which ostensibly prevents an employee from 
speaking with Members of Congress on his own, appears to 
violate, however, a number of Federal laws, including the 
Whistleblower Protection Enhancement Act itself. And it 
certainly sends a chilling message to our Federal employees. So 
I plan to send a letter to agency heads asking them what steps 
they're taking to ensure that their communications to employees 
comply with the law.
    I ask my colleagues across the aisle to join in these 
oversight measures. It's my hope that moving forward we can 
work in a bipartisan manner, as we always have on this subject. 
We must ensure that civil service and due process protections, 
the bedrock of the Whistleblower Protection Enhancement Act, 
remain in place and are vigorously enforced, and we must 
provide diligent oversight to verify that agencies in this 
administration are implementing the protections required under 
the law.
    And with that, I yield back.
    Welcome, Mr. Chairman.
    Mr. Meadows. [Presiding.] I thank the gentleman from 
Virginia. And I also thank the gentleman from Florida for 
gavelling us in, and certainly, thank each of you. My apologies 
for being tardy.
    The chair notes the presence of our colleagues from the 
full Committee of Oversight and Government Reform. We 
appreciate your interest in this topic and welcome your 
participation today. And so with that, I ask unanimous consent 
that all members of the Committee on Oversight and Government 
Reform be allowed to fully participate. Hearing no objection, 
so ordered.
    I'm going to go ahead in the interest of time and skip my 
opening statement and actually go with recognizing each of you, 
and let's hear from you on that.
    Mr. Connolly. Don't worry, Mr. Chairman, I pretty much--I 
spoke for both of us.
    Mr. Meadows. Oh, well, there's no doubt about that, knowing 
that we are attached to the hip. But so I would--we'll hold the 
record open for 5 legislative days for any member who would 
like to submit a written statement.
    Mr. Connolly. Mr. Chairman, could I ask just a quick 
unanimous consent request. I have a statement from National 
Treasury Employees Union for the record. I ask unanimous 
consent it be entered into the record.
    Mr. Meadows. Without objection, so ordered.
    Mr. Connolly. I thank my friend.
    Mr. Meadows. I'm pleased to welcome Mr. Robert Storch, 
deputy inspector general at the U.S. Department of Justice. 
Welcome; Mr. Eric Bachman, deputy special counsel for 
litigation and legal affairs at the U.S. Office of Special 
Counsel, welcome; Mr. Thomas Devine, legal director at the 
government accountability project; and Ms. Elizabeth Hempowicz, 
policy counsel at the project on government and oversight. 
Welcome to you, all.
    And pursuant to committee rules, we ask that all witnesses 
be sworn in before they testify.
    If you will please rise and raise your right hand. Do you 
solemnly swear or affirm that the testimony you're about to 
give will be the truth, the whole truth, and nothing but the 
truth? I do.
    Please let the record reflect that all witnesses answered 
in the affirmative.
    In order to allow time for discussion, we would appreciate 
if you would please limit your testimony to 5 minutes.
    But, Mr. Storch, before I come to you, the chair recognizes 
the ranking member from the full committee, the gentleman from 
Maryland, Mr. Cummings, for an opening statement.
    Mr. Cummings. Thank you very much, Mr. Chairman. I really 
appreciate your indulgence.
    I want that thank Chairman Meadows and Ranking Member 
Connolly for this hearing today. Whistleblower protections are 
built on the foundation of our civil service system and its due 
process protections. I look forward to the testimony today on 
how we can continue to strengthen whistleblower laws to ensure 
that all Federal employees who blow the whistle are protected.
    The topic of today's hearing is the Whistleblower 
Protection Enhancement Act of 2012, and it could not be a more 
timely subject. I was an original cosponsor of this bill, which 
significantly expanded the protections available to government 
workers who risk their jobs to disclose wrongdoing. And we have 
had a number of them to come before us over my 21 years in this 
committee.
    Unfortunately, it appears that the Trump administration in 
its first week has already violated the Whistleblower 
Protection Enhancement Act. Just last week, only days after 
President Trump's inauguration, we learned that Federal 
agencies issued gag orders on Federal employee communications, 
including their communications with Congress.
    For example, we have obtained one of these memos, which was 
issued by the new acting secretary of the Department of Health 
and Human Services. This memo tries to prohibit Federal 
employees from speaking to Members of Congress. Let me repeat 
that: The Trump administration is trying to prohibit Federal 
employees from speaking to Members of Congress. Something is 
absolutely wrong with that picture.
    On its face, this memo violates the Whistleblower 
Protection Enhancement Act because it does not include 
mandatory language, that we in Congress required, to protect 
whistleblowers who want to report waste, fraud, or abuse. We 
required, and I quote, ``any disclosure policy, form, or 
agreement,'' end of quote, to include a mandatory statement 
that it does not supersede the rights of employees, including 
specifically, quote, ``communications with Congress,'' end of 
quote. And we passed this unanimously.
    Now, my understanding is that the Trump administration 
first tried to deny that memo was sent to its employees. Then 
they reportedly sent out some kind of clarifying statement. But 
my understanding is that even the clarifying statement still 
failed to include the mandatory statement we required in the 
Whistleblower Protection Enhancement Act.
    Mr. Chairman, I ask that this committee--I ask this 
committee to seek and obtain all emails and other 
communications in the possessions of anyone at HHS relating to 
this directive, its drafting, circulation, and subsequent 
clarification, as well as any communications about prohibiting 
Federal employees from speaking to Congress.
    Will you join me in a letter to HHS and other agencies 
requesting those documents, Mr. Chairman?
    I'm just making a simple request, Mr. Chairman.
    Mr. Meadows. Would the gentleman from Maryland repeat his 
request? I'm sorry, I was otherwise engaged. That deer-in-the-
headlight look was because I had no idea what you asked.
    Mr. Cummings. I apologize. I didn't mean to catch you off 
guard, Mr. Chairman. And you have been absolutely wonderful and 
a good bipartisan member, and I really appreciate it. But I 
didn't mean to--what I said, I asked this subcommittee to seek 
and obtain all the emails, and other communications in the 
possessions of anyone at HHS, relating to a directive in the 
drafting, and circulation, and subsequent clarification, as 
well as, any communications about prohibiting Federal employees 
from speaking to Members of Congress. I think that should be a 
no-brainer for most of us.
    Mr. Meadows. The gentleman knows very well that regardless 
of who is in the White House, that the chairman believes that 
having open communication between members of the Federal 
Government and Members of Congress is something that should not 
be inhibited. And so certainly, I'm open to following up and 
making sure that we get clarification, and hopefully on this, 
making sure that the message is loud and clear, that an open 
and transparent government is not only something that this 
committee supports but the administration supports as well.
    Mr. Cummings. Thank you very much. I really appreciate it. 
And I'm almost finished, Mr. Chairman.
    This is not the only action that the Trump administration 
has taken that could chill whistleblowers. In December, 
President Trump's transition team asked for the names of 
employees at the Department of Energy who had worked on climate 
change initiatives. Another transition team request was made to 
the State Department for information regarding staffing and 
positions related to gender equity, and violence against women.
    Just 2 days ago, White House spokesman Sean Spicer 
announced that State Department employees who voiced dissent 
regarding President Trump's immigration order should, quote, 
``either get with the program or they can go,'' end of quote. 
To quote Walter Shaub, the director of the Office of Government 
Ethics, quote, ``Tone from the top matters,'' end of quote.
    I fear the President's tone will discourage whistleblowers 
from reporting waste, fraud, and abuse, exactly the opposite of 
what we hope to accomplish through the Whistleblower Protection 
Enhancement Act. There's still time for this administration to 
change.
    In a letter I wrote with my colleague, Ranking Member 
Pallone, to White House counsel Donald McGahn, we requested 
that the President take immediate action to rescind all 
policies on employee communications that do not comply with the 
Whistleblower Protection Enhancement Act.
    We also urged the President to issue an official statement 
making clear that all Federal employees have the right to 
communicate with Congress and will not be silenced or be 
retaliated against for their disclosures. I urged the President 
to adopt these recommendations immediately and send a clear 
signal to Federal employees that whistleblowers will be 
protected, as this committee has made it clear, on both sides 
of the aisle, we will protect whistleblowers to the nth degree.
    And with that, Mr. Chairman, I appreciate your indulgence, 
and I yield back.
    Mr. Meadows. I thank the gentleman. The chair is certainly 
committed to making sure that we have an open and transparent 
accountability. And I think that that serves the American 
taxpayer well regardless of party, regardless of any partisan 
outlook. And so I look forward to working with not only the 
ranking member of the full committee but the ranking member of 
the subcommittee on that.
    And with that, Mr. Storch, I recognize you for 5 minutes. I 
apologize to some of your staff who was actually here earlier 
today, and so you're recognized for 5 minutes.

                       WITNESS STATEMENTS

                 STATEMENT OF ROBERT P. STORCH

    Mr. Storch. Thank you, Mr. Chairman, Ranking Member 
Connolly, and members of the subcommittee.
    Whistleblowers perform an invaluable service when they come 
forward with what they reasonably believe to be evidence of 
wrongdoing, and they should never suffer reprisal for doing so. 
Thank you for inviting me to speak today about the important 
role that the Offices of the Inspectors General play under the 
WPEA with regard to informing whistleblowers about their rights 
and protections.
    I have served as a whistleblower ombudsperson at the DOJ 
OIG since our program was established in the summer of 2012. In 
November of that year, the WPEA was enacted requiring the 
creation of such positions in the offices of all 
presidentially-appointed, Senate-confirmed IGs, and many 
designated Federal entity IGs have such programs as well.
    We are responsible under the act for educating agency 
employees about the prohibitions on retaliation for making 
protected disclosures and informing employees who have made, or 
are contemplating making, disclosures about their rights and 
remedies against retaliation. The DOJ OIG strongly supports 
reauthorization of this important provision.
    The OIG's work in this area is entirely consistent with the 
importance of whistleblowers as reflected in the Inspector 
General Act itself, which specifically provides for OIGs to 
receive and investigate complaints provided by agency employees 
and to protect their confidentiality and prohibits the taking 
of personnel actions against them for coming to us.
    Just as OIGs are well placed within agencies to detect and 
deter waste, fraud, abuse, and misconduct, whistleblowers are 
very much at the front lines, direct witnesses to potential 
wrongdoing, and they play a critical role in bringing forward 
such information. Ensuring that whistleblowers are comfortable, 
informed, and protected is therefore of central importance to 
the OIG's core mission.
    We, and many of our fellow OIGs, carry out our role under 
the WPEA by creating and disseminating educational materials 
and conducting training programs. At DOJ OIG, we filmed an 
instructional video that is now required viewing for all DOJ 
managers and supervisors and available online for all 
employees.
    We also prepared informational fliers that have been posted 
in offices throughout the Department with contact information 
for the OIG and the Office of Special Counsel, which plays a 
central role in addressing many cases of suspected reprisal.
    We have worked with the FBI and other components to develop 
particularized training programs for their workforces, and in 
the case of the FBI, to address the specific requirements 
applicable to its employees, including, under the recently 
enacted FBI WPEA.
    We, and other OIGs, also prepared informational brochures 
for employees of department contractors, subcontractors, and 
grantees. And like many of our counterparts, we created a 
robust page on our website with a range of information 
regarding whistleblower rights and protections.
    Shortly after the passage of the WPEA, we worked through 
the Council of the Inspectors General to create a working group 
which meets quarterly to share information, discuss best 
practices on current issues, and host speakers from within an 
outside government.
    Our colleagues from OSC have been active participants, 
providing their expertise, and facilitating coordination and 
cooperation between OSC and the OIGs. And representatives of 
many other leading groups, including both GAP and POGO have met 
with us as well.
    The working group also has facilitated meetings with 
congressional members and staff to discuss these issues, and we 
partnered with OSC, OSHA, and congressional staff in organizing 
last summer's successful celebration here at the Capitol of 
National Whistleblower Appreciation Day.
    As Congress considers reauthorization of the ombuds 
provision, I'd close by mentioning a couple of areas that have 
surfaced in the working group: First, the work we do generally 
does not include much of what is often done by traditional 
ombudsmen. And some of their activities might even be seen as 
inconsistent with our independent position as OIGs. This may 
result in some confusion about our roles, and I would be 
pleased to work with the committee to discuss possible ways to 
address this.
    Second, many of the working group discussions have 
reflected what we found at DOJ; namely, that both our 
educational activities and the underlying whistleblower 
reprisal investigations are resource intensive. And our ability 
to do this, along with our other responsibilities, is impacted 
by the limitations on our available staffing and resources. Our 
work in this area is only expected to increase as whistleblower 
rights and protections are expanded and made permanent and more 
educational activities take place.
    I'd be pleased to work with you and your staffs on these 
issues. Thank you for the opportunity to speak with you today. 
And I'd be happy to answer any questions you might have. Thank 
you.
    [Prepared statement of Mr. Storch follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Meadows. Thank you so much.
    Mr. Bachman, you're recognized for 5 minutes.


                   STATEMENT OF ERIC BACHMAN

    Mr. Bachman. Thank you.
    Good afternoon Chairman Meadows, Ranking Member Connolly, 
and members of the subcommittee.
    Thank you for the opportunity to testify today about the 
U.S. Office of Special Counsel and our enforcement of the 
Whistleblower Protection Enhancement Act, the WPEA.
    My testimony today will discuss the key parts of the WPEA, 
how its new safeguards have helped OSC protect more 
whistleblowers than ever, and suggestions on how to make the 
law more effective.
    OSC is an independent agency, and one of our primary 
missions is to protect employees from whistleblower 
retaliation. Since the WPEA was enacted nearly 5 years ago, the 
number of whistleblower retaliation complaints filed with our 
office has increased by 15 percent, and we've helped a record 
number of whistleblowers.
    For example, OSC has increased the number of favorable 
outcomes from whistleblowers by 150 percent; we've increased 
the disciplinary actions against retaliators by 117 percent; 
and we've taken further steps to strengthen the whistleblower 
law through our amicus briefs and our outreach programs. These 
protections are important because whistleblowers are a vital 
tool in rooting out waste, fraud, and abuse in the government 
and have helped saved hundreds of millions of taxpayer dollars.
    And we want to thank Congress and this committee for its 
forceful, bipartisan support of Federal whistleblowers in OSC. 
In particular, we thank Representative Blum for his sponsorship 
of H.R. 69 to reauthorize OSC, which passed the House earlier 
this year. This committee's enthusiastic backing has made our 
office far more effective in helping whistleblowers, and we 
look forward to continuing this productive relationship in the 
new Congress and beyond.
    The WPEA is landmark legislation, and it has unmistakably 
helped Federal whistleblowers. The WPEA provided many new 
protections, including, among other things, authorizing OSC to 
help shape the whistleblower law by filing friend-of-the-court 
briefs, bolstering the remedies that are available to 
whistleblowers who win their retaliation claims and granting 
full whistleblower protections to all TSA employees.
    And for every new safeguard in the WPEA, OSC has succeeded 
in securing victories for whistleblowers. For example, we used 
our new amicus authority to file a brief with the Supreme Court 
in the Department of Homeland Security vs. MacLean case. And in 
a seven-two decision, the Supreme Court agreed with our 
arguments on behalf of the whistleblower. And since 2012, OSC 
has received and investigated about 243 whistleblower 
retaliation cases from TSA employees, which we would not have 
been able to investigate prior to the WPEA.
    Another new element of the WPEA is this anti-gag order 
provision, which ensures that whistleblower protections 
supersede any agency nondisclosure agreements or policies. It 
requires that any nondisclosure agreement or policy include 
language that clearly states that the employee may still blow 
the whistle even if they have signed the agreement or are 
subject to the policy. OSC has vigorously enforced this anti-
gag provision, and since 2013, we've obtained nearly three 
dozen corrective actions and also issued specific guidance to 
agencies on this important topic.
    The WPEA also contains two valuable provisions that are set 
to expire at the end of this year: The whistleblower protection 
ombudsman program that Mr. Storch discussed, and the all 
circuit appellate review program. OSC strongly recommends that 
both of these programs be made permanent.
    Finally, although the WPEA has undeniably strengthened 
protections for Federal whistleblowers, further enhancements 
should be considered. For example, the WPEA sets a higher 
evidentiary burden for disclosures that are made in the normal 
course of duties. Congress intended this heightened burden to 
apply to jobs like investigators and auditors, where 
investigating reporting wrongdoing is an everyday job function.
    But recent court decisions have applied this heightened 
burden to a much broader universe of jobs, jobs like teachers 
and purchasing agents. And this risks making it harder for many 
Federal employees to be able to prove their whistleblower 
retaliation claims. So we recommend that Congress clarify that 
this additional burden applies only to that small subset of 
Federal workers who investigate and report wrongdoing as a core 
job function.
    We greatly appreciate the committee's robust support for 
office and for Federal whistleblowers. I thank you for the 
opportunity to testify, and I'm happy to answer your questions.
    [Prepared statement of Mr. Bachman follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Meadows. Thank you, Mr. Bachman.
    Mr. Devine.


                 STATEMENT OF THOMAS M. DEVINE

    Mr. Devine. Thank you. This hearing is significant because 
action is essential to address newly emerging threats in 
loopholes that obstruct or circumvent the WPEA's mandate, and 
because 2017 will be the year of truth for unfinished business 
on the due process structure to enforce the law's rights. If 
Congress acts effectively, after 39 years whistleblowers will 
have legal rights on which they can rely, a genuine metal 
shield against retaliation.
    2016 continued a pattern since the WPEA's passage. The last 
5 years have been the best and worst of times for 
whistleblowers. My written testimony summarizes encouraging 
news about closing the loopholes, Supreme Court support for the 
law, the Office of Special Counsel's effective track record, 
and unprecedented impact from whistleblowers in making a 
difference.
    To illustrate the latter, in Supreme Court oral arguments 
for Air Marshal Robert MacLean, whose disclosures stopped TSA 
from going AWOL during a more ambitious rerun of 9/11, we 
argued that Mr. MacLean acted to better protect the Nation. 
Justice Scalia interjected, ``And he was successful.'' It's no 
wonder that whistleblowers are receiving more respect than ever 
before.
    Unfortunately, it is the sad truth that the Office of 
Special Counsel's track record of 5.2 percent corrective action 
against retaliation reflects the best option that exists. As a 
rule, employee rights under the Whistleblower Protection Act 
continue to be a mirage when agencies violate them, and 
whistleblowing is more dangerous than ever before.
    Consider four primary causes: The first is administrative 
agency enforcement. Despite best efforts, the special counsel 
is hampered by resource-based tradeoffs that result in almost 
no litigation and excessive delays that unemployed 
whistleblowers cannot afford and that undermine the relevance 
of its decisions on current events.
    Special counsel can never be more than anecdotal source of 
justice that makes impressive points. To consistently achieve 
the X purpose, no remedial agency can substitute for due 
process. And unfortunately, whistleblowers are not getting it 
at the Merit Systems Protection Board.
    Board members have been good-faith, responsible stewards of 
the act, but the hearings are conducted by administrative 
judges who are openly hostile to the act, ruling against 
whistleblowers from 95 to 98 percent of the decisions on the 
merits. When you combine that with OSC's 5 percent corrective 
action rate, whistleblowers do not have more than a token 
chance of justice under this law.
    Consider the ordeal of Kim Farrington, who is an FAA 
inspector, fired after she challenged the Agency's failure to 
assure proper training of flight attendants. Her case has been 
pending for 7 years. In 2012, the board overturned a hostile 
administrative judge decision but remanded rather than 
reversing. The AJ then held a hearing but never issued a 
decision. When the AJ retired, a new judge was appointed, who 
held another hearing in December 2013, but again did not rule.
    In May 2016, Ms. Farrington protested the delays to the 
full board and the administrative judge promptly responded with 
a June decision that rejected all of her claims without even 
referencing the hearing audiotape. There was no transcript 
because the court reporter had died during the delays. Her case 
is again on appeal, but due to vacancies, the board cannot 
issue decisions and there is no end in sight.
    The lack of credible due process at the MSPB is the 
Whistleblower Protection Act's Achilles heel. Shifting tactics 
have made the law less effective. Because it is more difficult 
to fire employees, agencies are opening more retaliatory 
investigations with criminal prosecution referrals. And 
currently, there is no defense against this even uglier form of 
harassment.
    Then there's the sensitive jobs loophole, an all-
encompassing national security loophole that will subsume the 
entire merits system if Congress does not act.
    And finally, there is lack of acceptance. Mr. MacLean's 
experience is a microcosm. Immediately after his victory, TSA 
lagged 4 months and then assigned him to air marshal missions 
on flights to the Mideast despite intelligence that ISIL was 
combing the internet to find the identities of undercover air 
marshals, and he was the most visible air marshal in history.
    After the OSC intervened, the Agency reassigned him to an 
empty room with no duties for 4 months. It refused to consider 
him even routine promotions, forcing him into bankruptcy. 
Although he continues to make impressive disclosures on 
security breaches, they will not assign him any duties due to 
lack of seniority caused by his own illegal termination. It 
held up processing his security clearance for 10 months, 
although required to forward it within 14 days. He has still 
lost by winning due to the poor attitudes.
    Mr. Chairman, my written testimony has a full menu of 
suggestions for how we can deal with these challenges. Thank 
you.
    [Prepared statement of Mr. Devine follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Meadows. Mr. Devine, thank you so much for your 
passionate and articulate testimony. And I can assure you that 
we will be following up in earnest. Some of these things are 
things that we were aware of; some, obviously not, but working 
with OSC in making sure that their success rate is greater and 
not laborious is something that this committee is committed to. 
But thank you so much.
    Ms. Hempowicz.


                STATEMENT OF ELIZABETH HEMPOWICZ

    Ms. Hempowicz. Ranking Member Cummings, Subcommittee 
Chairman Meadows, and Ranking Member Connolly, and members of 
the Subcommittee on Government Operations, thank you for 
inviting me to testify today and for your dedication to 
ensuring proper implementation of whistleblower protections.
    Five years ago, Congress passed the Whistleblower 
Protection Enhancement Act, closing many loopholes and 
upgrading protections for Federal workers who blow the whistle 
on waste, fraud, abuse, and illegality. The WPEA codified an 
anti-gag statute championed by Senate Judiciary Committee 
Chairman Senator Chuck Grassley that requires agencies to issue 
a statement notifying employees that statutory rights to 
communicate with Congress and whistleblower protections 
supersede agency restrictions on disclosures or communications.
    In addition, the WPEA clarified that any whistleblower 
disclosure may be protected, including when a whistleblower 
makes a reasonable disclosure to his or her supervisor even if 
that supervisor is involved in the wrongdoing. Similarly, it 
clarified that a whistleblower's intent in making a disclosure 
should not be factored in when determining whether he or she 
made a protected disclosure. These changes provided essential 
channels to report through and prioritized disclosing 
wrongdoing as being the primary public interest.
    Finally, the law created a pilot program for Federal 
employees who appeal a judgment of the Merit Systems Protection 
Board to file their appeal in any U.S. Court of Appeals with 
jurisdiction. This committee led the charge in extending that 
pilot program 2 years ago and should now work to make that 
right permanent.
    While the positive impact of this law is significant, its 
enforcement has not been without issue. A report released by 
Senator Grassley, 2 years after the passage of the WPEA, 
revealed that only one agency out of the 15 studied was fully 
compliant with the anti-gag provision of the law. This 
important provision has been called into question as recently 
as last week when several agencies ordered staff to cease or 
limit external communications.
    As members of this committee have recognized, these 
directives may violate the law. Efforts to prevent government 
employees from communicating with Congress and the public could 
represent a serious threat to public health and safety, and 
continued congressional oversight is necessary to make sure 
that this important provision continues to be implemented 
properly.
    Despite broad protection laws like the WPA and the WPEA, 
the totality of whistleblower protection laws include a 
patchwork of protections dependent on where a whistleblower 
works in the government and in what capacity. The WPEA afforded 
new and necessary protections to many Federal employees when it 
was enacted, but it excluded intelligence community contractors 
despite having a proven track record of success with previous 
protections.
    Although IC contractor whistleblowers have some protection 
under presidential policy directive 19, it is too narrow to be 
considered comprehensive and can be revoked at the President's 
discretion. Whistleblowers must have safe channels to report 
abuses of power that betray the public trust, and Congress has 
a responsibility to fill these accountability loopholes. The 
next round of whistleblower protection legislation must include 
protections for intelligence community contractors.
    Congress should also consider requiring mandatory 
punishment against supervisors who retaliate against 
whistleblowers. Without mandatory punishment for those who 
retaliate, there is no substantial deterrence to violating 
these laws.
    Any legislation should carefully balance due process rights 
of employees accused of retaliatory actions with the proper 
chance to present a defense and appeal a final decision. 
Recently passed legislation creates a minimum 12-day unpaid 
suspension when a complaint that a supervisor has retaliated 
against a whistleblower is substantiated. This should serve as 
a model.
    As you mentioned, Ranking Member Connolly, it is also 
important to update the law to undue a recent curtailing of 
whistleblower protections in cases where Federal employees 
refuse to obey an order that would break a rule or regulation 
created by the agency.
    Another area of concern is the implementation of former 
President Obama's insider threat program. This program was 
created in order to ensure responsible sharing and safeguarding 
of classified information. It includes a provision prohibiting 
the use of the program to identify or prevent lawful 
whistleblower disclosures. Despite this, we've repeatedly seen 
government training materials conflate whistleblowers like 
Thomas Drake with terrorists like the Fort Hood and Navy Yard 
killers.
    The Office of the Director of National Intelligence has 
assured POGO that these errors have been corrected and its 
general counsel's office has fastidiously implemented 
whistleblower protection training for the intelligence 
community. However, increased congressional oversight may be 
helpful to make sure this program isn't used improperly.
    Additionally, the House should create a whistleblower 
ombudsman office to train congressional staff on working with 
whistleblowers and to provide assistance and advice to staff on 
working with whistleblowers.
    Many of these issues that I have raised in my testimony 
hinge on congressional oversight. Passing stronger laws is a 
necessary first step, but continued congressional oversight 
ensures that whistleblowers are championed and not punished. I 
look forward to your questions, and thank you again for holding 
this important hearing.
    [Prepared statement of Ms. Hempowicz follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Meadows. Thank you so much for your testimony.
    I'll now recognize the gentleman from Florida, Mr. Ross, 
for 5 minutes.
    Mr. Ross. Thank you, Chairman.
    And I thank the panel for being here very much.
    You know, as we talk about the WPEA, it leads one to 
believe that it should have a dual purpose: First being a 
shield, a shield to protect those who have seen the wrongdoings 
or the corruption and allow them the opportunities and, quite 
frankly, the incentives to report them; and then it should be a 
sword as well. It should be a sword to be able to go in and cut 
off the wrongdoing and enforce what needs to be done.
    But it seems, through some of this testimony, that the 
sword has been turned back and it has been turned back on the 
whistleblower. And so my first question is to Mr. Storch in 
regards to retaliatory investigations. It said that for every 
one whistleblower complaint that in most cases there's a 
counter complaint against them by the person whom the complaint 
is lodged.
    So now, is this something that is routine for you or any 
other inspectors general to investigate as to the source or the 
circumstances surrounding the complaint to see if it may be a 
counter complaint?
    Mr. Storch. Thank you very much for the question. I mean, 
it raises important issues. Obviously, as inspectors general, 
we receive information in our offices from employees throughout 
our departments that we oversee, right. And one of the things 
we always take into account is the source of the information, 
and we evaluate that as we evaluate the information.
    People may have lots of reasons they come forward. That 
doesn't in any way invalidate the information that they provide 
and, in fact, it can be very important information for us to 
have in order to conduct our oversight functions.
    So, the primary thing we want to do is encourage people to 
be able to come forward and to be comfortable coming forward 
knowing that they'll be protected under the WPEA in doing so.
    Mr. Ross. But will they be protected? I mean, will they 
really be protected? In other words, they make themselves 
subject of a counter complaint if they're not careful. And I 
think that's the protection I'm trying to make sure that we can 
nip in the bud, either through cross-referencing in the 
complaints or maybe there's a logarithm that can be worked out 
to find out that.
    Mr. Storch. Right. No, it's a difficult question, and I 
think our colleagues from OSC referred to it in their prepared 
statements; that there certainly are competing interests here 
because we want to encourage legitimate investigations, but we 
don't want to have investigations be used to in any way deter 
people from coming forward with information.
    Mr. Ross. I agree.
    Mr. Storch. And so the question is how do you strike that 
balance----
    Mr. Ross. And protect due process.
    Mr. Storch. --in a way that protects whistleblowers and 
encourages them to come forward. And we certainly would be very 
happy to continue to work with OSC, with you, and the committee 
on this.
    Mr. Ross. And that leads me to my next question, Mr. 
Bachman, with regard to the OSC. How important is subpoena 
power?
    Mr. Bachman. Thank you for the question. The subpoena power 
for us, we currently have under an OPM rule----
    Mr. Ross. For documents or for testimony?
    Mr. Bachman. For both.
    Mr. Ross. Okay.
    Mr. Bachman. But the issue that we have, it's really a 
related issue, is our access to information where we think it 
would be extremely helpful for Congress to clarify, give us 
statutory direct access to all relevant information and 
documents and witnesses and not be subject to perhaps an 
incorrect assertion of attorney/client privilege by the Agency, 
similar to what the IGs currently have. So having that ability 
to know what the Agency knows so that we can investigate 
whether wrongdoing occurred is essential.
    Mr. Ross. So if somebody files an objection to a subpoena, 
what's the court of competent jurisdiction there? Is it an ALJ? 
Is it--who decides whether there should be enforcement? Do they 
have to come--where do they go?
    Mr. Bachman. It's unfortunately a cumbersome process.
    Mr. Ross. Yeah.
    Mr. Bachman. We need to go to the MSPB and ask----
    Mr. Ross. That doesn't have a quorum now----
    Mr. Bachman. Exactly, yes.
    Mr. Ross. --which Mr. Devine pointed out is problematic.
    Mr. Bachman. So they would not be able to move forward with 
that. If there was a quorum, the MSPB, not OSC, would make the 
decision of whether or not to attempt to enforce that subpoena.
    Mr. Ross. And then that subpoena, if still objected to, 
would have to be enforced eventually----
    Mr. Bachman. In district courts, yes.
    Mr. Ross. --in district courts. Okay.
    Lastly, Mr. Bachman, there has been some positives with the 
WPEA, but one of the things has been its lack of enforcement 
where I really think the sword should be. Can you articulate in 
any way what additional measures of enforcement may be 
necessary in order to make it really effective.
    Because as one who is a student of the law, you know, 
deterrents have an impact on future behavior and future 
performance, especially if somebody decides that they don't 
want to have that repercussions against them if they know what 
the law will be and how it is enforced. Any suggestions as to 
further enforcement or additional enforcements of the WPEA?
    Mr. Bachman. Yes. We couldn't agree more that disciplinary 
actions play an important deterrence role in the Federal 
Government. They have ripple effect. They show that managers 
can be held accountable.
    At OSC though we have made a decision though that we need 
to prioritize getting the whistleblower back on their feet and 
back on their job and protect them first----
    Mr. Ross. Yes.
    Mr. Bachman. --to the extent we can though. I think we are 
proud of the fact that we've been able to increase the number 
of disciplinary actions by 117 percent since the WPEA was 
passed. Of course with additional resources, I think we can do 
even better than that.
    Mr. Ross. Look forward to working with you on that.
    And I yield back. Thank you.
    Mr. Meadows. I thank the gentleman.
    The chair recognizes the gentleman from Virginia, the 
ranking member, Mr. Connolly.
    Mr. Connolly. I thank my friend, and welcome, again, to our 
panelists.
    Mr. Storch, do you recall that back in 1988, a long time 
ago, then-Senator Chuck Grassley--who is still with us in the 
Senate, been there a long time--he had something called the 
anti-gag rule. Can you describe that to us if you're familiar 
with it.
    Mr. Storch. I'm not familiar with the rule.
    Mr. Connolly. Anyone familiar with it? Yes, Mr. Devine.
    Mr. Meadows. If you'll hit your mic, please.
    Mr. Devine. Thank you. It was instituted in December 1988 
to thwart a nondisclosure policy being ordered throughout the 
Federal Government that prevented employees from disclosing 
classifiable information without prior approval.
    And since classifiable is designed as any information that 
could or should have been classified, it created basically a 
backdoor official secret set. The restrictions on funding to 
implement or enforce that were passed unanimously without 
exception through the time of the WPEA when Congress codified 
both rights, sir.
    Mr. Connolly. And it was in some ways designed, was it 
not--well, that anti-gag rule, even writ larger, it was 
ultimately incorporated into the Whistleblower Protection Act. 
Is that correct?
    Mr. Devine. Yes, sir.
    Mr. Connolly. And so let me ask you this: We have the 
acting secretary of the Department of Health and Human Services 
on the very first day of the new administration writing, quote, 
``No correspondence to public officials, for example, Members 
of Congress and governors''--his example, not mine--``unless 
specifically authorized by me or my designee shall be sent 
between now and February 3rd.'' How does that comport with the 
anti-gag provision of the Whistleblower Protection Act?
    Mr. Devine. Well, the official who issued the order said, 
new team, new rules. But those new rules cancel the rule of 
law, Congressman. It violates three provisions in the 
Whistleblower Protection Enhancement Act. It violates two 
appropriations writers. It violates the Lloyd LaFollette Act of 
1912, and by the way, the First Amendment.
    Mr. Connolly. Oh. Other than that, it's just helpful 
guidance? Yeah, okay.
    Anyone else on the panel want to comment on that? Mr. 
Storch. Mr. Devine has just said, what I read from a member of 
the new administration, violates the law, a number of laws, and 
the Constitution itself in a number of respects.
    Mr. Storch. Yes, sir.
    Mr. Connolly. You're from the Department of Justice. Would 
you concur?
    Mr. Storch. I was a prosecutor at the time of Senator 
Grassley's rule that you referred to, but I have been with the 
Office of the Inspector General and acting as the ombuds for 
our OIG for the last 4 and-a-half years. And I'm very familiar 
with the provision in the WPEA that requires that appropriate 
language be put in place in any policy or agreement that would 
attempt to deter communications by whistleblowers, 
communications with Congress. And the law seems quite clear in 
requiring that. And anything that doesn't do that, that falls 
within those parameters, would be in violation of that 
provision of the WPEA.
    Mr. Connolly. You would concur, Ms. Hempowicz?
    Ms. Hempowicz. I would, and I would even go a little bit 
further. Even if these statements or these guidance documents 
are reissued with the disclaimer that they're required to have, 
they've already had a chilling effect. So that, you know, I 
would encourage this committee to continue its rigorous 
oversight and keep watching.
    Mr. Connolly. I mean, what could go wrong with the chilling 
effect?
    Ms. Hempowicz. Well, if you don't have whistleblowers 
feeling like they can come forward through protected channels, 
you'll see more and more increased leaks to the media, to the 
press. And I think you always want the strongest whistleblower 
protections in place because you want to incentivize people 
within an agency to go through those proper channels.
    And they're not going to if they're not going to be safe 
from reprisal, but they're also not going to go through those 
channels if they don't find that they're meaningful channels, 
if they don't see that the complaints that they're making to--
through those proper channels are being taken seriously and 
addressed within the agency.
    Mr. Connolly. And one might note that this committee 
historically has been the recipient of whistleblower 
information that has often led to useful legislation and 
sunshine hearings that, you know, spotlight an issue that 
otherwise wouldn't get covered.
    So the chilling effect in deterring people or discouraging 
people from providing that information to elected Members of 
Congress actually can really preclude the ability to reform and 
fix problems we identify because we're not identifying them.
    I yield back.
    Mr. Meadows. I thank the gentleman.
    The chair recognizes the gentleman from Iowa, Mr. Blum, for 
5 minutes.
    Mr. Blum. Thank you, Mr. Chairman.
    Thank you to the panel for being here today.
    My questions are primarily for Mr. Storch or Mr. Bachman. 
How many whistleblowers have there been over the last 2 years, 
the last session of Congress?
    Mr. Bachman. Thank you for the question. I can tell you, 
for OSC, this past year we received a total of 6,000 complaints 
across all of our program areas. Of those 6,000, 2,000 alleged 
that they had been retaliated against for blowing the whistle, 
and that's consistent over the last 2 years.
    Mr. Blum. So a third of them.
    Mr. Bachman. So let's say, 4,000, about 4,000 from our 
office.
    Mr. Blum. Is that trend up or down, number of 
whistleblowers that we are aware of?
    Mr. Bachman. That trend is up.
    Mr. Blum. And why do you think so?
    Mr. Bachman. I think there's several different factors. I 
think, number one is the enhanced outreach and education that 
OSC, the IGs, the ombudsmen have been doing throughout the 
government. People are----
    Mr. Blum. Ombudsperson.
    Mr. Bachman. Excuse me, yes. Thank you for that.
    Mr. Blum. I do the same thing.
    Mr. Bachman. Although that is what is in the law. But I 
think more and more agencies and employees are better informed 
about their rights and where to go to make these complaints. I 
think there has been increased attention through Congress and 
the media on these rights, and I think it's encouraged more 
people to come forward with complaints.
    Mr. Blum. Of these cases, how many were threatened by 
management, either explicitly or implicitly?
    Mr. Bachman. Of the whistleblower retaliation cases we get, 
most--I mean, I would say almost all of them are----
    Mr. Blum. So the 2,000 of the 6,000?
    Mr. Bachman. Yes, are saying that they have been subjected 
to some sort of personnel action.
    Mr. Blum. And then how many positive outcomes? And would 
you define a positive outcome.
    Mr. Bachman. Positive outcome covers a range of issues. It 
could be us settling the case, or helping to settle the case 
between the whistleblower and the employee where they get their 
job back, they get some sort of damages for backpay if they 
were out of their job, maybe they get a suspension rescinded, 
or were able to temporarily halt their termination while we 
investigate it. So those are the types of things that we'd say 
are a favorable outcome.
    For whistleblowers, over the last couple of years coming to 
our office, it's ranged about 200 favorable outcomes a year for 
whistleblowers coming to our office.
    Mr. Blum. Do you need more staff?
    Mr. Bachman. Absolutely, we could use more resources. We 
are stretched to capacity. Our folks are doing a fantastic job. 
They're achieving record levels of successes, but they're also 
carrying caseloads that are two or three times as high as they 
normally would be.
    Mr. Blum. I'm from the private sector, from Iowa, and 
there's a perception there, as across the Nation, I think, that 
the Federal Government is bloated, that the Federal employees 
are overpaid, and most importantly, it's next to impossible to 
terminate a Federal employee. And I know it's not particularly 
your area of expertise, but what we're talking about here's 
accountability.
    So I'd like to ask, in the context of whistleblowers and 
retaliation, what happens to the manager, the supervisor who 
threatened the retaliation? What happens? Because, you know, 
often people sit here and they've done things that are, you 
know, it's waste, fraud, and abuse, and I ask, did you get a 
bonus? The answer is yes. Did you get promotion? Half the time 
it's yes. Worst case is they get reassigned.
    Where is the accountability in Federal Government? What 
happens to supervisors who threaten retaliation against a 
whistleblower? What happens?
    Mr. Bachman. That's an excellent question, and we couldn't 
agree more about the importance of the deterrence factor when 
it comes to disciplinary actions. As I mentioned, we have 
increased our rate of achieving those by over 100 percent, 
but----
    Mr. Blum. What kind of number are we talking about?
    Mr. Bachman. We're talking going from 23, in the years 
prior to the WPEA, to 50 over the last 4 years. But in addition 
to that----
    Mr. Blum. So 50 out of 2,000?
    Mr. Bachman. Fifty out of the 2,000, although I do want to 
clarify one issue on that denominator of 2,000. When we're 
talking about that, that 2,000 number includes a number of 
cases, for example, 15 percent, that are actually 
discrimination claims which we defer to the agency process on 
that. So we don't handle those.
    Another 12 percent or so we don't have jurisdiction over, 
and then another portion of that just don't meet the statutory 
limits.
    Mr. Blum. How can we increase that? It's such a serious 
thing for a supervisor to retaliate against an employee who is 
trying to do well, trying to do something good for the 
taxpayers. We need to increase that number.
    Mr. Bachman. Excuse me, I'm sorry. Resources absolutely 
would help. But I do want to add that there are other ways that 
we help to get discipline imposed, for example, through our 
disclosure process. With the VA, over the last couple of years, 
the VA alone has disciplined about 40 or actually more than 40 
employees who were implicated in wrongdoing that was brought to 
light by whistleblowers coming to OSC and us referring that 
case to the VA. They subsequently disciplined those employees.
    So it doesn't always have to be a formal investigation into 
whistleblower retaliation that leads to this accountability. It 
can happen through our other program areas as well, and it 
does.
    Mr. Blum. Once again, thank you to the panel.
    And Mr. Chairman, I yield back the time I do not have.
    Mr. Meadows. I thank the gentleman from Iowa.
    The chair recognizes the gentlewoman from New Jersey, Mrs. 
Watson Coleman.
    Mrs. Watson Coleman. Thank you, Mr. Chairman.
    And thank you all for coming and for your testimony.
    We heard reports last week that multiple Federal agencies 
issued gag orders on Federal employee communications. And one 
of the memos obtained by the committee appears to specifically 
prohibit employees from speaking to Congress, in violation of 
the Whistleblower Protection Enhancement Act.
    And now White House press secretary Sean Spicer has 
declared that State Department employees who utilize the 
Department's dissent channel to object to the President's 
executive order on immigration should, quote, ``Get with the 
program or they can go,'' closed quote.
    Mr. Devine, do you believe that the State Department's 
dissent channel is a means by which the State Department 
employees can blow the whistle?
    Mr. Devine. Yes, ma'am, and indeed, it's the type of 
channel that the posters on the wall of every office in the 
government direct employees to bring their concerns if they 
want to blow the whistle. This is the proper channels that 
you're supposed to use if you're a public servant who's 
following in respecting the Code of Ethics.
    It is incompatible with the Whistleblower Protection Act to 
threaten people with termination or ask them to leave because 
they're doing what the Code of Ethics says they're supposed to.
    Mrs. Watson Coleman. Thank you. I think you answered my 
second question.
    So is it your understanding that communication in this 
manner through this dissent channel should be protected?
    Mr. Devine. There could be no credible disagreement that 
under the laws as it's written, that's legally protected 
speech, and there should be discipline against those who try to 
cancel the flow of information to Congress.
    To respond to the earlier question, one way to achieve some 
deterrence would be empowering judges, whether they're 
administrative or article III court judges, to order discipline 
as part of the relief when they find a violation of the 
Whistleblower Protection Act. They could do it on the same 
record instead of expecting the OSC to do it for them.
    Mrs. Watson Coleman. Would you say that if indeed the White 
House press secretary threatened those employees by saying 
that, quote, ``Get with the program or they can go,'' that that 
sounds like a potential violation of the Whistleblower 
Protection Act's prohibition on taking or threatening to take 
retribution against whistleblowers?
    Mr. Devine. Well, Mr. Spicer didn't have the--he's not 
eligible to violate the Whistleblower Protection Act because he 
can't recommend or take a personnel action. But he wasn't 
speaking for himself.
    Mrs. Watson Coleman. Absolutely.
    Mr. Devine. So the people behind that policy were violating 
the law.
    Mrs. Watson Coleman. So I'm glad to hear that and sorry to 
have to deal with that issue, because I certainly am alarmed by 
the tone that the President Trump has said in his first few 
days in office. But he certainly does have the time to make 
changes that would create a better tone.
    I'd like to enter into the record a letter dated January 
26, 2017, from Ranking Member Cummings and Ranking Member 
Pallone to the White House counsel, Donald McGahn. And I have 
it right here.
    Mr. Meadows. Without objection.
    Mrs. Watson Coleman. Thank you.
    This letter recommends that the President immediately 
rescind all policies on employees' communications that do not 
comply with the Whistleblower Protection Enhancement Act. Mr. 
Bachman, do you agree with this communication?
    Mr. Bachman. Thank you for the question. And I can't speak 
directly on this issue because I don't want to prejudge a case 
or an investigation that may come before my office, but what I 
can do is speak more broadly about the idea that everybody 
shares the goal of cutting waste, fraud, and abuse in our 
government.
    But in order to do that, you have got to encourage 
whistleblowers to come forward. They're the ones who know about 
that waste, fraud, and abuse. And tone at the top really 
matters in these situations. And that's what's going to 
encourage and give employees that comfort that if they come 
forward they're not going to be retaliated against.
    So on a broader level, we have two recommendations here: 
The first is that to cure any potential chilling effect on 
whistleblowing that nondisclosure agreements or policies may 
have had, agency leadership, once they're installed, or if 
they're already installed, should make it very clear in writing 
to all their employees that any nondisclosure agreements or 
policies that went out do not wipe out whistleblower 
protection.
    Mrs. Watson Coleman. Thank you.
    Just really quite briefly, do you believe that it is 
important that the President of the United States set the tone 
by stating affirmatively that there is whistleblower 
protection; that individuals do have the right to speak to 
Congressmembers; and that, there is nothing that this 
administration will do that will place any daunting upon 
whistleblower protection? That's a yes or no, and if you would 
each just give me a yes or no on that, I'd appreciate it.
    And thank you, Mr. Chairman.
    Mr. Meadows. Yes. The gentlewoman's time has expired, but 
please, you can give a brief answer, each one of you.
    Mr. Bachman. Yes, tone at the top is critical, and support 
of whistleblowers is paramount.
    Mr. Storch. I agree.
    Mr. Devine. Yes, if the President wants whistleblowers to 
help him drain the swamp, he can't feed them to the alligators, 
ma'am.
    Ms. Hempowicz. I agree, and I think it's important for any 
incoming administration to make that clear from the beginning.
    Mrs. Watson Coleman. Thank you.
    And thank you, Mr. Chairman, for your indulgence.
    Mr. Meadows. I thank the gentlewoman.
    You'll be pleased to hear that today Chairman Chaffetz and 
I are joining Senate Judiciary Committee Chairman Chuck 
Grassley to send a letter to the White House encouraging it to 
use whistleblowers as an ally to identify waste, fraud, and 
abuse, and mismanagement of the Federal Government.
    We're suggesting that the White House clarify any confusion 
that may exist regarding various transition memos as they 
relate to the WPEA or the anti-gag provision which Senator 
Grassley authored. These are issues that are extremely 
important to those of us that are committed to making 
government work more effectively through the oversight process, 
and we will ensure that whistleblower rights to communicate 
directly with Congress are not impeded.
    And with that, I will recognize the vice chairman of the 
subcommittee, the gentleman from Georgia, Mr. Hice.
    Mr. Hice. Thank you very much, Mr. Chairman. And I thank 
each of you for being here.
    Mr. Bachman, I think I heard you said, and I'm not sure 
that you really meant this, but you said everyone in government 
wants to deal with waste, fraud, and abuse. I'm not so sure 
that that's an accurate statement. I actually have come to more 
or less believe that the three real branches of our government 
are waste, fraud, and abuse. They feel like that sometimes. And 
this is a serious problem, but the whistleblowers, as you did 
go on to say, are an essential ingredient to dealing with this 
problem.
    Can you give me a couple of examples of what the 
retaliation of these whistleblowers looks like.
    Mr. Bachman. Certainly. We have had a number of cases 
recently with the VA. Before I go into this, I do want to say 
the VA has been an excellent example of good tone at the top. I 
think they really have made strides to improve their 
protections of whistleblowers.
    That being said, we've had a number of whistleblower 
retaliation complaints with them. One of them involves an 
employee in the Puerto Rico facility who had blown the whistle 
about activities that the director of that facility was engaged 
in that he believed evidenced a violation of law, rule, or 
regulation.
    Very soon after that, this employee found himself detailed 
to a position in which he had basically no job functions, no 
office, and no real career path after that. After he filed a 
complaint with OSC, we were able to get involved, get him 
temporarily put back into his job while we investigated. 
Ultimately, was able to get his job back full-time, get him 
damages for what he suffered. And the VA has recently announced 
the removal of the director of that facility.
    Mr. Hice. Okay. That's a good outcome when all is said and 
done, but that's somewhat of a typical retaliation, an outward 
change in their job or responsibilities or something along--are 
there more subtle retaliations? What would a subtle--and I'll 
just open this up, but if you could answer relatively quickly 
because I want to drive somewhere with this. What is a more 
subtle, less obvious retaliation?
    Mr. Bachman. I mean, for example, just getting less 
glamorous assignments within the agency, the ones that aren't 
going to get you the awards or get you the recognition for the 
promotion that's coming up in another year or so, that--you 
know, it's hard to really put your finger on exactly what it 
is, but you know it's affecting your career. And those can be 
extremely damaging and, frankly, extremely difficult to 
investigate as well.
    Mr. Hice. Okay. Ms. Hempowicz, I would like--you were ready 
to go.
    Ms. Hempowicz. I would refer again to the retaliatory 
investigations that have been mentioned earlier. We called them 
the weapons of choice for retaliation against whistleblowers 
because it's a lose--it's a win-win situation for the agency. 
Either they find something and then they can take whatever 
action they want to against the whistleblower and have a reason 
for it, or they don't find something and it just looks like 
they were doing their due diligence.
    Mr. Hice. Okay. So in your testimony, I believe you 
suggested some legislative solutions. What would--how do you 
draw the balance in providing an agency the ability to 
investigate and at the same time protect the whistleblower? 
What does the legislation look like to you?
    Ms. Hempowicz. I believe that was in Tom's.
    Mr. Hice. Okay.
    Mr. Devine. Yes, sir. It's really not a different balance 
than any other personnel action. We need to terminate employees 
who don't perform properly. We don't want to abuse that 
responsibility. And it's the same with investigations. We'd 
recommend just exempting routine, ministerial, administrative, 
nondiscretionary investigations from the X coverage. But the 
discretionary ones are very, very commonly used. They're more 
chilling than the actual personnel action when they lead to 
criminal prosecutions. And even when the investigation is 
closed, we have seen a very common phenomenon of serial witch 
hunts. There's another one opened 1 or 2 months later, and it 
just goes on indefinitely. This has a far greater chilling 
effect than conventional personnel action.
    Mr. Hice. So the congressional action would be?
    Mr. Devine. The congressional action would be similar to 
what we have in all the corporate whistleblower laws and in 
many State whistleblower laws and the First Amendment, that you 
can challenge a retaliatory investigation as a violation of the 
Whistleblower Protection Act. We agree that there should be 
limitations on it so that it can function the routine 
necessary--you can't interfere with the routine necessary 
functions of government, but when it's misused--this is a start 
of almost every case of retaliation, to shift the spotlight 
from the message to the messenger and try to destroy their 
credibility, ruin them and make an example. And you can do that 
without ever touching the Whistleblower Protection Act, because 
they're defenseless until the other shoe drops, a formal 
personnel action. And if the other shoe is a prosecution 
referral, the act never becomes relevant, the whistleblower is 
defenseless.
    Mr. Hice. Thank you, Mr. Chairman.
    Mr. Meadows. I thank the gentleman.
    The chair recognizes the gentlewoman from Michigan, Mrs. 
Lawrence, for 5 minutes.
    Mrs. Lawrence. Thank you, Mr. Chairman, and to my ranking 
member.
    Last month, the Republicans included the Holman act as part 
of the rules package for the 115th Congress. This rule allows 
lawmakers to slash the salary of an individual Federal employee 
to $1. Imagine a Federal employee who is considering blowing 
the whistle on wrongdoing. Even if that disclosure is 
protected, meaning the agency cannot take retaliatory action, 
nothing prevents Congress from slashing that employee's salary.
    Mr. Devine, and I ask the other ones too, what do you think 
the Holman Rule--do you think it would have a chilling effect 
on the whistleblower disclosure?
    Mr. Devine. It should have a chilling effect because it 
creates a deep vulnerability. It allows Members of Congress to 
engage in the same actions that would be illegal if taken by an 
executive branch employee who actually is familiar with the 
whistleblower's performance or work. So it's a serious new 
loophole that should be addressed.
    Mrs. Lawrence. Mr. Bachman.
    Mr. Bachman. I agree. I think that anything like the Holman 
Rule or nondisclosure agreements that might have a chilling 
effect on employees, that might give somebody pause or more 
than pause about coming forward to expose waste, fraud, and 
abuse in the government, that's something that, from a 
whistleblower's point of view, is not helpful. And I'll leave 
it at that. Thank you.
    Mrs. Lawrence. Mr. Storch.
    Mr. Storch. Yes. I certainly agree. I mean, as we've said 
from the outset, and I think everyone in the room has said, we 
want to encourage people to come forward with information. 
That's the only way we can find out what's really going on and 
be able to address it, if appropriate. And if people in our 
government agencies don't feel comfortable coming forward, 
whether it's because they feel they're going to suffer reprisal 
in their jobs or they feel they're going to suffer some other 
economic consequences, that's a thing that could deter them 
from coming forward and something we want to stop.
    I didn't get a chance to mention it before, but I will now. 
We get over 12,000 complaints a year on our hotline at DOJ, 
which is just one agency. Something like 500 of those in the 
last year were within the ambit of what are considered 
whistleblowers. Now, not all of those, fortunately, are 
reprisal cases, because a lot of those go to the OSC. But 
having said that, we do see a lot of reprisal and we see it 
increasing.
    We oversee the FBI, we have jurisdiction to investigate 
there. And with the FBI WPEA, that's only going to increase, 
which is a great thing. We support it expanding the ambit of 
people that FBI employees can report to. But with that comes a 
cost, a cost in terms of resources. But that's something we 
think is important to do because we want to encourage people to 
come forward. And anything that stops that from happening or 
deters that in our view is a bad thing.
    Mrs. Lawrence. You know, I served as an EEO investigator 
for a Federal agency. And the one thing I will say, and I'm 
glad that you all are saying it, the act of discrimination or a 
case that's filed, the culture of organization is based on that 
reprisal point. And if we do not manage that and make sure that 
we're clear that reprisal of a person whistleblowing or a 
victim of discrimination will not be tolerated in an agency, it 
is extremely chilling and damaging for any organization.
    The last thing I want to say--I wanted to hear from you, 
Ms. Hempowicz.
    Ms. Hempowicz. I agree with my copanelists that we are 
deeply concerned that the Holman Rule can be used to retaliate 
against whistleblowers. As Tom said, it would be perfectly 
legal for it to. It's not against the WPEA. And so, 
unfortunately, it creates more work for the members of this 
Committee on Oversight over that rule in making sure that it's 
not used as retaliation against whistleblowers.
    I think employees of Federal agencies are going to look to 
you and to the House Whistleblower Protection Caucus to make 
sure that you are conducting that oversight and making sure 
that it's not being used as a new tool to retaliate against 
whistleblowers.
    Mrs. Lawrence. I just want to say to the chairman, it's 
refreshing to hear that the party, my colleagues are actually 
taking on the banner of saying how important our whistleblowers 
are to the health and the trust of the American people and that 
we are doing our job. And we must continue to protect the 
whistleblower.
    Thank you, and I yield back.
    Mr. Meadows. I thank the gentlewoman for her kind comments.
    The chair recognizes himself for a series of questions. So 
let me start off by saying for those that are whistleblowers 
that are watching here today, this is something that the 
ranking member and I, the retaliation, we will not tolerate. 
And by saying that, it means that we won't forget. There are 
people here in the audience, there's also people here that are 
watching that are hoping against hope that, Mr. Bachman, that 
you can help them or that they can get their reputation back. 
And sometimes it's not even the financial aspect. It is really 
the humiliation of being treated the way that they've been 
treated by a government that should and can do better.
    And so I say that because it's real easy to have hearings 
and assume that nothing's going to happen. That's not the way 
that I conduct my hearings. In fact, if anything, this is 
normally a culmination of fine, fine work by the staff. I'd 
like to take all the credit for their great work, and yet it is 
their work that brings forth a hearing, but also has a follow-
up hearing. The gentleman from Virginia and I are committed to 
making sure that protections are there.
    With that being said, Mr. Bachman, I am concerned that a 
third of the whistleblowers are retaliated against. Did I hear 
you correctly, out of 6,000, some 2,000 are retaliated against?
    Mr. Bachman. No, I'm sorry. Let me clarify that. The 
overall number of cases that OSC receives across all program 
areas is 6,000. In terms of whistleblower retaliation 
complaints we receive, it's 2,000.
    Mr. Meadows. Okay. Okay. So even if we look at 
whistleblower retaliation, one of the things that we've talked 
about, we talk about chilling effects, is there any 
consequences to those that actually do the retaliation? Because 
I'm not seeing a whole bunch, other than, at times, maybe a 
slap on the wrist or even that may be more than they get, they 
get a letter in their file. Mr. Bachman, are we seeing any of 
that?
    Mr. Bachman. Well, I think--we couldn't agree more that we 
would like to see more disciplinary actions. I think, you know, 
as I said, we've made an over 100 percent increase in those 
numbers. We obviously want to do more. Our main focus has been 
to help the whistleblower. You know, when they come to us, 
they've been fired, we need to get them back on their job and 
back on their feet. I do think getting them back on their job 
does send a message. It's not the same thing as getting that 
manager fired, but it does send a message to the other 
employees that this person was protected, they were brought----
    Mr. Meadows. And I do get that and I understand that, but I 
guess here is my concern with that. Having been in the private 
sector for a long time, I'm rewarded for those things I get 
rewarded by and I do them more. And those things that I don't 
get rewarded for or that I get punished for, I don't do them. 
And if there is neither the reward for good behavior, I mean--
and so maybe we look at this as if you have zero whistleblower 
retaliation events, that you get some kind of recognition.
    I'm not sure how we go about this, but I can tell you the 
ranking member and I were having a private conversation, the 
time is now. And what I would ask of each of you is to give 
this committee some of your recommendations on how we can do 
that. Because if we've got senior level managers who will 
continue to do this, and, Mr. Bachman, with all due respect, 
you're doing a great job, but they can thwart you as we do know 
with TSA and some of the other events that I'm familiar with, 
they thwart you and they try to run out the clock. And when 
they are running out the clock, bringing one person back sends 
an unbelievable message to all those other whistleblowers.
    And the reason I know that is I get calls from agencies all 
across the country. And they're calling and they make sure 
their numbers are unidentified, and they call with aliases just 
because they know that I will actually do something about it. 
But the other problem that we have there is, is if they're that 
fearful to talk to a Member of Congress, then we've got a 
systemic problem that we've got address.
    So I would ask, are you all all willing to give 
recommendations to this committee in terms of how we can maybe 
incentivize or discourage the behavior, and give me two 
recommendations on what you think? Mr. Storch, are you willing 
to do that?
    Mr. Storch. Yes, sir, absolutely. I am happy to participate 
in that very important discussion. One thing I would add that 
we've been doing for a while, and I was very happy to see in 
the IG Empowerment Act, was posting of instances where there's 
been reprisal. And that's something--we always look at these 
reprisal cases, and we don't have the volume that OSC does, but 
say in the FBI area or other areas. We look at them both in 
terms of whistleblower, obviously, and the harmed that they 
have suffered for coming forward and performing the service of 
doing that. But also we look at the person who engaged in the 
reprisal and whether or not that we can show that that 
constitutes misconduct, and if so, then to our standard 
procedures we would refer that.
    We had a posting not long ago where we posted a fairly high 
level person within the FBI who we found, based on our 
investigation, had engaged in reprisal against someone who had 
blown the whistle. And we publicly reported on that. And we're 
not the adjudicative body, as you know, that goes to another 
part of the Department, but still, hopefully, there's a 
deterrent effect from that, right? And very happy to see that 
in the IG Empowerment Act. And I think others in the IG 
community do that, and as more of that happens, hopefully, 
people will see that there are consequences for supervisors and 
managers who engage in that concept.
    Mr. Meadows. So since you do it there at DOJ, would you say 
that that's something we need to implement through OPM or some 
directive from OPM?
    Mr. Storch. Well, my understanding of the IG Empowerment 
Act is that now all of the IGs will be reporting when they find 
instances of reprisal against----
    Mr. Meadows. Yeah, but it kind of bypasses OSC when you--I 
mean, indeed, if it's an IG investigation that applies and 
it's--I'm very familiar with that Act, but at the same time, 
it's critical that we send a message. So if you all would do 
that.
    Mr. Bachman, are you willing to do that?
    Mr. Bachman. Yes, absolutely. And very quickly, I think one 
thing to point out that has had a concrete effect is including 
within performance evaluations. So every employee gets an 
annual performance appraisal. We at OSC have now made that part 
of our supervisors and managers performance appraisals that 
they will be judged upon having an open atmosphere that would 
encourage whistleblowing. That has also been made a part of the 
VA's performance appraisals. So we think that could have a big 
impact as well.
    The second part is tone at the top, as I mentioned 
previously, and I just want to commend you and this committee 
and Senator Grassley for ``walking the walk.'' And planning to 
send this letter, I think, sends exactly the right message to 
whistleblowers across the----
    Mr. Meadows. It either is gone or about to go out. So by 
the time we will gavel out, it'll be there.
    Mr. Devine.
    Mr. Devine. Sir, I agree with Mr. Bachman's priorities that 
the OSC has to focus on saving the careers of people who are 
being purged as a top priority. And that's why I think that 
structural reform in franchising the ability to seek discipline 
as part of the due process dimension of the list of our 
protection act is the most effective and direct solution, that 
a whistleblower should be able to seek discipline as part of 
the relief when prohibited personal practice is proven.
    The other alternative is to restore personal liability for 
constitutional violations, which historically existed but the 
Supreme Court canceled in 1983 due to passage of the statutory 
provisions. And Congress could restore that liability and that 
also would create deterrence.
    Mr. Meadows. Those are good recommendations. The latter one 
will be much more difficult to have happen.
    So, Ms. Hempowicz.
    Ms. Hempowicz. Yeah. I would be happy to give you some more 
recommendations after the hearing. But I will just repeat what 
I said in my testimony, that I think it's incredibly important 
that we make punishment for those found to have retaliated 
against whistleblowers mandatory. It was in the VA bill last 
year and went through.
    And when you have this mandatory punishment for somebody 
who retaliates, you've got to make sure that you have due 
process in place to make sure that you're not going to be 
punishing somebody who doesn't deserve it. But a mandatory 
suspension for the first offense sounds fair to me and sends 
that picture that retaliation is not acceptable and won't be 
rewarded. Because like you said, a lot of times, these people 
who are retaliating against whistleblowers receive bonuses, are 
promoted, or are moved up and out of the agency.
    Mr. Meadows. All right. So one final question and then I'll 
recognize the ranking member.
    Mr. Bachman, in terms of former Federal employees and the 
protections there, I mean, what kind of circumstances would you 
be able to help with former Federal employees?
    Mr. Bachman. That's an excellent question and identifies 
one of the big gaps in our enforcement areas. Right now, if 
you're an employee or an applicant for a Federal position, you 
are protected from retaliation. However, if you've left the 
Federal Government and then somebody retaliates against you 
because of what you had disclosed while you're with the 
government, the WPEA does not cover that. So right now, we are 
not able to----
    Mr. Meadows. What about things they disclose after they've 
left? So they're a retiree. I've had some come to my office 
just afraid to share anything because they're afraid of 
potential retaliation with either clearances or retirements or 
anything else.
    Mr. Bachman. And if that--for example, if they retired and 
then blew the whistle and then were considering being a, you 
know, reemployed annuitant or something like that, yes, I think 
that should be covered. And we--OSC has actually taken that 
position recently in an amicus brief that any disclosure means 
any disclosure, regardless of whether you're an employee at the 
time. If you then seek employment with the Federal Government 
and they hold that against you, that's whistleblower 
retaliation.
    Mr. Meadows. All right. Well, with that, I would look 
forward to maybe some clarifying language that we could work in 
a legislative manner. And I'll recognize the ranking member.
    Mr. Connolly. Just underscoring your point, Mr. Meadows. I 
think we would be interested in trying to look at some kind of 
set of standards for disciplinary action when somebody is 
conclusively found to have retaliated against a whistleblower.
    The adjudication is going to be important because I am 
aware of cases of the opposite, where somebody claimed to have 
been discriminated against, and when you look at the evidence, 
it's simply not true. And they either have it in their head or 
they have a grievance against somebody and want to tarnish 
their good name. And so we have to be careful about that too in 
protecting reputations.
    The interesting thing to get at, for me, what I hear the 
most about is retaliation is more subtle than that. Putting 
someone in a broom closet without a phone and without a window, 
everyone can kind of catch on to that. But it's the subtle 
performance erosion in the evaluation and the lack of promotion 
that follows from that because you've got a bad evaluation or 
suddenly issues are cropping up. You know, and it's done 
cleverly and in an almost sinister way to damage your career 
and your good name over time.
    I think that is one that I worry a lot about because it's 
much harder to get at. It's harder to prove, but in some ways 
it's even more insidious. I don't know if anyone wants to 
comment on that before we close the hearing.
    Mr. Storch. I would agree entirely. You're absolutely 
right. And I would just say, based on our experience, when 
we've done these investigations in the FBI contacts, with the 
contractors, subcontractors, grantees, and the like, the more 
subtle the discrimination or the action, the more difficult it 
is to ferret out. And that--not that this is a play for 
resources, but I will say that it feeds into that problem, 
because they are very resource intensive investigations. I know 
I don't have to tell OSC that.
    I know from our working group OIGs across the community, we 
believe in the importance of whistleblowers. They're really key 
partners in the work we do. And we don't want to see them 
suffer reprisal. So there is not a lack of commitment. There 
are issues with resources----
    Mr. Connolly. Yeah, but don't get too carried away. I know 
of one example, at least in an OIG office----
    Mr. Storch. Yes, sir.
    Mr. Connolly. --where this occurred and it was the IG doing 
it.
    Mr. Storch. Right. No, I don't claim anything is absolute, 
but I think people--certainly, I can speak for our office, we 
get and others in our working group have talked about the 
importance of these principles, but also have talked about the 
difficulty of ferreting out just that sort of subtle 
discrimination. So the reason I bring it up is I really do 
think it feeds into this issue that these are really important 
issues that we want to be able to tackle and work with you on 
tackling and work with you on getting the resources to make 
sure we can do it effectively.
    Mr. Bachman. And for OSC, we couldn't agree more on the 
importance of the subtle forms of retaliation. And we've really 
made it a point, in our office, for our complaints examining 
unit who are the initial front line to review these complaints, 
if they see something like this and they believe there's an 
evidence of a violation, that we want to address this as 
quickly as possible because, A, it stops the bad action from 
happening, it helps the whistleblower. But B, it lets the 
agency, it lets the folks know we're looking at the little 
stuff too. We're not just going--you know, we're not just 
looking at the termination, we're looking at these subtler 
forms of retaliation. And also in terms of our outreach 
programs where we go to agencies, we train them, we make sure 
to include that these smaller personnel actions, that's 
retaliation too and you can't do it.
    Mr. Devine. So your insight about subtle retaliation is 
very well taken. The Whistleblower Protection Act shields 
against harassment, such as refusing to give people training 
that would allow them to advance in their careers. One of the 
common tactics that I come across is in a performance 
appraisal, having a comment in the appraisal that, I'm 
disturbed that Mr. Smith is not a team player. And that sends a 
message to all future employers in all job applications that 
are reviewed.
    And your question is a cue for the importance of the amicus 
briefs by the Office of Special Counsel and the job duties, so 
a short portion of the Whistleblower Protection Act. That's the 
only portion that requires actual retaliation. And the board 
has been drifting into expanding the scope of the job duties 
loophole and having high burdens of proof for it. And this 
should be interpreted very, very narrowly.
    There is no public policy relevance to whether a 
whistleblower commits the truth as part of an assignment or a 
personal initiative. And the same causal link that can cancel 
adverse actions for taking a personal initiative should be 
there when you're just doing your job properly.
    Ms. Hempowicz. I don't know if I have anything to add. 
However, it is definite that's something that we're very 
concerned about, and I'm happy to hear that you share that 
concern and plan to do more on that going forward.
    Mr. Connolly. Thank you. And, Mr. Chairman, thank you so 
much.
    Mr. Meadows. Well, thank you all for your enlightening 
testimony. I can assure you that it will be followed up on. Our 
staff here is one that are not only diligent, but they're 
tenacious and so--in doing that.
    If there's no more business before the committee, the 
committee stands adjourned.
    [Whereupon, at 3:41 p.m., the committee was adjourned.]


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