[Congressional Record Volume 145, Number 126 (Friday, September 24, 1999)]
[Senate]
[Pages S11445-S11446]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         ADDITIONAL STATEMENTS

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                       GOVERNMENT WHISTLEBLOWERS

 Mr. GRASSLEY. Mr. President, I rise to warn the Senate of 
intensifying harassment against government whistleblowers. This trend 
threatens Congress'

[[Page S11446]]

right to know, and preserves secrecy that shields bureaucratic 
misconduct. From the IRS to the State Department, retaliation is 
increasing against government employees who blow the whistle on 
wrongdoing by high government officials.
  How did we get here? In the view of this Senator, one of the major 
problems has been the judicial activism of the Federal Circuit Court of 
Appeals, which has jurisdiction over challenges by government employees 
to illegal retaliatory acts, and which has grossly misinterpreted 
existing federal laws. To illustrate my concerns, I am enclosing for 
the Record a New York Times editorial; and a Federal Times article by 
the Government Accountability Project about the most extreme Federal 
Circuit precedent, involving Air Force whistleblower John White. This 
precedent could functionally cancel both the whistleblower law and the 
Code of Ethics.
  I have no intention of passively acquiescing to the judicial 
equivalent of contempt of Congress.
  The material follows:

                 [From the New York Times, May 1, 1999]

                    Helping Whistle-Blowers Survive

       Jennifer Long, the Internal Revenue Service agent who 
     nearly lost her job two weeks ago after publicly blowing the 
     whistle on abuses at the agency, was rescued at the last 
     minute by the intervention of an influential United States 
     Senator. But the fact that her employers had no inhibitions 
     about harassing her is clear evidence that the laws 
     protecting whistle-blowers need to be strengthened. As they 
     stand, these laws merely invite the kind of retaliation that 
     Mrs. Long endured.
       A career tax auditor, Mrs. Long was the star witness at 
     Senate Finance Committee hearings convened in 1997 by William 
     Roth of Delaware to investigate complaints against the IRS. 
     She was the only IRS witness who did not sit behind a curtain 
     and use a voice-distortion device to hide her identity. She 
     accused the agency of preying on weaker taxpayers and 
     ignoring cheating by those with the resources to fight back. 
     She has since said that she was subjected to petty 
     harassments from the moment she arrived back at her district 
     office in Houston. Then, on April 15 of this year, she was 
     given what amounted to a termination notice, at which point 
     Mr. Roth intervened with the IRS commissioner and saved her 
     job--at least for now.
       Had he not intervened, Mrs. Long's only hope of vindication 
     would have been the remedies provided by the Civil Service 
     Reform Act of 1978 and the Whistle-Blower Protection Act of 
     1989. These two statutes prescribe a tortuous and uncertain 
     appeals process that in theory guarantees a whistle-blower 
     free speech without fear of retaliation, but in practice is 
     an exercise in frustration. Despite recent improvements, only 
     a handful of Federal employees, out of some 1,500 who 
     appealed in the last four years, have prevailed in rulings 
     issued by the Government's administrative tribunal, the Merit 
     System Protection Board. Overwhelmingly, the rest of the 
     cases were screened out on technical grounds or were settled 
     informally with token relief.
       A few prominent whistle-blowers have won redemption outside 
     the system. Frederic Whitehurst, the chemist who was 
     dismissed after disclosing sloppiness and possible dishonesty 
     in the Federal Bureau of Investigation's crime laboratory, 
     won a sizable cash settlement because he had a first-class 
     attorney who mounted an artful public relations campaign. 
     Ernest Fitzgerald, the Pentagon employee who disclosed 
     massive cost overruns, survived because he was almost 
     inhumanly persistent and because his cause, like Mrs. Long's, 
     attracted allies in high places. But the prominence of an 
     issue does not guarantee survival for the employee who 
     discloses it. Notra Trulock, the senior intelligence official 
     at the Energy Department who tried to alert his superiors to 
     Chinese espionage at a Government weapons laboratory, has 
     since been demoted.
       Senator Charles Grassley, an Iowa Republican, has been 
     seeking ways to strengthen the 1989 law with the help of the 
     Government Accountability Project, a Washington advocacy 
     group that assists whistle-blowers. One obvious improvement 
     would be to give whistle-blowers the option to press their 
     claims in the Federal courts, where their cases could be 
     decided by a jury. To guard against clogging the system with 
     frivolous litigation, the cases would first be reviewed by a 
     nongovernment administrative panel. But the point is to give 
     whistle-blowers an avenue of appeal outside the closed loop 
     in which they are now trapped.
       A reform bill along these lines passed the House in 1994 
     but died in the Senate. With Mrs. Long's case fresh in mind, 
     the time has come for both Houses to re-examine the issue.
                                  ____


                [From the Federal Times, July 26, 1999]

            Court Turns Whistleblower Act Into Trojan Horse

                            (By Tom Devine)

       In a stunning act of extremism, the Federal Circuit Court 
     of Appeals has functionally thrown out two statutes 
     unanimously passed by Congress: the Code of Ethics for 
     Government Service and the Whistleblower Protection Act.
       The decision, Lachance vs. White, reflects unabashed 
     judicial activism to overturn unanimous congressional 
     mandates.
       The case involves an Air Force whistleblower, John White.
       In 1992, he was moved and stripped of duties after 
     successfully challenging as gross mismanagement a local 
     command's Quality Education System, a bureaucratic turf 
     builder camouflaged as reform by micromanaging and imposing 
     de facto military accreditation on participating 
     universities.
       Experts inside and outside the government agreed with 
     White.
       The Air Force canceled the program after a scathing report 
     by its own experts found the program counterproductive for 
     education and efficiency.
       Whistleblowing doesn't come any better than this.
       The Merit Systems Protection Board three times ruled in 
     White's favor, each time challenged on technicalities by the 
     Office of Personnel Management.
       But the appeals court decided it knew better.
       The court concocted a hopelessly unrealistic standard for 
     whistleblowing disclosures to pass muster.
       The court said a whistleblower must have had a ``reasonable 
     belief'' that he was revealing misconduct.
       This ``reasonable belief'' is the prerequisite to be 
     eligible for reprisal protection, the court found.
       At first glance, the court's definition of ``reasonable 
     belief'' is almost boringly innocuous: ``could a 
     disinterested observer with knowledge of the essential facts 
     reasonably conclude . . . gross mismanagement?''
       But the devil is in the details. The court warmed up by 
     establishing a duty of loyalty to managers.
       ``Policymakers have every right to expect loyal, 
     professional service from subordinates,'' the court said.
       So much for the Code of Ethics, which is on the wall of 
     every federal agency since unanimous passage in 1980: ``Put 
     loyalty to the highest moral principles and to country above 
     loyalty to persons, party or government department.''
       The court decreed that whistleblowing does not include 
     ``policy'' disputes.
       But that's not what Congress said in 1994 amendments to the 
     whistleblower protection law: ``A protected disclosure may . 
     . . concern policy or individual misconduct.''


                            a cruel illusion

       Most surreal is the court's requirement for MSPB to conduct 
     an independent ``review'' to see if it was reasonable for the 
     employee to believe he revealed misconduct.
       And whistleblowers must overcome the presumption that 
     government agencies act ``correctly, fairly, in good faith'' 
     and legally unless there is ``irrefragable'' proof otherwise.
       What's ``irrefragable''? My dictionary defines it as 
     ``[i]ncapable of being overthrown; incontestable, undeniable, 
     incontrovertible.''
       This means if disagreement is possible, the whistleblower's 
     belief is unreasonable and eligibility for legal protection 
     vanishes.
       Not content to render the Whistleblower Protection Act a 
     bad joke, the Court turned it into a Trojan Horse, 
     instructing the board to violate it routinely by searching 
     for evidence that the whistleblower has a conflict of 
     interest as part of its review.
       Amendments to the whistleblower law in 1994 outlawed 
     retaliatory investigations--those taken because of protected 
     activity.
       These developments are no surprise.
       Before Chief Judge Robert Mayer's arrival on the court, he 
     served as deputy special counsel when his office tutored 
     managers and taught courses on how to fire whistleblowers 
     without getting caught.
       Mayer's actions helped spark the Whistleblower Protection 
     Act's birth.
       Now under his leadership, the Federal Circuit is killing it 
     with a sternly obsessive vengeance.
       Under current law, there is no way out in the courts.
       Except for unprecedented Supreme Court review, the Federal 
     Circuit Court of Appeals has a monopoly on judicial review of 
     whistleblower decisions by the MSPB. As long as it persists, 
     the Whistleblower Protection Act's promise will be a cruel 
     illusion.
       Congress has a clear choice: passively institutionalize its 
     ignorance of executive branch misconduct, or restore its and 
     the public's right to know.
       The solution is no mystery:
       Pass a legislative definition of ``reasonable belief'' 
     overturning all the nooks and crannies of this case.
       Give federal workers the same access to the court that is a 
     private citizen's right--jury trials and an all-circuits 
     judicial review in appeals courts.
       It is unrealistic for the government to expect federal 
     employees with second-class rights to provide first-class 
     service to the public.

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