[Senate Report 110-232]
[From the U.S. Government Publishing Office]
110th Congress
1st Session SENATE Report
110-232
_______________________________________________________________________
Calendar No. 513
FEDERAL EMPLOYEE PROTECTION OF DISCLOSURES ACT
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 274
TO AMEND CHAPTER 23 OF TITLE 5, UNITED STATES CODE, TO CLARIFY THE
DISCLOSURES OF INFORMATION PROTECTED FROM PROHIBITED PERSONNEL
PRACTICES, REQUIRE A STATEMENT IN NONDISCLOSURE POLICIES, FORMS, AND
AGREEMENTS THAT SUCH POLICIES, FORMS, AND AGREEMENTS CONFORM WITH
CERTAIN DISCLOSURE PROTECTIONS, PROVIDE CERTAIN AUTHORITY FOR THE
SPECIAL COUNSEL, AND FOR OTHER PURPOSES
November 16, 2007.--Ordered to be printed
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia
JON TESTER, Montana JOHN E. SUNUNU, New Hampshire
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Lawrence B. Novey, Senior Counsel
Jennifer L. Tyree, Counsel, Subcommittee on Oversight of Government
Management, the Federal Workforce, and the District of Columbia
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Amanda Wood, Minority Counsel
Theresa M. Manthripragada, Minority Professional Staff Member,
Subcommittee on Oversight of Government Management, the Federal
Workforce, and the District of Columbia
Trina Driessnack Tyrer, Chief Clerk
C O N T E N T S
Page
I. Purpose & Summary................................................1
II. Background.......................................................2
III. Legislative History.............................................24
IV. Section-by-Section Analysis.....................................25
V. Estimated Cost of Legislation...................................27
VI. Evaluation of Regulatory Impact.................................28
VII. Changes in Existing Law.........................................28
Calendar No. 513
110th Congress Report
SENATE
1st Session 110-232
======================================================================
FEDERAL EMPLOYEE PROTECTION OF DISCLOSURES ACT
_______
November 16, 2007.--Ordered to be printed
_______
Mr. Lieberman, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 274]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 274) a bill to
amend chapter 23 of title 5, United States Code, to clarify the
disclosures of information protected from prohibited personnel
practices, require a statement in nondisclosure policies,
forms, and agreements that such policies, forms, and agreements
conform with certain disclosure protections, provide certain
authority for the Special Counsel, and for other purposes,
having considered the same, reports favorably thereon with
amendment and recommends that the bill, as amended, do pass.
I. Purpose & Summary
S. 274, the Federal Employee Protection of Disclosures Act,
is a bipartisan bill to make clarifications and changes to
strengthen the Whistleblower Protection Act (WPA).\1\ S. 274
was introduced on January 11, 2006, by Senators Akaka, Collins,
Grassley, Levin, Lieberman, Leahy, Voinovich, Carper, Durbin,
Pryor, Lautenberg and is also cosponsored by Senator Kennedy.
The bill is similar to legislation that passed the Senate in
the 109th Congress and builds on earlier versions of the
legislation, which was first introduced in the 106th
Congresses.\2\
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\1\Whistleblower Protection Act of 1989, Public Law No. 101-12, 103
Stat. 16 (1989).
\2\S. 494, introduced on March 2, 2005, reported by the Committee
on March 29, 2005, and passed the Senate as an amendment to the Defense
Authorization Act for FY 07 on June 20, 2006; S. 2628, introduced on
July 8, 2004, reported by Committee on July 21, 2004; S. 1358,
introduced on June 26, 2003, hearing held on November 12, 2003; S.
3070, introduced on October 8, 2002, reported by Committee on October
9, 2002; S. 995, introduced on March 6, 2001, hearing held on July 25,
2001; and S. 3190, introduced on October 12, 2000.
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Since passage of the Civil Service Reform Act (CSRA) in
1978, Federal employees have been encouraged to disclose
information of government waste, fraud, and abuse by the
promise of protection from retaliation based on those
disclosures. More recently, President Bush issued a memorandum
for the heads of executive departments and agencies on the
standards of official conduct. This memorandum specifically
stated that employees shall disclose waste, fraud, abuse, and
corruption to appropriate authorities.\3\
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\3\Memorandum from President George W. Bush to the Heads of
Executive Departments and Agencies on Standards of Official Conduct
(Jan. 20, 2001).
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The Federal Employee Protection of Disclosures Act is
designed to strengthen the rights and protections of federal
whistleblowers and to help root out waste, fraud, and abuse.
Although the events of September 11, 2001, have brought renewed
attention to those who disclose information regarding security
lapses at our nation's airports, borders, law enforcement
agencies, and nuclear facilities, the right of federal
employees to be free from workplace retaliation has been
diminished as a result of a series of decisions of the Federal
Circuit Court of Appeals that have narrowly defined who
qualifies as a whistleblower under the WPA and what statements
are considered protected disclosures. The Committee is
concerned that inadequate protection for whistleblowing creates
a disincentive for civil servants to disclose government waste,
fraud, and abuse, and information related to the public's
health and safety.
S. 274 would restore congressional intent and strengthen
the WPA by, among other things, clarifying the broad meaning of
``any'' disclosure covered by the WPA; clarifying that
disclosures of classified information to appropriate committees
of Congress are protected; codifying an anti-gag provision to
allow employees to come forward with disclosures of illegality;
providing independent amicus brief authority for the Office of
Special Counsel (OSC), the agency charged with protecting
whistleblowers and the WPA; and allowing whistleblower cases to
be heard by all United States Courts of Appeals for a period of
five years.
II. Background
The Civil Service Reform Act of 1978 created statutory
protections for federal employees to encourage disclosure of
government illegality, waste, fraud, and abuse. As stated in
the Senate Report concerning the whistleblowing provisions of
the civil service reform legislation:
Often, the whistleblower's reward for dedication to
the highest moral principles is harassment and abuse.
Whistleblowers frequently encounter severe damage to
their careers and substantial economic loss. Protecting
employees who disclose government illegality, waste,
and corruption is a major step toward a more effective
civil service. In the vast federal bureaucracy it is
not difficult to conceal wrongdoing provided that no
one summons the courage to disclose the truth. Whenever
misdeeds take place in a federal agency, there are
employees who know that it has occurred, and who are
outraged by it. What is needed is a means to assure
them that they will not suffer if they help uncover and
correct administrative abuses. What is needed is a
means to protect the Pentagon employee who discloses
billions of dollars in cost overruns, the GSA employee
who discloses widespread fraud, and the nuclear
engineer who questions the safety of certain nuclear
plants. These conscientious civil servants deserve
statutory protection rather than bureaucratic
harassment and intimidation.\4\
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\4\S. Rep. No. 95-969, at 8 (1978).
The CSRA established OSC to investigate and prosecute
allegations of prohibited personnel practices or other
violations of the merit system and the Merit Systems Protection
Board (MSPB) to adjudicate such cases. However, in 1984, the
MSPB reported that in practice the Act had no effect on the
number of whistleblowers and that federal employees continued
to fear reprisals. The Senate Governmental Affairs Committee
subsequently reported that employees felt that OSC engaged in
apathetic and sometimes detrimental practices toward employees
seeking its assistance. The Committee also found that
restrictive MSPB and federal court decisions had hindered the
ability of whistleblowers to win redress.\5\
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\5\S. Rep. No. 100-413, at 6-16 (1988).
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In response, Congress in 1989 unanimously passed the
Whistleblower Protection Act. The stated congressional intent
of the WPA was to strengthen and improve protection for the
rights of federal employees, to prevent reprisals, and to help
eliminate wrongdoing within the government by (1) mandating
that employees should not suffer adverse consequences as a
result of prohibited personnel practices; and (2) establishing
that while disciplining those who commit prohibited personnel
practices may be used as a means to help accomplish that goal,
the protection of individuals who are the subject of prohibited
personnel practices remains the paramount consideration.\6\
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\6\Id. at Sec. 2(b).
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Congress substantially amended the WPA in 1994, as part of
legislation to reauthorize OSC and MSPB. The amendment was
designed, in part, to address a series of actions by theOSC and
decisions by the MSPB and the Federal Circuit that were deemed
inconsistent with the congressional intent of the 1989 Act. Both the
House and Senate committee reports accompanying the 1994 amendments
criticized these decisions, particularly those limiting the types of
disclosures covered by the WPA. Specifically, this Committee explained
that the 1994 amendments were intended to reaffirm its long-held view
that the plain language of the Whistleblower Protection Act covers any
disclosure:
The Committee * * * reaffirms the plain language of
the Whistleblower Protection Act, which covers, by its
terms, ``any disclosure,'' of violations of law, gross
mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to
public health or safety. The Committee stands by that
language, as it explained in its 1988 report on the
Whistleblower Protection Act. That report states: ``The
Committee intends that disclosures be encouraged. The
OSC, the Board and the courts should not erect barriers
to disclosures which will limit the necessary flow of
information from employees who have knowledge of
government wrongdoing. For example, it is inappropriate
for disclosures to be protected only if they are made
for certain purposes or to certain employees or only if
the employee is the first to raise the issue.''\7\
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\7\S. Rep. No. 103-358 (1994), at 10 (quoting S. Rep. No. 100-413
(1988) at 13).
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Similarly, the House stated:
Perhaps the most troubling precedents involve the
Board's inability to understand that ``any'' means
``any.'' The WPA protects ``any'' disclosure evidencing
a reasonable belief of specified misconduct, a
cornerstone to which the MSPB remains blind. The only
restrictions are for classified information or material
the release of which is specifically prohibited by
statute. Employees must disclose that type of
information through confidential channels to maintain
protection; otherwise there are no exceptions.\8\
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\8\H. Rep. No. 103-769, at 18 (1994).
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Clarification of what constitutes a protected disclosure under the WPA
Despite the intended clarification of the 1994 amendments,
it is necessary again, due to certain court decisions, to state
legislatively what constitutes a protected disclosure under the
WPA. For example, in Horton v. Department of the Navy,\9\ the
court ruled that disclosures to co-workers or to the wrongdoer
are not protected because the disclosures are not made to
persons in a position to redress wrongdoing. In Willis v.
Department of Agriculture,\10\ the court stated in dictum that
a disclosure made as part of an employee's normal job duties is
not protected. And in Meuwissen v. Department of Interior,\11\
the court held that disclosures of information already known
are not protected.
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\9\66 F.3d 279 (Fed. Cir. 1995).
\10\141 F.3d 1139 (Fed. Cir. 1998).
\11\234 F.3d 9 (Fed. Cir. 2000).
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In some cases, the MSPB has undertaken a careful
examination of broad language in Federal Circuit decisions, and
limited the holding to its facts.\12\ In Askew v. Department of
the Army, the MSPB additionally concluded that loose language
in Meuwissen\13\ was broader than necessary to decide the case
and sensibly limited the holding to its factual context.\14\
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\12\See, e.g., Johnson v. Department of Health and Human Services,
87 M.S.P.R. 204, 210 (2000) (limiting Willis to its factual context and
rejecting claim that Willis stood for the broad proposition that had
been rejected by both the MSPB and the Federal Circuit); accord Askew
v. Department of the Army, 88 M.S.P.R. 674, 679-80 (2001) (cautioning
that Willis ought not be read too broadly and rejecting the proposition
that Willis held that ``disclosure of information in the course of an
employee's performance of her normal duties cannot be protected
whistleblowing''); Sood v. Department of Veteran Affairs, 88 M.S.P.R.
214, 220 (2001); Czarkowski v. Department of the Navy, 87 M.S.P.R. 107
(2000).
\13\234 F.3d 9 (Fed. Cir. 2000) .
\14\88 M.S.P.R. 674, 681-82 (2001).
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In other cases, the Federal Circuit itself has acknowledged
that its holdings have generated confusion, and attempted to
eliminate some of that confusion by narrowing some overbroad
loopholes that (a) disclosures must be made to a person with
actual authority to correct the wrong, and (b) disclosures made
in the normal course of employment duties are not
protected.\15\
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\15\See Huffman v. Office of Personnel Management, 263 F.3d 1341
(Fed. Cir. 2001).
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The evident difficulty in settling upon a precise scope of
protection appears to be driven, at least in part, by concern
that management of the federal workforce may become unduly
burdensome if it is too easy to claim whistleblower status in
ordinary employment disputes.\16\ Certainly the Department of
Justice has voiced this concern with the scope of whistleblower
protection. In addition, prior to the Committee's consideration
of the bill at its business meeting on June 13, 2007, Senator
Coburn notified the Committee of his similar concern, ``that
this bill may inadvertently create opportunities for an
increase in false accusations of retaliation.''\17\ These are
concerns that the Committee takes seriously. However, S. 274 is
intended to resolve this policy tension by strengthening
whistleblower protection, with the recognition that we can take
other steps to deter and weed out frivolous whistleblower
claims, but that we cannot begin to calculate the potential
damage to the nation should good-faith whistleblowing become
chilled by a hostile process on the threshold question of what
constitutes a ``disclosure.''
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\16\See, e.g., Herman v. Department of Justice, 193 F.3d 1375 (Fed.
Cir. 1999); Frederick v. Department of Justice, 73 F.3d 349, 353 (Fed.
Cir. 1996).
\17\Letter from Senator Tom Coburn, M.D., to Joseph I. Lieberman,
Chairman of the Committee on Homeland Security and Governmental
Affairs, June 11, 2007.
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S. 274 accordingly amends the WPA to cover any disclosure
of information ``without restriction to time, place, form,
motive or context, or prior disclosure made to any person by an
employee or applicant, including a disclosure made in the
ordinary course of an employee's duties.''
While S. 274 definitively resolves the scope of protected
disclosures in favor of the broadest protection--and
effectively restores Congress' original intent--we note that
the MSPB has issued regulations that may be used to curtail or
prevent frivolous litigation potentially filed for harassment
purposes. Under 5 C.F.R. 1201.43, an administrative judge may
impose any sanctions necessary to meet the interests of
justice. Under 5 C.F.R. 1201.55(d), the administrative judge
may impose a protective order against witness harassment,
including harassment against one of the parties to the case.
Decisions issued by the Federal Circuit and MSPB also require
an employee to make a non-frivolous allegation meeting the
elements for a prima facie case before there can be a hearing,
or before the agency has any burden to present an affirmative
defense; the legislation does not change that requirement.\18\
S. 274 does not affect these regulations or judicial decisions.
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\18\See, e.g., Yunus v. Department of Veterans Affairs, 242 F.3d
1367 (Fed. Cir. 2001); Rusin v. Department of Treasury, 92 M.S.P.R.
1298 (2002).
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A prima facie whistleblower case additionally requires a
showing that the employee reasonably believes that the
disclosure evidences a violation of law or other enumerated
items in 5 U.S.C. Sec. 2302(b)(8). As detailed further below,
the Federal Circuit has held that the reasonable belief test is
an objective one, viz., whether a disinterested observer with
knowledge of the facts known to and readily ascertainable by
the employee could reasonably conclude that the conduct
evidences a violation of law, gross mismanagement, or other
matters identified in 5 U.S.C. Sec. 2302(b)(8).\19\ The
Committee deems it prudent to codify that objective test in the
whistleblower statute, and has done so in S. 274. Thus, in
screening frivolous claims, the focus would properly shift to
the objective reasonableness of the employee's belief rather
than the definition of disclosure. In our view, potential
mischief with an expanded scope of protection may be countered
by careful application of this objective reasonable belief
test. Failing this filter, the agency may still prevail with a
defense that it would have taken the same action even absent
the disclosure. But in this latter scenario, there may still be
some collateral benefit from providing a forum to explore and
discuss the underlying claim.
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\19\Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); accord
Rusin v. Department of the Treasury, 92 M.S.P.R. 298 (2002).
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To further address the concerns that Senator Coburn has
expressed about false accusations of retaliation, the Committee
agreed that Senator Coburn will offer an amendment to S. 274,
prior to its passage by the Senate, and that the Chairman and
Ranking Member will recommend that the Senate agree to the
amendment. The amendment will require the Government
Accountability Office (GAO) to evaluate the implementation of
the Act, including any trends in the number of cases filed and
the disposition of those cases, and any patterns of abuse. The
amendment will also require the MSPB to report annually on the
number of cases filed, the number of petitions for review
filed, and the disposition of cases alleging violations of
sections 2302(b)(8) or (9) of title 5, United States Code. The
Committee believes that these provisions will enable Congress
to examine closely how this bill is implemented and to
intervene if necessary if an unintended consequence of the
legislation should become evident.
Finally, the Committee does acknowledge one reasonable
limitation on the scope of protected disclosures that emerged
during the hearing on this bill's predecessor, S. 1358. The
Senior Executives Association testified that they believed that
an unrestricted scope of protected disclosure could be
construed to include lawful policy decisions of a supervisor or
manager, and recommended that the bill be clarified to deny
protection for disclosures that relate only to agency policy
decisions that a reasonable employee should follow.\20\ Put
another way, disclosures must be specific and factual, not
general, philosophical, or policy disagreements. S. 274
incorporates that limitation, which reflects congressional
intent at the inception of statutory whistleblower
protection.\21\
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\20\S. 1358--The Federal Employee Protection of Disclosures Act:
Amendments to the Whistleblower Protection Act: Hearing on S. 1358
Before the Committee on Governmental Affairs, S. Hrg. 108-414, at 163
(2003).
\21\See S. Rep. No. 969, 95th Cong., 2d Sess. 8 (1978), reprinted
in 1978 U.S.C.C.A.N. 2723, 2730 (``the Committee intends that only
disclosures of public health or safety dangers which are both
substantial and specific are to be protected. Thus, for example,
general criticisms by an employee of the Environmental Protection
Agency that the agency is not doing enough to protect the environment
would not be protected under this subsection.'').
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At the same time, the Committee recognizes the need to curb
a disturbing trend to believe that the WPA does not cover
disclosures of tangible misconduct arguably flowing from a
policy decision. As a result, S. 274 provides balance by
codifying that an employee is still protected for disclosing
evidence of illegality, gross waste, gross mismanagement, abuse
of authority or a substantial and specific danger to public
health or safety, if it is evidence of empirical consequences
arguably resulting from a policy decision, whether properly or
improperly implemented. This language is consistent with
Federal Circuit precedent.\22\
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\22\Gilbert v. Dept. of Commerce, 194 F.3d 1332 (Fed. Cir. 1999).
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Reasonable Belief--Irrefragable Proof
As noted above, a prima facie whistleblower case entails a
showing that the employee reasonably believes that the
disclosure evidences a violation of law, rule, or regulation,
or gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public
health and safety. The test for reasonable belief, as developed
in case law and prospectively codified in S. 274, is an
objective one. However, the Federal Circuit added the burden of
``irrefragable proof'' to rebut the standard presumption that
the government acts in good faith.\23\ S. 274 would purge the
word ``irrefragable'' from whistleblower jurisprudence.
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\23\Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
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In Lachance v. White, the Office of Personnel Management
(OPM) sought review of an MSPB order that found that White made
protected disclosures resulting in a downgrade in position. OPM
argued that White's belief that he uncovered gross
mismanagement (an allegedly wasteful Air Force education
program) was inadequate to support a violation of the WPA
without an independent review of the reasonableness of the
belief by MSPB. The Federal Circuit agreed and stated that MSPB
must look for evidence that it was reasonable to believe that
the disclosures revealed misbehavior by the Air Force described
by 5 U.S.C. 2302(b)(8). The court said that the test is:
``Could a disinterested observer with knowledge of the
essential facts known to and readily ascertainable by the
employee reasonably conclude that the actions of the government
evidence gross mismanagement? A purely subjective perspective
of an employee is not sufficient even if shared by other
employees.''\24\
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\24\Id.
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However, the court then added that the reasonableness
review must begin with the ``presumption that public officers
perform their duties correctly, fairly, in good faith, and in
accordance with the law and governing regulations. * * * And
this presumption stands unless there is `irrefragable proof' to
the contrary.''\25\ Irrefragable means impossible to
refute.\26\ Read literally, therefore, the holding would have
required employees to establish the reasonableness of their
belief at the threshold by offering indisputable proof that the
public official or officials acted in bad faith or violated the
law. Such an evidentiary burden is contrary to logic and clear
congressional intent. Fortunately, the MSPB recognized the
misstep on remand.
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\25\Id. (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795
(Fed. Cir. 1993)).
\26\Merriam-Webster's Collegiate Dictionary (10th ed. 1999). The
peculiar word has some currency in other jurisprudence entrusted to the
Federal Circuit, government contracting for example, though the concept
there is usually ``almost irrefragable,'' or ``well nigh
irrefragable''--rendered in familiar terms as ``clear and convincing.''
See, e.g., Galen Medical Associates, Inc. v. United States, 369 F.3d
1324, 1330 (Fed. Cir. 2004).
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In 2003, on remand from the Federal Circuit, the MSPB
sensibly ruled that:
The WPA clearly does not place a burden on an
appellant to submit ``irrefragable proof'' to rebut a
presumption that federal officials act in good faith
and in accordance with law. There is no suggestion in
the legislative history of the WPA that Congress
intended such a burden be placed on an appellant. When
Congress amended the WPA in 1994, it did nothing to
indicate that the objective test, which had been
articulated by the Board by that time, was inconsistent
with the statute. The dictionary definition of
``irrefragable'' suggests that a putative whistleblower
would literally have to show that the agency actually
engaged in gross mismanagement, even though the WPA
states that he need only have a reasonable belief as to
that matter. The Federal Circuit itself has not imposed
an ``irrefragable proof'' burden on appellants in cases
decided after White * * * and has, in fact, stated that
the ``proper test'' is the objective, ``disinterested
observer'' standard.
As the objective test contemplates, the Board can
presume that ``public officers perform their duties
correctly, fairly, in good faith, and in accordance
with the law and governing regulations,'' which is the
portion of Alaska Airlines, Inc. v. Johnson quoted by
the court in White. . . . That presumption is merely
one consideration in deciding whether a reasonable
person in the appellant's situation could have believed
that the agency engaged in gross mismanagement. For all
of the above reasons, we conclude that the part of the
quote from Alaska Airlines dealing with a rebuttal of
that presumption by irrefragable proof has to be dictum
which was simply added to the end of the quotation from
Alaska Airlines, a case which had nothing to do with
the WPA or the case law that had developed on the
objective test for reasonable belief under that
statute.\27\
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\27\White v. Dept. Air Force, 95 M.S.P.R. 1 at 7-8 (MSPB September
11, 2003).
On December 15, 2004, the Federal Circuit ruled on this
case on appeal from the MSPB.\28\ The Court said:
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\28\White v. Dept. Air Force, 391 F. 3d 1377, 1381 (Fed. Cir.
2004).
The Board properly rejected the government's argument
below that disclosure of gross mismanagement required a
showing of ``irrefragable proof'' that agency officials
did not perform their duties correctly\29\ and the
government wisely makes no attempt to renew this
argument on review. The WPA does not require that
whistleblowers establish gross mismanagement by
irrefragable proof. Rather, we specifically held in
White that ``the proper test is this: could a
disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the
employee reasonably conclude that the actions of the
government evidence gross mismanagement?''\30\
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\29\White v. Dept. Air Force, supra note 27, at 7-10.
\30\White v. Dept. Air Force, supra note 28.
S. 274 codifies the objective reasonable belief test in
Lachance for all whistleblower disclosures, which is the sole
requirement for the quantum of proof to engage in protected
whistleblowing. The bill also provides that any presumption
that a public official (i.e., the official whose misconduct the
whistleblower is disclosing) acted in good faith may be
rebutted by ``substantial evidence'' rather than ``irrefragable
proof.'' Substantial evidence has been defined by the Supreme
Court as ``such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.''\31\ It consists
of ``more than a mere scintilla of evidence but may be somewhat
less than a preponderance.''\32\ By establishing a substantial
evidence test, the Committee intends to provide a standard that
will not be a higher burden than the preponderance of the
evidence standard that employees must meet to prove their case
on the merits, which is consistent with the legislative history
of the Act. Indeed, a cornerstone of 5 U.S.C. Sec. 2302(b)(8)
since its initial passage in 1978 has been that an employee
need not ultimately prove any misconduct to qualify for
whistleblower protection. All that is necessary is for the
employee to have a reasonable belief that the information is
evidence of misconduct listed in section 2302(b)(8).\33\ The
Committee wishes to emphasize that there can be no additional
burdens imposed on the employee beyond those provided by
statute, and that the statutory definition must be applied
consistently to each protected speech category in section
2302(b)(8).
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\31\Richardson v. Perales, 402 U.S. 389, 401 (1971).
\32\Hays v. Sullivan, 907 F. 2d 1453, 1456 (4th Cir. 1990) (quoting
Laws v. Celebrezze, 368 F. 2d 640, 642 (4th Cir. 1966)).
\33\Ramos v. FAA, 4 M.S.P.R. 388 (1980).
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All-circuit review
When the Civil Service Reform Act of 1978 was enacted, it
gave employees an option of where to appeal final orders of the
MSPB. The 1978 Act allowed a petition to be filed in either the
Court of Claims, the U.S. Court of Appeals for the circuit
where the petitioner resided, or the U.S. Court of Appeals for
the D.C. Circuit.\34\ In 1982, when the Federal Circuit was
created, Congress established that petitions for review of an
MSPB order could be filed only with the Federal Circuit.\35\
(An exception applies to cases of discrimination before the
MSPB, which are filed in district court under the applicable
anti-discrimination law).\36\
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\34\Public Law No. 95-454, Sec. 205, 92 Stat. 1143 (Oct. 13, 1978)
(adding 5 U.S.C. Sec. 7703).
\35\Public Law No. 97-164, Sec. 144 (April 2, 1982).
\36\5 U.S.C. Sec. 7702, 7703(b)(2).
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During the hearing on S. 1358, attorney Stephen Kohn,
Chairman of the National Whistleblower Center, testified that:
Restricting appeals to one judicial circuit
undermines the basic principle of appellate review
applicable to all other whistleblower laws. That
principle is based on an informed peer review process
which holds all circuit judges accountable. * * * [As
appeals courts disagree with each other,] courts either
reconsider prior decisions and/or the case is heard by
the Supreme Court, which resolves the dispute.
By segregating federal employee whistleblowers into
one judicial circuit, the WPA avoids this peer review
process and no ``split in the circuits'' can ever
occur. In the Federal Circuit no other judges
critically review the decisions of the Court, no
``split in the circuits'' can ever occur, and thus
federal employees are denied the most important single
procedure which holds appeals court judges reviewable
and accountable. A ``split in the circuits'' is the
primary method in which the U.S. Supreme Court reviews
wrongly decided appeals court decisions.
Employees cannot obtain meaningful Supreme Court
review of cases decided against whistleblower, but the
government-employers can. The second method for which
an appeals court decision is subject to Supreme Court
review, is when the Solicitor of the United States
asserts that the case raises a significant question of
law. In the case of the WPA, the Solicitor represents
the employer-agency. That authority has never (and most
likely can never) been exercised in support of an
employee-whistleblower.\37\
\37\Hearing supra note 20, (statement of Stephen Kohn, Chairman,
Board of Directors, National Whistleblower Center) at 136.
The Committee believes that this argument raises valid
points about the current arrangement for judicial review.
Moreover, unlike federal employee whistleblower cases, a number
of federal statutes already allow cases involving rights and
protections of federal employees, or involving whistleblowers,
to be subject to multi-circuit review, i.e., they may be
appealed to Courts of Appeals across the country. Decisions of
the Federal Labor Relations Authority (FLRA) may be appealed to
Court of Appeals for the Circuit where the petitioner resides
or to the D.C. Circuit.\38\
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\38\5 U.S.C. Sec. 7123.
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In addition, in cases involving allegations of
discrimination, cases decided by the MSPB may be brought in the
United States District Courts. State or local government
employees affected by the MSPB's Hatch Act decisions may also
obtain review in the U.S. District Courts.\39\ Appeal from
decisions of the District Courts in these cases may then be
brought in the appropriate Court of Appeals for the appropriate
Circuit.
---------------------------------------------------------------------------
\39\5 U.S.C. Sec. 1508.
---------------------------------------------------------------------------
Moreover, a multi-circuit appellate review process is
available under existing law for several kinds of whistleblower
claims. For example, under the False Claims Act, as amended in
1986, whistleblowers who disclose fraud in government contracts
can file a case in District Court and appeal to the appropriate
Federal Court of Appeals.\40\ Congress passed the Resolution
Trust Corporation Completion Act in 1993, which provided
employees of banking related agencies the right to go to
District Court and have regular avenues of appeal.\41\ In 1991,
Congress passed the Federal Deposit Insurance Corporation
Improvement Act which provides district court review with
regular avenues of appeal for whistleblowers in federal credit
unions.\42\
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\40\31 U.S.C. Sec. 3730(h).
\41\12 U.S.C. Sec. 1441a(q).
\42\12 U.S.C. Sec. 1790b(b).
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Department of Labor corporate whistleblower laws passed as
part of the Energy Reorganization Act, as amended in 1992,\43\
and the Clean Air Act, as amended in 1977,\44\ allow
whistleblowers to obtain review of orders issued in the
Department of Labor administrative process in the appropriate
Federal Court of Appeals. The Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century (AIR 21),\45\
passed in 2000, allows whistleblowers to obtain review of their
cases in the appropriate Federal Court of Appeals.
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\43\42 U.S.C. Sec. 5851(c).
\44\42 U.S.C. Sec. 7622(c).
\45\49 U.S.C. Sec. 42121(b)(4).
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Subject to a five-year sunset, S. 274 would conform the
system for judicial review of federal whistleblower cases to
that established for private sector whistleblower cases and
certain other federal employee appeal systems by suspending the
Federal Circuit's exclusive jurisdiction over whistleblower
appeals. The five-year period will allow Congress to evaluate
whether decisions of other appellate courts in whistleblower
cases are consistent with the Federal Circuit's interpretation
of WPA protections, guide Congressional efforts to clarify the
law if necessary, and determine if this structural reform
should be made permanent.
Office of Special Counsel--Amicus Curiae Authority
The OSC, initially established in 1979 as the investigative
and prosecutorial arm of the MSPB, became an independent agency
within the Executive Branch, separate from the MSPB, with
passage of the WPA in 1989. The Special Counsel does not serve
at the President's pleasure, but ``may be removed by the
President only for inefficiency, neglect of duty, or
malfeasance in office.''\46\ The primary mission of OSC is to
protect federal employees and applicants from prohibited
employment practices, with a particular focus on protecting
whistleblowers from retaliation. OSC accomplishes this mission
by investigating complaints filed by federal employees and
applicants that allege that federal officials have committed
prohibited personnel practices.
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\46\5 U.S.C. Sec. 1211(b).
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When such a claim is filed by a federal employee, OSC
investigates the allegation to determine whether there are
reasonable grounds to believe that a prohibited personnel
practice has occurred. If the Special Counsel determines there
are reasonable grounds to believe that a prohibited personnel
practice has occurred, a report is sent to the head of the
employing agency, outlining OSC's findings and requesting that
the agency remedy the illegal action. In the majority of cases
in which the Special Counsel believes that a prohibited
personnel practice has occurred, the agencies voluntarily take
corrective action.\47\ If an agency does not do so, OSC is
authorized to file a petition for corrective action with the
MSPB.\48\
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\47\U.S. Office of Special Counsel, Annual Report for Fiscal Year
2003, at 7.
\48\5 U.S.C. Sec. 1214(b)(2)(C).
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If the OSC does not send the whistleblower's disclosures to
an agency head, it returns the information and any accompanying
documents to the whistleblower explaining why the Special
Counsel did not refer the information. In such a situation, the
whistleblower may file a request for corrective action with the
MSPB. This procedure is commonly known as an individual right
of action (IRA). At proceedings before the MSPB, OSC is
represented by its own attorneys while the employing agency is
represented by the agency's counsel. In IRAs, OSC may not
intervene unless it has the consent of the whistleblower.
Under this system, however, OSC's ability to effectively
enforce and defend whistleblower laws is limited. For example,
the law provides the OSC with no authority to request that the
MSPB reconsider its decision or to seek review of an MSPB
decision by the Federal Circuit. Even when another party with
authority to petition for a review of an MSPB decision does so,
OSC has historically been denied the right to participate in
those proceedings. Further, OPM, which typically is not a party
to the case, can request that the MSPB reconsider its rulings,
while OSC cannot. OSC's handicap is especially acute because
the majority of the MSPB's whistleblower decisions arise in IRA
cases where OSC is not a party.
Furthermore, the Department of Justice (DOJ) has recognized
OSC's right to appear as an intervenor only in those few cases
where OSC was a party before the Board and the case reaches the
court of appeals on another party's petition for review. These
cases usually involve agency officials' efforts to reverse
Board decisions that have granted a petition by OSC to impose
discipline for retaliating against a whistleblower. Because OSC
lacks independent litigating authority, it must be represented
by the Justice Department, rather than its own attorneys in
such cases. DOJ's representation of OSC could be a significant
impediment to the effective enforcement of the WPA because DOJ
routinely represents employing agencies and their officers or
OPM on appeal in IRA cases. Indeed, DOJ itself could be the
respondent in such cases.
As a result of the current structure, OSC is blocked from
participating in the forum in which the law is largely shaped:
the U.S. Court of Appeals for the Federal Circuit (and, if this
legislation is enacted, the other Circuits). Should the OSC
conclude that MSPB misinterprets one of the laws within OSC's
jurisdiction, the OSC has no right to appeal that decision,
even if it was a party before the MSPB. This limitation
undermines both OSC's ability to protect whistleblowers and the
integrity of the whistleblower law.
The Committee believes that OSC should play a role in
whistleblower cases before the Federal Circuit. As such, S. 274
provides the Special Counsel with authority to file amicus
briefs with the federal courts on matters relating to
whistleblower cases or other matters designated in the bill.
This authority is similar to that granted to the Chief Counsel
for Advocacy of the Small Business Administration. Under
section 612 of the Regulatory Flexibility Act (RFA),\49\ the
Chief Counsel for Advocacy has the authority to appear as
amicus curiae (i.e., ``friend of the court'') in any court
action to review a government rule. Specifically, the Chief
Counsel is authorized to present views with respect to
compliance with the RFA, the adequacy of a rulemaking record
pertaining to small entities, and the effect of rules on small
entities. Federal courts are bound to grant the amicus curiae
application of the Chief Counsel.\50\
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\49\Public Law No. 96-354.
\50\5 U.S.C. Sec. 612(c).
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Before passage of the Small Business Regulatory Enforcement
Fairness Act (SBREFA) in 1988,\51\ there was no judicial review
of RFA actions, and the Chief Counsel's amicus authority was
frequently challenged. However, merely the threat of exercising
the authority could achieve corrective action.
---------------------------------------------------------------------------
\51\Public Law No. 104-121.
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For example, in 1994, the Chief Counsel prepared an amicus
curiae brief in Time Warner Entertainment Company v. FCC.\52\
The Chief Counsel argued, among other things, that
noncompliance with the RFA was arbitrary and capricious under
the Administrative Procedure Act. After last-minute
negotiations, the FCC agreed to alter its policy and the Chief
Counsel withdrew its notice of intent to file. Furthermore, in
Southern Offshore Fishing Association v. Daley,\53\ the Chief
Counsel withdrew its notice of intent to file after it was able
to obtain an agreement from the Department of Justice (DOJ)
that the proper standard of review in RFA cases is the
``arbitrary and capricious'' standard. This acknowledgment from
DOJ was significant--not only because it conceded the use of
the appropriate standard, but also because it implicitly
accepted the Chief Counsel's authority to file amicus briefs.
This concession was important as DOJ had always objected to
Advocacy's right to file such briefs in the past.
---------------------------------------------------------------------------
\52\56 F.3d 151 (D.C. Cir. 1995), cert. denied, 516 US 112 (1996).
\53\995 F. Supp. 1411 (M.D. Fla. 1998).
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The Committee believes that granting this authority to OSC
is necessary, not only to ensure OSC's effectiveness, but also
to address continuing concerns about the whittling away of the
WPA's protections by narrow judicial interpretations of the
law.
Burden of proof in OSC disciplinary actions
Current law authorizes the OSC to pursue disciplinary
action against managers who retaliate against whistleblowers.
More generally, if the Special Counsel determines that
disciplinary action should be taken against an employee for
having committed a prohibited personnel practice or other
misconduct within OSC's purview, the Special Counsel shall
present a written complaint to the MSPB, and then the Board may
issue an order taking disciplinary action against the
employee.\54\
---------------------------------------------------------------------------
\54\5 U.S.C. Sec. 1215.
---------------------------------------------------------------------------
However, under MSPB case law, OSC bears the burden of
demonstrating that protected activity was the ``but-for cause''
of an adverse personnel action against a whistleblower--in
other words, if the whistleblowing activity had not occurred,
then that manager would not have taken the adverse personnel
action.\55\ This can be a heavy burden to meet. In 1989,
Congress lowered the burden of proof for whistleblowers to win
corrective action against retaliation. The 1989 Act eliminated
the relevance of employer motives, eased the standard to
establish a prima facie case (showing that the protected speech
was a contributing factor in the action), and raised the burden
for agencies, who must now provide independent justification
for the personnel action at issue by clear and convincing
evidence.\56\ However, the 1989 statutory language only
established burdens for defending against retaliation. It
failed to address disciplinary actions. As a result, the Board
has on many occasions ruled that whistleblower reprisal had
been proven for purposes of providing relief to the employees,
but rejected OSC's claim for disciplinary action against the
managers in the same case.\57\
---------------------------------------------------------------------------
\55\Special Counsel v. Santella, 65 M.S.P.R. 452 (1994).
\56\5 U.S.C. Sec. Sec. 1214 and 1221. See also 135 Cong. Rec. 4509,
4517, 5033 (1989).
\57\Letter from Elaine Kaplan, Special Counsel, Office of Special
Counsel, to Sen. Carl Levin (Sept. 11, 2002) (explaining that MSPB case
law relating to OSC's disciplinary authority should be overturned, Ms.
Kaplan wrote ``change is necessary in order to ensure that the burden
of proof in these [disciplinary] cases is not so onerous as to make it
virtually impossible to secure disciplinary action against
retaliators.'').
---------------------------------------------------------------------------
The bill addresses the burden of proof problem in OSC
disciplinary action cases by employing the same burden-of-proof
as was set forth by the Supreme Court in Mt. Healthy v.
Doyle.\58\ Under the Mt. Healthy test, OSC would have to show
that protected whistleblowing was a ``significant, motivating
factor'' in the decision to take or threaten to take a
personnel action, even if other factors were considered in the
decision. If OSC made such a showing, the MSPB would order
appropriate discipline unless the official showed, ``by a
preponderance of evidence,'' that he or she would have taken or
threatened to take the same personnel action even if there had
been no protected whistleblower disclosure.
---------------------------------------------------------------------------
\58\Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977).
---------------------------------------------------------------------------
OSC Attorney Fees
OSC has authority to pursue disciplinary action against
managers who retaliate against whistleblowers. Currently, if
OSC loses a disciplinary case, it must pay the legal fees of
those against whom it initiated the action. Because the amounts
involved could significantly deplete OSC's limited resources,
requiring OSC to pay attorney fees can have a chilling effect
on OSC's aggressive protection of the WPA and whistleblowers.
Illustrative of the problem and the importance of S. 274's
solution is Santella v. Special Counsel.\59\ In a 2-1 decision,
the Board held that OSC could be held liable to pay attorney
fees, even in cases where its decision to prosecute was a
reasonable one, if the accused agency officials were ultimately
found ``substantially innocent'' of the charges brought against
them. The Board majority further ruled that two supervisors in
the Internal Revenue Service (IRS) were ``substantially
innocent'' of retaliation, notwithstanding an earlier finding
by an MSPB administrative law judge that their subordinates'
whistleblowing was a contributing factor in four personnel
actions the supervisors took against them.
---------------------------------------------------------------------------
\59\86 M.S.P.R. 48 (May 9, 2000).
---------------------------------------------------------------------------
OSC argued that because its decision to prosecute the
supervisors was a reasonable one and based upon then-existing
law, an award of fees would not be in the interests of justice.
In fact, OSC contended, sanctioning an award of fees under
these circumstances would be counter to the public interest and
contrary to congressional intent that OSC vigorously enforce
the Whistleblower Protection Act by seeking the discipline of
supervisors who violate the Act. OSC also argued that, in the
alternative, if the supervisors were entitled to be reimbursed
for their attorney fees, then their employing agency, the IRS,
should be found liable.
The Board majority rejected OSC's arguments. It held that
OSC, and not IRS should be liable for any award of fees. It
further found that--because the supervisors had ultimately
prevailed in the case under the Board's more stringent burden
of proof--they were ``substantially innocent'' of the charges,
and reimbursement of their fees would be in the interests of
justice.
Vice Chair Slavet dissented. She observed that OSC had
presented ``direct evidence of retaliatory animus on the part
of one of the [supervisors] and circumstantial evidence of
retaliation supporting all the charges.'' Further, she noted,
``the majority opinion simply does not grapple with the fact
that the controlling law changed midstream. OSC proved its
charges to the satisfaction of the ALJ under the law as it
existed when the action was commenced, but lost when the test
was revised and made harder to meet in the course of the
litigation.'' Under these circumstances, then Vice Chair Slavet
observed, OSC's pursuit of the case was reasonable and an award
of fees was not in the interests of justice.
The Committee believes that OSC's disciplinary action
authority is a powerful weapon to deter whistleblowing
retaliation. However, OSC is a small agency with a relatively
limited budget. Should the Santella case remain valid law, OSC
would be required to predict to a certainty that it will
prevail and even predict the unpredictable: changes in the law
that might affect OSC's original assessment of a case's merit.
This burden would hinder OSC's disciplinary action weapon and
threaten its ability to protect the WPA. To correct this
problem, S. 274 would require the employing agency, rather than
OSC, to reimburse the manager's attorney fees.
Anti-gag provisions
In 1988, Senator Grassley attached an amendment to the
Treasury, Postal and General Government Appropriations bill,
which was and continues to be referred to as the ``anti-gag''
provision.\60\ This provision has been included in
appropriations legislation every year since then. The annual
anti-gag provision states that no appropriated funds may be
used to implement or enforce agency non-disclosure policies or
agreements unless there is a specific, express statement
informing employees that the disclosure restrictions do not
override their right to disclose waste, fraud, and abuse under
the WPA, to communicate with Congress under the Lloyd
Lafollette Act, and to make appropriate disclosures under other
particular laws specified in the addendum. This bill would
institutionalize the anti-gag provision by codifying it and
making it enforceable.
---------------------------------------------------------------------------
\60\Public Law No. 105-277, The Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999, Sec. 636.
---------------------------------------------------------------------------
Specifically, S. 274 would require every nondisclosure
policy, form, or agreement of the Government to contain the
specific addendum set forth in the legislation informing
employees of their rights. A nondisclosure policy, form or
agreement that does not contain the required statement may not
be implemented or enforced to the extent inconsistent with that
statement.
Furthermore, the bill makes it a prohibited personnel
practice for any manager to implement or enforce any
nondisclosure policy, form, or agreement that does not contain
the specific statement mandated in the bill. Making it a
prohibited personnel practice means that the anti-gag
requirement is enforceable by the OSC and the MSPB, and that an
employee can seek protection against a personnel action taken
in violation of the anti-gag requirement.
Board review of actions relating to security clearance
Since the terrorist attacks of September 11, 2001,
whistleblowers in several high profile cases have come forward
to disclose government waste, fraud, and abuse that posed a
risk to national security. However, several of these
individuals faced retaliatory action through means against
which the employees lacked protection--the removal of their
security clearance.\61\ When an individual's security clearance
is revoked or his or her access to classified information is
denied as a means of retaliation, the effective result is
typically employment termination without recourse to an
independent third-party proceeding. In light of the heightened
need to ensure that federal employees can come forward with
information vital to preserving our national security, the
Committee supports strengthening protections for
whistleblowers, including those whose security clearance or
access to classified information is the retaliatory vehicle.
---------------------------------------------------------------------------
\61\See Mark Hertsgaard, Nuclear Insecurity, Vanity Fair, Nov.
2003, at 175.
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In 2000, the Federal Circuit held that the MSPB lacks
jurisdiction over an employee's claim that his security
clearance was revoked in retaliation for whistleblowing.\62\ It
held that the MSPB may neither review a security clearance
determination nor require the grant or reinstatement of a
clearance, and that the denial or revocation of a clearance is
not a personnel action.
---------------------------------------------------------------------------
\62\Hesse v. State, 217 F.3d 1372 (Fed. Cir. 2000).
---------------------------------------------------------------------------
As a result of this decision, an employee's security
clearance or access to classified information can be suspended
or revoked in retaliation for making protected disclosures, the
employee can be terminated from his or her federal government
job because of the suspended or revoked clearance, and MSPB may
not review the suspension or revocation. According to the
former Special Counsel Elaine Kaplan, revocation of a security
clearance is a way to camouflage retaliation. At the hearing
during the 107th Congress on S. 995, one of the predecessor
bills to S. 274, Senator Levin asked Ms. Kaplan, then the
Special Counsel, about ``a situation where a federal employee
can blow the whistle on waste, fraud or abuse, and then, in
retaliation for so doing, have his or her security clearance
withdrawn and then be fired because he or she no longer has a
security clearance.'' Ms. Kaplan responded:
It is sort of Kafkaesque. If you are complaining
about being fired, and then one can go back and say,
``Well, you are fired because you do not have your
security clearance and we cannot look at why you do not
have your security clearance,'' it can be a basis for
camouflaging retaliation.\63\
---------------------------------------------------------------------------
\63\S. 995--Whistleblower Protection Act Amendments: Hearing on S.
995 before the Subcommittee on International Security, Proliferation,
and Federal Services of the Committee on Governmental Affairs, S. Hrg.
107-160 (2001) (testimony of Hon. Elaine Kaplan, Special Counsel,
Office of Special Counsel).
S. 274 makes it a prohibited personnel practice for a
manager to suspend, revoke, or take other action with respect
to an employee's security clearance or access to classified
information in retaliation for the employee blowing the
whistle. The bill specifies that the MSPB, or a reviewing
court, may issue declaratory and other appropriate relief. But
the legislation is clear that the MSPB or a reviewing court may
not direct the President or the President's designee to restore
or take other action with a security clearance or access to
classified information.
Appropriate relief may include back pay, an order to
reassign the employee, attorney fees, and any other relief the
Board or court is authorized to provide for other prohibited
personnel practices. In addition, if the Board finds the action
illegal, it may bar the agency from directly or indirectly
taking any other personnel action based on the illegal security
clearance or access determination action. The bill also
requires agencies to issue a report to Congress detailing the
circumstances of the agency's security clearance or access
decision. This report should include a summary of relevant
facts ascertained by the agency, including the facts in support
and those that do not support the allegations of the
whistleblowers, the reasons for the agency action, and a
response to any comments or findings by the MSPB or reviewing
court. If necessary, the report may contain a classified
addendum.
S. 274 also provides for expedited review of whistleblower
cases by the OSC, the MSPB and the reviewing court where a
security clearance was revoked or suspended. A person whose
clearance has been suspended or revoked, and whose job
responsibilities require clearance, may be unable to work while
his or her case is being considered.
In drafting this provision for previous whistleblower
legislation in the 107th Congress, the bill's sponsors and
others from the Committee worked with the Administration to
produce a fair and balanced approach to resolving this
matter.\64\ Despite these efforts, the Administration still has
expressed concerns over this provision. In particular, DOJ
asserts that this provision is a substantial intrusion into
Executive Branch prerogative to control national security
information and those who have access to it.\65\ We note again
that the proceedings contemplated by this provision do not
intrude upon any agency's authority to revoke a security
clearance. The focus of the contemplated proceedings is not
whether the national interest is served by granting or revoking
a security clearance, but whether an agency has unlawfully
retaliated against a whistleblower. We note further that
Executive Branch authority is not exclusive, and that Congress
properly plays a role.\66\
---------------------------------------------------------------------------
\64\Hearing supra note 20, at 172 (testimony of Sen. Charles
Grassley).
\65\Letter from William Moschella, Department of Justice, to Sen.
Fitzgerald on S. 1358 (Nov. 10, 2003) (see Hearing supra note 20, at
56).
\66\See Department of Navy v. Egan, 484 U.S. 518, 530 (1988)
(``unless Congress has specifically provided otherwise, courts
traditionally have been reluctant to intrude upon the authority of the
Executive in military and national security affairs) (emphasis added,
citations omitted).
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The Department of Justice has also argued that inclusion of
this protection would induce more employees to challenge and
litigate security clearance determinations and, as a result,
deter managers from making their best judgments on these
sensitive issues.\67\ The Committee, however, believes that the
language in this provision strikes an appropriate balance. It
bears repeating that, under this bill, the Executive Branch
retains the authority to ignore the MSPB's recommendations on
the restoration of a clearance of access. There is no authority
under this bill to direct that a security clearance or access
to classified information be restored.
---------------------------------------------------------------------------
\67\Moschella letter supra note 65.
---------------------------------------------------------------------------
The Committee recognizes that it seeks both a full and fair
examination of whistleblower claims as well as unfettered
agency authority to make sensitive security clearance
determinations--and that some tension between these important
goals may be inevitable. For example, the Board has
considerable latitude in fashioning relief for retaliation,
short of ordering restoration of the security clearance, but,
consistent with the standard principles for providing relief,
an agency might successfully resist relief that was so onerous
or costly as to be tantamount to ordering restoration. This
provision should not become an elevation of form over substance
such that agencies experience any diminution of their authority
to act in the national interest.
The Department has also claimed that the provision is
unnecessary, as all agencies are required to establish an
internal review board to consider appeals of security clearance
revocations, and cited the expertise of internal agency boards,
in contrast to the lack of MSPB expertise in making decisions
on clearances.\68\ However, the Committee is persuaded by the
testimony of Thomas Devine of the Government Accountability
Project, that the internal agency boards have a conflict of
interest in adjudicating such matters as the board judging the
dispute is also the adverse party. Moreover, internal review
boards often lack rudimentary procedural protections.
Whistleblowers may wait up to three years before even hearing
the accusations against them. Then, at the review itself,
whistleblowers are not allowed to present witnesses or
evidence.\69\
---------------------------------------------------------------------------
\68\Id.
\69\Hearing supra note 20 at 17-18 (testimony of Thomas Devine,
Legal Director, Government Accountability Project).
---------------------------------------------------------------------------
Regarding the expertise of the MSPB in adjudicating
security clearance determinations, S. 274 would permit the MSPB
to determine whether a disclosure is protected and whether
there exists the proper nexus between the disclosure and the
personnel action of denying or revoking a clearance or access
to classified information, but would not permit the MSPB to
make decisions relative to clearances. S. 274 does not
authorize Board review of the substance of a security clearance
determination, because Board review under S. 274 would evaluate
whether there was unlawful retaliation not whether the
clearance determination was otherwise proper. Such a
determination is analogous to MSPB's current duties and is
squarely within its expertise.
In testimony before the Committee, the Department of
Justice argued that the burden of proof in whistleblower cases
is fundamentally incompatible with the standard for granting
security clearances. DOJ pointed out that under the WPA, a
putative whistleblower establishes a prima facie case of
whistleblower retaliation by showing that there was a protected
disclosure and that a personnel action was taken within a
certain period of time following the disclosure. Once the
employee meets that burden, the burden shifts to the agency to
establish by clear and convincing evidence that it would have
taken the action absent the protected disclosure.
According to DOJ, the bill would require, in the security
clearance context, that where individuals make protected
disclosures, the agency must justify its security clearance
decision by the standard of clear and convincing evidence.
Thus, rather than awarding security clearances or granting
access to classified information only where clearly consistent
with the interests of national security--which is the standard
for granting or revoking security clearances and making access
determinations--agencies would be permitted to deny or revoke
them only upon the basis of clear and convincing evidence.\70\
---------------------------------------------------------------------------
\70\Hearing supra note 20 (testimony of Mr. Peter Keisler,
Assistant Attorney General, Civil Division, U.S. Department of
Justice).
---------------------------------------------------------------------------
The Department of Justice has raised a valid concern over
the appropriate burden of proof. The Committee emphasizes that
it does not intend any disruption of the security clearance
process, any chilling effect upon officials making these
sensitive determinations, or any creation of ``entitlement'' to
a security clearance. Our narrow purpose is to deter unlawful
retaliation against whistleblowers by revoking a security
clearance or denying access to classified materials, and thus
to close the loophole that security clearance revocations have
opened.
The Committee acknowledges that the conventional burden of
proof in whistleblower cases may not fairly integrate into the
security clearance determination process. Given the relative
ease with which putative whistleblowers may make a prima facie
showing, these cases are often decided based upon the agency's
showing that it would have taken the action regardless of the
whistleblowing. The agency's burden at this stage, however, is
clear and convincing evidence. The Committee concludes that in
the especially sensitive area of security clearance and
classified access determinations--where the threshold
presumption is that an individual is not entitled to such a
privilege--requiring ``clear and convincing'' evidence to
justify revocation might distort such determinations. Thus, S.
274 changes the agency's burden to mere preponderance. We
believe that such a change better preserves an agency's
discretion with respect to security clearance determinations,
and may also be less intrusive into the agency's security
clearance or classified access process.
Classified disclosures to Congress
Section 2302(b) of Title 5, United States Code, states that
nothing in this subsection shall be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses information
to the Congress. However, to clarify that employees should not
face retaliation for the disclosure of classified information
that evidences waste, fraud, and abuse, S. 274 amends 5 U.S.C.
Sec. 2302(b)(8) to provide statutory protections for certain
disclosures of classified information to Congress. A
whistleblower must limit the disclosure to a member of Congress
who is authorized to receive the information disclosed or
congressional staff who holds the appropriate security
clearance and is authorized to receive the information
disclosed. In order for a disclosure of classified information
to be protected, the employee must have a reasonable belief
that the disclosure is direct and specific evidence of a
violation of law, rule or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, a substantial and
specific danger to public health or safety, or a false
statement to Congress on an issue of material fact.
The language in this bill is very similar to a provision
ordered reported by the Senate Armed Services Committee in 1997
as Sec. 1068 of S. 924, the National Defense Authorization bill
for FY 1998. In 1998, another similar measure, containing
provisions affecting the Intelligence Community, was reported
by the Senate Intelligence Committee and passed the Senate by a
vote of 93 to 1, as Sec. 501 of S. 2052, the Intelligence
Authorization bill for FY 1999. The Senate provision was not
contained in the enacted legislation, which instead
incorporated a modified version of provisions that passed the
House. Those enacted provisions established a secure process by
which a whistleblower in the Intelligence Community intending
to disclose wrongdoing to Congress may initially report to the
appropriate inspector general, and then, if the information is
not transmitted to the Intelligence Committees through that
process, may contact the Intelligence Committees directly.\71\
The conferees explained that this measure ``establishes an
additional process to accommodate the disclosure of classified
information of interest to Congress,'' and emphasized that the
new provision ``is not the exclusive process by which an
Intelligence Community employee may make a report to
Congress.''\72\
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\71\Intelligence Authorization Act for FY 1999, Pub. L. No. 105-
272, title VII (1998) (``Intelligence Community Whistleblower
Protection Act of 1998'').
\72\H. Rep. No. 105-760 (1998) (emphasis added).
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The Senate Intelligence Committee had held hearings and
reported out S. 1668 which contained these same provisions in
1998. In its report, the Intelligence Committee described its
consideration of constitutional and other ramifications of the
legislation. That Committee was persuaded that the regulation
of national security information, while implicit in the command
authority of the President, is equally implicit in the national
security and foreign affairs authorities vested in Congress by
the Constitution. The Intelligence Committee was further
convinced that the provision was constitutional because it did
not prevent the President from accomplishing his
constitutionally assigned functions, and because any intrusion
upon his authority is justified by an overriding need to
promote objectives within the constitutional authority of
Congress.\73\
---------------------------------------------------------------------------
\73\S. Rep. No. 105-165 (1998).
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The provision in S. 274 is intended to ensure that Congress
receives the information necessary to fulfill its
constitutional oversight responsibilities, while protecting
employees from adverse actions based on what was considered an
unauthorized disclosure to Congress, and also retaining
appropriate security-related restrictions in defining the
individuals to whom classified information may be disclosed.
Although earlier versions of the Federal Employee
Protection of Disclosures Act sought to restate current
prohibitions against certain unauthorized disclosure of
classified information, this unnecessary and confusing language
has been omitted from S. 274.
To help ensure that employees are aware of those Members of
Congress and their staff who are authorized to receive
disclosures of classified information, S. 274 also requires
that agencies, as part of their educational requirements under
5 U.S.C. Sec. 2302(c) to inform employees of their
whistleblower rights and remedies, to inform employees how to
make a disclosure of classified information. Such education
could include appropriate questions to ask Members of Congress
and their staff to ensure that they have the appropriate
clearance and authorization, secure locations for disclosing
and transmitting classified information, and other information
that would assist potential whistleblowers in making a
protected disclosure without violating federal law.
Ex post facto agency loophole amendment
The WPA provides that certain employees and agencies are
exempt from the Act. Employees excluded from the Act include
those in positions exempted from the competitive service
because of their confidential, policy-determining, policy-
making, or policy advocating character and those employees
excluded by the President if necessary and warranted by
conditions of good administration.\74\ Certain agencies are
also excluded from the Act. They include the Government
Accountability Office, the Federal Bureau of Investigation, the
Central Intelligence Agency, the National Security Agency, and
other agencies determined by the President to have the
principal function of conducting foreign intelligence or
counterintelligence activities.\75\
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\74\5 U.S.C. Sec. 2302(a)(2)(B).
\75\5 U.S.C. Sec. 2302(a)(2)(B).
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In 1994 Congress amended the WPA to block agencies from
designating particular positions as confidential policymaker
exceptions after the employees in those positions filed
prohibited personnel practice complaints. As a result, Congress
restricted this jurisdictional loophole to positions designated
as exceptions ``prior to the personnel action.''\76\
Unfortunately, a similar practice has occurred again, in a
context with far broader consequences. An agency was exempted
from the Act over a year into whistleblower litigation, and
only after the Board had overturned an Administrative Judge's
decision to order a hearing.\77\ S. 274 would close the
loophole for agencies in the same manner as Congress did for
positions in 1994, by specifying that an agency may be excluded
under the Act only prior to the occurrence of any personnel
action against a whistleblower to which the exclusion of the
agency relates. The Committee believes that it is important for
employees to know their rights and protections under the WPA,
including if they have no rights under section 2302 before they
make any whistleblowing disclosure in reliance on the
protections of the WPA, and that this provision will aid in
helping employees determining the appropriate way to disclose
waste, fraud, and abuse.
---------------------------------------------------------------------------
\76\Id.
\77\See Czarkowski v. Dept. of Navy, Docket No. DC-1221-99-0547-B-
1. The agency invoked the exemption after the Board rejected an earlier
effort to avoid litigation on a different basis and ordered a hearing,
Czarkowski v. Dept. of the Navy, 87 M.S.P.R. 107 (2000).
---------------------------------------------------------------------------
Prohibition on retaliatory investigations
S. 274 codifies that an investigation of any employee can
constitute retaliation for making a whistleblowing disclosure.
This provision is already implicit in the catch-all provision
in 5 U.S.C. Sec. 2302(c)(2)(A)(xi). In the legislative history
to the 1994 Amendments, House Civil Service Subcommittee
Chairman Frank McCloskey highlighted retaliatory investigations
as a personnel action and noted that the primary criterion for
a prohibited threat is that alleged harassment is
discriminatory, or could have a chilling effect on merit system
duties and responsibilities.\78\ In 1997 the Board upheld this
legislative history in Russell v. Department of Justice and
affirmed that the WPA protects employees from retaliatory
investigations.\79\ Specifically, the Board held that ``[w]hen
* * * an investigation is so closely related to the personnel
action that it could have been a pretext for gathering evidence
to retaliate, and the agency does not show by clear and
convincing evidence that the evidence would have been gathered
absent the protected disclosure, then the appellant will
prevail on his affirmative defense of retaliation for
whistleblowing.''
---------------------------------------------------------------------------
\78\140 Cong. Rec. 29,353 (1994) and H.R. Rep. No. 103-769, at 15.
\79\76 M.S.P.R. 317, 323-24 (1997).
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However, DOJ expressed concerns with earlier versions of
this provision claiming that the term investigation is
undefined and that the breadth of the term could adversely
impact the ability of agencies to function. Specifically, DOJ
claimed that any type of inquiry by any agency--including
criminal investigations, routine background investigations for
initial employment, investigations for determining eligibility
for a security clearance, Inspector General investigations, and
management inquiries of potential wrongdoing in the workplace--
could be subject to challenge and litigation.\80\
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\80\Hearing supra note 20 at 60.
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To address this concern, S. 274 provides that protection
for retaliatory investigations does not extend to ministerial
or nondiscretionary fact finding activities necessary for the
agency to perform its mission.
Clarification of whistleblower rights for critical infrastructure
information
The Homeland Security Act encouraged corporations to submit
critical infrastructure information voluntarily to the
Department of Homeland Security (DHS) so that the Department
could assess potential security threats.\81\ To encourage
submission, the Act specifically stipulates that voluntarily
submitted critical infrastructure information is to be treated
as exempt under the Freedom of Information Act.\82\ According
to section 214(c) of the Act, nothing in the Act shall be
construed to limit or otherwise affect the ability of a State,
local, or Federal government entity or third parties to
independently obtain critical infrastructure information in a
manner not covered by this provision. However, the Act also
criminalizes the unauthorized disclosure of this type of
information. As such, the provision could be read to limit a
whistleblower's disclosure of independently obtained critical
information. According to former Special Counsel Elaine Kaplan:
---------------------------------------------------------------------------
\81\Pub. L. No. 107-296, Sec. 214.
\82\See 5 U.S.C. Sec. 552.
[T]he statutory language is very ambiguous in several
respects. The rights preserved under section 214(c)
extend to government entities, agencies, authorities
and ``third parties.'' It is unclear whether employees
of the United States would be considered ``third
parties.'' Elsewhere in section 214, the statute uses
the phrase ``officer or employee of the United States''
when it refers to disclosures by federal employees.
See, section 214(a)(1)(D).
Similarly, the phrase to ``use'' the information ``in
any manner permitted by law,'' does not clearly
encompass ``disclosures'' of information. Elsewhere, in
section 214(a)(1)(D), the statute states that an
officer or employee of the United States, shall not
``us[e] or disclos[e]'' voluntarily provided critical
infrastructure information. The use of the disjunctive
``use or disclose'' (emphasis added) in section
214(a)(1)(D) suggests that the word ``use'' alone in
section 214(c) may not encompass the act of
``disclosing.'' In short, it is unclear whether
Congress intended to authorize ``disclosures of
information'' that are protected by the WPA when it
authorized the ``use of information in any manner
permitted by law'' in section 214(c).
These ambiguities become especially troublesome in
the context of the tendency of the judiciary to
narrowly construe the scope of protection afforded
under the WPA.\83\
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\83\Letter from Elaine Kaplan, Special Counsel, Office of Special
Counsel, to Sen. Charles Grassley (March 10, 2003).
When DHS issued proposed regulations it received comments
expressing concern that whistleblowers could be treated
unfairly and subject to termination, fines, and imprisonment
which would discourage the accurate reporting of information
vital to the public. In its interim regulations published in
February 2004, DHS specifically referenced the WPA to ensure
full protections for whistleblowers.\84\ Although interim
regulations implementing section 214 of Public Law 107-296
appear to ensure that disclosures of independently obtained
critical infrastructure information are permitted, S. 274 would
codify, consistent with those regulations, that disclosures of
this type are free from criminal penalties and does not cancel
whisleblower rights in 5 U.S.C. Sec. 2302(b)(8).
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\84\6 C.F.R. Sec. 29.8(f) (2004).
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Right to a Full Hearing
Recent Board case law has created a disturbing trend by
canceling the employee's right to a due process hearing and a
public record to resolve disputes whether a whistleblower
validly disclosed information evidencing betrayal of the public
trust, and whether the disclosure in part contributed to
ensuing retaliation. The prevailing practice at the Board now
is to deny a forum on those issues if the agency first prevails
in its affirmative defense of proving by clear and convincing
evidence that it would have taken the same action for lawful
reasons independent of protected whistleblowing.\85\
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\85\Rusin v. Dept. of Treasury, 92 M.S.P.R. 298 (2002).
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While more efficient, this undermines two primary purposes
of the WPA. First, it provides whistleblowers with no
guaranteed forum to air grievances--some of which may be
legitimate and important even though the agency fairly and
independently took the disputed personnel action. Lost in this
procedure are an employee's: (1) opportunity to present
evidence that the dissent alleging misconduct was reasonable,
(2) opportunity to present evidence of illegal harassment; and
(3) opportunity to confront those responsible through cross-
examination on the record in a public hearing under oath.
Second, the current procedure which allows the agency to
present its evidence first precludes the Board from exercising
some of its most significant merit system oversight duties.
These include creating a record of both parties' positions on
alleged, serious misconduct that could threaten or harm
citizens. Similarly, it precludes the Board from a significant
merit system oversight function that Congress emphasized when
it passed the 1994 amendments to the Act. As the Joint
Explanatory statement for the WPA explained, ``Whistleblowing
should never be a factor that contributes in any way to an
adverse personnel action.''\86\ The duty is so significant that
under the 1994 amendments to the Act, the Board must refer
managers for OSC disciplinary investigation whenever there is a
finding that reprisal was a contributing factor in a personnel
action, even if the agency ultimately prevails on its
affirmative defense of independent justification.\87\ The
current procedure relieves the Board of these oversight
responsibilities, as long as the agency has an acceptable net
excuse for actions that may include attacks on the merit
system.
---------------------------------------------------------------------------
\86\Reprinted in 135 Cong. Rec. 5033 (1989).
\87\140 Cong. Rec. H11422 (daily ed. Oct 7, 1994) (statement of
Rep. McCloskey).
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S. 274 resolves this problem by making it a prerequisite
for presentation of the agency's defense that the employee has
first established a prima facie case that the protected
activity was a contributing factor in the personnel action.
III. Legislative History
S. 274 was introduced by Senators Akaka, Collins, Grassley,
Levin, Lieberman, Leahy, Voinovich, Carper, Durbin, Pryor, and
Lautenberg on January 11, 2007, and was referred to the
Committee on Homeland Security and Governmental Affairs. The
bill was referred to the Subcommittee on Oversight of
Government Management, the Federal Workforce, and the District
of Columbia (OGM) on March 30, 2007. Senator Kennedy joined as
a cosponsor of the legislation on May 24, 2007.
On June 12, 2007, OGM favorably polled out S. 274. On June
13, 2007, the Committee considered S. 274. Senator Akaka
offered a substitute amendment which more closely conformed S.
274 with legislative language that had passed the Senate during
the 109th Congress. That legislation had been introduced as S.
494 on March 2, 2005, favorably reported by the Committee on
April 13, 2005, and passed by the Senate as an amendment (S.
Amdt. 4351) to the John Warner National Defense Authorization
Act for Fiscal Year 2007, S. 2766, on June 20, 2006. Senator
Akaka's substitute amendment also removed unnecessary and
potentially confusing language related to criminal penalties
for unauthorized disclosure of classified information. The
substitute amendment was agreed to, and the bill, as amended,
was ordered reported favorably by voice vote.
S. 274 is the latest in a series of similar bills
considered by the Committee. As described above, legislation
introduced as S. 494 passed the Senate during the 109th
Congress. In the second session of the 108th Congress, S. 2628
was introduced on July 8, 2004, and favorably reported by the
Committee on July 21, 2004. In the first session of the 108th
Congress, an earlier version of the legislation, S. 1358, was
introduced on June 26, 2003. Previous versions of the
legislation include: S. 3070, introduced on October 8, 2002,
and favorably reported by the Committee on November 19, 2002;
S. 995, introduced on June 7, 2001; and S. 3190, introduced on
October 12, 2000.
On November 12, 2003, the Committee held a hearing on S.
1358, one of the predecessors to this legislation. Witnesses
included Senator Charles Grassley (R-IA); Mr. Peter Keisler,
Assistant Attorney General, Civil Division, U.S. Department of
Justice; Ms. Elaine Kaplan, attorney and former U.S. Special
Counsel; Mr. Thomas Devine, Legal Director, Government
Accountability Project; Mr. Stephen Kohn, Chairman, Board of
Directors, National Whistleblower Center; and Mr. William
Bransford, Partner, Shaw, Bransford, Veilleux & Roth, P.C., and
General Counsel to the Senior Executives Association. The
Committee also received written testimony from Ms. Susanne
Marshall, Chairman, U.S. Merit Systems Protection Board. On
July 25, 2001, the Subcommittee on International Security,
Proliferation, and Federal Services held a hearing on S. 995.
IV. Section-by-Section Analysis
Section 1(a) titles the bill as the Federal Employee
Protection of Disclosures Act.
Section 1(b) would clarify congressional intent that the
law covers ``any'' whistleblowing disclosure, whether that
disclosure is made as part of an employee's job duties,
concerns consequences of policy or individual misconduct, is
oral or written, or is made to any audience inside or outside
an agency, and without restriction to time, place, motive or
context. This section would also protect certain disclosures of
classified information to Congress, but only when the
disclosure is to a Member or legislative staff holding an
appropriate security clearance and authorized to receive the
type of information disclosed.
Section 1(c) would clarify the definition of ``disclosure''
to include a formal or informal communication or transmission,
but not to include legitimate policy decisions that lawfully
exercise discretionary agency authority unless the employee
reasonably believes the disclosure evidences government waste,
fraud, or abuse.
Section 1(d) addresses the reasonable belief test set forth
by the U.S. Court of Appeals for the Federal Circuit in
Lachance v. White. The court articulated an objective test for
determining whether a whistleblower had a reasonable belief
that the disclosed information evidenced waste, fraud, abuse,
or other violations or safety issues: could a disinterested
observer with knowledge of the essential facts known to and
readily ascertainable by the employee reasonably conclude that
the actions of the government evidence government waste, fraud,
or abuse? However, in the case of gross mismanagement the court
further required ``irrefragable proof''--literally meaning
undeniable and incontestable proof--to overcome the presumption
that a public officer performs his or her duties fairly,
lawfully, and in good faith. This section would codify the
objective test for reasonable belief, but would replace the
burden of irrefragable proof with substantial evidence.
Section 1(e)(1) would add three actions to the list of
prohibited personnel actions that may not be taken against
whistleblowers for protected disclosures: enforcement of a
nondisclosure policy, form or agreement; suspension,
revocation, or other determination relating to an employee's
security clearance or access determination; and investigation
(other than routine, non-discretionary agency investigations)
of an employee or applicant for employment.
Section 1(e)(2) would bar agencies from implementing or
enforcing against whistleblowers any nondisclosure policy, form
or agreement that fails to contain specified language
preserving the right of Federal employees to disclose certain
protected information. It would also prohibit a manager from
initiating a discretionary or non-routine investigation of an
employee or applicant for employment because the employee
engaged in protected activity.
Section 1(e)(3) would authorize the Merit Systems
Protection Board (MSPB) to conduct an expedited review of cases
charging retaliation under 5 U.S.C. Sec. 2302(b)(8) and (b)(9)
when an employee's security clearance or access determination
is suspended, revoked, or otherwise adversely affected. The
MSPB would be authorized to issue declaratory and other
appropriate relief, but would not be able to restore a security
clearance. If MSPB or a reviewing court were to find that a
security clearance or access determination decision was
retaliatory, the agency involved would be required to review
its security clearance decision and issue a report to Congress
explaining its decision. This section also states that for the
sole purposes of determining whether a security clearance or
access determination was made in retaliation for
whistleblowing, the agency must demonstrate by a preponderance
of the evidence, rather than clear and convincing evidence,
that it would have taken the action even absent the
whistleblowing.
Section 1(f) would require that removal of an agency by the
President from WPA coverage be made prior to any personnel
action, to which the exclusion relates, being taken against a
whistleblower at that agency.
Section 1(g) would require that, in disciplinary actions,
any attorney fees would be reimbursed by the manager's
employing agency rather than OSC.
Section 1(h) would establish a more reasonable burden of
proof in disciplinary actions by requiring OSC to demonstrate
that the whistleblower's protected disclosure was a
``significant motivating factor'' in the decision by the
manager to take the adverse action, even if other factors also
motivated the decision. Current law requires OSC to demonstrate
that an adverse personnel action would not have occurred ``but
for'' the whistleblower's protected activity.
Section 1(i) would strengthen OSC's ability to protect
whistleblowers and the integrity of the WPA and the Hatch Act
by authorizing OSC to appear as amicus curiae in any civil
action brought in connection with the WPA and the Hatch Act and
present its views with respect to compliance with the law and
the impact court decisions would have on the enforcement of
such provisions of the law.
Section 1(j) would suspend the U.S. Court of Appeals for
the Federal Circuit's exclusive jurisdiction over whistleblower
appeals and allow petitions for review to be filed either in
the Federal Circuit or any other Federal circuit court of
competent jurisdiction for a period of five years.
Section 1(k) would require all Federal nondisclosure
policies, forms, and agreements to contain specified language
preserving the right of Federal employees to disclose certain
protected information.
Section 1(l) would clarify that section 214(c) of the
Homeland Security Act (HSA) maintains existing WPA rights for
independently obtained information that may also qualify as
voluntarily submitted critical infrastructure information under
the HSA.
Section 1(m) would require agencies, as part of their
education requirements under 5 U.S.C. Sec. 2302(c), to advise
employees of their rights and protections and to educate
employees on how to lawfully make a protected disclosure of
classified information to the Special Counsel, the Inspector
General, Congress, or other designated agency official
authorized to receive classified information.
Section 1(n) would specify that an agency may present its
defense to a whistleblower case only after the whistleblower
has first made a prima facie showing that protected activity
was a contributing factor in the personnel action.
Section 1(o) states that the Act would take effect 30 days
after the date of enactment.
V. Estimated Cost of Legislation
June 25, 2007.
Hon. Joseph I. Lieberman, Chairman,
Committee on Homeland Security and Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 274, the Federal
Employee Protection of Disclosures Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Peter R. Orszag.
Enclosure.
S. 274--Federal Employee Protection of Disclosures Act
S. 274 would amend the Whistleblower Protection Act (WPA).
The bill would clarify current law and give new protections to
federal employees who report abuse, fraud, and waste involving
government activities. The legislation also would make several
changes to the laws governing the Merit Systems Protection
Board (MSPB) and the Office of Special Counsel (OSC), which
implement provisions of the WPA.
CBO estimates that implementing S. 274 would cost $2
million a year and $10 million over the 2008-2012 period,
assuming appropriation of the necessary amounts. Enacting the
legislation would not affect direct spending or revenues. S.
274 contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act and would not
affect the budgets of state, local, or tribal governments.
Under current law, the OSC investigates complaints
regarding reprisal against federal employees that inform
authorities of fraud or other improprieties in the operation of
federal programs (such individuals are known as
whistleblowers). The OSC seeks corrective action for valid
complaints. If agencies fail to take corrective action, the OSC
or the employee can pursue a case through the MSPB for
resolution. Whistleblower cases may also be reviewed by the
U.S. Court of Appeals.
According to the MSPB and OSC, there generally are between
400 and 500 whistleblower cases per year. S. 274 would expand
the definition of protected whistleblowing, create new avenues
of appeal for employees who lose their security clearances in
retaliation for whistleblowing, authorize the OSC to become
more involved in such cases, and suspend the U.S. Court of
Appeals exclusive jurisdiction over whistleblower appeals for
five years. In 2007, the MSPB received an appropriation of $36
million, and the OSC received $15 million.
CBO expects that the bill's changes in whistleblower laws
would add to the workload of the MSPB and OSC by increasing
their involvement with individual cases and increasing
administrative costs. Based on information from those agencies,
we estimate that implementing this bill would cost up to $2
million a year to cover additional staffing, travel, and
security clearance reviews.
On March 9, 2007, CBO provided a cost estimate for H.R.
985, the Whistleblower Protection Enhancement Act of 2007, as
ordered reported by the House Committee on Oversight and
Government Reform on February 12, 2007. The House bill contains
additional provisions that CBO estimates would be more costly
to implement. As compared to S. 274's estimated cost of $2
million a year, H.R. 985 would cost about $5 million a year to
implement.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Peter H. Fontaine,
Deputy Assistant Director for Budget Analysis.
VI. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. CBO states that
there are no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act and no costs on
state, local, or tribal governments. The legislation contains
no other regulatory impact.
VII. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic and existing law, in which no
change is proposed, is shown in roman):
TITLE 5, UNITED STATES CODE: GOVERNMENT ORGANIZATION AND EMPLOYEES
PART II--CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES
CHAPTER 12--MERIT SYSTEMS PROTECTION BOARD, OFFICE OF SPECIAL COUNSEL,
AND EMPLOYEE RIGHT OF ACTION
Subchapter I--Merit Systems Protection Board
SEC. 1204. POWERS AND FUNCTIONS OF THE MERIT SYSTEMS PROTECTION BOARD.
* * * * * * *
(m)(1) Except as provided in paragraph (2) of this
subsection, the Board, or an administrative law judge or other
employee of the Board designated to hear a case arising under
section 1215, may require payment by the [agency involved]
agency where the prevailing party is employed or has applied
for employment of reasonable attorney fees incurred by an
employee or applicant for employment if the employee or
applicant is the prevailing party and the Board, administrative
law judge, or other employee (as the case may be) determines
that payment by the agency is warranted in the interest of
justice, including any case in which a prohibited personnel
practice was engaged in by the agency or any case in which the
agency's action was clearly without merit.
Subchapter II--Office of Special Counsel
SEC. 1212. POWERS AND FUNCTIONS OF THE OFFICE OF SPECIAL COUNSEL.
(a) The Office of Special Counsel shall--
* * * * * * *
(h)(1) The Special Counsel is authorized to appear as
amicus curiae in any action brought in a court of the United
States related to any civil action brought in connection with
section 2302(b)(8) or (9), or subchapter III of chapter 73, or
as otherwise authorized by law. In any such action, the Special
Counsel is authorized to present the views of the Special
Counsel with respect to compliance with section 2302(b)(8) or
(9) or subchapter III of chapter 73 and the impact court
decisions would have on the enforcement of such provisions of
law.
(2) A court of the United States shall grant the
application of the Special Counsel to appear in any such action
for the purposes described in subsection (a).
SEC. 1214. INVESTIGATION OF PROHIBITED PERSONNEL PRACTICES; CORRECTIVE
ACTION.
* * * * * * *
(b) * * *
(4)(A) The Board shall order such corrective action
as the Board considers appropriate, if the Board
determines that the Special Counsel has demonstrated
that a prohibited personnel practice, other than one
described in section 2302(b)(8), has occurred, exists,
or is to be taken.
(B)(i) Subject to the provisions of clause (ii), in
any case involving an alleged prohibited personnel
practice as described under section 2302(b)(8), the
Board shall order such corrective action as the Board
considers appropriate if the Special Counsel has
demonstrated that a disclosure described under section
2302(b)(8) was a contributing factor in the personnel
action which was taken or is to be taken against the
individual.
(ii) Corrective action under clause (i) may not be
ordered if, after a finding that a protected disclosure
was a contributing factor, the agency demonstrates by
clear and convincing evidence that it would have taken
the same personnel action in the absence of such
disclosure.
SEC. 1215. DISCIPLINARY ACTION.
(a) * * *
[(3) A final order of the Board may impose
disciplinary action consisting of removal, reduction in
grade, debarment from Federal employment for a period
not to exceed 5 years, suspension, reprimand, or an
assessment of a civil penalty not to exceed $1,000.]
(3)(A) A final order of the Board may impose--
(i) disciplinary action consisting of
removal, reduction in grade, debarment from
Federal employment for a period not to exceed 5
years, suspension, or reprimand;
(ii) an assessment of a civil penalty not to
exceed $1,000; or
(iii) any combination of disciplinary actions
described under clause (i) and an assessment
described under clause (ii).
(B) In any case in which the Board finds that an
employee has committed a prohibited personnel practice
under paragraph (8) or (9) of section 2302(b), the
Board shall impose disciplinary action if the Board
finds that the activity protected under paragraph (8)
or (9) of section 2302(b) was a significant motivating
factor, even if other factors also motivated the
decision, for the employee's decision to take, fail to
take, or threaten to take or fail to take a personnel
action, unless that employee demonstrates, by
preponderance of evidence, that the employee would have
taken, failed to take, or threatened to take or fail to
take the same personnel action, in the absence of such
protected activity.
SEC. 1221. INDIVIDUAL RIGHT OF ACTION IN CERTAIN REPRISAL CASES
* * * * * * *
(e)(1) Subject to the provisions of paragraph (2), in any
case involving an alleged prohibited personnel practice as
described under section 2302(b)(8), the Board shall order such
corrective action as the Board considers appropriate if the
employee, former employee, or applicant for employment has
demonstrated that a disclosure described under section
2302(b)(8) was a contributing factor in the personnel action
which was taken or is to be taken against such employee, former
employee, or applicant. The employee may demonstrate that the
disclosure was a contributing factor in the personnel action
through circumstantial evidence, such as evidence that--
(A) the official taking the personnel action knew of
the disclosure; and
(B) the personnel action occurred within a period of
time such that a reasonable person could conclude that
the disclosure was a contributing factor in the
personnel action.
(2) Corrective action under paragraph (1) may not be
ordered if, after a finding that a protected disclosure was a
contributing factor, the agency demonstrates by clear and
convincing evidence that it would have taken the same personnel
action in the absence of such disclosure.
PART III--EMPLOYEES
CHAPTER 23--MERIT SYSTEM PRINCIPLES
Subpart A--General Provisions
SEC. 2302. PROHIBITED PERSONNEL PRACTICES.
(a)(1) For the purpose of this title, ``prohibited
personnel practice'' means any action described in subsection
(b).
(2) For the purpose of this section--
(A) ``personnel action'' means--
(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this
title or other disciplinary or corrective
action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter
43 of this title;
(ix) a decision concerning pay, benefits, or
awards, concerning education or training if the
education or training may reasonably be
expected to lead to an appointment, promotion,
performance evaluation, or other action
described in this subparagraph;
(x) a decision to order psychiatric testing
or examination;[ and]
(xi) the implementation or enforcement of any
nondisclosure policy, form, or agreement;
(xii) a suspension, revocation, or other
determination relating to a security clearance
or any other access determination by a covered
agency;
(xiii) an investigation, other than any
ministerial or nondiscretionary fact finding
activities necessary for the agency to perform
its mission, of an employee or applicant for
employment because of any activity protected
under this section; and
[(xi)] (xiv) any other significant change in
duties, responsibilities, or working
conditions; with respect to an employee in, or
applicant for, a covered position in an agency,
and in the case of an alleged prohibited
personnel practice described in subsection
(b)(8), an employee or applicant for employment
in a Government corporation as defined in
section 9101 of title 31;
(B) ``covered position'' means, with respect to any
personnel action, any position in the competitive
service, a career appointee position in the Senior
Executive Service, or a position in the excepted
service, but does not include any position which is,
prior to the personnel action--
(i) excepted from the competitive service
because of its confidential, policy-
determining, policy-making, or policy-
advocating character; or
(ii) excluded from the coverage of this
section by the President based on a
determination by the President that it is
necessary and warranted by conditions of good
administration;[ and]
(C) ``agency'' means an Executive agency and the
Government Printing Office, but does not include--
(i) a Government corporation, except in the
case of an alleged prohibited personnel
practice described under subsection (b)(8);
[(ii) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Imagery and
Mapping Agency, the National Security Agency,
and, as determined by the President, any
Executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities;
or]
(ii)(I) the Federal Bureau of Investigation,
the Central Intelligence Agency, the Defense
Intelligence Agency, the National Imagery and
Mapping Agency, the National Security Agency;
and
(II) as determined by the President, any
Executive agency or unit thereof the principal
function of which is the conduct of foreign
intelligence or counterintelligence activities,
if the determination (as that determination
relates to a personnel action) is made before
that personnel action; or
(iii) the General Accounting Office[.]
(D) ``disclosure'' means a formal or informal
communication or transmission, but does not include a
communication concerning policy decisions that lawfully
exercise discretionary authority unless the employee
providing the disclosure reasonably believes that the
disclosure evidences--
(i) any violation of any law, rule, or
regulation; or
(ii) gross management, a gross waste of
funds, an abuse of authority, or a substantial
and specific danger to public health or safety.
(b) Any employee who has authority to take, direct others
to take, recommend, or approve any personnel action, shall not,
with respect to such authority--
* * * * * * *
(8) take or fail to take, or threaten to take or fail
to take, a personnel action with respect to any
employee or applicant for employment because of--
(A) any disclosure of information by an
employee or applicant [which the employee or
applicant reasonably believes evidences],
without restriction to time, place, form,
motive, context, or prior disclosure made to
any person by an employee or applicant,
including a disclosure made in the ordinary
course of an employee's duties, that the
employee or applicant reasonably believes is
evidence of--
(i) [a violation] any violation of
any law, rule, or regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety, if such
disclosure is not specifically
prohibited by law and if such
information is not specifically
required by Executive order to be kept
secret in the interest of national
defense or the conduct of foreign
affairs; or
(B) any disclosure to the Special Counsel, or
to the Inspector General of an agency or
another employee designated by the head of the
agency to receive such disclosures, of
information [which the employee or applicant
reasonably believes evidences], without
restriction to time, place, form motive,
context, or prior disclosure made to any person
by an employee or applicant, including a
disclosure made in the ordinary course of an
employee's duties, of information that the
employee or applicant reasonably believes is
evidence of--
(i) [a violation] any violation
(other than a violation of this
section) of any law, rule, or
regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority,
or a substantial and specific danger to
public health or safety;
(C) a disclosure that--
(i) is made by an employee or
applicant of information required by
law or Executive order to be kept
secret in the interest of national
defense or the conduct of foreign
affairs that the employee or applicant
reasonably believes is direct and
specific evidence of--
(I) any violation of any law,
rule, or regulation;
(II) gross mismanagement, a
gross waste of funds, an abuse
of authority, or a substantial
and specific danger to public
health or safety; or
(III) a false statement to
Congress on an issue of
material fact; and
(ii) is made to--
(I) a member of a committee
of Congress having primary
responsibility for oversight of
a department, agency, or
element of the Federal
Government to which the
disclosed information relates
and who is authorized to
receive information of the type
disclosed;
(II) any other Member of
Congress who is authorized to
receive information of the type
disclosed; or
(III) an employee of Congress
who has the appropriate
security clearance and is
authorized to receive the
information disclosed.
* * * * * * *
(11)(A) knowingly take, recommend, or approve any
personnel action if the taking of such action would
violate a veterans' preference requirement; or
(B) knowingly fail to take, recommend, or approve any
personnel action if the failure to take such action
would violate a veterans' preference requirement;[ or]
(12) take or fail to take any other personnel action
if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or
directly concerning, the merit system principles
contained in section 2301 of this title[.];
(13) implement or enforce any nondisclosure policy,
form, or agreement, if such policy, form, or agreement
does not contain the following statement:
``These provisions are consistent with and do
not supersede, conflict with, or otherwise
alter the employee obligations, rights, or
liabilities created by Executive Order No.
12958; section 7211 of title 5, United States
Code (governing disclosures to Congress);
section 1034 of title 10, United States Code
(governing disclosure to Congress by members of
the military); section 2302(b)(8) of title 5,
United States Code (governing disclosures of
illegality, waste, fraud, abuse, or public
health or safety threats); the Intelligence
Identities Protection Act of 1982 (50 U.S.C.
421 et seq.) (governing disclosures that could
expose confidential Government agents); and the
statutes which protect against disclosures that
could compromise national security, including
sections 641, 793, 794, 798, and 952 of title
18, United States Code, and section 4(b) of the
Subversive Activities Control Act of 1950 (50
U.S.C. 783(b)). The definitions, requirements,
obligations, rights, sanctions, and liabilities
created by such Executive order and such
statutory provisions are incorporated into this
agreement and are controlling.''; or
(14) conduct, or cause to be conducted, an
investigation, other than any ministerial or
nondiscretionary fact finding activities necessary for
the agency to perform its mission, of an employee or
applicant for employment because of any activity
protected under this section.
This subsection shall not be construed to authorize the
withholding of information from Congress or the taking of any
personnel action against an employee who discloses information
to Congress. For purposes of paragraph (8), any presumption
relating to the performance of a duty by an employee who has
authority to take, direct others to take, recommend, or approve
any personnel action may be rebutted by substantial evidence.
For purposes of paragraph (8), a determination as to whether an
employee or applicant reasonably believes that they have
disclosed information that evidences any violation of law,
rule, regulation, gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific danger to
public health or safety shall be made by determining whether a
disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee could
reasonably conclude that the actions of the Government evidence
such violations, mismanagement, waste, abuse, or danger.
(c) The head of each agency shall be responsible for the
prevention of prohibited personnel practices, for the
compliance with and enforcement of applicable civil service
laws, rules, and regulations, and other aspects of personnel
management, and for ensuring (in consultation with the Office
of Special Counsel) that agency employees are informed of the
rights and remedies available to them under this chapter and
chapter 12 of this title, including how to make a lawful
disclosure of information that is specifically required by law
or Executive order to be kept secret in the interest of
national defense or the conduct of foreign affairs to the
Special Counsel, the Inspector General of an agency, Congress,
or other agency employee designated to receive such
disclosures. Any individual to whom the head of an agency
delegates authority for personnel management, or for any aspect
thereof, shall be similarly responsible within the limits of
the delegation.
CHAPTER 77--APPEALS
Subpart F--Labor Management and Employee Relations
SEC. 7702A. ACTIONS RELATING TO SECURITY CLEARANCES.
(a) In any appeal relating to the suspension, revocation,
or other determination relating to a security clearance or
access determination, the Merit Systems Protection Board or any
reviewing court--
(1) shall determine whether paragraph (8) or (9) of
section 2302(b) was violated;
(2) may not order the President or the designee of
the President to restore a security clearance or
otherwise reverse a determination of clearance status
or reverse an access determination; and
(3) subject to paragraph (2), may issue declaratory
relief and any other appropriate relief.
(b)(1) If, in any final judgment, the Board or court
declares that any suspension, revocation, or other
determination with regards to a security clearance or access
determination was made in violation of paragraph (8) or (9) of
section 2302(b), the affected agency shall conduct a review of
that suspension, revocation, access determination, or other
determination, giving great weight to the Board or court
judgment.
(2) Not later than 30 days after any Board or court
judgment declaring that a security clearance suspension,
revocation, access determination, or other determination was
made in violation of paragraph (8) or (9) of section 2302(b),
the affected agency shall issue an unclassified report to the
congressional committees of jurisdiction (with a classified
annex if necessary), detailing the circumstances of the
agency's security clearance suspension, revocation, other
determination, or access determination. A report under this
paragraph shall include any proposed agency action with regards
to the security clearance or access determination.
(c) An allegation that a security clearance or access
determination was revoked or suspended in retaliation for a
protected disclosure shall receive expedited review by the
Office of Special Counsel, the Merit Systems Protection Board,
and any reviewing court.
(d) For purposes of this section, corrective action may not
be ordered if the agency demonstrates by a preponderance of the
evidence that it would have taken the same personnel action in
the absence of such disclosure.
SEC. 7703. JUDICIAL REVIEW OF DECISIONS OF THE MERIT SYSTEMS PROTECTION
BOARD.
(a)(1) Any employee or applicant for employment adversely
affected or aggrieved by a final order or decision of the Merit
Systems Protection Board may obtain judicial review of the
order or decision.
* * * * * * *
(b)(1)(A) Except as provided in subparagraph (B) and
paragraph (2) [of this subsection], a petition to review a
final order or final decision of the Board shall be filed in
the United States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any petition for
review must be filed within 60 days after the date the
petitioner received notice of the final order or decision of
the Board.
(B) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act, a
petition to review a final order or final decision of the Board
in a case alleging a violation of paragraph (8) or (9) of
section 2302(b) shall be filed in the United States Court of
Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction as provided under subsection (b)(2).
* * * * * * *
(d)(1) Except as provided under paragraph (2), this
paragraph shall apply to any review obtained by the Director of
the Office of Personnel Management. The Director of the Office
of Personnel Management may obtain review of any final order or
decision of the Board by filing, within 60 days after the date
the Director received notice of the final order or decision of
the Board, a petition for judicial review in the United States
Court of Appeals for the Federal Circuit if the Director
determines, in his discretion, that the Board erred in
interpreting a civil service law, rule, or regulation affecting
personnel management and that the Board's decision will have a
substantial impact on a civil service law, rule, regulation, or
policy directive. If the Director did not intervene in a matter
before the Board, the Director may not petition for review of a
Board decision under this section unless the Director first
petitions the Board for a reconsideration of its decision, and
such petition is denied. In addition to the named respondent,
the Board and all other parties to the proceedings before the
Board shall have the right to appear in the proceeding before
the Court of Appeals. The granting of the petition for judicial
review shall be at the discretion of the Court of Appeals.
(2) During the 5-year period beginning on the effective
date of the Federal Employee Protection of Disclosures Act,
this paragraph shall apply to any review relating to paragraph
(8) or (9) of section 2302(b) obtained by the Director of the
Office of Personnel Management. The Director of the Office of
Personnel Management may obtain review of any final order or
decision of the Board by filing, within 60 days after the date
the Director received notice of the final order or decision of
the Board, a petition for judicial review in the United States
Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction as provided under subsection
(b)(2) if the Director determines, in his discretion, that the
Board erred in interpreting paragraph (8) or (9) of section
2302(b). If the Director did not intervene in a matter before
the Board, the Director may not petition for review of a Board
decision under this section unless the Director first petitions
the Board for a reconsideration of its decision, and such
petition is denied. In addition to the named respondent, the
Board and all other parties to the proceedings before the Board
shall have the right to appear in the proceeding before the
court of appeals. The granting of the petition for judicial
review shall be at the discretion of the Court of Appeals.
THE HOMELAND SECURITY ACT OF 2002
Public Law 107-296 (as codified at 6 U.S.C. 133)
SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRASTRUCTURE
INFORMATION.
* * * * * * *
(c) Independently obtained information. Nothing in this
section shall be construed to limit or otherwise affect the
ability of a State, local, or Federal Government entity,
agency, or authority, or any third party, under applicable law,
to obtain critical infrastructure information in a manner not
covered by subsection (a), including any information lawfully
and properly disclosed generally or broadly to the public and
to use such information in any manner permitted by law. For
purposes of this section a permissible use of independently
obtained information includes the disclosure of such
information under section 2302(b)(8) of title 5, United States
Code.