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

                                                        S. Hrg. 107-160

            S. 995--WHISTLEBLOWER PROTECTION ACT AMENDMENTS

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

                                HEARING

                               before the

INTERNATIONAL SECURITY, PROLIFERATION AND FEDERAL SERVICES SUBCOMMITTEE

                                 of the

                              COMMITTEE ON
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 25, 2001

                               __________

      Printed for the use of the Committee on Governmental Affairs

                                _______

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

____________________________________________________________________________
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                   COMMITTEE ON GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 FRED THOMPSON, Tennessee
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
RICHARD J. DURBIN, Illinois          SUSAN M. COLLINS, Maine
ROBERT G. TORRICELLI, New Jersey     GEORGE V. VOINOVICH, Ohio
MAX CLELAND, Georgia                 PETE V. DOMENICI, New Mexico
THOMAS R. CARPER, Delaware           THAD COCHRAN, Mississippi
JEAN CARNAHAN, Missouri              ROBERT F. BENNETT, Utah
MARK DAYTON, Minnesota               JIM BUNNING, Kentucky
           Joyce A. Rechtschaffen, Staff Director and Counsel
         Hannah S. Sistare, Minority Staff Director and Counsel
                     Darla D. Cassell, Chief Clerk

                                 ------                                

INTERNATIONAL SECURITY, PROLIFERATION AND FEDERAL SERVICES SUBCOMMITTEE

                   DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan                 THAD COCHRAN, Mississippi
ROBERT G. TORRICELLI, New Jersey     TED STEVENS, Alaska
MAX CLELAND, Georgia                 SUSAN M. COLLINS, Maine
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
JEAN CARNAHAN, Missouri              PETE V. DOMENICI, New Mexico
MARK DAYTON, Minnesota               ROBERT F. BENNETT, Utah
                Nanci E. Langley, Deputy Staff Director
               Mitchel B. Kugler, Minority Staff Director
                      Brian D. Rubens, Chief Clerk

                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Akaka................................................     1
    Senator Carper...............................................    11
    Senator Levin................................................    12

                               WITNESSES
                        Wednesday, July 25, 2001

Hon. Charles E. Grassley, a U.S. Senator from the State of Iowa..     2
Hon. Elaine Kaplan, Special Counsel, Office of Special Counsel...     5
Hon. Beth S. Slavet, Chairman, U.S. Merit Systems Protection 
  Board..........................................................     8
Thomas Devine, Legal Director, Government Accountability Project.    25

                     Alphabetical List of Witnesses

Devine, Thomas:
    Testimony....................................................    25
    Prepared statement with attachments..........................    54
Grassley, Hon. Charles E.:
    Testimony....................................................     2
    Prepared statement...........................................    37
Kaplan, Hon. Elaine:
    Testimony....................................................     5
    Prepared statement...........................................    39
Slavet, Hon. Beth S.:
    Testimony....................................................     8
    Prepared statement...........................................    44

                                Appendix

Copy of S. 995...................................................    29
Stuart E. Schiffer, Acting Attorney General, Civil Division, 
  Department of Justice, prepared statement......................    74
Colleen M. Kelley, National President, National Treasury 
  Employees Union, prepared statement............................    97
Questions and responses from:
    Hon. Elaine Kaplan, submitted by Senator Akaka...............    99
    Hon. Elaine Kaplan, submitted by Senator Cochran.............   103
    Hon. Elaine Kaplan, submitted by Senator Levin...............   111
    Hon. Beth S. Slavet, submitted by Senator Cochran............   116
    Hon. Beth S. Slavet, submitted by Senator Levin..............   122
    Hon. Beth S. Slavet, submitted by Senator Akaka..............   123
    Thomas Devine, submitted by Senator Cochran..................   131
    Stuart Schiffer, submitted by Senator Akaka..................   132

 
            S. 995--WHISTLEBLOWER PROTECTION ACT AMENDMENTS

                              ----------                              

                        WEDNESDAY, JULY 25, 2001

                                     U.S. Senate,  
                Subcommittee on International Security,    
                      Proliferation and Federal Services,  
                  of the Committee on Governmental Affairs,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:30 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Daniel K. 
Akaka, Chairman of the Subcommittee, presiding.
    Present: Senators Akaka, Cochran, Levin, and Carper.

              OPENING STATEMENT OF CHAIRMAN AKAKA

    Senator Akaka. This meeting will come to order. Today's 
hearing will examine S. 995, legislation to strengthen 
protections for Federal employees who exercise one of the basic 
obligations of public service, that is disclosing waste, fraud, 
abuse or substantial and specific danger to public health or 
safety. Unfortunately, the right of Federal employees to be 
free from workplace retaliation after such disclosures has been 
diminished by a pattern of court rulings that have narrowly 
defined who qualifies as a whistleblower. These rulings are 
inconsistent with clear, congressional intent and have had a 
chilling effect on whistleblowers coming forward with 
significant disclosures.
    We are pleased to have with us today forceful advocates for 
Federal whistleblowers and defenders of the merit system. I 
wish to thank Senator Grassley for taking time out of his busy 
schedule to be here with us today. We are pleased to welcome 
the Hon. Elaine Kaplan, Special Counsel of the Office of 
Special Counsel; the Hon. Beth Slavet, Chair of the Merit 
Systems Protection Board; and Thomas Devine, Legal Director of 
the Government Accountability Project. A representative of the 
Department of Justice was invited to testify but was unable to 
attend. I ask that the Department's written statement be 
submitted for the record,\1\ as well as a statement from the 
National Treasury Employees Union,\2\ in support of the bill.
---------------------------------------------------------------------------
    \1\ The prepared statement of Stuart E. Schiffer, Acting Attorney 
General, Civil Division, Department of Justice, appears in the Appendix 
on page 74.
    \2\ The prepared statement of Colleen M. Kelley, National 
President, National Treasury Employees Union, appears in the Appendix 
on page 97.
---------------------------------------------------------------------------
    S. 995 seeks to restore congressional intent regarding who 
is entitled to relief under the Whistleblower Protection Act 
and what constitutes a protected disclosure. It codifies 
certain anti-gag statutes that have been added yearly to the 
Treasury Postal Appropriations bill for the past 13 years. The 
bill also extends independent litigating authority to the 
Office of Special Counsel and ends the sole jurisdiction of the 
U.S. Court of Appeals for the Federal Circuit over 
whistleblower cases. It was hoped that the Federal Circuit 
would develop an expertise in whistleblower law, instead they 
developed a pattern of hostility. As the Chairman of the 
International Security, Proliferation and Federal Services 
Subcommittee, I will work to guarantee that any disclosure 
within the boundaries of the statutory language are protected. 
We cannot afford to let this lobby weaken further.
    The exceptions resulting from the Federal Circuit's rulings 
have removed protection where it counts the most, for the 
Federal employees who are acting as public servants or carrying 
out their responsibilities to the public as employees of their 
agencies. Protection of Federal employees from whistleblower 
retaliation has been a bipartisan effort and enjoyed bicameral, 
unanimous support in passage of the 1989 law and the Act's 1994 
amendments. I am pleased to note that Representatives Morella 
and Gilman introduced H.R. 2588, a companion bill to S. 995 on 
Monday. Codifying congressional intent to protect Federal 
employees who disclose wrongdoing should be a critical part of 
our efforts to have an efficient and effective government.
    I would like to point out that Senator Grassley and Senator 
Levin, two of the Senate's most passionate leaders in 
protecting Federal employees from retaliation, joined me in 
introducing S. 995 last month. I also wish to thank my good 
friend, Senator Cochran, for his keen interest in the welfare 
of our public servants. At this time, I would like to thank 
Senator Grassley for coming and I look forward to your 
statement to the Subcommittee.

 TESTIMONY OF HON. CHARLES E. GRASSLEY,\1\ A U.S. SENATOR FROM 
                       THE STATE OF IOWA

    Senator Grassley. Well, I have heard your statement and it 
has outlined very much some problems we have to deal with, and 
obviously, the legislation that you have introduced advances 
the ball a long ways. And to some extent, I sometimes wonder 
the extent to which we can do enough to encourage the 
protection because of the fact that it is such a good source of 
information. So you are demonstrating your outstanding 
leadership by advancing this legislation to make important 
changes in the Whistleblower Protection Act.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Grassley appears in the 
Appendix on page 37.
---------------------------------------------------------------------------
    I think you have made some reference to my championing the 
rights of Federal whistleblowers. I think I have been doing 
this since 1983. This is because of my strong belief that 
disclosures of wrongdoing by whistleblowers are an integral 
part of our system of checks and balances of government. It 
really helps make our democracy work and work in a responsible 
way. In other words, our government must be responsible and 
must be responsive, and I think whistleblowers, knowing where 
there are problems, help us along that process. It may not be, 
obviously, the only source of information or the only checks 
and balances, but it is an important part of them.
    When Congress, for instance, performs its oversight 
function, and if we do it effectively, it is usually because of 
information provided to us by insiders and whistleblowers. 
Recently, the U.S. Senate has performed extensive oversight 
work of the IRS and now the FBI. We have begun to tackle rather 
difficult issues of how to change the divergent cultures of 
these two agencies. This was not possible without the insight 
of insiders and whistleblowers from the agencies. Those are the 
people, who come forward and perform such a public service, I 
think deserve to be well protected and even rewarded.
    I have had the opportunity--I think it was before he became 
President--I have not followed up with it since President Bush 
has been sworn in, but during the opportunities that I had on 
numerous occasions to be with him in the State of Iowa during 
the caucus, I spoke about whistleblowers quite often and I 
said--you always make the joke if I were President, what I 
would do. I am never going to be President, but I said that I 
would have a Rose Garden ceremony once a month to honor 
whistleblowers, because I think that instead of being seen as a 
skunk at a Sunday afternoon picnic, as too often they are, they 
ought to be seen as patriotic Americans doing what they think 
is right to make our government work effectively.
    Now that is not saying that everybody who comes to blow a 
whistle is always right and needs to be protected, but we ought 
to give the opportunity to look at and consider very sincerely 
what people come forth. Some has basis and some does not. But 
where it does have basis, it ought to be respected in our 
system of government, not as it sometimes is, where there is 
such peer pressure to go along and to get along, that we 
sometimes honor those that cover up more than we honor those 
that bring things out into the sunshine. Obviously, the old 
saying of the sunshine, there is not going to be any moss or 
mold there. Or as another person said on the Supreme Court, I 
think, where the sun shines in, that is going to keep our 
system of government working better.
    Now in addition to my support in the past, we have had 
celebrated whistleblower cases like Ernie Fitzgerald, Chuck 
Spinney, and Fred Whitehurst who are also joined with many of 
my colleagues to sponsor legislation to protect whistleblowers. 
Included in these laws are the False Claims Act Amendments of 
1986; the Whistleblower Protection Act of 1989; the 1994 
Amendments to the Whistleblower Protection Act; Whistleblower 
protection laws for airline safety, and the anti-gag rider that 
we have passed yearly on the appropriation bills. In many of 
these, if not all of these efforts, I was joined by my good 
friend, Senator Levin, who over the years has shown great 
leadership in advancing the cause of whistleblowers.
    Senator Levin is a prime co-sponsor of the bill that you 
are considering and I likewise commend him, as I did you, 
Senator Akaka, for your dedication to this cause. Congress has 
demonstrated again and again its commitment to protecting 
whistleblowers, yet all too often the intent of Congress is 
undermined by a hostile bureaucracy. Presidential demonstration 
of support for whistleblowers, as I indicated to you, may be 
somewhat tongue-in-cheek through a Rose Garden ceremony. At the 
top level of government, if there is support for this process, 
it means that we are going to have more responsive government, 
because when people know that wrongdoing is going to be made 
public, there is obviously going to be less wrongdoing.
    It seems that the amendments that are before us and that 
are already on the books, some passed and some hopefully will 
be passed, met with efforts to undermine the will of Congress, 
and at each time whistleblowers are put more and more behind 
the eight ball. In my view, this bill is a minimum, yet 
important step toward giving whistleblowers a fair shot against 
retaliation. Bureaucracy has become a growth industry of 
creative ways to get whistleblowers. So Congress is obliged to 
respond with equally creative protection against reprisals. 
That is how we are able to preserve our prerogative to obtain 
meaningful information from the Executive Branch.
    There are several very good sections of S. 995, but I would 
like to address just a couple of the most important ones. The 
current requirement of undeniable proof as a standard for 
whistleblowers to meet is not at all helpful, to put it mildly. 
This bill would overturn that. It would also end the Federal 
Circuit's monopoly on appeals for whistleblower cases by 
allowing reviews by other circuits. And finally, this bill 
would codify the anti-gag rider we have included in our yearly 
appropriation bills every year since 1988.
    Inasmuch as whistleblower protections are constantly fluid 
propositions, I would like to raise some additional concerns 
that go beyond this bill that I believe you should consider. 
First, I am concerned about the issue of security clearances. I 
am aware of several instances where a whistleblower's security 
clearance has been pulled as a means of retaliation. The 
pulling of a security clearance effectively fires employees. A 
whistleblower does not have rights to a third-party proceeding 
in these instances. I think this matter needs to be reviewed 
and it should be possible to find a balance between the 
legitimate security concerns of the government and ensuring 
that pulling a security clearance is not used as a back door to 
get whistleblowers.
    Second is the issue of accountability. The Office of 
Special Counsel has the authority to investigate and prosecute 
managers who retaliate against whistleblowers, but in any 
disciplinary litigation, the Office of Special Counsel has two 
strikes against it. First, OSC is faced with higher standards 
of proof that predate the more reasonable standards contained 
in the Whistleblower Protection Act. And second, if the Office 
of Special Counsel loses, it must pay the manager's attorney's 
fees from its own operating budget. Both of these create a 
disincentive to the Office of Special Counsel carrying out its 
disciplinary authority in holding management accountable.
    Finally is the issue of remedies. In 1994 amendments to the 
Whistleblower Protection Act--that Act created a remedy of 
consequential damages for reprisals. Prior to that, damages 
were compensatory. Sequential damages were intended to be 
interpreted as greater than compensatory damages. Instead they 
have been interpreted as being less than compensatory damages. 
This should be reviewed to help ensure that whistleblowers are 
adequately compensated.
    Mr. Chairman, again, I commend you and Senator Levin for 
your continued leadership advancing any legislation, but most 
importantly this one, and maybe even hopefully before this is 
through, beyond this legislation to protect whistleblowers. It 
is my hope, and I know my colleagues share my view, that we can 
write legislation to encourage whistleblowers to disclose 
information about wrongdoing and to protect them against 
reprisals for doing so. So I look forward to working with you, 
Senator Akaka.
    Thank you very much.
    Senator Akaka. Thank you very much, Senator Grassley. I 
look forward to working with you on this, too, and with Senator 
Levin. I want to invite you, if your schedule permits, to join 
me at the dais.
    Senator Grassley. I knew a long time ago that you had 
invited me, but I just will not be able to do it. I was hoping 
I could. Thank you very much.
    Senator Akaka. Thank you. Those of you who are present at 
this hearing now realize why I called Senator Grassley a 
passionate leader.
    Senator Grassley. Thank you.
    Senator Akaka. At this time I welcome back to the 
Subcommittee our next witnesses. Special Counsel Kaplan and 
MSPB Chair Slavet, please come to the witness table and be 
seated. We appreciate your being here with us today. While 
neither one of you needs an introduction, let me thank you both 
for your efforts on behalf of Federal employees.
    Ms. Kaplan, you may proceed with your statement and I want 
to ask all witnesses that you limit your oral presentation to 5 
minutes and we will place your full statement in the record.
    Thank you very much.

TESTIMONY OF HON. ELAINE KAPLAN,\1\ SPECIAL COUNSEL, OFFICE OF 
                        SPECIAL COUNSEL

    Ms. Kaplan. Good afternoon. I would like to thank the 
Subcommittee for giving me the opportunity to participate in 
today's hearing concerning S. 995, a bill that would strengthen 
the effectiveness and enforcement of the Whistleblower 
Protection Act. I would also like to publicly thank you, 
Senator Akaka, as well as Senators Levin and Grassley, for your 
leadership on this issue and your commitment to ensuring that 
the Whistleblower Protection Act fulfills its original promise, 
to protect Federal employee whistleblowers against retaliation. 
Finally, let me also express my public appreciation for the 
efforts of the Government Accountability Project to ensure that 
the protection of Federal employee whistleblowers remains a 
front-burner issue for Congress and the public at-large.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Kaplan appears in the Appendix on 
page 39.
---------------------------------------------------------------------------
    As you know, the primary mission of the Office of Special 
Counsel, the agency I head, is to protect Federal employee 
whistleblowers against retaliation. We do our job by 
investigating employees' complaints by pursuing remedies on 
behalf of whistleblowers and by seeking the discipline of 
agency officials who engage in retaliation. In addition, we 
also educate other Federal agencies and the public about 
whistleblower protection and the important contribution 
whistleblowers make to the public interest.
    The bill before the Subcommittee today, S. 995, has been 
conceived in the wake of several decisions issued by the Court 
of Appeals for the Federal Circuit, which have narrowed the 
scope of the protection provided to whistleblowers under the 
Whistleblower Protection Act. As you know, this is not the 
first time that Congress has been confronted with concerns 
about the Federal Circuit's approach to this particular law. 
Thus, Congress harshly criticized that court's decisionmaking 
in 1989 when the Whistleblower Protection Act was enacted and 
did so 5 years later in 1994 during the consideration of the 
Office of Special Counsel Reauthorization Act.
    At that time, the House Committee considering the law 
observed that the case law developed by the Federal Circuit, 
``represented a steady attack on achieving a legislative 
mandate for effective whistleblower protection,'' and that, 
``realistically, it is impossible to overturn destructive 
precedents as fast as they are issued.''
    Notwithstanding the strong criticism, the Federal Circuit 
continues to routinely read the Whistleblower Protection Act's 
protections narrowly. For example, in LaChance v. White, the 
court raised the bar for whistleblowers seeking to establish 
that their disclosures qualify them for protection by endorsing 
what it called an irrefragable presumption that government 
officials discharged their duties properly and lawfully. 
Moreover, in that case, the court suggested it was appropriate 
to examine a whistleblower's personal motivations in deciding 
whether the whistleblower should receive the Act's protection.
    We agree with the sponsors of S. 995 that LaChance and 
other Federal Circuit decisions, such as the Whorton and Willis 
opinions, establish unduly narrow and restrictive tests for 
determining whether employees qualify for the protection of the 
law. We also agree it is time for Congress to consider ending 
the Federal Circuit's monopoly on review of these cases by 
providing for all circuits review.
    Today, I would like to briefly address and express our 
strong support for the provisions of the Act that would grant 
the Office of Special Counsel independent litigating authority 
and the right to request judicial review of MSPB decisions in 
cases that will have a substantial impact on enforcement of the 
law. I firmly believe that both of these changes are necessary 
not only to ensure our effectiveness as an agency, but also to 
address the continuing concerns that motivate S. 995, that is, 
the whittling away of the WPA's protections by narrow judicial 
interpretations of the law.
    The basis for my belief is set forth in some detail in my 
accompanying statement, which I would ask to be included in the 
record. Let me just summarize quickly. While the current 
statutory scheme gives OSC a central role as public prosecutor 
in cases in front of the Merit Systems Protection Board, we 
have no authority right now to seek judicial review of an 
erroneous MSPB decision. Moreover, our ability to influence 
even the MSPB's interpretation of the law is limited because 
the majority of the MSPB's decisions arise in cases of 
individual rights of action cases to which OSC is not a party. 
As a practical matter, until the Board issues its final 
decisions in particular cases, there is really no way for us to 
know that they will resolve important legal questions. Under 
existing law, OSC has no procedural device that would permit us 
to ask the Board to reconsider its decision, much less a right 
to ask a court to review them.
    Ironically, the Office of Personnel Management has the 
authority to seek judicial review of MSPB decisions in any case 
where the Board's decision will have a substantial impact on 
the interpretation of civil service laws, rules and 
regulations, including the Whistleblower Protection Act. 
Further, OPM has the authority to ask the MSPB to reconsider a 
decision after it has been issued, again, even if OPM was not 
originally a party to the case. OPM, of course, does not have 
the protection of whistleblowers as its primary mission. That 
is our job. In fact, it was OPM that brought the LaChance v. 
White case to the Federal Circuit and OPM, represented by the 
Justice Department, that urged the court to adopt a narrow 
interpretation of the Act.
    This bill would provide the Special Counsel with similar 
authority to ask the Board for reconsideration and seek 
judicial review in important cases. It would ensure that the 
government agency charged with protecting whistleblowers will 
have an equal opportunity to participate in the shaping of the 
law. OSC would serve as a counterweight to the Justice 
Department, whose client is most often the Federal agency 
defending itself against retaliation charges. Moreover, by 
granting OSC independent litigating authority, the bill also 
ensures that OSC will be able to craft its own positions and 
advocate on its own behalf when Whistleblower Protection Act 
cases reach the Court of Appeals.
    Under existing law, the Special Counsel must be represented 
by the Justice Department in all court proceedings. This has 
effectively led to OSC being shut out of the vast majority of 
cases which involved interpretation of the Act. The Justice 
Department's position is that because we lack independent 
litigating authority, we cannot participate, even as an amicus, 
where another party has invoked the jurisdiction of the Court 
of Appeals in a whistleblower retaliation case.
    The Justice Department has agreed that we can participate 
in a limited category of cases where we are defending an MSPB 
order of discipline against a retaliating agency manager. But 
even in those cases, we must be represented by Justice 
Department attorneys. While the attorneys at the Justice 
Department are highly professional and competent, it is 
completely unacceptable for the Justice Department to make 
final decisions about how OSC cases should be briefed and 
argued. Not only do we routinely investigate and prosecute 
cases of retaliation against the Justice Department and its 
component agencies, the attorneys at the Justice Department 
routinely represent agencies in the Federal Circuit against 
charges of retaliation. Its institutional interests are 
directly in conflict with those of the Office of Special 
Counsel.
    If we are going to be a truly independent watchdog, then 
the Special Counsel, and not the Justice Department's Civil 
Division, has to have the authority to decide what arguments to 
make and what positions to take in the Court of Appeals.
    Finally, let me summarize in short. Under current law, the 
Special Counsel, whom Congress intended would be a vigorous, 
independent advocate for the protection of whistleblowers, can 
scarcely participate at all in the arena in which the law is 
largely shaped, the Court of Appeals for the Federal Circuit. 
Further, when we do appear in court, we must be represented by 
an agency that we routinely investigate through attorneys whose 
exposure to the Whistleblower Protection Act otherwise occurs 
only when they argue cases on behalf of agencies accused of 
engaging in retaliation.
    Need I say more? Congress has consistently expressed its 
intention that we take an aggressive role in protecting 
whistleblowers against retaliation. In the 3 years since I 
became Special Counsel, the staff and I attempted to do 
whatever was possible within our limited resources to achieve 
that goal. I believe that we have made a lot of progress in the 
last 3 years towards increasing our effectiveness, and that we 
have reassured some of our staunchest former critics that OSC 
is deeply committed to its mission. We would ask, therefore, 
that we be provided the tools that we need to do the job right 
by affording us both the authority to request judicial review 
and independent litigating authority.
    Thank you.
    Senator Akaka. Thank you very much, Ms. Kaplan.
    Ms. Slavet, you may give your statement at this time. And 
again, I want to remind you about the 5-minute limit. Go ahead.

   TESTIMONY OF HON. BETH S. SLAVET,\1\ CHAIRMAN, U.S. MERIT 
                    SYSTEMS PROTECTION BOARD

    Ms. Slavet. I will do my best, Senator. Good afternoon, 
Chairman Akaka. Ranking Member Cochran is not here, but other 
distinguished Members of the Subcommittee, thank you for the 
opportunity to appear before you on behalf of the MSPB to 
discuss S. 995, the Whistleblower Protection Act Amendments of 
2001. I would also like to acknowledge the presence of my 
distinguished colleagues, Vice Chair Barbara Sapin, and Member 
Suzanne Marshall, and extend my appreciation to them for their 
contribution to the work of the Board.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Slavet appears in the Appendix on 
page 44.
---------------------------------------------------------------------------
    Chairman Akaka, I want to recognize the important work that 
you, the Subcommittee, and the full Governmental Affairs 
Committee, as well as Senator Grassley and Senator Levin 
specifically, have done to benefit Federal workers. Your 
efforts on behalf of Federal whistleblowers is a further 
demonstration of your commitment to ensure the efficiency of 
government operations and oversight of the public interest to 
the protection of rights accorded government employees.
    Today, I would like to briefly share some of the 
observations we at the Board have made about the proposed 
amendments to the Whistleblower Protection Act, their impact on 
current law, Federal employees and agencies, and their impact 
on the Board itself. Due to time constraints, I will not 
address the issues I raise today in any great detail, and have 
submitted in the written statement that you have kindly 
accepted into the record. In addition, because the Board is a 
quasi-judicial agency and adjudicates cases under the WPA, we 
take no position on the substantive or procedural provisions of 
the proposed amendments, in order to avoid any appearance of 
prejudgment.
    The three substantive areas I would like to address 
concerning the amendments are basically the credible evidence 
standard in section 1(a), the need to reconcile the 
implications of these amendments on retaliation claims under 
sections 2302(b)(8) and (b)(9) of the WPA, and the apparent 
absence of an effective remedy for Federal employees or 
applicants for Federal employment due to a violation of the 
anti-gag provisions of the legislation.
    Currently, secton 2302(b)(8) of the WPA requires that a 
whistleblower have a reasonable belief that the matter 
disclosed evidences one of the conditions described in that 
section. It appears that section 1(a) of the bill, the proposed 
amendments, would eliminate the reasonable belief standard for 
all whistleblowers, except those who make disclosures in the 
course of their duties. This latter category of employees would 
need to have a reasonable belief supported by ``credible 
evidence.'' If enacted, this provision of the bill could have 
the unintended consequence of actually making it more difficult 
for some employees to show that their disclosures were 
protected, because they would need to meet a higher standard 
and show that their reasonable belief is supported by credible 
evidence.
    The language in section 1(a) of the bill that eliminates 
restrictions and disclosures based on their form or context 
also raises a serious question of whether Congress intends to 
include as part of whistleblower disclosures covered section 
2302(b)(8), which is limited to whistleblowing itself, actions 
that are covered by another prohibited personnel practice, 
codified at 5 U.S.C. Sec. 2302(b)(9). The section (b)(9) 
provision protects employees who file a complaint, appeal or 
grievance from reprisal. If this is the case, the proposal 
needs to be reconciled with the distinction between reprisal 
for whistleblowing, prohibited by section 2302(b)(8), and 
reprisal for filing a complaint, appeal or grievance, which is 
prohibited by section 2302(b)(9).
    The Board has generally held that an employee's 
discrimination complaint does not by itself constitute a 
prohibited whistleblowing disclosure under section 2302(b)(8) 
even though the complaint alleges retaliatory discrimination in 
violation of law. In addition, permitting Federal employees to 
file whistleblowing complaints alleging reprisal for filing a 
complaint, appeal or grievance, as these new sections would 
permit, would impact the remedies currently available under 
other statutory complaint, appeal and grievance schemes. 
Extending whistleblowing protection to employee discrimination 
complaints could result in serious deficiencies in the 
enforcement programs administered by the OSC and the EEOC. The 
EEOC has been recognized as the lead agency for enforcing the 
prohibitions against discrimination in Federal employment. For 
this and other reasons, the Subcommittee may wish to clarify 
the implications of the provisions and the interplay between 
sections (b)(8) and (b)(9) and sections 1(a) and 1(b) of the 
proposed legislation.
    Another important area I would like to bring to the 
attention of the Subcommittee concerns the anti-gag provisions. 
Section 1(c) of the bill mandates that those Federal agencies 
that implement or enforce nondisclosure policies, forms or 
agreements include notice in such policies, forms or agreements 
of the applicable protection under the WPA. It would become a 
new personnel act--prohibited personnel practice. Cases 
involving this new prohibited personnel practice would reach 
the Board in one of two ways; either through the Special 
Counsel, seeking corrective or disciplinary action--corrective 
action for the employee harmed or disciplinary action against 
the employee who took the action.
    The specific corrective action will vary with the 
circumstances of each case and would generally involve 
overturning or, at least, modifying the personnel action that 
was the basis for the prohibited personnel practice. The 
problem this creates is that while ordering disciplinary action 
might prove an effective deterrent to agency managers 
contemplating the implementation or enforcement of defective 
nondisclosure policies, it appears that the most likely 
corrective action the Board could order is that the agency 
ceases implementation or enforcement of the particularly 
defective document.
    The question then becomes: What are the results that the 
Subcommittee wishes to achieve, or whether it wishes to address 
other adverse impacts of employees of these defective forms? 
That is, if an employee comes before us and is heard and is, 
for example, fired because of their refusal to sign a defective 
disclosure form, one would presumably think that one remedy you 
might want us to have would be to put that employee back in 
place, to not have the failure to sign that defective 
disclosure agreement be the reason for their termination. 
However, because of certain Supreme Court decisions, as well as 
Federal Circuit decisions, we would not be able to reach that. 
So I would ask the Subcommittee to clarify as to what exactly 
you want our authority to be.
    There are two other issues that I would like to address, 
and I see that my time is really up, but with your permission--
the first is, and I am probably the only one here speaking on 
this, but it concerns the elimination of the Federal Circuit's 
exclusive jurisdiction over MSPB matters. This can be expected. 
A uniform body of MSPB case law has actually evolved from 
decisions of the Federal Court, as well as decisions of the 
MSPB itself. We are concerned that the disturbance of this 
uniformity may have a significant impact on the treatment of 
Federal workers throughout the country. I would invite you and 
your colleagues to read our prepared statement for our thoughts 
on this issue.
    Finally, in my remaining time, I would bring the 
Subcommittee's attention to the impact the legislation would 
actually have on the Board's operations. The expansive 
definitions of protected disclosures, which substantially 
broadens our jurisdiction, would result in the increase of 
cases that we hear on the merits, as opposed to jurisdiction. 
These cases are also very complex and they require a lot of 
hours devoted to adjudication, much more than the normal 
adverse actions that we adjudicate. They take significantly 
more time to process than other parts of our Board's 
jurisdiction. Section 1(d) of the bill seeks to amend other 
sections of Title V to provide OSC with independent litigating 
authority in certain circumstances. But again, even if OSC 
seeks reconsideration in a minimum number of cases, we can 
expect a significant impact on Board resources, because the 
records are usually voluminous in this case, they frequently 
involve novel legal issues, and they require extensive 
research.
    Finally, section 1(e) of the bill seeks to permit review of 
any decision of the MSPB in any appellate court of competent 
jurisdiction, thereby eliminating the exclusive jurisdiction of 
the Court of Appeals over MSPB cases. Again, this would have 
significant results in our travel costs and our litigation 
expenses for the Board. In the past few years the Congress has 
showed your confidence in our ability to adjudicate cases by 
giving us increasing amounts of jurisdiction over different 
statutes; the Uniform Services Employees and Re-employment Act, 
VEOA, and jurisdiction over employees involving the Federal 
Aviation Administration.
    Again, these new laws involve novel and complex issues. We 
appreciate the confidence that Congress has shown in us, but 
with these added responsibilities, we have also had to undergo 
a one-third cut in personnel over the past 8 years, yet we have 
still maintained what we think is a very high level of quality 
service to our constituents. In order for the Board, however, 
to continue to meet GPRA goals, the Government Performance and 
Results Act plan, and fulfill the increased responsibilities 
imposed on the agency by this new legislation, we are going to 
require additional resources.
    I appreciate the opportunity to comment here on these 
proposals. I hope our analysis is helpful to the Subcommittee's 
deliberations, and we certainly hope that the Subcommittee will 
permit the Board to continue the important work that we do by 
giving favorable consideration to our request for authorization 
that is now pending before the full Committee.
    Thank you. I would be pleased to respond to any questions 
at this time.
    Senator Akaka. Thank you very much for your testimony. We 
have been joined by my friend and colleague, Senator Carper 
from Delaware, and I want to give him the opportunity to make 
any statement he would like to make at this point.

              OPENING STATEMENT OF SENATOR CARPER

    Senator Carper. Thank you very much for the opportunity. I 
am not going to interrupt the testimony and, unless I get 
called out of here, I look forward to asking a question or two, 
but we thank our witnesses for being here.
    Thank you, sir.
    Senator Akaka. Thank you. Again, I want you to know that 
all your statements and your full testimony will be included in 
the record.
    Before I begin, I would like to note and I think you should 
know this, that due to time constraints, we were unable to do a 
reasonable review of your written testimony, Ms. Slavet, and I 
appreciate the in-depth and the complex legal analysis you 
provided, and also your suggestions of clarifying and amending 
parts of that. I appreciate that.
    Ms. Slavet. Thank you, sir. I am sorry. I know we got the 
statement to you later than we were required to and I 
appreciate your forbearance with us.
    Senator Akaka. Before we proceed with questions, I am 
delighted to have my friend and colleague, Senator Levin, here. 
As I used the word passionate for Senator Grassley, I want to 
use the same word with Senator Levin, that he is a passionate 
leader on whistleblowers. I invite him to give any statement he 
may have.

               OPENING STATEMENT OF SENATOR LEVIN

    Senator Levin. Thank you, Senator Akaka. That is quite a 
compliment coming from you and I appreciate it a great deal. I 
am sorry that I am late. First, let me thank Chairman Akaka for 
calling this hearing, for being so dedicated in his efforts to 
fix the Federal employee protection system that so many have 
worked so long to strengthen, and that of course is the 
Whistleblower Protection Act.
    Recent decisions by the U.S. Court of Appeals for the 
Federal Circuit have violated the intent of Congress with the 
result that clarifying language is very badly needed. Congress 
has long recognized the obligation we have to protect a Federal 
employee when he or she discloses evidence of wrongdoing in a 
Federal program. If an employee reasonably believes that fraud 
or mismanagement is occurring, and that employee has the 
courage and the sense of responsibility to make that fraud or 
mismanagement known, it is our duty to protect that employee 
from any reprisal. We want Federal employees to identify 
problems in our programs so that we can fix them. And if they 
fear reprisal for doing so, then we are not only failing to 
protect the whistleblower, but we are also failing to protect 
the taxpayer.
    We need to encourage, not discourage, disclosures of fraud, 
waste and abuse. Today, however, the effect of the Federal 
Circuit decisions is to discourage the Federal employee 
whistleblower and ignore congressional intent to achieve that 
result. Tom Devine of the Government Accountability Project 
notes in his testimony today that since 1994 whistleblowers 
seeking relief have lost all 69 decisions on the merits before 
the Federal Circuit. Nothing that I can think of is much more 
discouraging than a zero batting average.
    The Federal Circuit has misinterpreted the plain language 
of the law on what constitutes protected disclosure under the 
Whistleblower Protection Act. Most notably, in the case 
LaChance v. White, decided in May of 1999, the Federal Circuit 
imposed an unfounded and virtually unattainable standard on 
Federal employee whistleblowers improving their cases. In that 
case, the Federal Circuit said that review of the conduct of an 
agency alleged to have retaliated against the whistleblower 
would start out with, ``a presumption that public officers 
perform their duties correctly, fairly, in good faith and in 
accordance with the law in governing regulations,'' but then 
proceeded to announce that, ``this presumption stands unless 
there is irrefragable proof to the contrary.''
    The Federal Circuit imposed a clearly erroneous and 
excessive standard on the employee to provide irrefragable 
proof that there was waste, fraud or abuse. Irrefragable means 
undeniable, incontestable, incontrovertible, incapable of being 
overthrown. That is the dictionary definition. How can a 
Federal employee meet a standard of irrefragable in proving 
waste, fraud and abuse? I think that is a much tougher standard 
than the one that exists in a criminal case. There is nothing 
in the law--there is nothing in the legislative history that 
even suggests such a standard with respect to the Whistleblower 
Protection Act. The intent of the law is not for the employee 
to act as investigator and compile incontrovertible proof that 
there is fraud, waste or abuse. Again, this is a standard 
tougher than ``beyond a reasonable doubt.'' Under the clear 
language of the statute, the employee need only have a 
reasonable belief--those are the words we wrote--reasonable 
belief that there is waste, fraud or abuse occurring before 
making this protected disclosure.
    Now that is but one area of the law that Senator Akaka's 
bill, which has been supported by a number of us, attempts to 
address. There are numerous other areas that we will be 
discussing today, and I am looking forward to discussing these 
with our witnesses who are so familiar with the current law and 
who work day in and day out to enforce it and to protect 
Federal employees.
    Again, I want to learn how recent court cases have affected 
whistleblower rights and the ability of those involved in 
carrying out the law to protect those rights and whether or not 
those decisions implement the clear intent of Congress. I want 
to again thank our Chairman for calling these hearings. It is a 
very important subject. Whistleblower protection is something 
that we must pay attention to if we are going to protect the 
taxpayer as well as the whistleblower.
    Senator Akaka. Thank you very much, Senator Levin, for your 
statement.
    Now we will begin questions to our witnesses. I have 
questions, first for Ms. Kaplan. The Office of Special Counsel, 
as chief protector of Federal employees in the area of 
whistleblower activities, receives, without question, many 
complaints. As I understand it, all complaints are screened by 
your office to determine if future action is warranted. This 
screening process also includes a review of the evidence and 
law to determine whether Special Counsel can prove a case. My 
question has two parts. Can you describe how the decisions made 
by the Federal Circuit have affected this screening? And 
second, in particular, how has what was mentioned by Senator 
Levin--how has the irrefragable proof standard for 
whistleblowers changed your screening process?
    Ms. Kaplan. Those are good questions, Senator Akaka. What 
we have done is that we have attempted to read those decisions 
as narrowly as possible consistent with our obligation, 
obviously, to follow the Federal Circuit's mandates. I am very 
hesitant to close cases, in general, because a disclosure is 
not protected on one of these bases. So we try to bend over 
backward, I would say, to look at the cases, such as LaChance 
v. White and some of other decisions we have discussed today, 
Willis, and read them as narrowly as possible.
    But that being said, there is no question that we are, on 
occasion, presented with cases where there is no way around it, 
whether we agree with the Federal Circuit's reasoning, whether 
we think it is consistent with the legislative history of the 
Act or not, we may have to close a case. This has occurred, for 
example, with the Willis Doctrine, which provides that when an 
employee makes a disclosure in the course of performing their 
duties, the disclosure may not be protected. The Board recently 
read this decision in a way that will try to make it consistent 
with the legislative history of the Act and we have applied, 
now, the Board's narrower interpretation. Nonetheless, every 
time we get one of these kind of decisions, we have to re-
examine again how we are going to treat the cases that come 
before our office.
    Senator Akaka. Chairwoman Slavet has suggested that 
providing for multi-circuit review of Board decisions could 
result in a lack of uniform treatment of Federal employees. 
Would you comment on that?
    Ms. Kaplan. I do not necessarily think that that is true. I 
think, actually, under the Administrative Procedure Act, the 
standard is that agency decisions can be reviewed in any 
circuit in the country. Really, the system of review that is 
set up under this statute is the exception rather than the rule 
for administrative agency decisions. Indeed, the current law 
provides for multi-circuit reviews of decisions of our sister 
agency, the Federal Labor Relations Authority. EEO cases 
involving Federal employee issues are heard in district courts 
and courts of appeals all over the country, and I am really not 
sure why whistleblower protection cases should be treated any 
differently or why it would create a big problem of lack of 
uniformity.
    Whistleblower cases often involve legal issues that are 
very similar to those that are raised in employment 
discrimination cases. They are very similar to issues raised in 
unfair labor practices cases that are before the Federal Labor 
Relations Authority. These cases are appealed to every circuit 
court in the land. So I would respectfully disagree with 
Chairman Slavet on that point. I do not think that--I do not 
see it as a problem, and I see good reasons for it.
    Senator Akaka. In 1988, President Reagan vetoed the 
Whistleblower Protection Act amid concerns that such protection 
would be used by inefficient employees to delay adverse actions 
of their employers. Is there any evidence of this type of abuse 
occurring? Do you feel that by clarifying the intent of 
Congress, that any disclosure of government wrongdoing deserves 
protection, and by removing the Federal Circuit's bar of 
protection for secondary sources, that there will be an 
escalation of fraudulent whistleblower cases? And finally, 
would S. 995 affect OSC's ability to curb such fraudulent 
actions?
    Ms. Kaplan. Frankly, since I became Special Counsel 3 years 
ago--actually, this question, a similar question was asked at 
my confirmation hearing, because there is an old canard that 
goes around that people are using the system in some way to 
prevent legitimate personnel actions being taken against them. 
People can try whatever they want. There are people who would 
try to abuse the system, but they invariably will not succeed, 
because we are going to look at the cases to see if there is at 
least enough evidence to move a case forward for investigation. 
People cannot stop a personnel action simply by filing a 
complaint with the Office of Special Counsel. So I think this 
is a bit, as I say, of an old canard and I do not see how 
enhancing the laws that protect people who really deserve 
protection is going to result in people taking advantage of the 
system.
    Senator Akaka. The Office of Special Counsel is sometimes 
characterized as a watchdog of the Civil Service, yet, in the 
majority of whistleblower cases, your office may not be a 
party. These cases may result in decisions that are detrimental 
to the interest that your office represents. Under current law, 
how can your office make sure that important legal issues are 
properly raised and litigated when your office is not a party? 
And second, how would S. 995 affect your ability in this area?
    Ms. Kaplan. Well, under current law, it is very difficult 
for us to participate in cases where we are not a party. Now, 
there are occasions where the Merit System Protection Board, 
for example, has solicited in advance the views of interested 
parties about legal issues. This came up a few years ago. There 
was a question about whether revocation of a security clearance 
should be covered under the Whistleblower Protection Act. The 
Board solicited briefs, and we were able in that case to file a 
brief and argue that security clearance revocation should be 
covered, unsuccessfully, unfortunately.
    In general, unless the Board flags the case ahead of time, 
it is very hard for us to know which cases are going to involve 
important issues. That is why we are seeking the kind of 
authority that OPM has after the Board issues a decision for us 
to be able to come in and provide the Board with our 
perspective as the independent watchdog on the legal issues 
raised in the case. Currently, it is very difficult and it has 
been quite frustrating to me, because I have had the staff sort 
of trying to predict ahead of time when the Board's decisions 
will be resolving important issues, when they will simply be 
deciding the cases on alternative grounds that are not so 
important, very difficult and I think that is why we need S. 
995.
    Senator Akaka. I now have questions for Ms. Slavet. But 
before I ask my questions, I would like to thank you for 
drawing attention to the apparent inconsistency with reasonable 
belief standards among various classes of whistleblowers. The 
intent of S. 995 was not to eliminate the reasonable belief 
standard for certain whistleblowers, rather the bill was 
designed to make this standard applicable for all 
whistleblowers, regardless of the nature of the disclosure. The 
inadvertent omission of a comma after the word duties in 
section 1(a) of the bill does appear to change the reasonable 
belief standard and that it is not our intention.
    On behalf of the sponsors of the bill, I would like to 
thank you for bringing the oversight to our attention and I 
would like to assure you that this situation will be rectified. 
We welcome any other technical corrections to the bill. Thank 
you very much.
    Ms. Slavet. Senator, with regard to the credible evidence 
sections, specifically, the Court of Appeals, actually both in 
LaChance v. White and in another decision, I believe called 
Herman, also tended to talk about evidence. Usually, the court 
should be looking to adopt and defer to the Board's decisions, 
but sometimes they decide to review the evidence themselves. So 
I do have some concerns about the use of the words credible 
evidence in the bill itself with regard to it expressing 
congressional intent, and whether that term itself may need to 
be relooked at, because I understand that the sponsors are not 
trying to make it more difficult for whistleblowers.
    Senator Akaka. Thank you. Ms. Slavet, does the MSPB agree 
that the irrefragable proof standard established by the Circuit 
Court in LaChance v. White to overcome the presumption of 
government regularity, is congruent with the spirit of 
congressional intent to protect whistleblowers?
    Ms. Slavet. Well, sir, I think it is ultimately Congress' 
decision to decide whether it is congruent with your intent or 
not. I will point out in a recent decision called Keenan v. 
Department of Defense, the Board distinguished LaChance v. 
White, and the only time I have ever seen the irrefragable 
proof expression actually used has to do with contract cases 
involving the government. So it is not a term that we used or 
certainly have ever seen in the legislative language or the 
legislative history of the Act.
    Senator Akaka. Does the MSPB believe that the congressional 
mandate of protecting any disclosure, as outlined in the 
legislative history of 1994 amendments, is being heeded by the 
circuit court?
    Ms. Slavet. Has been heeded?
    Senator Akaka. Heeded, yes.
    Ms. Slavet. I would say there has been an attempt. There 
have been a number of cases, again, and I am somewhat loathe to 
criticize our previewing in court in public, and I am sure you 
understand that. You mentioned and I think Tom Devine's 
testimony talked about the 1994--no wins for whistleblowers 
since 1994. The only case that I am aware of in which the Court 
of Appeals has recognized and found on behalf of whistleblowers 
was a 1993 case called Morano v. Department of Justice, in 
which the Justice Department had actually itself done an 
internal investigation and found that there was a serious 
problem.
    So the track record, certainly, has not been one, in terms 
of statistics or in terms of language, that appears to be as 
protective to whistleblowers as either OSC or the Merit System 
Protection Board has. There have been a number of cases where 
we have clearly, in unanimous decisions--we find or refer to 
certain expressions in Court of Appeals decisions as dicta 
because we did not see that they were necessary to the holding. 
We are bound by the holding of the cases, but not the dicta of 
the cases, and we have examined that carefully to make sure 
that we make the distinction to be responsible to the language 
that Congress has provided us with.
    Senator Akaka. I know that the Board has conducted studies 
on whistleblowing and whistleblower protections. What has been 
the results of these studies, especially your most recent merit 
principles survey?
    Ms. Slavet. The most recent survey, which actually has not 
even--we have not even published the results yet, because it is 
going to be part of our draft report, indicates that 44 percent 
of those who said that they had made a formal disclosure of 
fraud, waste or abuse had felt that they had experienced 
retaliation as a result. The survey did not ask for detailed 
information on the nature of the disclosures, the form of the 
perceived retaliation, and obviously, there may be a disconnect 
between the legal term and what people perceived, but it was 44 
percent.
    I would also point out that an earlier study--it is sort of 
interesting, because an earlier 1993 study indicated that while 
fear of reprisal was a reason given by at least 33 percent of 
employees who chose not to report illegality because of 
concerns about retaliation, an actual higher percentage, 59 
percent of the respondents chose not to report, an observed 
activity that they thought needed to be corrected because they 
thought nothing would be done. So, actually, more people do not 
report, not because of the potential chilling effect, but 
because they are discouraged and frustrated and they think: Why 
bother? Nothing is going to be done.
    I thought that was a very interesting statistic and 
response, and certainly, something that I would not necessarily 
have expected. But I think it does go to the good government 
policy of not just protection for whistleblowers in terms of 
retaliation, but actual encouragement of whistleblowers and 
whether the government is responding to their concerns.
    Senator Akaka. My last question is more of a statement than 
a question. In your testimony you note that a possible negative 
consequence of this bill could be an increase in your agency's 
workload by substantially broadening your jurisdiction. You 
note that 34 percent of cases are dismissed on jurisdictional 
grounds. Your statement provides the example of one case that 
was dismissed based on the Willis case. Ironically, Willis is 
one of the very cases that we are trying to overturn with this 
bill. I hope that an increase in workload, whether through more 
cases being filed or through more cases being heard on the 
merits, will not be a reason to deny justice and basic 
employment rights to the men and women who come forward, often 
at personal risk, to disclose agency wrongdoing.
    Ms. Slavet. I totally agree with you, sir, and in that 
particular case that we talked about, we actually initially 
reversed the AJ's finding, but one of the things we need to 
understand in these cases is, one, if we are denying on 
jurisdiction and they go to the merits, we are going to get 
more loser cases on the merits. I personally have no problem 
with that. I think a lot of these are evidentiary and very 
fact-based, and the evidence needs to be heard. So there will 
be more losing decisions on the merits, as opposed to on 
jurisdictional grounds, and that is no problem. But it will 
take, because they are on the merits, much longer hearings and 
much more process, more cross-examination of witnesses, direct 
examination of witnesses. All that will be involved. Longer 
decisions will be involved.
    So, I totally agree with you, but it is better for those 
cases, perhaps; that is Congress' determination to see whether 
they should be dismissed on the merits because the agency has 
had its burden and met its burden to show by clear and 
convincing evidence that it would have taken the action anyway, 
than on jurisdictional grounds.
    Senator Akaka. I would like to call on my colleague, Mr. 
Levin, for any questions he may have for this panel.
    Senator Levin. Thank you, Mr. Chairman. Before I turn to 
questions, let me commend your office, Ms. Kaplan, on the way 
in which you have operated. The Government Accountability 
Project does not usually pull its punches when it gives its 
opinion about whistleblower protection matters, and in today's 
testimony, Tom Devine, the legal director of the accountability 
project, says that you have won the respect, in his words, ``of 
even the most disillusioned critics.'' So that is a pretty big 
compliment.
    Ms. Kaplan. I take it as a compliment. Now let us hope it 
last past this hearing.
    Senator Levin. All right. I would share that hope of yours, 
but at any rate, it is quite a compliment.
    Ms. Kaplan. I appreciate that.
    Senator Levin. Congratulations. As you heard in my opening 
statement, I am particularly troubled by the Federal Circuit's 
decision in LaChance, which set out an impossible standard of 
proof: ``Irrefragable proof.'' It is not only an impossible 
standard, it is darn near unpronounceable, by the way. For a 
whistleblower to have to show uncontrovertible evidence, it 
seems to me, is way beyond any plaintiff's worst nightmare. I 
do not know of any situation, and perhaps there is one with 
Federal contracts, that one of you said that the word came 
from. Was that you?
    Ms. Slavet. Involving Federal contracts, yes, that is where 
I first learned the standard in doing some contract law. But it 
is--the burden is on the contractor. It has to do with a very 
narrow provision vis-a-vis the particular agency involved. It 
is a real term of art, involving a very particular and narrow 
area of the law. That is the only time I have ever seen it.
    Senator Levin. Was that in the statute or was that in a 
court decision?
    Ms. Slavet. I believe it was in court of claims decisions. 
For example, the Department of Defense is saying that the 
contractor did not produce what they needed to produce and they 
are saying that they--but I would have to check the exact 
situation.
    Senator Levin. Did this come out of the blue, as far as 
both of you were concerned?
    Ms. Slavet. Yes.
    Ms. Kaplan. Well, I ran to my dictionary, because I had 
been practicing law for a long time, and I had never even seen 
the word before, in the context of an employment case. So, yes, 
it was odd.
    Senator Levin. Well, as somebody who has been involved in 
whistleblower protection, I have got to tell you that this 
standard came totally out of the blue, as far as I am 
concerned. I do not know where a court could possibly have dug 
up that kind of a standard, and I know you are reluctant to be 
critical, but I am not.
    Ms. Slavet. I think, sir, it had to do with when the 
contractor was trying to claim a particular kind of damages 
against the government.
    Senator Levin. I am not going back to that. I am being 
critical of the court for figuring out----
    Ms. Slavet. Where they got this term.
    Senator Levin. I cannot imagine what law clerk dug that up 
somewhere.
    Ms. Kaplan. Well, if you look at the decision I was just--
--
    Senator Levin. I do not mean to demean law clerks, by the 
way. It may have been a very politically correct statement. It 
may have been the judges themselves that dug it up.
    Ms. Slavet. I want to make it clear, I am not defending 
that.
    Senator Levin. Keep going. You are doing well.
    Ms. Slavet. That decision.
    Senator Levin. Good. What has been the effect of that, as a 
practical matter? I have heard testimony that you have tried to 
narrow its impact, but has it had a real effect on the real 
world of real whistleblowers?
    Ms. Kaplan. I imagine that my friend, Tom Devine, would 
probably be able to address that more than I would, but as I 
said initially--first, I did not know what the word meant, so I 
decided we did not have to follow it anyway. No, we looked at 
it and, in our opinion, and I think this has been the Board's 
view of it, as well, we viewed that and have viewed it as dicta 
in the decision. It is certainly dicta that is very hostile to, 
I think, the underlying notion of protecting whistleblowers.
    So we have tried, and I think still being true to our 
obligation to follow court decisions, to view it as dicta, and 
it does not affect the way that we treat cases, but I would say 
if we were to bring a case before the Board or before the 
Federal Circuit that was on the margins, that we might have a 
hard time with that standard, because I am sure that would be 
thrown in our faces.
    Senator Levin. You, as the Special Counsel, were not able 
to participate in the LaChance case; is that correct?
    Ms. Kaplan. That is correct.
    Senator Levin. And that is because----
    Ms. Kaplan. According to the Justice Department, our 
lawyer.
    Senator Levin. That is because you do not, according to 
them, have independent litigation authority?
    Ms. Kaplan. That is correct.
    Senator Levin. This bill would correct that?
    Ms. Kaplan. Yes, it would.
    Senator Levin. Do you know if the Justice Department has 
taken a position on our bill in that regard?
    Ms. Kaplan. I know that they submitted some testimony 
today. I do not know. I do know that they very jealously guard 
their authority to represent Federal agencies in court, but I 
also know that it would not be surprising to me if they opposed 
it. But it is not inconsistent with the kind of authority that 
other agencies, like the Federal Labor Relations Authority, the 
Merit Systems Protection Board, and other independent agencies 
that deal with Federal employee issues possess.
    Ms. Slavet. Just make sure the record is clear, we have 
litigating authority with regard to our jurisdiction and 
timeliness, and that is all, because when these cases come up--
and Special Counsel cases. That is, we defend, in particular, 
parts of whistleblower cases, but generally most of the cases 
in front of us come up between an appellant and an agency, and 
if OPM is defending--if OPM or the agency defends, it is 
between those parties and we are not a party to that 
litigation.
    Senator Levin. Now, where you find for the agency and the 
employee wants to appeal, the employee is on his own; is that 
correct? He has to get his own private counsel?
    Ms. Slavet. Yes, sir.
    Senator Levin. He does not have the Office of Special 
Counsel there to support him, even though the Office of Special 
Counsel supported the employee's position before the Board; is 
that true?
    Ms. Slavet. Well, usually what happens in those cases, in 
individual right of action cases--that is, most of the cases 
that we deal with involving this area of law, what is called 
IRAs, individual rights of action, which Congress passed 
before. These are the cases that have come through Special 
Counsel. Special Counsel has determined that there is not merit 
in the case. They then come to us, and they have the right to 
appeal directly to us, and then we issue a decision.
    Senator Levin. If the decision is against the employee, the 
employee does not have the benefit of the Office of Special 
Counsel on the appeal; is that correct?
    Ms. Slavet. Yes, unless the Office of Special Counsel may 
decide--and this happened that there are--I mean, every 
decision that we do issue----
    Senator Levin. Unless they decide what? If you could finish 
that----
    Ms. Slavet. There has been one particular case where the 
Special Counsel--they cannot represent the employee, but they 
have gone in and dealt with the Justice Department and OPM, 
indicating what they thought the position of the government 
should be.
    Senator Levin. But they cannot represent the employee.
    Ms. Slavet. Not as far as I know.
    Senator Levin. If the agency loses the case before you and 
he appeal, however, he is represented by the Justice 
Department; is that correct, or by his own counsel?
    Ms. Slavet. They would be represented by the Justice 
Department, but the case would have to come to us a second 
time, because the Office of Personnel Management would have to 
decide that the decision that we issued had a substantial 
impact on civil service law. So we act as a second gate. So not 
every case where they lose can they go to the Court of Appeals, 
but, yes, they can go to the Court of Appeals, and that is what 
happened in LaChance v. White.
    Senator Levin. Every case that they lose----
    Ms. Slavet. Every case----
    Senator Levin. Not that they win--I am talking about every 
case that they lose.
    Ms. Slavet. Every case that they lose, they could appeal, 
but only by going first to the Office of Personnel Management, 
having the Office of Personnel Management asking us for 
reconsideration, and then passing the test that it would have a 
substantial impact on civil service law.
    Senator Levin. And if they do not pass that test, can they 
still appeal?
    Ms. Slavet. No, the court would say you are out.
    Senator Levin. But they can appeal, but then the court 
could say you are out, but they have a right to appeal?
    Ms. Slavet. Yes, they have a right to appeal, but it is a 
high test for them to meet.
    Senator Levin. And they have counsel when they appeal?
    Ms. Slavet. Yes, sir, the Justice Department.
    Senator Levin. Have you looked at the comma question which 
Chairman Akaka made reference to?
    Ms. Slavet. Yes, sir.
    Senator Levin. Does that solve the problem?
    Ms. Slavet. I do not think it solves the whole problem, 
because it still has the credible evidence standard, and I will 
say the attorney who was looking at this for me had said to me 
we should have a comma in there, and I said to him, ``I really 
cannot go to the Hill and tell them they need to add a comma.''
    Senator Levin. Well, I think we caught it, and now that we 
have caught it, you would agree we ought to add a comma.
    Ms. Slavet. I have no problem with your having caught it, 
sir.
    Senator Levin. The bigger problem is the words ``credible 
evidence of,'' which presumably you believe should not be 
necessary?
    Ms. Slavet. My concern is----
    Senator Levin. Let me rephrase my question. If the court 
had read to words ``reasonably believes'' the way every other 
court has always read the words ``reasonably believes,'' we 
would not be here on this issue, on that particular issue. In 
order to reinforce our point, we have had to write words such 
as ``reasonably believes there is credible evidence of,'' to 
tell the court we really mean what we are saying. As far as I 
know, that is the only reason to put the words in there. I do 
not know how else to do it, except perhaps to tell the court, 
if the employer/applicant reasonable believes (and we really 
mean that). I do not know any other way to do it, except with 
these words.
    Now, I think that is what is driving us towards those 
words. Now, what you are saying is basically you should not 
need those words. They do not add anything as far as you are 
concerned. In fact, they may unintentionally complicate life 
for the employee; is that a fair statement?
    Ms. Slavet. Yes. May I add something?
    Senator Levin. Now you can get a word in edgewise.
    Ms. Slavet. There has been a lot of talk about LaChance v. 
White and the words ``irrefragable proof.'' Assuming for the 
moment that that is dicta, there are other parts of LaChance v. 
White and some other Court of Appeals decisions that talk and 
go into the evidence also. That is, in terms of deference, it 
is not like the court is indicating that, with regard to 
evidence, we, of course, defer to whatever the MSPB found. 
Frequently, moreover in some of these cases, there are not 
published Board decisions. It comes from an individual initial 
decision from an AJ. So it seems to me whenever you start 
talking in statutory language about evidence, you are telling 
the reviewing authority that they can examine the evidence. And 
as soon as you have a Court of Appeals examining evidence, as 
opposed to clear issues of law, they are going to mess around 
with it.
    Senator Levin. Any worse than they already have?
    Ms. Slavet. I cannot predict the future, Senator.
    Senator Levin. Well, let me see if I can figure out another 
way to go at this problem. Should we eliminate the presumption 
that the government agency acted appropriately? Would that send 
a clearer message to the court? There is no presumption 
anymore. We could do that, I presume.
    Ms. Kaplan. I believe that the language may need to be 
tinkered with a little bit, because there are some aspects of 
it that are vague and could be interpreted to do what we do not 
want to do, which is to raise the bar for whistleblowers, and I 
think it would be worth considering, as we go through the 
legislative process, ways to accomplish what we all, I think, 
agree is necessary. And the problem is, as you pointed out, the 
language was already clear. It is the same thing with the any-
disclosure portion of this debate. Any disclosure should mean 
any disclosure, but now we have to put in all these complicated 
qualifiers because it has not been interpreted that way. So I 
think we are going to have to be very careful about the 
language that we choose, and there may be a way of just 
throwing in the words irrefragable proof in there--no 
irrefragable burden of proof applies--and then at least every 
lawyer in town would find out what irrefragable means, every 
employment lawyer.
    Senator Levin. Let me pursue a question with you that the 
Chairman raised, and that has to do with the Willis case and 
the Langer case.
    Ms. Slavet. The Willis case and the----
    Senator Levin. Langer. In your statement, you indicated 
that, in fiscal year 2000, 34 percent of the individual right-
of-action appeals filed at the MSPB were dismissed for lack of 
jurisdiction because the whistleblower did not make a protected 
disclosure. You referred to the Langer case, where the Board 
dismissed the case because the employee failed to show that he 
made a protected disclosure under the Whistleblower Protection 
Act, and you state that the Board relied on Willis in reaching 
the decision. In the Willis case, the court did not find there 
to be a protected disclosure, because the disclosure was to the 
employee's supervisor, and it was made in the normal course of 
his duties. Now, were either of those a reason for the court's 
decision in the Langer case, first of all?
    Ms. Slavet. You are really catching me here, Senator.
    Senator Levin. OK, well, let me keep going. I have a 
problem with the court's holding in the Willis case, and I 
would like to know if you can tell us how many other Board 
cases were dismissed that primarily relied on those same 
holdings in Willis? Are you able to tell us that?
    Ms. Slavet. We would not have those statistics, and there 
are two kinds of decisions the Board issues, one a precedential 
decision, which is the full Board, and that there are non-
precedential decisions, which are either the initial decisions 
or the administrative judge's, which right now an appellant can 
take directly to the Federal Circuit Court of Appeals, or what 
we call short-term decisions, where the appellant has appealed 
to us and for some reason which may have nothing to do with the 
whistleblowing complaint, which may have nothing to do with 
what happened in the AJ's decision, we decide there is some 
other reason that we would dismiss the case without discussion 
of why. Then those cases can go up further to the Federal 
Circuit, and the Federal Circuit has not had the expertise of 
the full Board looking at those particular cases.
    Senator Levin. If you can give us any additional statistics 
for the record, would you do that?
    Ms. Slavet. The only statistic I can give you----
    Senator Levin. No, I am saying for the record.
    Ms. Slavet. OK.
    Senator Levin. Now, there is another comment in your 
statement that I would like to press you on. It says, ``Under 
the proposed legislation, appeals that the Board previously 
dismissed, such as Langer, would likely be heard on the merits 
and would have a substantial impact on the Board's resources. 
Similarly, expansion of disclosures protected under the Act, to 
include those that are made to an employee's supervisor in the 
normal course of his or her duties, as well as those that are 
made to the alleged wrongdoer, would result in a significant 
increase in the Board's overall workload, in both of those 
cases.''
    Now, if the court was incorrect in interpreting the intent 
of Congress, and decisions--your decisions--were based and are 
being based on an erroneous holding, if that is true, should 
not we correct the process? Should not we welcome the increase 
in the workload?
    Ms. Slavet. Well, let me make two points.
    Senator Levin. If your workload is reduced because of 
erroneous decisions by a court which deny whistleblowers 
access, it seems to me you would be the first to say, ``Hey, we 
want justice to be done. We want congressional intent to be 
carried out, and we want whistleblowers to be protected and not 
to have their cases dismissed based on court decisions which 
Congress determines are not what the congressional intent is.''
    Ms. Slavet. I am speaking here as the chairman of the 
Board, which is different than my position as an adjudicator, 
and I have to tread that line carefully, and particular 
decisions, in terms of my particular opinion, is what you are 
asking, there have been a number of cases where I have 
dissented or concurred and let the court know very explicitly 
that I disagree with its interpretation of the WPA amendments 
of 1994. For example, with the words, giving a comparison, 
``any disclosure.'' So I feel that I personally have been very 
true to the congressional language and the congressional 
intent.
    Senator Levin. Even though that might increase the 
workload.
    Ms. Slavet. Yes, absolutely. I have no problems with the 
increase in the workload. But that is for you to decide, not 
for me to decide.
    Senator Levin. Final question, if I can, Mr. Chairman--this 
goes to you, Ms. Kaplan. The bill contains a provision that 
will allow the whistleblower to appeal a Board decision either 
to the U.S. Court of Appeals for the Federal Circuit or to the 
U.S. Appeals Court for the circuit in which the petitioner 
resides. Previously, the law, as you know, required all appeals 
to go to the U.S. Court of Appeals for the Federal Circuit. Do 
you agree with the bill's provision which would allow the 
option?
    Ms. Kaplan. Yes, I do.
    Senator Levin. Now, our bill allows the Special Counsel to 
seek review in the U.S. Court of Appeals for the Federal 
Circuit, but not in any of the U.S. Circuit Courts of Appeals. 
Do you think that we should include the Special Counsel in the 
expansion of appellate authority and let the Special Counsel 
have the same option of seeking appeal in the Federal Circuit 
or one of the Circuit Courts of Appeals?
    Ms. Kaplan. Yes, I think we should have the same right of 
appeal outside of the Federal Circuit. If I might offer an 
explanation for why there is this curious anomaly in the way 
the bill, as it is currently drafted--we were asked to draft 
language that would give us the authority to ask the Board for 
reconsideration or appeal the cases. This was before there was 
a provision in the bill for multi-circuit review. So we 
provided this--basically the same as the current authority for 
OPM, and that is how it happened. But, of course, in the final 
drafting of the bill, it would have to be consistent.
    Senator Levin. Mr. Chairman, could I just take 1 more 
minute? I said that was my last question, but I have been 
reminded that there is a particular area of interest that I 
would like to clarify with you, Ms. Kaplan. Under the current 
law, the revocation or denial of a security clearance in 
retaliation for whistleblowing is not considered a prohibited 
personnel action. This leads to a situation where a Federal 
employee can blow the whistle on waste, fraud or abuse, and 
then, in retaliation for so doing, have his or her security 
clearance withdrawn and then be fired because he or she no 
longer has a security clearance.
    The employee can only challenge the firing under the 
Whistleblower Protection Act, not the withdrawal of the 
security clearance, which makes the challenge significantly 
harder, because now the agency has a strong reason for the 
firing, since the employee no longer has a security clearance, 
which may be a requirement of the job. Do you think the 
revocation or denial of a security clearance should be a 
prohibited personnel action, and if you do believe that, should 
we add that provision to the bill?
    Ms. Kaplan. Well, we just took the position in a matter 
before the Board a couple of years ago that the law already--
that when the law was amended, I guess in 1994, that the law 
already covers security clearance revocations. We explained in 
front of the Board why we thought there were good policy 
reasons for doing that. It is sort of Kafkaesque. If you are 
complaining about being fired, and then one can go back and 
say, ``Well, you are fired because you do not have your 
security clearance and we cannot look at why you do not have 
your security clearance,'' it can be a basis for camouflaging 
retaliation. So I do think it is something that should be 
considered, and it would close a significant loophole in the 
law.
    Senator Levin. Do you have any comments on that, Ms. 
Slavet?
    Ms. Slavet. Only to say that the Supreme Court has been 
very clear on this, and the Congress would need to be 
absolutely explicit, and when the issue was addressed 
previously in 1994, Congress clearly was not explicit. There 
was a disconnect between what the House and what the Senate 
did, and while again it is Congress' right and Congress should 
look at that potential--at that loophole--I have no problem 
defending the Board's decision that determines that Congress 
did not provide for the revocation of a security clearance 
being a prohibited personnel practice. The language just did 
not do it.
    Senator Levin. Under existing law.
    Ms. Slavet. Under existing law, correct, sir.
    Senator Levin. Thank you. Mr. Chairman, thank you again for 
your leadership in this area.
    Senator Akaka. Thank you very much, Senator Levin. In the 
interest of time, I have additional questions that I will 
submit in writing to our witnesses, and I would like to thank 
you for your testimony and responses to our questions. We look 
forward to working with you in developing the best possible 
legislation to protect Federal employees from work place 
retaliation. Thank you very much, and you may be excused. We 
now ask Mr. Devine to come to the witness table. Please remain 
standing. Raise your right hand. Do you solemnly swear to tell 
the truth, the whole truth, and nothing but the truth, so help 
you, God?
    Mr. Devine. Yes.
    Senator Akaka. Thank you. You may be seated. Mr. Devine, as 
a well-known advocate for whistleblowers, not only in the 
United States, but throughout the world, we are certainly glad 
that you have been able to join us. We invite you to give your 
oral statement, which is limited to 5 minutes. Be assured that 
your entire statement will be included in the record. You may 
begin.

   TESTIMONY OF THOMAS DEVINE,\1\ LEGAL DIRECTOR, GOVERNMENT 
                     ACCOUNTABILITY PROJECT

    Mr. Devine. Thank you. GAP commends your leadership to 
revise the primary civil service law applying merit system 
rights to Congress and the public's right to know. S. 995 is 
responsible good-government legislation, and it is essential to 
restore legitimacy for this law's unanimous congressional 
mandate, both in 1989, when it was passed originally, and in 
1994, when it was unanimously strengthened, and it is fitting 
that Senators Levin and Grassley are original co-sponsors, 
because they were pioneers in both campaigns that are in this 
mandate.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Devine, with attachments, appears 
in the Appendix on page 54.
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    In 1994, the WPA was the state-of-the-art for whistleblower 
rights. Despite pride in helping win its passage, GAP must now 
warn those seeking help that the law is more likely to 
undermine than to reinforce their rights, and this is because 
the Federal Circuit Court of Appeals, which has a monopoly in 
appellate judicial review, has set the pace for hostile 
judicial activism, functionally overturning the law by 
rewriting basic statutory language. The repeated unanimous 
congressional mandates for the Whistleblower Protection Act 
should not be surprising. Whistleblowers are the Achilles heel 
of bureaucratic corruption. Bipartisan legislative champions of 
this law have called it the Taxpayer Protection Act, and voters 
from all backgrounds agree with that. Nearly 100 citizens 
organizations have signed a petition in support of this bill.
    In the working group for the amendments on your 
legislation, it includes organizations such as the NAACP and 
Common Cause, to the Patrick Henry Society and the National 
Taxpayers Union, scientific organizations such as the Union of 
Concerned Scientists, good-government watchdogs, such as the 
Project on Government Oversight and OMB Watch. Whatever our 
political views, we all recognize that without viable rights, 
Federal employees will be bureaucrats as the rule and public 
service as the exception. We can count on Federal workers to 
defend the public if they cannot defend themselves.
    Before going into the track record of the law today, I 
would like to first give credit where it is due. Chairman Beth 
Slavet has been a faithful defender of congressional language 
in attempting to limit damage from Federal Circuit threats to 
the statute's legitimacy. And at the Office of Special Counsel, 
based on our experience during Special Counsel Elaine Kaplan's 
administration, we have come to expect that the staff will 
handle reprisal cases with persistence, poise, professionalism, 
and most of all, hard work.
    That is not to say we do not deeply disagree with numerous 
judgment calls made by these agencies, but they should be put 
in perspective. This leader's commitment to the merit system is 
beyond credible debate. At the level of administrative 
leadership, the law is in good hands, and it is also beyond 
credible debate that the OSC's voice in court would strengthen 
our merit system. While you are waiting for your bill to get 
passed, I would urge them to file more amicus briefs before the 
Merit System Protection Board and show their stuff in that 
forum that is available.
    Without the effort of this administrative leader, however, 
reprisal rights would be skyrocketing. The Federal Circuit 
Court of Appeals has intensified a relentless pattern of 
hostile judicial activism since 1994 amendments strengthened 
this law by reversing a lower Federal Circuit precedent. We 
have studied every published decision through June 29 of this 
year. I would like to break down the 0-69 track record a little 
bit for cases on the merits where whistleblowers sought relief. 
In 1998, it was 0-17; 1999, 0-14; year 2000, 0-15; through June 
29 of this year, 0-12. These facts speak for themselves. 
Whistleblowers do not have a fighting chance.
    In reviewing the provisions of S. 995, I do not want to 
review the points that have been made earlier. The first 
cornerstone is closing the loopholes by putting the ``any'' 
back in ``any,'' and I will not reiterate the loopholes that 
have been covered in the discussion, but do want to highlight a 
few other ones that are worth your note. One is that 
whistleblowers are no longer protected when they challenge 
policies rather than specific events. This is also contrary to 
the legislative history. But these are the scenarios that count 
the most for the taxpayers, where we are institutionalizing 
waste or illegality or substantial threats to public health and 
safety. It shrinks the law's relevance to personal 
eccentricity.
    You are not a whistleblower anymore if you disclose non-
government illegality, which could doom Federal workers who 
reveal misconduct by special interests. Supposedly, that is the 
point of Federal regulation. You are not covered if you expose, 
``minor,'' illegality, which the Federal Circuit illustrated 
through a case involving records falsification through 
backdating. I thought that was a crime. Another one that is not 
covered anymore are disclosures that are, ``unnecessary,'' to 
solve a problem. Boy, that is a subjective blank check to 
punish those who had been vindicated.
    Perhaps the most surreal is no one is protected from making 
any disclosure after initial exposure of given misconduct, 
which revised a discredited doctrine--ingrained, long-term 
corruption that was specifically overruled in 1999 when this 
law was passed. It means only the Christopher Columbus of a 
scandal is eligible for protection. This is an accelerating 
pattern of loopholes. In the aftermath, seeking Whistleblower 
Protection Act coverage is like driving on a road with more 
potholes than pavement.
    To go to the second cornerstone of this law, restoring 
rationality to the reasonable belief test, I will not repeat 
the debate that has happened, that has been summarized so far, 
except to note that the circumstances of this particular 
decision are very startling, because in this case, where the 
court said the employee did not have a reasonable belief of 
evidence, the agency, the Air Force, actually ended up agreeing 
with the whistleblower's concerns, and as Eric Fitzgerald, who 
is in the audience today, will confirm, the Air Force does not 
agree with whistleblowers very often, but this was a case where 
they said the person's belief was not reasonable.
    The irrefragable standard, of course, is the magic word 
here. And far be it for me to urge that they should be given 
any more weight than the leaders of the administrative agency 
have given it, but the court did say it is the first step in 
deciding whether there is a reasonable belief, and with 
irrefragable meaning undeniable and incapable of being 
overthrown, some say there is no such thing as a whistleblower 
unless the individual wrongdoer confesses, and then who needs a 
whistleblower? The irrefragable proof standard means a coverup 
overturns a Federal employee's rights under the Whistleblower 
Protection Act, and it is because of that that we must know, 
first, all who inquire that if they spend thousands of dollars 
and years of struggle to pursue their rights and they survived 
the gauntlet of loopholes, they inevitably will earn a formal 
legal ruling endorsing the harassment they received.
    The court could not have created a stronger incentive for 
Federal workers to be silent observers and look the other way. 
The decision clearly conflicts with President Bush's first act 
on January 20, when he signed an executive order requiring 
Federal employees to disclose fraud, waste, abuse, and 
corruption. Well, what a Catch 22. If they obey the President, 
Federal employees waive their rights. I think, listening to 
Senator Grassley's idea about a Rose Garden, if we do not get 
some genuine rights for these workers, that Rose Garden 
ceremony is going to have to be a closed-casket one, in terms 
of being able to survive in the Executive Branch.
    The third cornerstone is structural reform, restoring all-
circuits review. We had this in the law from 1978 to 1982. It 
is not a new concept which is untested. This will now be the 
third time that Congress has had to pass the Whistleblower 
Protection Act, because the same court has functionally 
overturned a merit system right first created in 1978. It is 
time for structural change to stop the broken record syndrome. 
Enough is enough. S. 995 restores normal judicial review in the 
circuit courts, which has been functional for the EEOC, or the 
FLRA, and which is available to all other Americans who are 
aggrieved by administrative law decisions. We cannot expect 
whistleblowers, Federal employers, to give first-class service 
to the public when they only have second-class rights.
    The fourth cornerstone of the anti-gag statute at this 
point is almost a housekeeping measure. It has passed 
unanimously 13 times in appropriations law, but it does not 
have a remedy, and rights without remedies do not help much. It 
is time to institutionalized this success story. I will not go 
into the specific recommendations out of respect for the time 
limits of the hearing, but we commend you for your leadership 
in putting this proposal on the table. It sends a clear message 
that Congress was seriously when it passed this law in 1989 and 
strengthened it, and as every whistleblower will tell you, 
persistence is a prerequisite for those who defend the public, 
to have a decent chance of defending themselves.
    Senator Akaka. Thank you very much for sharing your 
descriptive insights with us today, and again I commend you and 
the Government Accountability Project for all of the work you 
have done with Federal whistleblowers. I have one question for 
you. The MSPB has taken steps to limit the application of some 
of the Federal Circuit decisions that led to the drafting of S. 
995. For example, in applying two Federal Circuit decisions 
that established case law in conflict with the congressional 
intent, the Board has stated that, ``Isolated statements from 
Federal Circuit opinions should not be cited for broad rules.'' 
However, limiting the scope and meaning of Federal Circuit 
opinions in an effort to make these rulings consistent with 
congressional intent should not be the job of the MSPB.
    The Federal Circuit's opinions should be in accordance with 
the will of Congress, and provide guidance to the Board, rather 
than being a hindrance to them in carrying out their duties. 
Can you discuss the scope of the impact of these restrictive 
Federal Circuit rulings? That is, who, other than MSPB, bound 
by or adversely influenced by these decisions?
    Mr. Devine. Well, they certainly influence our 
organization. We do not like having to tell people who want to 
challenge fraud, waste or abuse, that there are liable to be 
engaging in an act of professional suicide. It is very painful 
for our organization, and they also have a real spillover 
affect throughout the legal system. The Federal Circuit is the 
highest court in the land that hears cases under the premier 
statute protecting whistleblowers--other forums, such as State 
courts considering, wrongful discharge cases, the 
administrative judges who hear these cases every day at the 
Merit Systems Protection Board--the spillover effect of the 
Federal Circuit doctrines is very, very severe.
    It has been contagious throughout the legal system, and, of 
course, the Board's statement is well-taken, that it cannot 
over-generalize from a particular phrase or passage in an 
opinion. That would be more meaningful, though, if those 
particular phrases or passages were in isolation. When it has 
happened 69 times in a row since 1995, and when these passages 
get expanded upon and solidified after the Board makes careful 
decisions distinguishing the limits of them, we have gotten 
beyond the point where it is realistic to hope that damage 
control through careful reading and detailed, cautious 
interpretation of the boundaries of Federal Circuit decisions 
is going to be a solution. We have to have structural reform at 
this point.
    Senator Akaka. Well, I thank you very much for your 
response, Mr. Devine. I have no further questions at this time. 
I will submit any further questions I have for the record. I 
want to thank you today, and also the other witnesses. You have 
been part of the discussion of this important legislation. 
There is no question your comments and those of the other 
witnesses are very important to us, and I look forward to 
working with all of you.
    If there are no further questions, this meeting stands 
adjourned.
    [Whereupon, at 4:19 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X

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