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75–481 PDF 2002

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

(

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS

JOSEPH I. LIEBERMAN, Connecticut, Chairman

CARL LEVIN, Michigan

DANIEL K. AKAKA, Hawaii

RICHARD J. DURBIN, Illinois

ROBERT G. TORRICELLI, New Jersey

MAX CLELAND, Georgia

THOMAS R. CARPER, Delaware

JEAN CARNAHAN, Missouri

MARK DAYTON, Minnesota

FRED THOMPSON, Tennessee

TED STEVENS, Alaska

SUSAN M. COLLINS, Maine

GEORGE V. VOINOVICH, Ohio

PETE V. DOMENICI, New Mexico

THAD COCHRAN, Mississippi

ROBERT F. BENNETT, Utah

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

ROBERT G. TORRICELLI, New Jersey

MAX CLELAND, Georgia

THOMAS R. CARPER, Delaware

JEAN CARNAHAN, Missouri

MARK DAYTON, Minnesota

THAD COCHRAN, Mississippi

TED STEVENS, Alaska

SUSAN M. COLLINS, Maine

GEORGE V. VOINOVICH, Ohio

PETE V. DOMENICI, New Mexico

ROBERT F. BENNETT, Utah

Nanci E. Langley, Deputy Staff Director

Mitchel B. Kugler, Minority Staff Director

Brian D. Rubens, Chief Clerk

(III)

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

(1)

1The prepared statement of Stuart E. Schiffer, Acting Attorney General, Civil Division, Department of Justice, appears in the Appendix on page 74. 2The prepared statement of Colleen M. Kelley, National President, National Treasury Employees Union, appears in the Appendix on page 97.

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.

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 statVerDate 11-MAY-2000 10:23 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 75481.TXT SAFFAIRS PsN: SAFFAIRS
2

1The prepared statement of Senator Grassley appears in the Appendix on page 37.

utes 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.

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 inVerDate 11-MAY-2000 10:23 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 75481.TXT SAFFAIRS PsN: SAFFAIRS
3

formation 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

4

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

5

1The prepared statement of Ms. Kaplan appears in the Appendix on page 39.

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.

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

6

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

7

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.

8

1The prepared statement of Ms. Slavet appears in the Appendix on page 44.

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.

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

9

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. § 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

10

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

11

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 onethird 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.

12

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

13

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

14

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.

15

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.

16

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

17

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.

18

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

19

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

20

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

21

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

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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

23

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

24

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

25

1The prepared statement of Mr. Devine, with attachments, appears in the Appendix on page

54.

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 goodgovernment 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.

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

26

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 reaVerDate 11-MAY-2000 10:23 Mar 22, 2002 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 75481.TXT SAFFAIRS PsN: SAFFAIRS
27

sonable 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.

28

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 overgeneralize 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.]

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