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89–898 PDF 2014

EXAMINING THE ADMINISTRATION’S TREATMENT 

OF WHISTLEBLOWERS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON FEDERAL WORKFORCE, 

US POSTAL SERVICE AND THE CENSUS 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 9, 2014 

Serial No. 113–139 

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

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

CYNTHIA M. LUMMIS, Wyoming 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY L. BENTIVOLIO, Michigan 

RON DESANTIS, Florida 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

JACKIE SPEIER, California 

MATTHEW A. CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

DANNY K. DAVIS, Illinois 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

Vacancy 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

STEPHEN CASTOR, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

SUBCOMMITTEE ON FEDERAL WORKFORCE, U.S. POSTAL SERVICE AND THE CENSUS

BLAKE FARENTHOLD, Texas, Chairman 

TIM WALBERG, Michigan 

TREY GOWDY, South Carolina 

DOUG COLLINS, Georgia 

RON DESANTIS, Florida 

STEPHEN F. LYNCH, Massachusetts, 

Ranking Minority Member 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

(III) 

C O N T E N T S 

Page 

Hearing held on September 9, 2014 ....................................................................... 1 

WITNESSES 

The Hon. Carolyn N. Lerner, Special Counsel, U.S. Office of Special Counsel 

Oral Statement ................................................................................................. 4 

Written Statement ............................................................................................ 6 

The Hon. Susan Tsui Grundmann, Chairman, U.S. Merit Systems Protection 

Board 

Oral Statement ................................................................................................. 14 

Written Statement ............................................................................................ 16 

Mr. Robert Maclean, Former Federal Air Marshal, Transportation Security 

Administration, U.S. Department of Homeland Security 

Oral Statement ................................................................................................. 0025 

Written Statement ............................................................................................ 27 

Robert Van Boven, M.D., D.D.S., Principal Investigator, The Geneva Foundation, and Former Director, Brain Imaging and Recovery laboratory, Central 

Texas Veterans Health Care System, U.S. Department of Veterans Affairs 

Oral Statement ................................................................................................. 31 

Written Statement ............................................................................................ 34 

Mr. Tom Devine, Legal Director, Governmental Accountability Project 

Oral Statement ................................................................................................. 42 

Written Statement ............................................................................................ 45 

APPENDIX 

Statement from NTEU submitted by Rep. Farenthold ........................................ 72 

Statement from AFL–CIO submitted by Rep. Farenthold ................................... 75 

(1) 

EXAMINING THE ADMINISTRATION’S 

TREATMENT OF WHISTLEBLOWERS 

Tuesday, September 9, 2014 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON FEDERAL WORKFORCE, U.S. POSTAL

SERVICE, AND THE CENSUS, COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, D.C. 

The subcommittee met, pursuant to call, at 2:00 p.m., in Room 

2154, Rayburn House Office Building, Hon. Blake Farenthold 

[chairman of the subcommittee] presiding. 

Present: Representatives Farenthold, Issa, Walberg, Lynch, 

Cummings, and Norton. 

Staff Present: Melissa Beaumont, Assistant Clerk; Will L. 

Boyington, Deputy Press Secretary; Molly Boyl, Deputy General 

Counsel and Parliamentarian; Linda Good, Chief Clerk; James 

Robertson, Senior Professional Staff Member; Jessica Seale, Digital 

Director; Andrew Shult, Deputy Digital Director; Peter Warren, 

Legislative Policy Director; Jaron Bourke, Minority Administrative 

Director; Krista Boyd, Minority Deputy Director of Legislation/ 

Counsel; Lena Chang, Minority Counsel; Courtney Cochran, Minority Press Secretary; Tim Lynch, Minority Counsel; Mark Stephenson, Minority Director of Legislation; and Michael Wilkins, Minority Staff Assistant. 

Mr. FARENTHOLD. Good afternoon. The Subcommittee on the Federal Workforce, U.S. Postal Service and the Census will come to 

order. I’d like to begin this hearing by stating the Oversight Committee mission statement. We exist to secure two fundamental 

principles. First, Americans have a right to know the money Washington takes from them is well spent. And second, Americans deserve an efficient, effective government that works for them. 

Our duty on the Oversight and Government Reform Committee 

is to protect these rights. Our solemn responsibility is to hold government accountable to taxpayers because taxpayers have a right 

to know what they get from their government. We will work tirelessly, in partnership with citizen watchdogs, to deliver the facts to 

the American people and bring genuine reform to the Federal bureaucracy. This is the mission of the Oversight and Government 

Reform Committee. 

I’ll now start with my opening statement. One of the most important functions of the Oversight Committee is to help expose waste, 

fraud, and abuse within the Federal bureaucracy, and to help reform broken institutions and policies that ensure taxpayers that 

they have a government that works for them. As members of this 

2 

committee know, whistleblowers are an invaluable asset in helping 

us achieve this important goal. Unfortunately, those who expose 

waste, fraud, and abuse from the inside sometimes only receive retaliation as their award. 

Today’s hearing will examine how whistleblower protection laws 

are often ignored or manipulated. The result is that those in a position to shine light on illegal behavior stay in the shadows for fear 

of retribution. 

This committee has a long history of working with whistleblowers. They aid in our investigations, and we appropriately have 

legislative jurisdiction over laws that provide them protections. 

In 2012, we updated the Whistleblower Protection Act to expand 

existing disclosure protections and to create new avenues for appellate review outside the Federal circuit, which has historically not 

been friendly to whistleblowers. I want to hear how the newest 

amendments to the law are working and whether or not the executive branch is violating either the letter or the spirit of the law. 

I’m also pleased that two brave whistleblowers are with us today 

so we can hear firsthand accounts of the good, the bad, and ugly 

of doing the right thing and coming forward to report misdeeds in 

their own agency. I want to thank you all for your service, courage 

and willingness to speak today. 

Congress must do everything in its power to help protect wellintentioned individuals who help Congress and the public know 

when improper behavior occurs within the Federal bureaucracy. 

Again, I would like to thank all the witnesses for participating 

today. 

I now recognize the ranking member, the gentleman from Massachusetts, Mr. Lynch, for his opening statement. 

Mr. LYNCH. Thank you, Mr. Chairman. I appreciate your holding 

this hearing to examine the treatment of whistleblowers. 

I also thank our witnesses for being here today and helping the 

committee with its work, and I look forward to your testimony. 

Federal whistleblowers serve a valuable role in identifying waste, 

fraud, and abuse across the Federal Government. In many cases, 

the diligent oversight efforts undertaken by these government 

watchdogs shine a light on government abuse and, as a result, 

we’re better able to safeguard American lives and mitigate the 

waste of American taxpayer resources. 

It is these brave men and women who informed the American 

people about the government’s delay in delivering armored cars to 

Iraq and Afghanistan, to reduce combat casualties from improvised 

explosive devices. Federal whistleblowers have also detailed the 

cancellation of U.S. Air marshals from flight protection duties despite the existence of confirmed and continued threats of potential 

terrorist hijackings. These dedicated government employees also reported the diversion of research funds that were set aside to treat 

veterans with traumatic brain injuries. 

For many of these whistleblowers, doing the right thing and disclosing violations of law and fraud, waste, and abuse comes at a 

high price. Many have been subjected to acts of retaliation, including the elimination of their job duties, reassignment to positions of 

no consequence, geographical locations, such as the relocation of 

3 

their desks to basements or closets, misconduct investigations, suspensions, and termination. 

Mr. MacLean and Dr. Van Boven will testify how much their 

lives and the lives of their families were disrupted as a result of 

their retaliation that they faced. Unfortunately, whistleblower retaliation has been a longstanding problem over multiple administrations. 

Much has been accomplished to enhance whistleblower protections. Congress, with the support and commitment of President 

Obama, passed the bipartisan Whistleblower Protection Enhancement Act in 2012 after more than a decade of reform efforts. This 

act strengthened protections for Federal employees by closing judicially created loopholes and extended new protections for government scientists and certain Transportation Security Administration 

employees. The bill also created a 2-year pilot. 

That same year, the administration also extended whistleblower 

protections to Intelligence Community employees through a presidential directive. Congress then followed through this year by codifying protections for national security employees in the Intelligence 

Authorization Act. Although Congress and the administration can 

provide protections and avenues for redress, we cannot legislate 

culture. That can only change by determined leadership, constant 

attention from Congress, strong employee representatives, and 

strong Federal employee unions and vocal advocates. 

Despite the progress we’ve made, our work is not yet complete, 

and I look forward to hearing from our witnesses about how much 

further we need to go. 

Thank you, Mr. Chairman. I yield back the balance of my time. 

Mr. FARENTHOLD. Thank you, Mr. Lynch. 

Mr. FARENTHOLD. Members will have 7 days to submit opening 

statements for the record. 

Mr. FARENTHOLD. We will now recognize our panel. The Honorable Carolyn Lerner is the head of the U.S. Office of Special Counsel. The Honorable Susan Tsui Grundmann is the Chairman of the 

U.S. Merit Systems Protection Board. Mr. Robert MacLean is a 

former employee of the U.S. Transportation Security Administration. Dr. Robert Van Boven is a former employee at the U.S. Department of Veterans Affairs. And Mr. Tom Devine is the legal director at the Government Accountability Project. 

Pursuant to committee rule, all witnesses will be sworn before 

they testify. Would you please stand and raise your right hand? Do 

you solemnly swear or affirm that the testimony you are about to 

give will be the truth, the whole truth, and nothing but the truth? 

Let the record reflect that all witnesses answered in the affirmative. You may be seated now. 

We want to hear your opening testimony, but we also want to 

have the opportunity to question you, so those of you who submitted written testimony, we have your written testimony in front 

of us and have hopefully read it. And so in order to allow for discussion, we would appreciate your summarizing and hitting the 

high points and limiting your remarks to as close to 5 minutes as 

possible. 

4 

You’ll see a countdown time in front of you. Much like the traffic 

lights we’re all familiar with, green means go, yellow means speed 

up, and red means stop. 

So we’ll now start with Ms. Lerner. You’re recognized for about 

5 minutes. 

WITNESS STATEMENTS 

STATEMENT OF CAROLYN N. LERNER 

Ms. LERNER. Thank you, Chairman Farenthold, Ranking Member 

Lynch, members of the committee. Thank you for inviting me to 

testify today about the Office of Special Counsel and its protection 

of Federal whistleblowers. In addition to protecting whistleblowers, 

we provide a safe channel for employees to disclose government 

wrongdoing. We enforce the Hatch Act, which keeps partisan politics out of the Federal workforce, and we protect returning 

servicemembers from unfair employment practices. We do all of 

this with a staff of about 120 and one of the smallest budgets of 

any law enforcement agency. 

When I was appointed Special Counsel 3 years ago among my 

top goals was increasing awareness about and confidence in the 

agency. I believe we are succeeding on both fronts. This fiscal year 

we expect to receive over 5,000 cases for the first time in the agency’s history, a 15 percent increase from last year and double the 

number of cases from 10 years ago. 

Clearly, Federal employees now know who we are and feel confident coming to our agency, and we are getting great results on 

their behalf. In the past 2 years we’ve obtained 333 favorable actions for employees, about a 400 percent increase from 5 years ago, 

and we have done so while reducing the cost to resolve each case 

by over 40 percent. 

With that introduction, I will now briefly discuss how we protect 

whistleblowers, the effect of the Whistleblower Protection Enhancement Act on OSC, and our education and outreach efforts. 

When reviewing a whistleblower retaliation complaint, OSC’s 

Complaints Examining Unit performs an initial review to determine if the complaint meets required elements. If it does, the matter is referred for further investigation. After we investigate, agencies often informally settle cases and take corrective actions. If an 

agency does not, we may then file a complaint with the MSPB, 

which can order the agency to do so. 

Similarly, if an agency failed to take appropriate disciplinary action, we can file a complaint with the Board. OSC is able to protect 

complainants by seeking to delay or stay proposed adverse personnel actions, either informally with the agency or by filing a formal request with the MSPB. These stays provide temporary relief 

while OSC investigates. 

Another tool that we use to get corrective actions is mediation. 

Very often, mediation resolves complaints to the mutual satisfaction of both agencies and complainants without the need for full investigation or litigation. For instance, in 2012, three employees of 

the Bureau of Alcohol, Tobacco and Firearms who blew the whistle 

on Operation Fast and Furious resolved their cases through OSC’s 

mediation program. 

5 

The Whistleblower Protection Enhancement Act, which this committee worked hard to enact, has also strengthened OSC’s ability 

to protect whistleblowers. The WPEA expanded OSC’s jurisdiction, 

allowing us to take complaints that we previously would’ve had to 

dismiss due to narrow court interpretations of whistleblower protections. 

The WPEA also improved OSC’s ability to pursue disciplinary actions. For example, we recently filed complaints with the MSPB 

seeking disciplinary action against three Customs and Border Protection officials. 

The WPEA also expanded OSC’s authority to file amicus curiae 

briefs in cases related to Federal whistleblower retaliation. OSC 

has filed three amicus briefs in Federal courts, including one just 

this past month, and we are currently in discussions with the Department of Justice about OSC filing an amicus brief in the U.S. 

Supreme Court later this month in the MacLean v. Department of 

Homeland Security matter. This would follow the amicus brief that 

we filed in Mr. MacLean’s case with the MSPB in August 2011. 

These briefs are meant to help courts interpret the contours of 

whistleblower laws. We are optimistic that over time this will lead 

to a more pro-whistleblower body of juris prudence. 

Finally, I want to very briefly address our education and outreach efforts and OSC’s Certification Program. Government functions best and can address problems most effectively when employees can come forward without fear of retaliation. Creating this environment requires education, educating employees about their 

rights and managers about their responsibilities. 

Accordingly, we have recently expanded our outreach and education efforts. In fiscal year 2014 we have conducted 90 training 

sessions throughout the Federal Government. This compares with 

33 sessions just 3 years ago. We are also seeing an increase in the 

number of agencies seeking OSC’s assistance in training employees 

on whistleblower laws. This positive increase is due in large part 

to the administration’s recent requirement that agencies become 

certified through OSC’s program. 

I’d be happy to address this issue or any other in more detail in 

response to any of your questions. Thank you very much for the opportunity to testify today. 

Mr. FARENTHOLD. Thank you very much, Ms. Lerner. 

[Prepared statement of Ms. Lerner follows:] 

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Mr. FARENTHOLD. Ms. Grundmann, the ball is in your court now. 

STATEMENT OF SUSAN TSUI GRUNDMANN 

Ms. GRUNDMANN. Thank you, Mr. Chairman, Ranking Member 

Lynch, distinguished members of this committee, including Congressman Cummings and Congresswoman Norton, who used to be 

my negotiations law professor back at Georgetown. 

Good to see you again. I’m still sitting on the other side of the 

table. 

Thank you for the opportunity to appear before you today and 

testify on behalf of the Merit Systems Protection Board. Let me acknowledge the presence of my distinguished colleagues and fellow 

Board members, the Vice Chair Anne Wagner, member Mark Robbins, and thank them for their strong contributions to fulfilling the 

Board’s mission. It has been a great personal honor for me to serve 

with these two dedicated individuals. 

Today we have been asked to discuss the Board’s role in defending the merit principles and specifically our role in the appellate 

review of the Federal whistleblowers. We will address our recent 

observations of whistleblower appeals, the impact of the Whistleblower Protection Enhancement Act of 2012 on Federal employee 

whistleblowers and the Board itself. 

The mission of the Merit Systems Protection Board is to safeguard, protect, and promote the merit principles through its statutory functions. One function is to adjudicate appeals filed by Federal employees. Under the Whistleblower Protection Act of 1989, 

the Board has jurisdiction over two types of appeals. One is referred to as IRA, an individual right of action. This appeal is of a 

nature that involves allegations of whistleblowing that are not directly appealable to the Board. 

This means that before a whistleblower may file an IRA with the 

Board, that he or she is first required to seek corrective actions 

from the Office of Special Counsel. Generally, only after the Special 

Counsel investigates the claim and determines not to pursue corrective action is the employee then allowed to file an IRA with us. 

The other time of whistleblower appeal is referred to as an otherwise appealable action. This type of appeal generally involves a 

claim that a personnel action, such as a termination or suspension, 

was taken in retaliation for whistleblowing. 

In either type of appeal, the Board must determine whether the 

agency illegally retaliated against Federal employees for disclosing 

what the employee reasonably believes falls in one of four categories: One, a violation of law, rule, or regulation; two, gross mismanagement or waste of funds; three, an abuse of authority; four, 

a substantial and specific danger to public health or safety. Upon 

a ruling by the Board, an employee may then appeal to the U.S. 

Court of Appeals for the Federal circuit and, as a result of the Enhancement Act, at least till the end of this year, to any other court 

of appeals of competent jurisdiction. 

We are currently aware of only four Board decisions on whistleblowing that have been appealed outside the Federal circuit. We 

understand that the House of Representatives has already passed 

legislation extending this provision an additional 3 years and that 

such legislation is now awaiting action in the Senate. 

15 

As to the number of whistleblowing appeals, any trends we may 

be aware of, since last fiscal year the number of whistleblower appeals has dramatically increased. What may be of interest to this 

subcommittee and particularly to Congressman Cummings is that 

the number of appeals jumped from 485 in fiscal year 2012 to 657 

in 2013, after the enactment of the Enhancement Act. Whether 

there is a correlation between these two events we cannot say, but 

we can certainly say that Federal employees are filing whistleblower appeals with the Board more than at any other point in the 

last decade. 

Regarding trends in whistleblowing appeals, we can say that as 

a result of the Enhancement Act, which greatly expanded the protections for whistleblowers by overruling a long line of cases by the 

Federal circuit, we understand that more whistleblower appeals 

are advancing to a hearing on the merits before administrative 

judges; that those hearings are much more detailed and lengthier 

in duration; and that more cases are obtaining a merits review by 

the full Board in Washington, D.C. 

And while the numbers in our report in fiscal year 2013 are 

based on outcomes achieved under the prior law, and we look forward to fiscal 2014 which will provide a full year of data under the 

new Enhancement Act, already we can see the impact of the Enhancement Act in our cases. In our written statement we have included a list of precedential decisions issued by the Board under 

the new law. Of the 11 decisions listed, the appellant’s case and 

claims succeeded in 6, all 6 of which were IRAs. 

Another issue we believe of interest to the subcommittee is the 

Federal circuit’s recent decision en banc in a case called Kaplan v. 

Conyers. The issue was simple: May the Board review an agency’s 

determination that an employee is not eligible to occupy a position 

that is classified as noncritical sensitive. In that case, our agency 

argued that by limiting the Board’s review in these types of appeals, that the Federal circuit’s ultimate decision could have the effect of precluding whistleblower claims by employees in positions at 

issue. The Federal circuit dismissed this argument. The Supreme 

Court declined to hear the case. We understand that the House and 

Senate are considering legislation that would reverse this decision. 

In addition to our adjudication function, the Board is tasked to 

conduct studies relating to the civil service and other merit systems 

in the executive branch. Since 2010 we’ve issued a series of reports, 

including one that may be of interest to Member Lynch, as we discuss a change in culture of agencies in order to allow whistleblowers to come forward. 

In the near future, the Board is looking at studying the specific 

impact of the Whistleblower Protection Act of 2012, agency implementation of the act and the change of law in the landscape of the 

act. 

This concludes my statement. I look forward to answering your 

questions. Thank you. 

Mr. FARENTHOLD. Thank you very much. 

[Prepared statement of Ms. Grundmann follows:] 

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Mr. FARENTHOLD. Mr. MacLean, look forward to hearing your 

story. 

STATEMENT OF ROBERT MACLEAN 

Mr. MACLEAN. Thank you, Mr. Chairman and Ranking Member 

Lynch and Ranking Member Cummings. 

I was in the first class of 35 air marshals to graduate after the 

9/11 attacks of 2001. In 2003, a perfect storm hit. All marshals 

were called in for emergency training. Al Qaeda hijackers would 

exploit U.S. Department of State visa and checkpoint screening 

loopholes in order to sneak weapons onto long haul flights, kill 

crews, and crash their jets. Briefers were specific to major U.S. east 

coast cities and European capitals. 

Two days later, TSA blasted out an unmarked text message to 

all marshals’ unsecured cell phones: Cancel all hotel reservations 

to avoid all cancellation fees. Flights for 4 hours or longer wouldn’t 

have marshals for 2 months until TSA got its new fiscal year 

funds. Marshals around the country told me that they got the same 

text. We thought it was a mistake, given the alert and a very specific law that 9/11-type flights must be covered. 

I called the supervisor, who confirmed TSA formed a global plan 

because it was broke. I called three IG offices until I spoke to an 

agent detailed from FEMA. He just warned me about risking my 

career. Since the text was not specific, it was not marked nor secured, I called a reporter covering TSA’s dangerous rules. He 

verified with marshals across the country and was in contact with 

Congress. The story went on the Web. 

Hours later most press had coverage of outraged bipartisan 

Members of Congress, including Hal Rogers, the Republican chairman with the oversight of the TSA. After first denying it, TSA said 

it made a mistake and canceled its plan before ever taking effect. 

The IG said that TSA blew cash on executive bonuses. 

Weeks later I cofounded the air marshal chapter of the Federal 

Law Enforcement Officers Association, FLEOA. It’s not a union, 

but a collective voice to work with Congress and agency officials to 

better safety and security. The Air Marshal Service Director asked 

the IG to investigate me and my FLEOA air marshal board for 

complaining about hazardous policies. He called us organizational 

terrorists. 

For 2 years we worked with Chairman Jim Sensenbrenner’s Judiciary Committee. In 2006, he issued a 147-page report about the 

Air Marshal’s dangerous policies and retaliation against us FLEOA 

representatives. None of this was considered retaliatory, because 

the director and his executive who fired me, Frank Donzanti, later 

testified that they were all at one time FLEOA members. 

Mr. Donzanti told me I was under suspicion for disclosing unclassified sensitive security information or SSI. Internal Affairs ordered me to divulge all media I was a source for. I admitted to everything, as it was all unclassified at the time and everyone agreed 

with me, Congress, bipartisan. But a decade later, I’ve been secondguessed in hundreds of briefs and hearings and depositions. 

Dumbfounded for 19 weeks, TSA finally concocted its single 

charge to fire me. The text message it chose not to send to our $22 

million encrypted smart phone system was now SSI. TSA forced its 

26 

SSI chief in charge when I made my disclosure not to show up for 

his ordered deposition and replaced him with an attorney who was 

with the Postal Service when I made my disclosure. TSA was a little nervous. Its attorneys interrupted him 252 times during his 

deposition. This was the TSA’s expert on SSI, who didn’t come to 

the TSA long after I made my disclosure. 

Mr. Donzanti was the only witness allowed at my hearing 3 

years later. Everyone else was denied. Despite unbelievable excuse 

why he didn’t have the authority to ground me for almost 5 

months, the fact that he was permanently removed from all supervisory duties just weeks after my hearing, Mr. Donzanti’s credibility was never scrutinized. 

Despite a precedential decision, a unanimous Ninth Circuit 

Court of Appeals panel ordered that TSA’s 2003 program’s lack of 

clarity must be considered, but all of the TSA’s SSI experts were 

blocked from my hearing. Last year, in another precedential decision, the Court of Appeals for the Federal circuit unanimously 

ruled I did not violate any laws and ordered a new hearing to determine if I had a reasonable belief of any wrongdoing. The government en banc appealed that decision to every Federal circuit judge. 

It was denied unanimously. 

Finally, Mr. Chairman and Ranking Member Lynch, TSA took 

my testimony out of context to cancel the Ninth Circuit’s unprecedented—I’m sorry—it was unanimous, good faith belief order, it 

quoted me as saying that it didn’t matter to me if I disclosed SSI 

to the public. But what the transcript reveals is that I stated that 

it did not matter if I disclosed SSI to my supervisor. It was a perfect cut-and-paste job. With that, the government now argues in its 

current appeal to the Supreme Court of the United States that I, 

quote, ‘‘intentionally released sensitive security information,’’ unquote. My oral arguments before the Supreme Court are on November 4. 

I look forward to answering your questions. Sorry for going over 

time. 

Mr. FARENTHOLD. You didn’t do too badly. 

[Prepared statement of Mr. MacLean follows:] 

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Mr. FARENTHOLD. Dr. Van Boven, you’re recognized here for 5 

minutes. 

STATEMENT OF ROBERT VAN BOVEN 

Dr. VAN BOVEN. Thank you. I’m a physician scientist—— 

Mr. FARENTHOLD. Could you make sure your microphone is 

turned on there. There’s a button there. It says ‘‘talk’’ on it. 

Dr. VAN BOVEN. I’m a physician scientist and was a director of 

the Department of Veterans Affairs Central Texas Traumatic Brain 

Injury Research Program in Austin from 2007 to 2009. Beginning 

in 2002, the VA and the University of Texas agreed to jointly build 

a brain imaging center in Austin and the VA invested $6.3 million. 

The center was opened in January of 2006, but recruiting for a director did not start for 6 months. I was recruited a year and a half 

later, in July. Troop deployments at the time were averaging 

22,000 servicepersons per year with 6,000 TBI victims annually. 

With over 300,000 military TBI casualties worldwide since 2000 

and 2 million annual civilian cases, advances to make these invisible wounds visible and to develop effective treatments for TBI 

were and remain to be sorely needed. With training at Harvard, 

Northwestern University, and 7 years postdoctoral research at 

Hopkins and the NIH, I felt this was a perfect opportunity for a 

neurologist scientist to make a difference. 

But within weeks at the helm, I learned that 2.1 million, approximately one-third of the funds provided to the BIRL, or Brain 

Imaging and Recovery Lab, had already been spent on ghost staff, 

as well as unqualified administrative clinicians performing noncredible diabetic research unrelated to TBI. He depended on the 

technical support of a semiretired research contractor who hadn’t 

published in 10 years. He had been fired from his immediate past 

employer and engaged in billing which I believed to be fraudulent. 

The team had not collected any data for 10 months, findings that 

were subsequently confirmed by the OIG. 

Now, my efforts to terminate the contracting services and invalid 

research were overruled. My protest resulted in calls for my resignation and involuntary reassignment under a person I accused of 

wrongdoing. The retaliation and counterclaims that followed were 

akin to Kafka’s ‘‘The Trial.’’ False allegations were withheld from 

me. I was not able to confront witnesses. Evidence of retaliatory 

animus by those accused of wrongdoing were stricken from the 

scope of investigations, and I was found guilty without an opportunity for defense. 

An Administrative Board of Investigation was manipulated with 

brazen disregard for VA policies and due process and fairness, and 

an ABI called in response to my complaints was later amended to 

add a long list of counterclaims. Patriotism was also punished; that 

is, I was condemned for volunteering to organize a 5K run for 

wounded warriors with Governor Perry, Willie Nelson, and 1,000 

Americans. 

Later, the ABI scope and justice itself was turned upside down. 

The scope is now restricted to allegations against me. The new ABI 

was reconvened despite an ongoing OIG investigation, which is violation to VA policies, its chair was a past subordinate of an official 

alleged with wrongdoing, and during the ABI hearing any mention 

32 

of senior management misconduct or waste was stymied. The chief 

of staff was also authorized by the VA headquarters to be the deciding authority for a grievance against him, and this chief of staff 

found himself not guilty. 

After removal from the BIRL in 2008, I was banned from oversight of my own human studies, posing risk to the subjects and violating all kinds of VA policies. The center was idle but still burning 

money. It was moved to Waco in July of 2009, and most of the 6.3 

million was spent without studying or helping a single veteran. 

Many of my complaints to the OIG and the ORO were substantiated by these investigations, in part prompted by Washington 

Post coverage. 

The ABI grievance hearings and a VA Summary Review Board 

defied the Whistleblower Protection Act’s principles and engaged in 

unjust practices in their own right, and did a good job of it. The 

VA attempted to suppress information from Congress. Moments before the Merit Systems Protection Board hearing, VA officials 

asked if I would stop initiating contact with Congress and others 

for a settlement. 

Settlement was accepted because I was advised that corrective 

action by the Merit Systems Protection Board was unrealistic. In 

fiscal year 2013, the MSPB granted 4 out of 657 persons, that is 

less than 1 percent, with corrective action after adjudication for appeals with whistleblower reprisal claims. Even after my termination the VA continued to engage in harmful retribution, blacklisting me with marathon persistence. 

Past failings in transparency and mismanagement are indeed 

prologue. VA officials later testified before Congress again in 2010 

falsely claiming that personnel in Waco, with a director who had 

a nicotine expert, had TBI and neuroimaging expertise, hence justifying the BIRL’s closure. I had been contacted by a Waco whistleblower later that told the opposite story, and he was persecuted for 

it, and indeed, I referred him to the Government Accountability 

Project and he’s being represented them. 

Four years later, deceit was revealed. A second failed program 

now, overseen by the same officials that oversaw the BIRL, is covered in the obituary section—I mean the front pages, it may as well 

have been the obituary section—of the Austin Statesman this past 

Sunday. The article points out that the two imaging programs, the 

BIRL and Waco, cost taxpayers $12 million and squandered a decade of opportunity. 

Ironically, through a congressionally directed medical research 

program award, one of three in the Nation, I and colleagues at 

MIT, UCSF, and the Department of Defense are now helping and 

carrying out a treatment trial at Fort Hood. That’s covered by the 

Sentinel. 

So with over a billion dollars a year in research budgetary resources and appropriations and the same for medical support like 

the BIRL, scrutiny of the VA research management program in 

oversight appears worthy. 

Now, in conclusion, delivering help to those who are afflicted 

with brain disorders from TBI and post-traumatic stress disorder 

is dependent on good science and integrity. I’m a clinician. I take 

care of people with brain injuries daily. However, if a culture fights 

33 

rather than fosters transparency, that suppresses rather than rises 

to the opportunity for improvement, then the infamous stereotypes 

will continue to curse the VA bureaucracy and degrade the whistleblower alike, and the public will suffer. Whistleblowers have their 

roots in stopping crime. They need your protection from persecution 

and denigration so they can help transparency, integrity, and performance in government today. 

I thank you. 

Mr. FARENTHOLD. Thank you very much, Doctor. 

[Prepared statement of Dr. Van Boven follows:] 

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Mr. FARENTHOLD. And I did see the article in the Statesman this 

weekend after the Texas football game. It was much more interesting than the sports pages. 

Mr. DEVINE. Could you get your microphone, too, please, sir? 

STATEMENT OF TOM DEVINE 

Mr. DEVINE. Thank you, sir. I’m the legal director of the Government Accountability Project. We’re a nonpartisan, nonprofit whistleblower support organization that since 1977 has helped over 

6,000 whistleblowers and been a leader in the campaigns to pass 

or defend nearly all Federal whistleblower laws. 

We’re also a founding member of the Make It Safe Coalition, 

which is the tip of an iceberg for a unique, trans-ideological, bipartisan solidarity consensus between voters and whistleblowers. Our 

coalition recruited over 400 organizations and corporations with 

some 80 million members to support passage of the Whistleblower 

Protection Enhancement Act. They ranged some from the Center 

for American Progress, Common Cause, the unions, Public Citizen, 

to the Liberty Coalition, the National Taxpayers Union, the Taxpayers Protection Alliance, the Competitive Enterprise Institute, 

the American Conservative Defense Alliance, and the American 

Policy Center. This is an unprecedented mandate for the values of 

your hearing. 

But for whistleblowers, the nearly 2 years since passage of the 

WPEA have been the best and the worst of times. There’s unfinished business and how it is resolved will complete the struggle. I’d 

like to summarize five areas where there are challenges or hard 

work left to achieve the act’s promise. 

The first is the sensitive jobs loophole. The decision that Chairman Grundmann summarized by the Federal Circuit Court of Appeals, Kaplan v. Conyers, has created the most significant threat 

to the merit system that has kept the civil service professional and 

nonpartisan since 1883. 

I won’t repeat the arguments that the chairman made, but where 

the dust has settled is that the government now has uncontrolled 

power to designate virtually any job in the government as sensitive. The Federal circuit applied the principle to those who stock 

sunglasses at commissaries, and proposed regulations by the Office 

of Personnel Management would permit designation for all jobs 

that require access to either classified or unclassified information. 

In other words, all jobs that require literacy are sensitive now. 

Sensitive employees will no longer be entitled to defend themselves through an independent due process hearing, and there are 

no consistent procedures for justice within the agency. The bottom 

line is this is a structure to replace the merit system with a functional blank check for a national security spoils system. That is 

simply unacceptable. 

Second is the MacLean case that Mr. MacLean has testified on. 

He testified on what happened to him. I’d like to testify on the significance to the WPEA. 

This November, the Supreme Court will hear its first WPEA 

case, Whistleblower Protection Act case, since the law was enacted. 

At stake are the two most basic significant premises for this law. 

First, that only Congress can restrict public whistleblowing discloVerDate Aug 31 2005 15:37 Oct 06, 2014 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 C:\DOCS\89898.TXT APRIL
43 

sures, not the agencies who allegedly engaged in fraud, waste, 

abuse, illegality, or activities threatening the public. Otherwise, 

wrongdoers would have the right to gag whistleblowers exposing 

their own misconduct. Second, when Congress restricts public whistleblowing disclosures, it must do so with specificity. Otherwise, 

employees will have to guess whether they have legal rights when 

they serve the public’s right to know and uncertainty creates an inherent chilling effect. 

An adverse ruling would cancel everything that we had accomplished in the Whistleblower Protection Enhancement Act. We believe a congressional friend-of-the-court brief from Mr. Cummings, 

as well as others at the Federal circuit, made a major difference 

in the results, and we’re recruiting participants for a congressional 

friend-of-the-court brief to the Supreme Court. 

The third issue is circumventing the whistleblower protection 

rights by making it a crime to blow the whistle instead of an employment offense. The war on whistleblowers goes well beyond unprecedented Espionage Act prosecutions. Since passage of the 

WPEA, we’ve seen a stark shift from traditional employment actions to criminal investigations and prosecutive referrals. Increasingly, whistleblowers are given the choice of resigning or risking 

jail time. 

Ernie Fitzgerald once nicknamed whistleblowing as committing 

the truth because you’re treated like you committed a crime, and 

this literally is becoming the new reality. It’s not surprising. Criminal investigations are much easier and less burdensome than 

multiyear litigation. There’s no risk of losing. All you have to do 

is close the case. And the chilling effect of facing jail time is much 

more severe than facing an adverse action. This problem could easily be fixed by codifying legislative history through the 1994 

amendments of the WPEA. 

And finally, there are pending WPEA issues that are confronting 

us. They’re confronting us from the remainder of the Whistleblower 

Protection Enhancement Act, whether there should continue to be 

normal access to appeals court, whether civil service employees like 

corporate whistleblowers should have access to court in a jury trial 

if they don’t get timely rulings, and whether the MSPB should 

have summary judgment authority. 

There is also hard work to continue and resume from OSC– 

MSPB reauthorization. In 2007, this committee prepared legislation and marked it up through subcommittee to make over and 

modernize these institutions, which haven’t had that upgrade since 

1978. Further action was postponed until the WPEA, and it is time 

to roll up our sleeves and get to work on it. 

Mr. Chair, the WPEA was landmark legislation to restore rights 

that Congress has now passed unanimously four times since 1978. 

But the pressure to enforce abuses of secrecy through silence also 

is timeless, trans-ideological and bipartisan. 

The WPEA’s most significant issues have not yet been resolved, 

and agency creativity is already producing new, more intimidating 

forms of harassment. The rules that govern the merit system procedures are increasingly becoming out of date. Our work isn’t finished, and the whistleblower community and GAP stands ready to 

do our share. 

44 

Mr. FARENTHOLD. Thank you very much, Mr. Devine. 

[Prepared statement of Mr. Devine follows:] 

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Mr. FARENTHOLD. I’ll now recognize myself for the first round of 

questioning. 

Ms. Grundmann, I believe it was Dr. Van Boven pointed out 

what struck me as an incredibly low success rate that whistleblowers have in front of your agency. Are those numbers accurate? 

And what are some of the reasons that whistleblowers typically 

lose when they’re before you guys? 

Ms. GRUNDMANN. Let me address the first issue. The numbers 

are what they are, but as I said in my opening statement, those 

numbers are reflective of the cases that were adjudicated under the 

old law. So we’re closing out on our fiscal year numbers for 2014 

that will fully reflect how the law has impacted the outcome. 

I believe your second question is—— 

Mr. FARENTHOLD. So you’re saying that those numbers reflect 

past law? 

Ms. GRUNDMANN. Right. Right. 

Mr. FARENTHOLD. So let’s step into current. I realize you all 

haven’t completed the numbers. 

Ms. GRUNDMANN. Right. 

Mr. FARENTHOLD. I’d like to see those numbers when they’re 

done. But at least anecdotally, can you give me some idea why the 

whistleblowers are losing all the time. 

Ms. GRUNDMANN. Under the old law, it’s quite apparent, which 

is why Congress changed the law. In addition, in changing the law, 

the Whistleblower Protection Enhancement Act, this Congress 

overruled a long series of cases by the Federal circuit which we 

were obligated to follow since they are our reviewing court. 

For reasons why they prevail, we really don’t track why particular individuals prevail. We do track when cases are dismissed. 

A number of cases are filed untimely. A number of cases are dismissed because of failure to exhaust the administrative remedies 

through the Office of Special Counsel. There could be a number of 

other reasons which we don’t track. We are a very small organization. 

Mr. FARENTHOLD. So now, Mr. Devine, you’re head of an advocacy organization. Does somebody track the reasons people lose 

there? Does somebody read the cases? Microphone, please, sir. 

Could you turn your microphone on, please, sir. 

Mr. DEVINE. Yes, we do track the cases, and the WPEA is requiring the Merit Board to give much more detailed statistics and analysis of the causes. 

I’d like to say that while we haven’t agreed with all the Board’s 

rulings, this Board is unsurpassed at the leadership level, at the 

top, for fairness, objectivity, and honest interpretation of the law. 

The problem that we’ve seen is more at the administrative judge 

level. 

The Board is not designed with the resources or the time to hear 

complex cases. The judges have to finish these cases in 120 days, 

and it’s not always realistic when we’re talking about major breakdowns in the system. And they don’t have the political independence to challenge misconduct at higher pay grade levels than the 

judges frequently are. It’s not designed for the cases that are the 

most significant for the WPEA. 

54 

It would be very helpful if the administrative judges were required in the OSC–MSPB reauthorization to get some intensive 

training on the importance of this act and its mandate and what 

it means, and if they were upgraded from being just administrative 

judges to administrative law judges with more independence from 

political pressure. 

Mr. FARENTHOLD. All right. And, Dr. Van Boven, I’ve never 

ceased to be stunned at what comes out of the VA. I mean, we’ve 

just had a huge scandal with wait lists and long wait times. It’s 

something that we struggle with in my office in a lot of the casework that we do for individuals. 

I understand you’re now separated, but I assume you still have 

some friends and contacts there. I know it’s been barely a month 

since the President assigned the reforms that we passed out of this 

House and the Senate passed. Is it getting better? Are we just spinning our wheels up here? Microphone, please. 

Dr. VAN BOVEN. I think that with firm determination and leadership, top-down culture leadership and accountability, that it will 

set an example and I think that it can occur. The problem is, Mr. 

Devine just alluded to, it’s that there are stodgy indoctrinated 

pieces of the fabric that need to be, to mix metaphors, 

diarrhoeased. We need an enema. 

The thing is that you’re wondering about why that 1 percent prevails, and I applaud the Merit Systems Protection Board’s statement of saying the numbers are what they are. God bless her. Because the point is, once we open our eyes, and it’s all about transparency, and none of us like to admit our own transgressions, that 

I’m saying hate the sin but not the sinner. So I think, look, we can 

always change. 

That gets to the next point: Why do those people prevail? I’ll tell 

you why they prevail. Because it was just like that line from ‘‘Mr. 

Smith Goes to Washington,’’ he says basically—I’m paraphrasing, 

I was trying to look it up—he says, I’m never going to quit. He 

says, someone will listen to me eventually. 

Well, I felt the same way. When the VA tried to settle with me 

or make me go away, they said, Dr. Van Boven, it’s been 4 years 

with you, it’s been like round 13. I said, are you kidding me? I was 

bluffing. I said this is round one. I was broke and unemployed. I 

said, I’m going to make this my life passion. So I think real solid 

determination. 

You know, Sam Houston said, do right and risk the consequences. This man did right and he risked the consequences. And 

whether or not what a court says or what the hearings come out 

to say and how many people vote for it or against it, it doesn’t matter, because 120 years ago we said it’s okay to have slaves. They 

were wrong. And I think the same thing goes here. Once we open 

our eyes and say we’ve got to do something, then change will happen. 

Mr. FARENTHOLD. Thank you very much. 

I see my time has expired, actually, over by a minute and a half, 

so I’ll recognize Mr. Lynch for 6–1/2 minutes. 

Mr. LYNCH. Thank you, Mr. Chairman. 

Ms. Lerner, you got some data, though, in your testimony you 

shared with us regarding the old system and the new system under 

55 

the WPEA. I know you didn’t drill down on some of your written 

testimony, but what do you see in terms of, as Ms. Grundmann has 

indicated, there has been a spike in appeals, but you’ve also got 

some results, I think, right? 

Ms. LERNER. That’s right. I mean, I—my microphone is on, right? 

I think you can look at it in a couple of different ways. To give it 

some perspective, I think that the rising numbers can be viewed 

as a very good thing. For one thing, people aren’t going to come forward unless they feel like they’re going to be protected from retaliation. 

And our numbers of complaints have gone through the roof. We, 

as I mentioned, have about 5,000 this year, and those are increases 

in both disclosures of waste, fraud and abuse, and health and safety issues, and retaliation complaints. So more people are coming 

forward to make disclosures. More people are coming forward with 

complaints. But I think those are actually good things. Whistleblowers who are coming forward are having more of an impact 

than at any time in our agency’s history. 

And a couple other points. The numbers are also increasing, I 

think, because of changes at OSC. We’ve been very aggressive in 

trying to protect whistleblowers. The staff is using every tool that 

we have available to us to curb waste, fraud, and abuse, and we’ve 

had some very high-profile cases. 

And when we talk about changing the culture, when you get 

strong results, either through systemic changes like we’ve been 

able to see at the VA and the Department of Homeland Security 

and the Air Force and the FAA, that’s a message that gets out to 

all Federal employees, that they can make a difference. 

The other message that gets out is when you discipline people 

they see the consequences of retaliating, and the Whistleblower 

Protection Enhancement Act has given us the tools that we need 

to bring disciplinary actions, and I think that that will also have 

an effect. 

Education and outreach is also very important, and the fact that 

the administration is now requiring all agencies to go through our 

certification process I think is also going to have a very positive affect on culture. 

Mr. LYNCH. All right. If the person who complains is not there 

the next day, then that’s a pretty strong signal that the administration is sending out there that that’s not a good career move to 

speak up and to complain about the way things are being done. 

I do want to just take a step back and just say, I thought the 

testimony here, across the board, every single one of you has, I 

think, offered very thoughtful and important testimony, very helpful to me, I think. 

Mr. Devine, you laid out those five points or five issues that you 

wanted to raise, the first one being—what was it—sensitive job 

loophole. Do you think it is worthwhile for Congress to try to define 

that legislatively or would judge-made law, would that suffice? 

Mr. DEVINE. Unfortunately, Mr. Lynch, that’s the only solution 

that’s left. We’ve run out of options in the courts. And the civil 

service merit system will have to be legislatively reborn independent of the national security sensitive job—— 

56 

Mr. LYNCH. Not the answer I wanted to hear. I was trying to 

come up with a definition of sensitivity that would really provide 

the fullest recourse for whistleblowers. And I think about Dr. Van 

Boven at the VA dealing with patients and patient records and confidential information. And it’s right across government. I mean, the 

more important work we’re doing would obviously ring that bell for 

sensitivity and close down the recourse of complaining employees. 

We’re going to have a real struggle with that and we’ve got to figure a way to do that. 

Mr. DEVINE. It’s going to be tough, but I don’t know, sir, if it’s 

necessary to come up with a new definition of sensitivity with respect to civil service rights. That concept comes from the McCarthy 

era in 1954 and it’s been dormant. It’s been in a coma until the 

last two administrations, which have revived it. And the normal 

boundary for sensitive jobs has been when you have access to classified information. Classified information is very broadly defined. 

And that’s work, and there haven’t been any even accusations that 

it hasn’t worked. This is simply a power grab to shift control of employment rights from the civil service system to officials with national security blank checks. 

And your point about the VA is very well taken. Unfortunately, 

we’ve been representing VA whistleblowers since the 1990s and 

things are not getting better there. We’re very grateful that the Office of Special Counsel, has made this the first time in its history, 

has selected a whole agency to investigate for prohibited personnel 

practice, because they permeate it. 

The gentleman who came after Dr. Van Boven, Dr. David Tharp, who carried on his dissent for the next $12 million that didn’t 

produce any research, the veterans groups have twice made him, 

in the last 4 years, twice made him the DAV employee of the year, 

he is so outstanding. The harassment of him was so severe that he 

volunteered for service in Afghanistan to escape the Center of Excellence. We’ve got a very severe problem. 

Mr. LYNCH. Okay. I don’t have any more time to delve into it, 

but, again, I appreciate the testimony of all the witnesses. Thanks 

for your help. 

Mr. FARENTHOLD. Thank you very much. 

We’ll now recognize the vice chairman of the subcommittee, Mr. 

Walberg. 

Mr. WALBERG. Thank you, Mr. Chairman. And thank you to the 

witnesses for taking additional stance in difficult circumstances. 

Dr. Van Boven, if you would, please describe the nature of the 

public health threat to the veterans from traumatic brain injury. 

Dr. VAN BOVEN. Well, I think the more you look, the more you 

find. You know, years ago, something like this had another name, 

it was called shell shock and you get over it. And, in fact, Eric 

Hipple, who I speak with, the former Detroit Lion and sports concussion expert, spoke in terms of, well, there’s a badge of honor to 

see the stars. 

Mr. WALBERG. I sat on the plane with him yesterday coming 

here, so. 

Dr. VAN BOVEN. Fantastic. Exactly. Well, you’re why he didn’t 

have dinner with me. Just kidding. 

Mr. WALBERG. Sorry about that. 

57 

Dr. VAN BOVEN. No, no. He’s a great guy. But the point is, he’s 

a spokesperson on the issue, and the issue is that it’s a cumulative 

effect. It’s like radiation. We’re learning that multiple concussions, 

they build up and they can have additive effect. The same nodes 

or circuits that are messed up can set the stage to increase your 

risk of post-traumatic stress disorder, chronic traumatic 

encephalopathy, and be victims like Muhammad Ali. We are now, 

like, saying, wait a minute, this is a disaster. We’ve got to work 

on this and we’ve got to get serious, because if you don’t look, you 

won’t find. 

Mr. WALBERG. How many vets has it struck? 

Dr. VAN BOVEN. Well, the veterans, gosh, almighty, I think that 

that is something that we haven’t scratched on. Look, in 2005, just 

in soldiers, we said, oh, maybe there’s about 2,700; 2007, maybe 

4,000; by 2008, we said, well, maybe there’s 150,000; and now 

we’ve decided there’s 300,000. So it’s a matter of sensitivity. 

Now, veterans, my goodness, it’s almost, I think it’s going to take 

the same amount of time it took to recognize Agent Orange. Now, 

there are a lot of confounds because guess what makes TBI worse? 

Alcohol, substance abuse, sleep deprivation, stressors. It’s a toxic 

mix. 

And so it’s no wonder, and I say this really tragically, that so 

many of our veterans of war end up spiraling down socially and 

economically. They lose their wife, they lose their life, and they end 

up plummeting down to the VA system, which takes the bottom 20 

percent or less economically that give health care. There’s these 

million vets, for example, that the VA takes care of. 

I think that the problem is, when there’s all these Federal employees, I think we need to help them by helping the people that 

are taking care of them so that when they see a problem they don’t 

fear retribution, it, in fact, might be a badge of honor rather than 

denigration to be a whistleblower. 

And then when you’ve got OSC, it reminds me of Eliot Ness, 

Eliot Ness trying to take on the mob. Look, with 120 people taking 

thousands and thousands of claims with a $2.5 million budget, how 

can you expect them to do their job? 

Mr. WALBERG. So concluding that research and continued research and consistent research is necessary, with respect to the 

funds for TBI research, where did the money go? 

Dr. VAN BOVEN. There were ghost employees, people that didn’t 

set foot in a lab, but they were taken from payroll. There was no 

accounting. There was no budgeting. 

Mr. WALBERG. And it was used for what? 

Dr. VAN BOVEN. Well, it was used for people that were on salary 

but not doing research. It was used for scanner time that was frivolously used for, I’m sorry, some kind of experimentation. I mean, 

I couldn’t understand it. So I sent it off to five reviewers across the 

Nation to kind of make sense of something—— 

Mr. WALBERG. And you found out how many vets were being 

helped? 

Dr. VAN BOVEN. Zero. Not one veteran was treated at the BIRL, 

and not one study has been done on veterans at Waco. Zero. Thirteen million dollars and 8, 9 years later. 

58 

Mr. WALBERG. What motive did the DVA have to cover up the 

funding diversion instead of ending it? I mean, in your mind. What 

motive? 

Dr. VAN BOVEN. I don’t know what that stands. I’m sorry. Oh, 

yes, sorry. Thank you. It’s got a new name. He was asking about 

JCAHO. But it’s now called the Joint Commission. That’s why I 

was confused. 

So the motivation is very simple, and Ed Sherwood testified to 

it. He said, I am getting ready because we are in the bottom 10 

percent of the Joint Commission for clinical performance—and this 

is all testimony, I am paraphrasing—and he said, and, you know, 

the director is getting a lot of heat over it. And he told me, he said, 

you know, I could lose my job because of this. He said, so before 

JCAHO comes in and tears us apart and we lose our job and get 

zapped by them—I am quoting, I am paraphrasing—he said, I get 

my friend, this administrator, to get in there and clean things up 

to keep the hospital accredited, and in turn I give him research dollars, although he hadn’t done any published work, any reports, any 

progress, no science. It didn’t matter because this was just basically money that he had power of, he wasn’t a scientist, but he 

could just use it to help protect his job. That was the motive. 

Mr. WALBERG. Mr. Chairman, could I follow up or am I out of 

time? 

Mr. FARENTHOLD. Without objection, we will give you another 

minute. 

Mr. WALBERG. Thank you. Thank you. That may be all it needs. 

Did this coverup serve or obstruct WPA’s efforts, their goals? 

Dr. VAN BOVEN. I think it was in a vacuum. I don’t think WPA 

was anywhere in anyone’s mind. And any time I would raise prohibited personnel practices I was admonished and chastised during 

these internal tribunals, saying we are not here to hear about this, 

these kind of what you think are illicit motives of retaliatory animus, we are here to talk about you, Dr. Van Boven. And so it was 

completely cut out. 

Mr. WALBERG. And the peer review process didn’t work? 

Dr. VAN BOVEN. Well, the peer review, if I may, you know, part 

of the problem, you saw the chief of staff who reigned over his own 

grievance against him and found himself not guilty. I think that 

that’s symbolic and representative of the VA system right now. 

Look, we have an office inspector general, an Office of Research 

Oversight who is supposed to investigate his boss, the VA, and 

then but also answer to his boss. I mean that’s where you get all 

this incredibly diluted type of reports from ORO and the OIG. I 

think we need outside independent assessments. Health care is the 

same problem. 

Look, I am sorry I’ve got to inject this. Because I am a neurologist. I take care of patients. In 1999, the Institute of Medicine reported that ‘‘To Err is Human,’’ that there was 100,000 people 

dying in hospitals every year from medical mistakes. Okay? And so 

Congress was really up in arms, and we are going to do something, 

and we are going to improve transparency in government. Right? 

Fifteen years later, the Leapfrog organization this fall has reported 

that that number of hospital errors causing deaths has quadrupled, 

59 

400,000 a year. It is the number three killer of Americans now behind heart attack and cancer. 

If you go to the Joint Commission and speak to Hal Bressler, 

who is the chief counsel there, who has been there for 30 years— 

again, entrenched bureaucrat—and you ask him about, hey, I got 

some disclosures of problems, because you know, who knows but 

the doctors in the trenches, patients don’t understand the details, 

and they shouldn’t have to, but when doctors feel so much fear they 

can’t speak out, well, guess what happens? Hal Bressler of the 

Joint Commission said, Robert, to my lawyers, very simple, he said 

the problem is there has only been two cases ever, of even though 

it’s on the books that hospitals cannot retaliate for whistleblowing 

or, you know, sharing sentinel events that cause a patient’s death, 

although it’s against the law and against our policies, there is no 

protections. We can’t do subpoenas. We can’t do investigations. 

Therefore, unless the hospital is stupid enough—and there were 

two cases in history—to say, yeah, we did it, we committed the 

murder, and punished him for reporting to you, unless they do 

that, Joint Commission can’t do anything. 

We need laws. Think about it. You know those reports about you 

can save lives every year, thousands of them, thousands every 

year, guaranteed, if you provide protection and support for physicians in hospitals. 

Mr. WALBERG. Thank you. 

And thank you, Mr. Chairman. 

Mr. FARENTHOLD. Thank you very much. 

We will now recognize the ranking member of the full committee 

for his questioning. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

I want to say to all of you, I agree with Mr. Lynch, your testimony has been extremely helpful. And I think there is no member 

of the committee and the Congress that fails to feel strongly about 

protecting whistleblowers. It is very, very important. 

And, Ms. Lerner, as I listened to you, I think we are having some 

success. I think that is why you are seeing as much action as you 

are seeing, and that’s a good thing. 

One of the reforms included in the landmark Whistleblower Protection Enhancement Act is a 2-year pilot program that allows 

whistleblowers to appeal a judgment of the Merit Systems Protection Board to any U.S. court of appeals with jurisdiction. Prior to 

the establishment of the pilot program, the Federal Circuit was the 

only court of appeals with authority to adjudicate whistleblower appeals. 

Mr. Devine, I understand that prior to the creation of the pilot 

program the track record for decisions in the Federal circuit was 

adverse to whistleblowers. I think it was something like 3 to 226 

against whistleblowers for decisions on the merits. Is that right? 

Mr. DEVINE. It degenerated to 3 in 232. 

Mr. CUMMINGS. Oh, okay. Can you explain for us the concern 

that the pilot program was meant to address? 

Mr. DEVINE. Yes, sir. It was meant to create healthy competition, 

to translate the terms of the act when there was dispute about 

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60 

tem, having a difference of opinions and finding the truth from the 

composite. 

It’s needed even more. The Federal circuit has not ruled in favor 

of a whistleblower on the merits since passage of the WPEA. They 

have not been born again. And in the meantime, other courts of appeals have been coming in. And in fact on whether the rights were 

retroactive, one court of appeals said we don’t need to determine 

that because the Federal circuit rulings all along were erroneous, 

and we are going to, by the court opinion, restore all the rights that 

the Federal circuit took away. 

If we had had all circuits review, we wouldn’t have had to keep 

passing the Whistleblower Protection Act over and over again, because the aberration of one hostile court would have been subsumed. 

We are very grateful that the House has passed legislation extending the 2-year pilot test to 5 years, because the GAO study to 

see whether it worked or not is 4 years, and we hope that the Senate follows suit on that. 

I’d also like to supplement the answer on peer review as not 

being part of the solution at the DVA. It actually was the primary 

vehicle to attack the whistleblowers at the DVA. It’s the classic 

star chamber proceeding in that they are not allowed to know the 

charges against them, they are not allowed to see the witnesses 

testifying against them, they are not allowed to present their own 

witnesses. It was a vehicle to be able to give an undefended, 

unreviewable attack on the whistleblower. And the same solution 

for retaliatory criminal investigations, if applied to retaliatory peer 

reviews, the same upgrade of language from legislative history 

culled from the 1994 amendments would allow people like Dr. Van 

Boven to defend himself before he has to go to the MSPB for a 

hearing. 

Mr. CUMMINGS. Chairman Grundmann, what impact has the allcircuit review provisions of the Whistleblower Protection Enhancement Act had on the Board’s adjudication of whistleblower cases? 

Ms. GRUNDMANN. In short, not much. There have only been four 

cases appealed outside the circuit. And of the four cases, only two 

of them have been decided. The other two are still pending. So as 

Mr. Devine indicated, if the goal of this law is to develop a wide 

variety of decisions from different circuits, then I would suggest 

that four decisions is not many. 

Mr. CUMMINGS. At the time this provision was considered in the 

Protection Act there was a concern that allowing for whistleblower 

appeals to other circuit courts of appeal would result in a flood of 

cases being filed in the other courts. My last question, Chairman 

Grundmann, can you tell us how many cases have been filed in 

other circuits? 

Ms. GRUNDMANN. Just four. 

Mr. CUMMINGS. Four? 

Ms. GRUNDMANN. Four total, on one hand. 

Mr. CUMMINGS. And does that surprise you? 

Ms. GRUNDMANN. That’s a difficult question to answer, because 

it does take a while for a case to complete itself, complete its process, and then be filed in court. But we’ve been tracking this for 2 

years, and all we’ve seen is four cases in total. 

61 

Mr. CUMMINGS. So, Mr. Devine, you said you’d like to see that 

legislation extended, the pilot program extended another 3 years? 

Mr. DEVINE. Yes, sir. 

Mr. CUMMINGS. Consistent with what we passed. 

Mr. DEVINE. Very supportive of the bill the House passed to 

make it 5 years. 

Mr. CUMMINGS. And do you think that will make a difference? It 

sounds like it is almost a little early to even make a good judgment 

on it based on what you said and what Chairwoman Grundmann 

said. 

Mr. DEVINE. Yes, sir. Well, we would love to see this made permanent as far as having a research base to demonstrate that. It’s 

going to take more than a few years to develop an adequate number of cases for a statistically significant base. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

Mr. FARENTHOLD. Thank you very much. 

We will now recognize the chairman of the full committee, the 

gentleman from southern California, Mr. Issa. 

Mr. ISSA. Thank you, Mr. Chairman. This is one of those bipartisan things that brings together both sides of the dais, and so I’ll 

follow up where the ranking member left off. 

Mr. Devine, if I hear you are right, and if I look at what I think 

Mr. Cummings noted, and, Ms. Grundmann, you said, which is 

there is no flood. So it is a relatively small amount of cases. And 

if we extend—and I appreciate the comment about making it permanent—but if we extend it significantly we do no harm, that the 

original short period of time was based on the assumption that 

there might be a flood and we might have it look at it. Is that pretty much the consensus of everybody there? 

Mr. DEVINE. Yes, sir. The predictions of a flood of cases either 

for normal access to appeals courts or for jury trials in district 

court have always flunked the reality test. They have been challenged prior to the passage of a dozen laws for corporate whistleblowers at the district court level, for example. That flood has simply never occurred. It has been crying wolf over and over and over. 

Ms. GRUNDMANN. Let me just add briefly—— 

Mr. ISSA. Yes, please. 

Ms. GRUNDMANN. —as I am obligated to do, that is a policy call 

for Congress. We don’t take a position on it. But as I stated, the 

statistics do not provide much of a basis for anybody to draw any 

conclusions at this point. 

Mr. ISSA. So without taking a position, the numbers speak for 

themselves that there isn’t a flood. And if we are going to evaluate 

the benefits and, to be honest, to see some of these cases come to 

maturity, it may take more time than was originally planned in the 

pilot. 

Ms. GRUNDMANN. That is correct. 

Mr. ISSA. Thank you. 

Mr. MacLean, I want to thank you for the work that you have 

done to further, if you will, our awareness. The fact is that I look 

forward to your case being fully adjudicated. And I think in fact 

that’s part of what we on the dais want to make sure is made 

available, is access to whistleblowers in an appropriate venue of 

62 

their choosing, and then let’s see ultimately when they trickle up 

to the Supreme Court how they are decided. 

Ms. Lerner, you have been a tremendous champion, and I appreciate the work that you have done. And this is a subcommittee 

hearing and I know that before I got in here from other duties most 

of this was done, but I want to take a moment and thank you for 

being, if you will, a good public servant. 

And, quite frankly, for all of you, this hearing is about an area 

in which this committee is passionate. There is very little time left 

in this Congress. But if we can in fact do a further draft, the ranking member and myself, and get it introduced in the lame duck, we 

will. And that will take a little time. 

But this hearing today, Mr. Chairman, does help us. So with 

that, I yield back. 

Mr. FARENTHOLD. Thank you very much, Mr. Chairman. 

We will now recognize the gentlelady from the District of Columbia. 

Ms. NORTON. Thank you, Mr. Chairman. I am very pleased that 

we are having this hearing. And I am pleased that the chairman 

is here because this, the bipartisan Whistleblower Protection Enhancement Act, I think is an indication of the concern of Congress, 

continuing concern I must say. Indeed, as I listened to Ms. 

Grundmann speak of having sat in my class on negotiations, I can 

only think that she has accomplished a lot more than any negotiations class could have given her, as she has risen to become chair 

of the Merit Systems Protection Board. 

Ms. Grundmann, I retain my tenure at Georgetown. I teach a 

seminar called Lawmaking and Statutory Interpretation. It’s interesting that as long as they are writing about statutory interpretation and how it mixes or links with what we pass, they can write 

on any subject they want to. And I note that I have learned something about your decisions and the decisions of the Federal circuit, 

because any number of them over the years have chosen to write 

on what looks to be the conflict between the statute and what the 

Board and the Federal circuit have found. 

And then I note that Congress has kept trying to revise this statute. And I don’t know if we need to try again, listening to some of 

the other ways to approach it that have come out in this hearing. 

I want to raise another issue that could affect far more Federal 

employees, conceivably virtually every Federal employee, and wipe 

out altogether the Whistleblower Enhancement Act. And I am referring to Kaplan v. Conyers, a decision that reversed what the 

Merit Systems Protection Board found in favor of the Federal employees. And the administration appealed all the way to the Federal circuit and the Supreme Court. And the Supreme Court has 

let that stand. 

We use the word security very loosely. This is a frightening circumstance, where an agency head or his designee can designate 

any position as security sensitive. Understand these are not positions that require a security clearance. So in the parlance of the 

day, most people would not understand that these positions are 

commonplace positions, having nothing to do with security. And I 

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63 

ments of two of the organizations that represent the Federal employees on the impact of this decision. 

Mr. FARENTHOLD. Without objection, so ordered. 

Ms. NORTON. The first thing I thought about when I looked at 

this decision was the Whistleblower Protection Act means nothing 

because there is no appeal whatsoever. It seems to me to go against 

everything that Congress has passed for the last 50 years. So if you 

think that you’re a victim of retaliation or that somebody has discriminated against you because of your religion or your race, leave 

alone trying to retaliate against you, there is nothing you can say 

because there is no recourse. 

So I have to say, is there any civil service system? And why isn’t 

that an incentive for agency heads to simply disregard the system 

altogether? 

Now, I am pleased to note that I have introduced a bill, and 

there are two Republicans and three Democrats in this committee 

who have sponsored this bill, and the Senate has adopted this bill, 

and it is a bipartisan bill now in the Senate. So you can see that 

this troubles the Congress itself. 

How to deal with a new wrinkle, I would call it, a new layer, first 

time I have ever heard of a layer, outside of security. So by calling 

these security-sensitive positions, these positions have been tucked 

right in there with positions where you need a security clearance. 

And you can understand where there is a security clearance and 

the kinds of information that could not in fact come forward. These 

are not those positions. 

And I want to ask about the impact of the Conyers ruling, particularly on our attempts to protect whistleblowers, and for that 

matter on Federal employees across the country—across the 

board—recognizing that these first cases have involved DOD employees. But I read nothing in the regulations that would, even 

though most DOD employees of course do not have security clearance, but I read nothing in the regulations that even confine it to 

DOD employees. And I note that the administration is trying to expand with further regulations the position it has taken by apparently writing regulations as I speak by the OPM and the office of 

national intelligence that would expand the Federal positions labeled by this new label, security sensitive, to virtually all Federal 

employees. 

I would like to hear, especially I would like to what all of you 

think. I suppose I should begin with Ms. Lerner, the Special Counsel, and see if she has any role in advising the administration, 

which is I think taking the Conyers decision and raising it to even 

further levels that are unheard of in what has been called up until 

this point a civil service system. 

Ms. LERNER. Thank you for your question. 

Up until now, we have not had a role in advising the administration on this issue. I think it is important to note, however, that 

Congress has set up the Office of Special Counsel as a safe channel 

for disclosing classified information. So there is no doubt about the 

Office of Special Counsel’s ability to responsibly and appropriately 

handle these cases. I don’t know that that has been mentioned or 

acknowledged. And I know you have introduced legislation, and as 

you mentioned the Senate has, too. But that’s something to keep 

64 

in mind in response to any objections to employees having the ability to appeal to the Office of Special Counsel. 

Ms. NORTON. Are you saying even secure positions? 

Ms. LERNER. Yes. Yeah. We can handle classified information 

and secure positions. 

Ms. NORTON. Mr. Devine, do you think a legislative remedy is 

necessary? And I should ask Ms. Grundmann, inasmuch as the 

Merit Systems Protection Board ruled in favor of the employees 

and was overruled in the Federal circuit. Do you think legislation, 

whether the legislation I introduced or has been introduced in the 

Senate or other legislation, could in fact correct this situation? 

Ms. GRUNDMANN. That is what I understand to be the goal of the 

legislation you introduced. But again, we have no position on policy. However, I can say that we have argued before the Federal circuit precisely the types of statements and arguments that you have 

made here today, which is there would be no way for us or any 

third party to know whether somebody was removed for an improper reason such as whistleblowing or retaliation for whistleblowing. 

Right now, because of the state of the law, we are bound to follow the Conyers, Northover decision, which precludes our review in 

its entirety. Let me also note that there are certain agencies out 

there that have only noncritical sensitive positions. Everybody has 

some sort of sensitivity designation. So all the individuals potentially in that agency don’t have any MSPB review. 

Ms. NORTON. DOD and others as well? 

Ms. GRUNDMANN. There are components within the Department 

of Defense. I think the labor unions, the statements that you submitted you will find those comments. In the two particular cases 

that appeared before the Board, both these individuals were lowgraded individuals. They are low-level GS employees who did not 

have access to classified information. In fact, their ineligibility was 

based on determinations, personal determinations, mostly financial, 

credit rating, bankruptcies. 

Ms. NORTON. Mr. Devine, just finally could you say something on 

a legislative solution here? Or am I overwrought about what this 

does to the Whistleblower Protection Act or, for that matter, to 

Federal employees more generally? 

Mr. DEVINE. To my great dismay, no, you are not overwrought. 

I have been working on good government rights through Federal 

employees making a contribution since 1976, and this is the most 

severe threat that’s occurred. Whistleblower rights were immediately a target of the Conyers lawsuit thanks to the White House 

decision. But trying to build whistleblower rights without a foundation of the merit system is trying to build a home without a foundation. And when the security clearance precedent took away access to the civil service system and the MSPB, it was only a matter 

of time before whistleblower protection rights were next. It was inevitable. It happened. 

And there is not any question in our mind that the days are 

numbered for the Whistleblower Protection Act’s survival if this decision is not reversed. I wish that it weren’t necessary to have legislation, because having worked four times to pass the Whistleblower Protection Act we know how hard that is and how long it 

65 

takes and how much work it is. But there isn’t any other option 

left. 

And it shouldn’t be controversial legislation. It’s just to restore 

the status quo for a merit system and Federal employment that existed from 1883 to 2013 without any incident due to the lack of 

sensitive job designations. This should not be a controversial bill. 

And there is no time to waste. Agencies, at the Department of 

State, agency by agency, they are starting to make all their employees sensitive, noncritical sensitive. All the IGs that we depend 

on to protect the whistleblowers are transforming their employees 

to be critical sensitive. The entire Border Patrol, where we have 

had some of the most significant whistleblowing disclosures, will all 

be noncritical sensitive. The government is being transformed from 

the rule of law to a national security spoils system. 

Ms. NORTON. Thank you, Mr. Chairman. I don’t know if the administration knows what it is doing, but it is wiping out the civil 

service system, it seems to me. 

Mr. FARENTHOLD. I thank you for your line of questioning. And 

I actually do want to follow up on it. I mean, I think we do have 

an issue of sensitivity creep. And I think Mr. Lynch pointed out our 

challenges in drafting legislation that is appropriate for that. I 

mean, I think clearly the case of someone stocking sunglasses is 

not going to have access to sensitive information, but I think the 

majority of us would agree that Mr. Snowden clearly had access to 

and exposed sensitive information. 

So finding the right place to draw the line is challenging. I know 

it’s certainly something that’s going to be critical to Mr. MacLean 

in his ongoing litigation as to how that goes. Anything we do now 

probably won’t help you. You are in the courts’ hands. 

But I would appreciate, and you don’t have to come up from it 

now, I’d actually request that if you all in the next few days could 

send to the committee any thoughts you would have on how we 

draft that language to protect the legitimate whistleblower while 

still protecting our national security interests. And a piece of it 

may be where that information is released. Clearly flying overseas 

and releasing NSA information, as Mr. Snowden did, is not appropriate. But coming to a congressional committee, or a special counsel, or the Office of Inspector General with your agency might be 

an appropriate place to do that. And as we look at reworking that, 

at least I would appreciate each of you all’s thoughts and input on 

how to do that. 

I do have a couple of questions that I want to hit. Mr. Devine, 

you offered your five concerns, your five loopholes, if you will, that 

you think need addressing. And I would like to ask our other witnesses—I realize Ms. Lerner and Ms. Grundmann, as government 

employees you are kind of in an awkward situation there. I would 

ask that if you feel comfortable speaking for yourself rather than 

the agency, someone with knowledge in the field, you’re welcome 

to answer. I’ll understand if you decline to answer. 

But if any of you all have any other suggestions for improvements in the law overall, I would like to hear. I am giving you an 

out, Ms. Lerner, but we will start with you. 

Ms. LERNER. I think it’s an important question. I would like to 

be able to give it some thought. 

66 

Mr. FARENTHOLD. Okay. Send it on with your thoughts on the 

language on the sensitivity creep, as we will call it. 

Ms. LERNER. Sure. 

Mr. FARENTHOLD. And Ms. Grundmann? 

Ms. GRUNDMANN. Well, in terms of that particular issue, the 

Board has already spoken through its decision. I think we were 

rather clear on how we felt the issue should be handled. The Federal circuit disagreed with us. So certainly it is in this body’s hands 

to resolve any outstanding issues. We will follow up with you, however. 

Mr. FARENTHOLD. Mr. MacLean? 

Mr. MACLEAN. Throughout my case, the TSA just thumbed its 

nose at MSPB orders and Federal circuit court orders. So the agencies are allowed to get away with what they do because I think the 

MSPB is too weak to uphold the orders. And they just go ahead 

and ignore them, such as switching out witnesses and ignoring deposition orders. 

Mr. FARENTHOLD. So some teeth in dealing with folks within 

agencies who disregard the whistleblower protection might be 

something you would suggest? I don’t want to put words in your 

mouth. 

Mr. MACLEAN. It’s hard to say, because there was just never any 

accountability when the final decisions came from the full Board. 

And I think they are overwhelmed with a lot of caseload. It’s good 

that this is opened up to multiple circuits, because I think the Federal circuit was overloaded with this. And now it’s good that it’s 

been spread around. So now they can spend more time to take a 

look at this. 

Mr. FARENTHOLD. Dr. Van Boven, you have any thoughts? 

Dr. VAN BOVEN. Well, with regards to where to draw the line—— 

Mr. FARENTHOLD. Can you turn your microphone on? Why am I 

the only one you all forget to turn your microphones on with? 

Dr. VAN BOVEN. I am sorry. I don’t have the expertise to comment on where to draw the line on sensitivity issues and whistleblowers’ rights. But with regards to more broader suggestions on 

my plight and history and what are lessons learned and how can 

we improve that, I have the following suggestions. 

Number one, I think that there should be outside, independent 

investigations with regards to wrongdoing in an agency. I think it’s 

a conflict of interest when you have to have the, as I mentioned 

before, a chief of staff who is making a decision and deciding about 

whether or not he did something wrong. So, too, I think that there 

needs to be agencies that can have independent assessment. Oh, 

that’s the OSC. 

So my feeling is that OIGs and the OROs and all the rest, it is 

a comedy of errors. I think that you should put teeth into OSC, 120 

people, $2.5 million. I’m sorry, she didn’t pay me for this, but I 

think that if you really want to do it, then give them the guns and 

the power to help people. 

And the second thing is we need more cultural top-down saying 

it is not the whistleblower that has the problem. He is blowing the 

whistle because something is wrong, and we need to try to ’fess up 

and give incentives. Either the stick, just like in hospitals, you 

have a patient that is staying too long and they come back 3 days 

67 

after you discharge them and they die, well, gosh, there’s penalties 

there. And then also the carrot in terms of we are going to have 

rewards for people who show real improvements in performances. 

And I always say to my patients it is better to prick your own bubble than have someone else prick it for you. So I am my own toughest critic in terms of so they have rewards for those that point out 

problems in themselves before someone blows the whistle. 

Mr. FARENTHOLD. Thank you very much. Listen, I couldn’t agree 

with you more about needing to get to the bottom of some of the 

cultural problem. And again, I don’t intend to beat up on the VA, 

but they seem to have asked for it. And hopefully we have been 

able to do that with our recent legislation. 

Finally, I want to wrap my questioning up—and we will give Mr. 

Lynch a second round of questioning when I am done—with a 

broad overview. Each one of you is involved directly with whistleblowers. Some of you are whistleblowers yourselves. This committee relies heavily on whistleblowers. Quite frankly, the American people rely heavily on whistleblowers. It’s the people who have 

the courage to do the right thing and point out what’s going wrong, 

sometimes at their own peril. We’re trying to fix it where it isn’t 

as perilous for them. But these are true American heroes who do 

the right thing and come forward. 

I want to give each one of you the opportunity, whoever is watching this on the Web that might be thinking about being a whistleblower, or somebody who is reading the transcript of this hearing 

that’s thinking about being a whistleblower, take 10 or 15 or 30 

seconds, what would you say to somebody who is thinking about 

becoming a whistleblower? We’ll go down the line and start with 

Ms. Lerner. And when we are done I will pass on to Mr. Lynch. 

Ms. LERNER. I think what I would say to a whistleblower is that 

they have a lot of avenues to come forward. And I particularly 

want them to think about the Office of Special Counsel. We are a 

robust, active agency. We are understaffed, but we are getting terrific results for whistleblowers. We have a record number of corrective actions, almost 200 this year, on behalf of whistleblowers. 

We need people to come forward with their disclosures. And I 

think the results that we have gotten, because whistleblowers have 

come to us, show the value. We have gotten amazing results at the 

Air Force, the FAA, the Department of Homeland Security, and 

most recently at the VA. 

And just today in fact the new Secretary of the VA I believe testified that he wanted everybody to be a whistleblower at the VA. 

Probably going a little bit too far. But the message is I think he 

wants people to know that the culture is going to change at the VA. 

And we need whistleblowers to come forward in order to make our 

agencies, our government better and safer for the American public. 

Mr. FARENTHOLD. Ms. Grundmann. 

Ms. GRUNDMANN. Thank you. One of our functions of course is 

a study function. And we have routinely seen that Federal employees still perceive evidence of prohibited personnel practices, one of 

them being reprisals for whistleblowing. So that creates a culture 

problem. 

We commend this body for taking the initiative to change the law 

to create new avenues for whistleblowers to come forward. But ultiVerDate Aug 31 2005 15:37 Oct 06, 2014 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6633 C:\DOCS\89898.TXT APRIL
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mately, as Ranking Member Lynch mentioned at the beginning, the 

culture needs to change within an agency whereby employees are 

encouraged to come forward and whereby their allegations are investigated. 

And when the investigation is done, if there is no wrongdoing accomplished, employees should be told an investigation was completed and you did the right thing by coming forward. So the culture change is what needs to occur, and it’s educational and it’s 

long term. 

Mr. FARENTHOLD. Thank you very much. 

Mr. MacLean. 

Mr. MACLEAN. I would advise people that your whole life is going 

to change. It doesn’t matter what you believed what was doing 

right at the time. Years down the road everything that you said 

and done is going to be highly scrutinized. A lot of your friends at 

work are never going to talk to you again. You could lose your job. 

It’s a huge, huge risk. Prepare for the absolute worst. 

Mr. FARENTHOLD. Would you do it again? 

Mr. MACLEAN. Absolutely. I was a law enforcement officer. You 

paid me three times, four times more than your average Federal 

worker to make split decisions in one of the most dangerous areas 

to enforce the law. So it was my duty. It was my oath to do what 

I had to do. And at the time, I believed I was doing everything to 

protect the public. 

So absolutely. I took that law enforcement oath. So I would do 

it again and again. Better people than me have given up worse, 

given up more. 

Mr. FARENTHOLD. Thank you very much. 

Dr. Van Boven. 

Dr. VAN BOVEN. Right now these are—— 

Mr. FARENTHOLD. Microphone. 

Dr. VAN BOVEN. I’m sorry. Right now, I think that the applause 

for whistleblowing is frustratingly anemic at best. I think that the 

current culture is that you have to be masochistic, a Don Quixote, 

or want to have financial ruin and have a Pyrrhic victory and a 

probable divorce. And these are the statistics. 

Look at Lois Jenson of the first class action lawsuit in America. 

I lived a few miles from where she was up in, Virginia, Minnesota. 

After 12 years, she and a half dozen people got $600,000, but her 

life was ruined, and she is still a wreck. If we think in terms of 

Mr. Wigand of the tobacco industry, he has been psychologically 

devastated as a result of all these things. I myself, thankfully, I 

survived, but barely. 

So the bottom line is you know we got Boy Scouts and Girl 

Scouts, you give them badges. We should start early and really 

make it happen. Where is my badge? I think that if we really want 

to give positive reinforcements, then make it visible and to say you 

are a hero and mean it. Because right now people say, oh, they 

want to applaud a whistleblower, but they don’t want to be too 

close to the whistle. 

Mr. FARENTHOLD. Thank you very much. 

And, Mr. Devine. 

Mr. DEVINE. Mr. Chairman, the first thing I would say is that 

this is unsurpassed as a crossroads decision in your life, which will 

69 

never be the same. Make this decision with your family and the 

loved ones who are depending on you, because they are going to be 

affected by it. And the cost will be severe if you are going to make 

a significant difference. 

But if you are willing to pay the price, you can make a difference, 

because there is nothing more powerful than the truth. So think it 

over. 

Number two, do your homework. It’s the highest risk decision 

you will be making, and you have to do the most advanced preparation. So get that book, ‘‘The Whistleblower’s Survival Guide: A 

Handbook for Committing the Truth.’’ It’s based on the experience 

of 6,000 whistleblowers’ lessons learned. 

And the third thing I’d advise, if they’re a Federal civil servant, 

to convince Congress to give you rights that are analogous to those 

of corporate employees who have full, normal access to court to enforce them. 

Mr. FARENTHOLD. Thank you very much. 

Mr. Lynch. 

Mr. LYNCH. Thank you. 

Normally, I would say the witnesses have suffered enough, but 

I do have a couple other questions. Just as sort of an anecdote, in 

Boston the VA has switched over. They have done this whole whistleblower support protocol. I was just involved in a case at one of 

my local VA hospitals—I have got three—where the whistleblowers’ 

complaints were borne out and the system was changed because 

they came forward. It’s not entirely a happy ending, but I have to 

say that they came forward, they pointed out deficiencies, and 

those deficiencies were changed. Somewhat reluctantly, but they 

were changed. 

So there is the opportunity, I think, to educate our folks, our 

managers, to implement these programs to make it more conducive 

for people to come forward. And I think that part we need to do 

better and we need to do it all across government. And I think that 

will help change the culture in a way if we are seen as supporting 

this, and maybe by that way, by that action, the risk that Mr. 

MacLean talked about. 

And I hate hearing that, that you take your life in your hands. 

And maybe we haven’t really drilled down on Mr. MacLean’s case, 

but I will do that now. You served as an air marshal back in 2003. 

And what I understand is in August 2003 TSA proposed a change 

in policy to cancel all air marshal coverage on long distance flights 

for that time period. And it coincided with a period of high risk on 

the airlines, long distance airlines, from Al Qaeda. Isn’t that correct? 

Mr. MACLEAN. Yes, sir. 

Mr. LYNCH. And you came forward after you received your notice, 

which was nonclassified at the time, and you complained about it. 

And you also, as you described earlier in your testimony, you went 

to the press, and they confirmed it with other air marshals. And 

instead of being rewarded for your diligence—of course TSA had to 

change their policy—you were fired in what, 2006? 

Mr. MACLEAN. Yes, sir. 

Mr. LYNCH. And the excuse they used was that they had gone 

retroactively and in 2006 changed their classification of your text 

70 

messages that you received to classified. And so you were in a sensitive position. Is that what their argument is basically? 

Mr. MACLEAN. They retroactively designated my disclosure with 

an agency-regulated unclassified marking called sensitive security 

information years after the fact. 

Mr. LYNCH. Right. And so you were fired for that. 

Mr. MACLEAN. Yes, sir. 

Mr. LYNCH. Tell me and tell this committee about the difficulty 

you have had in getting employment as an air marshal or other 

employment since that job action. 

Mr. MACLEAN. I applied for almost a dozen police agencies in 

southern California, and none of them even came forward and said 

we don’t want to hire you because you got fired from the TSA. I 

simply got, thanks for applying, you weren’t the most qualified, 

maybe try again in the future. 

I only had a high school diploma, didn’t have a college degree. 

So it was very difficult for me. And most of the jobs, I have been 

jumping job to job with commission only, door-to-door sales jobs. 

It’s about the only thing I could find. 

So, yeah, I was pretty much blackballed, being a veteran, Air 

Force veteran, a Border Patrol agent. The man who fired me said 

I had an impeccable, perfect record. It didn’t matter. I still couldn’t 

get a job as a cop again. 

Mr. LYNCH. What exactly were you told about how your career 

may be harmed if you didn’t remain silent? Were there any warnings given to you about what you were doing coming forward? 

Mr. MACLEAN. After the fourth proper channel that I went 

through, which was finally a special agent with the inspector general, he simply said the agency went broke. This happens. There 

is nothing you can do, there is nothing we can do, you don’t want 

to cut your career short over making a big deal about this. And 

that was the final time, I was advised not to go further. 

Mr. LYNCH. Well, I think the circumstances that you find yourself in is a disgrace to us as Federal employers, both yourself and 

Dr. Van Boven. And I think your example is extremely instructive 

to us going forward in trying to devise a policy where employees 

like yourself will be protected during this process. I think you prevented a dangerous situation from being put upon the public, the 

flying public, and it’s a disgrace that you’re being punished for 

that. 

So thank you for your testimony. As I said, I just wanted to 

spend a little time on your case and amplify it a little bit. Hopefully, it will help you going forward. 

Mr. MACLEAN. Thank you, sir. 

Mr. LYNCH. Thank you. 

Mr. FARENTHOLD. I’d like to thank everybody on our witness, especially our whistleblowers. I’m going to echo what Mr. Lynch said, 

that it is a disgrace. And I hope you take away from this the members of this subcommittee I think unanimously are committed to 

making the situation better. And we are going to keep working on 

it. Again, thank you all for your testimony. 

The subcommittee stands adjourned. 

[Whereupon, at 3:45 p.m., the committee was adjourned.] 

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