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51–786 PDF 2010

S. Hrg. 111–299 

S. 372—THE WHISTLEBLOWER PROTECTION 

ENHANCEMENT ACT OF 2009 

HEARING 

BEFORE THE

OVERSIGHT OF GOVERNMENT MANAGEMENT, 

THE FEDERAL WORKFORCE, AND THE 

DISTRICT OF COLUMBIA SUBCOMMITTEE 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JUNE 11, 2009 

Available via http://www.gpoaccess.gov/congress/index.html 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 

(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

MICHAEL F. BENNET, Colorado 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

MICHAEL L. ALEXANDER, Staff Director 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 

OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL 

WORKFORCE, AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE 

DANIEL K. AKAKA, Hawaii, Chairman 

CARL LEVIN, Michigan 

MARY L. LANDRIEU, Louisiana 

ROLAND W. BURRIS, Illinois 

MICHAEL F. BENNET, Colorado 

GEORGE V. VOINOVICH, Ohio 

LINDSEY GRAHAM, South Carolina 

LISA M. POWELL, Chief Counsel and Acting Staff Director 

JESSICA K. NAGASAKO, Professional Staff Member 

JENNIFER A. HEMINGWAY, Minority Staff Director 

BENJAMIN B. RHODESIDE, Chief Clerk 

(III) 

C O N T E N T S 

Opening statements: Page 

Senator Akaka .................................................................................................. 1 

Senator Burris .................................................................................................. 10 

WITNESSES 

THURSDAY, JUNE 11, 2009 

Rajesh De, Deputy Assistant Attorney General, Office of Legal Policy, U.S. 

Department of Justice ......................................................................................... 3 

Hon. Claire McCaskill, a U.S. Senator from the State of Missouri ..................... 8 

William L. Bransford, General Counsel, Senior Executives Association ............ 15 

Danielle Brian, Executive Director, Project on Government Oversight .............. 17 

Thomas Devine, Legal Director, Government Accountability Project ................. 19 

Robert G. Vaughn, Professor of Law, Washington College of Law, American 

University ............................................................................................................. 21 

ALPHABETICAL LIST OF WITNESSES

Bransford, William L.: 

Testimony .......................................................................................................... 15 

Prepared statement .......................................................................................... 44 

Brian, Danielle: 

Testimony .......................................................................................................... 17 

Prepared statement .......................................................................................... 48 

De, Rajesh: 

Testimony .......................................................................................................... 3 

Prepared statement .......................................................................................... 31 

Devine, Thomas: 

Testimony .......................................................................................................... 19 

Prepared statement with attachments ........................................................... 57 

McCaskill, Hon. Claire: 

Testimony .......................................................................................................... 8 

Vaughn, Robert G.: 

Testimony .......................................................................................................... 21 

Prepared statement .......................................................................................... 141 

APPENDIX 

Background .............................................................................................................. 163 

Copy of S. 372 .......................................................................................................... 171 

ADDITIONAL PREPARED STATEMENTS

Craig R. Sawyer, a disabled former U.S. Marine and U.S. Navy SEAL ............. 199 

Colleen M. Kelley, National President, National Treasury Employees Union ... 203 

John M. Fitzgerald, J.D., Policy Director, Society for Conservation Biology ...... 205 

John W. Curtis, Ph.D., Director of Research and Public Policy, American 

Association of University Professors .................................................................. 209 

Joe Carson, PE, Knoxville, Tennessee with an attached letter ........................... 210 

Larry Fisher, National Accountant Whistleblower Coalition (NAWBC) with 

attachments .......................................................................................................... 216 

Questions and Responses to questions: 

Mr. Bransford ................................................................................................... 236 

Mr. Vaughn ....................................................................................................... 237 

(1) 

S. 372—THE WHISTLEBLOWER PROTECTION 

ENHANCEMENT ACT OF 2009 

THURSDAY, JUNE 11, 2009 

U.S. SENATE, SUBCOMMITTEE ON OVERSIGHT OF GOVERNMENT

MANAGEMENT, THE FEDERAL WORKFORCE, AND THE DISTRICT OF COLUMBIA, OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:49 p.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Daniel K. Akaka, 

Chairman of the Subcommittee, presiding. 

Present: Senators Akaka and Burris. 

Also Present: Senator McCaskill. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. I call this hearing of the Subcommittee on Oversight of Government Management, the Federal Workforce, and the 

District of Columbia to order. 

I want to welcome our witnesses and thank you so much for 

being here. Today’s hearing will examine S. 372, the Whistleblower 

Protection Enhancement Act of 2009, which I and other Members 

introduced earlier this year. First, I would like to thank Senator 

Collins, the lead Republican cosponsor of S. 372, and Members of 

the Homeland Security and Governmental Affairs Committee who 

are cosponsors, including my good friend Senator Voinovich, a 

champion of Federal employees, and Chairman Lieberman for their 

support. I want to mention that Senators Collins and Voinovich are 

not able to attend today’s hearing due to last-minute scheduling 

conflicts, but I know they very much wanted to be here. I would 

also like to recognize Senators Grassley and Levin, who have been 

long-time supporters of strengthening whistleblower protections. 

The Whistleblower Protection Act is an important cornerstone of 

our Nation’s good government laws. Federal employee whistleblowers play a crucial role in alerting Congress and the public to 

government wrongdoing and mismanagement, protecting our civil 

rights and civil liberties, helping to keep us safe, and rooting out 

waste, fraud, and abuse. I should also add that many of them have 

some good ideas that can improve government operations. 

Congress passed the Whistleblower Protection Act of 1989 

(WPA), and amendments to improve the WPA in 1994, to strengthen protections for Federal employee whistleblowers. However, a series of rulings by the Merit Systems Protection Board and the FedVerDate Nov 24 2008 13:55 Mar 10, 2010 Jkt 051786 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 P:\DOCS\51786.TXT SAFFAIRS PsN: PAT
2 

eral Circuit Court of Appeals have created a number of loopholes 

in the law’s protections. The law has become so weak that many 

employees, with good reason, fear they will not be protected from 

retaliation if they come forward to report wrongdoing. 

In 2000, I first introduced a bill to strengthen the WPA with 

Senator Levin. Over the years, the consensus that action is needed 

has grown broader, and the commitment of those involved has 

grown deeper. During each Congress, we have moved closer to enacting stronger whistleblower protections. 

Last year, our bill passed the Senate by unanimous consent. The 

House passed a similar bill, H.R. 985. Unfortunately, we were not 

able to work out the differences between the bills before the 110th 

Congress adjourned. 

It is very encouraging to be working with an Administration this 

year that is engaged in trying to work through the details of the 

legislation. President Obama has stated that his ‘‘Administration is 

committed to creating an unprecedented level of openness in Government.’’ 

I know this Administration is deeply committed to transparency 

and accountability, and I believe that by working together we will 

enact stronger whistleblower protections, which is so important to 

those larger goals. 

There is broad agreement on a number of provisions that are in 

both S. 372 and the House companion bill, H.R. 1507. These include the need to: Clarify that ‘‘any’’ whistleblower disclosure truly 

means any disclosure; provide a process to review retaliatory security clearance revocations and suspensions; provide whistleblower 

protections to employees of the Transportation Security Administration (TSA); protect disclosures of scientific censorship; suspend 

the Federal circuit court’s exclusive jurisdiction; and make a number of other important changes. However, there remain a few unresolved issues, and this hearing will focus largely on grappling with 

those particular issues. 

The first is how to best protect national security whistleblowers. 

For too long, national security whistleblowers have not had secure 

avenues to disclose government waste, fraud, abuse, and mismanagement. Some undoubtedly have stayed quiet, while some 

have leaked classified information to the media. We must ensure 

that there are secure channels to bring problems in the Federal 

Government to Congress’ attention. Congress, with the appropriate 

security clearance requirements and procedures for safeguarding 

information, must be able to fulfill its constitutional oversight responsibilities. I hope today we will have a productive discussion on 

ways to address this important issue. 

The other unresolved issue is whether a safety valve is needed 

to protect whistleblowers if the administrative process is not working. The House companion bill would allow whistleblowers to file 

their cases in district court if the Merit Systems Protection Board 

(MSPB) has not acted within 180 days. Many whistleblower advocates believe that this is a needed check to ensure that our efforts 

to strengthen whistleblower protections are not gradually undone, 

as they have been in the past. On the other hand, management 

groups and the past Administration have expressed concerns that 

fear of having to defend their actions to a jury might dissuade FedVerDate Nov 24 2008 13:55 Mar 10, 2010 Jkt 051786 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 P:\DOCS\51786.TXT SAFFAIRS PsN: PAT
3 

1The prepared statement of Mr. De appears in the Appendix on page 31. 

eral managers from disciplining problem employees. Additionally, 

the past Administration was concerned that this would allow forum 

shopping; employees dissatisfied with the direction of their MSPB 

proceedings could move into district court after 180 days. 

I hope to address these two issues in some depth today and explore the effects different approaches would have on the protections 

for Federal employee whistleblowers, on Federal agencies, on congressional oversight, and on national security. 

Whistleblowers make government more efficient and effective by 

disclosing waste, fraud, abuse, and illegal activity. As a long-time 

proponent of improving government performance through sound 

management practices and accountability, I am confident we will 

succeed in enacting legislation this year that will enhance the system of whistleblower protections. 

I look forward to hearing from our witnesses today. I want to 

welcome our first panel to the Subcommittee today. Rajesh De, 

Deputy Assistant Attorney General in the Office of Legal Policy at 

the Department of Justice, is the sole witness on this panel. 

It is the custom of this Subcommittee to swear in all witnesses, 

and I ask you to please stand and raise your right hand. Do you 

swear that the testimony you are about to give this Subcommittee 

is the truth, the whole truth, and nothing but the truth, so help 

you, God? 

Mr. DE. I do. 

Senator AKAKA. Thank you very much. The record will note that 

the witness responded in the affirmative. 

Before we start, I want you to know that your full written statement will be part of the record. 

TESTIMONY OF RAJESH DE,1 DEPUTY ASSISTANT ATTORNEY 

GENERAL, OFFICE OF LEGAL POLICY, U.S. DEPARTMENT OF 

JUSTICE 

Mr. DE. Good afternoon, Chairman Akaka. Thank you, and 

thank you to Ranking Member Voinovich and the other Members 

of the Subcommittee for the opportunity to appear here today to 

discuss the Whistleblower Protection Enhancement Act. This Administration strongly supports protecting the rights of whistleblowers. We recognize that the best source of information about 

waste, fraud, and abuse in government is often a government employee committed to public integrity and willing to speak out. Empowering whistleblowers is a keystone of the President’s firm commitment to ensuring accountability in government. 

A government employee who speaks out about waste, fraud, or 

abuse performs a public service. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. Yet, too often whistleblowers are afraid to call attention to wrongdoing in their workplace. We need to empower all Federal employees as stewards of 

accountability. Put simply, accountability cannot be imposed solely 

from the top down. 

The bottom line is we must make sure that all Federal employees 

at all levels are able to do what it takes to eliminate waste, fraud, 

4 

and abuse. At the same time, we must preserve the President’s 

constitutional responsibility with regard to national security information and ensure that agency managers have effective tools to 

discipline employees who themselves may engage in waste, fraud, 

or abuse. 

We recognize that the Executive Branch and the Congress have 

long held differing views regarding the extent of the President’s 

constitutional authority over national security information. Putting 

aside these constitutional differences to the extent possible, our 

focus today is on achieving common ground and a workable solution toward our shared goal of increasing the protections available 

for Federal whistleblowers, including those who work in the national security realm. Creating a system that sets the right incentives for Federal employees and managers is not easy, as evidenced 

by multiple efforts to reform the system in each of the past three 

decades. This Administration believes that the time to reform the 

system has come again. 

I would like to discuss some key components of whistleblower reform as they relate to the legislation currently pending before the 

Senate—both with respect to civil service issues and national security issues. 

Turning first to the civil service issues, this bill would make a 

number of important changes to the ways in which whistleblower 

claims are adjudicated. For example, the bill would for the first 

time allow whistleblowers to obtain compensatory damages. That is 

a matter both of simple fairness and of practicality. A whistleblower who suffers retaliation should be made whole, plain and 

simple, and we agree with this measure. 

The bill would also make several important changes to the definition of ‘‘protected disclosure.’’ Under current law, a whistleblower 

is not protected if she informs her boss of wrongdoing, only to find 

out later that her boss was the one responsible for that wrongdoing. Thus, under current law, the employee would be protected 

for going to the Washington Post, but not to her own supervisor. 

Changing the law will encourage employees to tell their supervisors 

about problems in the first instance, which is usually the easiest 

way to resolve them. 

This Administration also supports modification of what is known 

as the ‘‘normal-duty disclosure rule.’’ Under that rule, an employee 

is not protected when he discloses wrongdoing as part of his normal 

job duties, unless that disclosure was made outside of the normal 

channels. This Administration believes, however, that normal-duty 

disclosures should be protected, particularly when public health 

and safety are at stake. 

Beyond the civil service arena, the Administration also believes 

that whistleblowers in the national security realm must have a 

safe and effective method of disclosing wrongdoing without fear of 

retaliation. We are pleased to see that this bill provides full whistleblower protection to TSA screeners, who literally stand at the 

front lines of our Nation’s homeland security system. They deserve 

the same whistleblower protections afforded to all other employees 

of the Department of Homeland Security (DHS). 

As this Subcommittee knows, the intelligence community is generally excluded from the Whistleblower Protection Act. Yet it is esVerDate Nov 24 2008 13:55 Mar 10, 2010 Jkt 051786 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 P:\DOCS\51786.TXT SAFFAIRS PsN: PAT
5 

sential that we root out waste, fraud, and abuse in the intelligence 

community just as elsewhere, and that intelligence community employees have safe channels to report such wrongdoing. 

With this goal in mind, we propose the creation of an Intelligence 

Community Whistleblower Protection Board (Board) within the Executive Branch. This Board would be comprised of senior presidentially appointed officials from key agencies within and outside 

of the intelligence community, including inspectors general, to provide a safe and effective means for intelligence community employees to obtain redress if they suffer retaliation for disclosing waste, 

fraud, or abuse. The Administration is currently in the process of 

developing a proposal for how this Board would operate in a manner that protects both intelligence community whistleblowers and 

the highly sensitive programs in which they work. We look forward 

to working with the Subcommittee to craft a scheme that satisfies 

our shared goals. 

We also believe that this Board could provide a better vehicle to 

review allegedly retaliatory security clearance revocations than the 

measures set forth in the pending legislation. We are aware that 

Congress has heard testimony in the past from individuals who 

have claimed that their security clearances have been revoked due 

to whistleblowing activities. This Administration has zero tolerance 

for such actions. We believe that an employee who alleges that her 

clearance was revoked for retaliatory purposes, for example, should 

be able to appeal that revocation outside of her own agency. 

Our proposed Board could recommend full relief to the aggrieved 

employee, including restoration of the clearance, and could ensure 

that Congress would be notified if that recommendation is not followed by the agency head. This mechanism would ensure that no 

agency will remove a security clearance as a way to retaliate 

against an employee who speaks truths that the agency does not 

want to hear. 

Finally, we believe that the proposed Board could provide an additional avenue for employees in the intelligence community to inform Congress of governmental wrongdoing. The Intelligence Community Whistleblower Protection Act of 1998 (ICWPA) currently 

provides a vehicle for the Intelligence Community (IC) employees 

to report matters of ‘‘urgent concern’’ to Congress. The ICWPA, 

however, affords the individual employee no avenue for review of 

a potential disclosure outside her specific agency. This Administration believes that no Federal agency should be able to hide its own 

wrongdoing. For this reason, we believe an IC employee should be 

able to appeal to the Board if the agency head declines to transmit 

information to Congress or declines to provide instructions to the 

employee on how to do so. 

Individual employees should also be entitled to alert appropriate 

Members of Congress to the fact that they have made such an appeal so that Congress is aware that a concern has been raised to 

our Board. 

This legislation is merely one step in this Administration’s plan 

to ensure accountability in government. We very much appreciate 

the efforts this Subcommittee has made over many years to devise 

whistleblower protections that work. We look forward to working 

6 

with you to help revise and improve this legislation to achieve our 

shared goals. 

Thank you, and I would be happy to take your questions. 

Senator AKAKA. Thank you very much, Mr. De, for your strong 

statement. The whistleblower community has expressed a strong 

desire for mechanisms to provide a check on the MSPB and the 

Federal Circuit should they again begin to undermine congressional intent for stronger whistleblower protections. Suspending 

the Federal Circuit’s exclusive review of whistleblower cases might 

be one mechanism for doing that. Additionally, the House bill 

would allow whistleblowers to file their cases in district court after 

the MSPB’s decision or if the MSPB has not decided the case within 180 days. 

Mr. De, is it appropriate to provide alternative court review to 

ensure that new whistleblower protections are not gradually 

chipped away under the existing review process, and if so, how 

should it be structured? 

Mr. DE. Thank you, Mr. Chairman. We agree in the first instance that there need to be multiple checks and balances or safety 

valves, as you have put it, to ensure that the MSPB or any individual agency is not the last word in terms of having recourse for 

Federal whistleblowers. 

Now, with respect to Federal court review, we think one way to 

accomplish that, as the Senate bill does, is to allow for multi-circuit 

review of MSPB decisions. Although we think there have been benefits to allowing centralized review in the Federal circuit, namely, 

a development of expertise and consistency in the law, we certainly 

recognize that there are a number of concerns particularly among 

those who are advocates for whistleblower rights and within the 

Administration that this has not been sufficient. Accordingly, we 

think multi-circuit review could allow for more expansive development of the law and serve as one of the safety valves that you have 

suggested. 

Thinking about this issue in a broader sense, we think that safety valves should be addressed in the context of the Federal Government more generally, whether it is the courts, the Congress or the 

Executive Branch. So, on the one hand, while all circuit review 

could be one way to accomplish this through the courts, we also 

think there are important ways both within the Executive Branch 

and within the Legislative Branch—incorporating Congress into 

this—that we could achieve this as well. 

For example, some of the proposed changes to the definition of 

‘‘protected disclosure’’ in both bills we think would actually allow 

for additional outlets for safety valves for whistleblowers. For example, by allowing whistleblowers to tell their supervisors about 

alleged wrongdoing or by allowing them to be protected for disclosures they make in the ordinary course, particularly for public 

health and safety, this will provide new avenues for whistleblowers 

to make sure that waste, fraud, and abuse is exposed. 

In the Board structure that we have proposed and are working 

through now, we think there is a vital role for Congress, particularly with respect to making sure that Congress is aware whenever 

an alleged concern is raised to the Board. So we would hope, working with your Subcommittee, to build in multiple mechanisms to 

7 

serve as another safety valve to bring in the Legislative Branch as 

well. So when there is a potential disclosure that an IC employee 

would like to make and raises it with the Board, we think it is very 

important that employee be able to notify Congress that they have 

raised such a concern with the Board. 

So speaking at the macro level, we think there are multiple ways 

to achieve this safety valve concept across the Federal Government. 

One way would be to do so to allow for multi-circuit review in the 

courts. 

Senator AKAKA. Thank you, Mr. De. I understand that the Administration has not yet determined its position on whistleblower 

access to U.S. district courts and jury trials outside of the national 

security context. Assume for the moment that a jury trial provision 

will be included in the final bill. Could you tell us what concerns 

the Administration would have with crafting this provision, and do 

you have any suggestions for how those concerns might be reduced 

or resolved? 

Mr. DE. Thank you, Mr. Chairman. Let me make a few preliminary remarks on the jury trial issue, and then I will address the 

specific question. 

We certainly recognize that the question of jury trials is an important one for advocates of whistleblower reform and for the Administration. Whereas the House bill, as you mentioned, provides 

for jury trials, at least for non-national security whistleblowers, the 

Senate bill allows for direct review, all-circuit review from the 

MSPB. And as you mentioned, we have yet, as an Administration, 

to come to a definitive view on where we stand on this issue, but 

I would like to note that we think there are valid policy concerns 

on both sides, and if I may make a few specific points in that regard. 

As you noted, in particular with respect to national security 

whistleblowers, we think district court review and jury trials is 

particularly inappropriate in that context given the sensitive nature of the information at issue and the potential for wide-ranging 

disclosure in district court. So putting that aside as a preliminary 

matter, the second point I would like to make is we fully recognize 

that jury trials are an essential part of our judicial system and a 

reflection of our democratic values, and are seen by many as an important remedial outlet for the airing of whistleblower allegations 

and for claims of reprisal. 

The key issue from our perspective is the striking of an appropriate balance between the extent to which the prospect of a jury 

trial serves as an effective tool for encouraging whistleblowers to 

come forward with allegations of waste, fraud, and abuse versus 

the extent to which it serves as a disincentive to agency managers 

who may be increasingly concerned about taking legitimate personnel actions against poorly performing employees, some of whom 

themselves may actually be engaged in waste, fraud, and abuse. So 

that is the balancing that we are thinking through now. 

Getting to your specific question about if a jury trial provision is 

included in a bill ultimately by Congress, there are a couple specific suggestions we would have, two specific concerns about juries 

in particular in the whistleblower context. 

8 

As you know, the way a whistleblower case generally proceeds is 

that once the claimant makes a prima facie case, the defendant 

must establish by clear and convincing evidence that the personnel 

action was taken for a legitimate purpose. We have concerns that 

juries may not be the most well-equipped venue to deal with the 

clear-and-convincing-evidence standard. As a general matter, juries 

either deal with the preponderance standard in the civil context or 

the beyond-a-reasonable-doubt standard in the criminal context. 

The second point I would like to make is putting whistleblower 

claims in front of a jury raises complex, although certainly not insurmountable, questions about what issues would be most appropriate for the jury versus the judge. In other words, what questions 

are questions of law versus questions of fact? 

Now, this is an issue that comes up in many areas of law, so it 

is not unique here, but one prime example might be what would 

constitute a gross mismanagement of funds. Now, I think we would 

probably all agree that figuring out what is a gross mismanagement, once you unpack it, has both questions of law and questions 

of facts built in. 

When we contemplate the idea of expanding the right to jury 

trial with the idea of all-circuits review, I think we need to take 

special care to ensure that we have a good sense of what would be 

appropriate questions for the jury versus the court to ensure that 

we do not have inconsistent development across multiple circuits. 

So with these thoughts in mind, the suggestions we would have 

are three-fold: 

One, if a right to a jury trial is included, we would suggest that 

it be limited to the non-national security context. 

Two, we would also suggest that Congress consider adopting a 

preponderance-of-the-evidence standard at least for jury trials and 

a burden-shifting framework similar to the Title VII context, rather 

than incorporating the clear-and-convincing standard that is used 

before the MSPB. 

And, third, we would suggest that Congress consider adopting 

damages caps analogous to the Title VII context to ensure that incentives are properly aligned and to alleviate concerns about runaway juries. 

So, to the extent a jury provision is included, those are some of 

our specific suggestions. 

Senator AKAKA. Thank you, Mr. De. Let me now call on Senator 

McCaskill for her questions. Senator McCaskill. 

TESTIMONY OF HON. CLAIRE MCCASKILL, A U.S. SENATOR 

FROM THE STATE OF MISSOURI 

Senator MCCASKILL. Thank you, Mr. Chairman, and I especially 

am appreciative today because I think technically I am not on this 

Subcommittee, but because this is an area in which I am very interested, the Subcommittee was kind enough to allow me to come 

and question. 

Let me cut to the chase. My concern is about jury trials, and I 

must tell you I am perplexed and confused that everyone would not 

want a whistleblower to be able to get a jury trial—every whistleblower on the face of the planet. The exceptions and the differences 

we have carved out to me make no sense. 

9 

For example, right now, if you are a contractor in the Department of Defense (DOD) and there is a whistleblower in your company, that whistleblower is entitled to a jury trial. Now, how weird 

is it that they could be sitting side by side with a Federal employee 

doing the exact same work, seeing the exact same problem, and one 

would be entitled to a jury trial because they worked for a private 

contractor and the other one would not because they worked for the 

Federal Government? 

Can you give me any rational basis on which to distinguish between these two people? 

Mr. DE. First, the Administration appreciates your support in 

particular for the provisions in the Defense Reauthorization Act 

last year and in the stimulus bill this year for extending jury trial 

rights to contractors, both in the defense community and for recipients of stimulus funds. 

I think the short answer is it is too soon to tell what the ramifications have been from those provisions. So, in other words, to the 

extent that there are concerns about the chilling effect of jury trials 

on legitimate agency managers, putting aside those that we think 

are doing bad things, we feel like we have not yet had an opportunity to determine from these limited extensions that have been 

put in place so far whether the balance that I discussed earlier is 

something that should be of concern. 

So I am not going to defend a distinction between Federal employees and contractors. We are trying to puzzle through the impact of the provisions that have been recently enacted and whether 

there is a valid concern that we have heard articulated and can understand in theory but is playing out under the provisions that you 

have helped enact recently. 

Senator MCCASKILL. Well, we know that 46 percent of the fraud 

that has been uncovered, according to the certified fraud examiners 

(CFEs) report, they sampled 1,000 cases in 2008; 46 percent of the 

fraud we found came from employees. That is half. The majority of 

all Federal fraud recoveries coming from whistleblower discoveries. 

I am trying to understand what is it about a whistleblower being 

able to go to trial that keeps management in an agency from getting rid of a bad employee. I do not understand the causal connection there. 

Mr. DE. I think there are a couple of factors that we have been 

trying to unpack and put forth for your consideration. One is a perception—and we are trying to uncover what is behind that—as to 

whether there is a fear of a greater litigation burden that agency 

managers will feel like they will get dragged into, both in terms of 

time and in terms of personal reputation. 

Now, that may or may not be a legitimate concern that we need 

to address, but that is something that has been expressed. So we 

are trying to assess the validity as to what is behind that. 

I think the second point is that, as a general matter, I think we 

all want to ensure that waste, fraud, and abuse is exposed, just as 

a first principle. How do we get there? And part of the way of getting there is ensuring that agency managers are not all bad. They 

can actually take effective action against subordinates who they believe are engaging in this abuse. 

10 

So that is the waste, fraud, and abuse we do not necessarily hear 

of because it is taken care of in a simple personnel action. But I 

say that because we want to make sure we do not discourage managers from being able to take—out of fear of being dragged into a 

district court action, fear of taking legitimate personnel actions. 

Senator MCCASKILL. So what you are saying is a manager has 

a bad employee, and they are worried that if they try to take action 

against this bad employee, this bad employee is all of a sudden 

going to claim whistleblower status and try to get into court because they are being disciplined in the workplace, they are going 

to claim that they have whistleblower status. Is that what they are 

alluding to? 

Mr. DE. I think there is partly a concern, given that in the whistleblower context the standard—the evidentiary standard is relatively low at the prima facie stage, and for good reason. We do not 

want whistleblowers to have a hard time of making their case. But 

I think the concern is given that low standard and the clear-andconvincing rebuttal standard, as Congress set up, that is particularly concerning in the context of a jury trial in Federal district 

court. 

Senator MCCASKILL. Well, I know that you are probably aware— 

I know you are a very smart guy, but, first of all, the cases are 

really hard to make. I wish I could stack documents here to show 

you all the successful whistleblower cases that have been brought. 

They are expensive. It is difficult to find a lawyer that will represent you. I really think the arguments against jury trials in this 

area are a pig in a poke, and I think we need to get to the business 

of respecting and being deferential to whistleblowers and giving 

them every right we can possibly give them, because they are doing 

the heavy lifting when it comes to waste, fraud, and abuse in this 

government right now, and we need to give them every tool they 

can possibly have to do it well. 

I thank you, Mr. Chairman, for giving me the opportunity to ask 

questions. 

Senator AKAKA. Thank you very much, Senator McCaskill, and 

thank you for being here. 

Senator Burris, your questions, please. 

OPENING STATEMENT OF SENATOR BURRIS 

Senator BURRIS. Thank you, Mr. Chairman. And to our witness, 

the whistleblower issues seem to be the hot topic, and, Mr. Chairman, you certainly raised the question. I am just trying to see if 

this Administration’s position is that the whistleblower should not 

have a jury trial if they are involved in one of the security agencies. Is that what you are saying? 

Mr. DE. Certainly with respect to the national security agencies, 

yes, we believe that jury trials would be particularly inappropriate 

in that context, yes, sir. 

Senator BURRIS. So what type of protection, other than the hearing officer or the administrative judge—is that the only person who 

would then hear the evidence that is presented by this whistleblower that is saying that something is afoot here? 

Mr. DE. Definitely not. We certainly agree that review should not 

stop within the individual employee’s agency. We agree that no inVerDate Nov 24 2008 13:55 Mar 10, 2010 Jkt 051786 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 P:\DOCS\51786.TXT SAFFAIRS PsN: PAT
11 

dividual agency should be the last word in terms of waste, fraud, 

and abuse—— 

Senator BURRIS. Pardon me, Mr. De. I am taking it beyond the 

agency. I am taking it to some arbitrating body. And you are saying it should be only the hearing officer or the administrator or the 

judge that would be hearing this whistleblower’s evidence against 

whatever they are alleging is taking place that is waste, fraud, or 

abuse. 

Mr. DE. We would propose that the appeal of the whistleblower’s 

claim, at least for the national security world, could be taken outside of their agency to a new Executive Branch Intelligence Community Whistleblower Protection Board. That Board would be comprised of senior Presidential appointees, both within and outside 

the intelligence community, and it would include inspectors general. 

Senator BURRIS. Yes, because I am looking at this, and in one of 

the testimonies of the persons who are coming on the second panel 

of witnesses, it called for reviewing past cases and trying to find 

ways to make amends for some of the unfortunate situations whistleblowers have endured in the past. 

What is the Administration’s stand on some retroactive review of 

these cases? 

Mr. DE. As an initial matter, we believe that this bill is just one 

piece of the Administration’s broader effort to ensure increased accountability in government, increased protections for whistleblowers, and increased transparency. Accordingly, we would hope 

that once this bill is—even as this bill is being moved through, we 

can start discussions on a range of fronts, whether it has to do with 

the MSPB, the Office of Special Counsel (OSC), or a range of other 

issues of interest to this community. 

With respect to the retroactive consideration of cases, that is certainly something that we think should be paid attention to, and we 

will take it under consideration. 

Senator BURRIS. And back to this special Board, you do not think 

that the MSPB would be sufficient to handle these security whistleblowers? 

Mr. DE. That is correct. We think it would be an inappropriate 

venue for these cases for a variety of reasons. One, we do not think 

as currently constituted the MSPB is well equipped to deal with 

the potentially large amount of sensitive information that could potentially arise in these cases. Second, with respect to the security 

clearances in particular, we believe that the granting of security 

clearances and issues around who should have access to sensitive 

national security information is a core Executive Branch Presidential prerogative, and for that reason we would suggest creating 

this new Board. If the Board is going to be dealing with security 

clearance revocation issues—— 

Senator BURRIS. What experience would this new Board have? 

Who is this new Board? 

Mr. DE. The Board would be comprised of folks who have experience in this area. We would love to work with the Subcommittee 

to determine the exact composition of the Board, but it would be 

independent, presidentially appointed nominees. 

12 

Senator BURRIS. That has to have a whole staff and a whole 

other bureaucracy established and hearing officers and more cost 

to the taxpayers. 

Mr. DE. We would hope that the initial adjudications and the 

record would be established during the agency process. This Board 

would take a de novo review of the process and the staffing expertise that happened at the agency level. 

Senator BURRIS. OK. The House version of this bill calls for protection for Federal contractors, and this would be a broad expansion of the existing law. Does the Administration have an opinion 

on providing these protections for Federal contractors? And do you 

believe that this protection would aid us in ensuring adequate oversight of government spending and operations? 

Mr. DE. Given the scope of the Federal activities performed by 

contractors and the amount of Federal dollars that go to Federal 

contractors, we certainly understand the imperative to extend 

whistleblower protections to Federal contractors. And as a general 

matter, yes, we do support that extension. 

I would note that this has only been done in piecemeal fashion 

so far. Under the DOD authorization act last year, such rights were 

extended to DOD contractors, and under the stimulus bill this year 

to recipients of Federal stimulus funds. We have not yet seen how 

that has played out, and to the extent that there are any tweaks 

necessary in the framework for the contractor side of things, that 

is yet to be determined. 

I would make two particular points as Congress considers whether to extend whistleblower rights to Federal contractors. In particular, as currently drafted, the House bill would require the appropriate agency inspectors general (IG) to conduct an investigation 

of every whistleblower allegation unless it were determined to be 

frivolous. 

Now, I think it is unclear to us to what extent this would pose 

an additional burden on our already stretched-thin resources 

among IG offices across the Executive Branch, and so that is one 

issue I would flag as Congress thinks about this. 

The second issue is that it is worthwhile to consider what limitations period would be appropriate to ensure that contractor whistleblower claims are both raised and resolved in a timely manner. 

And the third point I would make is the Recovery Act expressly 

covered State and local grantees of Federal funds, Federal stimulus 

funds. To the extent that a provision is included in this legislation 

that covers contractors and grantees, I think there are some unique 

State and local concerns that would be raised by extending Federal 

whistleblower protection coverage to all State and local jurisdictions that are recipients of Federal funds. It is not that it is an insurmountable problem; it is just something that I think needs to 

be thought through carefully. 

Senator BURRIS. Thank you, Mr. Chairman. 

Senator AKAKA. Thank you very much, Senator Burris. 

Mr. De, at the 2007 hearing before the House Federal Workforce 

Subcommittee, the MSPB witness at that time expressed concern 

that the House bill’s district court provision effectively would create 

a 180-day standard for the Board to adjudicate whistleblower appeals. 

13 

Do you think this time frame would create pressure on the 

MSPB to come to a decision in 180 days, perhaps not giving it 

enough time to fully consider a case? 

Mr. DE. Let me start by saying we are well aware of concerns 

that have been raised about the pace of adjudications moving 

through the MSPB. As you rightly point out, that needs to be considered, if such a provision is included, is what effect that would 

have on the MSPB as it is currently constituted if litigants could 

go directly to Federal court after 180 days and whether that would 

have a salutary effect or a negative effect on how the MSPB goes 

about its own business. 

I think it would be best to hear directly from the MSPB, and I 

know some of the witnesses today feel strongly about the MSPB’s 

structure and time frame. But I do think it is a valid concern at 

least to be considered as to what the impact would be on the MSPB 

as currently structured if a provision were allowed—if it were allowed for claimants to go to Federal district court until the MSPB 

had made a resolution and what a time frame would do to that decisionmaking cycle. 

Senator AKAKA. Mr. De, national security whistleblowers make 

some of the most important disclosures regarding the security and 

safety of this Nation. We will hear later from witnesses who feel 

strongly that the system to hear retaliation claims by FBI and 

other intelligence community whistleblowers does not work. 

Please tell us more about the Administration’s views on the need 

to improve protections for whistleblowers in the national security 

realm, both within and outside the intelligence community. 

Mr. DE. First, we could not agree more that waste, fraud, and 

abuse needs to be exposed in the intelligence community in the 

same way it needs to be exposed across the Federal Government. 

It is just as important there as it is elsewhere. In fact, it might be 

more important given the importance of those programs to our collective security. 

For precisely the reasons that you have articulated, Mr. Chairman, we believe—and the reasons we have proposed an Intelligence 

Community Whistleblower Protection Board is that we believe it is 

high time that IC whistleblowers had a mechanism to address reprisal concerns that is outside their own agency. That is how they 

are limited today. So for the first time, we think it is critical that 

there be an avenue to address their retaliation claims outside of 

their individual agency. 

This Board that we are proposing would be able to review de 

novo the record that was established within the agency and would 

bring a different perspective to these claims. It would be comprised 

of people from within and outside the intelligence community and 

would have membership that included inspectors general from 

across the government, folks who have experience dealing with 

whistleblower claims generally and understand the burdens in 

these types of cases. 

I think as a general matter we think it is important that any 

structure that is set up for national security whistleblowers in 

making disclosures is structured in such a way to create incentives 

that those disclosures are made through appropriate channels, to 

14 

either Executive or Legislative Branch officials who are properly 

cleared with the appropriate mechanisms in place. 

So I think, as a general matter, it is important to structure a system that reduces the incentive for national security employees to 

feel that their only recourse is to go to the press, then they have 

to risk the potential of retaliatory implications of those disclosures. 

Senator AKAKA. Thank you. Mr. De, as you noted, the Administration has proposed creating the Intelligence Community Whistleblower Protection Board for Federal employees who want to make 

classified disclosures to Congress. As I noted earlier, I understand 

that the Administration is committed to transparency, but we must 

ensure that this Board makes fair decisions and facilitates congressional oversight and transparency regardless of the Administration. 

Do you have thoughts on what safeguards should be built in to 

accomplish that? 

Mr. DE. Thank you, Mr. Chairman. Yes, I think there are a couple of things I would propose. One is that we think congressional 

notification is a key element of this, so we believe that any structure that is set up with this new Intelligence Community Whistleblower Protection Board should ensure that Congress is notified 

whenever an adverse decision is made against an employee who 

brings a claim of retaliation to the Board as an initial matter. 

Second, we think it is absolutely critical that an intelligence community employee who wishes to make a disclosure to Congress and 

wants to avail themselves of the Board in order to do so is able to 

alert appropriate Members of Congress that they have presented 

an issue to the Board so that Congress is aware that there is an 

issue pending and can take the appropriate measures in dealing 

with the Executive Branch to provide sufficient oversight. 

Third, we think there probably is room for considering what appellate rights from this Board would make sense. I think this is an 

issue that needs to be thought through carefully, particularly with 

respect to security clearance determinations, which we feel must 

stay within the Executive Branch, and disclosures of classified information. However, there are a range of whistleblower complaints 

that may come from intelligence community employees that may 

have nothing to do with sensitive information. And for those cases, 

we think there may be a role for some additional appellate review, 

and we would be happy to work with the Subcommittee to think 

through that. 

Senator AKAKA. Thank you very much for your responses. 

Senator Burris, do you have further questions? 

Senator BURRIS. I have no further questions for this witness. 

Senator AKAKA. Thank you. Mr. De, I want to say thank you so 

much for being here. As you know, we are trying to craft a bill that 

can be effective, and we are pleased to be working with you on this. 

Your responses will be helpful to us as we move forward in the legislative process. 

Mr. DE. Thank you, Mr. Chairman. 

Senator AKAKA. Thank you. 

Now I would like to call on the second panel to come forward. 

The second panel of witnesses includes William L. Bransford, who 

is the General Counsel of the Senior Executives Association. We 

also will have Danielle Brian, who is the Executive Director of the 

15 

1The prepared statement of Mr. Bransford appears in the Appendix on page 44. 

Project on Government Oversight; Thomas Devine, Legal Director 

of the Government Accountability Project; and Robert G. Vaughn, 

Professor of Law at the American University’s Washington College 

of Law. 

I want to welcome all of you to this hearing today. As you know, 

we have a custom here in the Subcommittee to swear in all witnesses. I would ask all of you to stand and raise your right hand. 

Do you swear that the testimony you are about to give this Subcommittee is the truth, the whole truth, and nothing but the truth, 

so help you, God? 

Mr. BRANSFORD. I do. 

Ms. BRIAN. I do. 

Mr. DEVINE. I do. 

Mr. VAUGHN. I do. 

Senator AKAKA. Thank you. Let the record note that the witnesses responded in the affirmative. 

Before we start, I want you to know that your full written statements will be made part of the record. I would also like to remind 

you to keep your remarks brief given the number of people testifying this afternoon. 

Mr. Bransford, will you please proceed with your statement? 

TESTIMONY OF WILLIAM L. BRANSFORD,1 GENERAL COUNSEL, 

SENIOR EXECUTIVES ASSOCIATION 

Mr. BRANSFORD. Thank you, Chairman Akaka and distinguished 

Members of the Subcommittee. I appreciate the opportunity to testify this afternoon about reforms on whistleblower protection. The 

Senior Executives Association (SEA) supports increased protections 

for Federal whistleblowers and is supportive of S. 372 and H.R. 

1507. But the association does object to the jury trial provisions 

contained in the House bill. We believe that whistleblower reform 

is long overdue, and we hope the differences between the Senate 

and the House legislation can be reconciled and that common-sense 

reform can occur. 

SEA would like to ensure that such legislation protects whistleblowers, holds managers accountable for their acts while not imposing burdens on supervisors who are trying to effectively manage 

their employees. 

The last time major reform of whistleblower protection laws occurred was in 1989, with the passage of the Whistleblower Protection Act. A series of decisions from the MSPB and Federal Circuit 

Court of Appeals narrowly interpreted that reform, resulting today 

in little, if any, protection for whistleblowers. 

Both S. 372 and H.R. 1507 greatly expand the definition of what 

constitutes a protected disclosure. In my opinion, most instances 

over the past decade where protection was not provided to a wouldbe whistleblower are related to interpretations by the Federal circuit. 

Senior executives hold a unique position in the government: They 

both oversee employees who are whistleblowers and may be whistleblowers themselves. Although SEA supports the reforms provided in the legislation, we do not support jury trials for those who 

16 

claim reprisal. Section 9 of H.R. 1507 would allow the right to a 

jury trial 180 days after an employee files a whistleblower claim 

with the MSPB or the OSC. In our opinion, jury trials will contribute to the perception of unacceptable risk for a Federal manager who is trying to deal with a problem employee. 

The reasoning behind a jury verdict when it occurs is not explained. A sensational jury trial resulting in a finding against the 

government because of the manager’s actions along with a substantial award of damages will create a fear among fellow managers of 

being subjected to a similar fate. This leads managers to be wary 

of making those tough decisions they have to make when dealing 

with problem employees. 

It is important to remember that the issue in a whistleblower 

case is often whether the employee claiming whistleblower status 

is a problem employee using whistleblower laws as an undeserved 

shield or, on the other hand, is a legitimate whistleblower who is 

experiencing an adverse action because of protected activity. Adding jury trials to the mix will give even the best manager pause 

before confronting an employee who has made a disclosure, regardless of how valid the manager’s case or how pure the manager’s 

motives. 

The jury trial provision in the House bill is particularly problematic because it contains no limit on damages and is vague about 

what issues go to the jury. Also, it calls for a right to a jury trial 

even if the special counsel or the MSPB promptly and appropriately dispose of a whistleblower claim. SEA believes that the 

MSPB should be given a chance to apply a broader, more appropriate law that protects whistleblowers. The Board’s record of efficient resolution will result in prompt and thorough decisions that 

can be reviewed by any appropriate circuit court of appeals in the 

country. 

To this end, SEA also supports other common-sense provisions in 

the bill such as providing transparency to a claim that security 

clearance revocation is based on whistleblower reprisal, providing 

managers with indemnification for attorneys’ fees they expend if 

the manager is found to have been just doing his or her job after 

having been accused of reprisal, and allowing combinations of disciplinary actions to be imposed on a guilty manager. 

SEA encourages the Subcommittee to move forward with the language contained in S. 372. In our view, whistleblower reform without jury trials will contribute to a government that works. 

On behalf of SEA, I thank you for your consideration of the critical enhancements to the Whistleblower Protection Act that will 

clarify the law for agencies, Federal managers, and whistleblowers. 

This bill is clearly a good government initiative that SEA would 

like to see move forward. SEA looks forward to working with you 

to ensure that this legislation creates a fair and transparent system for addressing whistleblower and executive concerns. 

Thank you, Mr. Chairman. 

Senator AKAKA. Thank you, Mr. Bransford. And now we will hear 

from Ms. Brian. 

17 

1The prepared statement of Ms. Brian appears in the Appendix on page 48. 

TESTIMONY OF DANIELLE BRIAN,1 EXECUTIVE DIRECTOR, 

PROJECT ON GOVERNMENT OVERSIGHT 

Ms. BRIAN. Thank you very much, Chairman Akaka, for inviting 

me to testify today and for your long leadership on whistleblower 

protections and protecting Federal employees. 

Project on Government Oversight (POGO) was founded by Pentagon whistleblowers concerned with wasteful spending and weapons that did not work. Over the years, our mission has evolved, but 

we remain devoted to our roots of protecting brave truth tellers inside the Federal Government. 

In general, POGO believes the House language does a much better job providing meaningful whistleblower protections than the 

Senate companion bill for two reasons: It provides real due process 

through access to jury trials, and it extends protections to our very 

important national security whistleblowers. My colleague, Tom 

Devine, is representing our coalition of organizations in supporting 

access to jury trials, so I will focus my testimony on why we need 

to protect national security whistleblowers. 

Many Federal employees working in the intelligence agencies 

were carved out from getting even the pathetic whistleblower protections that are accorded to other Federal employees, so that we 

now have a situation, as Senator McCaskill just pointed out, where 

contractors are protected even if, for example, the Federal employee who is overseeing them is not. There is currently a random 

patchwork of laws, which provides protections to national security 

contractors and some national security Federal employees, even intelligence ones, for example, at the Department of Energy (DOE) 

and the Nuclear Regulatory Commission (NRC), but not others. 

And these separate but equal systems set up within the CIA and 

FBI are not working. 

We entrust national security and intelligence Federal employees 

with our Nation’s most sensitive information. Why would we not 

also trust them to protect those secrets when working to correct 

problems? And I would like to point out that in the earlier testimony from the Justice Department, I did not hear any argument 

that explains why national security whistleblowers should not be 

given the same right to a jury trial that other Federal employees 

should have. 

It is because of national security whistleblowers that we have 

learned that, for example, Congress was being misled about A.Q. 

Khan’s nuclear proliferation scheme; the existence of the CIA’s secret prisons; our government’s use of warrantless wiretaps; TSA 

and FBI incompetence; and secret detentions at Guantanamo. Congress learned about all of these disclosures through the press, and 

all of these whistleblowers lost their jobs. By not providing real 

protections for national security whistleblowers, we are actually 

driving them to the press and encouraging leaks of classified information. That is a lose-lose situation. 

I want to be very clear. We are not asking to protect the disclosure of classified information to anyone who is not cleared to receive it. Whistleblower protections will not supersede existing rules 

18 

for handling classified information. We would support adding language to the bill to make this explicit, if necessary. 

It is in the self-interest of the Congress, perhaps most importantly, to encourage those who are aware of wrongdoing to make 

their disclosures to Congress. Formal briefings from agency heads 

have their place, but they do not truly inform the Congress of the 

real goings-on at an agency, and House Intelligence Chairman 

Silvestre Reyes just recently articulated this point in the letter he 

sent to every CIA employee where he pointed out that essentially 

the House Intelligence Committee had been focused on notification 

rather than real discussion. I would argue the most effective way 

to begin real oversight would be to encourage and protect national 

security whistleblowers coming to the Congress. 

By virtue of your being elected to office, you have both a right 

and a duty to hear the vast majority of our Nation’s secrets, and 

many of your staff have been similarly cleared. For particularly 

sensitive information, you as Members of Congress also have a 

right to demand to be read into those programs. POGO believes 

strongly that the Congress should not blindfold itself by adding 

new restrictions on your access to information. 

It is in this provision regarding disclosures to Congress that the 

Senate language is actually preferable to the House. We believe the 

House language is too confusing for a whistleblower in that it is 

very specific about which committee and which kind of information 

is protected, and the reality is that most whistleblowers do not 

know which Member of Congress sits on what committee and 

which committee has what jurisdiction over what agency. 

For example, I would also point out the best congressional oversight of the FBI has been conducted by Senator Grassley, and it 

has been out of his personal office. 

One problem that remains with the Senate provision is the use 

of the word ‘‘authorized’’ before ‘‘Members of Congress.’’ Who authorizes them? The Executive Branch? History has shown the Executive Branch has repeatedly and mistakenly asserted its power to 

do so. 

Let me briefly put faces on three national security whistleblowers. 

As a CIA intelligence officer and later in the Pentagon, Rich Barlow learned that top U.S. officials were allowing Pakistan to manufacture and possess nuclear weapons. He also discovered that U.S. 

officials were hiding these activities from Congress. Barlow objected and suggested to his supervisors that Congress should be 

made aware of the situation. Because Barlow merely suggested 

that Congress should know the truth, he was fired. Barlow is now 

destitute and living in a trailer. 

Federal Air Marshal Robert MacLean protested DHS plans to 

secretly neutralize budget shortfalls by canceling air marshal coverage on long-distance flights, even though there was a suicide terrorist hijacking alert. He protested up the chain of command to no 

avail. Ultimately, he made an unclassified disclosure to the press. 

Three years later, the agency fired him because they retroactively 

labeled information in his disclosure as ‘‘sensitive security information.’’ His case has been pending before the MSPB for 3 years without a hearing. He is unemployed. 

19 

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

57. 

When the Department of Justice (DOJ) lawyer, Thomas Tamm, 

became aware of the government’s use of warrantless wiretaps, he 

agonized over the legality of the program. He was rebuffed when 

he tried to tell a former colleague working on the Hill about his 

concerns. Ultimately, he alerted the New York Times, their story 

earning a Pulitzer. Congress constrained the program, but Mr. 

Tamm became a target of an FBI investigation, lost his job, and 

has racked up tens of thousands of dollars in legal fees. 

Passing strong whistleblower legislation is a significant step. It 

will not, however, be enough. We cannot forget these people whose 

careers have been shattered because this law has been so late in 

coming. 

I was very gratified, Senator Burris, that you raised this question to the Justice Department witness and that he expressed an 

open mind to reviewing cases such as Barlow, Maclean, and Tamm 

to see if there is some way of making them whole. That would be 

a message sent around the Federal Government that whistleblower 

protections are more than a campaign promise, they are a reality. 

Thank you. 

Senator AKAKA. Thank you very much, Ms. Brian. Now we will 

hear from Mr. Devine. 

TESTIMONY OF THOMAS DEVINE,1 LEGAL DIRECTOR, 

GOVERNMENT ACCOUNTABILITY PROJECT 

Mr. DEVINE. Thank you, Mr. Chairman. I am testifying today for 

the Government Accountability Project, but my views reflect those 

of the Make It Safe Coalition, a trans-ideological, non-partisan network of whose mission is supporting whistleblowers, those employees who use free speech rights to challenge abuses of power that 

betray the public trust. It used to be a little bit more lonely battle. 

A few years ago, there were only about 20 groups working on this. 

As of today, we have over 300 who have signed our coalition letters 

or sent their own letters of support. 

Just this morning, the Society for Conservation Biology sent you 

a letter on behalf of its 12,000 members, many of them Federal scientists, in support of H.R. 1507, the House version of this legislation. 

A few weeks ago, during a 24-hour time period, we got so much 

public support for the House version of the Whistleblower Protection Act that it took second place in the White House’s Open Government Dialogue for Transparency in Government. 

All of us are united behind one basic principle: That whistleblowers should be entitled to best practice free speech rights enforced by full access to court, which is what President Obama 

promised when he ran for office. 

I also want to thank you, Mr. Chairman, because we have to 

thank you for marathon leadership of this issue. I have very vivid 

memories of back in 1999, your aide, Nancy Langley, taking me to 

every Member of this Committee just to get them interested in the 

Whistleblower Protection Act—let alone fix it. And after 10 years, 

20 

with your continued leadership, we are going to get this job done, 

and we are going to do it right. 

We have learned a lot over the last 10 years, and today’s forum 

creates the necessary record to apply those final lessons learned. 

And the foremost lesson is that doing it right means a fair day in 

court. 

This is the fourth time Congress will have passed the same free 

speech rights. Why? The Achilles heel has always been inadequate 

due process. The Whistleblower Protection Act was largely passed 

because employees had only won four cases before the MSPB in the 

1980 whistleblower cases. Congress kept the same due process 

structure, but gave more guidance for the Board. Well, they ignored 

it, so in 1994, Congress amended the law, and again gave the 

Board more guidance. Well, guess what? In this millennium, since 

2000, we have only had three whistleblowers who have won decisions on the merits. 

Enough is enough. It is time to end the broken record syndrome, 

Mr. Chairman. 

One thing that has been very conspicuous by its absence from today’s hearing is a defense of the MSPB’s record. It is not surprising, though, because there is no credible defense. Its track 

record is 3 in 53 against whistleblowers for decisions on the merits 

since the millennium. And never has a whistleblower won a case 

in 30 years on the misconduct that matters most to the taxpayers, 

government breakdowns that have national implications: The Challenger disasters, Star Wars, Iran-Contra, domestic surveillance, 

food contamination, tens of thousands of people dying from unsafe 

prescription drugs; weapon of mass destruction; the warnings before 9/11. None of the whistleblowers who challenged those breakdowns could find justice at the MSPB. 

I want to spend the last portion of my time responding to some 

of the concerns that were raised this morning, and, in particular, 

that Federal managers would be too scared to fire whistleblowers 

if they had access to jury trials. And there actually is some common ground here. 

Mr. Bransford made this point by stating that, ‘‘Adding jury 

trials to the mix will give even the best manager pause before confronting an employee who has made a disclosure. . . .’’ Well, that 

means the law might finally start working. Federal managers 

might pause before they take actions to fire whistleblowers. Thank 

goodness. 

But why is it that Federal managers are the only ones too scared 

to do the right thing in whistleblower cases? We have had jury 

trials for State and local employees for over a century. It has been 

there for Equal Employment Opportunity (EEO) employment discrimination cases since 1991. It has been there for corporate workers in 13 precedents, including eight since 2002, five in the last 

Congress. What is it about these Federal managers that they are 

afraid to exercise authority when people challenge government misconduct? Maybe the solution, Mr. Chairman, is to have additional 

training for Federal managers as part of S. 372 so that they will 

exercise their authority when they need to. 

Finally, this fear has flunked the reality test. It is not about jury 

trials. It is about anything that strengthens whistleblower rights. 

21 

1The prepared statement of Mr. Vaughn appears in the Appendix on page 141. 

It was brought up as the reason to veto in 1988 when the Whistleblower Protection Act was first passed. It has never been proven 

in reality. The rates of adverse actions and performance-based actions, accountability measures, have stayed constant before and 

after whistleblower rights were strengthened, before and after 

State and local governments added jury trials. It is time for Federal managers to stop crying ‘‘Wolf.’’ And if they will not stop, it 

is time for Congress to stop listening to them. 

Senator AKAKA. Thank you very much, Mr. Devine. Now we will 

hear from Mr. Vaughn. Will you please proceed? 

TESTIMONY OF ROBERT G. VAUGHN,1 PROFESSOR OF LAW, 

WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY 

Mr. VAUGHN. Thank you. My name is Robert Vaughn, and I am 

a Professor of Law and A. Allen King Scholar, at the American 

University’s Washington College of Law. Mr. Chairman, I appreciate this opportunity to speak to this Subcommittee about this important piece of legislation. My testimony focuses on one of the differences between the House and Senate versions of the legislation: 

The alternative recourse provision, including a trial de novo in a 

Federal District Court with a right to trial by jury. 

I would like to say a few things about the right to trial by jury 

in these cases and use the remainder of my time to talk about the 

implications of the alternative recourse provision on the administrative process. 

The jury trial is an integral part of our democracy. From the 

time of the enactment of the Seventh Amendment, the jury has 

been seen as a coordinate branch of government checking the 

power of unelected judges, representing the community, providing 

insights into the weaknesses of the laws, creating political awareness in citizens, and providing an important ‘‘badge of citizenship.’’ 

Because whistleblowers help to guarantee legal and political accountability of unelected executive officials, the use of juries in 

these cases is particularly apt. Despite popular stereotypes to the 

contrary, several decades of social science research emphasized the 

competence and dedication of jurors. Jurors and judges usually 

agree, and disagreement cannot be ascribed to jury incompetence 

or to the unwillingness to follow the law. 

The research also shows that juries are as capable as legal experts in deciding complex factual cases. The common stereotypes 

about juries belied by the research are that jurors favor individuals 

against organizations, particularly corporations; that jurors find 

against defendants based on the defendant’s ability to pay; and 

that jurors are disabled by complex factual cases. These stereotypes 

are pertinent to the use of the jury trial and whistleblower cases 

because these cases pit often sympathetic individuals against the 

government with the resources to pay any damage. 

One scholar studying the literature regarding the treatment of 

corporate defendants concludes that jurors are largely supportive of 

the aims of American business, but hold them to a higher standard 

than individuals regarding the care needed to protect workers and 

consumers. Moreover, she found ‘‘several studies question the conVerDate Nov 24 2008 13:55 Mar 10, 2010 Jkt 051786 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 P:\DOCS\51786.TXT SAFFAIRS PsN: PAT
22 

ventional wisdom that the financial resources of corporate defendants encourage a deep pockets approach.’’ 

Assuming that whistleblower cases could be classified as complex 

cases, research shows that jurors are effective in such cases. They 

are diligent and skeptical in evaluating expert testimony. Jurors 

perform as ably as judges in complex factual cases. The general research regarding jury performance reassures us about the use of 

the jury in whistleblower cases. 

One expert calls a jury trial a ‘‘trial by jury and a judge.’’ Federal 

judges have ample powers to supervise juries and to correct and 

prevent mistakes. 

I also want to address the implications of the alternative recourse provision. In my written testimony, I present several arguments supporting the following propositions: 

First, use of the alternative recourse to Federal district courts 

will be the unusual not the common occurrence. 

Second, a rational decisionmaker would not rush the resolution 

of whistleblower claims before the Board to satisfy the 180-day 

deadline. 

Third, the effects of the alternative recourse provision on the 

Board does not counsel against the adoption of the provision. The 

alternative recourse provision will not waste administrative resources. Even if all whistleblowers who are likely to use the alternative recourse provision have had their claims fully adjudicated 

by the Board, the administrative resources devoted to these cases 

is a small percentage of the Board’s revenues, something on the 

magnitude of tenths of 1 percent. 

Four, the alternative recourse provision can benefit judicial and 

administrative adjudication The encouragement of settlement is 

one important benefit. 

I believe that both the alternative recourse provision contained 

in the House version and the right to jury trial that it provides is 

both an effective and a safe way of providing an alternative form 

to whistleblowers. Thank you. 

Senator AKAKA. Thank you very much, Mr. Vaughn, for your 

statement. 

Mr. Bransford, Mr. Devine responded to SEA’s concerns that giving whistleblowers access to district courts could contribute to a 

perception among Federal managers that it is too risky to discipline problem employees. Would you like an opportunity to respond to Mr. Devine’s comments? 

Mr. BRANSFORD. Yes, Mr. Chairman. I do appreciate having that 

opportunity. I think the life of a Federal manager is difficult and 

complex. Typically, a career Federal employee becomes a manager 

because they are the best technician, not necessarily because they 

are the best supervisor or the best person with people skills. Then 

they are put in the job with little or no training—in the government, it is hit and miss. Some agencies are better than others at 

providing that training, and I know we have worked with you, 

Chairman Akaka, to try to correct that. 

Then the manager trying to get the job done deals with a system 

where there is an EEO system, where EEO complaints are filed, 

and the employee can simply with impunity file a complaint of 

EEO, and if you talk to EEO professionals, they will tell you that 

23 

many employees who file them really are not complaining about 

discrimination. They are complaining about workplace issues. 

And then you have the whistleblower laws, and you have a complex set of circumstances. And all of these give the manager some 

reason to avoid dealing with a problem employee. And the complaint is often heard that managers let problems go and they do 

not deal with them; then the problems become big. And I think as 

you make this more complex and even more difficult, I think the 

uncertainty of a jury trial, the sensationalism of it will just add to 

that and make it more difficult for managers to deal with problem 

employees. I have seen it. I have seen also 10, 15 years ago much 

more enforcement of the whistleblower laws, much more activity by 

the MSPB, a lot of settlements that Mr. Devine does not talk about 

that used to occur. Cases just simply are not brought anymore, and 

they are ignored. Something needs to be done to reform the law, 

but I think jury trials goes too far. Thank you. 

Senator AKAKA. Thank you. Mr. Bransford, if a jury trial provision were included in a final bill, do you have any thoughts on possible ways to solve or mitigate the concerns of Federal managers? 

Mr. BRANSFORD. Senator, I was very intrigued by Mr. De’s approach, and I found most of what he was saying things that I 

would agree with, particularly the limit on compensatory damages 

along the lines of what is in an EEO case. But I have a real concern about changing the burden of proof to agencies from clear and 

convincing—in other words, when an agency can get out of whistleblower reprisal by proving by clear and convincing evidence that it 

would have taken the action anyway. I think reducing that standard is problematic because it is difficult enough for a whistleblower 

to prevail even with that fairly high standard, and that is one of 

the significant reforms in 1989 that, I believe, has actually made 

a difference. 

So I would be concerned about changing that. The other changes, 

though, I did find intriguing. 

Senator AKAKA. To follow up on this, Professor Vaughn’s and Mr. 

Devine’s testimony suggest that there likely would be a very small 

number of whistleblower cases brought before juries. Mr. Bransford, do you agree or disagree with that analysis, and how would 

this affect your concerns for Federal managers? 

Mr. BRANSFORD. Well, I think initially because of the existence 

of this new remedy, there would be a lot of cases. I think over time 

the cases may diminish because judges may use certain tools they 

have that Professor Vaughn talked about, such as motions for summary judgment and things like that. But I think that we have seen 

in the EEO system a lot of employees using that as a way of coming back against a manager, and I think that you would see a lot 

more whistleblowers, a lot more employees who would claim to be 

whistleblowers, who were in a problem employee situation, and I 

think they would use whatever system they had that was available. 

I do agree that it is expensive to go to Federal court, and that 

may keep down the numbers somewhat. 

Senator AKAKA. Mr. Devine, would you like to address why this 

issue is so important to whistleblower rights advocates, if the 

House’s district court provision likely would be used infrequently? 

24 

Mr. DEVINE. Thank you, Mr. Chairman. First, there is a question 

of credibility. This was the policy that the President campaigned 

on, and we have not heard a reason, a public policy basis to back 

off of that commitment. 

Second, it is a matter of fairness for Federal employees. They are 

about the only whistleblowers in the labor force who do not have 

access to juries to enforce their rights. And it is not sending a very 

good message to them that we are serious about whistleblower protection if we give them second-class due process compared to the 

rest of the labor force. So it is for credibility and legitimacy of the 

law. 

Third, it is for the public’s right to know. Mr. Bransford feels 

that this may be sensational. That means the public is enfranchised to make decisions about government actions that have an 

impact on them, and we think that is a real advantage of jury 

trials consistent with Professor Vaughn’s insights. 

The fourth is the people who do make a significant investment— 

which few can afford, but if they do, they will actually have a fighting chance to win when the trial is over with. They do not at the 

Merit Systems Protection Board right now. 

Fifth, there will be a much better chance for settlements. Managers will know, as Mr. Bransford is concerned, that they might actually lose when somebody files a lawsuit, and that means they will 

be negotiating in good faith, settlements will be more fair, and 

there will be a lot more of them to prevent litigation. That is what 

happened when Congress gave jury trials to DOE and NRC employees under the Energy Policy Act in 2005. Before that Act was 

passed, there were 191 cases in the 3 years before its passage. The 

3 years after its passage, there were 112. The litigation load went 

down because there was more of a fair fight when there is a conflict. But, most significant, it is not about quantity. It is about 

quality. It is about the types of cases. Most of the cases probably 

can be heard by the MSPB, and we want to also work with you to 

improve the administrative process. But the Board is not structured for the cases that are the most significant reason we have 

this law, those with national impact, those where there has been 

a serious governmental breakdown. That is out of the MSPB’s pay 

grade, quite frankly. They do not have the resources for it. 

We did one trial that went on for 5 weeks, and the poor administrative judge said, ‘‘Mr. Devine, this is like trying to get a snake 

to swallow an elephant. We are going to have to have a supplemental appropriation for the gap docket if you keep bringing cases 

like this.’’ 

Well, there has to be a home that is ready for the most significant government breakdowns, the laundry list of those where the 

Whistleblower Protection Act has been AWOL over the last 30 

years. 

Senator AKAKA. Thank you. Ms. Brian. 

Ms. BRIAN. Mr. Chairman, if I could add yet one more reason to 

Mr. Devine’s long list, which is we believe that having access ultimately to jury trials after the administrative process would actually improve the quality of the administrative process because they 

would know someone outside was actually reviewing their work. 

That is essentially how the court system works outside this adminVerDate Nov 24 2008 13:55 Mar 10, 2010 Jkt 051786 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 P:\DOCS\51786.TXT SAFFAIRS PsN: PAT
25 

istrative process, and we think, if the MSPB knew there was going 

to be genuine scrutiny of their work, that it would actually improve 

the work and would not necessarily require people to go on to jury 

trials at all. 

Mr. DEVINE. We think the Board’s track record will be more balanced if there is Federal court interpretations of the facts to help 

keep them more honest. 

Senator AKAKA. Thank you. Professor Vaughn, your written testimony provides a great deal of detail on how a jury trial provision 

would function in practice, which will be useful to this Subcommittee’s understanding of the issues involved. Your testimony concludes that few whistleblower cases likely would be filed in district 

court. I would like to give you an opportunity to walk us through 

your analysis and its implications. 

Mr. VAUGHN. Thank you. I think that there are several reasons. 

One is that the cost of essentially Federal litigation—when I was 

growing up, my father was a small-town attorney, and when I 

would complain about things, he would say, ‘‘Don’t make a Federal 

case out of it.’’ And what he meant by not making a Federal case 

out of it was that was an expensive, time-consuming activity. It is 

also one where we have some of the most important cases decided, 

which is what we also mean by making it a Federal case. 

I think the costs, time, and money of mounting a Federal case 

would limit the number of whistleblowers who would use the alternative recourse provision. I think that the Board’s practice, there 

are aspects of it. The majority of persons who appear before the 

Board are unrepresented or are represented by persons who are not 

attorneys. As we heard earlier, whistleblowers have trouble finding 

someone to represent them. Those pro se whistleblowers would, I 

think, particularly find it difficult to use the alternative. 

At the Board there is a right to a hearing. That is not necessarily 

the case in Federal court. There is interim relief at the Board. 

Many cases decided at the Board would be decided within the 120- 

day limit. About 50 percent of the cases are dismissed for timeliness or lack of jurisdiction. So the suggestion would be that a lot 

of the cases do not consume very much resources at the Board. 

Our experience with other statutes like Title VII, the SarbanesOxley Act, demonstrate that the majority of whistleblowers who 

would be able to leave the administrative process do not do so. And 

then there are problems also of delay in Federal court. The statistics I have in my testimony deal with the time from filing a civil 

action in Federal court regarding employment-based actions until 

there is a disposition at trial, and those times, depending on the 

kind of case that it is, run from over 1 year to over 2 years. So 

there would be—a whistleblower would face delay. 

As I mentioned in my written testimony, there are a number of 

dispositive motions that are available in Federal court. The motion 

for summary judgment, motion for judgment is a matter of law, the 

renewed motion for judgment is a matter of law which prevent the 

cases from being decided by a jury or reverse the jury’s determination. Summary judgment has become a very common motion in 

Federal court. The data regarding employment-based cases show 

that a very small percentage of those cases proceed to a jury trial, 

and few civil cases that are filed in Federal court actually reach 

26 

trial, the most recent statistics say less than 2 percent. And, finally, there will be a confined limit of the pool of potential whistleblowers to use this process. So I think that the number of jury 

trials that we would expect in Federal court would be fairly limited. 

If I could, I also wanted to mention and agree about the problem 

with the removing the clear and convincing evidence standard. I 

am not sure I agree with the conclusion that juries would find it 

difficult to apply the clear-and-convincing-evidence standard when 

they apply preponderance-of-the-evidence and the reasonable-belief 

standard. Juries, as a group, may not have as much experience 

with the standard as they do with a preponderance or reasonable 

belief, but the individual juries themselves do not have experience 

at all when they begin a case. And one of the functions of the court 

is to describe the character of the burdens of persuasion that are 

based—that rest in the case, and juries do a diligent job of following those. And just off the top of my head, in civil actions we 

have a number of tort actions, including defamation, where clear 

and convincing evidence is the standard that is used, that juries 

have to be instructed on. In almost all cases, contract and commercial cases that involve fraud or allegations of fraud, clear and convincing evidence is the standard that the court has to instruct the 

jury about. 

So I am, I think, more optimistic about juries being able to use 

the clear-and-convincing-evidence standard. 

Senator AKAKA. Professor Vaughn, thank you for walking us 

through that. As you know, the House bill would allow whistleblowers to file district court cases after the MSPB decision and get 

a de novo trial by jury. Are you aware of other statutes that allow 

a similar process, and what are your views on this process? 

Mr. VAUGHN. Title VII has that procedure. I think more recently 

the Consumer Product Safety Improvements Act of 2008, one of the 

sections of that provision, has a similar mechanism in it. There is 

probably an analogous provision in the American Recovery and Reinvestment Act of 2009. It is analogous because exhaustion in those 

cases are through the Office of Inspector General, not through administrative adjudication. But it has a similar provision in it. 

These are the ones I can think of, but these seem to me to be not 

an uncommon or unexpected provision in this kind of law. 

Senator AKAKA. Thank you. Ms. Brian, as you know, the DOJ 

has proposed a new Executive Branch Board to review classified 

disclosures to Congress. Could you address the areas of agreement 

or disagreement with the Administration on the appropriate methods and protections for whistleblowers in the intelligence agencies? 

Ms. BRIAN. Given the hybrid model that was testified to earlier, 

there was some new information that I thought was encouraging. 

There was an acknowledgment that the people on that Board 

would be presidentially appointed. We hope that also means Senate 

confirmed. The reason that is important to us is it would allow the 

Congress time to evaluate whether you think those people are appropriate and independent in making these kinds of judgments. 

I was also pleased to see that there was an acknowledgment that 

it is important that a whistleblower have the access to the Congress by notifying the Congress not after the end of any review, but 

27 

I am hoping what they meant was at the initiation of a disclosure 

to this Board so that if a Member of Congress was so inclined, that 

they could go to that Board and find out exactly what this disclosure is up front. 

One of the big concerns I have had is that this Board not become 

a way of preventing information from getting to the Congress. I 

want the Congress to be able to access it as it wishes. 

We think that there is some possible agreement on how to make 

this Board work. It is just really going to be very important to get 

a better sense of the details of exactly what the procedures would 

be for those who were making disclosures to it and the rights for 

those people. 

Senator AKAKA. Thank you. Mr. Devine. 

Mr. DEVINE. Mr. Chairman, we also think that it is very important that the Board’s jurisdiction be limited to cases where there 

is a demonstrable harm to national security. The idea that because 

you work at the FBI, or because you work at the National Security 

Agency (NSA), you are not entitled to normal due process, we really cannot accept that. Title V has a breakdown for employees 

whose jobs are principally for intelligence functions and those 

whose jobs are more generic public service. And if you are an employee at one of these agencies who is not doing sensitive work, 

there is really no excuse to put you at a lower level of due process. 

And then even if you are an employee who is doing sensitive work, 

there needs to be a demonstration that a public trial would harm 

national security. It might actually help national security by nipping serious problems in the bud with the scrutiny. 

Senator AKAKA. Professor Vaughn, in your view, would it be possible to conduct jury trials for intelligence community whistleblowers without jeopardizing security? 

Mr. VAUGHN. In many instances, I think that might be possible. 

I was struck by the testimony of the American Civil Liberties 

Union in the House on the House version of the bill where they 

talked about a number of the kinds of devices that would be available to a judge to limit the risks and the most serious cases where 

national security information might be involved. 

Mr. DEVINE. Mr. Chairman, they already do have jury trials all 

the time under the EEO laws. There is no second-class status for 

FBI or intelligence agency employees who are challenging individual misconduct which violates their personal rights. This only 

seems to be impermissible when they challenge government misconduct that violates the public interest. I do not think that is really a valid distinction. 

Ms. BRIAN. Mr. Chairman, if I could add one more point—— 

Senator AKAKA. Thank you, Mr. Devine. Ms. Brian. 

Ms. BRIAN [continuing]. Which is that GAO looked into this question and concluded that there should be no concerns about providing intelligence agency employees with full due process rights, 

including jury trials, given that the courts already have a long history of handling classified materials and knowing how to manage 

those problems. 

Senator AKAKA. Ms. Brian, with respect to national security, the 

House whistleblower bill would protect disclosures only if they are 

made to members of specific congressional committees. In your tesVerDate Nov 24 2008 13:55 Mar 10, 2010 Jkt 051786 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 P:\DOCS\51786.TXT SAFFAIRS PsN: PAT
28 

timony, you stated your preference for the Senate provision because 

it allows whistleblowers to make disclosures to legislative staff 

holding an appropriate security clearance. 

Can you discuss the challenges that whistleblowers experience 

when making disclosures of classified information to Members of 

Congress? 

Ms. BRIAN. Thank you very much, Chairman. I think that is a 

really central question as you consider this legislation. It is not 

only to properly cleared legislative staff, but it is also to any Member of Congress, regardless of committee. And the problem a whistleblower will face is they are very likely, as they decided to make 

a disclosure—which is in itself a very difficult decision to make. 

But once they have decided to make such a decision, the likely 

place they will turn is to their own Member of Congress because 

they are a constituent. It is very unlikely that Member of Congress 

sits on the committee of jurisdiction. 

The next problem is it is unlikely that the whistleblower has 

read the law that specifies that their disclosure is only protected 

if they go to a particular committee. And so it creates this unfair 

burden for that person who is in good faith going to either their 

Senator or Congressman or perhaps a Member who they have seen 

is already conducting oversight in that arena outside of the committee jurisdiction, and they want to go to them because they think 

they are a particularly effective Member of Congress. I believe that 

person handling classified information properly by going to the 

cleared staff or meeting with the Congressman himself should be 

protected. 

Senator AKAKA. Ms. Brian, under the WPA, agencies are required to inform their employees of their whistleblower rights. In 

response to this mandate, OSC created a voluntary program to assist agencies in making their employees aware of their rights. Currently, numerous agencies have completed the certifications or are 

participating in the program. However, you have indicated that 

many employees, particularly national security employees, are not 

educated on their whistleblower rights and how to report misconduct. 

What further actions must Congress and the agencies take to ensure that employees understand their whistleblower rights? 

Ms. BRIAN. I think to clarify my testimony, I was not suggesting 

that they are not aware of their rights. They just do not have adequate rights in the first place. And so what we need to do is give 

them those rights. That is what I would say. 

Mr. DEVINE. Mr. Chairman, the premise of your question was 

well taken; however, I am not sure what else Congress can do to 

legislate. It might be very helpful to have a special program for 

managers on rights and responsibilities under this legislation. But 

it was part of the 1994 amendments that agency heads have a duty 

to train, to inform their employees of their rights. It was part of 

the No Fear Act that they have to have detailed programs, and the 

agencies simply have not been complying. I do not think the problem is lack of congressional legislation. It has been lack of leadership within the Executive Branch. 

The prior Special Counsel program that you referenced was an 

ambitious and genuine one to get agencies up to speed and making 

29 

commitments to train their employees on their rights, and it ended 

with the last special counsel. 

The way you folks can really help is to push the Administration 

to hurry up and appoint a new special counsel and a new chair of 

the MSPB so the agencies that turn these laws into reality can 

start functioning properly. 

Senator AKAKA. Thank you so much. This has been a good discussion. 

Finally, I want to give each of you an opportunity to give closing 

remarks on your thoughts about what has been said or on what 

challenges lie ahead. Mr. Bransford, will you please begin. 

Mr. BRANSFORD. Thank you, Chairman Akaka. I believe, if my 

memory serves me correctly, Mr. Devine and I sat on a similar 

panel to this in November 2003 with similar legislation making 

similar positions. And here it is 2009, and there is still no reform. 

What I have seen in my law practice and what I have seen in 

representing the Senior Executives Association over the years is a 

gradual erosion, to the point where today there is no whistleblower 

protection. It is non-existent. Just this week, I had two people telephone me who were concerned that they are being retaliated 

against because they raised issues as part of their jobs, absolutely 

100 percent part of their jobs. And, of course, the current whistleblower law would not protect them, so we are dealing with helping 

these people through other means, perhaps EEO or whatever. So 

I hope that there is a prompt resolution and reconciliation. 

I also would say that on a regular basis I meet with hundreds 

of Federal managers every year. I do training for Federal managers. I focus on why is it that Federal managers do not deal with 

problem employees. And while fear of whistleblower prosecution 

does not come up—it does not come up because it does not happen. 

But it does come up in the context of EEO; it does come up in the 

context of the complexity of the Federal system, the absence of 

training and other such things. And I do know that Federal managers will sometimes have pause in taking action out of fear of uncertainty of the system. And my genuine concern is that jury trials 

will add to that. 

And I do believe the MSPB is capable of deciding these cases, of 

hearing them and issuing good decisions, assuming the law were 

changed, and especially allowing review by the other circuit courts 

of appeals to interpret those laws. 

So I hope the reform can take place and can take place this year, 

because I do believe it is needed. 

Senator AKAKA. Thank you very much, Mr. Bransford. Ms. Brian. 

Ms. BRIAN. Chairman Akaka, thank you for the opportunity. I 

have been working on these issues since the 1980s, and I think you 

probably have also. There has been longstanding concern on the 

part of the Congress to fix the problems that we have been discussing. I think the important change that we are seeing is this is 

the first Administration that I think is, first of all, not threatening 

to veto this legislation. We see a dramatic change in the level of 

communication with the community and hearing our concerns and 

engaging. And I think it is something that is going to finally mean 

that we will be seeing a Rose Garden ceremony where whistleblower protections will pass this year. 

30 

Senator AKAKA. Thank you. Mr. Devine. 

Mr. DEVINE. Mr. Chairman, this legislation has evolved and 

grown over the last 10 years as we have learned a lot of lessons. 

When it was first introduced, almost all the whistleblower laws 

were enforced through administrative, solely administrative remedies. Now the rule is to give people normal access to enforce these 

rights, as we have learned from track records. 

I think the point that we are at with the Whistleblower Protection Act is consolidating the lessons learned of the last 10 years 

and creating a truly modern law for Federal employees. The mandate does not seem to be in debate from any side at this point. It 

is just how to do it right. And that is merely a process of making 

sure that we have kept track of the best practices and that we incorporate them into this legislation so that four will be the charm. 

And the timing is very critical. 

We are in a period of unprecedented government spending, crises 

in terms of civil liberties, human rights abroad, as well as our economy that will require our government to be at its best. And that 

is why we put first-class accountability measures for whistleblowers for all the people who receive stimulus funds, and that is 

the reason why we cannot settle for second-class due process in a 

first-class good government law for the Federal workers. It is not 

too late, but we need to finish this before the stimulus spending 

gets fully underway, and we will be ready for whatever comes. 

Senator AKAKA. Thank you very much. Mr. Vaughn. 

Mr. VAUGHN. Mr. Chairman, my last word is it is always dangerous how you begin your career. As a 26-year-old young attorney, 

I began to work with Ralph Nader on a project on civil service reform, and it was his opinion that the most important part of that 

reform was the protection of whistleblowers. And over the course 

of my career, I have seen how whistleblowers disclose mismanagement and corruption. They secure openness in government, impose 

accountability, support the rule of law, protect the First Amendment. 

It is our obligation to many ethical and brave employees to protect them. The protections that we provide them are also the cost 

that we pay, the price that we pay for the important disclosures 

that they make that make our government accountable to the people, and I think that in doing that, we can take risks. With the 

House provision, I think that we are not taking risk that the provisions that are contained in the House provision that I have discussed are not novel or untried or dangerous. And I think they are 

part of that obligation and price we have to pay for all the benefits 

of whistleblower protection. 

Senator AKAKA. I want to thank all of our witnesses. You have 

helped us to really think through the key concerns for finalizing 

this bill. This issue is a priority for me, and I am optimistic that 

finally we will enact protections for whistleblowers this year. My 

colleagues in Congress and I will be working closely with the Administration and stakeholders on this. 

This hearing record will be open for one week for additional 

statements or questions from other Members of the Subcommittee. 

This hearing is adjourned. 

[Whereupon, at 4:36 p.m., the Subcomittee was adjourned.] 

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Æ 


51786.209