FAS | Government Secrecy | Congress ||| Index | Search | Join FAS

Congressional Record: June 7, 2001 (Senate)
Page S5969-S5985
      By Mr. AKAKA (for himself, Mr. Levin, and Mr. Grassley):
  S. 995. A bill to amend chapter 23 of title 5, United States Code, to 
clarify the disclosures of information protected from prohibited 
personnel practices, require a statement in non-disclosure policies, 
forms, and agreements that such policies, forms and agreements conform 
with certain disclosure protections, provide certain authority for the 
Special Counsel, and for other purposes; to the Committee on 
Governmental Affairs.
  Mr. AKAKA. Mr. President, today I am introducing amendments to the 
Whistleblower Protection Act, WPA, that will strengthen protections for 
federal employees who disclose waste, fraud, and abuse. I am proud to 
be joined by Senators Levin and Grassley, two of the Senate's leaders 
in protecting employees from retaliatory actions. The Senators from 
Michigan and Iowa were the primary sponsors of the original 1989 Act, 
as well as the 1994 amendments, both of which were passed unanimously 
by Congress.
  One of the basic obligations of public service is to disclose waste, 
fraud, abuse, and corruption to appropriate authorities. The WPA was 
intended to protect federal employees, those often closest to 
wrongdoing, from workplace retaliation as a result of making such 
disclosures. The right of federal employees to be free from workplace 
retaliation, however, has been diminished by a pattern of court rulings 
that have narrowly defined who qualifies as a whistleblower under the 
WPA, and what statements are considered protected disclosures. These 
rulings are inconsistent with congressional intent. There is little 
incentive for federal employees to come forward because doing so could 
put their careers at substantial risk.
  The bill we introduce today will restore congressional intent 
regarding who is entitled to relief under the WPA, and what disclosures 
are protected. In addition, it codifies certain anti-gag rules, extends 
independent litigating authority to the Office of Special Counsel, OSC, 
and ends the sole jurisdiction of the United States Court of Appeals 
for the Federal Circuit over whistleblower cases.
  In the Civil Service Reform Act of 1978, CSRA, Congress included 
statutory whistleblower rights for ``a'' disclosure evidencing a 
reasonable belief of specified misconduct, with certain listed 
statutory exceptions--classified or other information whose release was 
specifically barred by other statutes. Unexpectedly, the court and 
administrative agencies created several loopholes that limited employee 
protections. With the WPA, Congress closed these loopholes by changing 
protection of ``a'' disclosure to ``any'' disclosure meeting the law's 
standards. However, in both formal and informal interpretations of the 
Act, loopholes continued to proliferate.
  Congress strengthened its scope and protections by passing 1994 
amendments to the WPA. The Governmental Affairs Committee report on the 
1994 amendments refuted prior interpretations by the Federal Circuit 
and the Merit Systems Protection Board, MSPB, as well as subsequent 
enforcement action by the Office of Special Counsel that there were 
exceptions to ``any.'' The Committee report concluded, ``The plain 
language of the Whistleblower Protection Act extends to retaliation for 
`any disclosure,' regardless of the setting of the disclosure, the form 
of the disclosure, or the person to whom the disclosure is made.''
  Since the 1994 amendments, both OSC and MSPB generally have honored 
congressional boundaries. However, the Federal Circuit continues to 
disregard clear statutory language that the Act covers disclosures such 
as those made to supervisors, to possible wrongdoers, or as part of an 
employee's job duties.

[[Page S5971]]

  In order to protect the statute's foundation that ``any'' lawful 
disclosure that the employee or applicant reasonably believes is 
credible evidence of waste, fraud, abuse, or gross mismanagement is 
covered by the WPA, our bill codifies the repeated and unconditional 
statements of congressional intent and legislative history. It amends 
sections 2302(b)(8)(A) and 2302(b)(8)(B) of title 5, U.S.C., to cover 
any disclosure of information ``without restriction to time, place, 
form, motive or context, or prior disclosure made to any person by an 
employee or applicant, including a disclosure made in the ordinary 
course of an employee's duties that the employee or applicant 
reasonably believes is credible evidence of'' any violation of any law, 
rule, or regulation, or other misconduct specified in section 
  The bill also codifies an ``anti-gag'' provision that Congress has 
passed annually since 1988 as part of the appropriations process. It 
bans agencies from implementing or enforcing any nondisclosure policy, 
form or agreement that does not contain specified language preserving 
open government statutes such as the WPA, the Military Whistleblower 
Protection Act, and the Lloyd Lafollette Act, which prohibits 
discrimination against government employees who communicate with 
Congress. Gag orders imposed as a precondition for employment and 
resolution of disputes, as well as general agency policies barring 
employees from communicating directly with Congress or the public, are 
a prior restraint that not only has a severe chilling effect, but 
strikes at the heart of this body's ability to perform its oversight 
duties. Congress repeatedly has reaffirmed its intent that employees 
should not be forced to sign agreements that supercede an employee's 
rights under good government statutes. Moreover, Congress unanimously 
has supported the concept that federal employees should not be subject 
to prior restraint from disclosing wrongdoing nor suffer retaliation 
for speaking out.
  The measure also provides the Special Counsel with greater litigating 
authority for merit system principles that the office is responsible to 
protect. Under current law, the OSC plays a central role as public 
prosecutor in cases before the MSPB, but cannot choose to defend the 
merit system in court. Our legislation recognizes that providing the 
Special Counsel this authority to seek such review, in precedential 
cases, is crucial to ensuring the promotion of the public interests 
furthered by these statutes.
  Lastly, the bill would end the Federal Circuit's monopoly over 
whistleblower cases by allowing appeals to be filed in the Federal 
Circuit or the circuit in which the petitioner resides. This restores 
normal judicial review, and provides employees in states such as my 
home state of Hawaii, the option of a more convenient forum, rather 
than necessitating a 10,000 mile round trip from Hawaii to Washington, 
  This bill will begin the needed dialogue to guarantee that any 
disclosures within the boundaries of the statutory language are 
protected. As the Chairman of the Federal Services Subcommittee, I plan 
to hold a hearing on the Whistleblower Protection Act and the 
amendments we are proposing today.
  Protection of Federal whistleblowers is a bipartisan effort. 
Enactment of the original bill in 1989 and the 1994 amendments enjoyed 
unanimous bicameral support, and I am pleased that Representatives 
Morella and Gilman will introduce identical legislation in the House of 
Representatives in the near future. I also wish to note that our bill 
enjoys the strong support of the Government Accountability Project and 
the National Whistleblower Center, and I commend both of these 
organizations for their efforts in protecting the public interest and 
promoting government accountability by defending whistleblowers.
  I urge my colleagues to join in the effort to ensure that the 
congressional intent embodied in the Whistleblower Protection Act is 
codified and that the law is not weakened further. I ask unanimous 
consent that letters in support of our bill from the National 
Whistleblower Center and the Government Accountability Project and the 
text of the bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 995

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

                   BY FEDERAL EMPLOYEES.

       (a) Clarification of Disclosures Covered.--Section 
     2302(b)(8) of title 5, United States Code, is amended--
       (1) in subparagraph (A)--
       (A) by striking ``which the employee or applicant 
     reasonably believes evidences'' and inserting ``, without 
     restriction to time, place, form, motive, context, or prior 
     disclosure made to any person by an employee or applicant, 
     including a disclosure made in the ordinary course of an 
     employee's duties that the employee or applicant reasonably 
     believes is credible evidence of''; and
       (B) in clause (i), by striking ``a violation'' and 
     inserting ``any violation'';
       (2) in subparagraph (B)--
       (A) by striking ``which the employee or applicant 
     reasonably believes evidences'' and inserting ``, without 
     restriction to time, place, form, motive, context, or prior 
     disclosure made to any person by an employee or applicant, 
     including a disclosure made in the ordinary course of an 
     employee's duties to the Special Counsel, or to the Inspector 
     General of an agency or another employee designated by the 
     head of the agency to receive such disclosures, of 
     information that the employee or applicant reasonably 
     believes is credible evidence of''; and
       (B) in clause (i), by striking ``a violation'' and 
     inserting ``any violation''; and
       (3) by adding at the end the following:
       ``(C) a disclosure that--
       ``(i) is made by an employee or applicant of information 
     required by law or Executive order to be kept secret in the 
     interest of national defense or the conduct of foreign 
     affairs that the employee or applicant reasonably believes is 
     credible evidence of--

       ``(I) any violation of any law, rule, or regulation;
       ``(II) gross mismanagement, a gross waste of funds, an 
     abuse of authority, or a substantial and specific danger to 
     public health or safety; or
       ``(III) a false statement to Congress on an issue of 
     material fact; and

       ``(ii) is made to--

       ``(I) a member of a committee of Congress having a primary 
     responsibility for oversight of a department, agency, or 
     element of the Federal Government to which the disclosed 
     information relates;
       ``(II) any other Member of Congress who is authorized to 
     receive information of the type disclosed; or
       ``(III) an employee of the executive branch or Congress who 
     has the appropriate security clearance for access to the 
     information disclosed.''.

       (b) Covered Disclosures.--Section 2302(b) of title 5, 
     United States Code, is amended--
       (1) in the matter following paragraph (12), by striking 
     ``This subsection'' and inserting the following:
       ``This subsection''; and
       (2) by adding at the end the following:
       ``In this subsection, the term `disclosure' means a formal 
     or informal communication or transmission.''.
       (c) Nondisclosure Policies, Forms, and Agreements.--
       (1) Personnel action.--Section 2302(a)(2)(A) of title 5, 
     United States Code, is amended--
       (A) in clause (x), by striking ``and'' after the semicolon; 
       (B) by redesignating clause (xi) as clause (xii) and 
     inserting after clause (x) the following:
       ``(xi) the implementation or enforcement of any 
     nondisclosure policy, form, or agreement; and''.
       (2) Prohibited personnel practice.--Section 2302(b) of 
     title 5, United States Code, is amended--
       (A) in paragraph (11), by striking ``or'' at the end;
       (B) in paragraph (12), by striking the period and inserting 
     ``; or''; and
       (C) by inserting after paragraph (12) the following:
       ``(13) implement or enforce any nondisclosure policy, form, 
     or agreement, if such policy, form, or agreement does not 
     contain the following statement:
       `` `These provisions are consistent with and do not 
     supersede, conflict with, or otherwise alter the employee 
     obligations, rights, or liabilities created by Executive 
     Order No. 12958; section 7211 of title 5, United States Code 
     (governing disclosures to Congress); section 1034 of title 
     10, United States Code (governing disclosure to Congress by 
     members of the military); section 2302(b)(8) of title 5, 
     United States Code (governing disclosures of illegality, 
     waste, fraud, abuse, or public health or safety threats); the 
     Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 
     et seq.) (governing disclosures that could expose 
     confidential Government agents); and the statutes which 
     protect against disclosures that could compromise national 
     security, including sections 641, 793, 794, 798, and 952 of 
     title 18, United States Code, and section 4(b) of the 
     Subversive Activities Control Act of 1950 (50 U.S.C. 783(b)). 
     The definitions, requirements, obligations, rights, 
     sanctions, and liabilities created by such Executive order 
     and such statutory provisions are incorporated into this 
     agreement and are controlling.' ''.
       (d) Authority of Special Counsel Relating to Civil 

[[Page S5972]]

       (1) Representation of special counsel.--Section 1212 of 
     title 5, United States Code, is amended by adding at the end 
     the following:
       ``(h) Except as provided in section 518 of title 28, 
     relating to litigation before the Supreme Court, attorneys 
     designated by the Special Counsel may appear for the Special 
     Counsel and represent the Special Counsel in any civil action 
     brought in connection with section 2302(b)(8) or subchapter 
     III of chapter 73, or as otherwise authorized by law.''.
       (2) Judicial review of merit systems protection board 
     decisions.--Section 7703 of title 5, United States Code, is 
     amended by adding at the end the following:
       ``(e) The Special Counsel may obtain review of any final 
     order or decision of the Board by filing a petition for 
     judicial review in the United States Court of Appeals for the 
     Federal Circuit if the Special Counsel determines, in the 
     discretion of the Special Counsel, that the Board erred in 
     deciding a case arising under section 2302(b)(8) or 
     subchapter III of chapter 73 and that the Board's decision 
     will have a substantial impact on the enforcement of section 
     2302(b)(8) or subchapter III of chapter 73. If the Special 
     Counsel was not a party or did not intervene in a matter 
     before the Board, the Special Counsel may not petition for 
     review of a Board decision under this section unless the 
     Special Counsel first petitions the Board for reconsideration 
     of its decision, and such petition is denied. In addition to 
     the named respondent, the Board and all other parties to the 
     proceedings before the Board shall have the right to appear 
     in the proceedings before the Court of Appeals. The granting 
     of the petition for judicial review shall be at the 
     discretion of the Court of Appeals.''.
       (e) Judicial Review.--Section 7703 of title 5, United 
     States Code, is amended--
       (1) in the first sentence of subsection (b)(1) by inserting 
     before the period ``or the United States court of appeals for 
     the circuit in which the petitioner resides''; and
       (2) in subsection (d)--
       (A) in the first sentence by striking ``the United States 
     Court of Appeals for the Federal Circuit'' and inserting 
     ``any appellate court of competent jurisdiction as provided 
     under subsection (b)(2)''; and
       (B) in the third and fourth sentences by striking ``Court 
     of Appeals'' each place it appears and inserting ``court of 
     appeals'' in each such place.

                                National Whistleblower Center,

                                     Washington, DC, June 6, 2001.
     Hon. Daniel K. Akaka,
     Chairman, Subcommittee on International Security, 
         Proliferation, and Federal Services, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: The National Whistleblower Center is 
     pleased to announce its support for your bill to update and 
     strengthen the Whistleblower Protection Act (WPA). We would 
     like to commend your leadership in introducing this 
     significant and important legislation.
       The National Whistleblower Center was established because 
     of the critical role that credible whistleblowers play in the 
     effective functioning of our system of checks and balances. 
     Despite this critical role, federal whistleblowers have not 
     always enjoyed the same rights as other citizens. The Center 
     has therefore maintained an on-going vigilance and commitment 
     to preserving the integrity of the whistleblower process.
       In recent years, protections for whistleblowers have 
     eroded. This is mainly due to recent decisions in cases 
     before the U.S. Court of Appeals for the Federal Circuit, 
     which presently holds a monopoly on appeals under the WPA. 
     The Center is therefore enthusiastic in its support of the 
     provision in your bill that offers employees an additional 
     venue for appeals.
       Your bill would also codify so-called ``anti-gag'' language 
     that has been included each year for the past twelve years in 
     appropriations bills. The language has been needed to avoid 
     ambiguity in the government's efforts to prevent improper 
     disclosures of information. The ambiguity created a chilling 
     effect for employees who otherwise had the right to make 
     proper disclosures to Congress and elsewhere. This provision 
     would clear a major hurdle in protecting the rights of 
     employees to disclose instances of wrongdoing by government 
       The Center is concerned that, in the larger picture, 
     improvements in the whistleblower protection system require 
     more fundamental changes. For instance, there should be 
     tougher provisions to hold accountable those managers who 
     retaliate against whistleblowers. In addition, those who 
     bring their cases under laws other than the WPA have had much 
     greater success. This is in part because of adverse decisions 
     by the Federal Circuit, but it also suggests that the WPA is 
     not as whistleblower-friendly in practice as we hoped it 
     would be when we passed and amended the WPA. These are issues 
     to be addressed down the road, and the Center would be happy 
     to provide you the benefit of our experience in these 
       Nonetheless, your bill, if passed, would make an important 
     and necessary contribution toward improvements in the 
     protection of whistleblowers under the WPA. Again, we commend 
     your leadership in the introduction of this bill, and we look 
     forward to working with you and your co-sponsors during the 
     hearing process and throughout the legislative process.
                                                 Kris J. Kolesnik,
     Executive Director.

                            Government Accountability Project,

                                     Washington, DC, June 7, 2001.
     Hon. Daniel K. Akaka,
     Chairman, Subcommittee on International Security, 
         Proliferation and Federal Services, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: The Government Accountability Project 
     (GAP) commends your leadership in sponsoring legislation to 
     revive and strengthen the Whistleblower Protection Act (WPA). 
     This is the primary civil service law applying merit system 
     rights to good government safeguards. Your initiative is 
     indispensable to restore legitimacy for the law's unanimous 
     congressional mandate, both in 1989 when it was passed 
     originally and in 1994 when it was unanimously strengthened. 
     We similarly appreciate the partnership of original 
     cosponsors Senators Levin and Grassley. They remain visible 
     leaders from the pioneer campaigns that earned this 
     legislative mandate.
       GAP is a non-partisan, non-profit public interest 
     organization whose mission is supporting whistleblowers, 
     those employees who exercise free speech rights to challenge 
     betrayals of the public trust about which they learn on the 
     job. We advocated initial passage of whistleblower rights as 
     part of the Civil Service Reform Act of 1978, and have led 
     outside campaigns for passage of the WPA, as well as 
     analogous laws for military service members, state, municipal 
     and corporate employees in industries ranging from airlines 
     to nuclear energy. Last year GAP drafted a model 
     whistleblower law approved by the Organization of American 
     States (OAS) for implementation of the Inter-American 
     Convention Against Corruption.
       Unfortunately, your leadership is a necessity for the Act 
     to regain legitimacy. In 1994 on paper it reflected the state 
     of the art for whistleblower rights. Despite pride in helping 
     to win its passage, GAP now must warn those seeking help that 
     the law is more likely to undermine than reinforce their 
     rights. This is because the Federal Circuit Court of Appeals, 
     which has a monopoly on appellate judicial review, has 
     functionally erased basic statutory language and implicitly 
     added new provisions that threaten those seeking help. Your 
     legislation both solves the specific problems, and includes 
     structural reform to prevent their recurrence by restoring 
     normal judicial review. Congress had to approve both the 1989 
     and 1994 legislation to cancel previous instances of judicial 
     activism by this same court. This pattern must end for the 
     law again to become functional.
       Your bill also incorporates an appropriations rider 
     approved for the last 13 years, known as the ``anti-gag 
     statute.'' This provision requires agencies to notify 
     employees that any restrictions on disclosures do not 
     override their rights under the WPA, or other open government 
     laws such as the Lloyd Lafollette Act protecting 
     communications with Congress. The rider has worked. It has 
     proven effective and practical against agency attempts to 
     impose secrecy through orders or nondisclosure agreements 
     that cancel Congress and the public's right to know. It is 
     time to institutionalize this success story.
       Even if implemented as intended, the 1989 and 1994 
     legislation was a beginning, rather than a panacea. More work 
     is necessary to disrupt the deeply ingrained tradition of 
     harassing whistleblowers. Based on our experience, issues 
     such as the following must be addressed for the law to 
     fulfill its promise--closing the ``security clearance 
     loophole'' that permits merit system rights to be 
     circumvented through removing clearances that are a condition 
     for employment; providing meaningful relief for those who win 
     their cases; preventing retaliation by creating personal 
     accountability for those who violate the merit system; and 
     giving whistleblowers access to jury trials to enforce their 
       Your legislation is a reasonable and essential first step 
     on the road to recovery for whistleblower rights in the merit 
     system. It sends a clear message that congress was serious 
     when it passed this law in 1989 and strengthened it in 1994. 
     Congressional persistence is a prerequisite for those who 
     defend the public to have a decent chance of defending 
     themselves. We look forward to working with you and your co-
     sponsors in passing this legislation.
     Tom Devine,
       Legal Director.
     Doug Hartnett,
       National Security Director.

  Mr. LEVIN. Mr. President, I am pleased to join Senators Akaka and 
Grassley today in sponsoring amendments to the Whistleblower Protection 
Act that will strengthen the law protecting employees who blow the 
whistle on fraud, waste, and abuse in federal programs. I sponsored the 
Whistleblower Protection Act in 1989 which strengthened and clarified 
the intent of whistleblower rights in the merit system. But recent 
holdings by the United States Court of Appeals for the Federal Circuit 
have corrupted the intent of Congress, with the result that additional 
clarifying language is sorely needed. The Federal Circuit has seriously 
misinterpreted key provisions of the whistleblower law, and the bill we 
are introducing today is intended to correct those misinterpretations.
  Congress has long recognized the obligation we have to protect a 

[[Page S5973]]

employee when he or she discloses evidence of wrongdoing in a Federal 
program. If an employee reasonably believes that a fraud or 
mismanagement is occurring, and that employee has the courage and the 
sense of responsibility to make that fraud or mismanagement known, it 
is our duty to protect the employee from any reprisal. We want Federal 
employees to identify problems in our programs so we can fix them, and 
if they fear reprisal for doing so, then we are not only failing to 
protect the whistleblower, but we are also failing to protect the 
taxpayer. We need to encourage, not discourage, disclosures of fraud, 
waste and abuse.
  Today, however, the effect of the Federal Circuit decisions is to 
discourage the Federal employee whistleblower and overturn 
Congressional intent. The Federal Circuit has misinterpreted the plain 
language of the law on what constitutes protected disclosure under the 
Whistleblower Protection Act. Most notably, in the case of Lachance 
versus White, decided on May 14, 1999, the Federal Circuit imposed an 
unfounded and virtually unattainable standard on Federal employee 
whistleblowers in proving their cases. In that case, John E. White was 
an education specialist for the Air Force who spoke out against a new 
educational system that purported to mandate quality standards for 
schools contracting with the Air Force bases. White criticized the new 
system as counterproductive because it was too burdensome and seriously 
reduced the education opportunities available on base. After making 
these criticisms, local agency officials reassigned White, removing his 
duties and allegedly isolating him. However, after an independent 
management review supported White's concerns, the Air Force canceled 
the program White had criticized. White appealed the reassignment in 
1992 and the case has been in litigation ever since.
  The administrative judge initially dismissed White's case, finding 
that his disclosures were not protected by the Whistleblower Protection 
Act. The MSPB, however, reversed the administrative judge's decision 
and remanded it back to the administrative judge holding that since 
White disclosed information he reasonably believed evidenced gross 
mismanagement, this disclosure was protected under the Act. On remand, 
the administrative judge found that the Air Force had violated the 
Whistleblower Protection Act and ordered the Air Force to return White 
to his prior status; the MSPB affirmed the decision of the 
administrative judge. OPM petitioned the Federal Circuit for a review 
of the board's decision. The Federal Circuit reversed the MSPB's 
decision, holding that there was not adequate evidence to support a 
violation under the Whistleblower Protection Act. The Federal Circuit 
held that the evidence that White was a specialist on the subject at 
issue and aware of the alleged improper activities and that his belief 
was shared by other employees was not sufficient to meet the 
``reasonable belief'' test in the law. The court held that ``the board 
must look for evidence that it was reasonable to believe that the 
disclosures revealed misbehavior [by the Air Force] . . .'' The court 
went on to say:

       In this case, review of the Air Force's policy and 
     implementation via the QES standards might well show them to 
     be entirely appropriate, even if not the best option. Indeed, 
     this review would start out with a ``presumption that public 
     officers perform their duties correctly, fairly, in good 
     faith, and in accordance with the law and governing 
     regulations. . . . And this presumption stands unless there 
     is `irrefragable proof to the contrary'.''

  The fact that the Federal Circuit remanded the case to the MSPB to 
have the MSPB reconsider whether it was reasonable to believe that what 
the Air Force did in this case involved gross mismanagement was 
appropriate. But, the Federal Circuit went on to impose a clearly 
erroneous and excessive standard on the employee in proving 
``reasonable belief,'' requiring ``irrefragable'' proof that there was 
gross mismanagement. Irrefragable means ``undeniable, incontestable, 
incontrovertible, incapable of being overthrown.'' How can a Federal 
employee meet a standard of ``irrefragable'' in proving gross 
mismanagement? Moreover, there is nothing in the law or the legislative 
history that even suggests such a standard with respect to the 
Whistleblower Protection Act. The intent of the law is not for the 
employee to act as an investigator and compile evidence to have 
``irrefragable'' proof that there is fraud, waste or abuse. The 
employee, under the clear language of the statue, need only have ``a 
reasonable belief'' that there is fraud, waste or abuse occurring 
before making a protected disclosure. This bill will clarify the law so 
this misinterpretation will not happen again.
  The bill addresses a number of other important issues as well. For 
example, the bill adds a provision to the Whistleblower Protection Act 
that provides specific protection to a whistleblower who discloses 
evidence of fraud, waste, and abuse involving classified information if 
that disclosure is made to the appropriate committee of Congress or 
Federal executive branch employee authorized to receive the classified 
  In closing, I want to thank Senator Akaka for his leadership in this 
  Mr. GRASSLEY. Mr. President, I rise with determination to join 
Senators Akaka and Levin introducing legislation on an issue that 
should concern us all: the integrity of the Whistleblower Protection 
Act of 1989. I enclose editorials and op-ed commentaries, ranging from 
the New York Times to the Washington Times highlighting the needs for 
this law to be reborn so that it achieves its potential for public 
service. Unfortunately, it has become a Trojan horse that may well be 
creating more reprisal victims than it protects. The impact for 
taxpayers could be to increase silent observers who passively conceal 
fraud, waste and abuse. That is unacceptable.
  I was proud to be an original co-sponsor of this law when it was 
passed unanimously by Congress in 1989, and when it was unanimously 
strengthened in 1994. Both were largely passed to overturn a series of 
hostile decisions by administrative agencies and an activist court with 
a monopoly on the statute's judicial review, the Federal Circuit Court 
of Appeals. The administrative agencies, the U.S. Office of Special 
Counsel and the Merit Systems Protection Board, appear to have gotten 
the point. They have been operating largely within statutory 
boundaries. Despite the repeated unanimous congressional mandates, 
however, the Federal Circuit has stepped up its attacks on the 
Whistleblower Protection Act. Enough is enough.
  The legislation we are introducing today has four cornerstones, 
closing loopholes in the scope of WPA protection; restoring a realistic 
test for when reprisal protection is warranted; restoring the normal 
structure for judicial review; and codifying the anti-gag statute 
passed as an appropriations rider for the last 13 years. Each is 
summarized below.
  As part of 1994 amendments unanimously passed by Congress to 
strengthen the Act, the legislative history emphasized, ``[I]t also is 
not possible to further clarify the clear language in section 
2302(b)(8) that protection for `any' whistleblowing disclosure truly 
means `any.' A protected disclosure may be made as part of an 
employee's job duties, may concern policy or individual misconduct, and 
may be oral or written and to any audience inside or outside the 
agency, without restriction to time, place, motive or content.''
  Somehow the Federal Circuit did not hear our unanimous voice. Without 
commenting on numerous committee reports and floor statements 
emphasizing this cornerstone, it has been creating new loopholes at an 
accelerated pace. Its precedents have shrunk the scope of protected 
whistleblowing to exclude disclosures made as part of an employee's job 
duties, to a co-worker, boss, others up the chain of command, or even 
the suspected wrongdoer to check facts. Under these judicial loopholes, 
the law does not cover agency misconduct with the largest impact, 
policies that institutionalize illegality or waste and mismanagement. 
Last December it renewed a pre-WPA loophole that Congress has 
specifically outlawed. The court decreed that the law only covers the 
first person to place evidence of given misconduct on the record, 
excluding those who challenge long term abuses, witnesses whose 
testimony supports pioneer whistleblowers, or anyone who is not the 
Christopher Columbus for any given scandal.

  There is no legal basis for any of these loopholes. None of these 
loopholes came from Congress. In fact, all

[[Page S5974]]

contradict express congressional intent. Since 1978, the point of 
Federal whistleblower protection has been to give agencies the first 
crack at cleaning their own houses. These loopholes force them to 
either remain silent, sacrifice their rights, or go behind the back of 
institutions and individuals if they want to preserve their rights when 
challenging perceived misconduct. They proceed at their own risk if 
they exercise their professional expertise to challenge problems on the 
job. They can only challenge anecdotal misconduct on a personal level, 
rather than institutionalized.
  Our legislation addresses the problem by codifying the congressional 
``no exceptions'' definition for lawful, significant disclosures. The 
legislation also reaffirms the right of whistleblowers to disclose 
classified information about wrongdoing to Congress. National security 
secrecy must not cancel Congress' right to know about betrayals of the 
public trust.
  In a 1999 decision, the Federal Circuit functionally overturned the 
standard by which whistleblowers demonstrate their disclosures deserve 
protection: lawful disclosures which evidence a ``reasonable belief'' 
of specific misconduct. Congress did not change this standard in 1989 
or 1994 for a simple reason: it has worked by setting a fair balance to 
protect responsible exercises of free speech. Ultimate proof of 
misconduct has never been a prerequisite for protection. Summarized in 
lay terms, ``reasonable belief'' has meant that if information would be 
accepted for the record of related litigation, government 
investigations or enforcement actions, it is illegal to fire the 
employee who bears witness by contributing that evidence.
  That realistic test no longer exists. In Lachance v. White, the 
Federal Circuit overturned the victory of an Air Force education 
specialist challenging a pork barrel program whose concerns were so 
valid that after an independent management review, the Air Force agreed 
and canceled the program. Unfortunately, local base officials held a 
grudge, reassigning Mr. White and stripping him of his duties. He 
appealed under the WPA and won before the Merit Systems Protection 
Board. The Federal Circuit, however, held that he did not demonstrated 
a ``reasonable belief'' and sent the case back. That raises questions 
on its face, since agencies seldom agree with whistleblowers.
  The court accomplished this result disingenuously. While endorsing 
the existing standard, it added another hurdle. It held that to have a 
reasonable belief, an employee must overcome the presumption that the 
government acts fairly, lawfully, properly and in good faith. They must 
do so by ``irrefragable'' proof. The dictionary defines 
``irrefragable'' as ``uncontestable, incontrovertible, undeniable, or 
incapable of being overthrown.'' The bottom line is that, in the 
absence of a confession, there is no such thing as a reasonable belief. 
If there is no disagreement about alleged misconduct, there is no need 
for whistleblowers.

  The court even added a routine threat for employees asserting their 
rights. Although Congress has repeatedly warned that motives are 
irrelevant to assess protected speech, the court ordered the MSPB to 
conduct factfinding for anyone filing a whistleblower reprisal claim, 
to check if the employee had a conflict of interest for disclosing 
alleged misconduct in the first place. This means that while 
whistleblowers have almost no chance of prevailing, they are guaranteed 
to be placed under investigation for challenging harassment. 
Ironically, in 1994 Congress outlawed retaliatory investigations, which 
have now been institutionalized by the court.
  In the aftermath, whistleblower support groups like the Government 
Accountability Project must warn those seeking guidance that if they 
assert rights, they will be placed under investigation and any eventual 
legal ruling on the merits inevitably will conclude they deserve 
punishment and formally endorse the retaliation they suffered. The 
White case is a decisive reason for those who witness fraud, waste and 
abuse to remain silent, instead of speaking out. Profiles in Courage 
are the exception, rather than the rule. Our legislation ends the 
presumptions of ``irrefragable proof'' and protects any reasonable 
belief as demonstrated by credible evidence.
  This is the third time Congress has had to reenact a unanimous good 
government mandate thrown out by the Federal Circuit. This is also 
three strikes for the Federal Circuit's monopoly authority to 
interpret, and repeatedly veto, this law. It is time to end the broken 
record syndrome.
  The Civil Service Reform Act of 1978 contained normal ``all 
circuits'' court of appeals judicial review under the Administrative 
Procedures Act. This was the same structure as all other employment 
anti-reprisal or anti-discrimination statutes. In 1982, the Federal 
Circuit was created, with a unique monopoly on appellate review of 
civil service, patent and copyright, and International Trade Commission 
decisions. Unfortunately, this experiment has failed. Our amendment 
restores the normal process of balanced review. Hopefully, that will 
restore normal respect for the legislative process.
  In 1988, I was proud to introduce an appropriations rider to the 
Treasury, Postal and General Government bill which has been referred to 
as the ``anti-gag statute.'' It has survived constitutional challenge 
through the Supreme Court, and been unanimously approved in each of the 
last 13 appropriations bills. This provision makes it illegal to 
enforce agency nondisclosure policies or agreements unless there is a 
specific, express addendum informing employees that the disclosure 
restrictions do not override their right to communicate with Congress 
under the Lloyd Lafollette Act or other good government laws such as 
the Whistleblower Protection Act.
  The provision originally was in response to a new, open-ended concept 
called ``classifiable.'' That term was defined as any information that 
``could or should have been classified,'' or ``virtually anything,'' 
even if it were not market secret. This effectively ended anonymous 
whistleblowing disclosures, imposed blanket prior restraint, and 
legalized after-the-fact classification as a device to cover up fraud 
or misconduct. Since employees no longer were entitled to prior notice 
that information was secret, the only way they could act safely was a 
prior inquiry to the agency whether information was classified. That 
was a neat structure to lock in secrecy when its only purpose is to 
thwart congressional or public oversight. I am proud that the anti-gag 
statute has worked, and the strange concept of ``classifiable'' is 
history. After 13 years and over 6,000 individual congressional votes 
without dissent, it is time to institutionalize this merit system 
  It should be beyond debate that the price of liberty is eternal 
vigilance. I want to recognize the efforts of those whose stamina 
defending freedom of speech has applied that principle in practice. 
Senator Levin has been my Senate partner from the beginning of 
legislative initiatives on this issue. His leadership has proved that 
whistleblower protection is not an issue reserved for conservatives or 
liberals, Democrats or Republicans. Like the First Amendment, 
whistleblower protection is a cornerstone right for Americans.
  Nongovernmental organizations have made significant contributions as 
well. The Government Accountability Project, a non-profit, non-partisan 
whistleblower support group, has been a relentless watchdog of merit 
system whistleblower rights since they were created by statute in 1978. 
Thanks to GAP, my staff has not been taken by surprise as judicial 
activism threatened this good government law. Kris Kolesnick, formerly 
with my staff and now with the National Whistleblower Center, worked on 
the original legislation while on my staff and continues to work in 
partnership with me.
  In the decade since Congress unanimously passed this law, it has been 
a Taxpayer Protection Act. My office has been privileged to work with 
public servants who exposed indefensible waste and mismanagement at the 
Pentagon, as well as indefensible abuses of power at the Department of 
Justice. I keep learning that whistleblowers proceed at their own risk 
when defending the public. In case after case I have seen the proof of 
Admiral Rickover's insight that unlike God, the bureaucracy does not 
forgive. Nor does it forget.
  It also has been confirmed repeatedly that whistleblowers must prove 
their commitment to stamina and persistence in order to make a 

[[Page S5975]]

against ingrained fraud, waste and abuse. There should be no question 
about Congress', or this Senator's commitment. Congress was serious 
when it passed the Whistleblower Protection Act unanimously. It is not 
mere window dressing. As long as whistleblowers are defending the 
public, we must defend credible free speech rights for genuine 
whistleblowers. Those who have something to hide, the champions of 
secrecy, cannot outlast or defeat the right to know both for Congress, 
law enforcement agencies and the taxpayers. Every time judicial or 
bureaucratic activists attempt to kill this law, we must revive it in 
stronger terms. Congress can not watch passively as this law is gutted, 
or tolerate gaping holes in the shield protecting public servants. The 
taxpayers are on the other side of the shield, with the whistleblowers.
  Mr. President, I ask unanimous consent that the October 13, 1999 
article from The Washington Times and the May 1, 1999 article from The 
New York Times be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Times, Oct. 13, 1999]

                         Silent Whistleblowers

                  worker protections are under attack

               (By Tom Devine and Martin Edwin Anderson)

       Judicial activism is always suspect, but when it overturns 
     laws protecting the public's interest in order to shield 
     bureaucratic secrecy, it makes a mockery of the legal system 
       The issue has become a front-burner in Congress as it takes 
     a new look at a significant good-government law that twice 
     won unanimous passage. In the aftermath of extremist judicial 
     activism that functionally overturned the statute, a crucial 
     campaign has been launched this week on the Hill to enlist 
     members as friends of the court in a brief seeking Supreme 
     Court review of the circuit court decision.
       At issue is a ruling made final in July by the Federal 
     Circuit Court of Appeals, which disingenuously overturned two 
     laws unanimously passed by Congress--the code of Ethics for 
     Government Service and the Whistleblower Protection Act. The 
     decision, White vs. Lachance, was the handiwork of a chief 
     judge whose previous job involved swinging the ax against 
     federal workers who dared to commit the truth.
       At issue is the fate of Air Force whistleblower John White, 
     who lost his job in 1991 after successfully challenging a 
     pork-barrel ``quality management'' training program as 
     mismanagement. Government and private sector experts 
     concurred with Mr. White, and universities affected by it 
     began heading for the door. Even the Air Force agreed, 
     canceling it after outside experts agreed with Mr. White.
       Thrice the Merit Systems Protection Board (MSPB), an 
     independent federal agency, ruled in Mr. White's favor. Each 
     time the Justice Department appealed on technicalities. Now 
     the federal court went further than asked while speculating 
     that Mr. White's disclosures may not have evidenced a 
     ``reasonable belief''--the test for disclosures to be 
       The court camouflaged its death-knell for the whistleblower 
     law in banal legalese, defining ``reasonable belief'' as, 
     ``Could a disinterested observer with knowledge of the 
     essential facts reasonably conclude gross mismanagement?'' 
     But the bland explanatory guidance exposed a feudalistic duty 
     of loyalty to shield misconduct by bureaucratic bosses: 
     ``Policymakers have every right to expect loyal, professional 
     service from subordinates.'' So much for the Code of Ethics 
     for Government Service, which establishes the fundamental 
     duty of federal employees to ``put loyalty to the highest 
     moral principles and to country above loyalty to persons, 
     party or Government department.''
       The court also disarmed the whistleblower law, claiming it 
     ``is not a weapon in arguments over policy.'' Yet when it 
     unanimously approved 1994 amendments, Congress explicitly 
     instructed, ``A protected disclosure may concern policy or 
     individual misconduct.''
       Worse was a court-ordered ``review'' as a prerequisite to 
     find a ``reasonable belief'' of wrongdoing. It must begin 
     with the ``presumption that public officers perform their 
     duties correctly, fairly, in good faith and in accordance 
     with the law. . . . [T]his presumption stands unless there is 
     `irrefragable' proof to the contrary.''
       ``Irrefragable,'' according to Webster's Dictionary, means 
     ``incapable of being overthrown, incontestable, undeniable, 
     incontrovertible.'' The court's decision kills freedom of 
     speech if there are two rational sides to a dispute--leaving 
     it easier to convict a criminal than for a whistleblower to 
     be eligible for protection. The irrefragable presumption of 
     government perfection creates a thick shield protecting big 
     government abuses--precisely the opposite of why the law was 
       Finally, the court ordered the MSPB to facilitate routine 
     illegality by seeking evidence of a whistleblower's conflict 
     of interest during every review. Retaliatory investigations--
     those taken ``because of'' whistleblowing activities--are 
     tantamount to witch-hunts and were outlawed by Congress in 
     1994. For federal employees, the Big Brother of George 
     Orwell's ``1984'' has arrived 15 years late.
       Key to understanding the decision is the role played by 
     Chief Judge Robert Mayer. Previously, Judge Mayer served as 
     deputy special counsel in an era when MSPB's Office of 
     Special Counsel (under its Chief Alex Kozinski, now a 9th 
     Circuit Court of Appeals judge) tutored managers and taught 
     courses on how to fire whistleblowers without leaving 
     fingerprints. Congress passed the WPA in part to deal with 
     these abuses.
       Now Judge Mayer's judicial revenge is a near-perfect 
     gambit, as his court has a virtual monopoly on judicial 
     review of MSPB whistleblower decisions.
       Congress must act quickly to pass a legislative definition 
     of ``reasonable belief'' that eliminates the certainty of 
     professional suicide for whistleblowers and restores the 
     law's good-government mandate. It also needs to provide 
     federal workers the same legal access enjoyed by private 
     citizens; jury trials and all circuits judicial review in the 
     appeals courts.
       It is unrealistic to expect federal workers with second-
     class rights to provide first-class public service. Returning 
     federal workers to the Dark Ages is an inauspicious way to 
     usher in a new millennium.

                 [From the New York Times, May 1, 1999]

                    Helping Whistle-Blowers Survive

       Jennifer Long, the Internal Revenue Service agent who 
     nearly lost her job two weeks ago after publicly blowing the 
     whistle on abuses at the agency, was rescued at the last 
     minute by the intervention of an influential United States 
     Senator. But the fact that her employers had no inhibitions 
     about harassing her is clear evidence that the laws 
     protecting whistle-blowers need to be strengthened. As they 
     stand, these laws merely invite the kind of retaliation that 
     Mrs. Long endured.
       A career tax auditor, Mrs. Long was the star witness at 
     Senate Finance Committee hearings convened in 1997 by William 
     Roth of Delaware to investigate complaints against the I.R.S. 
     She was the only I.R.S. witness who did not sit behind a 
     curtain and use a voice distortion device to hide her 
     identity. She accused the agency of preying on weaker 
     taxpayers and ignoring cheating by those with the resources 
     to fight back. She has since said that she was subject to 
     petty harassments from the moment she arrived back at her 
     district office in Houston. Then, on April 15 of this year, 
     she was given what amounted to a termination notice, at which 
     point Mr. Roth intervened with the I.R.S. commissioner and 
     saved her job--at least for now.
       Had he not intervened, Mrs. Long's only hope of vindication 
     would have been the remedies provided by the Civil Service 
     Reform Act of 1978 and the Whistle-Blower Protection Act of 
     1989. These two statutes prescribe a tortuous and uncertain 
     appeals process that in theory guarantees a whistle-blower 
     free speech without fear of retaliation, but in practice is 
     an exercise in frustration. Despite recent improvements, only 
     a handful of Federal employees, out of some 1,500 who 
     appealed in the last four years, have prevailed in rulings 
     issued by the Government's administrative tribunal, the Merit 
     System Protection Board. Overwhelmingly, the rest of the 
     cases were screened out on technical grounds or were settled 
     informally with token relief.
       A few prominent whistle-blowers have won redemption outside 
     the system. Frederic Whitehurst, the chemist who was 
     dismissed after disclosing sloppiness and possible dishonesty 
     in the Federal Bureau of Investigation's crime laboratory, 
     won a sizable cash settlement because he had a first-class 
     attorney who mounted an artful public relations campaign. 
     Ernest Fitzgerald, the Pentagon employee who disclosed 
     massive cost overruns, survived because he was almost 
     inhumanly persistent and because his cause, like Mrs. Long's, 
     attracted allies in high places. But the prominence of an 
     issue does not guarantee survival for the employee who 
     discloses it. Notra Trulock, the senior intelligence official 
     at the Energy Department who tried to alert his superiors to 
     Chinese espionage at a Government weapons laboratory, has 
     since been demoted.
       Senator Charles Grassley, an Iowa Republican, has been 
     seeking ways to strengthen the 1989 law with the help of the 
     Government Accountability Project, a Washington advocacy 
     group that assists whistle-blowers. One obvious improvement 
     would be to give whistle-blowers the option to press their 
     claims in the Federal courts, where their cases could be 
     decided by a jury. To guard against clogging the system with 
     frivolous litigation, the cases would first be reviewed by a 
     nongovernment administrative panel. But the point is to give 
     whistle-blowers an avenue of appeal outside the closed loop 
     in which they are now trapped.
       A reform bill along these lines passed the House in 1994 
     but died in the Senate. With Mrs. Long's case fresh in mind, 
     the time has come for both Houses to re-examine the issue.

FAS | Government Secrecy | Congress ||| Index | Search | Join FAS