16 October 2000 Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html ----------------------------------------------------------------------- [Congressional Record: October 12, 2000 (Senate)] [Page S10412-S10424] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr12oc00-200] STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS Mr. AKAKA (for himself and Mr. Levin): S. 3190. 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 nondisclosure policies, forms, and agreements that such policies, forms, and agreements conform with certain disclosure protection, provide certain authority for the Special Counsel, and for other purposes; to the Committee on Governmental Affairs. WHISTLEBLOWER PROTECTION ACT Mr. AKAKA. Mr. President, as the ranking member of the Federal Services Subcommittee, I am pleased to introduce legislation to amend the Whistleblower Protection Act, WPA, one of the cornerstone of our nation's good government laws. Enacted in 1989, the WPA is intended to protect federal employees from workplace retaliation when disclosing waste, fraud, or abuse. The law was passed unanimously in 1989, and strengthened through amendments in 1994, again with unanimous support of both houses of Congress. I am joined today by Senator Levin, who was a primary sponsor of the landmark 1989 Act and the 1994 amendments. A key goal of the Whistleblower Protection Act was to close the loopholes that had developed under prior law. Back in 1978, Congress passed the Civil Service Reform Act, which included statutory whistleblower rights that elevated certain disclosures to absolute protection due to their public policy significance. The 1978 Act protected ``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. Despite statutory language, the Federal Court of Appeals, the Merit Systems Protection Board, and the Office of Special Counsel--all created in 1978 to investigate and adjudicate the WPA--appeared to interpret the law as discretionary rather than absolute. This removed the law's foundation. Congress, in 1978, had intended to create absolute categories of protection to end the inherent chilling effect in constitutional balancing tests that required employees to guess whether they were covered by the First Amendment. Congress sought to eliminate the confusion by resolving the balance in favor of free speech rights for serious misconduct listed in the statute. Unfortunately, the Federal Circuit and administrative agencies did not respect this mandate and created loopholes based on factors irrelevant to the public, such as whether an employee had selfless motives or was the first to expose particular misconduct. As a result, a cornerstone of the Whistleblower Protection Act was to close these loopholes that arose under prior law by amending protection of ``a'' disclosure to ``any'' disclosure which meets the law's standards. The purpose was to clearly prohibit any new exceptions to the law's coverage. Only Congress has that authority. Again, however, in both formal and informal interpretations of the Act, loopholes continued to proliferate. Congress responded to this reluctance to abide by congressional intent through the passage of the 1994 amendments. The Governmental Affairs Committee report on the amendments rebutted prior interpretations by the Federal Circuit, the Merit Systems Protection Board, and 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.'' I am pleased to note that since the enactment of the 1994 amendments, both the Office of the Special Counsel and the Merit Systems Protection Board generally have honored congressional boundaries. However, the Federal Circuit continues to disregard clear statutory language that the Act covers disclosures made to supervisors, to possible wrongdoers (Horton v. Dept. of Navy 66 F.3d 279, 1995), or as part of their job duties. (Willis v. Dept. of Agriculture, 141 F.3d 1139, 1998). In order to protect the statute's cornerstone that ``any" lawful disclosure evidencing significant abuse is covered by the Whistleblower Protection Act, our bill would codify the repeated and unconditional statements of congressional intent and legislative history. It would amend sections 2302(b)(8)(A) and 2302(b)(8)(B) of title 5, U.S.C. to protect any disclosure of information. This would be without restriction to time, place, form, motive or context, made to any audience unless specifically excluded in section 2302(b)(8) by an employee or applicant, including a disclosure made in the ordinary course of an employee's duties, which the employee or applicant reasonably believes evidences any violation of any law, rule, or regulation, or other misconduct specified in section 2302(b)(8). These include gross waste, gross mismanagement, abuse of authority, or a substantial and specific danger to public [[Page S10413]] health or safety. Consistent with current law, if the disclosure evidences a prohibited personnel practice against the employee making the disclosure, his or her remedy will continue to be available through section 2302(b)(9), rather than section 2302(b)(8). The exceptions resulting from the Federal Circuit's rulings defeat the underlying good government goals of the Whistleblower Protection Act by removing protection where it counts the most: for federal employees, who acting as public servants, are carrying out their responsibilities to the public as employees of their agencies. By stripping protection from in-house disclosures, the Federal Circuit imposed loopholes that chill employees from working within their agencies to address potential waste, mismanagement, or abuse issues. If employees seek to solve problems within the chain of command, they could forfeit their rights to whistleblower protection from subsequent retaliation under the Court's rulings in Horton and Willis. To maintain protection against reprisal, federal employees must now bypass normal organizational activities responsible for implementing the law. Moreover, the loophole created by Willis removes protection when employees are performing their job duties. Because of the Court's rulings, the intent of the Act to create an environment where federal employees can safely serve the public on the job has been compromised. Secondly, the legislation would institutionalize a principle currently expressed by a ban on spending on enforcement of any nondisclosure agreement that does not contain language specifically protecting an employee's rights under various open government statutes. This includes the Whistleblower Protection Act, the Military Whistleblower Protection Act, and the Lloyd Lafollette Act, which prohibits discrimination against government employees who communicate with Congress. This prohibition has been passed on an annual basis since 1988 as part of the yearly appropriations process. Our bill would make it a prohibited personnel practice to take a personnel action implementing or enforcing nondisclosure rules without specific notice of the listed statutes and their supremacy in the event of a conflict. The appropriations provision, known as the ``anti-gag statute,'' has proved effective against attempts by agencies to override the Whistleblower Protection Act through prior restraint. The law originally passed as a spending control against abuses of national security secrecy, in which as a procedural prerequisite for security clearances, employees had to waive their constitutional and statutory free speech rights. Since its passage, however, it has been useful against gag orders in broad areas of specific and generic public concerns, including 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. Prior restraint not only has a severe chilling effect, but strikes at the heart of this body's ability to perform its oversight duties by negating the repeatedly reaffirmed unequivocal congressional policy that whistleblowers have the right to make protected disclosures anonymously as a way to prevent retaliation. Disclosing classified information is prohibited by law except to specific audiences listed in section 2302 and would not be a protected disclosure under this legislation. Nor would this legislation require the Merit System Protection Board to review security clearance determinations. The Supreme Court clearly spoke on this issue in Dept. of the Navy v. Egan, 484 U.S. 518 (1988), which found that denial of a security clearance is not . . . an ``adverse action.'' The Court upheld the Board's jurisdiction over due process procedures underlying a clearance decision. Egan stands as a bright line test, and if an employee requests review of the substantive judgments underlying a security clearance, OSC examiners, administrative judges, and members of the MSPB would be justified in denying jurisdiction. However, the Board could have jurisdiction if an employee complained that he or she suffered a prohibited personnel practice, because he or she was forced to sign an illegal nondisclosure agreement or its terms were enforced, regardless of context. 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 has unanimously supported the concept that federal employees should not be subject to prior restraint from disclosing wrongdoing nor suffer retaliation for speaking out. Lastly, the bill provides the Special Counsel with authority to appear and represent the interests of the Office of Special Counsel in civil actions brought in connection with the exercise of its authority to protect the merit system against prohibited personnel practices under section 2302(b)(8) and violations of the Hatch Act. It also gives the Special Counsel the right to seek review of decisions by the Merit Systems Protection Board before the Federal Circuit where the Special Counsel determines that the Board issued an erroneous decision in a whistleblower retaliation case or in a case arising under the Hatch Act, or that the Board's decision will have a substantial impact on the enforcement of those laws. Under the bill, in Board cases in which the Special Counsel was not a party, the Special Counsel must first petition the Board for reconsideration of its decision before seeking review. The Court of Appeals shall grant petitions for review by the Special Counsel at its discretion. This additional authority would enable the Office of Special Counsel to fulfill its statutory missions more effectively to protect federal whistleblowers against retaliation and to enforce the Hatch Act. While OSC, under current law, has a central role as public prosecutor in cases before the Merit Systems Protection Board, it in no way authorizes OSC to seek judicial review of an MSPB decision that the Special Counsel considers erroneous. Our legislation recognizes that providing the Special Counsel the authority to seek such review--in precedential cases--is crucial to ensuring the promotion of the public interests furthered by these statutes. Moreover, under existing law, the Special Counsel cannot appear to represent himself or herself as a party, or even as an amicus curiae, where another party has invoked the jurisdiction of the Court of Appeals in a whistleblower retaliation or Hatch Act case. As a result, the Special Counsel, who Congress intended would be a vigorous, independent advocate for protection of the merit system, cannot participate at all in the arena in which the law is largely shaped: the Court of Appeals for the Federal Circuit. This bill reflects our conviction that the public interests underlying the whistleblower retaliation laws and the Hatch Act are best served by ensuring that the Special Counsel's views are considered by the Court in important cases. Mr. President, there is significant history that defines congressional intent with respect to ensuring that federal whistleblowers are protected from retaliatory measures. It is my intention that this bill will begin the needed dialogue to guarantee that any disclosures within the boundaries of the statutory language are protected. As the ranking member of the Federal Services Subcommittee, I will seek hearings in the next Congress on the Whistleblower Protection Act and the amendments I am proposing today. It is my intention to request a hearing that would be independent of any reauthorization hearing held for the MSPB and the OSC, both of whose authority expires in 2002. There is strong support for the legislation Senator Levin and I are introducing today. I ask unanimous consent, in addition to the text of the bill, that I be allowed to insert into the Record immediately following my statement, a petition signed by the heads of 72 organizations urging Congress to restore the Whistleblower Protection Act to its 1994 boundaries. Among the 70-plus groups that support this effort are the AFL-CIO, American Federation of Government Employees, Blacks in Government, National Association of Treasury Agents, National Treasury Employees Union, Common Cause, and the Federation of American Scientists. I also wish to extend my appreciation to the Special Counsel and the Acting Chair of the Merit Systems Protection Board for the technical assistance they provided. Lastly, I would [[Page S10414]] like to commend the Government Accountability Project for its dedication and perseverance over the years. Since 1977, GAP has sought to protect the public interest and promote government accountability by defending whistleblowers. I urge my colleagues to join me in the effort to ensure that congressional intent embodied in the Whistleblower Protection Act is codified to ensure that the law is not weakened further. There being no objection, the material was ordered to be printed in the Record, as follows: S. 3190 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. PROTECTION OF CERTAIN DISCLOSURES OF INFORMATION BY FEDERAL EMPLOYEES. (a) Clarification of Disclosures Covered.--Section 2302(b)(8)(A) of title 5, United States Code, is amended-- (1) by striking ``by an employee or applicant'' and inserting ``, without restriction to time, place, form, motive, or context, made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee's duties,''; and (2) in clause (i) by striking ``a violation'' and inserting ``any violation''. (b) 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; and (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 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.' ''. (c) Authority of Special Counsel Relating to Civil Actions.-- (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.''. Whistleblower Protection Act Petition--Signers as of October 3, 2000 Whereas: The undersigned organizations believe that freedom of speech is the foundation of democracy, and agree with Congress' repeated judgment that it is sound public policy to prohibit reprisals against whistleblowers who challenge Executive branch misconduct through disclosures of illegality, mismanagement, abuse of authority, gross waste and substantial and specific danger to public health or safety; and Whereas: The Whistleblower Protection Act (WPA) is the nation's premier good government statute to protect federal workers who risk retaliation by disclosing betrayals of the public trust; and Whereas: There is an overwhelming legislative mandate for this law, which Congress passed unanimously in 1989 and unanimously strengthened in 1994; and Whereas: The law needs to be further strengthened, rather than weakened. Government surveys have confirmed that some half million employees annually witness serious government misconduct but choose to do nothing; and Whereas: The Federal Circuit Court of Appeals, which has a monopoly of judicial review for the Act, has functionally overturned the law since congressional approval of 1994 amendments strengthening it; and Whereas: The Court has created a series of loopholes in the WPA removing the Act's coverage in the most common scenarios where it is needed: when employees blow the whistle to co-workers, superiors or others in the chain of command, or to suspected wrongdoers; when employees' disclosures challenge policies that are illegal or otherwise improper, or when employees make disclosures in the course of doing their jobs. These loopholes flatly contradict explicit 1989 statutory language, which protects disclosures in ``any'' context, and 1994 legislative history warning the Federal Circuit that ``any'' means ``any,'' without restrictions and defining it to ban exceptions for ``time, place, motive or context;'' and Whereas: In 1999 the Court made it practically impossible or anyone to be recognized as deserving whistleblower protection regardless of circumstances. Under the Act passed by Congress, whistleblowers qualify for protection if they make disclosures that they ``reasonably believe evidences'' wrongdoing. However, without an explanation of the basis for overturning some twenty years of prior precedent, the Court ruled that an employee does not qualify for protection without ``irrefragable proof'' of the alleged wrongdoing. Webster's Dictionary defines ``irrefragable'' as ``incontrovertible, undeniable, incapable of being overthrown;'' and Whereas: The practical impact of the decision is that if there are two sides to a story about alleged misconduct, it is not possible for a federal employee to be protected as a whistleblower. In light of this decision, no organization can responsibly advise whistleblowers that they have a realistic chance of defending themselves; and Whereas: In the same 1999 decision, the Court ordered that every employee who exercise Whistleblower Protection Act rights must be investigated to determine whether the employee had a conflict of interest for raising the issue in the first place. As a result, the Act actually subjects whistleblowers to intimidation and harassment rather than protecting them from it. This violates Congress' 1994 ban on retaliatory investigations for engaging in protected activity such as exercising appeal rights; and Whereas: There has never been any expression of legislative support either for the loopholes created by the Court or its requirement that whistleblowers prove their charges ``irrefragably.'' The court' extremist activism overturned the repeatedly stated unanimous intent. Restoring the congressional mandate does not require opening any new debates on previously resolved issues; and Whereas: A cornerstone of any free speech law is prohibiting prior restraint, threats and pre-emptive strikes that silence employees through mandatory nondisclosure agreements and gag orders. For over 12 years Congress has passed an annual spending ban on enforcing such gag orders. The time has come to eliminate the uncertainty of annual renewal for this free speech cornerstone. Therefore: We, the undersigned organizations, petition Congress to restore the Whistleblower Protection Act to its 1994 boundaries, prevent recurrence of judicial activism that neutralizes the value of this good government law and permanently pass the prohibition on gag orders. This can occur by codifying current appropriations language and prior WPA legislative history to cancel judicial decisions that unraveled the law, and by restoring normal judicial review in any U.S. Circuit Court of Appeals--the normal course under the Administrative Procedures Act and the structure approved by Congress when the Civil Service Reform Act of 1978 was passed. James K. Wyerman, Executive Director, 20/20 Vision. Laurence E. Gold, Associate General Counsel, AFL-CIO. Joseph LeBeau, Director, Alaska Center for the Environment, Palmer, AK. Ross Coen, Executive Director Alaska Forum on Environmental Responsibility, Fairbanks, AK. Charles Hamel, on behalf of AlaskaGroupSix.org (the anonymous Trans-Alaska pipeline whistleblowers). Cindy Shogun, Executive Director, Alaska Wilderness League. [[Page S10415]] Carol Bernstein, Ph.D., American Association of University Professors, Arizona Conference, Tucson, AZ. Bobby Harnage, President, American Federation of Government Employees (AFGE). Charles M. Loveless, Director of Legislation, American Federation of State, County & Municipal Employees (AFSCME). Mary Ellen McNish, General Secretary, American Friends Service Committee, Philadelphia, PA. Steve Holmer, Campaign Coordinator, American Lands Alliance. D.W. Bennett, Executive Director, American Littoral Society, Broad Channel, NY. J. Terrence Brunner, Executive Director, Better Government Association, Chicago, IL. Gerald Reed, National President, Blacks In Government. Michael Cavallo, President, Cavallo Foundation, Cambridge, MA. Ron Daniels, Executive Director, Center for Constitutional Rights, New York, NY. Joseph Mendelson, III, Legal Director, Center for Food Safety. David Hunter, Executive Director, Center for International Environmental Law. Robert E. White, President & William Goodfellow, Executive Director, Center for International Policy. Craig Williams Director, Chemical Weapons Working Group and Common Ground, Berea, KY. Gwen Lachelt, Executive Director, Citizens Oil and Gas Support Center, Durango, CO. Phil Doe, Citizens Progressive Alliance, Denver, CO. Anne Hemenway, Treasurer, Citizen's Vote, Inc. Lynn Thorp, National Programs Coordinator, Clean Water Action. Scott Harshbarger, President, Common Cause. Joan Kiley, Executive Director, Community Recovery Services, Berkley, CA. Joni Arends, Waste Programs Director, Concerned Citizens for Nuclear Safety, Santa Fe, NM. Travis Plunkett, Legislative Director, Consumer Federation of America. James Love, Director, Consumer Project on Technology. Marc Rotenberg, Executive Director, Electronic Privacy Information Center. Richard J. Baldes, Senior Biologist, Environmental Legacy, Washakie, WY. John Richard, Executive Director, Essential Information. Steve Aftergood, Project Director, Federation of American Scientists. John C. Horning, Watershed Protection Program, Forest Guardians, Santa Fe, NM. Andy Stahl, Executive Director, & Jeff DeBonis, Founder, Forest Service Employees for Environmental Ethics (FSEEE), Eugene, OR. Courtney Cuff, Legislative Director, Friends of the Earth. Conrad Martin, Executive Director, Fund for Constitutional Government. Tom Devine, Legal Director, Government Accountability Project. Bill Hedden, Utah Conservation Director, Grand Canyon Trust, Moab, UT. Bill Sheehan, Network Coordinator, GrassRoots Recycling Network, Athens, GA. Gary Wolf, Co-Chair, Green Party of Tennessee. James C. Turner, Executive Director, HALT: An Organization of Americans for Legal Reform. Rebecca Clarren, Assistant Editor, High Country News, Paonia, Colorado. Scott Armstrong, Executive Director, Information Trust. Don Soeken, Ph.D., Director, Integrity International, Laurel, MD. Peter Hille, Chairman, Kentucky Environmental Foundation, Berea, KY. Steve D'Esposito, Executive Director, Mineral Policy Center. Russell Hemenway, President, National Committee for an Effective Congress. Brett Kay, Health Policy Associate, National Consumers League. Patricia Ireland, President, National Organization for Women. Colleen M. Kelley, National President, National Treasury Employees Union. Stephen M. Kohn, Chairperson, Board of Directors, National Whistleblower Center. Audrie Krause, Executive Director, NetAction. Elizabeth Crowe, Director, Non-Stockpile Chemical Weapons, Citizens Coalition, Berea, KY. Bill Smirnow, Director, Nuclear Free New York, Huntington, NY. Michael Mariotte, Executive Director, Nuclear Information and Resource Service. Fred Fellerman, Northwest Director, Ocean Advocates, Seattle, WA. Gary Bass, Executive Director, OMB Watch. Ken Rait, Conservation Director, Oregon Natural Resources Council, Portland, OR. Danielle Brian, Executive Director, Project On Government Oversight. Frank Clemente, Director, Public Citizen Congress Watch. Wenonah Hauter, Executive Director, Public Citizen Critical Mass Energy and Environment Program. Jeff DeBonis, Founder & Dan Meyer, General Counsel, Public Employees for Environmental Responsibility. Lucy Dalglish, Executive Director, Reporters Committee for Freedom of the Press. Tim Little, Executive Director, Rose Foundation for Communities and the Environment, Oakland, CA. Scott Denman, Executive Director, Safe Energy Communication Council. James W. Moorman, President, Taxpayers Against Fraud. Jude Filler, Executive Director, Texas Alliance for Human Needs, Austin, TX. Ann Hoffman, Legislative Director, Union of Needletrades, Industrial and Textile Employees (UNITE). Marcia Hanscom, Executive Director, Wetlands Action Network, Malibu, CA. Dan Heilig, Executive Director, Wyoming Outdoor Council, Lander, WY. ______