HEARING ON WHISTLEBLOWER PROTECTION ACT LEGISLATION (S. 995)

7/25/2001

Senate Governmental Affairs' Subcommittee on International Security, Proliferation and Federal Services

Chairman Akaka, Ranking Member Cochran and Members of the Subcommittee,

I applaud you for holding a hearing today on this very important issue for federal employees and the American taxpayers. Chairman Akaka, you have always been a champion for the rights of federal employees, and we commend you for introducing S. 995, which seeks protections for those who stand up to expose wrongful and wasteful government actions.

The time is now to restore real whistleblower protections for federal workers that had been guaranteed to them by the Whistleblower Protection Act (WPA) of 1989. As you know, this statute was intended to protect federal workers who make disclosures challenging fraud, waste, and other government abuses that betray the public trust. Congress unanimously passed this law in 1989 and unanimously strengthened it in 1994.

Unfortunately, in a series of decisions since the 1994 amendments, the Federal Circuit has taken aggressive actions to thwart the intent of Congress by overturning unequivocal statutory language and taking free speech rights away from federal workers.

The statute’s cornerstone has been its protection for “any” lawful disclosure evidencing significant abuse. In the WPA Congress changed 1978 language protecting “a” disclosure to “any” disclosure, in order to overturn Federal Circuit decisions that created gaping loopholes. Since 1995, however, the Court has created a series of new, even broader loopholes to WPA coverage. Employees no longer are protected for disclosures to co-workers, alleged wrongdoers or supervisors; disclosures made as part of their job duties; or disclosures challenging illegal, wasteful or abusive policies. These Court decisions have gutted the law and are having the effect of institutionalizing secrecy and deception when whistleblowing is needed most.

In Lachance v. White, 174 F.3d 1378, the Court dealt a lethal blow to the WPA and to anyone relying on the statute. The Court made it virtually impossible for an employee to establish that he or she had a “reasonable belief” that the conduct complained of evidenced gross mismanagement or some other wasteful or fraudulent activity. As a result of Lachance v. White, employee disclosures are protected only if “a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee [could] reasonably conclude that the actions of the government evidence gross mismanagement.” The Court, moreover, stressed that evidence that an employee was familiar with the alleged improper activity – even if his or her belief was shared by similarly situated employees – is insufficient to establish the reasonableness of the employee’s belief of misconduct. This is contrary to earlier decisions holding that the “reasonable belief” standard only requires an employee to provide “evidence” of misconduct, not “proof.” In White’s aftermath, whistleblowers do not have a realistic chance to defend themselves. The statute has been gutted to the point where employees are all but certain to end up with a formal legal finding that they do not qualify as whistleblowers.

The Court did not stop at that point, however. It ordered the Merit Systems Protection Board to seek evidence of conflict of interest for any whistleblower asserting retaliation, to discover any hidden agendas for making the disclosure in the first place. Retaliatory investigations – those taken “because of” whistleblowing – are tantamount to witch-hunts and were outlawed by Congress in the 1994 amendments. Now they are virtually guaranteed for any employee who files a reprisal complaint.

The Court’s decision in White effectively eliminates any credible chance that a whistleblower can receive protection under the WPA. The Supreme Court, in part because the Federal Circuit monopoly precludes any split doctrines, has never agreed to hear a WPA case, including White. If the WPA is to be restored, and the flow of information to expose government wrongdoing preserved, Congress must act now to save the law.

Again, I thank Chairman Akaka for introducing S. 995 and holding this important hearing today. I urge this subcommittee to work to restore the Whistleblower Protection Act to what Congress had intended it to be when it was strengthened in 1994. We need to ensure that federal employees will be protected when they attempt to expose waste, fraud, and abuse in our government.