Thanks to Tom Devine & Adam Miles from GAP for producing the following response to the Bush Administration's SAP against protecting whistle-blowers thru bi-partisan legislation

In March 2007, the Bush administration issued a wide-ranging attack on H.R. 985, bi-partisan legislation to strengthen the judicially-gutted Whistleblower Protection Act (WPA). Despite the veto threat, 80% of the House, including half of the Republican Caucus, looked beyond the misplaced, and in some cases, factually misleading allegations in the SAP, and voted to ensure more accountable government. The text of the SAP is extracted below in blue text (or italics), with specific responses below.

I. Administration Objections Based on National Security Grounds

A. Classified Disclosures to Congress

H.R. 985 would expand, for the first time, whistleblower protections to employees at national security agencies who disclose classified information to Congress.

This is factually incorrect. The Intelligence Community Whistleblower Protection Act (ICWPA) of 1998 allows employees of the intelligence community to make disclosures of information, including classified information, to the congressional Intelligence Committees.

Unfortunately, passage of the ICWPA did not address this problem, because the ICWPA provides no remedy to an employee who is retaliated against for exercising a right to provide evidence of misconduct to Congress. H.R. 985 responds to this long-standing need by providing employees with a responsible means of disclosing classified evidence of misconduct under the normal standards for an authorized recipient to members of specified committees whose “need to know” is based on specific oversight responsibilities.

H.R. 985 would permit an employee to make an individualized determination – without further review and perhaps without all relevant information – to disclose classified information. Such an independent, uncoordinated decision to disclose classified information could jeopardize not only national security programs, but also the security of the people involved in such programs. The President now has the necessary authority to control the circumstances under which others receive classified and national security information to ensure such information is not disclosed or used in a way that would jeopardize national security. By vesting subordinate Executive branch officials with a right to disclose classified information outside of the Executive branch without receiving official authorization from the President or his official designee, the bill would impede the President’s necessary coordination function.

This is a flatly inaccurate red herring. HR 985 in no way permits employees to substitute their discretion for the President’s in making judgment calls about permissible audiences to receive classified information. They have to obey the same standards in EO 12958 for disclosures to congress as they would for any given recipient within their agencies.

This rhetoric also badly misstates the consequences of failing to provide national security employees with a safe means of responsibly communicating classified evidence of wrongdoing. In reality, the absence of any effective means of challenging retaliation has the perverse incentive of encouraging employees to work outside of the system. Without protection, employees must choose between anonymously leaking information publicly, and silently acquiescing to a cover-up of potentially illegal activity or security breaches. Anonymous leaks of national security information are the least desirable form of disclosure for public policy goals. Yet, the current inadequate system encourages them. Genuine rights for these employees will do much to address this problem.
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B. State Secrets

In addition, in any litigation concerning a whistleblower, if the government invokes the state secrets privilege, H.R. 985 would require that the matter at issue be resolved in favor of the plaintiff. This essentially would require the agency to choose between protecting national security information in court or conceding lawsuits.

If the author of the SAP is literate, this is a knowingly false statement. There is not even a hint in H.R. 985 that disputes over states secrets must be resolved in favor of the plaintiff if the privilege is invoked. The provision in no way forces the administration to choose between conceding a law suit and invoking the privilege. Here’s how it works in reality: If the “assertion of the privilege prevents the whistleblower from establishing an element” of his or her case, which normally would result in the case being dismissed, the agency Inspector General investigates the accuracy of any disputed facts covered by the assertion of the privilege. If the IG probe results in “substantial confirmation” that the whistleblower is right about those particular facts, then the court resolves them in the whistleblower’s favor. All the provision does is prevent the government from automatically winning by blocking a whistleblower’s day in court for any necessary facts merely by asserting they are state secrets. The provision does not result in the public release of anything, other than a possible IG conclusion that the government was wrong in contesting a given fact.

C. Security Clearance

Finally, H.R. 985 would allow administrative and judicial review of Executive branch security clearance determinations, a prerogative that must be within the Executive branch’s discretion for the protection of national security programs and personnel.

“Administrative and judicial” review of security clearance determinations already exists to determine whether an agency has violated its procedures on a security clearance action. Navy v. Egan, 484 US 518 (1988). In fact, H.R. 985’s provision is merely a technical fix to perfect a policy choice enacted unanimously in the 1994 amendments to the whistleblower law. The reform provides the language required by the Supreme Court in Egan so employees can have an independent review of allegedly illegal denials or removals of their clearances due to whistleblower retaliation. This is necessary because in Hess v. Department of State, 217 F.3d 1372, (Fed.Cir. 2000), the Federal Circuit cited Egan’s specificity requirement to reject Congress’ 1994 approach -- including security clearance relief in a more generalized provision.

II. General concerns about the Whistleblower Protection in H.R. 985

A. “Any” means “any”

The expanded definition of protected disclosures in H.R. 985 also would upset the delicate balance between whistleblower protection and the ability of Federal managers to manage the workforce by permitting employees to bring a whistleblower complaint in response to almost every adverse employment action.

The existing protections guaranteed by the Whistleblower Protection Act are sufficient to promote and protect genuine disclosures of matters of public concern by offering protection from adverse personnel actions to employees who report government wrongdoing to those in a position to remedy the problem.

The proposed expansive definition has the potential to convert any disagreement over an issue or contrary interpretation of a law between employees, no matter how trivial or frivolous, into a whistleblower disclosure.

The “proposed expansive definition” objected to in the SAP merely pins down a basic policy choice Congress unanimously attempted to make through unequivocal statutory language in 1989 and 1994, but since has been frustrated by judicial activism. The “delicate balance” the administration defends is a 2-203 record against whistleblowers for decisions on the merits since 1994, when Congress last voted unanimously to strengthen the law.

Congress’ goal for the whistleblower law is to protect an employee for “any” disclosure of information which the employee reasonable believes is evidence of waste, fraud, or abuse. This should be a simple concept. But, one Court has consistently, repeatedly frustrated Congress’ intent to protect whistleblowers by distorting the meaning of “any.” Despite the administration’s hysterical objection, this legislation does not go beyond a policy choice that Congress literally has made and codified twice before.

B. Retaliatory Investigations

The proposed expansive definition also would permit employees to impede legitimate investigations (even those by Inspectors General) by arguing that such investigation itself was an adverse action against the whistleblower. Instead of providing further protection to those with legitimate claims, who are covered by the existing law, the proposed definition likely will increase the number of frivolous claims of whistleblower reprisal, compromise legitimate investigations into wrongdoing, and create protections for disgruntled employees whose jobs would not otherwise be secure.

This objection is badly misplaced. As specifically reaffirmed in H.R. 985, whistleblower rights are irrelevant for the type of routine, legitimate, or normal government functions that the administration asserts are threatened. The provision only creates a personnel action for investigations taken "because of any activity" protected by the whistleblower law. The point of the provision is to outlaw retaliation in the investigative context, not investigations. This is no different than outlawing retaliatory terminations. The legislation is inapplicable to ministerial functions that do not single out an employee and are non-discriminatory.

Further, the administration again is threatening to veto H.R. 985 over a provision that only codifies current law, which has been operating for 14 years without any of the speculative consequences against which the government warns.

C. De Novo review in district court / all circuits review

H.R. 985 also would permit employees to engage in judicial forum shopping in having their claims resolved. Whistleblowers already have the right to seek corrective action for an unlawful personnel action from the Merit Systems Protection Board, and are afforded judicial review before the Federal Circuit. H.R. 985 would allow employees to have their claims heard de novo in any federal district court, which could result in two trials (rather than one) for each employee’s complaint, and might result in divergent local district court interpretations and split circuit court decisions.

There is no legitimate concern about “forum shopping,” because the Federal Circuit’s obsessively hostile, activist record against whistleblowers means the rights in the law no longer functionally exist. This legislation only is needed because the Federal circuit three times has functionally over-turned the statute on its own initiatives and inventions, with no hint of constitutional concerns or grounds to do so.

So, although at the appellate level, the whistleblower technically could decide between the Federal Circuit and the Circuit in which the dispute arose, realistically, the only choice available is the latter, as was the case prior to the creation of the Federal Circuit in 1982. Any “splits” in circuit court precedent would be a healthy development in the evolution of this law, which for 2 ½ decades has been distorted by the Federal Circuit’s monopoly jurisdiction. To put the administration’s veto threat in perspective, every other whistleblower law ever passed has included this type of all-circuits review.

At the fact-finding or “trial” level of a WPA whistleblower case, the fact remains unchanged that a whistleblower’s first and only choice for a due process hearing is the MSPB. The provision is necessary because the MSPB has been as hostile for findings of fact as the Federal Circuit has been for matters of law. Healthy competition is unavoidable to restore a rational balance in fact-finding.

The legislation allows a whistleblower to move a case to federal district court de novo if the MSPB does not issue a decision within 6 months. But this is hardly judicial “forum shopping,” as stated by the administration. In fact, this model already applies to every federal employee in the EEO context, and has been approved and signed into law by President Bush 3 times already this Congress for corporate employees. Nevertheless, despite this option, 90-95% of federal employees will continue to opt to have their cases decided by MSPB because it is a cheaper and more efficient alternative. While the text of the ICWPA requires an employee to first disclose the information to the agency, the conference report that included the ICWPA states, “The managers … agree that [the ICWPA] is not the exclusive process by which an Intelligence Community employee may make a report to Congress.”

Additionally, the conference report explicitly incorporates prior Senate legislative history, which states the position that congressional oversight committees have a “need to know” about classified evidence of misconduct within the intelligence community, and the President does not have exclusive authority to make that determination:

“[C]ongressional committees have a need to know information, classified or otherwise, that directly relates to their responsibility to conduct vigorous and thorough oversight of the activities of the executive departments and agencies within their committees' jurisdiction. Therefore, the President may not assert an unimpeded authority to determine otherwise.”

For example, as then-Chairman Hoekstra (R-MI) acknowledged in a 2006 House Intelligence Committee meeting, “we need to make sure the whistleblower process is an open door, so that these folks are not faced with…an environment where they don't have a choice, that they don't see something they don't like, that they just go, ‘Well, I'll just go to the press.’” Unfortunately, as George Washington University Law School Professor Jonathan Turley explained at the hearing, the opposite is true. Whistleblowers are supposed to be protected when they “go internally in the system, [but] I have to tell you [this] is viewed as a bad joke. It is viewed by whistleblowers as a way of self-identifying an end to their career.”

The public policy basis for this reform is far stronger than ever before. Since 9/11, a long-ingrained, dangerous pattern that sustains national security breakdowns has become more visible: the most common harassment technique against national security whistleblowers is to yank their security clearances. The popularity of this approach to the agency is that it can both arbitrarily brand employees as untrustworthy and de facto fire those whose jobs require classified access, all without having to defend its reasoning before outside review. When a clearance is yanked, employees cannot defend themselves against retaliation in scenarios where protected disclosures are needed most -- to responsibly facilitate solutions and accountability for long term security weaknesses due to the government's own misconduct.

Since 1994 Congress has made the public policy choice to close the merit system's security clearance loophole. The decision was not made lightly. The House held four joint Judiciary-Post Office and Civil Service Committee hearings before voting unanimously to close the security clearance loophole in the WPA. A February 2006 hearing again illustrated the potential for abuse of clearance determinations, and the harmful effect such abuses have on national security. The Senate Report for 1994 amendments clearly highlighted security clearances as the primary example of the reasons for what in conference became a new category of personnel action covered by the whistleblower law -- "any other significant change in duties responsibilities or working conditions." 5 USC 2302(a)(2)(A)(11) As the Committee report explained in 1994,

The intent of the Whistleblower Protection Act was to create a clear remedy for all cases of retaliation or discrimination against whistleblowers. The Committee believes that such retaliation must be prohibited, regardless what form it may take. For this reason, [S. 622, the Senate bill for the 1994 amendments] would amend the Act to cover any action taken to discriminate or retaliate against a whistleblower, because of his or her protected conduct, regardless of the form that discrimination or retaliation may take.

S. Rep. No. 103-358, at 9-10. The consensus for the 1994 amendments explained that the new personnel action includes "any harassment or discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system," specifying security clearance actions as the primary illustration of the provision's scope. 140 Cong. Rec. 29,353 (1994).

The legislation puts the "any" back in protection for "any" lawful disclosure evidencing serious misconduct, the explicit language of 5 USC 2302(b)(8) and a cornerstone of the Whistleblower Protection Act of 1989. It explicitly removes judicially-created barriers for protection based on time, place, context, formality, motive or prior disclosure made. These judicially-created limitations on the scope of the protection were never included in the statute.

In reality, as repeatedly explained by the Senate Homeland Security and Governmental Affairs Committee in its reports on the Senate’s corresponding legislation, the amendment restores the balance Congress repeatedly has reaffirmed: all employees protected by the merit system should be eligible for whistleblower protection if their evidence discloses serious misconduct. “The OSC, the Board, and the courts should not erect barriers to disclosures which will limit the necessary flow of information from employees who have knowledge of government wrongdoing." (S. Rep. No. 103-358 (1994), at 10 (quoting S. Rep. No. 100-413 (1988) at 13), as cited and re-affirmed in the HSGAC’s reports on S. 274 (110th Congress) and S. 494 (109th)).

If anything, Congress' wise intention since 1978 has been that the whistleblower law will empower agency checks and balances to operate routinely, without employees having to "ignit[e] the glare of publicity" to effectively challenge problems. As stated in an August 24, 1978, Dear Colleague letter, the idea for this right was so that employees can routinely honor their duties to the Code of Ethics and the Constitution by acting on problems "wherever discovered…. Under our amendment, an employee can fulfill those obligations without putting his or her job and career on the line." Reprinted in 124 Cong. Rec. S14302-03 (daily ed. Aug. 24, 1978). In short, the law's first priority is to shield disclosures that solve problems early and prevent the need for scandals, not to start public controversy, or to upset workplace efficiency. The administration simply does not, and never has, accepted that premise.

In 1994 when Congress last addressed this issue, the House Report reaffirmed that precedents creating loopholes violate the Act's statutory language and its basic premise. "Perhaps the most troubling precedents involve the … inability to understand that 'any' means 'any.'" (H.R. Rep. No. 103-769, at 18). As summarized in the only legislative history summarizing the composite House-Senate compromise,

It also is not possible to further clarify the clear statutory language in [section]
2302(b)(8)(A) that protection for 'any' whistleblowing disclosure evidencing a
reasonable belief of specified misconduct 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 context. 145 Cong. Rec. 29,353 (1994).

By contrast, the need for clarity in the code about this provision is fundamental. The first law of retaliation is the "smokescreen syndrome," -- shift the spotlight to the whistleblower through an investigation until a scandalous distraction is found. Retaliatory investigations are the foundation for reprisal as the primary tool for "record building." Investigations also can be used to intimidate witnesses in legitimate investigations, like those conducted by Congress to fulfill oversight responsibilities. The legislation empowers whistleblowers stop retaliation in its initial stage, rather than have to live indefinitely with investigations used to intimidate or harass. One food safety whistleblower represented by GAP was under a series of nearly uninterrupted investigations for over 25 years. Codifying protection is necessary to achieve the WPA's goal of protection for actions with a "chilling effect on merit system duties and responsibilities." 140 Cong. Rec. 29,353 (1994)(statement of Rep. McCloskey). Retaliatory investigations constitute an all too common activity that severely threatens the merit system. Experience with current law has proven that legislative history and precedents outlawing this harassment technique should be codified.

See Johnson v. Department of Justice, 104 MSPR 624, 631 (2007). Johnson explains, “An investigation is not a personnel action, but the Board will consider evidence of the conduct of an agency investigation when it is so closely related to a personnel action that it could have been a pretext for gathering evidence used to retaliate against an employee for whistleblowing.”

While semantically murky the Board’s decision is largely consistent with the clear statement in legislative history to the 1994 Whistleblower Protection Act (WPA) amendments: Retaliatory investigations are threatened personnel actions, equally illegal due to their chilling effect as those which actually have occurred. H.R. Rep. No. 103-79, at 15, 140 Cong. Rec.29,353 (statement of Rep. McCloskey). See also Russell v. Department of Justice, 76 MSPR 317, 324-25 (1997).

Since Congress voted unanimously in 1994 to re-strengthen whistleblower protections, individual whistleblowers exercising their appeal rights at the Federal Circuit have lost 203 of 205 decisions on the merits. Nearly all of the legislation’s provisions are in response to Federal Circuit rulings that contradict statutory language or prior legislative history, forming precedent that binds the Merit Systems Protection Board. To put it simply, each time Congress has mandated and defined the law for whistleblower protection, the Federal Circuit has issued hostile activist rulings that leave whistleblowers defenseless and force Congress to re-legislate. This has been the routine since the Federal Circuit’s creation in 1982. Without structural reform, this pattern could go on indefinitely.

To illustrate, in 1989 Congress passed the WPA because there only had been four whistleblower victories on the merits in nine years of administrative decisions. The Board’s current track record this millennium after two unanimous-approved laws strengthening employee rights is two victories on the merits in nearly nine years.

Produced by Tom Devine & Adam Miles, GAP

From Liberty Coalition
www.libertycoalition.net