Bill would protect whistleblowers

Federal whistleblowers may be able to breathe a little easier if a bill passed by the Senate Governmental Affairs Committee on Wednesday becomes law.

The Federal Employee Protection of Disclosures Act (S. 2628) would protect whistleblowers who come forward with "substantial evidence" of wrongdoing by federal agencies; provide a new avenue for employees to appeal agency decisions to deny or take away security clearances, and open up new and possibly more sympathetic courts to hear whistleblower appeals.

At a November hearing on the legislation, its chief sponsor, Sen. Daniel Akaka, D-Hawaii, said it would make clear Congress's intention to protect whistleblowers. He said that flawed decisions by the Court of Appeals for the Federal Circuit, which hears whistleblower appeals, "have made it impossible for whistleblowers to come forward without the threat of retaliation."

Since Congress last acted to strengthen whistleblower protections, in 1994, the appeals court has ruled in 95 cases, finding against the whistleblower in 94 of them. In 1999, in Lachance v. White, the court determined that an employee claiming retaliation based on whistleblowing would have to have "irrefragable"--or irrefutable--proof that he had disclosed violations of law. The standard is considered nearly impossible to reach, according to Tom Devine, legal director of the Government Accountability Project, a whistleblower protection group in Washington.

After the Lachance case, the Merit Systems Protection Board, the government agency that hears initial appeals brought by whistleblowers claiming retaliation, has found in favor of employees in only two of 30 cases.

Still, the Justice Department has vehemently opposed the legislation, and its position figures to be a hurdle to ultimate passage. At the November hearing, Peter Keisler, assistant attorney general in Justice's civil division, said that the department opposed most of the key provisions, and felt that the current law strikes the right balance between agency and whistleblower rights.

Keisler said that allowing MSPB to hear appeals in security clearance cases would provide a dangerous disincentive for agency vetters to deny clearances. MSPB review would "have a substantial chilling effect upon the decision-making process of security professionals," he said.

In addition, Keisler said that allowing employees to appeal MSPB decisions to regional federal appeals courts -- rather than exclusively to the federal Circuit Court in Washington -- would "result in a fractured personnel system, causing confusion among both the employing agencies and the employees about their respective rights and responsibilities." Ultimately, he added, it would force the Supreme Court to intervene to resolve inconsistencies in the courts' decisions.

Keisler did allow that Justice does not oppose reducing the "irrefragable" proof standard set by the federal court. However, he added, that the "substantial" proof standard provided in the bill goes too far in the other direction. A more appropriate balance, Keisler said, would require employees claiming whistleblower status to prove by a "preponderance of the evidence" that an agency was breaking the law.

The bill passed by the Governmental Affairs Committee does contain several compromises in an effort to win Justice's approval. Early drafts, for example, would have allowed the Merit Systems Protection Board to overturn agency decisions to deny or take away employee security clearances. The passed bill provides only that the MSPB may make a recommendation to the agency that it should overturn its decision. If the agency disregards MSPB's recommendation, it would have to report its reasoning to Congress.

Also, the bill allows the Office of Special Counsel -- the government agency charged with preventing whistleblower retaliation -- to file friend-of-the-court briefs in cases where it believes an employee has legitimate claim to being a whistleblower. Previously, the bill would have allowed the OSC to represent employees in cases appealed from the MSPB to the federal court.

Another compromise is a five-year time limit placed on employees' right to appeal MSPB decisions to any federal Court of Appeals throughout the country. Currently only the U.S. Court of Appeals for the Federal Circuit may hear whistleblower cases. The bill treats the expansion of jurisdiction to other courts as an experiment, rather than a permanent right, as it initially had.

The Justice Department has not stated whether the compromises go far enough to address its concerns.

The bill passed unanimously. It has bipartisan co-sponsorship, including the support of Senate Governmental Affairs Chairman Susan Collins, R-Maine.

House Government Reform Committee Chairman Tom Davis, R-Va., has said he is interested in sponsoring similar legislation. However, with a limited number of legislative days before the November election, it's unlikely that the bill will pass during this Congress.