U.S. Senator Daniel K. Akaka (D-Hawaii) yesterday introduced
S. 995, the Whistleblower Protection Act Amendments of 2001, which would counteract decisions by the Court of Appeals for the Federal Circuit that have eroded statutory protections provided to federal whistleblowers.
Senator Akaka was joined in introducing the bill by Senator Carl Levin (D-MI) and Charles Grassley (R-IA), two of the Senate's leaders in protecting employees from retaliatory actions and the primary sponsors of the landmark 1989 Act and the 1994 amendments.
Congress unanimously enacted the Whistleblower Protection Act (WPA) in 1989, and strengthened it through amendments in 1994 with unanimous support from both houses of Congress. Under the Act, federal employees are protected from workplace retaliation when disclosing waste, fraud, or abuse.
The 1989 and 1994 laws were necessary to counter loopholes created by court and administrative agencies that limited employee protections. These loopholes made exceptions to the types of disclosures covered under the WPA. The Governmental Affairs Committee report on the 1994 amendments refuted these judicial and administrative interpretations, as well as subsequent enforcement actions of the WPA by stating, "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 the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB) generally have honored congressional boundaries. The U.S. Circuit Court of Appeals for the Federal Circuit, which has sole jurisdiction over the WPA, however, continues to disregard clear statutory language. Among the judicially created exceptions that are contrary to legislative intent are disclosures made to supervisors, disclosures made to possible wrongdoers, and disclosures made as part of an employee's job duties
"There is significant history defining Congressional intent with respect to ensuring that federal whistleblowers are protected from retaliatory measures," Akaka said. "This bill will begin the needed dialogue to guarantee that any disclosures within the boundaries of the statutory language are protected.
"Unfortunately, since its enactment in 1989, the Federal Circuit has failed to respect Congressional intent. As the Chairman of the Senate Subcommittee on International Security, Proliferation, and Federal Services, I intend to hold hearings on the Whistleblower Protection Act and the amendments we are proposing today."
In addition to restoring congressional intent regarding who is entitled to relief under the WPA, and what disclosures are protected, the bill also codifies certain anti-gag rules, extends independent litigating authority to the Office of Special Counsel, and ends the sole jurisdiction of the Federal Circuit over whistleblower cases.
Akaka noted that currently the WPA does not expressly cover disclosures to Congressional oversight committee members and staff with appropriate security clearances where the disclosures pertain to false statements of material fact to Congress. For the past twelve years, Congress unanimously has approved an appropriations rider known as an "anti-gag" statute. This provision 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 banning discrimination against government employees who communicate with Congress. Despite these anti-gag riders, there are instances where employees are forced to sign such agreements.
The measure also provides the Special Counsel with greater litigating authority for merit system principles that the Office of Special Counsel is responsible to protect. Under current law, OSC plays a central role in cases before the MSPB, but cannot chose to defend the merit system in court. The bill would provide the Special Counsel with authority to seek such review in precedential cases.
Also under current law, a whistleblower's only avenue of appeal is to the U.S. Court of Appeals for the Federal Circuit, which sits in Washington, DC. For whistleblowers who reside elsewhere, access to court and the ability to fully participate may be limited due to financial concerns. The Federal Circuit's exclusive jurisdiction in WPA cases is inconsistent with whistleblower provisions contained in other statutes such as the False Claims Act, CERCLA/Superfund, and the Safe Drinking Water Act, and is inconsistent with EEO retaliation cases. All of these statutes allow appeals to the regional circuits.
"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," Akaka explained. "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.
"Our bill codifies the repeated and unconditional statements of congressional intent and legislative history," Akaka noted. "This bipartisan effort will ensure the Whistleblower Protection Act is not weakened any further."
In his floor statement, Akaka singled out the Government Accountability Project and the National Whistleblower Center for their dedication in protecting the public interest and promoting government accountability by defending whistleblowers.
The bill was referred to the Senate Committee on Governmental Affairs.
