U.S. Senator Daniel K. Akaka (D-Hawaii) today introduced legislation designed to counteract decisions by the Court of Appeals for the Federal Circuit which have eroded statutory protections provided to federal whistleblowers.
Congress unanimously enacted the Whistleblower Protection Act 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. However, in several cases, the Federal Circuit has determined that disclosures made to supervisors, to alleged wrongdoers, or as part of an employee's normal job duties are not protected, thus undermining one of the cornerstones of our nation's good government laws.
"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 ranking member of the Senate Subcommittee on International Security, Proliferation, and Federal Services, I will seek hearings in the next Congress on the Whistleblower Protection Act and the amendments we are proposing today." Senator Akaka was joined today in introducing the bill by Senator Carl Levin (D-MI), the primary sponsor of the landmark 1989 Act and the 1994 amendments.
"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."
The bill strengthens protections for whistleblowers in two other important respects. First, the bill codifies certain anti-gag statutes and requires that nondisclosure agreements provide notice to employees and applicants of their rights under the WPA and other statutes. Second, the bill provides independent litigating authority to the Office of Special Counsel. According to Senator Akaka, "This new authority will enable the Special Counsel to more effectively represent the public interests underlying the whistleblower protection laws and the Hatch Act."
The Civil Service Reform Act of 1978, which elevated certain disclosures by federal employees to absolute protection due to their public policy significance, also created the Federal Court of Appeals, the Merit Systems Protection Board, and the Office of Special Counsel.
Senator Akaka's bill enjoys the support of 72 organizations that have urged 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. In his floor statement, Akaka singled out the Government Accountability Project (GAP) 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.
Akaka noted, "The necessity for this legislation increased today by passage of a provision in H.R. 4392, the Intelligence Authorization Act for 2001. That provision functionally could make whistleblowers liable for criminal prosecution, based on speculation that unmarked information was classified. The only way a would-be whistleblower knows disclosures are protected is through a 'prior inquiry' to the chain of command, which institutionalizes the opportunity of secrecy abuses through subsequent classification and ends the realistic ability for national security whistleblowers to make anonymous disclosures. As my cosponsor, Senator Levin, said when confidentiality provisions were tightened prior to passage of the Whistleblower Protection Act of 1989, 'It is unrealistic to expect whistleblowers to help in the struggle against waste if they risk exposure of their names and possible retaliation.'"
The bill will be referred to the Senate Committee on Governmental Affairs.
