Senate Hearing, 111TH Congress - S. 372 - The Whistleblower Protection Enhancement Act of 2009

S. Hrg.
111299
S. 372THE WHISTLEBLOWER PROTECTION

ENHANCEMENT ACT OF 2009
HEARING
BEFORE THE
OVERSIGHT OF GOVERNMENT MANAGEMENT,

THE FEDERAL WORKFORCE, AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
OF THE
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
JUNE 11, 2009
Available via http://www.gpoaccess.gov/congress/index.html
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and Governmental Affairs
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan
SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii
TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware
JOHN MCCAIN, Arizona
GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas
JOHN ENSIGN, Nevada
MARY L. LANDRIEU, Louisiana
LINDSEY GRAHAM, South Carolina
CLAIRE MCCASKILL, Missouri
JON TESTER, Montana
ROLAND W. BURRIS, Illinois
MICHAEL F. BENNET, Colorado
MICHAEL L. ALEXANDER, Staff Director
BRANDON L. MILHORN, Minority Staff Director and Chief Counsel
TRINA DRIESSNACK TYRER, Chief Clerk
OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL

WORKFORCE, AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE
DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan
GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana
LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
MICHAEL F. BENNET, Colorado
LISA M. POWELL, Chief Counsel and Acting Staff Director
JESSICA K. NAGASAKO, Professional Staff Member
JENNIFER A. HEMINGWAY, Minority Staff Director
BENJAMIN B. RHODESIDE, Chief Clerk
(II)
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CONTENTS
Opening statements:
Senator Akaka ..................................................................................................
Senator Burris ..................................................................................................
Page
1
10
WITNESSES
THURSDAY, JUNE 11, 2009
Rajesh De, Deputy Assistant Attorney General, Office of Legal Policy, U.S.
Department of Justice .........................................................................................
Hon. Claire McCaskill, a U.S. Senator from the State of Missouri .....................
William L. Bransford, General Counsel, Senior Executives Association ............
Danielle Brian, Executive Director, Project on Government Oversight ..............
Thomas Devine, Legal Director, Government Accountability Project .................
Robert G. Vaughn, Professor of Law, Washington College of Law, American
University .............................................................................................................
ALPHABETICAL LIST
OF
3
8
15
17
19
21
WITNESSES
Bransford, William L.:

Testimony ..........................................................................................................
Prepared statement ..........................................................................................
Brian, Danielle:
Testimony ..........................................................................................................
De, Rajesh:
Testimony ..........................................................................................................
Devine, Thomas:
Testimony ..........................................................................................................
Prepared statement with attachments ...........................................................
McCaskill, Hon. Claire:
Testimony ..........................................................................................................
Vaughn, Robert G.:
Testimony ..........................................................................................................
15
44
17
48
3
31
19
57
8
21
141
APPENDIX
Background ..............................................................................................................
Copy of S. 372 ..........................................................................................................
163
171
ADDITIONAL PREPARED STATEMENTS

Craig R. Sawyer, a disabled former U.S. Marine and U.S. Navy SEAL .............
Colleen M. Kelley, National President, National Treasury Employees Union ...
John M. Fitzgerald, J.D., Policy Director, Society for Conservation Biology ......
John W. Curtis, Ph.D., Director of Research and Public Policy, American
Association of University Professors ..................................................................
Joe Carson, PE, Knoxville, Tennessee with an attached letter ...........................
Larry Fisher, National Accountant Whistleblower Coalition (NAWBC) with
attachments ..........................................................................................................
199
203
205
216
Questions and Responses to questions:

Mr. Bransford ...................................................................................................
Mr. Vaughn .......................................................................................................
236
237
209
210
(III)
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S. 372THE WHISTLEBLOWER PROTECTION

ENHANCEMENT ACT OF 2009
THURSDAY, JUNE 11, 2009
U.S. SENATE,
SUBCOMMITTEE ON OVERSIGHT OF GOVERNMENT
MANAGEMENT, THE FEDERAL WORKFORCE,
AND THE DISTRICT OF COLUMBIA,
OF THE COMMITTEE ON HOMELAND SECURITY
AND GOVERNMENTAL AFFAIRS,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:49 p.m., in room
SD342, Dirksen Senate Office Building, Hon. Daniel K. Akaka,
Chairman of the Subcommittee, presiding.
Present: Senators Akaka and Burris.
Also Present: Senator McCaskill.
OPENING STATEMENT OF SENATOR AKAKA
Senator AKAKA. I call this hearing of the Subcommittee on Oversight of Government Management, the Federal Workforce, and the
District of Columbia to order.
I want to welcome our witnesses and thank you so much for
being here. Todays hearing will examine S. 372, the Whistleblower
Protection Enhancement Act of 2009, which I and other Members
introduced earlier this year. First, I would like to thank Senator
Collins, the lead Republican cosponsor of S. 372, and Members of
the Homeland Security and Governmental Affairs Committee who
are cosponsors, including my good friend Senator Voinovich, a
champion of Federal employees, and Chairman Lieberman for their
support. I want to mention that Senators Collins and Voinovich are
not able to attend todays hearing due to last-minute scheduling
conflicts, but I know they very much wanted to be here. I would
also like to recognize Senators Grassley and Levin, who have been
long-time supporters of strengthening whistleblower protections.
The Whistleblower Protection Act is an important cornerstone of
our Nations good government laws. Federal employee whistleblowers play a crucial role in alerting Congress and the public to
government wrongdoing and mismanagement, protecting our civil
rights and civil liberties, helping to keep us safe, and rooting out
waste, fraud, and abuse. I should also add that many of them have
some good ideas that can improve government operations.
Congress passed the Whistleblower Protection Act of 1989
(WPA), and amendments to improve the WPA in 1994, to strengthen protections for Federal employee whistleblowers. However, a series of rulings by the Merit Systems Protection Board and the Fed(1)
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eral Circuit Court of Appeals have created a number of loopholes
in the laws protections. The law has become so weak that many
employees, with good reason, fear they will not be protected from
retaliation if they come forward to report wrongdoing.
In 2000, I first introduced a bill to strengthen the WPA with
Senator Levin. Over the years, the consensus that action is needed
has grown broader, and the commitment of those involved has
grown deeper. During each Congress, we have moved closer to enacting stronger whistleblower protections.
Last year, our bill passed the Senate by unanimous consent. The
House passed a similar bill, H.R. 985. Unfortunately, we were not
able to work out the differences between the bills before the 110th
Congress adjourned.
It is very encouraging to be working with an Administration this
year that is engaged in trying to work through the details of the
legislation. President Obama has stated that his Administration is
committed to creating an unprecedented level of openness in Government.
I know this Administration is deeply committed to transparency
and accountability, and I believe that by working together we will
enact stronger whistleblower protections, which is so important to
those larger goals.
There is broad agreement on a number of provisions that are in
both S. 372 and the House companion bill, H.R. 1507. These include the need to: Clarify that any whistleblower disclosure truly
means any disclosure; provide a process to review retaliatory security clearance revocations and suspensions; provide whistleblower
protections to employees of the Transportation Security Administration (TSA); protect disclosures of scientific censorship; suspend
the Federal circuit courts exclusive jurisdiction; and make a number of other important changes. However, there remain a few unresolved issues, and this hearing will focus largely on grappling with
those particular issues.
The first is how to best protect national security whistleblowers.
For too long, national security whistleblowers have not had secure
avenues to disclose government waste, fraud, abuse, and mismanagement. Some undoubtedly have stayed quiet, while some
have leaked classified information to the media. We must ensure
that there are secure channels to bring problems in the Federal
Government to Congress attention. Congress, with the appropriate
security clearance requirements and procedures for safeguarding
information, must be able to fulfill its constitutional oversight responsibilities. I hope today we will have a productive discussion on
ways to address this important issue.
The other unresolved issue is whether a safety valve is needed
to protect whistleblowers if the administrative process is not working. The House companion bill would allow whistleblowers to file
their cases in district court if the Merit Systems Protection Board
(MSPB) has not acted within 180 days. Many whistleblower advocates believe that this is a needed check to ensure that our efforts
to strengthen whistleblower protections are not gradually undone,
as they have been in the past. On the other hand, management
groups and the past Administration have expressed concerns that
fear of having to defend their actions to a jury might dissuade Fed-
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eral managers from disciplining problem employees. Additionally,
the past Administration was concerned that this would allow forum
shopping; employees dissatisfied with the direction of their MSPB
proceedings could move into district court after 180 days.
I hope to address these two issues in some depth today and explore the effects different approaches would have on the protections
for Federal employee whistleblowers, on Federal agencies, on congressional oversight, and on national security.
Whistleblowers make government more efficient and effective by
disclosing waste, fraud, abuse, and illegal activity. As a long-time
proponent of improving government performance through sound
management practices and accountability, I am confident we will
succeed in enacting legislation this year that will enhance the system of whistleblower protections.
I look forward to hearing from our witnesses today. I want to
welcome our first panel to the Subcommittee today. Rajesh De,
Deputy Assistant Attorney General in the Office of Legal Policy at
the Department of Justice, is the sole witness on this panel.
It is the custom of this Subcommittee to swear in all witnesses,
and I ask you to please stand and raise your right hand. Do you
swear that the testimony you are about to give this Subcommittee
is the truth, the whole truth, and nothing but the truth, so help
you, God?
Mr. DE. I do.
Senator AKAKA. Thank you very much. The record will note that
the witness responded in the affirmative.
Before we start, I want you to know that your full written statement will be part of the record.
TESTIMONY OF RAJESH DE,1 DEPUTY ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL POLICY, U.S. DEPARTMENT OF
JUSTICE
Mr. DE. Good afternoon, Chairman Akaka. Thank you, and

thank you to Ranking Member Voinovich and the other Members
of the Subcommittee for the opportunity to appear here today to
discuss the Whistleblower Protection Enhancement Act. This Administration strongly supports protecting the rights of whistleblowers. We recognize that the best source of information about
waste, fraud, and abuse in government is often a government employee committed to public integrity and willing to speak out. Empowering whistleblowers is a keystone of the Presidents firm commitment to ensuring accountability in government.
A government employee who speaks out about waste, fraud, or
abuse performs a public service. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. Yet, too often whistleblowers are afraid to call attention to wrongdoing in their workplace. We need to empower all Federal employees as stewards of
accountability. Put simply, accountability cannot be imposed solely
from the top down.
The bottom line is we must make sure that all Federal employees
at all levels are able to do what it takes to eliminate waste, fraud,
1 The
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prepared statement of Mr. De appears in the Appendix on page 31.
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and abuse. At the same time, we must preserve the Presidents
constitutional responsibility with regard to national security information and ensure that agency managers have effective tools to
discipline employees who themselves may engage in waste, fraud,
or abuse.
We recognize that the Executive Branch and the Congress have
long held differing views regarding the extent of the Presidents
constitutional authority over national security information. Putting
aside these constitutional differences to the extent possible, our
focus today is on achieving common ground and a workable solution toward our shared goal of increasing the protections available
for Federal whistleblowers, including those who work in the national security realm. Creating a system that sets the right incentives for Federal employees and managers is not easy, as evidenced
by multiple efforts to reform the system in each of the past three
decades. This Administration believes that the time to reform the
system has come again.
I would like to discuss some key components of whistleblower reform as they relate to the legislation currently pending before the
Senateboth with respect to civil service issues and national security issues.
Turning first to the civil service issues, this bill would make a
number of important changes to the ways in which whistleblower
claims are adjudicated. For example, the bill would for the first
time allow whistleblowers to obtain compensatory damages. That is
a matter both of simple fairness and of practicality. A whistleblower who suffers retaliation should be made whole, plain and
simple, and we agree with this measure.
The bill would also make several important changes to the definition of protected disclosure. Under current law, a whistleblower
is not protected if she informs her boss of wrongdoing, only to find
out later that her boss was the one responsible for that wrongdoing. Thus, under current law, the employee would be protected
for going to the Washington Post, but not to her own supervisor.
Changing the law will encourage employees to tell their supervisors
about problems in the first instance, which is usually the easiest
way to resolve them.
This Administration also supports modification of what is known
as the normal-duty disclosure rule. Under that rule, an employee
is not protected when he discloses wrongdoing as part of his normal
job duties, unless that disclosure was made outside of the normal
channels. This Administration believes, however, that normal-duty
disclosures should be protected, particularly when public health
and safety are at stake.
Beyond the civil service arena, the Administration also believes
that whistleblowers in the national security realm must have a
safe and effective method of disclosing wrongdoing without fear of
retaliation. We are pleased to see that this bill provides full whistleblower protection to TSA screeners, who literally stand at the
front lines of our Nations homeland security system. They deserve
the same whistleblower protections afforded to all other employees
of the Department of Homeland Security (DHS).
As this Subcommittee knows, the intelligence community is generally excluded from the Whistleblower Protection Act. Yet it is es-
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sential that we root out waste, fraud, and abuse in the intelligence
community just as elsewhere, and that intelligence community employees have safe channels to report such wrongdoing.
With this goal in mind, we propose the creation of an Intelligence
Community Whistleblower Protection Board (Board) within the Executive Branch. This Board would be comprised of senior presidentially appointed officials from key agencies within and outside
of the intelligence community, including inspectors general, to provide a safe and effective means for intelligence community employees to obtain redress if they suffer retaliation for disclosing waste,
fraud, or abuse. The Administration is currently in the process of
developing a proposal for how this Board would operate in a manner that protects both intelligence community whistleblowers and
the highly sensitive programs in which they work. We look forward
to working with the Subcommittee to craft a scheme that satisfies
our shared goals.
We also believe that this Board could provide a better vehicle to
review allegedly retaliatory security clearance revocations than the
measures set forth in the pending legislation. We are aware that
Congress has heard testimony in the past from individuals who
have claimed that their security clearances have been revoked due
to whistleblowing activities. This Administration has zero tolerance
for such actions. We believe that an employee who alleges that her
clearance was revoked for retaliatory purposes, for example, should
be able to appeal that revocation outside of her own agency.
Our proposed Board could recommend full relief to the aggrieved
employee, including restoration of the clearance, and could ensure
that Congress would be notified if that recommendation is not followed by the agency head. This mechanism would ensure that no
agency will remove a security clearance as a way to retaliate
against an employee who speaks truths that the agency does not
want to hear.
Finally, we believe that the proposed Board could provide an additional avenue for employees in the intelligence community to inform Congress of governmental wrongdoing. The Intelligence Community Whistleblower Protection Act of 1998 (ICWPA) currently
provides a vehicle for the Intelligence Community (IC) employees
to report matters of urgent concern to Congress. The ICWPA,
however, affords the individual employee no avenue for review of
a potential disclosure outside her specific agency. This Administration believes that no Federal agency should be able to hide its own
wrongdoing. For this reason, we believe an IC employee should be
able to appeal to the Board if the agency head declines to transmit
information to Congress or declines to provide instructions to the
employee on how to do so.
Individual employees should also be entitled to alert appropriate
Members of Congress to the fact that they have made such an appeal so that Congress is aware that a concern has been raised to
our Board.
This legislation is merely one step in this Administrations plan
to ensure accountability in government. We very much appreciate
the efforts this Subcommittee has made over many years to devise
whistleblower protections that work. We look forward to working
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with you to help revise and improve this legislation to achieve our
shared goals.
Thank you, and I would be happy to take your questions.
Senator AKAKA. Thank you very much, Mr. De, for your strong
statement. The whistleblower community has expressed a strong
desire for mechanisms to provide a check on the MSPB and the
Federal Circuit should they again begin to undermine congressional intent for stronger whistleblower protections. Suspending
the Federal Circuits exclusive review of whistleblower cases might
be one mechanism for doing that. Additionally, the House bill
would allow whistleblowers to file their cases in district court after
the MSPBs decision or if the MSPB has not decided the case within 180 days.
Mr. De, is it appropriate to provide alternative court review to
ensure that new whistleblower protections are not gradually
chipped away under the existing review process, and if so, how
should it be structured?
Mr. DE. Thank you, Mr. Chairman. We agree in the first instance that there need to be multiple checks and balances or safety
valves, as you have put it, to ensure that the MSPB or any individual agency is not the last word in terms of having recourse for
Federal whistleblowers.
Now, with respect to Federal court review, we think one way to
accomplish that, as the Senate bill does, is to allow for multi-circuit
review of MSPB decisions. Although we think there have been benefits to allowing centralized review in the Federal circuit, namely,
a development of expertise and consistency in the law, we certainly
recognize that there are a number of concerns particularly among
those who are advocates for whistleblower rights and within the
Administration that this has not been sufficient. Accordingly, we
think multi-circuit review could allow for more expansive development of the law and serve as one of the safety valves that you have
suggested.
Thinking about this issue in a broader sense, we think that safety valves should be addressed in the context of the Federal Government more generally, whether it is the courts, the Congress or the
Executive Branch. So, on the one hand, while all circuit review
could be one way to accomplish this through the courts, we also
think there are important ways both within the Executive Branch
and within the Legislative Branchincorporating Congress into
thisthat we could achieve this as well.
For example, some of the proposed changes to the definition of
protected disclosure in both bills we think would actually allow
for additional outlets for safety valves for whistleblowers. For example, by allowing whistleblowers to tell their supervisors about
alleged wrongdoing or by allowing them to be protected for disclosures they make in the ordinary course, particularly for public
health and safety, this will provide new avenues for whistleblowers
to make sure that waste, fraud, and abuse is exposed.
In the Board structure that we have proposed and are working
through now, we think there is a vital role for Congress, particularly with respect to making sure that Congress is aware whenever
an alleged concern is raised to the Board. So we would hope, working with your Subcommittee, to build in multiple mechanisms to
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serve as another safety valve to bring in the Legislative Branch as
well. So when there is a potential disclosure that an IC employee
would like to make and raises it with the Board, we think it is very
important that employee be able to notify Congress that they have
raised such a concern with the Board.
So speaking at the macro level, we think there are multiple ways
to achieve this safety valve concept across the Federal Government.
One way would be to do so to allow for multi-circuit review in the
courts.
Senator AKAKA. Thank you, Mr. De. I understand that the Administration has not yet determined its position on whistleblower
access to U.S. district courts and jury trials outside of the national
security context. Assume for the moment that a jury trial provision
will be included in the final bill. Could you tell us what concerns
the Administration would have with crafting this provision, and do
you have any suggestions for how those concerns might be reduced
or resolved?
Mr. DE. Thank you, Mr. Chairman. Let me make a few preliminary remarks on the jury trial issue, and then I will address the
specific question.
We certainly recognize that the question of jury trials is an important one for advocates of whistleblower reform and for the Administration. Whereas the House bill, as you mentioned, provides
for jury trials, at least for non-national security whistleblowers, the
Senate bill allows for direct review, all-circuit review from the
MSPB. And as you mentioned, we have yet, as an Administration,
to come to a definitive view on where we stand on this issue, but
I would like to note that we think there are valid policy concerns
on both sides, and if I may make a few specific points in that regard.
As you noted, in particular with respect to national security
whistleblowers, we think district court review and jury trials is
particularly inappropriate in that context given the sensitive nature of the information at issue and the potential for wide-ranging
disclosure in district court. So putting that aside as a preliminary
matter, the second point I would like to make is we fully recognize
that jury trials are an essential part of our judicial system and a
reflection of our democratic values, and are seen by many as an important remedial outlet for the airing of whistleblower allegations
and for claims of reprisal.
The key issue from our perspective is the striking of an appropriate balance between the extent to which the prospect of a jury
trial serves as an effective tool for encouraging whistleblowers to
come forward with allegations of waste, fraud, and abuse versus
the extent to which it serves as a disincentive to agency managers
who may be increasingly concerned about taking legitimate personnel actions against poorly performing employees, some of whom
themselves may actually be engaged in waste, fraud, and abuse. So
that is the balancing that we are thinking through now.
Getting to your specific question about if a jury trial provision is
included in a bill ultimately by Congress, there are a couple specific suggestions we would have, two specific concerns about juries
in particular in the whistleblower context.
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As you know, the way a whistleblower case generally proceeds is
that once the claimant makes a prima facie case, the defendant
must establish by clear and convincing evidence that the personnel
action was taken for a legitimate purpose. We have concerns that
juries may not be the most well-equipped venue to deal with the
clear-and-convincing-evidence standard. As a general matter, juries
either deal with the preponderance standard in the civil context or
the beyond-a-reasonable-doubt standard in the criminal context.
The second point I would like to make is putting whistleblower
claims in front of a jury raises complex, although certainly not insurmountable, questions about what issues would be most appropriate for the jury versus the judge. In other words, what questions
are questions of law versus questions of fact?
Now, this is an issue that comes up in many areas of law, so it
is not unique here, but one prime example might be what would
constitute a gross mismanagement of funds. Now, I think we would
probably all agree that figuring out what is a gross mismanagement, once you unpack it, has both questions of law and questions
of facts built in.
When we contemplate the idea of expanding the right to jury
trial with the idea of all-circuits review, I think we need to take
special care to ensure that we have a good sense of what would be
appropriate questions for the jury versus the court to ensure that
we do not have inconsistent development across multiple circuits.
So with these thoughts in mind, the suggestions we would have
are three-fold:
One, if a right to a jury trial is included, we would suggest that
it be limited to the non-national security context.
Two, we would also suggest that Congress consider adopting a
preponderance-of-the-evidence standard at least for jury trials and
a burden-shifting framework similar to the Title VII context, rather
than incorporating the clear-and-convincing standard that is used
before the MSPB.
And, third, we would suggest that Congress consider adopting
damages caps analogous to the Title VII context to ensure that incentives are properly aligned and to alleviate concerns about runaway juries.
So, to the extent a jury provision is included, those are some of
our specific suggestions.
Senator AKAKA. Thank you, Mr. De. Let me now call on Senator
McCaskill for her questions. Senator McCaskill.
TESTIMONY OF HON. CLAIRE MCCASKILL, A U.S. SENATOR
FROM THE STATE OF MISSOURI
Senator MCCASKILL. Thank you, Mr. Chairman, and I especially

am appreciative today because I think technically I am not on this
Subcommittee, but because this is an area in which I am very interested, the Subcommittee was kind enough to allow me to come
and question.
Let me cut to the chase. My concern is about jury trials, and I
must tell you I am perplexed and confused that everyone would not
want a whistleblower to be able to get a jury trialevery whistleblower on the face of the planet. The exceptions and the differences
we have carved out to me make no sense.
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For example, right now, if you are a contractor in the Department of Defense (DOD) and there is a whistleblower in your company, that whistleblower is entitled to a jury trial. Now, how weird
is it that they could be sitting side by side with a Federal employee
doing the exact same work, seeing the exact same problem, and one
would be entitled to a jury trial because they worked for a private
contractor and the other one would not because they worked for the
Federal Government?
Can you give me any rational basis on which to distinguish between these two people?
Mr. DE. First, the Administration appreciates your support in
particular for the provisions in the Defense Reauthorization Act
last year and in the stimulus bill this year for extending jury trial
rights to contractors, both in the defense community and for recipients of stimulus funds.
I think the short answer is it is too soon to tell what the ramifications have been from those provisions. So, in other words, to the
extent that there are concerns about the chilling effect of jury trials
on legitimate agency managers, putting aside those that we think
are doing bad things, we feel like we have not yet had an opportunity to determine from these limited extensions that have been
put in place so far whether the balance that I discussed earlier is
something that should be of concern.
So I am not going to defend a distinction between Federal employees and contractors. We are trying to puzzle through the impact of the provisions that have been recently enacted and whether
there is a valid concern that we have heard articulated and can understand in theory but is playing out under the provisions that you
have helped enact recently.
Senator MCCASKILL. Well, we know that 46 percent of the fraud
that has been uncovered, according to the certified fraud examiners
(CFEs) report, they sampled 1,000 cases in 2008; 46 percent of the
fraud we found came from employees. That is half. The majority of
all Federal fraud recoveries coming from whistleblower discoveries.
I am trying to understand what is it about a whistleblower being
able to go to trial that keeps management in an agency from getting rid of a bad employee. I do not understand the causal connection there.
Mr. DE. I think there are a couple of factors that we have been
trying to unpack and put forth for your consideration. One is a perceptionand we are trying to uncover what is behind thatas to
whether there is a fear of a greater litigation burden that agency
managers will feel like they will get dragged into, both in terms of
time and in terms of personal reputation.
Now, that may or may not be a legitimate concern that we need
to address, but that is something that has been expressed. So we
are trying to assess the validity as to what is behind that.
I think the second point is that, as a general matter, I think we
all want to ensure that waste, fraud, and abuse is exposed, just as
a first principle. How do we get there? And part of the way of getting there is ensuring that agency managers are not all bad. They
can actually take effective action against subordinates who they believe are engaging in this abuse.
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So that is the waste, fraud, and abuse we do not necessarily hear
of because it is taken care of in a simple personnel action. But I
say that because we want to make sure we do not discourage managers from being able to takeout of fear of being dragged into a
district court action, fear of taking legitimate personnel actions.
Senator MCCASKILL. So what you are saying is a manager has
a bad employee, and they are worried that if they try to take action
against this bad employee, this bad employee is all of a sudden
going to claim whistleblower status and try to get into court because they are being disciplined in the workplace, they are going
to claim that they have whistleblower status. Is that what they are
alluding to?
Mr. DE. I think there is partly a concern, given that in the whistleblower context the standardthe evidentiary standard is relatively low at the prima facie stage, and for good reason. We do not
want whistleblowers to have a hard time of making their case. But
I think the concern is given that low standard and the clear-andconvincing rebuttal standard, as Congress set up, that is particularly concerning in the context of a jury trial in Federal district
court.
Senator MCCASKILL. Well, I know that you are probably aware
I know you are a very smart guy, but, first of all, the cases are
really hard to make. I wish I could stack documents here to show
you all the successful whistleblower cases that have been brought.
They are expensive. It is difficult to find a lawyer that will represent you. I really think the arguments against jury trials in this
area are a pig in a poke, and I think we need to get to the business
of respecting and being deferential to whistleblowers and giving
them every right we can possibly give them, because they are doing
the heavy lifting when it comes to waste, fraud, and abuse in this
government right now, and we need to give them every tool they
can possibly have to do it well.
I thank you, Mr. Chairman, for giving me the opportunity to ask
questions.
Senator AKAKA. Thank you very much, Senator McCaskill, and
thank you for being here.
Senator Burris, your questions, please.
OPENING STATEMENT OF SENATOR BURRIS
Senator BURRIS. Thank you, Mr. Chairman. And to our witness,

the whistleblower issues seem to be the hot topic, and, Mr. Chairman, you certainly raised the question. I am just trying to see if
this Administrations position is that the whistleblower should not
have a jury trial if they are involved in one of the security agencies. Is that what you are saying?
Mr. DE. Certainly with respect to the national security agencies,
yes, we believe that jury trials would be particularly inappropriate
in that context, yes, sir.
Senator BURRIS. So what type of protection, other than the hearing officer or the administrative judgeis that the only person who
would then hear the evidence that is presented by this whistleblower that is saying that something is afoot here?
Mr. DE. Definitely not. We certainly agree that review should not
stop within the individual employees agency. We agree that no in-
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dividual agency should be the last word in terms of waste, fraud,
and abuse
Senator BURRIS. Pardon me, Mr. De. I am taking it beyond the
agency. I am taking it to some arbitrating body. And you are saying it should be only the hearing officer or the administrator or the
judge that would be hearing this whistleblowers evidence against
whatever they are alleging is taking place that is waste, fraud, or
abuse.
Mr. DE. We would propose that the appeal of the whistleblowers
claim, at least for the national security world, could be taken outside of their agency to a new Executive Branch Intelligence Community Whistleblower Protection Board. That Board would be comprised of senior Presidential appointees, both within and outside
the intelligence community, and it would include inspectors general.
Senator BURRIS. Yes, because I am looking at this, and in one of
the testimonies of the persons who are coming on the second panel
of witnesses, it called for reviewing past cases and trying to find
ways to make amends for some of the unfortunate situations whistleblowers have endured in the past.
What is the Administrations stand on some retroactive review of
these cases?
Mr. DE. As an initial matter, we believe that this bill is just one
piece of the Administrations broader effort to ensure increased accountability in government, increased protections for whistleblowers, and increased transparency. Accordingly, we would hope
that once this bill iseven as this bill is being moved through, we
can start discussions on a range of fronts, whether it has to do with
the MSPB, the Office of Special Counsel (OSC), or a range of other
issues of interest to this community.
With respect to the retroactive consideration of cases, that is certainly something that we think should be paid attention to, and we
will take it under consideration.
Senator BURRIS. And back to this special Board, you do not think
that the MSPB would be sufficient to handle these security whistleblowers?
Mr. DE. That is correct. We think it would be an inappropriate
venue for these cases for a variety of reasons. One, we do not think
as currently constituted the MSPB is well equipped to deal with
the potentially large amount of sensitive information that could potentially arise in these cases. Second, with respect to the security
clearances in particular, we believe that the granting of security
clearances and issues around who should have access to sensitive
national security information is a core Executive Branch Presidential prerogative, and for that reason we would suggest creating
this new Board. If the Board is going to be dealing with security
clearance revocation issues
Senator BURRIS. What experience would this new Board have?
Who is this new Board?
Mr. DE. The Board would be comprised of folks who have experience in this area. We would love to work with the Subcommittee
to determine the exact composition of the Board, but it would be
independent, presidentially appointed nominees.
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Senator BURRIS. That has to have a whole staff and a whole
other bureaucracy established and hearing officers and more cost
to the taxpayers.
Mr. DE. We would hope that the initial adjudications and the
record would be established during the agency process. This Board
would take a de novo review of the process and the staffing expertise that happened at the agency level.
Senator BURRIS. OK. The House version of this bill calls for protection for Federal contractors, and this would be a broad expansion of the existing law. Does the Administration have an opinion
on providing these protections for Federal contractors? And do you
believe that this protection would aid us in ensuring adequate oversight of government spending and operations?
Mr. DE. Given the scope of the Federal activities performed by
contractors and the amount of Federal dollars that go to Federal
contractors, we certainly understand the imperative to extend
whistleblower protections to Federal contractors. And as a general
matter, yes, we do support that extension.
I would note that this has only been done in piecemeal fashion
so far. Under the DOD authorization act last year, such rights were
extended to DOD contractors, and under the stimulus bill this year
to recipients of Federal stimulus funds. We have not yet seen how
that has played out, and to the extent that there are any tweaks
necessary in the framework for the contractor side of things, that
is yet to be determined.
I would make two particular points as Congress considers whether to extend whistleblower rights to Federal contractors. In particular, as currently drafted, the House bill would require the appropriate agency inspectors general (IG) to conduct an investigation
of every whistleblower allegation unless it were determined to be
frivolous.
Now, I think it is unclear to us to what extent this would pose
an additional burden on our already stretched-thin resources
among IG offices across the Executive Branch, and so that is one
issue I would flag as Congress thinks about this.
The second issue is that it is worthwhile to consider what limitations period would be appropriate to ensure that contractor whistleblower claims are both raised and resolved in a timely manner.
And the third point I would make is the Recovery Act expressly
covered State and local grantees of Federal funds, Federal stimulus
funds. To the extent that a provision is included in this legislation
that covers contractors and grantees, I think there are some unique
State and local concerns that would be raised by extending Federal
whistleblower protection coverage to all State and local jurisdictions that are recipients of Federal funds. It is not that it is an insurmountable problem; it is just something that I think needs to
be thought through carefully.
Senator BURRIS. Thank you, Mr. Chairman.
Senator AKAKA. Thank you very much, Senator Burris.
Mr. De, at the 2007 hearing before the House Federal Workforce
Subcommittee, the MSPB witness at that time expressed concern
that the House bills district court provision effectively would create
a 180-day standard for the Board to adjudicate whistleblower appeals.
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Do you think this time frame would create pressure on the
MSPB to come to a decision in 180 days, perhaps not giving it
enough time to fully consider a case?
Mr. DE. Let me start by saying we are well aware of concerns
that have been raised about the pace of adjudications moving
through the MSPB. As you rightly point out, that needs to be considered, if such a provision is included, is what effect that would
have on the MSPB as it is currently constituted if litigants could
go directly to Federal court after 180 days and whether that would
have a salutary effect or a negative effect on how the MSPB goes
about its own business.
I think it would be best to hear directly from the MSPB, and I
know some of the witnesses today feel strongly about the MSPBs
structure and time frame. But I do think it is a valid concern at
least to be considered as to what the impact would be on the MSPB
as currently structured if a provision were allowedif it were allowed for claimants to go to Federal district court until the MSPB
had made a resolution and what a time frame would do to that decisionmaking cycle.
Senator AKAKA. Mr. De, national security whistleblowers make
some of the most important disclosures regarding the security and
safety of this Nation. We will hear later from witnesses who feel
strongly that the system to hear retaliation claims by FBI and
other intelligence community whistleblowers does not work.
Please tell us more about the Administrations views on the need
to improve protections for whistleblowers in the national security
realm, both within and outside the intelligence community.
Mr. DE. First, we could not agree more that waste, fraud, and
abuse needs to be exposed in the intelligence community in the
same way it needs to be exposed across the Federal Government.
It is just as important there as it is elsewhere. In fact, it might be
more important given the importance of those programs to our collective security.
For precisely the reasons that you have articulated, Mr. Chairman, we believeand the reasons we have proposed an Intelligence
Community Whistleblower Protection Board is that we believe it is
high time that IC whistleblowers had a mechanism to address reprisal concerns that is outside their own agency. That is how they
are limited today. So for the first time, we think it is critical that
there be an avenue to address their retaliation claims outside of
their individual agency.
This Board that we are proposing would be able to review de
novo the record that was established within the agency and would
bring a different perspective to these claims. It would be comprised
of people from within and outside the intelligence community and
would have membership that included inspectors general from
across the government, folks who have experience dealing with
whistleblower claims generally and understand the burdens in
these types of cases.
I think as a general matter we think it is important that any
structure that is set up for national security whistleblowers in
making disclosures is structured in such a way to create incentives
that those disclosures are made through appropriate channels, to
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either Executive or Legislative Branch officials who are properly
cleared with the appropriate mechanisms in place.
So I think, as a general matter, it is important to structure a system that reduces the incentive for national security employees to
feel that their only recourse is to go to the press, then they have
to risk the potential of retaliatory implications of those disclosures.
Senator AKAKA. Thank you. Mr. De, as you noted, the Administration has proposed creating the Intelligence Community Whistleblower Protection Board for Federal employees who want to make
classified disclosures to Congress. As I noted earlier, I understand
that the Administration is committed to transparency, but we must
ensure that this Board makes fair decisions and facilitates congressional oversight and transparency regardless of the Administration.
Do you have thoughts on what safeguards should be built in to
accomplish that?
Mr. DE. Thank you, Mr. Chairman. Yes, I think there are a couple of things I would propose. One is that we think congressional
notification is a key element of this, so we believe that any structure that is set up with this new Intelligence Community Whistleblower Protection Board should ensure that Congress is notified
whenever an adverse decision is made against an employee who
brings a claim of retaliation to the Board as an initial matter.
Second, we think it is absolutely critical that an intelligence community employee who wishes to make a disclosure to Congress and
wants to avail themselves of the Board in order to do so is able to
alert appropriate Members of Congress that they have presented
an issue to the Board so that Congress is aware that there is an
issue pending and can take the appropriate measures in dealing
with the Executive Branch to provide sufficient oversight.
Third, we think there probably is room for considering what appellate rights from this Board would make sense. I think this is an
issue that needs to be thought through carefully, particularly with
respect to security clearance determinations, which we feel must
stay within the Executive Branch, and disclosures of classified information. However, there are a range of whistleblower complaints
that may come from intelligence community employees that may
have nothing to do with sensitive information. And for those cases,
we think there may be a role for some additional appellate review,
and we would be happy to work with the Subcommittee to think
through that.
Senator AKAKA. Thank you very much for your responses.
Senator Burris, do you have further questions?
Senator BURRIS. I have no further questions for this witness.
Senator AKAKA. Thank you. Mr. De, I want to say thank you so
much for being here. As you know, we are trying to craft a bill that
can be effective, and we are pleased to be working with you on this.
Your responses will be helpful to us as we move forward in the legislative process.
Mr. DE. Thank you, Mr. Chairman.
Senator AKAKA. Thank you.
Now I would like to call on the second panel to come forward.
The second panel of witnesses includes William L. Bransford, who
is the General Counsel of the Senior Executives Association. We
also will have Danielle Brian, who is the Executive Director of the
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Project on Government Oversight; Thomas Devine, Legal Director
of the Government Accountability Project; and Robert G. Vaughn,
Professor of Law at the American Universitys Washington College
of Law.
I want to welcome all of you to this hearing today. As you know,
we have a custom here in the Subcommittee to swear in all witnesses. I would ask all of you to stand and raise your right hand.
Do you swear that the testimony you are about to give this Subcommittee is the truth, the whole truth, and nothing but the truth,
so help you, God?
Mr. BRANSFORD. I do.
Ms. BRIAN. I do.
Mr. DEVINE. I do.
Mr. VAUGHN. I do.
Senator AKAKA. Thank you. Let the record note that the witnesses responded in the affirmative.
Before we start, I want you to know that your full written statements will be made part of the record. I would also like to remind
you to keep your remarks brief given the number of people testifying this afternoon.
Mr. Bransford, will you please proceed with your statement?
TESTIMONY OF WILLIAM L. BRANSFORD,1 GENERAL COUNSEL,
SENIOR EXECUTIVES ASSOCIATION
Mr. BRANSFORD. Thank you, Chairman Akaka and distinguished

Members of the Subcommittee. I appreciate the opportunity to testify this afternoon about reforms on whistleblower protection. The
Senior Executives Association (SEA) supports increased protections
for Federal whistleblowers and is supportive of S. 372 and H.R.
1507. But the association does object to the jury trial provisions
contained in the House bill. We believe that whistleblower reform
is long overdue, and we hope the differences between the Senate
and the House legislation can be reconciled and that common-sense
reform can occur.
SEA would like to ensure that such legislation protects whistleblowers, holds managers accountable for their acts while not imposing burdens on supervisors who are trying to effectively manage
their employees.
The last time major reform of whistleblower protection laws occurred was in 1989, with the passage of the Whistleblower Protection Act. A series of decisions from the MSPB and Federal Circuit
Court of Appeals narrowly interpreted that reform, resulting today
in little, if any, protection for whistleblowers.
Both S. 372 and H.R. 1507 greatly expand the definition of what
constitutes a protected disclosure. In my opinion, most instances
over the past decade where protection was not provided to a wouldbe whistleblower are related to interpretations by the Federal circuit.
Senior executives hold a unique position in the government: They
both oversee employees who are whistleblowers and may be whistleblowers themselves. Although SEA supports the reforms provided in the legislation, we do not support jury trials for those who
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claim reprisal. Section 9 of H.R. 1507 would allow the right to a
jury trial 180 days after an employee files a whistleblower claim
with the MSPB or the OSC. In our opinion, jury trials will contribute to the perception of unacceptable risk for a Federal manager who is trying to deal with a problem employee.
The reasoning behind a jury verdict when it occurs is not explained. A sensational jury trial resulting in a finding against the
government because of the managers actions along with a substantial award of damages will create a fear among fellow managers of
being subjected to a similar fate. This leads managers to be wary
of making those tough decisions they have to make when dealing
with problem employees.
It is important to remember that the issue in a whistleblower
case is often whether the employee claiming whistleblower status
is a problem employee using whistleblower laws as an undeserved
shield or, on the other hand, is a legitimate whistleblower who is
experiencing an adverse action because of protected activity. Adding jury trials to the mix will give even the best manager pause
before confronting an employee who has made a disclosure, regardless of how valid the managers case or how pure the managers
motives.
The jury trial provision in the House bill is particularly problematic because it contains no limit on damages and is vague about
what issues go to the jury. Also, it calls for a right to a jury trial
even if the special counsel or the MSPB promptly and appropriately dispose of a whistleblower claim. SEA believes that the
MSPB should be given a chance to apply a broader, more appropriate law that protects whistleblowers. The Boards record of efficient resolution will result in prompt and thorough decisions that
can be reviewed by any appropriate circuit court of appeals in the
country.
To this end, SEA also supports other common-sense provisions in
the bill such as providing transparency to a claim that security
clearance revocation is based on whistleblower reprisal, providing
managers with indemnification for attorneys fees they expend if
the manager is found to have been just doing his or her job after
having been accused of reprisal, and allowing combinations of disciplinary actions to be imposed on a guilty manager.
SEA encourages the Subcommittee to move forward with the language contained in S. 372. In our view, whistleblower reform without jury trials will contribute to a government that works.
On behalf of SEA, I thank you for your consideration of the critical enhancements to the Whistleblower Protection Act that will
clarify the law for agencies, Federal managers, and whistleblowers.
This bill is clearly a good government initiative that SEA would
like to see move forward. SEA looks forward to working with you
to ensure that this legislation creates a fair and transparent system for addressing whistleblower and executive concerns.
Thank you, Mr. Chairman.
Senator AKAKA. Thank you, Mr. Bransford. And now we will hear
from Ms. Brian.
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TESTIMONY OF DANIELLE BRIAN,1 EXECUTIVE DIRECTOR,
PROJECT ON GOVERNMENT OVERSIGHT
Ms. BRIAN. Thank you very much, Chairman Akaka, for inviting
me to testify today and for your long leadership on whistleblower
protections and protecting Federal employees.
Project on Government Oversight (POGO) was founded by Pentagon whistleblowers concerned with wasteful spending and weapons that did not work. Over the years, our mission has evolved, but
we remain devoted to our roots of protecting brave truth tellers inside the Federal Government.
In general, POGO believes the House language does a much better job providing meaningful whistleblower protections than the
Senate companion bill for two reasons: It provides real due process
through access to jury trials, and it extends protections to our very
important national security whistleblowers. My colleague, Tom
Devine, is representing our coalition of organizations in supporting
access to jury trials, so I will focus my testimony on why we need
to protect national security whistleblowers.
Many Federal employees working in the intelligence agencies
were carved out from getting even the pathetic whistleblower protections that are accorded to other Federal employees, so that we
now have a situation, as Senator McCaskill just pointed out, where
contractors are protected even if, for example, the Federal employee who is overseeing them is not. There is currently a random
patchwork of laws, which provides protections to national security
contractors and some national security Federal employees, even intelligence ones, for example, at the Department of Energy (DOE)
and the Nuclear Regulatory Commission (NRC), but not others.
And these separate but equal systems set up within the CIA and
FBI are not working.
We entrust national security and intelligence Federal employees
with our Nations most sensitive information. Why would we not
also trust them to protect those secrets when working to correct
problems? And I would like to point out that in the earlier testimony from the Justice Department, I did not hear any argument
that explains why national security whistleblowers should not be
given the same right to a jury trial that other Federal employees
should have.
It is because of national security whistleblowers that we have
learned that, for example, Congress was being misled about A.Q.
Khans nuclear proliferation scheme; the existence of the CIAs secret prisons; our governments use of warrantless wiretaps; TSA
and FBI incompetence; and secret detentions at Guantanamo. Congress learned about all of these disclosures through the press, and
all of these whistleblowers lost their jobs. By not providing real
protections for national security whistleblowers, we are actually
driving them to the press and encouraging leaks of classified information. That is a lose-lose situation.
I want to be very clear. We are not asking to protect the disclosure of classified information to anyone who is not cleared to receive it. Whistleblower protections will not supersede existing rules
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for handling classified information. We would support adding language to the bill to make this explicit, if necessary.
It is in the self-interest of the Congress, perhaps most importantly, to encourage those who are aware of wrongdoing to make
their disclosures to Congress. Formal briefings from agency heads
have their place, but they do not truly inform the Congress of the
real goings-on at an agency, and House Intelligence Chairman
Silvestre Reyes just recently articulated this point in the letter he
sent to every CIA employee where he pointed out that essentially
the House Intelligence Committee had been focused on notification
rather than real discussion. I would argue the most effective way
to begin real oversight would be to encourage and protect national
security whistleblowers coming to the Congress.
By virtue of your being elected to office, you have both a right
and a duty to hear the vast majority of our Nations secrets, and
many of your staff have been similarly cleared. For particularly
sensitive information, you as Members of Congress also have a
right to demand to be read into those programs. POGO believes
strongly that the Congress should not blindfold itself by adding
new restrictions on your access to information.
It is in this provision regarding disclosures to Congress that the
Senate language is actually preferable to the House. We believe the
House language is too confusing for a whistleblower in that it is
very specific about which committee and which kind of information
is protected, and the reality is that most whistleblowers do not
know which Member of Congress sits on what committee and
which committee has what jurisdiction over what agency.
For example, I would also point out the best congressional oversight of the FBI has been conducted by Senator Grassley, and it
has been out of his personal office.
One problem that remains with the Senate provision is the use
of the word authorized before Members of Congress. Who authorizes them? The Executive Branch? History has shown the Executive Branch has repeatedly and mistakenly asserted its power to
do so.
Let me briefly put faces on three national security whistleblowers.
As a CIA intelligence officer and later in the Pentagon, Rich Barlow learned that top U.S. officials were allowing Pakistan to manufacture and possess nuclear weapons. He also discovered that U.S.
officials were hiding these activities from Congress. Barlow objected and suggested to his supervisors that Congress should be
made aware of the situation. Because Barlow merely suggested
that Congress should know the truth, he was fired. Barlow is now
destitute and living in a trailer.
Federal Air Marshal Robert MacLean protested DHS plans to
secretly neutralize budget shortfalls by canceling air marshal coverage on long-distance flights, even though there was a suicide terrorist hijacking alert. He protested up the chain of command to no
avail. Ultimately, he made an unclassified disclosure to the press.
Three years later, the agency fired him because they retroactively
labeled information in his disclosure as sensitive security information. His case has been pending before the MSPB for 3 years without a hearing. He is unemployed.
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When the Department of Justice (DOJ) lawyer, Thomas Tamm,
became aware of the governments use of warrantless wiretaps, he
agonized over the legality of the program. He was rebuffed when
he tried to tell a former colleague working on the Hill about his
concerns. Ultimately, he alerted the New York Times, their story
earning a Pulitzer. Congress constrained the program, but Mr.
Tamm became a target of an FBI investigation, lost his job, and
has racked up tens of thousands of dollars in legal fees.
Passing strong whistleblower legislation is a significant step. It
will not, however, be enough. We cannot forget these people whose
careers have been shattered because this law has been so late in
coming.
I was very gratified, Senator Burris, that you raised this question to the Justice Department witness and that he expressed an
open mind to reviewing cases such as Barlow, Maclean, and Tamm
to see if there is some way of making them whole. That would be
a message sent around the Federal Government that whistleblower
protections are more than a campaign promise, they are a reality.
Thank you.
Senator AKAKA. Thank you very much, Ms. Brian. Now we will
hear from Mr. Devine.
TESTIMONY OF THOMAS DEVINE,1 LEGAL DIRECTOR,
GOVERNMENT ACCOUNTABILITY PROJECT
Mr. DEVINE. Thank you, Mr. Chairman. I am testifying today for

the Government Accountability Project, but my views reflect those
of the Make It Safe Coalition, a trans-ideological, non-partisan network of whose mission is supporting whistleblowers, those employees who use free speech rights to challenge abuses of power that
betray the public trust. It used to be a little bit more lonely battle.
A few years ago, there were only about 20 groups working on this.
As of today, we have over 300 who have signed our coalition letters
or sent their own letters of support.
Just this morning, the Society for Conservation Biology sent you
a letter on behalf of its 12,000 members, many of them Federal scientists, in support of H.R. 1507, the House version of this legislation.
A few weeks ago, during a 24-hour time period, we got so much
public support for the House version of the Whistleblower Protection Act that it took second place in the White Houses Open Government Dialogue for Transparency in Government.
All of us are united behind one basic principle: That whistleblowers should be entitled to best practice free speech rights enforced by full access to court, which is what President Obama
promised when he ran for office.
I also want to thank you, Mr. Chairman, because we have to
thank you for marathon leadership of this issue. I have very vivid
memories of back in 1999, your aide, Nancy Langley, taking me to
every Member of this Committee just to get them interested in the
Whistleblower Protection Actlet alone fix it. And after 10 years,
1 The
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with your continued leadership, we are going to get this job done,
and we are going to do it right.
We have learned a lot over the last 10 years, and todays forum
creates the necessary record to apply those final lessons learned.
And the foremost lesson is that doing it right means a fair day in
court.
This is the fourth time Congress will have passed the same free
speech rights. Why? The Achilles heel has always been inadequate
due process. The Whistleblower Protection Act was largely passed
because employees had only won four cases before the MSPB in the
1980 whistleblower cases. Congress kept the same due process
structure, but gave more guidance for the Board. Well, they ignored
it, so in 1994, Congress amended the law, and again gave the
Board more guidance. Well, guess what? In this millennium, since
2000, we have only had three whistleblowers who have won decisions on the merits.
Enough is enough. It is time to end the broken record syndrome,
Mr. Chairman.
One thing that has been very conspicuous by its absence from todays hearing is a defense of the MSPBs record. It is not surprising, though, because there is no credible defense. Its track
record is 3 in 53 against whistleblowers for decisions on the merits
since the millennium. And never has a whistleblower won a case
in 30 years on the misconduct that matters most to the taxpayers,
government breakdowns that have national implications: The Challenger disasters, Star Wars, Iran-Contra, domestic surveillance,
food contamination, tens of thousands of people dying from unsafe
prescription drugs; weapon of mass destruction; the warnings before 9/11. None of the whistleblowers who challenged those breakdowns could find justice at the MSPB.
I want to spend the last portion of my time responding to some
of the concerns that were raised this morning, and, in particular,
that Federal managers would be too scared to fire whistleblowers
if they had access to jury trials. And there actually is some common ground here.
Mr. Bransford made this point by stating that, Adding jury
trials to the mix will give even the best manager pause before confronting an employee who has made a disclosure. . . . Well, that
means the law might finally start working. Federal managers
might pause before they take actions to fire whistleblowers. Thank
goodness.
But why is it that Federal managers are the only ones too scared
to do the right thing in whistleblower cases? We have had jury
trials for State and local employees for over a century. It has been
there for Equal Employment Opportunity (EEO) employment discrimination cases since 1991. It has been there for corporate workers in 13 precedents, including eight since 2002, five in the last
Congress. What is it about these Federal managers that they are
afraid to exercise authority when people challenge government misconduct? Maybe the solution, Mr. Chairman, is to have additional
training for Federal managers as part of S. 372 so that they will
exercise their authority when they need to.
Finally, this fear has flunked the reality test. It is not about jury
trials. It is about anything that strengthens whistleblower rights.
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It was brought up as the reason to veto in 1988 when the Whistleblower Protection Act was first passed. It has never been proven
in reality. The rates of adverse actions and performance-based actions, accountability measures, have stayed constant before and
after whistleblower rights were strengthened, before and after
State and local governments added jury trials. It is time for Federal managers to stop crying Wolf. And if they will not stop, it
is time for Congress to stop listening to them.
Senator AKAKA. Thank you very much, Mr. Devine. Now we will
hear from Mr. Vaughn. Will you please proceed?
TESTIMONY OF ROBERT G. VAUGHN,1 PROFESSOR OF LAW,
WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY
Mr. VAUGHN. Thank you. My name is Robert Vaughn, and I am

a Professor of Law and A. Allen King Scholar, at the American
Universitys Washington College of Law. Mr. Chairman, I appreciate this opportunity to speak to this Subcommittee about this important piece of legislation. My testimony focuses on one of the differences between the House and Senate versions of the legislation:
The alternative recourse provision, including a trial de novo in a
Federal District Court with a right to trial by jury.
I would like to say a few things about the right to trial by jury
in these cases and use the remainder of my time to talk about the
implications of the alternative recourse provision on the administrative process.
The jury trial is an integral part of our democracy. From the
time of the enactment of the Seventh Amendment, the jury has
been seen as a coordinate branch of government checking the
power of unelected judges, representing the community, providing
insights into the weaknesses of the laws, creating political awareness in citizens, and providing an important badge of citizenship.
Because whistleblowers help to guarantee legal and political accountability of unelected executive officials, the use of juries in
these cases is particularly apt. Despite popular stereotypes to the
contrary, several decades of social science research emphasized the
competence and dedication of jurors. Jurors and judges usually
agree, and disagreement cannot be ascribed to jury incompetence
or to the unwillingness to follow the law.
The research also shows that juries are as capable as legal experts in deciding complex factual cases. The common stereotypes
about juries belied by the research are that jurors favor individuals
against organizations, particularly corporations; that jurors find
against defendants based on the defendants ability to pay; and
that jurors are disabled by complex factual cases. These stereotypes
are pertinent to the use of the jury trial and whistleblower cases
because these cases pit often sympathetic individuals against the
government with the resources to pay any damage.
One scholar studying the literature regarding the treatment of
corporate defendants concludes that jurors are largely supportive of
the aims of American business, but hold them to a higher standard
than individuals regarding the care needed to protect workers and
consumers. Moreover, she found several studies question the con1 The
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prepared statement of Mr. Vaughn appears in the Appendix on page 141.
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ventional wisdom that the financial resources of corporate defendants encourage a deep pockets approach.
Assuming that whistleblower cases could be classified as complex
cases, research shows that jurors are effective in such cases. They
are diligent and skeptical in evaluating expert testimony. Jurors
perform as ably as judges in complex factual cases. The general research regarding jury performance reassures us about the use of
the jury in whistleblower cases.
One expert calls a jury trial a trial by jury and a judge. Federal
judges have ample powers to supervise juries and to correct and
prevent mistakes.
I also want to address the implications of the alternative recourse provision. In my written testimony, I present several arguments supporting the following propositions:
First, use of the alternative recourse to Federal district courts
will be the unusual not the common occurrence.
Second, a rational decisionmaker would not rush the resolution
of whistleblower claims before the Board to satisfy the 180-day
deadline.
Third, the effects of the alternative recourse provision on the
Board does not counsel against the adoption of the provision. The
alternative recourse provision will not waste administrative resources. Even if all whistleblowers who are likely to use the alternative recourse provision have had their claims fully adjudicated
by the Board, the administrative resources devoted to these cases
is a small percentage of the Boards revenues, something on the
magnitude of tenths of 1 percent.
Four, the alternative recourse provision can benefit judicial and
administrative adjudication The encouragement of settlement is
one important benefit.
I believe that both the alternative recourse provision contained
in the House version and the right to jury trial that it provides is
both an effective and a safe way of providing an alternative form
to whistleblowers. Thank you.
Senator AKAKA. Thank you very much, Mr. Vaughn, for your
statement.
Mr. Bransford, Mr. Devine responded to SEAs concerns that giving whistleblowers access to district courts could contribute to a
perception among Federal managers that it is too risky to discipline problem employees. Would you like an opportunity to respond to Mr. Devines comments?
Mr. BRANSFORD. Yes, Mr. Chairman. I do appreciate having that
opportunity. I think the life of a Federal manager is difficult and
complex. Typically, a career Federal employee becomes a manager
because they are the best technician, not necessarily because they
are the best supervisor or the best person with people skills. Then
they are put in the job with little or no trainingin the government, it is hit and miss. Some agencies are better than others at
providing that training, and I know we have worked with you,
Chairman Akaka, to try to correct that.
Then the manager trying to get the job done deals with a system
where there is an EEO system, where EEO complaints are filed,
and the employee can simply with impunity file a complaint of
EEO, and if you talk to EEO professionals, they will tell you that
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many employees who file them really are not complaining about
discrimination. They are complaining about workplace issues.
And then you have the whistleblower laws, and you have a complex set of circumstances. And all of these give the manager some
reason to avoid dealing with a problem employee. And the complaint is often heard that managers let problems go and they do
not deal with them; then the problems become big. And I think as
you make this more complex and even more difficult, I think the
uncertainty of a jury trial, the sensationalism of it will just add to
that and make it more difficult for managers to deal with problem
employees. I have seen it. I have seen also 10, 15 years ago much
more enforcement of the whistleblower laws, much more activity by
the MSPB, a lot of settlements that Mr. Devine does not talk about
that used to occur. Cases just simply are not brought anymore, and
they are ignored. Something needs to be done to reform the law,
but I think jury trials goes too far. Thank you.
Senator AKAKA. Thank you. Mr. Bransford, if a jury trial provision were included in a final bill, do you have any thoughts on possible ways to solve or mitigate the concerns of Federal managers?
Mr. BRANSFORD. Senator, I was very intrigued by Mr. Des approach, and I found most of what he was saying things that I
would agree with, particularly the limit on compensatory damages
along the lines of what is in an EEO case. But I have a real concern about changing the burden of proof to agencies from clear and
convincingin other words, when an agency can get out of whistleblower reprisal by proving by clear and convincing evidence that it
would have taken the action anyway. I think reducing that standard is problematic because it is difficult enough for a whistleblower
to prevail even with that fairly high standard, and that is one of
the significant reforms in 1989 that, I believe, has actually made
a difference.
So I would be concerned about changing that. The other changes,
though, I did find intriguing.
Senator AKAKA. To follow up on this, Professor Vaughns and Mr.
Devines testimony suggest that there likely would be a very small
number of whistleblower cases brought before juries. Mr. Bransford, do you agree or disagree with that analysis, and how would
this affect your concerns for Federal managers?
Mr. BRANSFORD. Well, I think initially because of the existence
of this new remedy, there would be a lot of cases. I think over time
the cases may diminish because judges may use certain tools they
have that Professor Vaughn talked about, such as motions for summary judgment and things like that. But I think that we have seen
in the EEO system a lot of employees using that as a way of coming back against a manager, and I think that you would see a lot
more whistleblowers, a lot more employees who would claim to be
whistleblowers, who were in a problem employee situation, and I
think they would use whatever system they had that was available.
I do agree that it is expensive to go to Federal court, and that
may keep down the numbers somewhat.
Senator AKAKA. Mr. Devine, would you like to address why this
issue is so important to whistleblower rights advocates, if the
Houses district court provision likely would be used infrequently?
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Mr. DEVINE. Thank you, Mr. Chairman. First, there is a question
of credibility. This was the policy that the President campaigned
on, and we have not heard a reason, a public policy basis to back
off of that commitment.
Second, it is a matter of fairness for Federal employees. They are
about the only whistleblowers in the labor force who do not have
access to juries to enforce their rights. And it is not sending a very
good message to them that we are serious about whistleblower protection if we give them second-class due process compared to the
rest of the labor force. So it is for credibility and legitimacy of the
law.
Third, it is for the publics right to know. Mr. Bransford feels
that this may be sensational. That means the public is enfranchised to make decisions about government actions that have an
impact on them, and we think that is a real advantage of jury
trials consistent with Professor Vaughns insights.
The fourth is the people who do make a significant investment
which few can afford, but if they do, they will actually have a fighting chance to win when the trial is over with. They do not at the
Merit Systems Protection Board right now.
Fifth, there will be a much better chance for settlements. Managers will know, as Mr. Bransford is concerned, that they might actually lose when somebody files a lawsuit, and that means they will
be negotiating in good faith, settlements will be more fair, and
there will be a lot more of them to prevent litigation. That is what
happened when Congress gave jury trials to DOE and NRC employees under the Energy Policy Act in 2005. Before that Act was
passed, there were 191 cases in the 3 years before its passage. The
3 years after its passage, there were 112. The litigation load went
down because there was more of a fair fight when there is a conflict. But, most significant, it is not about quantity. It is about
quality. It is about the types of cases. Most of the cases probably
can be heard by the MSPB, and we want to also work with you to
improve the administrative process. But the Board is not structured for the cases that are the most significant reason we have
this law, those with national impact, those where there has been
a serious governmental breakdown. That is out of the MSPBs pay
grade, quite frankly. They do not have the resources for it.
We did one trial that went on for 5 weeks, and the poor administrative judge said, Mr. Devine, this is like trying to get a snake
to swallow an elephant. We are going to have to have a supplemental appropriation for the gap docket if you keep bringing cases
like this.
Well, there has to be a home that is ready for the most significant government breakdowns, the laundry list of those where the
Whistleblower Protection Act has been AWOL over the last 30
years.
Senator AKAKA. Thank you. Ms. Brian.
Ms. BRIAN. Mr. Chairman, if I could add yet one more reason to
Mr. Devines long list, which is we believe that having access ultimately to jury trials after the administrative process would actually improve the quality of the administrative process because they
would know someone outside was actually reviewing their work.
That is essentially how the court system works outside this admin-
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istrative process, and we think, if the MSPB knew there was going
to be genuine scrutiny of their work, that it would actually improve
the work and would not necessarily require people to go on to jury
trials at all.
Mr. DEVINE. We think the Boards track record will be more balanced if there is Federal court interpretations of the facts to help
keep them more honest.
Senator AKAKA. Thank you. Professor Vaughn, your written testimony provides a great deal of detail on how a jury trial provision
would function in practice, which will be useful to this Subcommittees understanding of the issues involved. Your testimony concludes that few whistleblower cases likely would be filed in district
court. I would like to give you an opportunity to walk us through
your analysis and its implications.
Mr. VAUGHN. Thank you. I think that there are several reasons.
One is that the cost of essentially Federal litigationwhen I was
growing up, my father was a small-town attorney, and when I
would complain about things, he would say, Dont make a Federal
case out of it. And what he meant by not making a Federal case
out of it was that was an expensive, time-consuming activity. It is
also one where we have some of the most important cases decided,
which is what we also mean by making it a Federal case.
I think the costs, time, and money of mounting a Federal case
would limit the number of whistleblowers who would use the alternative recourse provision. I think that the Boards practice, there
are aspects of it. The majority of persons who appear before the
Board are unrepresented or are represented by persons who are not
attorneys. As we heard earlier, whistleblowers have trouble finding
someone to represent them. Those pro se whistleblowers would, I
think, particularly find it difficult to use the alternative.
At the Board there is a right to a hearing. That is not necessarily
the case in Federal court. There is interim relief at the Board.
Many cases decided at the Board would be decided within the 120day limit. About 50 percent of the cases are dismissed for timeliness or lack of jurisdiction. So the suggestion would be that a lot
of the cases do not consume very much resources at the Board.
Our experience with other statutes like Title VII, the SarbanesOxley Act, demonstrate that the majority of whistleblowers who
would be able to leave the administrative process do not do so. And
then there are problems also of delay in Federal court. The statistics I have in my testimony deal with the time from filing a civil
action in Federal court regarding employment-based actions until
there is a disposition at trial, and those times, depending on the
kind of case that it is, run from over 1 year to over 2 years. So
there would bea whistleblower would face delay.
As I mentioned in my written testimony, there are a number of
dispositive motions that are available in Federal court. The motion
for summary judgment, motion for judgment is a matter of law, the
renewed motion for judgment is a matter of law which prevent the
cases from being decided by a jury or reverse the jurys determination. Summary judgment has become a very common motion in
Federal court. The data regarding employment-based cases show
that a very small percentage of those cases proceed to a jury trial,
and few civil cases that are filed in Federal court actually reach
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trial, the most recent statistics say less than 2 percent. And, finally, there will be a confined limit of the pool of potential whistleblowers to use this process. So I think that the number of jury
trials that we would expect in Federal court would be fairly limited.
If I could, I also wanted to mention and agree about the problem
with the removing the clear and convincing evidence standard. I
am not sure I agree with the conclusion that juries would find it
difficult to apply the clear-and-convincing-evidence standard when
they apply preponderance-of-the-evidence and the reasonable-belief
standard. Juries, as a group, may not have as much experience
with the standard as they do with a preponderance or reasonable
belief, but the individual juries themselves do not have experience
at all when they begin a case. And one of the functions of the court
is to describe the character of the burdens of persuasion that are
basedthat rest in the case, and juries do a diligent job of following those. And just off the top of my head, in civil actions we
have a number of tort actions, including defamation, where clear
and convincing evidence is the standard that is used, that juries
have to be instructed on. In almost all cases, contract and commercial cases that involve fraud or allegations of fraud, clear and convincing evidence is the standard that the court has to instruct the
jury about.
So I am, I think, more optimistic about juries being able to use
the clear-and-convincing-evidence standard.
Senator AKAKA. Professor Vaughn, thank you for walking us
through that. As you know, the House bill would allow whistleblowers to file district court cases after the MSPB decision and get
a de novo trial by jury. Are you aware of other statutes that allow
a similar process, and what are your views on this process?
Mr. VAUGHN. Title VII has that procedure. I think more recently
the Consumer Product Safety Improvements Act of 2008, one of the
sections of that provision, has a similar mechanism in it. There is
probably an analogous provision in the American Recovery and Reinvestment Act of 2009. It is analogous because exhaustion in those
cases are through the Office of Inspector General, not through administrative adjudication. But it has a similar provision in it.
These are the ones I can think of, but these seem to me to be not
an uncommon or unexpected provision in this kind of law.
Senator AKAKA. Thank you. Ms. Brian, as you know, the DOJ
has proposed a new Executive Branch Board to review classified
disclosures to Congress. Could you address the areas of agreement
or disagreement with the Administration on the appropriate methods and protections for whistleblowers in the intelligence agencies?
Ms. BRIAN. Given the hybrid model that was testified to earlier,
there was some new information that I thought was encouraging.
There was an acknowledgment that the people on that Board
would be presidentially appointed. We hope that also means Senate
confirmed. The reason that is important to us is it would allow the
Congress time to evaluate whether you think those people are appropriate and independent in making these kinds of judgments.
I was also pleased to see that there was an acknowledgment that
it is important that a whistleblower have the access to the Congress by notifying the Congress not after the end of any review, but
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I am hoping what they meant was at the initiation of a disclosure
to this Board so that if a Member of Congress was so inclined, that
they could go to that Board and find out exactly what this disclosure is up front.
One of the big concerns I have had is that this Board not become
a way of preventing information from getting to the Congress. I
want the Congress to be able to access it as it wishes.
We think that there is some possible agreement on how to make
this Board work. It is just really going to be very important to get
a better sense of the details of exactly what the procedures would
be for those who were making disclosures to it and the rights for
those people.
Senator AKAKA. Thank you. Mr. Devine.
Mr. DEVINE. Mr. Chairman, we also think that it is very important that the Boards jurisdiction be limited to cases where there
is a demonstrable harm to national security. The idea that because
you work at the FBI, or because you work at the National Security
Agency (NSA), you are not entitled to normal due process, we really cannot accept that. Title V has a breakdown for employees
whose jobs are principally for intelligence functions and those
whose jobs are more generic public service. And if you are an employee at one of these agencies who is not doing sensitive work,
there is really no excuse to put you at a lower level of due process.
And then even if you are an employee who is doing sensitive work,
there needs to be a demonstration that a public trial would harm
national security. It might actually help national security by nipping serious problems in the bud with the scrutiny.
Senator AKAKA. Professor Vaughn, in your view, would it be possible to conduct jury trials for intelligence community whistleblowers without jeopardizing security?
Mr. VAUGHN. In many instances, I think that might be possible.
I was struck by the testimony of the American Civil Liberties
Union in the House on the House version of the bill where they
talked about a number of the kinds of devices that would be available to a judge to limit the risks and the most serious cases where
national security information might be involved.
Mr. DEVINE. Mr. Chairman, they already do have jury trials all
the time under the EEO laws. There is no second-class status for
FBI or intelligence agency employees who are challenging individual misconduct which violates their personal rights. This only
seems to be impermissible when they challenge government misconduct that violates the public interest. I do not think that is really a valid distinction.
Ms. BRIAN. Mr. Chairman, if I could add one more point
Senator AKAKA. Thank you, Mr. Devine. Ms. Brian.
Ms. BRIAN [continuing]. Which is that GAO looked into this question and concluded that there should be no concerns about providing intelligence agency employees with full due process rights,
including jury trials, given that the courts already have a long history of handling classified materials and knowing how to manage
those problems.
Senator AKAKA. Ms. Brian, with respect to national security, the
House whistleblower bill would protect disclosures only if they are
made to members of specific congressional committees. In your tes-
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timony, you stated your preference for the Senate provision because
it allows whistleblowers to make disclosures to legislative staff
holding an appropriate security clearance.
Can you discuss the challenges that whistleblowers experience
when making disclosures of classified information to Members of
Congress?
Ms. BRIAN. Thank you very much, Chairman. I think that is a
really central question as you consider this legislation. It is not
only to properly cleared legislative staff, but it is also to any Member of Congress, regardless of committee. And the problem a whistleblower will face is they are very likely, as they decided to make
a disclosurewhich is in itself a very difficult decision to make.
But once they have decided to make such a decision, the likely
place they will turn is to their own Member of Congress because
they are a constituent. It is very unlikely that Member of Congress
sits on the committee of jurisdiction.
The next problem is it is unlikely that the whistleblower has
read the law that specifies that their disclosure is only protected
if they go to a particular committee. And so it creates this unfair
burden for that person who is in good faith going to either their
Senator or Congressman or perhaps a Member who they have seen
is already conducting oversight in that arena outside of the committee jurisdiction, and they want to go to them because they think
they are a particularly effective Member of Congress. I believe that
person handling classified information properly by going to the
cleared staff or meeting with the Congressman himself should be
protected.
Senator AKAKA. Ms. Brian, under the WPA, agencies are required to inform their employees of their whistleblower rights. In
response to this mandate, OSC created a voluntary program to assist agencies in making their employees aware of their rights. Currently, numerous agencies have completed the certifications or are
participating in the program. However, you have indicated that
many employees, particularly national security employees, are not
educated on their whistleblower rights and how to report misconduct.
What further actions must Congress and the agencies take to ensure that employees understand their whistleblower rights?
Ms. BRIAN. I think to clarify my testimony, I was not suggesting
that they are not aware of their rights. They just do not have adequate rights in the first place. And so what we need to do is give
them those rights. That is what I would say.
Mr. DEVINE. Mr. Chairman, the premise of your question was
well taken; however, I am not sure what else Congress can do to
legislate. It might be very helpful to have a special program for
managers on rights and responsibilities under this legislation. But
it was part of the 1994 amendments that agency heads have a duty
to train, to inform their employees of their rights. It was part of
the No Fear Act that they have to have detailed programs, and the
agencies simply have not been complying. I do not think the problem is lack of congressional legislation. It has been lack of leadership within the Executive Branch.
The prior Special Counsel program that you referenced was an
ambitious and genuine one to get agencies up to speed and making
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commitments to train their employees on their rights, and it ended
with the last special counsel.
The way you folks can really help is to push the Administration
to hurry up and appoint a new special counsel and a new chair of
the MSPB so the agencies that turn these laws into reality can
start functioning properly.
Senator AKAKA. Thank you so much. This has been a good discussion.
Finally, I want to give each of you an opportunity to give closing
remarks on your thoughts about what has been said or on what
challenges lie ahead. Mr. Bransford, will you please begin.
Mr. BRANSFORD. Thank you, Chairman Akaka. I believe, if my
memory serves me correctly, Mr. Devine and I sat on a similar
panel to this in November 2003 with similar legislation making
similar positions. And here it is 2009, and there is still no reform.
What I have seen in my law practice and what I have seen in
representing the Senior Executives Association over the years is a
gradual erosion, to the point where today there is no whistleblower
protection. It is non-existent. Just this week, I had two people telephone me who were concerned that they are being retaliated
against because they raised issues as part of their jobs, absolutely
100 percent part of their jobs. And, of course, the current whistleblower law would not protect them, so we are dealing with helping
these people through other means, perhaps EEO or whatever. So
I hope that there is a prompt resolution and reconciliation.
I also would say that on a regular basis I meet with hundreds
of Federal managers every year. I do training for Federal managers. I focus on why is it that Federal managers do not deal with
problem employees. And while fear of whistleblower prosecution
does not come upit does not come up because it does not happen.
But it does come up in the context of EEO; it does come up in the
context of the complexity of the Federal system, the absence of
training and other such things. And I do know that Federal managers will sometimes have pause in taking action out of fear of uncertainty of the system. And my genuine concern is that jury trials
will add to that.
And I do believe the MSPB is capable of deciding these cases, of
hearing them and issuing good decisions, assuming the law were
changed, and especially allowing review by the other circuit courts
of appeals to interpret those laws.
So I hope the reform can take place and can take place this year,
because I do believe it is needed.
Senator AKAKA. Thank you very much, Mr. Bransford. Ms. Brian.
Ms. BRIAN. Chairman Akaka, thank you for the opportunity. I
have been working on these issues since the 1980s, and I think you
probably have also. There has been longstanding concern on the
part of the Congress to fix the problems that we have been discussing. I think the important change that we are seeing is this is
the first Administration that I think is, first of all, not threatening
to veto this legislation. We see a dramatic change in the level of
communication with the community and hearing our concerns and
engaging. And I think it is something that is going to finally mean
that we will be seeing a Rose Garden ceremony where whistleblower protections will pass this year.
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Senator AKAKA. Thank you. Mr. Devine.
Mr. DEVINE. Mr. Chairman, this legislation has evolved and
grown over the last 10 years as we have learned a lot of lessons.
When it was first introduced, almost all the whistleblower laws
were enforced through administrative, solely administrative remedies. Now the rule is to give people normal access to enforce these
rights, as we have learned from track records.
I think the point that we are at with the Whistleblower Protection Act is consolidating the lessons learned of the last 10 years
and creating a truly modern law for Federal employees. The mandate does not seem to be in debate from any side at this point. It
is just how to do it right. And that is merely a process of making
sure that we have kept track of the best practices and that we incorporate them into this legislation so that four will be the charm.
And the timing is very critical.
We are in a period of unprecedented government spending, crises
in terms of civil liberties, human rights abroad, as well as our economy that will require our government to be at its best. And that
is why we put first-class accountability measures for whistleblowers for all the people who receive stimulus funds, and that is
the reason why we cannot settle for second-class due process in a
first-class good government law for the Federal workers. It is not
too late, but we need to finish this before the stimulus spending
gets fully underway, and we will be ready for whatever comes.
Senator AKAKA. Thank you very much. Mr. Vaughn.
Mr. VAUGHN. Mr. Chairman, my last word is it is always dangerous how you begin your career. As a 26-year-old young attorney,
I began to work with Ralph Nader on a project on civil service reform, and it was his opinion that the most important part of that
reform was the protection of whistleblowers. And over the course
of my career, I have seen how whistleblowers disclose mismanagement and corruption. They secure openness in government, impose
accountability, support the rule of law, protect the First Amendment.
It is our obligation to many ethical and brave employees to protect them. The protections that we provide them are also the cost
that we pay, the price that we pay for the important disclosures
that they make that make our government accountable to the people, and I think that in doing that, we can take risks. With the
House provision, I think that we are not taking risk that the provisions that are contained in the House provision that I have discussed are not novel or untried or dangerous. And I think they are
part of that obligation and price we have to pay for all the benefits
of whistleblower protection.
Senator AKAKA. I want to thank all of our witnesses. You have
helped us to really think through the key concerns for finalizing
this bill. This issue is a priority for me, and I am optimistic that
finally we will enact protections for whistleblowers this year. My
colleagues in Congress and I will be working closely with the Administration and stakeholders on this.
This hearing record will be open for one week for additional
statements or questions from other Members of the Subcommittee.
This hearing is adjourned.
[Whereupon, at 4:36 p.m., the Subcomittee was adjourned.]
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Senate Hearing, 111TH Congress - S. 372 - The Whistleblower Protection Enhancement Act of 2009

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Senate Hearing, 111TH Congress - S. 372 - The Whistleblower Protection Enhancement Act of 2009

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S. Hrg.

S. 372THE WHISTLEBLOWER PROTECTION

OVERSIGHT OF GOVERNMENT MANAGEMENT,

For sale by the Superintendent of Documents, U.S. Government Printing Office

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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL

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Bransford, William L.:

ADDITIONAL PREPARED STATEMENTS

Questions and Responses to questions:

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S. 372THE WHISTLEBLOWER PROTECTION

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Mr. DE. Good afternoon, Chairman Akaka. Thank you, and

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prepared statement of Mr. De appears in the Appendix on page 31.

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Senator MCCASKILL. Thank you, Mr. Chairman, and I especially

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Senator BURRIS. Thank you, Mr. Chairman. And to our witness,

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Mr. BRANSFORD. Thank you, Chairman Akaka and distinguished

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prepared statement of Mr. Bransford appears in the Appendix on page 44.

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