Twelve Part Blog Series beginning August 18, 2009
Whistleblower Protection Blog
By Stephen M. Kohn
NOTE: Due to the tremendous grassroots pressure from members of our Action Alert Network a number of the following areas were fixed in the most recent version of the Whistleblower Protection Enhancement Act. Some areas still need to be fixed before federal employee whistleblowers are truly protected.
On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009. Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.
Over the next two weeks I will present the NWC analysis of the Senate Bill. Hopefully, this will explain why the Senate needs to adopt important provisions included in the House legislation.
This is the first in a series of twelve posts examining specific weaknesses in the Senate Bill. Each installment will examine a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.
I. THE DEFINITION OF PROTECTED ACTIVITY: SMALL LOOPHOLE OR LARGE NOOSE?
The Senate Bill added a dangerous clause within the definition of “protected disclosure.” Under this new definition, federal employees who disclose any violation of law are protected, unless their disclosure was “a minor, inadvertent violation that occurs during the conscientious carrying out of the violator’s assigned duties.” SeeSection 101.
This new exception to protected activity is devastating to the law.
Its existence is without precedent, and runs counter to every whistleblower law ever enacted in the United States. It also runs counter to the conclusions of every respected analysis of whistleblower protection.
Why is this provision so harmful?
First, what exactly is a “minor” or “inadvertent violation?” Whistleblower laws are supposed to encourage the disclosure of any violation. In fact, most major violations are first discovered through the disclosure of something we might initially consider minor. Rarely does an employee stumble upon a violation she immediately recognizes as a national scandal. More often employees disclose a minor violation (or even a potential violation). Upon investigation such a minor violation may provide the first information about a major case of fraud, waste, abuse or injustice – or it may not. However, every whistleblower law in the United States is designed to protect and encourage the disclosure of any potential violation. The supervisory authority to which the disclosure is made then has the duty to investigate the claim.
This new standard is completely unworkable. If the employee uncovers a violation, but it turns out the violation was “minor” or was caused by an “inadvertent” mistake, the employee can be fired for making an unprotected disclosure! Obviously, few employees would ever come forward with any disclosure under these chilling conditions.
Any employee who has the courage to report a potential violation places himself or herself at risk. If the managers involved in the violation can prove that the violation was “minor” or “inadvertent,” then the law says the employee has not engaged in lawfully protected activity by disclosing it. As a result, the whistleblower case will be automatically dismissed and the employee will have no protection under the law.
There is no other whistleblower law in any jurisdiction in the entire United States that places this burden on an employee. In fact, every whistleblower law in the United States protects employees who make “good faith” disclosures of any suspected violations, even if it turns out that there was no actual violation.
This provision will create a dream defense that will undermine any whistleblower case. It will make the whistleblower claim extremely expensive to litigate at best and very hard to win, even if the underlying violation was indeed a major violation. It will add to the litigation costs and burden every case by creating what is essentially an additional trial of fact.
Every defendant will claim that what the employee disclosed was not a protected disclosure because, at best, it only revealed a “minor, inadvertent” violation. The burden will shift to the employee to prove the alleged violation is now a “major” violation. That employee will have to do so without benefit of a full investigation into his or her initial disclosure. Even if that disclosure could lead to a major violation, when investigated.
Of course, an employee who has to prove that the disclosed violation is major, the employee will have to undergo significant litigation expenses. Worse there is no current legal precedent as to how to demonstrate that a violation is a major one.
This new provision also contradicts the findings of every major modern study concerning fraud detection and prevention. Respected auditing firms such as PricewaterhouseCoopers, the Association of Certified Fraud Examiners, and the Ethics Resource Center have all studied fraud detection programs in both the public and private sectors. Their conclusions are all similar:
• Employee whistleblowers are key to any successful fraud detection program;
• Agencies must create programs which encourage and reward employees who report potential violations of law or ethics; and
• Strict prohibitions against retaliation must be instituted.
Each study recognizes the value and importance of encouraging employees to disclosure any instances of misconduct as quickly as possible. The requirement to determine if a violation is “major” or not can only delay detection of real fraud.
The language in the Senate Bill runs counter to this teaching, and contradicts years of legal precedent. It will create a chilling effect on employee disclosures, and result in numerous otherwise meritorious cases being dismissed.
No Senator should vote for a law that establishes this burden on an employee. At a time when trillions of dollars are being added to the federal budget why would we want to make it more difficult to detect fraud?
II. ADVERSE ACTIONS REVISITED
The Senate Bill goes out of its way to reverse gains whistleblowers have won in the U.S. Supreme Court. It returns whistleblowers to the days when an employee had to demonstrate a certain level of harm or damages to obtain whistleblower protection.
For years the lower courts debated what level of adverse action was necessary to permit an employee to file a retaliation case in federal court. Some courts required material adverse actions – such as a termination. Other courts looked to the purposes behind the enactment of anti-retaliation laws, and permitted filing claims in court for adverse actions that did not result in actual loss of salary or benefits.
The unanimous U.S. Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. Sheila White, 548 U.S. 53 (2006) finally resolved this long-standing dispute. A whistleblower could file a claim in court even if they suffered what might be called a less significant adverse action. Why? The Court correctly understood that smaller adverse actions still have significant impacts on a person’s career. Employees who faced transfers to less desirable jobs, whose performance reviews suffered or who were harassed at work could have their careers severely damaged, even when they suffered no reduction in salary. Moreover, permitting employees who engaged in protected activities to suffer any retaliation on the job has a major chilling effect on other employees and discourages anyone from making protected disclosures.
The court case was a major victory for all whistleblowers. We thought the battle was over, that is until we read S. 372.
The Senate Bill statutorily overturns the unanimous Supreme Court decision and again creates an artificial differentiation between the level of harassment and the right of an employee to have his or her case heard in court. It limits who can file in federal court. See Section 117(a)(k)(4)(A)(i)(I).
Under S. 372 only employees who suffer what is called a major personnel action including being suspended for 14 days or more are allowed to file a claim in federal court. Employees who suffer severe harassment or whose careers are stalled by bad performance reviews have no recourse in court. Common retaliatory tactics such as transferring employees to more demeaning work, forcing employees to undergo intrusive psychological testing, and stripping someone of all meaningful work will now become even more common since employees will have no way to fight it in court.
The Supreme Court got it right in Burlington. Employee action that “dissuades” a reasonable employee from engaging in protected activities is an adverse action for which an employee should be able go to court and have the claim heard in a full and fair manner.
This provision in S. 372 is extremely harmful to whistleblowers. It would result in the majority of federal employees being blocked from access to federal court proceedings. We strongly oppose this reactionary attempt to overturn the Supreme Court and the NWC cannot support any “so-called” whistleblower bill, which contains this provision.
III. HOW THE NEW “270 DAY RULE” BLOCKS COURT ACCESS FOR FEDERAL EMPLOYEES
S. 372 has been promoted as creating a virtual revolution in federal employee whistleblower rights. Supporters specifically point to the provisions that permit employees to bring a case in federal court before a jury.
But are these claims justified?
In the first post, we pointed out that an insidious change in the definition of protected activity would result in numerous cases being dismissed. In the second post, we pointed out that most employee whistleblowers could never bring a case in federal court because the types of retaliation they suffered (including poor job assignments, hostile work environments, retaliatory performance reviews) do not qualify for removal to federal court.
In addition, hundreds of thousands of other federal employees are barred from filing in federal court. Specifically, employees in various law enforcement and intelligence agencies are barred from filing in federal court, even if their cases have no relationship to any actual national security issue.
Who’s left? Even if you happen to be one of the “lucky ones” whose case is eligible for a jury trial, will you ever actually have your case heard in front of a jury of your peers?
The answer is no.
S. 372 contains a provision that says if the Merits Systems Protection Board can complete the adjudication of your case in 270 days you have no right to go to court. This will open the door for the MSPB to create procedures that force the adjudication of claims within the Congressionally mandated time-period, and effectively block access to federal court. See Section 117(a)(k)(3)(B).
Under the new “reformed” law, employees who already have difficulty finding attorneys will have to find a good attorney who can immediately come up to speed on the merits of the case and have the resources necessary to fund a complex lawsuit that to be completed within the time period. Analyzing all the documents in such a case, learning all the facts, interviewing the witnesses can take considerable time. Lawyers will be very reluctant to commit to a full hearing on the merits in such a rushed procedure.
Unfortunately, this is not even the worst part of it. The worst part is that if the MSPB completes the hearing within 270 days the whistleblower has no right to go to federal court and seek a jury trial.
What if you are one of the “lucky” ones, and the railroad just doesn’t come in on time? Here is the true injustice of this law. After spending 270 days on rushed and expensive proceedings before the MSPB you finally get the right to file a new lawsuit in federal court. But guess what happens? You have to start new – you have to file a new complaint, you may have to file new discovery, you have to file new motions and ultimately you have to spend the time and money on a whole new trial. The costs have doubled and you had no choice but to waste the first 270 days of your case. We note with some irony that this also increases the costs to all parties. Those who want to limit whistleblower rights as a matter of judicial economy should take note that S.372 adds a layer of procedures for everyone.
We are extremely disappointed that S. 372 did not adopt a procedure proven to work well under other employee retaliation laws. For example, under Title VII a federal employee can start a lawsuit with a request for “counseling.” The employee does not have to file a formal lawsuit and start any such 270-day clock.
Instead, the employee simply seeks informal counseling, and the agency, the employee and the EEOC attempt to reach a settlement. Obviously, an attempt to promote and reach a settlement at an early stage is fairer to all parties. However, if there is no settlement, the employee has the right to file an informal complaint, and the agency’s EEO office conducts an investigation during the next 180 days. This investigation provides cost-free discovery for the employee, as the EEO-investigation is required to interview witnesses and obtain documentary evidence. At the end of the 180 days, the employee learns the results of the investigation and then has a choice, he or she can either file for an administrative hearing before the EEOC or can file directly in U.S. District Court and request a jury trial.
Even if the employee chooses for the administrative approach, he or she still can seek removal of the case to federal court if the employee does not like the manner in which the administrative process is unfolding.
These procedures are already in place in every federal agency. The General Accounting Office has determined that these provisions could be made applicable to employee whistleblower cases at all federal agencies, including national security agencies.
The right to a jury trial in the U.S. Constitution. State and local government employees have the right to a jury trial under the Stimulus Bill. Federal contractors have the right to a jury trial. Terrorists housed in Guantanamo Bay have the right to have their claims heard in federal court! Any federal employee (including national security-related employees) who alleges discrimination because of their age, sex, race, religion or disability has a right to file a claim in federal court and have their case heard by a jury. We have procedures that work to make this right work in a reasonable manner for all parties. Yet the Senate refuses to adopt a real framework to allow Federal Employees a right to a jury trial.
Americans need to ask the Senators why they refuse to fully protect federal employee whistleblowers. If the Senate wants credit for federal employee jury trial access – they need to make it real!
IV: BACKSTABBING FBI WHISTLEBLOWERS: WILL THIS PROBLEM REALLY GET FIXED?
Putting it bluntly: S. 372 repeals all existing whistleblower rights for FBI employees.
From the start of the negotiation process with the White House, the NWC identified this rollback of FBI whistleblower rights. In meetings with the White House staff the NWC urged that these provisions be changed. Unfortunately, they were incorporated into the Senate markup. Upon reviewing the Senate markup language, the NWC notified the Senate Judiciary Committee of this problem on August 5th and asked that they ensure that it be corrected. Since then, the public interest community has insisted that the current FBI whistleblower rights must be restored. As reported in the Washington Times, it appears that the White House is expressing a willingness to fix the problem. However, the White House has not committed to the promise in writing and no alternative language has been proposed. The devil will be in the details.
It was most disappointing that a whistleblower “enhancement” bill would in fact roll back protections FBI employees have had for over 12 years. Between 1993-98 the NWC had the honor of representing FBI whistleblower Frederic Whitehurst. On his behalf, we sued the government in order to force the President of the United States to establish legally required protections for FBI whistleblowers under an obscure section of the Civil Service Reform Act codified as 5 U.S.C. § 2303.
Dr. Whitehurst prevailed in his case, and in 1997 President Clinton signed a memorandum that mandated the Attorney General implement whistleblower protections for FBI employees. Those protections were implemented, and today they are as good as those which exist for most other federal employees. FBI employees can file whistleblower complaints, which are investigated by the Department of Justice Office of Inspector General. FBI employees who file claims with the IG have the same procedural rights as other government workers who file claims before the Office of Special Counsel. An employee who disagrees with the results of the IG investigation can request a hearing within the Department of Justice.
These protections will be repealed under S. 372!
Congress must be careful when fixing this repeal. There are 3 points that must be changed in order to fully fix the problem. First, Section 121(b)(2) (Page 59) sets an effective date that would, if signed into law, result in the immediate dismissal of all pending FBI whistleblower cases. Second, Section 121(b)(1) (Page 58) contains the actual revocation of the existing 2303 protections. Third, Section 121(a)(2)(A) (Page 44) places the FBI under the jurisdiction of the new Intelligence Community Whistleblower Protection Board. That board (as will be explored in a future blog post) affords no substantive protections to national security employees. By placing the FBI under the Board’s jurisdiction the Act repeals 2303 by implication because the FBI cannot be under two simultaneous procedures. Therefore, in order to ensure the restoration of FBI whistleblower rights all three provisions must be changed.
This all begs the question of whatever happened to “enhanced” whistleblower rights? The law will devastate existing rights enjoyed by FBI agents, and provide them with no new protections. It is a complete victory for those who would cover up any abuse of authority or wrongdoing in the FBI. In regard to oversight of the FBI and protection of FBI whistleblowers, S. 372 is the worst setback for accountability and due process in over thirty years.
The House of Representatives got it right. The House version will effectively protect all national security whistleblowers and should be signed into law.
V: THE NEW SUMMARY JUDGEMENT RULE: GOLIATH FINALLY WINS!
S. 372 contains a new provision that permits the Merit Systems Protection Board to dismiss whistleblower claims under a procedural rule known as “summary judgment.” See Section 118. This new rule permits the MSPB “judges” to summarily dismiss a whistleblower claim without ever conducting a hearing.
One of the main purported benefits of the current MSPB process is its streamlined procedures. Under the current law, employees are entitled to a hearing before the MSPB if they can establish jurisdiction. The employees avoid the considerable costs associated with defending a traditional summary judgment motion and instead may address those issues at the hearing on the merits of the case.
Why is this summary judgment procedure a bad development? Here is what will happen in practice. In almost every case the agency will file for summary judgment. In a motion for summary judgment, the judge decides, without a full trial, that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” If the judge grants the agency’s motion the whistleblowers case will be dismissed.
The new summary judgment provision forces the employee to conduct expensive discovery simply to defeat the motion. Given the past substantive and procedural decisions issues by MSPB “judges,” the overwhelming majority of these motions will be granted and the whistleblower cases will be dismissed without there ever being a hearing. Over 90 percent of the summary judgment decisions will be against the whistleblower. [Note: MSPB judges are not real judges. They are not subject to any judicial confirmation process and do not have to be attorneys. Their appointments are not reviewed or approved by the Senate Judiciary Committee.]
Given the new 270 day rule for completing adjudications before the MSPB, summary judgment rulings will become commonplace.
This rule is a major setback for employees. First, agencies will not settle cases until their summary judgment motions are filed. The pressure to settle a case shortly before a hearing will be eliminated because agencies will wait to see if the case is dismissed before a hearing is even set.
Second, given the 270-day rule for completing adjudications, employees will be forced to comply with short deadlines in responding to summary judgment motions. The agencies will be able to compile an evidentiary record against the employee in short period of time that the employee will not have the time to contradict.
Third, Section 117 (a)(k)(4)(A)(ii)(1) (Page 29) provides that an employee can request a certification to federal court within the first 30 days of filing a complaint with the MSPB (Please read tomorrow’s posting for more explanation of this section). In practice, as soon as employee requests certification for federal court the employer will file a summary judgment motion in order to try to dismiss the case at the MSPB level. This allows the agencies to convert the entire MSPB process into a costly and overly prejudicial summary dismissal action.
The summary judgment provision tilts the procedures radically onto the side of the agencies, and all but guarantees that cases will be completed within the 270 day time period necessary to block access to federal court.
Americans need to ask the Senate why they inserted such an anti-whistleblower provision into a law purportedly designed to “enhance” whistleblower rights. The summary judgment provision must be removed from the Senate Bill.
VI: WILL ANY FEDERAL EMPLOYEES EVER HAVE THEIR CASE HEARD IN FEDERAL COURT?
The short answer to this question is virtually, none.
When read together, the numerous “poison pill” provisions inserted into S. 372 all but guarantee that very few, if any, federal employee cases will ever be removed to a district court for a real trial.
As outlined in the blog postings 1, 2, 3, and 5, between the new limits on the definition of protected disclosure, the extremely narrow class of cases permitted to be filed in federal court, the 270 day rule, and the summary judgment rule, it will be virtually impossible for an employee to successfully meet the criteria established in the Senate Bill for filing a claim in federal court.
The Senate Bill does contain a provision in which a federal employee can ask the MSPB to certify their case for a federal court trial before they undergo the expensive full MSPB proceeding. See Section 117 (a)(k)(4)(A)(ii)(1) (Page 29). However, this certification provision is a complete illusion. It requires the MSPB to admit that a case is too complex for the MSPB to handle. It will be extremely rare for that certification to happen.
Additionally, an employee has no practical method to appeal a ruling by the MSPB denying certification and court access. First, such appeals cannot be immediately filed. The employee will be forced to spend money fully litigating their case before the MSPB, and can only appeal the denial after the employee loses their case.
Second, the standard of review contained in S. 372 is the highest standard applicable in law. Instead of a de novo review of the law or facts, the courts are required under the law to defer to the rulings of the MSPB, and can only reverse such a ruling if the decision is found to be “arbitrary, capricious or an abuse of discretion.” This standard is almost impossible to meet. Thus, a ruling by the MSPB denying an employee the right to file his or her claim in federal court is, for all practical purposes, unreviewable.
President Obama promised all federal employees full access to federal court when adjudicating their whistleblower cases. In one such statement, published on the official Obama transition team web site, the President-Elect stated:
Often the best source of information about waste, fraud, and
abuse in government is an existing government employee
committed to public integrity and willing to speak out. Such
acts of courage and patriotism, which can sometimes save lives
and often save taxpayer dollars, should be encouraged rather
than stifled. We need to empower federal employees as
watchdogs of wrongdoing and partners in performance. Barack
Obama will strengthen whistleblower laws to protect federal
workers who expose waste, fraud, and abuse of authority in
government. Obama will ensure that federal agencies expedite
the process for reviewing whistleblower claims whistleblowers
have full access to courts and due process.
S. 372, as it is currently reads, does not fulfill that promise. It creates a false hope, and then cheats federal workers out of the rights for which they were promised and for which they need.
VII: CAPS ON DAMAGES AND OTHER LITTLE GEMS
In addition to the problems already addressed in earlier postings, there are some smaller, yet still very important, problems that need to be addressed before the Senate votes on the final version of S. 372.
Caps: For the first time a Congressional Committee has recommended that caps be placed on the amount of compensatory damages in a law designed to protect federal employee whistleblowers. See Section117 (a)(5)(C)(ii)(I)(Page 33).
These caps set a very bad precedent for whistleblower laws. No current federal whistleblower law has a cap on compensatory damages.
Under the law compensatory damages must be proven – they are not like punitive damages, which are designed to punish a wrongdoer. Instead, they are part of the “make whole” remedy, and are designed to compensate employees for actual and proven losses for emotional distress, loss of reputation, physical injuries and other demonstrable non-wage damages often suffered by a whistleblower.
The key to all employment laws is the “make whole” idea that an employee should not suffer because he or she engaged in protected activity (i.e. made a disclosure, in the public interest, concerning waste, fraud or abuse). Compensatory damages are designed to compensate an employee for actual and demonstrable harms. If an employee can prove that he or she had more then $300,000.00 in compensatory damages, the employee should be entitled to obtain all of the relief he or she needs to be made whole.
The caps contained in S. 372 set a dangerous and bad precedent for all future whistleblower laws, and need to be removed from the bill before it is voted on by the Senate.
Burden of Proof: Since the late 1980’s it became apparent to whistleblower supporters that the standard burden of proof in civil law cases was difficult for whistleblowers to meet. The agency which employed the worker-controlled access to most of the personnel information relevant to a case, many witnesses were either under the control of the agency, or were afraid to testify against their bosses at trial and the agency controlled the timing of the case (i.e. the agency could decide it wanted to get rid of the whistleblower, and then spend a year collecting negative information, and spring the termination decision on the employee only after it had carefully concocted a case). Consequently, Congress changed the burden of proof under all of the modern whistleblower laws. In order to justify the termination of a whistleblower, the agency would have to prove, by “clear and convincing evidence” that it would have made the same employment decision, even if the worker had never blown the whistle.
S. 372 takes a major step backward on this issue. The Senate Homeland Security Committee adopted the recommendation of the White House to abolish this burden of proof in any case in which an employee somehow gets into federal court. See Section 117(a)(5)(C)(iii) (Page 33). In other words, if the employee somehow jumps over each and every roadblock and files a claim in federal court, the employee will discover another painful fact: their case is much harder to prove. The burden on agencies to prove the termination was justified by clear and convincing evidence has been lifted and replaced with the lower standard of “preponderance of the evidence.”
Please see Professor Robert G. Vaughn’s testimony in front of the Senate for a more complete explanation of burdens of proof.
Appellate Review: For years, as reflected in numerous public statements and comments/testimony before the relevant Committees, both the House and the Senate have recognized that it was a terrible mistake granting exclusive appellate review to a special federal court whose jurisdiction is primarily a review of trademark and copyright infringement cases. This special court, known as the Federal Circuit, lacked any expertise in employment or labor disputes, and had no sympathy or understanding of whistleblower law. Both the House and the Senate Committees reviewed the case precedent rendered by the Federal Circuit and concluded that granting this court exclusive jurisdiction over whistleblower claims was disastrous.
Significantly, the Federal Circuit has exclusive control over only cases filed by federal employees. All other whistleblower laws (and all other federal employment laws) are heard in normal appeals courts.
The Senate bill properly ends the Federal Circuit’s monopoly over appellate review. However, the bill contains two provisions that could undermine this reform. First, the bill permits the Office of Personnel Management to file appeals of federal whistleblower claims. See Section 108(b). OPM can file the appeal in the Federal Circuit. Because of this loophole, employees may find themselves before the notoriously anti-whistleblower Federal Circuit, even though Congress had intended to break that Court’s monopoly.
Second, there is a five-year sunset provision. The problems with this sunset provision are explained below.
Sunset: The progressive features in the Senate bill that allow a whistleblower access to federal court (See Section 117(b)(1)) and all circuit review (See Section 108) have a five-year sunset provision. This means that after five years the right to go to federal court and have any circuit review the case automatically disappears. This makes no sense. The record in the House and Senate Oversight Committees unquestionably supports the need for these two provisions and they should not be subjected to as sunset provision after five years. The sunset provisions could result in federal employees losing these two important procedural right five years after the bill is passed.
All of these problems must be fixed before the Senate votes on the final legislation.
VIII: WHAT HAPPENS TO NATIONAL SECURITY WHISTLEBLOWERS?
National security whistleblowers are the biggest losers in S. 372.
The Senate Homeland Security approved a bill that, if enacted, would seriously undercut national security whistleblower rights and set terrible precedent. It would in practice constitute an anti-whistleblower law. It would do permanent harm to “the public’s right to know,” and ensure that national security whistleblowers did not “blow the whistle.” This is not an exaggeration!
Title II of S. 372 (Page 38) completely ignores the findings of the General Accounting Office (GAO). The GAO conducted an in-depth review of employment-protections for employees at the CIA, the NSA and the Defense Intelligence Agency. These employees were excluded from protection in the Civil Service Reform Act of 1978. The reason for this exclusion was the issue of classified information, and whether permitting these employees access to administrative or judicial remedies could result in the improper release of classified information, and thereby harm national security.
The GAO reviewed how these intelligence agencies handle Title VII cases (i.e. cases filed with the EEOC alleging race, sex and other forms of discrimination). Under Title VII, these employees are allowed to take their retaliation cases to a jury trial in federal court.
After a systemic and in-depth review, the GAO concluded that national security employees could have full civil service protection, and could have their employment claims adjudicated in federal court, without any threat to national security. The GAO concluded that there were already in existence agency-controlled methods to prevent the release of classified information in employment cases, and that national security employees could have full civil service protection.
The Senate Committee and the White House acted as if this report never existed.
The NWC provided the GAO report and an explanation of the report to White House and Senate Committee staff. Not one objection was made by either the White House or Senate Committee staff to the findings of the GAO. This was probably due to the fact that the GAO report completely debunked the argument that national security would be endangered if national security employees were given meaningful whistleblower protection. They had no legitimate reason to deny national security employees the protection they have long deserved.
However, despite the undisputed facts set forth in the GAO report and President Obama’s campaign promises, the White House introduced a legislative proposal that ignores the GAO findings and completely guts all national security whistleblower protections. The Senate approved the White House proposal.
Tomorrow we will learn why the national security whistleblower section in S. 372, if passed, would constitute one of the most anti-whistleblower laws ever enacted into law by Congress.
IX: DUE PROCESS FOR NATIONAL SECURITY WHISTLEBLOWERS?
The national security whistleblower protection sections of S. 372 are a bad joke. They completely undermine any semblance of whistleblower rights and ensure that no national security worker will ever prevail in a disputed whistleblower case. The language set forth in Title II of S. 372 is disheartening and should be struck from the law without delay.
Why is it so bad?
First, there is no court access.
The right to federal court in provided in the House version of the bill and recommended by the GAO does not exist in S. 372. This not only undercuts essential due process rights, but also creates an atmosphere where the intelligence agency can retaliate against the whistleblower knowing that the employee will never be able to have his or her day in court.
Access to federal court remedies is the single most effective check on any government agency’s propensity to try to silence a whistleblower. Instead of providing court access, the Senate bill creates an Intelligence Community Whistleblower Protection Board that only purports to be system of review.
The Board is comprised of intelligence agency officials, not administrative judges, and is not subject to the minimum due process requirements of the Administrative Procedures Act. The Board does not have the authority to hold hearings or interview the whistleblower. However, the Board is given the authority to determine a whistleblower’s credibility solely on the basis of the recorded created by the agency that retaliated against the employee.
Second, the Inspectors General are stripped of their responsibility to investigate or remedy a whistleblower retaliation case. Instead, the power to investigate whistleblower cases is vested directly with the agency that retaliated against the whistleblower in the first place. There is not even a pretext of independence. If you blow the whistle against the CIA, it is the CIA that will look into your case.
Third, the due process protections afforded whistleblowers under the current Whistleblower Protection Act do not exist. Under current law, the Office of Special Counsel investigates whistleblower claims. Because of abuses within that office, the contents of these investigations remain protected by the Privacy Act. Only the employee can consent to the release of the findings. Why? In the past, a whistleblower would go to the Special Counsel. The Special Counsel would draft a report critical of the whistleblower. The agency could and would use the report to discredit the whistleblower and would effectively end that employees career.
In 1989 that process was reformed. The Special Counsel report could only be provided to the employee, who would have the ability to keep the report confidential.
Not so under the new Senate legislation. The agency itself will conduct the investigation and issue the report. The report is not confidential, and can be used to justify further retaliation against the employee.
Forth, the agency is vested with the power to draw “credibility” determinations against the whistleblower. Thus, the agency can reach a finding that the employee is not credible. This finding will not only be used to defeat the whistleblower case, but will be sent over to the security clearance office. An employee who is found not “credible” will very likely lost their security clearance and with that their reputation and ability to even obtain work in law enforcement or security-related agencies.
Fifth, the adverse credibility determination is not subject to any meaningful appeal. The Board can only reach a ruling on the credibility of a whistleblower based on the record created by the very agency that retaliated against the employee! The Board is prohibited from even talking to the whistleblower and reaching its own credibility finding.
For example, if the CIA makes a finding that a whistleblower is not credible, and the whistleblower files an appeal of that finding, the Intelligence Community Whistleblower Protection Board is prohibited from taking any testimony from the whistleblower in order to rebut the adverse agency finding.
Sixth, the agencies can introduce secret evidence in a whistleblower case against the employee, and the employee is prohibited from ever learning what that evidence is. Thus, an employee can lose his or her case based on secret evidence that they are never able to rebut.
Seventh, the law creates a short sixty-day statute of limitations for filing national security whistleblower claims. The current Whistleblower Protection Act contains no such statute of limitations. Such a short filing period will result in many cases being dismissed as untimely filed. Given the other problems with the law, that may end up being a blessing to most workers, who will not have to incur additional attorney fees simply to have the agency that fired them write a report attacking their credibility!
The bottom line is that the provisions set forth in Title II of S. 372 are anti-whistleblower in nature, and represent a serious setback for all national security whistleblowers.
X: IF IN DOUBT – THROW OUT THE CASE!
Buried at the very end of the national security whistleblower section of S. 372 is a grant of unprecedented power to the directors of the FBI, CIA, NSA and every other intelligence agency.
These directors are authorized to have any whistleblower case summarily dismissed, with no administrative or judicial review.
That’s right. The Director of the FBI can simply order the dismissal of any whistleblower case filed by any FBI employee. End of story.
I know this sounds radical, but Section 121(e) (Page 56) grants these powers to the agency directors!
This radical grant of power to the agencies accused of wrongdoing is one of the most obvious manifestation of the deficiencies in the Senate bill. The national security whistleblower provisions are not designed to protect whistleblowers. They are designed to ensure that no whistleblower case is ever filed, and if it is filed, that the whistleblower will lose – not just their case, but potentially their security clearance and their ability to ever work in law enforcement or other security areas again.
The fact that the directors of each agency covered under the national security whistleblower provisions are granted this extraordinary power is simply the last step in a process that undermines whistleblower protections.
It is unacceptable to create a process that grants the agency embarrassed by the whistleblower’s disclosure the authority to summarily and without any judicial review throw out a whistleblower’s case.
XI: IS FILING A NATIONAL SECURITY WHISTLEBLOWER CASE UNDER S. 372 MALPRACTICE PER SE?
In the posts 9 and 10, we set forth some of the deficiencies in the national security whistleblower section of S. 372. We explained how it is basically impossible for a whistleblower to win under the current Senate language.
Simply wasting many years and thousands of dollars in a new bureaucracy that Franz Kafka would have marveled at is not enough unto itself to say that filing a claim under the Senate provisions would constitute legal malpractice. However, Title II of S. 372 is not so benign. It is a retaliators fantasy. It creates a process, which permits the agency to completely discredit an employee and destroy their career in law enforcement and intelligence forever.
These are extremely serious allegations, but let me explain how it works. When the employee files a whistleblower claim the agency conducts the investigation. The agency is empowered by the statute to render a credibility determination against the whistleblower. The agency can make a finding that the employee is not trustworthy. Such a finding in law enforcement or intelligence will mark the end of that employee’s career.
First, under the Supreme Court cases of Brady v. Maryland, 373 U. S. 83 (1963) and Giglio v. United States, 405 U. S. 150 (1972) if a law enforcement officer has issues related to truthfulness in testimony the prosecution in any criminal case is required to provide this information to the defense. Therefore, these agency findings will be required, under constitutional law, to be submitted to the defense in any case where the employee may testify. These types of findings on credibility will mark the end of an employee’s career as they will no longer be able to work on any cases that may require in-court testimony.
Second, a finding by an agency that an employee was not truthful or reliable will be forwarded to the security clearance office. They security clearance will likely be reviewed and denied. If an employee’s security clearance is revoked they will be removed from their position.
Third, a whistleblower who suffers a Giglio smear or has their security clearance revoked will face long-term consequences, including the inability to work in the private sector. Essentially the ability to get another job in the intelligence or law enforcement area is gone.
Finally, the Title II has a masterful stroke if the employee appeals their adverse credibility determination to the newly created Intelligence Community Review Board. The Board is statutorily given the ability to issue a final decision on the credibility and truthfulness of the whistleblower. Under the statue, this finding must be made public and published to Congress. The finding that will destroy a whistleblowers career is plastered in the public domain for anyone to see.
You may be asking yourself, isn’t the right to an appeal something good?
Under normal circumstances, yes, but not when Franz Kafka writes the law. The appeals provision is as follows. The whistleblower is not given the right to appeal before a court, they must appear before the Intelligence Community Whistleblower Board. The Board is comprised of executives in the intelligence community and is prohibited from hearing testimony or admitting evidence. Thus, when an agency discredits a whistleblower, they cannot present any new evidence to defend themselves. The Board will render a final decision on credibility, which will be based solely on an agency created record. They are prohibited under the statute from simply calling the whistleblower in and rendering their own decision on credibility.
So, is taking a whistleblower to this Board legal malpractice? Yes.
The risk that any employee faces in appearing before the Board is just too great. The employee should avoid these procedures at all costs. Given the track record of the FBI and other agencies in handling whistleblower complaints, to place a client’s hands in this process would be tantamount to professional suicide. There is nothing good in Title II as it is currently drafted. It will be a sad day for the public’s right to know, oversight and accountability, and basic fair play for the Senate to ever approve such a bill.
XII: WHAT HAPPENED TO THE WHITE HOUSE?
I had the “honor” of being involved in the initial discussion process with the White House and reviewing the proposals circulated by the White House. I could spend the rest of this blog venting my frustration over what did and did not happen as a result of that process, but I won’t.
The bottom line is that President Obama did promise, on numerous occasions, to support whistleblowers. He did specifically endorse the framework for protection set forth in the House bill.
These promises are easy to fulfill. S. 372 can be amended on the Senate to make the law consistent with President Obama’s campaign promises – and consistent with the goal of providing real protection to federal employee whistleblowers.
It is time for the White House to stop listening to those who benefit from whistleblowers being silenced. President Obama must demand that his staff fully and immediately implement the promises he made to every American whistleblower during his campaign.
It is a promise that he must keep.
President Obama stated that whistleblowers are the “watchdogs of wrongdoing” and should have “full access to courts and due process.” The President must take a leadership role and ensure that the whistleblower bill that passes in the Senate is consistent with his campaign promises.
When the next disaster hits – and it turns out there was a whistleblower trying to warn the public before people were hurt – will President Obama be able to stand before the voters and say that he did his best, that he fulfilled his promise? Or will he be accused of abandoning the courageous employees who tried to “do the right thing?”