[Homestead] Whistleblower---another damned BandAid
tvoivozd at infionline.net
Thu Sep 30 20:14:31 EDT 2004
*Congress Could Increase Protections for Whistle-Blowers*
By Stephen Barr
Thursday, September 30, 2004; Page B02
For the first time in a decade, Congress appears ready to strengthen
protections for federal employees who risk their jobs when they blow the
whistle on criminal activities, gross mismanagement and dangers to
public health and safety.
The House Government Reform Committee approved, on a voice vote
yesterday, a bill sponsored by Rep. *Todd R. Platts *(R-Pa.) that would
clarify congressional intent in cases where agencies take reprisals
against whistle-blowers. A Senate version, sponsored by Sens. *Daniel K.
Akaka *(D-Hawaii), *Susan Collins *(R-Maine), *Charles E. Grassley
*(R-Iowa) and others, has been approved by the Governmental Affairs
Congress tightened whistle-blower protections in 1994, but Platts and
Akaka said that effort has been overtaken by loopholes and exceptions
created by the Court of Appeals for the Federal Circuit, which has
monopoly jurisdiction over whistle-blower appeals.
"Unfortunately, we are once again largely back to where we started.
Since the 1994 amendments, 75 whistle-blower cases have come before the
federal circuit court. However, only one whistle-blower has prevailed,"
Platts said yesterday.
The court, for example, has decided that whistle-blower protections do
not apply if the federal employee brings an allegation of wrongdoing to
the attention of a co-worker, or discloses information in the course of
ordinary job duties, or raises issues already disclosed by someone else.
In addition, the court has ruled that federal employees must come up
with "irrefragable proof" in order to show the government has engaged in
waste, fraud or abuse.
"This is an unheard-of legal standard, defined in the dictionary as
'impossible to refute.' In other words, the agency pretty much has to
admit to waste, fraud and abuse," Platts said.
Platts's bill would replace the "irrefragable" standard with one that
required "substantial evidence" in cases where whistle-blowers must
rebut the presumption that the government was acting in accordance with law.
In introducing his bill yesterday, Platts described it as a compromise,
but one that represented "a solid step in the right direction."
The Senate bill would provide more expansive protections to whistle-blowers.
For instance, it would allow federal employees to have their cases heard
by courts other than the federal circuit, would clarify that federal
employees can bring classified information to Congress, and would make
it more difficult for agencies to get rid of whistle-blowers by yanking
their security clearances.
Akaka would allow the Merit Systems Protection Board, which handles
federal employee complaints about disciplinary actions, to review cases
in which whistle-blowers lost their clearance because of retaliation. If
the government acted improperly, the MSPB could call for a remedy, such
as awarding back pay, legal fees or other relief to the employee who
Rep. *Thomas M. Davis III *(R-Va.), chairman of the House committee,
noted yesterday that revocations of security clearances "can be fatal to
an employee's career."
The House bill, however, would only authorize a study of allegations
that the government improperly revokes clearances as a way to punish
Platts told Davis that he wanted to include a provision that would have
extended review of whistle-blower cases to all federal circuits but did
not because it might have detoured the bill into another committee,
slowing final House action.
Davis said he would return to the issue of court jurisdiction if the
bill's provisions "prove to be insufficient to constrain the
deliberations of the federal circuit." The court, Davis said, "needs to
take note of Congress's intentions in this area and follow the law."
Proponents of whistle-blower protections welcomed the House bill, but
only as a step toward House and Senate negotiations to craft stronger
"The Senate committee approved a cure, and the House committee approved
a Band-Aid," said *Tom Devine*, legal director at the Government
Accountability Project. "Thank goodness for Band-Aids -- they keep the
carpet from getting all bloody -- but they don't get you well."
Akaka introduced his bill in July, saying that the record of the federal
circuit "sends the wrong message. How can we expect civil servants to
protect and defend the United States when we permit agencies to
retaliate against them for doing their job?"
/E-mail: //barrs at washpost.com/ <mailto:barrs at washpost.com>
© 2004 The Washington Post Company
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