[Homestead] Whistleblower---another damned BandAid

Tvoivozhd tvoivozd at infionline.net
Thu Sep 30 20:14:31 EDT 2004


*washingtonpost.com* <http://www.washingtonpost.com/>
*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 
suffered reprisal.

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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