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Hearing of the Oversight of Government Management, The Federal Workforce and the District of Columbia Subcommittee of the Senate Committee on Homeland Security and Governmental Affairs - S. 372, The Whistleblower Protection Enhancement Act of 2009


Location: Washington, DC

Chaired By: Senator Daniel K. Akaka

Witnesses Panel I: Rajesh De, Deputy Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice; Panel II: 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

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SEN. AKAKA: Thank you so much for being so patient.

I call this hearing of the Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia to order. (Sounds gavel.)

I want to welcome our witnesses and thank you so much for being here. Today's hearing will examine S. 372, the Whistleblower Protection Enhancement Act of 2009, which I and other members introduced earlier this year.

First, I want to thank Senator Collins, the lead Republican co- sponsor 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 Senator Collins and Voinovich are not able to attend today's 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 whistleblowers' protections.

The Whistleblower Protection Act is an important cornerstone of our nation's 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. And I should also add on another side of this is that many of them have some good ideas that can improve the operations as well.

Congress passed the Whistleblower Protection Act of 1989 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 federal circuit court have created a number of loopholes in the law's 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 the year 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. 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, and I quote, "administration is committed to creating an unprecedented level of openness in government," unquote.

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 are 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 disclosures, provide a process to review retaliatory security clearance revocations and suspensions, provide whistleblower protections to employees of the Transportation Security Administration, protect disclosures of scientific censorship, suspend the federal circuit court's 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's 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 the whistleblowers if the administrative process is not working. The House companion bill would allow whistleblowers to file their cases in district court if the 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 in the past administration have expressed concerns that fear of having to defend their actions to a jury might dissuade federal managers from disciplining problem employees. Additionally, the past administration was concerned that this would allow forum shopping. Employees dissatisfied with the direction of the 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 committee today. Mr. Rajesh De, the 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. (Witness is sworn in.)

Before we start I want you to know that your full written statement will be part of the record.

Mr. De, please proceed with your statement.

MR. DE: Good afternoon, Chairman Akaka. Thank you and thanks 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 president's firm commitment to ensuring accountability in government.

A government employee who speaks out about waste, fraud or abuse performs a valuable 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 can not 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 and abuse. At the same time, we must preserve the president's constitutional responsibility with regard to national security information and ensure that agency managers have effective tools to discipline employees who themselves may be engaged in waste, fraud or abuse.

We recognize that the executive branch and the Congress have long held differing views regarding the extent of the president's 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 goals of increasing the protection available to 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 Senate both 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 of both simple fairness and a 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 who is not -- is not protected when he discloses wrongdoing as part of his normal job duties unless that disclosure is made outside of 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 Transportation Security Administration screeners who literally stand at the front lines of our nation's homeland security system. They deserve the same whistleblower protections afforded to all other employees of the Department of Homeland Security.

As this subcommittee knows, the intelligence community is generally excluded from the Whistleblower Protection Act, yet it is essential 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 within the executive branch. This board would be comprised of senior presidentially appointed officials from key agencies within and outside 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's 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 within 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 whistle-blowing 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 lead. 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 currently provides a vehicle for 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 of her specific agency.

This administration believes that no federal agency should be able to hide its own wrongdoing. For this reason we believe an intelligence community 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 administration's 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 with you to help revise and improve this legislation to achieve our shared goals.

Thank you and I'd be happy to take your questions.

SEN. 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 circuit's 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 MSPB's decision or if the MSPB has not decided the case within 180 days.

My question to you, 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 -- safety valves, as you 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, the development of expertise and a 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 a more expansive development of the law and serve as one of the sort of safety valves that you've suggested.

Thinking about this issue sort of in a broader sense, we think that safety valves should be addressed in the context of the federal government more generally, whether it's 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, incorporating Congress into this, that 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've proposed and are working through now, we think there's 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 the subcommittee to build in multiple mechanisms to serve as another safety valve to bring the legislative branch as well. So when there's a potential disclosure that an intelligence community employee would like to make and raises it with the board, we think it's very important that that employee be able to notify Congress that they have raised such a concern with the board.

So, speaking at a 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.

SEN. AKAKA: Mr. De, I understand that the administration has yet determined its -- 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'll address this specific question.

We certainly recognize that the question of jury trials is an important one for advocates of whistleblower reform and to the administration. Where 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'd 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 striking 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. that is the sort of 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's a couple specific suggestions we would have.

Two specific concerns about juries in particular in the whistleblower context: As you know, the way a whistleblower case generally proceeds is that once a claimant makes their prima facie case, the defendant must establish by clear and convincing evidence that the personnel action was taken for a legitimate purpose.

We think that -- we are concerned 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 criminal contexts.

The second point I'd 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's not unique here. But one prime example might be, what would constitute a gross mismanagement of funds? Now, I think we'd probably all agree that figuring out what is a gross mismanagement, once you unpack it, has both questions of law and questions of fact 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 don't have inconsistent development across multiple circuits.

So with these sort of thoughts in mind the suggestions we would have are threefold.

One, if a right to a jury trial is included we would suggest that it be limited to a non-national security context. Two, we'd also suggest that Congress consider adopting a preponderance of the evidence standard for -- at least for jury trials -- and at the burden-shifting framework similar to the Title 7 context, that 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 7 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.

SEN. AKAKA: Let me now call on Senator McCaskill for her questions.

SEN. CLAIRE MCCASKILL (D-MO): Thank you, Mr. Chairman.

I especially am appreciative today because I think technically I'm not on this committee. But because this is an area that I'm very interested in, the committee was kind enough to allow me to come and question.

And 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 trial -- every whistleblower on the face of the planet. The exceptions and the differences we've carved out to me make no sense.

For example, right now if you're a contractor in the Department of Defense 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 work 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: Firstly, 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's 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 haven't 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 the 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've helped enact recently.

SEN. MCCASKILL: Well, let me ask you this question. I guess I'm -- you know, we know that 46 percent of the fraud that has been uncovered, according to the CFE's -- the certified fraud examiner report -- they sampled 1,000 cases in 2008. Forty-six percent of the fraud we found came from employees. That's half -- the majority of all federal fraud recovery 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 don't understand the causal connection there.

MR. DE: I think there's a couple factors that we've been trying to unpack and would sort of put forth for your consideration.

One is a perception -- and we're trying to uncover what's behind that -- as to whether there is a fear of a greater litigation burden that will -- 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. And so we are trying to assess the sort of validity as to what's behind that.

I think the second point is, as a general matter I think we all want to ensure that waste, fraud and abuse is exposed, just as a first principle. So then the question is, 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 sort of abuse.

So that's the sort of waste, fraud and abuse we don't necessarily hear of because it's sort of taken care of in a simple personnel action. But I say that because we want to make sure we don't discourage manager from being able to take -- out of fear of being dragged into a district court action, fear of taking legitimate personnel actions.

SEN. MCCASKILL: And so what you're saying -- I guess I'm trying -- what you're 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, you know, because they're being disciplined in the workplace? They're going to claim that there is a -- that they have whistleblower status? Is that what you're -- is that what they're alluding to?

MR. DE: I think there's partly a concern given that in the whistleblower context the standard -- sort of evidentiary standard is relatively -- relatively low at the prima facie stage -- and for good reason. We don't want whistleblowers to have a hard time of sort of making their case. But I think the concern is, given that low standard and the clear and convincing rebuttal standard in -- as currently set up, that's particularly -- it's particularly concerning in the context of a jury trial in federal district court.

SEN. MCCASKILL: Well, I just -- you know, I know that you're probably aware -- I know you're a very smart guy. But I -- first of all, our cases are really hard to make. I mean, we are not -- I wish I could stack documents here to show you all the successful whistleblower cases that have been brought. They're expensive. It's difficult to find a lawyer that will represent you.

I really think the arguments against jury trails 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. And I thank you, Mr. Chairman, for giving me the opportunity to ask questions.

SEN. AKAKA: Thank you very much, Senator McCaskill. And thank you for being here.

Senator Burris, your questions, please.

SEN. ROLAND BURRIS (D-IL): Thank you, Mr. Chairman and to our witness.

The whistleblower issue seemed to be the hot topic. And Mr. Chairman, you certainly raised the question, and I'm just trying to see, is this administration's position that whistleblowers should not have a jury trial if they are involved in one of the security agencies? Is that what you're saying?

MR. DE: Certainly with respect to the national security agencies, yes. We believe jury trials would be particularly inappropriate in that context.

Yes, sir.

SEN. BURRIS: So what type of protection other than the hearing officer or the administrative judge or -- so is that the only person who would then hear the evidence that's presented by this whistleblower that's saying that something is afoot here?

MR. DE: Definitely not. We certainly agree that review should not stop within the individual employee's agency. We agree that no individual agency should be the last word in terms of waste, fraud and abuse --

SEN. BURRIS: I beg your pardon, Mr. De. I'll take it beyond the agency. I'm taking it to some arbitrary -- arbitrating body. And you're saying it should be only the hearing officer or the administrator or the judge that would be hearing this whistleblower's evidence against whatever they are alleging is taking place. That's to waste, fraud or abuse.

MR. DE: We would propose that the appeal of the whistleblower's 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.

SEN. BURRIS: Because I'm -- in one of the testimonies of the persons who will come out in the second panel, a witness calls for reviewing past cases and trying to find ways to make amends for some of the unfortunate situation whistleblowers have endured in the past.

Now, what is the administration's stand on some sort of retroactive review of these cases?

MR. DE: As an initial matter, we believe this bill is just one piece of the administration's broader effort to ensure increased accountability in government, increased protections for whistleblowers and increased transparency.

Accordingly, we would hope that once this bill is -- even 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 or a range of other issues of interest to this community.

With respect to the retroactive consideration of cases, that's certainly something that we think should be paid attention to. And we will take it under consideration.

SEN. BURRIS: And back to this special board, you don't think that the Merit System Protection Board would be sufficient to handle these security whistleblowers?

MR. DE: That's correct. We think it would be an inappropriate venue for these cases for a variety of reasons. One, we don't 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.

Secondly, with respect to 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 --

SEN. BURRIS: What experience would this new board have? I mean, who is this new board?

MR. DE: The board would be comprised of folks who have had experience in this area. We would love to work with the subcommittee to determine the exact composition of the board. But it could be -- it would be independent, presidentially appointed nominees.

SEN. BURRIS: That have to have a whole staff and a whole 'nother bureaucracy established and (peering?) 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 sort of staffing expertise that happened at the agency level.

SEN. BURRIS: Okay. Let's move to another question here.

The House version of this bill calls for protection for federal contractors. And this would be a broad expansion of existing laws. Does the administration have an opinion on providing these protections for federal contractors? Do you believe that this sort of 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 today 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 sort of 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 funds -- federal stimulus funds. We haven't yet seen how that's played out. And to the extent that there are any tweaks necessary in the framework for the contractor side of things, that's 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 IG to conduct an investigation of every whistleblower allegation unless it were determined to be frivolous.

Now, I think it's 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's one issue I'd flag as Congress thinks about this.

The second issue is that it's worthwhile to consider what sort of limitations period should -- would be appropriate to ensure that contractor whistleblower claims are both raised and resolve in a timely manner.

And the third point I'd 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's not that it's an insurmountable problem. It's just something that I think needs to though through carefully.

SEN. BURRIS: Thank you, Mr. Chairman.

SEN. AKAKA: Thank you very much, Senator Burris. I'll have a second round. And if you have further questions we'll pick it up in the second round.

Mr. De, at a 2007 hearing before the House Federal Workforce Subcommittee the MSPB witness at that time expressed concern that the House bill's district court provision effectively would create a 180- day standard for the board to adjudicate whistleblower appeals. 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.

I think one question, 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's currently constituted, if litigants who 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 around -- 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 MSPB's structure and time frame. But I do think it is a valid concern.

It needs to be considered as to what the impact would be on the MSPB as currently structured if a provision were allowed or if it were allowed for claimants to go to federal district court until the MSPB had made a resolution and what the time frame would do to that decision-making cycle.

SEN. AKAKA: Mr. De, national security whistleblowers make some of the most important disclosures regarding the security and safety of this nation.

We'll 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 administration's 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 couldn't 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. And it's 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've articulated, Mr. Chairman, we believe -- and the reasons we've proposed -- an intelligence community whistleblower protection board -- that we believe it's 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 sorts of 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 and these types of cases.

I think as a general matter, we think it's 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 either executive branch or legislative officials who are properly cleared with the appropriate mechanisms in place.

So I think as a general matter we think it's important to structure a system that reduces the disincentives -- reduces the incentive for national security employees to feel that their only recourse is to go to the press and that then they have to risk the potential retaliatory implications of those disclosures.

SEN. 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.

My question to you is, do you have additional thoughts on what safeguards should be built in to accomplish that?

MR. DE: Thank you, Mr. Chairman.

Yes, I think there's a couple of things I would propose.

One is, 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 and adverse decision is made against an employee who brings a claim of retaliation to the board, as an initial matter.

Second, we think it's absolutely critical that an intelligence community employees 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 sort of appellate rights from this board would make sense. And 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 sorts of cases, we think there may be a role for some sort of additional appellate review. And we'd be happy to work with the subcommittee to think through that.

SEN. AKAKA: Thank you very much for your responses.

Senator Burris, do you have any further questions?

SEN. BURRIS: (Off mike.)

SEN. AKAKA: Well, thank you. Thank you very much.

Well, so Rajesh De, I want to say thank you so much for your thoughts. And as you know, we're trying to reach for and craft a kind of bill that can be effective and are striving to do that and to also work with you on this as well.

And so I want to tell you, thank you so much for your responses. It will be helpful to us and what we'll be doing with this.

And I want to say to you thank you so much for being with us.

Thank you.

MR. DE: Thank you, Mr. Chairman.

Thank you.


Now I'd like to call on the second panel to come forward.

The second panel of witnesses includes Mr. William L. Bransford who's the general counsel for the Senior Executives Association. We also will have Ms. Danielle Brian who's executive director of the Project on Government Oversight; Mr. Thomas Devine, legal director of the Government Accountability Project; and Mr. Robert G. Vaughn, professor of law at the American University Washington College of Law.

I want to welcome all of you to this hearing today and tell you that we have a custom here of the subcommittee to swear in all witnesses. (Witnesses are sworn in.)

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 statement will be part of the record. I'd 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?

MR. BRANSFORD: Thank you, Chairman Akaka and distinguished members of the subcommittee. I appreciate the opportunity to testify this afternoon about reforms on whistleblowers protection.

The Senior Executives Association 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 provision 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 actions, while not imposing burdens on supervisors who are trying to effectively manage their employees.

Last time major reform of whistleblower protection occurred was 1989, with the passage of the Whistleblower Protection Act. A series of decisions from the MSPB and the 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 our opinion, most instances over the past decade where protection was not provided to a would-be 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 sometimes may be whistleblowers themselves. Although SEA supports the reforms provided in the legislation, we do not support jury trials for those for those who claim reprisals.

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 with the office of special counsel.

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 that results in a finding against the government because of a manager's 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, 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 manager's case or how pure the manager's motives.

The jury trail 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 class 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 board's 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 attorney's 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 the 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.

SEN. AKAKA: Thank you, Mr. Bransford.

And now we'll hear from Ms. Brian.

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.

POGO was founded by Pentagon whistleblowers concerned with wasteful spending and weapons that didn't 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 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'll 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 whistleblowers 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's currently a random patchwork of laws that provide protections to national security contractors and some national security federal employees -- even intelligence ones, for example, at the Department of Energy and the NRC -- but not others. And the separate but equal system set up within the CIA and FBI are not working.

We entrust national security and intelligence federal employees with our nation's 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 explained 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've learned that, for example, Congress was being misled about A.Q. Khan's nuclear proliferation scheme, the existence of the CIA's secret prisons, our government's 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 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 intelligence -- the House Intelligence Committee had been focused on notification rather than real discussions.

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 a right and a duty to hear the vast majority of our nation's 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 what member of Congress sits on what committee and what committee has what jurisdiction over what agency. For example, also I would point out the best congressional oversight of the FBI has been conducted by Senator Grassley and it's 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 that information in his disclosure as sensitive security information. His case has been pending before the MSPB for three years without a hearing. He is unemployed.

When DOJ lawyer Thomas Tamm became aware of the government's 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 the 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's 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.

SEN. AKAKA: Thank you very much, Ms. Brian.

Now we'll hear from Mr. Devine. Please proceed.

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, nonpartisan network whose mission is supporting whistleblowers. Those employees will 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 in 24 hours we got so much public support for the House version of the Whistleblower Protection Act that it took second place in the White House's 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 courts, 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 Act, let alone fix it. And after 10 years, with your continued leadership, we're going to get this job done and we're going to do it right.

We've learned a lot over the last 10 years and today's 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 laws, right? Why? The Achilles' heel has always been inadequate due process. The Whistleblower Protection Act was largely passed in 1989 because employees had only won four cases before the Merit Systems Protection Board in the '80s, 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, again gave the board more guidance. Well, guess what. In this millennium, since 2000, we've only had three whistleblowers who have won decisions on the merits.

Enough is enough. It's time to end the broken record syndrome, Mr. Chairman.

One thing that's been very conspicuous by its absence from today's hearing is a defense of the Merit Systems Protection Board's record. It's not surprising, though, because there is no credible defense. Its track record is three and 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 disaster, Star Wars, Iran-Contra, domestic surveillance, food contamination, hundreds of -- tens of thousands of people dying from unsafe prescription drugs, weapons of mass destruction, the warnings before 9/11. None of the whistleblowers who challenged those breakdowns could find justice at the Merit Systems Protection Board.

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 managers would be too scared -- 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 his point by stating that, "Adding jury trials to the mix will give pause to even the best federal manager before confronting an employee who has made a disclosure. Well, that means the law might finally start working and 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've had jury trials for state and local employees for over a century. It's been there for EEO employment discrimination cases since 1991. It's 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're 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 exercise their authority when they need to.

Finally, this fear has flunked the reality test. It's not about jury trials; it's about anything that strengthens whistleblower rights. It was brought up as a reason to veto, in 1988, when the Whistleblower Protection Act was first -- (inaudible). It's 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 to stop crying wolf, and if they won't stop, it's time for Congress to stop listening to them.

SEN. AKAKA: Thank you very much, Mr. Devine.

Now we will hear from Mr. Vaughn. Will you please proceed?

MR. VAUGHN: Thank you. My name is Robert Vaughn and I am a professor of law and an Allen King Scholar at American University's Washington College of Law.

Mr. Chairman, I appreciate this opportunity to speak to this committee 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 culture stereotypes to the contrary, several decades of social science research emphasized the confidence 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 defendant's 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, and I quote, "Several studies question the conventional wisdom that the financial resources of corporate defendants encourage a deep-pockets approach," end quote.

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 and not the common occurrence.

Second, a rational decision maker would not rush the resolution of whistleblower claims before the board to satisfy the 180-day deadline.

Third, the effects of 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 board's revenues, something in 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 forum for whistleblowers.

Thank you.

SEN. AKAKA: Thank you very much, Dr. Vaughn, for your statement.

Mr. Bransford, Mr. Devine responded to SEA's 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. Devine's comments?

MR. BRANSFORD: Mr. Chairman, I do appreciate having -- (off mike).

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're the best supervisor or the best person with people skills. Then they're put in the job with little or no training, and government is hit and miss -- some agencies are better than others at providing that training. And I know we've 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's a EEO system where EEO complaints are filed and the employee can simply, with impunity, file a complaint with EEO, and if you talk to EEO professionals they will tell you that many employees who file them really aren't complaining about discrimination, they're complaining about workplace issues.

And then you have the whistleblower laws and you have a complex set of circumstances. And all of these -- 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 don't 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've seen it.

I've 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 aren't brought anymore, and they're ignored.

Something needs to be done to reform the law, but I think jury trials goes too far.

SEN. AKAKA: Thank you.

MR. BRANSFORD: Thank you.

SEN. AKAKA: Mr. Bransford, if a jury trial provision were included in the 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. De's 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's in an EEO case.

But I have a real concern about changing the burden of proof to agencies from clear and convincing -- in 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, number one, it's difficult enough for a whistleblower to prevail, even with a fairly high standard, and that's one of the significant reforms in 1989 that I believe has actually made a difference. And so I would be concerned about changing that. I was -- the other changes, though, I did find intriguing.

SEN. AKAKA: To follow up on this, Professor Vaughn's and Mr. Devine's testimony suggested there likely would be a very small number of whistleblower cases brought before juries.

Do you agree, Mr. Bransford, 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've 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 are 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.

SEN. AKAKA: Mr. Devine, would you like to address why this issue is so important to whistleblower rights advocates if the House's district court provision likely would use it infrequently?

MR. DEVINE: Thank you, Mr. Chairman.

First, there's a question of credibility. This was the policy that the president campaigned on, and we haven't heard a reason, a public policy basis, to back off of that commitment.

Secondly, it's a matter of fairness for federal employees. They're about the only whistleblowers in the labor force who don't have access to juries to enforce their rights, and it's not sending a very good message to them that we're serious about whistleblower protection if we give them second-class due process compared to the rest of the labor force. So it's for credibility and legitimacy of the law.

Third, it's for the public's 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's a real advantage of jury trials, consistent with Professor Vaughn's insights.

The fourth is the people who do make the significant investment which few can afford, but if they do, they actually have a fighting chance to win when the trial is over with. They don't at the Merit Systems Protection Board right now.

Fifth, there'll 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'll be negotiating in good faith, settlements will be more fair and there'll be a lot more of them to prevent litigation.

That's 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 was 191 cases in the three years before its passage. The three years after its passage, or the 112th, the litigation load went down because there was more of a fair fight when there was a conflict.

But most significant, it's not about quantity, it's about quality. It's about the types of cases. Most of the cases probably can be heard by the MSPB, and we want to work with you also 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, or those where there's been a serious governmental breakdown. That's out of the MSPB's pay grade, quite frankly. They don't have the resources for it.

We did one trial that went on for five weeks, and the poor administrative judge said, "Mr. Devine, this is like trying to get a snake to swallow an elephant; we're going to have to have a supplemental appropriation for the -- (inaudible) -- docket if you keep bringing cases like this."

Well, there has to be a home that's 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.

MS. BRIAN: Mr. Chairman --

SEN. AKAKA: Ms. Brian?

MS. BRIAN: Mr. Chairman, if I could add yet one more reason to add to Mr. Devine's 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'd know someone outside was actually reviewing their work.

That's essentially how the court system works outside this administrative 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 wouldn't necessarily require people to go on to jury trials at all.

MR. DEVINE: We think that the board -- (off mike) -- it will be more balanced if the federal court interpretations of the facts to help keep them more honest.

SEN. AKAKA: Thank you.

Professor Vaughn, your written testimony provides a great deal of detail on how our jury trial provision would function in practice, which will be useful for this committee's 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 of its implications.

MR. VAUGHN: Thank you. I think that there are several reasons; one is that the cost of essentially federal litigation -- when I was growing up, my father was a small-town attorney and when I would complain about things he would say, "Don't make a federal case out of it." And what he meant by not making a federal case out of it was that that was an expensive, time-consuming activity.

It's 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 and 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 board's practice, their aspects of it, the majority of persons who appear before the board are unrepresented or represented by persons who are not attorneys.

As we heard earlier, whistleblowers find trouble finding someone to represent them. Those pro se whistleblowers would I think be particularly -- find it difficult to use the alternative.

At the board, there's a right to a hearing. That's not necessarily the case in federal court. There's interim relief at the board.

Many cases are decided at the board within -- would be decided within the 120-day limit. About 50 percent of the cases are dismissed for timeliness or a lack of jurisdiction so the suggestion would be that a lot of the cases don't consume very much resources at the board.

Our experience with other statutes like Title 7, the Sarbanes- Oxley Act, demonstrate that less than -- that the majority of whistleblowers who would be able to leave the administrative process don't 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's a disposition at trial, and those times, depending on the kind of case that it is, run from over one year to over two years. So there would be -- a whistleblower would face a 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, the motion for judgment as a matter of law, the renewed motion for judgment as a matter of law, which prevent the cases from being decided by a jury or reverse the jury's 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 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 clear and convincing -- removing the clear and convincing evidence standard. I'm 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 with a reasonable belief, but the individual juries themselves don't 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 based -- that 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 or clear and convincing evidence as the standard that's 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'm, I think, more optimistic about juries being able to use the clear and convincing evidence standard.

SEN. AKAKA: Well, 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 of this process?

MR. DEVINE: Oh, Title 7 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's probably an analogous provision in the American Recovery and Reinvestment Act of 2009. It's analogous because exhaustion in those cases are through the office of inspector generals, not through administrative adjudication. But it has a similar provision in it.

These are fairly -- these are the ones I can think of, but these seem to be not an uncommon or unexpected provision in this kind of law.

SEN. AKAKA: Thank you.

Now, 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 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 acknowledgement that the people on that board would be presidentially appointed. We hope that also means Senate-confirmed. The reason that's I'm 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 acknowledgement that it's important that a whistleblower have the access to the Congress by notifying the Congress not after the end of any review, but I'm hoping what they meant was at the initiation of a disclosure to this board, so that if a member of Congress were so inclined that they could go to that board and find out exactly what this disclosure is up front.

And 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's 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.

SEN. AKAKA: Thank you.

Mr. Devine?

MR. DEVINE: Mr. Chairman, we also think that it's very important that the board's 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 NSA you're not entitled to normal due process, we just really can't accept that.

The Title 5 has a breakdown for employees whose jobs are principally for intelligence functions and those whose jobs are more generic public service. And if you're an employee at one of these agencies who's not doing sensitive work, there's really no excuse to put you at a lower level of due process.

And then even if you are an employee who's 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.

SEN. 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 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 in 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's 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 don't think that that's really a valid distinction.

MS. BRIAN: Mr. Chairman, if I could add one more point --

SEN. AKAKA: Ms. Brian?

MS. BRIAN: -- which is the 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.

SEN. 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 testimony, 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 now when making disclosures of classified information to members of Congress?

MS. BRIAN: Thank you very much, Chairman.

I think that's a really central question as you consider this legislation. It is not only to properly clear legislative staff but it's also to any member of Congress regardless of committee.

And the problem a whistleblower will face is they are very likely, as they decide to make a disclosure, which is in itself a very difficult decision to make, but once they've decided to make such a decision the likely place they will turn is to their own member of Congress because they're a constituent. It's very unlikely that that member of Congress sits on the committee of jurisdiction.

The next problem is it's 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're 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 themself should be protect.

SEN. AKAKA: Ms. Brian, under the WPA agencies, 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 are not educated on their whistleblower rights and how to report misconduct, particularly national security employees.

The question is, 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're not aware of their rights. They just don't have adequate rights in the first place. And so what we need to do is give them those rights. That's what I would say.

MR. DEVINE: Mr. Chairman, the premise of your question was well taken, however, and I'm not sure what else Congress can do to legislate. It might be very tough for the -- have special program for managers on rights and responsibilities under this legislation.

But it was part of the '94 amendments that agency has a duty to train and 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 haven't been complying.

I don't think the problem is lack of congressional legislation; it's been lack of leadership within the executive branch. The prior special counsel whose program that you referenced was an ambitious and genuine one to get agencies up to speed in making 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.

SEN. AKAKA: Well, I thank you so much. This has been a good discussion.

Now finally, I want to give each of you an opportunity to speak your mind on what you're thinking at this time on what has been said, what you're thinking about the challenges we're facing, and give you an opportunity to express this.

So let me ask Mr. Bransford for your comments.

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 of 2003 with similar legislation making similar positions, and here it is 2009 and there's still no reform.

And what I've seen in my law practice, what I've seen in representing the Senior Executives Association over those years, is a gradual erosion to the point where today there is no whistleblower protection. It's just nonexistent.

Just this week I had two people telephone me who were concerned that they're being retaliated against because they raised issues as part of their job -- absolutely, 100 percent part of their jobs. And of course, current whistleblower law would not protect them so we're dealing with helping these people through other means, perhaps through 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 don't deal with problem employees.

And while fear of whistleblower prosecution does not come up, it doesn't come up because it doesn't 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, and assuming the law will change 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.

SEN. AKAKA: Thank you very much, Mr. Bransford.

Ms. Brian.

MS. BRIAN: Chairman, thank you for the opportunity.

I've been working on these issues since the '80s, and I think you probably have also. And there has been long-standing concern on the part of the Congress to fix the problems that we've been discussing. I think the important change that we're seeing is this is the first administration that I think is -- first of all, is not threatening to veto this legislation.

You see a dramatic change in the level of communication with the community in hearing our concerns and engaging, and I think it's something that's going to finally mean that we will be seeing a Rose Garden ceremony where whistleblower protections will pass this year.

SEN. AKAKA: Thank you.

Professor Devine?

MR. DEVINE: Mr. Chairman, this legislation has evolved and grown over the last 10 years as we've learned a lot of lessons.

When it was first introduced almost all the whistleblower laws were enforced through solely administrative remedies. Now the rule is to give people normal access to court to enforce these rights as we've learned from track records.

I think the point that we're 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 doesn't seem to be in debate from any side at this point. It's just how to do it right, and that's 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, very critical. We're 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's how we put first-class accountability measures for whistleblowers for all the people who received stimulus funds, and that's the reason why we can't settle for second-class due process in a first-class good government law for the federal workers.

It's not too late, but we need to finish this before the stimulus spending gets fully under way, and we'll be ready for whatever comes.

SEN. AKAKA: Thank you very much.


MR. VAUGHN: Mr. Chairman, it's always -- my last word is it's 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've seen how whistleblowers disclose mismanagement and corruption, they secure openness in government, impose accountability, support the rule of law, protect the First Amendment.

It's our obligation to these -- to many ethical and brave employees to protect them. The protections that we provide them are also the costs 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, and I think that we are not taking risks, that the provisions that are contained in the House provision I have discussed are not novel or untried or dangerous, and I think they're part of that obligation and price we have to pay for all the benefits of whistleblower protection.

SEN. AKAKA: Thank you very much.

I want to thank all of our witnesses. You're wonderful for being here today and responding to the question as well and to have your statements for the record.

You have helped us to really think through the key concerns for finalizing this bill. This issue is a priority for me and I'm optimistic that finally -- finally -- we will enact strong protections for whistleblowers this year.

My colleagues in Congress and I will be working closely with the administration and stakeholders on this, so I want to say thank you very much.

This hearing record will be open for one week for additional statements or questions from other members of the committee.

This hearing is adjourned. (Sounds gavel.)


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