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H.Rpt. 103-769 (Committee on Post Office and Civil Service) (Sept. 30, 1994)

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(internal footnotes omitted except fn.15)
p. 7 pp. 12-13 p. 14 pp. 17-18 fn.15 p.22

Id. at p. 7:


H.R. 2970, as amended by the Committee, reauthorizes the Office of Special Counsel (OSC) and the Merit Systems Protection Board through Fiscal Year 1997 and expands existing protections established in the 1989 Whistleblower Protection Act (WPA).
The bill requires agencies to educate and inform their employees of their rights and remedies under the WPA; expands coverage to hundreds of thousands of Federal employees who are not currently covered; expands the definition of personnel actions to include several practices that are not currently covered but that can have a debilitating effect on an employee's career; and requires agencies to do a better job of communicating to managers and supervisors that retaliation against whistleblowers is not acceptable and will not be tolerated.

Id. at pp. 12-13:

The necessity for significant change to structurally reform current whistleblower protection law is beyond credible debate. The Act's legislative mandate is unsurpassed. Congress seldom passes any significant statute unanimously once, let alone twice in five months. Unfortunately, while the Whistleblower Protection Act is the strongest free speech law that exists on paper, it has been a counterproductive disaster in practice. The WPA has created new reprisal victims at a far greater pace than it is protecting them.
Since the last pre-WPA study in 1983, the Board's 1993 survey found that the rate of eyewitnesses who challenge fraud, waste and abuse has increased from 20 to 50%. In 1993 the General Accounting Office reported that 60% acted within the chain of command instead of outside the system, but 20% were harassed within 24 hours. Overall, the rate of ensuing retaliation increased from 24% to 37%. Less than 10% exercising legal remedies were helped, and 45% report that acting on their rights got them in more trouble.


The cause of the failure is no mystery. The WPA's rights have not met their promise on paper, because the agencies responsible for the Act's interpretation have been hostile, or at least unwilling to enforce its mandate. In response, H.R. 2970 overhauls the responsibilities and structure for whistleblower protection in four areas-agency leadership and management accountability; closing coverage gaps in the scope of statutory protection; freeing whistleblowers from vulnerability to abuses of discretion by the Office of Special Counsel; and creating a choice of a system that offers civil service whistleblowers access to the same due process procedures generally available to American citizens to enforce constitutional rights.

Id. at p. 14:

One reason for the WPA's disappointing record is the plethora of coverage gaps that leave many reprisal victims defenseless. Some are due to erroneous statutory interpretations by hostile implementing agencies and fora. Many, however, are because the ten actions listed in 5 U.S.C. 2302(a)(2)(A) reflect the outer boundaries for whistleblower protection. The list has not kept pace with the creativity of effective harassment tactics.

Id. at pp. 17-18:

The track record has not been significantly better for WPA litigation options. A due process forum inherently provides increased opportunities for relief through judgment or settlement. However, the statistical record indicates that the MSPB and Federal Circuit Court of Appeals have not been favorable to Federal whistleblowers. In the first two years after the Act's passage, whistleblowers won approximately 20% of Merit Systems Protection Board decisions on the merits. Since FY 1991, however, that rate has dropped to 5%, far lower than analogous statutes with tougher burdens of proof administered by the Department of Labor. Instead of restoring balance, the U.S. Court of Appeals for the Federal Circuit has been more hostile than the Board. Since its 1982 creation, in reported decisions employees have prevailed only twice on the merits with the whistleblower defense. The committee received extensive testimony at hearings that the MSPB and Federal Circuit have lost credibility with the practicing bar for civil service cases. Due to the MSPB's failure to consistently enforce standards in the Federal Rules of [Civil] Procedure or the Federal Rules of Evidence, the Board has not earned respect as a fair forum even on procedural grounds.
The body of case law developed by the Board and Federal Circuit has represented a steady attack on achieving the legislative mandate for effective whistleblower protection. Various decisions have held that the WPA-(1) does not have to protect employees who disclose violations of "interpretative" rules; (2) does not protect employees who fail to cite the specific law(s) being violated when they blow the whistle; (3) does not protect those whose disclosures evidence violation of laws with enforcement discretion; (4) limits protection in Board proceedings to the record already presented to the OSC; (5) effectively requires employees to plead proposed findings of fact establishing jurisdiction in their initial complaint to the Board, without first permitting pre-hearing discovery; (6) does not require the Board to probe behind agency assertions that provision of interim relief would be disruptive, and does not require return of an employee to his or her original duties; (7) does not have to provide back pay for employees who were suspended during investigations but subsequently cleared and restored to duty; (8) does not offer relief when an agency believed that outside attention due to the employee's protected whistleblowing upset co-workers; (9) does not preclude ex parte contacts between proposing and deciding officials in intra-agency adjudications, or even preclude them from being the same person; (10) does not prohibit an agency from finalizing action against an employee without waiting for completion of the reply period required by agency procedures; (11) does not encompass within the nexus requirement a one month time lag between protected speech and a challenged performance appraisal, because the timing of the appraisal was beyond the supervisor's control; (12) does not permit employees to be made whole through payment of consequential expenses incurred as a result of an improper personnel action; (13) does not protect employees who blow the whistle in the context of a grievance; and (14) does not permit an employee pursuant an Individual Right of Action under section 2302(b)(8) to consolidate the case with the same employee's related challenges to other alleged prohibited personnel practices violated by the same personnel action. [see below for FN15 contents/citations] These decisions are illustrative, not exhaustive. They all, however, violate the WPA's clear mandate through statutory provisions or legislative intent.
The Federal Circuit's decision in Clark v. Department of the Army, 997 F.2d 1466 (Fed. Cir. 1993), cert. denied 114 S.Ct. 920, illustrates the vulnerability of whistleblowers' legal rights. In Clark the court erased the Act's clear legislative intent that protected whistleblowing may not play any factor in personnel actions, unless the agency demonstrates by clear and convincing evidence that it was an immaterial factor.
Clark effectively canceled the whistleblower defense, by permitting an agency simultaneously to defeat a prima facie case through meeting the same burden of supporting its personnel action that exists under section 7701(c), whether or not the employee raises an affirmative defense.
Perhaps the most troubling precedents involve the Board's inability to understand that "any" means "any." The WPA protects "any" disclosure evidencing a reasonable belief of specified misconduct, a cornerstone to which the MSPB remains blind. The only restrictions are for classified information or material the release of which is specifically prohibited by statute. Employees must disclose that type of information through confidential channels to maintain protection; otherwise there are no exceptions.
FN15. Precedents illustrating the above doctrines, respectively, include-Houston v. U.S. Department of Labor, Docket No. DC-1221-93-0448-w-1 (Sept. 21, 1993); Padilla v. Department of the Air Force, 55 M.S.P.R. 540 (1992); Haley v. Department of Treasury,977 F.2d 553 (Fed.Cir. 1992); Knollenberg v. Department of Navy, 47 M.S.P.R. 92 (1991), aff'd sub nom. Knollenberg v. Merit Systems Protection Board, 953 F.2d 263 (Fed.Cir. 1992); Fidler v. U.S.P.S., 53 M.S.P.R. 440 (1992); Ginocchi v. Department of Treasury, 53 M.S.P.R. 62; Weimers v. Merit Systems Protection Board, 792 F.2d 1113 (Fed.Cir. 1986); Nicholas v. Department of Air Force, No. 92-3473 (Fed.Cir. Feb. 8, 1993); DeSarno v. Department of Commerce, 76 F.2d 657 (Fed.Cir. 1985); Baracco v. Department of Transportation, 15 M.S.P.R. 112 (1983), aff'd 735 F.2d 488 (Fed. Cir. 1984); Wagner v. E.P.A., 51 M.S.P.R. 337 (1991); Harris v. Department of Agriculture, 53 M.S.P.R. 73 (1992); Fisher v. Department of Defense, 52 M.S.P.R. 470 (1992); Marren v. Department of Justice, 51 M.S.P.R. 532 (1991). For systematic review of hostile precedents undermining the WPA, see Minahan, "The Whistleblower Protection Act; Death of a Statute," 93 Federal Merit Systems Protection Reporter v-93-5 (April 26, 1993).

Id. at p. 22:

Section 3. Individual right of action relating to the Merit Systems Protection Board.

Subsection (a) of section 3 provides that in Individual Right of Action cases, consistent with the Federal Rules of Civil Procedure, the MSPB shall issue subpoenas when the applicant for a subpoena shows that the request is not unduly burdensome; does not involve material that is privileged or otherwise protected from disclosure by law, rule, or regulations; and is relevant or appears reasonably to lead to discovery of admissible evidence.
The committee intends that the MSPB chall liberally construe and strictly enforce this provision. The Board shall permit and enforce discovery prior to jurisdictional pleadings and decisions.