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S.Rept. 100-413, Report to Accompany S.508 (Governmental Affairs Committee)(July 6, 1988)

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p. 5 pp. 11-14 pp. 17-18 p. 33

Id. at p. 5:

Unfortunately, as described further in this report, Congress' well-intentioned efforts to protect whistleblowers have thus far had little effect. An October 1984 Report by the MSPB illustrated how little impact CSRA has had in protecting whistleblowers. ...
While the Board found that the percentage of employees who claimed recent knowledge of fraud, waste, and abuse had dropped from 45 percent in 1980 to 25 percent in 1983, it also found that most employees with knowledge of government wrongdoing chose not to report it. In 1980, an overwhelming 70 percent of employees with knowledge of fraud, waste and abuse did not report it. In 1983, it was an almost identical figure of 69 percent. As the Board itself pointed out, these statistics indicated that "no measurable progress has been made in overcoming Federal employee resistance to the idea that they should report instances of fraud, waste and abuse.["]
Moreover, the percentage of employees who did not report governmental wrongdoing because of fear of reprisal rose dramatically. In 1980, 20 percent of employees who perceived agency problems did not report them because of fear of reprisal. By 1983, that figure had almost doubled to 37 percent. This astounding increase among federal employees of fear of reprisal was a dramatic indication of how ineffective CSRA has proved to be in this area.
Even a sitting Special Counsel stated publicly that he did not believe the system worked to protect whistleblowers. In a July 17, 1984, Washington Post Article, William O'Connor, the Special Counsel from 1982 to 1986, reportedly stated that if he were an attorney advising whistleblowers, "I'd say that unless you're in a position to retire or are independently wealthy, don't do it. Don't put your head up, because it will get blown off."

Id. at pp. 11-13:

Ms. Mittleman not only did not receive any assistance from OSC on her complaint of reprisal, she was actually hurt by her contacting the OSC because of the OSC investigator's negative comments to OPM. In this particular instance, the OSC was required to respond to OPM because OPM regulations require that federal employees respond to OPM requests for information about other federal employees.
Other employees have made similar complaints that the OSC provides inappropriate information to agencies, to the detriment of those employees relying on the OSC for help. S.508 would avoid any future problems of this kind by prohibiting the OSC from responding to any inquiry or providing information concerning any person seeking corrective action from the OSC, except in accordance with the Privacy Act or as required by other federal law. S.508 would specifically prohibit OSC from responding to personnel inquiries such as OPM background checks on employees who have sought the OSC's help.

B. LEGAL ISSUES

Whistleblower reprisal cases are among the most complex of those considered by the Board and the courts. If a whistleblower has had a personnel action taken against him/her, it can be very difficult to discern whether the action was taken because of legitimate management reasons or prohibited retaliatory reasons.

1. PRIMA FACIE CASE

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a. Protected disclosures.

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Despite the clear language of the statute, the interpretation of what is a "protected disclosure" has varied among the OSC, the MSPB and the courts. The GAO's 1985 report reviewed a sample of 76 cases where reprisal for whistleblowing had been alleged and which the OSC had closed. Among the reasons for closing cases were those where the OSC determined that the complainant's disclosure was not protected. GAO stated: "If an employee voices internal criticism of agency practices or individual misconduct, without a revelation to responsible agency officials or to an independent entity such as the inspector general, the Congress, or the media, OSC often questions whether there was protected whistleblowing notwithstanding the circumstances that internal dissidence can expose an employee to reprisal as well as outside disclosure."
In Fiorello v. Department of Justice (795 F.2d 1544, 1550 Fed. Cir. 1986) an employee's disclosures were not considered protected because the employee's "primary motivation" was not for the public good, but rather for the personal motives of the employee. The court reached this conclusion despite the lack of any indication in CSRA that an employee's motives are supposed to be considered in determining whether a disclosure is protected.
The Committee intends that disclosures be encouraged. The OSC, the Board and the courts should not erect barriers to disclosures which will limit the necessary flow of information from employees who have knowledge of government wrongdoing. For example, it is inappropriate for disclosures to be protected only if they are made for certain purposes or to certain employees or only if the employee is the first to raise the issue. S.508 emphasizes this point by changing the phrase "a disclosure" to "any disclosure" in the statutory definition. This is simply to stress that any disclosure is protected (if it meets the reasonable belief test and is not required to be kept confidential.)

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b. Nexus between a protected disclosure and a personnel action.

Proving a causal connection between protected conduct and an agency's personnel action is difficult because direct evidence of retaliation is rare; supervisors do not usually write down or tell other employees of their intent to take prohibited reprisal against an employee. Thus, one of the hardest hurdles a whistleblower or the OSC must overcome in making a prima facie case of reprisal is to show the requisite nexus between the whistleblowing and the personnel action. GAO noted in its 1985 report that two-thirds of the cases closed by the OSC were closed in anticipation that the agency could argue persuasively that there was no causal connection between the complaint's whistleblowing and a personnel action.
It appears, under a recent court decision, that for an employee to prove a "nexus", the employee must show that the motive for the agency's action was "predominantly retaliation" (Warren v. Dept. of Army, 804 F.2d 654 (Fed.Cir. 1986)). Earlier cases had required the employee to prove that retaliation was a "significant" factor in the agency's actions (e.g. Frazier), S.508 would establish in law as a reasonable standard for proving the nexus by requiring proof only that retaliation was "a factor" in a personnel action, rather than a "significant" or a "predominant" factor. An employee would have [p. 14] to prove this by a "preponderance of the evidence" which is the same standard as under current law.
In addition, under S.508, one of the ways an employee or the Special Counsel would be able to establish nexus would be by showing that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a factor in the personnel action. The Board already has the authority to consider the taking of a personnel action within a relatively short time after a disclosure is made as an indication of reprisal. The Committee intends for the Board to use this reasonable time standard liberally because most reprisal cases are built on such circumstantial, rather than direct, evidence.
For example, the Committee believes that an action taken within the same performance evaluation period would normally be considered within a "reasonable time." In some cases, even a longer period of time may be considered reasonable. For example, there may be cases where a disclosure is of such significance, or an employee is subject to such disparate treatment, that a longer period of time may be appropriate. The Committee has decided not to state a specific time, nor is this provision intended to give the Board authority to define a specific time period for all cases, because such decisions should be made on a case by case basis.
This provision in S.508 described above only describes one of the ways in which nexus may be shown. The Committee does not intend for this to be the exclusive way a nexus may be shown. For example, in appropriate cases, demonstrating constructive knowledge, rather than actual knowledge, on the part of the agency official may be adequate for showing a nexus.

Id. at pp. 17-18:

The OSC appears to now be placing more emphasis on corrective actions, with the result that OSC now seeks action in about 5% of whistleblower cases. While this five-fold increase in activity is welcome, it still leaves many employees frustrated with the lack of OSC action and the absence in many cases of other possible relief.
S.508 would remove the monopoly the OSC has over many cases involving employees alleging reprisal for whistleblowing. The bill would provide that whistleblowers who are presently confined to using the OSC can individually petition the MSPB if the OSC terminates its investigation of the employee's case or if the OSC fails to commit to pursuing the case within 90 days of receiving the complaint.
Whistleblowers filing with the Board through this individual right of action may also request the Board for a stay of the pending personnel action. It is expected the Board will be fairly liberal in granting these stays, since they would be only temporary and would not significantly affect the agency's functioning.
If the 90 days has been exhausted and a whistleblower chooses to pursue his/her case before the Board, the OSC may continue its investigation of the employees' case only with the employee's consent. The OSC, however, is not bound to continue investigating a case that a whistleblower decides to pursue on his/her own.
GAO's 1985 report noted that "the fact that some personnel actions, including transfer, reassignment, and a change in duties without a reduction in grade, can be reviewed by the MSPB only if brought by the Special Counsel, is a particular source of frustration" for many employees. The Committee believes this individual right of action is important to assure whistleblowers, at the very least, of having an opportunity to argue their case in a hearing-with or without the OCS's involvement. At the same time, it is hoped that the OSC will demonstrate an increased commitment to whistleblowers so that few employees will feel it necessary to pursue their cases independently.
The Committee expects the Board to apply the same procedures for whistleblowers appealing to the Board through this individual right of action as are currently applied to other employees appealing directly to the Board in "adverse action" cases under 5 U.S.C. 7701, i.e., whistleblowers appealing through the individual right of action have the right to be represented by an attorney or other representative and to a transcribed hearing record. The Board, as in other employee appeals, may hear a whistleblower's appeal or it may refer the case to an administrative law judge or other employee designated by the Board to hear such cases.
The Board currently requires that employees subject to personnel actions that are appealable to the Board must file an appeal within 20 days after the effective date of the personnel action. The Board may apply the same 20-day limit to complainants rejected by the OSC who receive an OSC letter terminating its investigation of the complainant's case. However, the Committee does not intend that any time limit be applied to appeals by whistleblowers whose cases have not been formally closed by the OSC, regardless of whether the OSC has committed to pursuing the case within 90 days of the whistleblower's filing with the OSC.
It is important that whistleblowers who seek the OSC's help not be penalized by any OSC decision not to pursue their cases. Toward this end, S.508 would prohibit a decision by the OSC to terminate its investigation of an employee's case from being considered in any other legal or administrative proceeding.

Id. at p. 33:

Subsection (f) requires that a decision by the Special Counsel to terminate an investigation of an individual's complaint shall not be considered in any case brought by the individual under this section. This subsection is intended to ensure that a complainant's [sic] case before the Board or in court is not prejudiced by any OSC decision to decline a case.