| p. 2 | pp. 6-7 | pp. 7-8 | pp. 10-11 | p. 12 |
Id. at p. 2, reprinted in 1994 USCCAN at p. 3550:
The Whistleblower Protection Act was passed in 1989, in large part because the Office of Special Counsel was perceived as being ineffectual. At that time, OSC had not brought a single corrective action case since 1979 to the Merit Systems Protection Board on behalf of a whistleblower. A former Special Counsel had been quoted in the press advising whistleblowers "Don't put your head up, because it will get blown off." Whistleblowers told the Governmental Affairs Committee that they thought of the OSC as an adversary, rather than an ally, and urged the Committee to abolish the office altogether.
The Committee chose to strengthen the office instead, giving it another chance to act aggressively on behalf of whistleblowers. The Whistleblower Protection Act gave the OSC a new charter: "to protect employees, especially whistleblowers, from prohibited personnel practices" and to "act in the interest of employees" who seek its assistance. Congress believes that OSC should not act contrary to those employees' interests. The Whistleblower Protection Act offered whistleblowers substantial new job protections that were not previously available:
First, the act established a simpler and fairer standard for whistleblowers in proving retaliation by their agencies.
Second, it gave whistleblowers the right, for the first time, to appeal their own cases to the Merit Systems Protection Board.
Third, the Act enhanced the independence of the Office of Special Counsel and required OSC to work in the interest of whistleblowers.
Finally, the Act gave whistleblowers increased procedural protections and important guarantees of confidentiality.
Id. at pp. 6-7, reprinted at 1994 USCCAN at p. 3555:
Subsection (c) establishes a timetable for OSC to make [a] determination whether there are reasonable grounds to believe that a prohibited personnel practice has occurred. Such a determination, like termination letters issued under Section 1214(a)(2), would not be admissible in individual right of action cases before the MSPB or other judicial or administrative proceedings without the consent of the individual concerned.
Id. at pp. 7-8 , reprinted at 1994 USCCAN at 3555-6 (footnotes omitted):
Section 4(a) conforms the discovery standard in whistleblower cases to the standard in the Federal Rules of Civil Procedure. This ensures that admissible evidence is reasonably available to whistleblowers who pursue individual right of action cases.
Section 4(b) addresses the evidence an individual may use to prove that a disclosure was a contributing factor in the personnel action taken against him/her. This provision reverses the holding of Clark v. Department of Army, decided July 1, 1993, by the U.S. Court of Appeals for the Federal Circuit.
Prior to the Clark case, the Merit Systems Protection Board interpreted Section 1221(e)(1) to incorporate a knowledge/timing test that allowed a petitioner to prove that whistleblowing was a contributing factor by showing that "the official taking the action had actual or constructive knowledge of the disclosure and acted within such a period of time that a reasonable person could conclude that the disclosure was a factor in the personnel action." This test was taken from the Senate Report on the Whistleblower Protection Act, which expressly stated Congress' intent to incorporate such a standard.
In Clark, the Federal Circuit held that the Whistleblower Protection Act did not incorporate a per se knowledge/timing test. The court reasoned that the Senate report cited by the MSPB in creating the test referred to S.508, the Whistleblower Protection Act of 1987, which was pocket vetoed by President Reagan and was never enacted. The court noted that S.20, the bill which was ultimately enacted by the Congress in 1989, "lacks the language of S.508 which provided for the knowledge/timing test."
In fact, however, the joint explanatory statement that accompanied both S.508 and S.20 expressly stated that the managers intended the per se test to apply to that bill. The joint statement states:
One of many possible ways to show that the whistleblowing was a factor in the personnel action is to show that the official taking the action knew (or had constructive knowledge) of the disclosure and acted within such a period of time that a reasonable person could conclude that the disclosure was a factor in the personnel action.
The Federal Circuit rejected the applicability of this statement, concluding that it must have been intended to apply to S.508, but not to S.20, because the relevant bill language was changed prior to the enactment of S.20.
The Federal Circuit was incorrect in its construction of the legislative history. In fact, the language change cited by the court took place prior to the passage of the final version of S.508 by the Senate and the House, and was considered by Congress at the time the Joint Explanatory Statement was first written. As the Joint Explanatory Statement makes clear, the per se rule was placed in report language at that time not because Congress did not have a per se rule to apply, but because Congress wanted to make it clear that proof of knowledge and timing was only "one of many possible ways" that a whistleblower could use to establish a prima facies [sic] case.
Accordingly, the amendment in Section 4(b) would restore the balance intended in the Whistleblower Protection Act, by permitting a whistleblower to prove his/her prima facie case by showing that the "official taking that action had actual or constructive knowledge of the disclosure and acted within such a period of time that a reasonable person could conclude that the disclosure was a factor in the personnel action." As stated in the Joint Explanatory Statement, this would be only one of many possible ways that a whistleblower could use to establish a prima facie case.
The Committee also notes that the Whistleblower Protection Act creates a clear division between a whistleblower's prima facie case, which must be proven by a preponderance of the evidence, and an agency's affirmative defense, which must be proven by clear and convincing evidence. The Committee amendment reaffirms that Congress intends for a[n] agency's evidence of reasons why it may have acted (other than retaliation) to be presented as part of the affirmative defense and subject to the higher burden of proof.
Id. at p. 9, reprinted at 1994 USCCAN at 3557:
Section 5(b) limits the exclusion of confidential, policy making positions from coverage under the Whistleblower Protection Act to those employees that are not designated prior to the personnel action taken against the individual. This section addresses the situation faced by a Justice Department employee who was designated as a confidential policy-making, policy-advocating, or policy-determining employee over a year after the employee was terminated, a month after the employee filed a Whistleblower Protection Act Individual Right of Action, and less than three weeks before the administrative judge ruled on the employee's case. Section 5(b) will ensure that employee receive [s] the protection of the Whistleblower Protection Act unless they were designated as policy-making employees before making the otherwise protected disclosure.
....
Section 5(d) address[es] the narrow construction of the Whistleblower Protection Act with regard to the types of retaliatory action for which remedies are available. Under Section 2302(b)(8), retaliation against a whistleblower constitutes a prohibited personnel (p.3558) practice only if it takes the form of a "personnel action." Unfortunately, there are many retaliatory actions that do not fall into the definition of personnel actions.
In one case reviewed by the Committee, for example, a whistleblower who testified before Congress about management problems in the U.S. Customs Service alleged that his superiors retaliated against him by, among other actions, relieving him of his high-profile assignments. Despite the allegations of direct retaliation of whistleblowing, the Office of Special Counsel closed out this case without investigation ...
Id. at pp. 10-11, reprinted at 1994 USCCAN at 3558-9:
The intent of the Whistleblower Protection Act was to create a clear remedy for all cases of retaliation or discrimination against whistleblowers. The Committee believes that such retaliation must be prohibited regardless [of] what form it may take. For this reason, Section 5(d) would amend the Act to cover any action taken to discriminate or retaliate against a whistleblower because of his/her protected conduct, regardless of the form that discrimination or retaliation may take.
The Committee has heard allegations that OSC has taken the position that statements criticizing agency practices through normal agency channels or within the chain of command are not "protected disclosures" under the Whistleblower Protection Act. The Office of Special Counsel expressly denied these allegations in response to pre-hearing questions from Senator Levin, stating:
The OSC does not take the position that an otherwise protected disclosure of information loses that protection because the disclosure was made through normal agency channels or within the chain of command.
The Committee applauds this statement and reaffirms the plain language of the Whistleblower Protection Act, which covers, by its terms, "any disclosure", of violations of law, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. The Committee stands by that language, as explained in its 1988 report on the Whistleblower Protection Act. That report states:
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 emphasized 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 requisite reasonable belief test and is not required to be kept confidential).
In response to a post-hearing question from Senator Pryor, OSC indicated that some administrative judges of the Merit Systems Protection Board may still not understand the law on this point. The OSC letter states:
I assume that this question is concerned with whether or not an employee can be considered a whistleblower when the employee, in the course of doing his job, passes along certain information to his regular supervisors; for example, a government auditor whose report shows a waste of funds turns in his report to his supervisor, who accepts it for routine processing. In this example, the law is unclear whether the employee has made a protected disclosure. At least two administrative judges of the Merit Systems Protection Board (MSPB) have ruled that such activity is not protected whistleblowing. Nonetheless, the MSPB to the best of our knowledge has not yet issued a final decision on this issue.
As indicated above, the plain language of the Whistleblower Protection Act extends to retaliation for "any disclosure", regardless of the setting of the disclosure, the form of the disclosure, or the person to whom the disclosure is made.
Section 5(e) requires agency heads throughout the Federal government to take steps, in consultation with the OSC, to inform federal employees of the rights and remedies available to them under the Whistleblower Protection Act.
Id. at p. 12, reprinted at 1994 USCCAN at 3560-61:
Subsection 9(b) also requires OSC to respond to reasonable questions from whistleblowers whose cases have been terminated by the Special Counsel. The statute currently requires OSC to provide a "close-out" letter to whistleblowers whose cases are terminated. Each such letter is statutorily required to include a summary of the relevant facts ascertained by the Special Counsel, including the facts that support, and the facts that do not support, the whistleblower's allegations.
However, many whistleblowers complain that OSC's close-out letters are perfunctory and give little information about OSC's investigation or the facts of the case. Some have sought to remedy this problem by gaining access to the OSC's investigative files.
Giving whistleblowers a right of access to OSC investigative files may not be appropriate, because such files might contain confidential information about persons other than the whistleblower. Also, witnesses might be less candid with OSC investigators if they knew that OSC files would be open to the whistleblower. On the other hand, OSC is statutorily required to assist whistleblowers, and [13] should not treat them the same way as a federal agency would treat any routine FOIA request.
S. 622 would address this problem by requiring OSC to provide, in each close-out letter terminating an investigation of a prohibited personnel practice, the name and telephone number of an OSC employee who will be available to answer reasonable questions from the person who initiated the investigation regarding OSC's investigation, the relevant facts ascertained, and the law applicable to the person's allegations. This approach should provide whistleblowers with information necessary for them to make informed decisions about how to proceed with their cases.