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Federal Diary

Congress Could Increase Protections for Whistle-Blowers

By Stephen Barr
Thursday, September 30, 2004; Page B02

For the first time in a decade, Congress appears ready to strengthen protections for federal employees who risk their jobs when they blow the whistle on criminal activities, gross mismanagement and dangers to public health and safety.

The House Government Reform Committee approved, on a voice vote yesterday, a bill sponsored by Rep. Todd R. Platts (R-Pa.) that would clarify congressional intent in cases where agencies take reprisals against whistle-blowers. A Senate version, sponsored by Sens. Daniel K. Akaka (D-Hawaii), Susan Collins (R-Maine), Charles E. Grassley (R-Iowa) and others, has been approved by the Governmental Affairs Committee.

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Congress tightened whistle-blower protections in 1994, but Platts and Akaka said that effort has been overtaken by loopholes and exceptions created by the Court of Appeals for the Federal Circuit, which has monopoly jurisdiction over whistle-blower appeals.

"Unfortunately, we are once again largely back to where we started. Since the 1994 amendments, 75 whistle-blower cases have come before the federal circuit court. However, only one whistle-blower has prevailed," Platts said yesterday.

The court, for example, has decided that whistle-blower protections do not apply if the federal employee brings an allegation of wrongdoing to the attention of a co-worker, or discloses information in the course of ordinary job duties, or raises issues already disclosed by someone else.

In addition, the court has ruled that federal employees must come up with "irrefragable proof" in order to show the government has engaged in waste, fraud or abuse.

"This is an unheard-of legal standard, defined in the dictionary as 'impossible to refute.' In other words, the agency pretty much has to admit to waste, fraud and abuse," Platts said.

Platts's bill would replace the "irrefragable" standard with one that required "substantial evidence" in cases where whistle-blowers must rebut the presumption that the government was acting in accordance with law.

In introducing his bill yesterday, Platts described it as a compromise, but one that represented "a solid step in the right direction."

The Senate bill would provide more expansive protections to whistle-blowers.

For instance, it would allow federal employees to have their cases heard by courts other than the federal circuit, would clarify that federal employees can bring classified information to Congress, and would make it more difficult for agencies to get rid of whistle-blowers by yanking their security clearances.

Akaka would allow the Merit Systems Protection Board, which handles federal employee complaints about disciplinary actions, to review cases in which whistle-blowers lost their clearance because of retaliation. If the government acted improperly, the MSPB could call for a remedy, such as awarding back pay, legal fees or other relief to the employee who suffered reprisal.

Rep. Thomas M. Davis III (R-Va.), chairman of the House committee, noted yesterday that revocations of security clearances "can be fatal to an employee's career."

The House bill, however, would only authorize a study of allegations that the government improperly revokes clearances as a way to punish whistle-blowers.

Platts told Davis that he wanted to include a provision that would have extended review of whistle-blower cases to all federal circuits but did not because it might have detoured the bill into another committee, slowing final House action.

Davis said he would return to the issue of court jurisdiction if the bill's provisions "prove to be insufficient to constrain the deliberations of the federal circuit." The court, Davis said, "needs to take note of Congress's intentions in this area and follow the law."

Proponents of whistle-blower protections welcomed the House bill, but only as a step toward House and Senate negotiations to craft stronger legislation.

"The Senate committee approved a cure, and the House committee approved a Band-Aid," said Tom Devine, legal director at the Government Accountability Project. "Thank goodness for Band-Aids -- they keep the carpet from getting all bloody -- but they don't get you well."

Akaka introduced his bill in July, saying that the record of the federal circuit "sends the wrong message. How can we expect civil servants to protect and defend the United States when we permit agencies to retaliate against them for doing their job?"

E-mail: barrs@washpost.com


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