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On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009.  Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.  

This post is the eighth in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.

VIII: WHAT HAPPENS TO NATIONAL SECURITY WHISTLEBLOWERS?

National security whistleblowers are the biggest losers in S. 372.

The Senate Homeland Security approved a bill that, if enacted, would seriously undercut national security whistleblower rights and set terrible precedent.  It would in practice constitute an anti-whistleblower law.  It would do permanent harm to "the public's right to know," and ensure that national security whistleblowers did not "blow the whistle."   This is not an exaggeration!

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The NWC's series "What's Wrong With The Senate Whistleblower Bill" examining specific weaknesses in the Senate Bill will continue on Monday.

If you would like more information on the Senate Bill please read NWC General Counsel David K. Colapinto's legal analysis or visit the NWC's Federal Employee Whistleblower Protection page.

You can also read the recent press on the Senate Bill:

"Senate whistleblower bill doesn't go far enough, critics say" OhMyGov!, 8-24-09

"FBI whistleblower shields likely to stay" Washington Times, 8-20-09

"Obama-back bill worries FBI whistleblowers" Washington Times, 8-18-09

"WH sought to weaken law on whistleblowing" Washington Times, 8-7-09

"Secrets and the C.I.A." Letter to the Editor, New York Times, 8-7-09

 
We urge every whistleblower support to Take Action by sending a letter to your members of Congress. 

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Yesterday, the California State Senate passed SB 219, a bill to extend state whistleblower protections to employees of the University of California (UC).  The bill became necessary after the California Supreme Court decided last year that UC employees were not covered by the state's whistleblower protection law as long as the UC administration conducted their own investigation in a timely manner. That case was Miklosy v. Regents of University of California, S139133, 44 Cal. 4th 876; 188 P.3d 629; 80 Cal. Rptr. 3d 690 (July 31, 2008). State Senator Leland Yee sponsored SB 219.  He told the California Chronicle that "This is the classic case of the fox guarding the hen house, and yet another example of UC administrators opposing a commonsense reform. UC executives should not be judge and jury on whether or not they are liable for monetary claims. This was not the intent of California´s whistleblower law." Yee is now urging California's Governor to sign the bill, notwithstanding opposition from the UC administration. The California Chronicle reports that Leo Miklosy and Luciana Messina were scientists at UC´s Lawrence Livermore National Laboratory. They told their supervisors about equipment problems and poorly trained operators of a project to determine the safety and reliability of the nation´s nuclear weapons stockpile. UC fired Miklosy in February 2003. Messina resigned after overhearing a supervisor say she would also be fired.

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On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009.  Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.  

This post is the seventh in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.

VII: CAPS ON DAMAGES AND OTHER LITTLE GEMS

In addition to the problems already addressed in earlier postings, there are some smaller, yet still very important, problems that need to be addressed before the Senate votes on the final version of S. 372.

Caps:  For the first time a Congressional Committee has recommended that caps be placed on the amount of compensatory damages in a law designed to protect federal employee whistleblowers. See Section117 (a)(5)(C)(ii)(I) (Page 33).

These caps set a very bad precedent for whistleblower laws.  No current federal whistleblower law has a cap on compensatory damages.

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On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009.  Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.  

This post is the sixth in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.

VI: WILL ANY FEDERAL EMPLOYEES EVER HAVE THEIR CASE HEARD IN FEDERAL COURT?

The short answer to this question is virtually, none.

When read together, the numerous “poison pill” provisions inserted into S. 372 all but guarantee that very few, if any, federal employee cases will ever be removed to district court for a real trial.
 

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On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009.  Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.  

This post is the fifth in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.

V: THE NEW SUMMARY JUDGEMENT RULE:  GOLIATH FINALLY WINS!

S. 372 contains a new provision that permits the Merit Systems Protection Board to dismiss whistleblower claims under a procedural rule known as “summary judgment.”  See Section 118.  This new rule permits the MSPB “judges” to summarily dismiss a whistleblower claim without ever conducting a hearing.

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On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009.  Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.  

This post is the fourth in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.

IV: BACKSTABBING FBI WHISTLEBLOWERS: WILL THIS PROBLEM REALLY GET FIXED?

Putting it bluntly: S. 372 repeals all existing whistleblower rights for FBI employees.

From the start of the negotiation process with the White House, the NWC identified this roll back of FBI whistleblower rights.  In meetings with the White House staff the NWC urged that these provisions be changed.  Unfortunately, they were incorporated into the Senate markup.  Upon reviewing the Senate markup language, the NWC notified the Senate Judiciary Committee of this problem on August 5th and asked that they ensure that it be corrected.  Since then, the public interest community has insisted that the current FBI whistleblower rights must be restored.  As reported in the Washington Times, it appears that the White House is expressing a willingness to fix the problem.  However, the White House has not committed to the promise in writing and no alternative language has been proposed.  The devil will be in the details. 

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On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009.  Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.  

This post is the third in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.

III. HOW THE NEW “270 DAY RULE” BLOCKS COURT ACCESS FOR FEDERAL EMPLOYEES

S. 372 has been promoted as creating a virtual revolution in federal employee whistleblower rights.  Supporters specifically point to the provisions that permit employees to bring a case in federal court before a jury.  

But are these claims justified?  

In the first post we pointed out that an insidious change in the definition of protected activity would result in numerous cases being dismissed.  In the second post we pointed out that most employee whistleblowers could never bring a case in federal court because the types of retaliation they suffered (including poor job assignments, hostile work environments, retaliatory performance reviews) do not qualify for removal to federal court.

In addition, hundreds of thousands of other federal employees are barred from filing in federal court.  Specifically, employees in various law enforcement and intelligence agencies are barred from filing in federal court, even if their cases have no relationship to any actual national security issue.

Who’s left?  Even if you happen to be one of the “lucky ones” whose case is eligible for a jury trial, will you ever actually have your case heard in front of a jury of your peers?  

The answer is no.

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On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009.  Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.  

This blog post is the second in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.

II. ADVERSE ACTIONS REVISTED

The Senate Bill goes out of its way to reverse gains whistleblowers have won in the U.S. Supreme Court.  It returns whistleblowers to the days when an employee had to demonstrate a certain level of harm or damages to obtain whistleblower protection.

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On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009.  Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.  

Over the next two weeks I will present the NWC analysis of the Senate Bill. Hopefully, this will explain why the Senate needs to adopt important provisions included in the House legislation.

This is the first in a series of twelve posts examining specific weaknesses in the Senate Bill. Each installment will examine a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.

I. THE DEFINITION OF PROTECTED ACTIVITY: SMALL LOOPHOLE OR LARGE NOOSE?

The Senate Bill added a dangerous clause within the definition of “protected disclosure.” Under this new definition, federal employees who disclose any violation of law are protected, unless their disclosure was  “a minor, inadvertent violation that occurs during the conscientious carrying out of the violator’s assigned duties.”  See Section 101.

This new exception to protected activity is devastating to the law. 

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Attorney Dan Hurson used to work for the Securities and Exchange Commission (SEC). This week he cheered for the whistleblower provision in President Obama's proposal to overhaul our regulations of financial markets.  "This may be the beginning of the golden age of whistleblowing," he writes. "The potential for such a statute, covering all of the growing jurisdiction of the SEC, is vast."

"Of course, the SEC will have to listen to its whistleblowers, not just offer to pay them," he adds. Currently, the SEC can reward whistleblowers for providing information about insider trading. The new proposal would allow rewards for whistleblowers on any matter enforced by the SEC.  Hurson hopes that the SEC will use the new authority to establish a whistleblower office to coordinate intake and encourage whistleblowing.

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