Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

We have received confirmation from two sources that a Senator has placed an anonymous hold on S. 372, the Senate's flawed version of the Whistleblower Protection Enhancement Act (WPEA). This hold effectively kills the bill as the Senate adjourned tonight until the next Senate is seated. Earlier this evening, the House passed a modified version of S. 372. The House's modification was to remove the provisions for employees of intelligence agencies.

Hopefully, there will be unity for strong whistleblower reforms that the entire whistleblower rights community can support in next Congress. It won't be easy after the recent conflict, but unity is required for true reform.

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Captain Dan Hanley (center in photo) is the host of the Whistleblowing Airline Employees Blog Talk Radio Program and a leader of the Whistleblowing Airline Employees Association. He is a former United Airlines pilot, and succeeded in getting the Securities and Exchange Commission to investigate improprieties in United's bankruptcy. When the Senate passed its flawed version of the Whistleblower Protection Enhancement Act (WPEA), S. 372, and the National Whistleblowers Center called on the House to fix the flaws, Capt. Hanley initially signed onto a letter urging NWC to support House passage of S. 372, as is. Now he has retracted his support of that letter. Here is what he says today through Facebook:

My overriding concern is the continued corruption that lies within the DOJ and all intelligence services, which will be exacerbated with passage of the bill in its present form. It is for these reasons that, although some improvements were achieved in specific areas, the overall bill is sorely lacking in areas of import to me and our association.

S. 372 would coral the whistleblower complaints of federal employees in the intelligence agencies to a panel run by the heads of those agencies. Capt. Hanley now rejects the idea that we can advance our cause with legislation that is "sorely lacking in the areas of import to me and our association."

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When the Iraq was was about to begin, Bunny Greenhouse alone challenged the legality of awarding no-bid, no-compete, cost plus contract to Haliburton. The Army swiftly retaliated and she lost her career and position as the Army Corps of Engineers top procurement executive. Today Bunny spoke out against S.732, the Senate's version of a Whistleblower Enhancement Act, asking the House to ensure that the "poisons pills packed into S.732" be removed instead of passing the bill in its current state. Bunny would be one of the first beneficiaries if a whistleblower enhancement bill were passed because she can still bring that claim. But Bunny realizes that "the Senate's version of this bill treats whistleblowers as second-class citizens, rolls back some existing protections and leaves national security whistleblowers out in the cold." Congress needs to deliver a meaningful whistleblower bill Bunny Greenhouse and all of the nation's federal workforce deserve - one that doesn't treat whistlebowers as second-class citizens or that rolls-back existing protections.

You can join Bunny Greenhouse in taking action to urge the House of Representatives to correct the flaws in S. 372.

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My client, Dr. David L. Lewis, is issuing an open letter today urging the House of Representatives to correct the "the grievous and manifold shortcomings in S. 372 before voting on it." He also urges his fellow citizens to join him in taking action to share his concerns with their representatives.

Dr. Lewis was a top microbiologist at the U.S. Environmental Protection Agency (EPA). He raised the standards for dental hygiene worldwide when he showed how previous practices were inadequate to protect dental patients from the transmission of HIV.  He showed how EPA's rules for land application of sewage sludge did not have the scientific support needed to protect us from airborne diseases. That is when "industry representatives and EPA managers went ballistic." His retaliation case is still pending.

He is today concerned that:

• S. 372 ― for the first time ever ― would deny protection to federal employees if a judge finds that violations of law exposed by whistleblowers were “minor,” “inadvertent,” or committed when the violator was engaged in a “conscientious carrying out of official duties.” Every federal manager faced with a whistleblower retaliation claim will be hiding under this gaping loophole.
• S. 372 would deny protection for whistleblowers who challenge an act of discretionary authority, or any retaliation against other whistleblowers. These exclusions would render whistleblowers even more powerless to prevent waste, fraud, abuse and violations of law within the federal government.
• S. 372 would allow judges on the Merit System Protection Board (MSPB) to dismiss whistleblower cases without any hearing. Due to all of the loopholes already at the disposal of employers who retaliate, federal employees prevail in less than 2% of the cases that proceed to a hearing. The current system needs to provide more fairness to whistleblowers ─ not to make it even more burdensome to prevail.

He urges everyone to Take Action by contacting their representatives. The full text of his letter follows in the continuation of this entry.

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Julia Davis is an award winning screenwriter and published photographer. She is Vice President of Fleur De Lis Film Studios, and the LA Homeland Security Examiner for Examiner.com. In her column today, she decries the flaws in S. 372, the Senate's version of the Whistleblower Protection Enhancement Act (WPEA).  She objects to its creation of a summary judgment procedure at the Merit System Protection Board (MSPB). "Unless the bill is amended, Administrative Judges with the MSPB will now be able to dismiss whistleblower claims without a hearing, based solely on affidavits filed by the agencies." She notes that whistleblowers will have to survive this expensive process to benefit from the right to request a jury trial in district court. With MSPB's track record of ruling for employees 1.7% of the time, S. 372 offers little hope for whistleblowers. Davis says:

The same MSPB judges who rule overwhelmingly in favor of the agencies will be empowered to be the gatekeeper for federal court. Much as an elusive oasis in the desert, the illusion of access to federal court is just that – an illusion.

Davis also faults S. 372 for failing to provide substantive reform of the MSPB and the Office of Special Counsel.  Her production company has released a letter to Congressional leaders urging correction of S. 372. She invites readers to take action to correct S. 372's flaws.

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Yesterday, the National Whistleblower Center (NWC) received a letter from whistleblowers concerning our position on the Senate version of the Whistleblower Protection Enhancement Act (S. 372).  Please take the time two read the two response letters.  The first letter is from Dr. Frederic Whitehurst and Jane Turner, two FBI whistleblowers and members of the NWC's Board of Directors.  The second letter is from NWC Executive Director Stephen M. Kohn. 

NWC RESPONSE TO LETTER FROM WHISTLEBLOWERS (PDF Version)

Dear Whistleblowers:

Thank you for your letter received on December 13, 2010 concerning S. 372 and the position of the National Whistleblower Center. Given the importance of obtaining proper protection for federal employees, I understand and respect the concerns you have raised. I also welcome the opportunity to state our position on these issues. 

The actual differences of opinion on S. 372 developed in the summer of 2009. At that time the NWC was part of the "Steering Committee" of the Make it Safe Coalition (MISC). We were fully engaged in a series of face-to-face meetings at the Old Executive Office Building with representatives from the White House. In response to a survey circulated by the NWC during the 2008 presidential election, a number of candidates (including then candidate Barack Obama, Hilary Clinton, Ron Paul, among others) had pledged to support H.R. 985. This bill had passed the House of Representatives with a strong bi-partisan majority, was fully supported by the whistleblower community and contained true due process rights for all federal employees.

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Yesterday, the National Whistleblower Center (NWC) received a letter from whistleblowers concerning our position on the Senate version of the Whistleblower Protection Enhancement Act (S. 372).  Please take the time to read the two response letters.  The first letter is from Dr. Frederic Whitehurst and Jane Turner, two FBI whistleblowers and members of the NWC's Board of Directors.  The second letter is from NWC Executive Director Stephen M. Kohn.

Letter from NWC Board Members Dr. Frederic Whitehurst and Ms. Jane Turner

Dear Whistleblower Community:

The National Whistleblowers Center (NWC) has received your letter.  As both members of the NWC Board of Directors and federal employee whistleblowers, we would like to respond to your concerns.

We have the highest respect for the attorneys that donate their time and services to the NWC.  Together they have over 90 years of experience representing whistleblowers across the country.  Their knowledge and expertise were instrumental in helping us win our cases, despite all odds, under the current laws.  We would not have survived without them.

The attorneys at the NWC carefully evaluated the Senate version of the Whistleblower Protection Enhancement Act (S. 372) before issuing its statements.  The National Whistleblowers Center stands by its position and believes that it is in the best interest of all whistleblowers.

We encourage everyone to read the NWC's most recent letter to the House and Senate sponsors of the whistleblower bill and the statement "S. 372: A Bad Deal for Whistleblowers" that was issued by the NWC, the Federal Ethics Center and the National Security Whistleblower Coalition. These statements are based on the NWC attorneys’ expert opinion on how the law will impact actual whistleblower cases after the victory celebrations over the law are long passed.  We ask that you carefully review the actual Senate bill and draw your own opinion.  The NWC supports the right of everyone to speak freely about whistleblower protection. However, we urge people to refrain from personal attacks that only distract from the issues at hand.

Respectfully,

Dr. Fredric Whitehurst
Director, Forensic Justice Project
National Whistleblowers Center
FBI whistleblower (Former FBI Supervisory Special Agent)

Jane Turner
Director, FBI Oversight Program
National Whistleblowers Center
FBI whistleblower (25 year veteran)

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Today, the National Whistleblowers Center released a letter sent to the House and Senate sponsors of the Whistleblower Protection Enhancement Act, calling for the elimination of a poison pill inserted into the Senate version of the bill (S. 372). S. 372 cleared the Senate on Friday by unanimous consent and could be voted on by the House this week.

The NWC is urging citizens to TAKE ACTION and demand that the House fix the problems in S. 372 before they pass it.

"Although we have other concerns with S. 372, the Congressional reversal of the Drake decision will constitute a tragic setback for taxpayers.  It will have significant adverse consequences on the ability of employees to report violations of law and political corruption.   We understand that those in high-ranking political offices are reluctant to support whistleblowers, but stripping employees of their current right to blow the whistle on any violation of law is simply intolerable."

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On December 10, 2010, the Senate passed the Whistleblower Protection Enhancement Act (S. 372) by unanimous consent. After a careful review of S. 372, the National Whistleblowers Center, the Federal Ethics Center, and the National Security Whistleblowers Coalition strongly recommend that the bill not be approved in its current form.  We urge the House of Representatives to fix the bill and send it back to the Senate for final approval.  Here is why the bill must be fixed:

1. New Summary Dismissal Authority.  The bill gives the Merit Systems Protection Board (MSPB) sweeping new powers to dismiss whistleblower claims without a hearing.  The MSPB Administrative Judges will now be able to dismiss WPA claims without a hearing, based solely on affidavits filed by executive agencies.  If whistleblowers did not conduct extensive and expensive pre-trial depositions, they will be unable to rebut these affidavits, and their cases will be dismissed.  Even if the whistleblower is able to afford the significant additional fees and costs caused by the new summary dismissal proceedings, based on the track record of the AJs, the vast majority of cases will be summarily dismissed based on agency affidavits.  The opportunity to create a record at a hearing, or use the pre-hearing process as an opportunity to reach a settlement, will be lost.  This is a significant rollback of current rights that will make it more costly and more difficult for whistleblowers to prevail in any actions, despite any of the other reforms contained in the legislation.

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After a careful review of S. 372, the National Whistleblowers Center, the Federal Ethics Center, and the National Security Whistleblowers Coalition strongly recommend that the bill not be approved in its current form.  We urge the House of Representatives to fix the bill and send it back to the Senate for final approval.  Here is why the bill must be fixed:

1. New Summary Dismissal Authority.  The bill gives the Merit Systems Protection Board (MSPB) sweeping new powers to dismiss whistleblower claims without a hearing.  The MSPB Administrative Judges will now be able to dismiss WPA claims without a hearing, based solely on affidavits filed by executive agencies.  If whistleblowers did not conduct extensive and expensive pre-trial depositions, they will be unable to rebut these affidavits, and their cases will be dismissed.  Even if the whistleblower is able to afford the significant additional fees and costs caused by the new summary dismissal proceedings, based on the track record of the AJs, the vast majority of cases will be summarily dismissed based on agency affidavits.  The opportunity to create a record at a hearing, or use the pre-hearing process as an opportunity to reach a settlement, will be lost.  This is a significant rollback of current rights that will make it more costly and more difficult for whistleblowers to prevail in any actions, despite any of the other reforms contained in the legislation.

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Yesterday the U.S. Senate passed the FDA Food Safety Modernization Act (FSMA), S. 510. It passed with strong bipartisan support.  The final vote was 73 to 25. My friend Jason Zuckerman has written a detailed analysis of FSMA's new whistleblower protection. Those who need the details about the scope and legal requirements for FSMA whistleblower claims should read Jason's analysis.

The FSMA follows in a series of whistleblower protections created when Congress confronts a serious problem. Six federal environmental laws created whistleblower protections with the rise of the environmental movement. Other laws followed to protect truck drivers, nuclear power workers, airline pilots, corporate accountants, pipeline workers, and those who raise concerns about the safety of consumer products. Thus, we have a "patchwork" of protections as each new law covers another slice of America's workers. The advantage of patchwork legislation is that whistleblowers benefit from each wave of public concern over some danger. If the danger actually kills people, that is all the more motive for legislators to show that they are doing something significant. Notice, though, that while tainted food kills about 5,000 Americans a year, so do workplace safety and health dangers. Yet the Senate has taken no action to modernize Section 11(c) of the Occupational Safety and Health Act (OSH Act).  Medications may kill as many as 100,000 Americans every year (here's another cite), yet the Senate has not extended whistleblower coverage to workers who raise concerns about violations of the FDA's pharmaceutical regulations. The Chamber of Commerce and Big Pharma remain too formidable for legislators to challenge with the prospect of meaningful whistleblower protection. This is the disadvantage of patchwork legislation. Perhaps someday legislators will join together in agreement that all whistleblowers, in both the public and private sectors, should have gold-standard whistleblower protections whenever they raise any concerns about illegality, fraud, or dangers to the public safety.

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