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

Here is a summary of where the Senate bill stands from our perspective at National Whistleblowers Center.

Sen. Joe Lieberman (I-CT) and Sen. Susan Collins (R-ME) are in charge of the committee reporting out the bill and are most responsible for letting the poison pills contaminate S. 372. Sen. Daniel Akaka (D-HI) is in charge of the bill as subcommittee chair. The buck has to stop with those in charge. Sen. Kit Bond (R-MO) has put a hold on the bill because he reportedly has his own concerns about the national security/intel provisions, but the nature and extent of those concerns are not really known. The most problematic provisions of the bill that the committee chairs and sponsors (i.e. Lieberman, Collins, and Akaka) have allowed to be inserted into the bill at mark up need to be resolved and corrected.

Before the Senate bill was even marked up at the end of July 2009 the bill's sponsors said that before the bill passes the Senate they would fix provisions that weaken existing FBI protections. They continued to promise that over the summer. As confirmed by the article published yesterday in Politico, the promised fixes on the FBI portion of the bill have not materialized.

To make matters worse, Sen. Akaka and other sponsors agreed to some changes which they insist fix the FBI protections, but everyone knows these don't fix the problem and they are merely cosmetic. This compounds the problem because the bill's sponsors are now dug in fighting for a bill that will weaken existing FBI whistleblower rights (which are very weak to begin with). To weaken them more is intolerable. Several FBI employees (like Bassem Youssef and Jane Turner) have pending cases under the current law. Several FBI employees (including Youssef) have won at the investigative stage of the process with favorable reports from either DOJ IG or DOJ OPR. This bill would change the landscape overnight and the FBI would be in charge of investigating and adjudicating whistleblower complaints by its own employees (including those who have initially prevailed) if the Senate bill becomes law.

Additionally, the sponsors of the Senate bill are fighting to preserve other nasty national security provisions in S. 372 affecting employees at all the intel agencies. While they initially claimed these provisions were inserted into the bill at the 11th hour as a placeholder and were admittedly not complete and were open to changing them, these, too, have not been substantially modified. These intel provisions, like the FBI provisions, will enable the intel agencies to control the investigations and adjudications of all whistleblower complaints filed by employees of their respective agencies. As a result, nothing more than a glorified internal agency grievance procedure is being proposed in this Senate bill for intel and FBI employees. All of the appeals beyond that to a new Board and to appeals court are smoke and mirrors because all of the initial fact finding and adjudication will take place by the intel agencies and FBI that initially fired or disciplined the whistleblower. On review by the Board or court of appeals, the FBI and intel agency findings of fact will be given substantial deference as a matter of law, and it will be virtually impossible to reverse those decisions. It will also expedite the removal or discipline of any whistleblower that utilizes this process.

At the time of the Senate markup on S. 372, I wrote a summary and analysis of some of the key provisions of the revised Senate bill.  Most of the problems with the markup version of the bill noted on July 29, 2009 still exist.

Aside from the FBI and national security provisions, there are several troubling problems with the Senate's provisions to protect Title 5 federal employees. The Senate bill creates the most convoluted and weak jury trial provision ever proposed under law, it requires the whistleblower to seek approval by the MSPB to go to federal court and get a jury, and the whistleblower must survive summary judgment before the MSPB at the outset of a case (before any discovery takes place) in order to get a request for a jury trial approved by the MSPB. Also, the Senate has introduced summary judgment procedures for the first time in MSPB cases (and only for whistleblower cases). If this becomes the law, the jury trial right proposed by the Senate will be an illusory right. There will be so many roadblocks that this bill will not effectively change the existing process for most employees.

Unfortunately, most of the bad provisions contained in the Senate bill have the tacit or express approval of the Obama administration, which throughout this process has deferred to the views of the federal agency managers and heads of the intel agencies. As a result, the Senate incorporated many of the agencies' wish lists how to deal with whistleblower complaints into the Senate bill. While President Obama campaigned on the right of all whistleblowers to get full court access and he supported HR 985/HR 1507 as the model for reform, his administration has not weighed in on the side of the House bill thus far, despite President Obama's campaign promises. Consequently, once this bill passes the Senate it could be very difficult to remove all of the poison pills given the positions taken by the Obama administration during the drafting of the Senate bill.

As currently drafted, the Senate bill protects federal EMPLOYERS more than enhancing employee whistleblower rights. It is by far much more deferential to the EMPLOYER than any comparable whistleblower law affecting private industry, particularly in the areas that count the most.

We are not asking for perfection. Rather, we are asking these politicians to live up to their commitments to enact real whistleblower reform and not provide us with more watered down and paper rights that won't protect anyone except those federal managers and agencies that break the law or commit fraud, waste and abuse.

We continue to urge everyone to contact their Senators and President Obama and tell them to fix the poison pills in the bill before Senate passage of S. 372.

If you have any questions about S. 372 and the much stronger House version (H.R. 1507), please don't hesitate to contact me, Steve Kohn or Lindsey Williams at NWC, (202) 342-1902.

Babbitt agreed that the FAA mishandled Adams' case, and said that the FAA would establish a new office where agency employees could raise concerns without fear of being fired. "When someone raises a question and they have to ‘blow a whistle’ to get the information to us, we’ve already had a breakdown, we’ve already had a slip in the system," Babbitt said.

While Babbitt's recognition of the agency's misstep is a welcome development, Babbitt's statement does not yet reflect a fully reformed safety-conscious commitment. Offices already exist where federal employees can raise safety concerns with legal protection against retaliation.  These include the Department of Transportation's Inspector General, the Office of Special Counsel, and every member of Congress. Indeed, every office of the FAA, and of every other government safety agency, should be such an office.  The problem is not the lack of a whistleblower office, but rather lack of leadership to use existing offices to put safety first.  Any act of retaliation against a whistleblower is a betrayal of the FAA's basic mission to put safety first.

"I was really waiting for him to take it one step further and say, ‘We will hold the managers accountable,’ but it was still excellent to hear the administrator," Adams told NJ.com. Adams had worked for the FAA for 19 years, and at Newark Airport for eight years. He got it right when he sees management recognize a problem, but balk at the idea of disciplining abusive managers. If managers were as afraid of discipline for their abuse of power over their subordinates as they are of discipline for failing to meet objectives for the volume of traffic, then all employees would see that management really wants them to put safety first.

Sen. Lautenberg could help the air traffic controllers in his home state by calling on his fellow senators to dump the Senate's hurdle-filled version of the Whistleblower Protection Enhancement Act (WPEA), S. 372, and approve the House's version, HR 1507.  The House version would guarantee that all federal employees could get jury trials when management retaliates against them for whistleblowing. Maybe then it won't take two years for the FAA to implement a Converging Runway Display Aid to address the issue Adams raised.

MacLean has waited over three years for this hearing. In June the MSPB issued a terrible ruling in MacLean v. Department of Homeland Security, and stripped him of his whistleblower protections. The decision shows the importance of getting Congress to pass the Whistleblower Protection Enhancement Act fast so our national heroes will have access to the most time-tested crucible of justice -- the jury trial. Still, the MSPB must decide if MacLean's professional and First Amendment activities caused his dismissal. MSPB can also consider if his punishment was too harsh.  Below is a background memo prepared by Shanna Devine, Legislative Campaign Coordinator of the Government Accountability Project:

MacLean v. Department of Homeland Security Background

MacLean was a 10-year federal law enforcement officer, and U.S. Department of Homeland Security (DHS) Federal Air Marshal (FAM) with an unblemished record. In July 2003, he successfully blew the whistle on agency plans to secretly offset budget shortfalls by eliminating air marshals from long distance flights in the midst of a terrorism alert over suicide terrorist hijackings. After public congressional pressure, DHS’s plans were canceled. On April 11, 2006, the agency fired MacLean for using previously-undesignated Sensitive Security Information (SSI) in the 2003 disclosure. SSI is a blanket category for anything “detrimental to the security of aviation” – and can be applied to virtually anything. MacLean’s alleged misconduct was entirely “ex post facto”: the agency had not yet issued regulations prohibiting release of SSI when he made the disclosure. The facts of the case illustrate the stakes for the public if whistleblowers are silenced.

* In late July 2003, MacLean received a DHS intelligence warning of an imminent terrorist suicide hijacking threat. It was so severe that FAMs were mandated to attend unprecedented, one-on-one threat briefings in their field office regardless of their duty status. No successful attacks were carried out, but a subsequent DHS report confirmed the plans.

* In late July 2003, MacLean also learned that due to a budget shortfall (caused by suspect contract spending), 60 days of FAM coverage would be canceled from August 2 until the fiscal year ended on September 30, 2003 for the highest risk, long distance flights, because they required overnight accommodations. (His concerns later were confirmed by a March 31, 2004 GAO report.) He protested to a supervisor, and to three DHS Office of Inspector General field offices, all of whom declined to act and said he should drop the issue.

* MacLean then disclosed to a media representative the TSA text message canceling coverage. Other media quickly picked up the story, which spread and sparked outraged bipartisan congressional protests. Less than a day after the initial news story, the TSA canceled the plans to eliminate coverage, publicly explaining that its orders to FAMs had been “a mistake.”

* Almost three years later, in April 2006, the TSA fired MacLean, specifically because his disclosure was SSI. The TSA justified its position through an ad hoc order issued on August 31, 2006 (three years after his disclosure – four months after his termination), that the text message was SSI. When he disclosed the message, there had been no markings indicating that the information was classified, SSI, or in any way restricted. It was not sent by secure means.

The MSPB Decision

For over three years MacLean has fought for a hearing. In June, the MSPB ruled he can have one, but without any help from the Whistleblower Protection Act. The ruling redefines WPA language giving employees public free speech rights to disclose information unless it is “specifically prohibited by law.” Since 1978, that has meant disclosures barred by legislative statute, because when it wrote the law Congress shrank initial restrictions from disclosures barred by “law, rule or regulation” to merely those specifically banned by “law.” Its legislative history also defined “law” to mean statute. In 30 years, the issue had appeared in one 1993 decision when the MSPB flatly rejected the authority of agency regulations to override Congress.

Merit Systems Protection Board Chairman Neil McPhie, a Bush holdover (soon to be replaced once Obama nominations are confirmed), rewrote the law, and in doing so granted agencies a blank check to cancel the WPA. In order to reach that result, the Board:

* Ignored the word “specifically” in “specifically prohibited by law,” passively killing a cornerstone of the statute and paving the way for blanket gag orders, such as SSI in this case.

* Based its entire argument on a Supreme Court definition of “law” from an entirely different context, applying the same definition for permitting government exercise of authority as for restraining citizen exercise of right. Other than the word “law,” there is no public policy common ground.

* Explained away inconsistent adjacent WPA language in which Congress separately shielded disclosures of “law, rule and regulation” as merely “redundant,” and should be extended to free speech restrictions in the same sentence limited to “law” without any mention of rules or regulations.

* Rejected uncontested legislative history language that defined “law” to mean “statutory law and court interpretation of those statutes [, and] … not … to agency rules and regulations.” The Board’s reasoning was that Congress only said it once.

The MacLean decision breaks new ground in MSPB hostility toward whistleblowers but it is not an aberration. Since 1978, in cases involving national policy significance, no whistleblower ever has prevailed against retaliation involving government misconduct or cover-ups. Since 1978, no employee has won a decision on the merits in the nation’s Washington DC region, where the most significant abuses of power occur. Indeed, the Whistleblower Protection Act of 1989 was passed because the MSPB only had ruled for whistleblowers four times during the 1980s. Since 2000, the corresponding record of employee victories is three. Chairman McPhie has ruled against whistleblowers in 44 out of 45 decisions on the merits since his 2003 arrival.

“There no longer is any credible debate that the MSPB is unfit as the sole opportunity for whistleblowers day in court,” stated Devine, who added, “Government managers oppose House-passed legislation that permits jury trials to enforce whistleblower rights.”

Devine added, “This outrageous decision should be a wake-up call for the Obama administration to appoint a new MSPB chair and Special Counsel to protect whistleblowers. It appears Chairman McPhie is seeking a legacy of killing the good government law he has already crippled. The President’s promise of transparency will be a magnet for cynicism until he appoints merit system leaders who believe in his policies.”

Adding absurdity to this specious decision, the MSPB initially tried but failed to keep its decision killing the anti-secrecy law a secret. It initially marked the whole ruling “Sensitive Security Information.” By mistake, however, the Board posted its ruling on the MSPB Web site anyway – the same SSI breach for which it approved MacLean’s termination when he blew the whistle on cancellation of Air Marshal coverage during a terrorist alert. Over the course of 48 hours, the document was moved to a password protected site, and then reappeared with the SSI markings removed. There has been no word of upcoming Board resignations or accountability actions over the “security” breach.