Dear MISC Members, the following legislative report is from the MISC steering committee
Members of our community have been working hard for the best outcome on Whistleblower Protection Enhancement Act issues. This progress report is so that all the other coalition groups, NGO’s and individuals working independently can make informed strategy choices, and so our work and others’ reinforces our mutual efforts most effectively. It also is to sound the alarm on a disastrous new Federal Circuit Court of Appeals decision that gives agencies a nearly blank check to cancel the civil service appeals system for hundreds of thousands of federal workers on the most contrived of national security grounds.
Let’s start with an update on the issues we’ve discussed frequently at coalition meetings and events over the past several months (in some cases, years!):
* Good news is that – 1) we’re making progress on our insistence for all circuits review, removing the Federal Circuit Monopoly, 2) there are ongoing negotiations between congressional offices on the burdens of proof that gives the government the upper hand in district court, and 3) clarification of an Executive Order that could have canceled WPA rights.
We don’t yet know where we are on the new rights for intelligence community workers, but the intelligence committees are engaged and *appear* to be working in good faith thus far. We should know more by late next week.
* Bad news is that – 1) jury trials are still off the table, 2) we haven’t restored normal burdens of proof for bench trials in district court; and 3) summary judgment again is a threat; and 4) an amendment to close the PHS/NOAA “uniformed employees” WPA loophole, despite impressive public support and the recent FDA surveillance scandal, appears to be off the table due to opposition by the association representing PHS officers.
As explanation, House Judiciary Committee Chair Lamar Smith (R-TX) has continued to be an opponent of jury trials and all circuits review. In addition, Senator Jeff Sessions’ (R-AL) office is demanding the burdens of proof handicap against whistleblowers if they go to court. All these offices have the authority to single-handedly stop the bill, either through their sequential referral authority (House Judiciary, already claimed), or their ability to impose a “hold.” (done in three other Congresses by Senator Sessions). We are urging Chairman Issa to work with Smith to ensure credible court access, and for them to ignore the threat of Senator Sessions and pass something we can all support. We hope that if the House does this, then we will have an opportunity to isolate Sessions and work to overcome his objections on the last remaining issue of burdens of proof. We need Senator Grassley to support this outcome.
* Unresolved issues include –1) National security issues – HPSCI has not reported back revealing what it will accept. 2) “MacLean fix” so agency secrecy regs can’t supersede public whistleblower rights. Some House offices are considering this amendment, but there is generally wariness about adding anything “new” that could draw a new Senate hold. But unless it occurs, nearly any agency would be able to circumvent the WPEA and publicly gag its employees through internal regulations. 2) Savings provision so that those who have not yet filed can benefit from the WPEA. It is the same as the MacLean fix; no real opposition and a few offices working on it, but general nervousness. 3) Contractor whistleblower rights experiment. This is in the House bill, but the Senate has never considered it within the context of the WPEA (though the Senate Homeland Security and Governmental Affairs Committee has passed the McCaskill bill to give rights to all employees of federal fund recipients, S. 241). We are being told that this will draw a hold from one or more Senators. * Conyers/Northover – This new Federal Circuit decision overturns a MSPB ruling and allows agencies to bypass the civil service appeals process when removing anyone with a job designated “sensitive” – which the court defined as any work that “implicates national security”; i.e., virtually any job. If it sticks, there will be no system of due process to apply and enforce any of our WPEA victories. We think it imperative that Congress act to restore the civil service system, or our victory will be irrelevant until that occurs. WPEA is one potential option, but including this could endanger the bill, and most likely doom it to uncertainty in the Lame Duck session after the elections. We are working closely with allies in Congress and the Administration to find the best vehicle. A GAP release and AP article are linked.
Through advocacy to all Hill offices and personal efforts with your own members, the MISC community at large can make a big difference, if not the difference, in our advocacy being heard, and by recruiting media calls to the politicians and shows/editorials, letters to the editor or op-eds; and generally convincing the politicians that they have to be on their best behavior with the WPEA, because too many voters know what it means. The whistleblower letter organized by Evy Brown has been a very helpful contribution to the advocacy, as has the organizational support letter. Your help with recruiting signatories for both is needed!
There is still a chance that a bill will be ready during the very narrow window for congressional work in September. There are only SEVEN legislative days before they leave and are off until after the elections. We are hoping they will avoid the all-bets-are-off lame duck scenario, but this is really out of our hands. Now is the time for all of us, in our own way, to make our move.
MISC Steering Committee
Investigator, Legislative Campaign Coord.
Government Accountability Project
1612 K St NW, Suite 1100
Washington, DC 20006
(202) 457-0034 ext. 132 (voice)
(202) 457-0059 (fax)