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Project on Government Oversight
 

 

 

 

Whistleblower Protection Act Petition

July 1, 2002 

 

WHEREAS: The undersigned organizations believe that freedom of speech is the foundation of democracy, and agree with Congress' repeated judgment that it is sound public policy to prohibit reprisals against whistleblowers who challenge Executive branch misconduct through disclosures of illegality, mismanagement, abuse of authority, gross waste and substantial and specific danger to public health or safety; and

WHEREAS: The Whistleblower Protection Act (WPA) is the nation's premier good government statute to protect federal workers who risk retaliation by disclosing betrayals of the public trust; and

WHEREAS: There is an overwhelming legislative mandate for this law, which Congress passed unanimously in 1989 and unanimously strengthened in 1994; and

WHEREAS: The law needs to be further strengthened, rather than weakened. Government surveys have confirmed that some half million employees annually witness serious government misconduct but choose to do nothing; and

WHEREAS: The Federal Circuit Court of Appeals, which has a monopoly of judicial review for the Act, has functionally overturned the law since congressional approval of 1994 amendments strengthening it; and

WHEREAS: The Court has created a series of loopholes in the WPA removing the Act's coverage in the most common scenarios where it is needed:

  • when employees blow the whistle to co-workers, supervisors or others in the chain of command, or to suspected wrongdoers;
  • when employees' disclosures challenge policies that are illegal or otherwise improper, or
  • when employees make disclosures in the course of doing their jobs.

These loopholes flatly contradict explicit 1989 statutory language, which protects disclosures in "any" context, and 1994 legislative history warning the Federal Circuit that "any" means "any," without restrictions and defining it to ban exceptions for "time, place, motive or context;" and

WHEREAS: In 1999 the Court made it practically impossible for anyone to qualify as a whistleblower. Under the Act passed by Congress, whistleblowers qualify for protection if they make disclosures that they "reasonably believe evidences" wrongdoing. However, without an explanation for overturning some twenty years of precedent, the Court ruled that an employee does not qualify for protection without "irrefragable proof" of the alleged wrongdoing. Webster's Dictionary defines "irrefragable" as "incontrovertible, undeniable, incapable of being overthrown;" and

WHEREAS: The practical impact of said 1999 decision is that it is not possible for a federal employee to be protected as a whistleblower if there are two sides to a story about alleged misconduct.
In light of this decision, no organization can responsibly advise whistleblowers that they have a realistic chance of defending themselves; and

WHEREAS: In the same 1999 decision, the Court ordered that every employee who seeks legal recourse under the Whistleblower Protection Act, rights must be investigated to determine whether the employee had a conflict of interest in exercising his or her rights. As a result, the Act actually subjects whistleblowers to intimidation and harassment rather than protecting them from it. This violates Congress' 1994 ban on retaliatory investigations for engaging in protected activity such as exercising appeal rights; and

WHEREAS: There has never been any expression of legislative support either for the loopholes created by the Court or its requirement that whistleblowers prove their charges "irrefragably." The court' extremist activism overturned the repeatedly stated unanimous Congressional intent. Restoring the congressional mandate does not require opening any new debates on previously resolved issues; and

WHEREAS: A cornerstone of any free speech law is prohibiting prior restraint, threats and pre-emptive strikes that silence employees through mandatory nondisclosure agreements and gag orders. For over 12 years Congress has passed an annual spending ban on enforcing such gag orders. The time has come to eliminate the uncertainty of annual renewal for this free speech cornerstone.

THEREFORE: We, the undersigned organizations, petition Congress to restore the Whistleblower Protection Act to its 1994 boundaries, prevent recurrence of judicial activism that neutralizes the value of this good government law and permanently pass the prohibition on gag orders. This can occur by codifying current appropriations language and prior WPA legislative history to cancel judicial decisions that unraveled the law, and by restoring all-circuits judicial review in any U.S. Circuit Court of Appeals -- the normal course under the Administrative Procedures Act and the structure approved by Congress when the Civil Service reform Act of 1978 was passed.

 

Organizations and individuals signing the Whistleblower Protection Act.

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Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that champions good government reforms. POGO's investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.

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