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Thursday, October 20, 2011

S. 743, Whistleblower Protection Enhancement Act of 2011Passed Out of Committee

Dear MISC Members, the Senate Homeland Security and Governmental Affairs Committee passed S. 743, the Whistleblower Protection Enhancement Act of 2011, by a unanimous voice vote at this morning’s markup. An archived video can be viewed here, beginning at minute 43, http://1.usa.gov/nu6i5R.

Before the full senate vote, we will work to address recent developments, specifically attempts to gag national security whistleblowers through a new pseudo-secrecy category known as Controlled Unclassified Information.

The emerging legislative consensus includes the following reforms so far: 
  • Closes judicially-created loopholes in the law’s protection, while tightening language to preclude circumvention of the congressional free speech mandate.
  • Provides those covered by the WPA with access to jury trials in federal district court to challenge major disciplinary actions.
  • Restores normal appeals court access for whistleblowers who lose at the Merit Systems Protection Board, freeing them from the Federal Circuit Court of Appeals (The court has a 3-216 track record against whistleblowers since Congress last reaffirmed the law in 1994).
  • Extends WPA rights to some 40,000 airport baggage screeners.
  • Provides whistleblower rights to those who refuse to violate the law.
  • Creates specific protection in the law for scientific freedom, making it an abuse of authority to censor, obstruct dissemination, or misrepresent the results of federal research.
  • Restores the unqualified, original “reasonable belief” standard established in the 1978 Civil Service Reform Act for whistleblowers to qualify for protection.
  • Codifies and gives a remedy for the anti-gag statute, which bars agency rules or after-the-fact classification of information from overriding whistleblower rights.
  • Outlaws security clearance harassment as a WPA violation, establishes minimum due process standards for agency clearance actions, and breaks out of the grievance model through appellate review of clearance actions by an inter-agency intelligence community board required to have both merit system and national security expertise.
  • Explicitly states that FBI employees retain their exclusive remedy for prohibited personnel practices and are not placed into the new section on prohibited personnel practices for the intelligence community.
  • Extends rights analogous to the WPA for disclosures within the chain of command to employees of intelligence community agencies (i.e., CIA, NSA), and requires the Administration to issue corresponding enforcement regulations customized for the IC context but equivalent to the WPA.
  • Bars the President from exercising discretionary power to impose national security exemptions that deprive employees of Title 5 WPEA rights after the employee files a reprisal complaint.
  • Provides specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or to their staff.
  • Provides compensatory damages up to $300,000, and reimbursement for expert witness fees to prevailing whistleblowers, establishing consistency with other remedial employment laws.
  • Modifies the burdens of proof to make it more realistic for the Office of Special Counsel to seek disciplinary accountability against those who retaliate.
  • Provides the Special Counsel with authority to file friend-of-the-court briefs in support of whistleblower rights cases appealed from the administrative level.
  • Creates a whistleblower ombudsman as a five-year experiment to advise employees of their rights in Offices of Inspectors General (OIG) for title 5 employees.
From Government Accountability Project (GAP) (www.whistleblower.org), Washington, DC

Posted by Angels Press (www.AngelsPress.com) and Cathy Harris (www.CathyHarrisSpeaks.com).

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