September 11, 2012
157 Diverse Groups Support Swift
Action to Restore Strong, Comprehensive Whistleblower Rights
An Open Letter to Members of Congress
The undersigned organizations and businesses write to urge completion of the landmark, decades-long legislative effort to restore credible whistleblower rights for federal employees.
We support legislation providing genuine protection for public employees who serve the American public by risking their careers to protect taxpayers. Whistleblower protection is a foundation for any change the public can trust, whether the issue relates to economic recovery, civil rights and civil liberties, prescription drug safety, environmental protection, infrastructure spending, national health insurance, or foreign policy.
In May 2012, the Senate unanimously passed the Whistleblower Protection Enhancement Act (WPEA) for the fourth time since 2006. It is well past time to finish the job.
Unfortunately, every month that passes means the public is deprived the benefit of disclosures from federal government whistleblowers about fraud, waste or abuses that could remain ongoing. On average, more than 15 whistleblowers a month lose initial decisions from administrative hearings at the Merit Systems Protection Board (MSPB), and less than one prevails.
The Whistleblower Protection Act was last restored in 1994, and has since fallen victim to judicial activism. The MSPB found that federal whistleblowers were nine times more likely to be fired in 2010 compared to 1992. This culture of vulnerability maximizes government secrecy, which in turn breeds corruption.
Under current law, federal employees are not eligible for whistleblower protections if they:
* are not the first person who discloses given misconduct
* make a disclosure to a co-worker;
* make a disclosure to a supervisor;
* disclose the consequences of a policy decision;
* blow the whistle while carrying out job duties.
The inadequate protections afforded by current law remains a would-be whistleblower's best reason to turn a blind eye to government waste, fraud, abuse, as well as threats to public health and safety.
We all want the same thing: that the Whistleblower Protection Enhancement Act become law this year. However, we urge you to send a final bill to the President's desk that includes the best of both H.R. 3289 and S. 743–not a watered-down version. In the interest of serving that purpose, we write to clarify the most essential elements to any legislation that we can credibly support. These elements, listed below, are crucial to ensure that federal whistleblowers who protect taxpayer dollars and the public's trust are given adequate access to court, and provide meaningful protections for employees with access to classified information and those working in the intelligence community. Those landmark reforms have been the subject of extremely thoughtful deliberation and consensus for many months.
Absent any one of the elements listed below, we feel that we will be left with a bill that fails to adequately advance whistleblower and taxpayer protections.
* Appellate review: The Federal Circuit cannot retain its monopoly on appellate review of the Whistleblower Protection Act. This court has a long history of frustrating the congressional mandate, evidenced by a consistent track record of ruling against whistleblowers for decisions on the merits. Since 1994, when Congress last reaffirmed and strengthened those rights, the court has rejected 226 claims and sustained only 3 (as of June 2012).
* Access to district court: Government whistleblowers deserve a right to a jury trial, similar to what Congress has already granted to private-sector whistleblowers ten times since 2002. Further, whistleblowers should have the same burdens of proof afforded by the Whistleblower Protection Act of 1989. Reducing agency employers' burden of proof would be unprecedented and would roll back a cornerstone of the Act that Congress has reaffirmed in every whistleblower law for corporate employees since 1989.
* Administrative due process: The summary judgment provision granting new powers for the MSPB to dismiss cases before a hearing is widely perceived as permission to deprive whistleblowers of the opportunity for any due process administrative day in court. At a minimum, summary judgment would force unemployed whistleblowers to spend thousands of dollars for depositions before they even know if a hearing will occur. That is too high a price for the legislation. This poison pill should be removed.
* Security clearance due process reform: Revocation of security clearance is the harassment of choice against national security whistleblowers who challenge security breakdowns, fraud, waste, or abuse. Since losing security clearance can frequently lead to permanent blacklisting, the denial of due process has much further consequences than simply depriving whistleblowers of fair play. As a consequence, national security whistleblowers are unlikely to come forward unless they are willing to end their careers. This has deprived our country of the most effective source of information about national security breakdowns, as well as evidence of waste, fraud and abuse.
We appreciate your bipartisan consensus support for significant reforms, including closure of judicially created loopholes; restoration of a functional, "reasonable belief" standard, codification of the anti-gag statute, extension of whistleblower rights to the intelligence community through administration regulations, establishment of due process standards to prevent retaliation through security clearances, and expansion of contractor whistleblower rights in HR 3289.
It is essential that the law clarify that the WPEA provisions add to, rather than substitute for, current rights. A strong federal whistleblower statute is needed to close existing loopholes, and provide comparable rights and remedies to the dozen gold standard whistleblower rights that Congress has passed for private sector employees since 2000.
We know you share our commitment to more transparency and accountability in government. Passing a strong, bipartisan whistleblower reform law would do much to restore the public's faith in Congress, ensure efficient and accountable government, and save taxpayer dollars.
Major studies confirm that whistleblowers have been and will continue to be our best defense against waste, fraud and abuse. Inexcusably, they have been waiting over 12 years for rights that give them a fair chance to defend themselves when they defend the public by exposing government misconduct. Enough is enough.
Robert A. Cole
Advocates for Basic Legal Equality, Inc.,
A New Way Forward
Alliance for Democracy
Alliance for Nuclear Accountability
Chief Executive Officer
American Association for Justice
Director of Government Relations
American Association of Law Libraries
American Association of Small Property Owners
American Association of University Professors
American Booksellers Foundation for Free Expression
Laura W. Murphy
Director, Washington Legislative Office
American Civil Liberties Union
American Federation of Government Employees
American Library Association
Stephen A. Sanders
Appalachian Citizens' Law Center, Inc.
Senior Legal Counsel
Article 19 – Defensing Freedom of Expression and Information
Associate Executive Director
Association of Research Libraries
Athens County Fracking Action Network
Atlantic States Legal Foundation, Inc.
Bill of Rights Defense Committee
Linda Langess, Ph.D.
Boundary County Concerned Citizens
California Communities Against Toxics
CATA – El Comite de Apoyo a los Trabajadores Agricolas/The Farmworkers Support Committee
Center for Biological Diversity
Center for Financial Privacy and Human Rights
Regulatory Policy Analyst
Center for Food Safety
Center for Media and Democracy
Center for Science in the Public Interest
Citizens Awareness Network (CAN)
Citizens Environmental Coalition
Chairman of the Board
Citizens for Health
Citizens for Responsibility and Ethics in Washington (CREW)
Citizens for Safe Water Around Badger (CSWAB)
Daniel E. Manville
Civil Rights Clinic – Michigan State University Law College
Chief Executive Officer
Community IT Innovators
Concerned Citizens for Nuclear Safety
Lokesh Vuyyuru, MD
Concerned Citizens of Petersburg/Concerned Citizens of America (CONCA)
Concerned Citizens of Wagon Mound & Mora County
Science and Conservation Director
Deputy Director, National Priorities
Director, The Food Policy Institute
Consumer Federation of America
Cook Inlet Keeper
Donald B. Clark
Cumberland Countians for Peace and Justice
DC Employment Justice Center
Defending Dissent Foundation
Department for Professional Employees, AFL-CIO
Disaster Accountability Project
Don't Waste Arizona
Drum Majors for Truth
Energy Justice Network
President of the Board
Environmental Defense Institute
FAA Whistleblowers Alliance
Farmworker Association of Florida
FEW Washington Representative
Federally Employed Women (FEW)
David B. Nolan
Federal Ethics Center
Government Secrecy Expert
Federation of American Scientists
Feminists for Free Expression
Joy Towles Ezell
Florida League of Conservation Voters
Florida League of Conservation Voters Education Fund
Patricia T. Birnie
GE Stockholders' Alliance
Chief Executive Director
Government Accountability Project
Green Party of Pennsylvania
Green Plate Catering
Gun Owners of America
Rodd M. Santomauro
HALT (Help Abolish Legal Tyranny)
Representative Gerry Pollet
Heart of America Northwest
J.H. Snider. Ph.D.
Executive Director/Board Chairman
Kentucky Resources Council, Inc
Joseph B. Uehlein
Board President, Founding President and Executive Director
Labor Network for Sustainability
Los Alamos Study Group
Los Jardines Institute (The Gardens Institute)
Market Air Quality Campaign
Dr. Janet Parker, DVM
Move to Amend of Buncombe County
Muslim Public Affairs Council
Nancy Hone, Director
Jan Greenfield, Webmaster
NAB (Neighbors Against the Burner) in Minnesota
National Accountant Whistleblower Coalition
National Air Disaster Alliance/Foundation
Joan E. Bertin, Esq.
National Coalition Against Censorship
National Coalition of Organized Women (NCOW)
National Committee for an Effective Congress
National Forum on Judicial Accountability
Kenneth F. Bunting
National Freedom of Information Coalition
Co-Founder/Executive Board Member
National Judicial Conduct and Disability Law Project, Inc.
National Organization for Women
Executive Vice President
National Taxpayers Union
National Treasury Employees Union
Stephen M. Kohn
National Whistleblowers Center
Program and Policy Director
National Women's Health Network
National Workrights Institute
James E. Warren
Donald B. Clark
Network for Environmental and Economic Responsibility – United Church of Christ
New Mexico Environmental Law Center
No Nukes Northwest
Nuclear Age Peace Foundation
David A. Kraft
Nuclear Energy Information Service (NEIS)
Nuclear Watch New Mexico
OAK (Organizations Associating for the Kind of Change America Really Needs)
Oregon Wildlife Federation
Yanna Lambrinidou, PhD
Parents for Nontoxic Alternatives
Organizing, Political and PAC Director
Peace Action and Peace Action Education Fund
Pennsylvania Alliance for Clean Water and Air
Pesticide Action Network North America
George Stokes, Jr.
National Program Chairman
POPULAR (Power Over Poverty Under Laws of America Restored)
Product Policy Institute
Progressive Democrats of America
Director of Public Policy
Project On Government Oversight
Worker Safety and Health Advocate
Public Employees for Environmental Responsibility (PEER)
Dr. Diana Post, Executive Director
Munro Meyersburg, Secretary
Rachel Carson Council, Inc.
San Luis Obispo County Grandmothers for Peace
National Campaign Director
Freedom of Information Committee Chair
Society of Professional Journalists
Edward T. Hart
Southeastern Chapter of the American Association of Law Libraries
Southwest Research and Information Center
Chief Executive Officer
STOP Foodborne Illness
Sustainable Energy and Economy Project
Taxpayers Protection Alliance
T.M. Guyer & Ayers & Friends
Teamsters for a Democratic Union
Texas Injured Workers
Evelynn Brown, J.D., LL.M
Chief Executive Officer
The Brown Center for Public Policy aka Whistlewatch.org
The E-Accountability Foundation
The Multiracial Activist
The Peace Farm
The Rutherford Institute
The Utility Reform Network
Susan Nevelow Mart
The William A. Wise Law Library – University of Colorado at Boulder
Tully Center for Free Speech – Syracuse University
Celia Viggo Wexler
Senior Washington Representative
Union of Concerned Scientists
Founder, Chair, President
U.S. Bill of Rights Foundation
Federal Program Director
U.S. Public Interest Research Group (U.S. PIRG)
Utah Foundation for Open Government
Valley Watch, Inc.
Western Lands Project
Donald Soeken, Ph.D.
Whistleblower Support Center and Archive