ACLU Letter to the House of Representatives Urging Swift Passage of H.R. 1317, Federal Employee Protection of Disclosures Act

Re: H.R. 1317, Federal Employee Protection of Disclosures Act

Dear Representative:

On behalf of the American Civil Liberties Union and its nearly 500,000 members, we urge swift action to pass H.R. 1317, which corrects critical shortcomings in whistleblower protections for federal employees. We urge you to contact House leaders to ask for a vote on H.R. 1317 at the earliest opportunity, and to permit amendments to H.R. 1317 that will strengthen it further by expanding it to cover national security whistleblowers and government contractors.

Whistleblowers provide an essential function in correcting government misconduct, including violations of civil liberties. In addition, whistleblowers have been critical in calling attention to security failures, putting pressure on government to address real security deficiencies rather than advocating limits to fundamental freedoms.

Whistleblowers often suffer retaliation at the hands of agencies who find their disclosures embarrassing, which is why Congress passed the Whistleblower Protection Acts of 1989 and 1994. Unfortunately, the main appeals court with jurisdiction over whistleblower cases, has severely weakened the law in a series of decisions that misread the law in a way that is actively hostile to congressional intent to protect whistleblowers.

H.R. 1317 would clarify congressional intent to provide:

• A normal standard of proof. Whistleblowers could overcome the presumption that government acts lawfully with “”substantial evidence”” and would no longer have to meet an “”irrefragable”” (which means “”impossible to refute””) proof standard imposed by the Federal Circuit.[1]
• No penalty for talking to the boss or fellow employees. H.R. 1317 makes clear that disclosures of wrongdoing are covered regardless of whether those disclosures were made to a supervisor or colleague.[2]
• No “”Christopher Columbus”” rule. H.R. 1317 repeals the nonsensical judge-made rule that a whistleblower must be the “”Christopher Columbus of the scandal,”” making clear protection applies regardless of whether the whistleblower was the first person to disclose the wrongdoing[3]

H.R. 1317 would also enact reforms that are essential to making whistleblower rights truly effective. H.R. 1317 provides:

• Protection against retaliatory investigations. While employees who suffer illegal discrimination enjoy protection against retaliatory investigations, whistleblowers do not have such protection. The bill would forbid any investigations that are launched “”because of”” the employee’s whistleblowing.
• Jury trial where government watchdog does not act. The bill provides that employees may pursue a jury trial on their complaints if the Office of Special Counsel, charged with enforcing the law, does not take corrective action with 180 days.

Unfortunately, H.R. 1317 does not protect all whistleblowers, leaving out government contractors, who are increasingly taking on central roles in the war in Iraq and providing relief for victims of Hurricanes Katrina and Rita. The bill fails to cure a gap in the Whistleblower Protection Act for intelligence community employees that regulatory protections have been insufficient to fill. In addition, the bill does not prohibit the career-ending revocation of a security clearance in retaliation for covered disclosures.

Unless corrected on the floor, these shortcomings will limit the bill’s effectiveness for those charged with keeping America safe and free. Whistleblowers like former FBI agent Coleen Rowley, who disclosed pre-9/11 intelligence failures, or Sibel Edmonds, terminated from her job as a translator for the FBI after calling attention to mistranslations, should not, without any legal protection, have to choose between keeping America safe or pleasing their superiors.

We urge you to ask for a prompt floor vote on H.R. 1317, and to support amendments that will strengthen the bill further. We thank you for your consideration of our views.

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Timothy H. Edgar
National Security Policy Counsel

Endnotes

[1] See Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)
[2] See Horton v. Department of the Navy, 66 F.3d 279 (Fed.Cir. 1995) (disclosures to wrongdoer or co-workers not protected); Willis v. Department of Agriculture, 141 F.3d 1139 (Fed. Cir. 1998) (disclosures in normal course of job duties not protected).
[3]See Meuwissen v. Department of Interior, 234 F.3d 9 (Fed. Cir. 2000) (disclosure of information already known not protected).