[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE ADMINISTRATION'S TREATMENT OF WHISTLEBLOWERS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON FEDERAL WORKFORCE,
US POSTAL SERVICE AND THE CENSUS
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 9, 2014
__________
Serial No. 113-139
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia
PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California
SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT,
TREY GOWDY, South Carolina Pennsylvania
BLAKE FARENTHOLD, Texas TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia TONY CARDENAS, California
THOMAS MASSIE, Kentucky STEVEN A. HORSFORD, Nevada
DOUG COLLINS, Georgia MICHELLE LUJAN GRISHAM, New Mexico
MARK MEADOWS, North Carolina Vacancy
KERRY L. BENTIVOLIO, Michigan
RON DeSANTIS, Florida
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Stephen Castor, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
Subcommittee on Federal Workforce, U.S. Postal Service and the Census
BLAKE FARENTHOLD, Texas, Chairman
TIM WALBERG, Michigan STEPHEN F. LYNCH, Massachusetts,
TREY GOWDY, South Carolina Ranking Minority Member
DOUG COLLINS, Georgia ELEANOR HOLMES NORTON, District of
RON DeSANTIS, Florida Columbia
WM. LACY CLAY, Missouri
C O N T E N T S
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Page
Hearing held on September 9, 2014................................ 1
WITNESSES
The Hon. Carolyn N. Lerner, Special Counsel, U.S. Office of
Special Counsel
Oral Statement............................................... 4
Written Statement............................................ 6
The Hon. Susan Tsui Grundmann, Chairman, U.S. Merit Systems
Protection Board
Oral Statement............................................... 14
Written Statement............................................ 16
Mr. Robert Maclean, Former Federal Air Marshal, Transportation
Security Administration, U.S. Department of Homeland Security
Oral Statement............................................... 0025
Written Statement............................................ 27
Robert Van Boven, M.D., D.D.S., Principal Investigator, The
Geneva Foundation, and Former Director, Brain Imaging and
Recovery laboratory, Central Texas Veterans Health Care System,
U.S. Department of Veterans Affairs
Oral Statement............................................... 31
Written Statement............................................ 34
Mr. Tom Devine, Legal Director, Governmental Accountability
Project
Oral Statement............................................... 42
Written Statement............................................ 45
APPENDIX
Statement from NTEU submitted by Rep. Farenthold................. 72
Statement from AFL-CIO submitted by Rep. Farenthold.............. 75
EXAMINING THE ADMINISTRATION'S TREATMENT OF WHISTLEBLOWERS
----------
Tuesday, September 9, 2014
House of Representatives,
Subcommittee on Federal Workforce, U.S. Postal
Service, and the Census,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittee met, pursuant to call, at 2:00 p.m., in
Room 2154, Rayburn House Office Building, Hon. Blake Farenthold
[chairman of the subcommittee] presiding.
Present: Representatives Farenthold, Issa, Walberg, Lynch,
Cummings, and Norton.
Staff Present: Melissa Beaumont, Assistant Clerk; Will L.
Boyington, Deputy Press Secretary; Molly Boyl, Deputy General
Counsel and Parliamentarian; Linda Good, Chief Clerk; James
Robertson, Senior Professional Staff Member; Jessica Seale,
Digital Director; Andrew Shult, Deputy Digital Director; Peter
Warren, Legislative Policy Director; Jaron Bourke, Minority
Administrative Director; Krista Boyd, Minority Deputy Director
of Legislation/Counsel; Lena Chang, Minority Counsel; Courtney
Cochran, Minority Press Secretary; Tim Lynch, Minority Counsel;
Mark Stephenson, Minority Director of Legislation; and Michael
Wilkins, Minority Staff Assistant.
Mr. Farenthold. Good afternoon. The Subcommittee on the
Federal Workforce, U.S. Postal Service and the Census will come
to order. I'd like to begin this hearing by stating the
Oversight Committee mission statement. We exist to secure two
fundamental principles. First, Americans have a right to know
the money Washington takes from them is well spent. And second,
Americans deserve an efficient, effective government that works
for them.
Our duty on the Oversight and Government Reform Committee
is to protect these rights. Our solemn responsibility is to
hold government accountable to taxpayers because taxpayers have
a right to know what they get from their government. We will
work tirelessly, in partnership with citizen watchdogs, to
deliver the facts to the American people and bring genuine
reform to the Federal bureaucracy. This is the mission of the
Oversight and Government Reform Committee.
I'll now start with my opening statement. One of the most
important functions of the Oversight Committee is to help
expose waste, fraud, and abuse within the Federal bureaucracy,
and to help reform broken institutions and policies that ensure
taxpayers that they have a government that works for them. As
members of this committee know, whistleblowers are an
invaluable asset in helping us achieve this important goal.
Unfortunately, those who expose waste, fraud, and abuse from
the inside sometimes only receive retaliation as their award.
Today's hearing will examine how whistleblower protection
laws are often ignored or manipulated. The result is that those
in a position to shine light on illegal behavior stay in the
shadows for fear of retribution.
This committee has a long history of working with
whistleblowers. They aid in our investigations, and we
appropriately have legislative jurisdiction over laws that
provide them protections.
In 2012, we updated the Whistleblower Protection Act to
expand existing disclosure protections and to create new
avenues for appellate review outside the Federal circuit, which
has historically not been friendly to whistleblowers. I want to
hear how the newest amendments to the law are working and
whether or not the executive branch is violating either the
letter or the spirit of the law.
I'm also pleased that two brave whistleblowers are with us
today so we can hear firsthand accounts of the good, the bad,
and ugly of doing the right thing and coming forward to report
misdeeds in their own agency. I want to thank you all for your
service, courage and willingness to speak today.
Congress must do everything in its power to help protect
well-intentioned individuals who help Congress and the public
know when improper behavior occurs within the Federal
bureaucracy. Again, I would like to thank all the witnesses for
participating today.
I now recognize the ranking member, the gentleman from
Massachusetts, Mr. Lynch, for his opening statement.
Mr. Lynch. Thank you, Mr. Chairman. I appreciate your
holding this hearing to examine the treatment of
whistleblowers.
I also thank our witnesses for being here today and helping
the committee with its work, and I look forward to your
testimony.
Federal whistleblowers serve a valuable role in identifying
waste, fraud, and abuse across the Federal Government. In many
cases, the diligent oversight efforts undertaken by these
government watchdogs shine a light on government abuse and, as
a result, we're better able to safeguard American lives and
mitigate the waste of American taxpayer resources.
It is these brave men and women who informed the American
people about the government's delay in delivering armored cars
to Iraq and Afghanistan, to reduce combat casualties from
improvised explosive devices. Federal whistleblowers have also
detailed the cancellation of U.S. Air marshals from flight
protection duties despite the existence of confirmed and
continued threats of potential terrorist hijackings. These
dedicated government employees also reported the diversion of
research funds that were set aside to treat veterans with
traumatic brain injuries.
For many of these whistleblowers, doing the right thing and
disclosing violations of law and fraud, waste, and abuse comes
at a high price. Many have been subjected to acts of
retaliation, including the elimination of their job duties,
reassignment to positions of no consequence, geographical
locations, such as the relocation of their desks to basements
or closets, misconduct investigations, suspensions, and
termination.
Mr. MacLean and Dr. Van Boven will testify how much their
lives and the lives of their families were disrupted as a
result of their retaliation that they faced. Unfortunately,
whistleblower retaliation has been a longstanding problem over
multiple administrations.
Much has been accomplished to enhance whistleblower
protections. Congress, with the support and commitment of
President Obama, passed the bipartisan Whistleblower Protection
Enhancement Act in 2012 after more than a decade of reform
efforts. This act strengthened protections for Federal
employees by closing judicially created loopholes and extended
new protections for government scientists and certain
Transportation Security Administration employees. The bill also
created a 2-year pilot.
That same year, the administration also extended
whistleblower protections to Intelligence Community employees
through a presidential directive. Congress then followed
through this year by codifying protections for national
security employees in the Intelligence Authorization Act.
Although Congress and the administration can provide
protections and avenues for redress, we cannot legislate
culture. That can only change by determined leadership,
constant attention from Congress, strong employee
representatives, and strong Federal employee unions and vocal
advocates.
Despite the progress we've made, our work is not yet
complete, and I look forward to hearing from our witnesses
about how much further we need to go.
Thank you, Mr. Chairman. I yield back the balance of my
time.
Mr. Farenthold. Thank you, Mr. Lynch.
Mr. Farenthold. Members will have 7 days to submit opening
statements for the record.
Mr. Farenthold. We will now recognize our panel. The
Honorable Carolyn Lerner is the head of the U.S. Office of
Special Counsel. The Honorable Susan Tsui Grundmann is the
Chairman of the U.S. Merit Systems Protection Board. Mr. Robert
MacLean is a former employee of the U.S. Transportation
Security Administration. Dr. Robert Van Boven is a former
employee at the U.S. Department of Veterans Affairs. And Mr.
Tom Devine is the legal director at the Government
Accountability Project.
Pursuant to committee rule, all witnesses will be sworn
before they testify. Would you please stand and raise your
right hand? Do you solemnly swear or affirm that the testimony
you are about to give will be the truth, the whole truth, and
nothing but the truth?
Let the record reflect that all witnesses answered in the
affirmative. You may be seated now.
We want to hear your opening testimony, but we also want to
have the opportunity to question you, so those of you who
submitted written testimony, we have your written testimony in
front of us and have hopefully read it. And so in order to
allow for discussion, we would appreciate your summarizing and
hitting the high points and limiting your remarks to as close
to 5 minutes as possible.
You'll see a countdown time in front of you. Much like the
traffic lights we're all familiar with, green means go, yellow
means speed up, and red means stop.
So we'll now start with Ms. Lerner. You're recognized for
about 5 minutes.
WITNESS STATEMENTS
STATEMENT OF CAROLYN N. LERNER
Ms. Lerner. Thank you, Chairman Farenthold, Ranking Member
Lynch, members of the committee. Thank you for inviting me to
testify today about the Office of Special Counsel and its
protection of Federal whistleblowers. In addition to protecting
whistleblowers, we provide a safe channel for employees to
disclose government wrongdoing. We enforce the Hatch Act, which
keeps partisan politics out of the Federal workforce, and we
protect returning servicemembers from unfair employment
practices. We do all of this with a staff of about 120 and one
of the smallest budgets of any law enforcement agency.
When I was appointed Special Counsel 3 years ago among my
top goals was increasing awareness about and confidence in the
agency. I believe we are succeeding on both fronts. This fiscal
year we expect to receive over 5,000 cases for the first time
in the agency's history, a 15 percent increase from last year
and double the number of cases from 10 years ago.
Clearly, Federal employees now know who we are and feel
confident coming to our agency, and we are getting great
results on their behalf. In the past 2 years we've obtained 333
favorable actions for employees, about a 400 percent increase
from 5 years ago, and we have done so while reducing the cost
to resolve each case by over 40 percent.
With that introduction, I will now briefly discuss how we
protect whistleblowers, the effect of the Whistleblower
Protection Enhancement Act on OSC, and our education and
outreach efforts.
When reviewing a whistleblower retaliation complaint, OSC's
Complaints Examining Unit performs an initial review to
determine if the complaint meets required elements. If it does,
the matter is referred for further investigation. After we
investigate, agencies often informally settle cases and take
corrective actions. If an agency does not, we may then file a
complaint with the MSPB, which can order the agency to do so.
Similarly, if an agency failed to take appropriate
disciplinary action, we can file a complaint with the Board.
OSC is able to protect complainants by seeking to delay or stay
proposed adverse personnel actions, either informally with the
agency or by filing a formal request with the MSPB. These stays
provide temporary relief while OSC investigates.
Another tool that we use to get corrective actions is
mediation. Very often, mediation resolves complaints to the
mutual satisfaction of both agencies and complainants without
the need for full investigation or litigation. For instance, in
2012, three employees of the Bureau of Alcohol, Tobacco and
Firearms who blew the whistle on Operation Fast and Furious
resolved their cases through OSC's mediation program.
The Whistleblower Protection Enhancement Act, which this
committee worked hard to enact, has also strengthened OSC's
ability to protect whistleblowers. The WPEA expanded OSC's
jurisdiction, allowing us to take complaints that we previously
would've had to dismiss due to narrow court interpretations of
whistleblower protections.
The WPEA also improved OSC's ability to pursue disciplinary
actions. For example, we recently filed complaints with the
MSPB seeking disciplinary action against three Customs and
Border Protection officials.
The WPEA also expanded OSC's authority to file amicus
curiae briefs in cases related to Federal whistleblower
retaliation. OSC has filed three amicus briefs in Federal
courts, including one just this past month, and we are
currently in discussions with the Department of Justice about
OSC filing an amicus brief in the U.S. Supreme Court later this
month in the MacLean v. Department of Homeland Security matter.
This would follow the amicus brief that we filed in Mr.
MacLean's case with the MSPB in August 2011.
These briefs are meant to help courts interpret the
contours of whistleblower laws. We are optimistic that over
time this will lead to a more pro-whistleblower body of juris
prudence.
Finally, I want to very briefly address our education and
outreach efforts and OSC's Certification Program. Government
functions best and can address problems most effectively when
employees can come forward without fear of retaliation.
Creating this environment requires education, educating
employees about their rights and managers about their
responsibilities.
Accordingly, we have recently expanded our outreach and
education efforts. In fiscal year 2014 we have conducted 90
training sessions throughout the Federal Government. This
compares with 33 sessions just 3 years ago. We are also seeing
an increase in the number of agencies seeking OSC's assistance
in training employees on whistleblower laws. This positive
increase is due in large part to the administration's recent
requirement that agencies become certified through OSC's
program.
I'd be happy to address this issue or any other in more
detail in response to any of your questions. Thank you very
much for the opportunity to testify today.
Mr. Farenthold. Thank you very much, Ms. Lerner.
[Prepared statement of Ms. Lerner follows:]
[GRAPHIC] [TIFF OMITTED]
Mr. Farenthold. Ms. Grundmann, the ball is in your court
now.
STATEMENT OF SUSAN TSUI GRUNDMANN
Ms. Grundmann. Thank you, Mr. Chairman, Ranking Member
Lynch, distinguished members of this committee, including
Congressman Cummings and Congresswoman Norton, who used to be
my negotiations law professor back at Georgetown.
Good to see you again. I'm still sitting on the other side
of the table.
Thank you for the opportunity to appear before you today
and testify on behalf of the Merit Systems Protection Board.
Let me acknowledge the presence of my distinguished colleagues
and fellow Board members, the Vice Chair Anne Wagner, member
Mark Robbins, and thank them for their strong contributions to
fulfilling the Board's mission. It has been a great personal
honor for me to serve with these two dedicated individuals.
Today we have been asked to discuss the Board's role in
defending the merit principles and specifically our role in the
appellate review of the Federal whistleblowers. We will address
our recent observations of whistleblower appeals, the impact of
the Whistleblower Protection Enhancement Act of 2012 on Federal
employee whistleblowers and the Board itself.
The mission of the Merit Systems Protection Board is to
safeguard, protect, and promote the merit principles through
its statutory functions. One function is to adjudicate appeals
filed by Federal employees. Under the Whistleblower Protection
Act of 1989, the Board has jurisdiction over two types of
appeals. One is referred to as IRA, an individual right of
action. This appeal is of a nature that involves allegations of
whistleblowing that are not directly appealable to the Board.
This means that before a whistleblower may file an IRA with
the Board, that he or she is first required to seek corrective
actions from the Office of Special Counsel. Generally, only
after the Special Counsel investigates the claim and determines
not to pursue corrective action is the employee then allowed to
file an IRA with us.
The other time of whistleblower appeal is referred to as an
otherwise appealable action. This type of appeal generally
involves a claim that a personnel action, such as a termination
or suspension, was taken in retaliation for whistleblowing.
In either type of appeal, the Board must determine whether
the agency illegally retaliated against Federal employees for
disclosing what the employee reasonably believes falls in one
of four categories: One, a violation of law, rule, or
regulation; two, gross mismanagement or waste of funds; three,
an abuse of authority; four, a substantial and specific danger
to public health or safety. Upon a ruling by the Board, an
employee may then appeal to the U.S. Court of Appeals for the
Federal circuit and, as a result of the Enhancement Act, at
least till the end of this year, to any other court of appeals
of competent jurisdiction.
We are currently aware of only four Board decisions on
whistleblowing that have been appealed outside the Federal
circuit. We understand that the House of Representatives has
already passed legislation extending this provision an
additional 3 years and that such legislation is now awaiting
action in the Senate.
As to the number of whistleblowing appeals, any trends we
may be aware of, since last fiscal year the number of
whistleblower appeals has dramatically increased. What may be
of interest to this subcommittee and particularly to
Congressman Cummings is that the number of appeals jumped from
485 in fiscal year 2012 to 657 in 2013, after the enactment of
the Enhancement Act. Whether there is a correlation between
these two events we cannot say, but we can certainly say that
Federal employees are filing whistleblower appeals with the
Board more than at any other point in the last decade.
Regarding trends in whistleblowing appeals, we can say that
as a result of the Enhancement Act, which greatly expanded the
protections for whistleblowers by overruling a long line of
cases by the Federal circuit, we understand that more
whistleblower appeals are advancing to a hearing on the merits
before administrative judges; that those hearings are much more
detailed and lengthier in duration; and that more cases are
obtaining a merits review by the full Board in Washington, D.C.
And while the numbers in our report in fiscal year 2013 are
based on outcomes achieved under the prior law, and we look
forward to fiscal 2014 which will provide a full year of data
under the new Enhancement Act, already we can see the impact of
the Enhancement Act in our cases. In our written statement we
have included a list of precedential decisions issued by the
Board under the new law. Of the 11 decisions listed, the
appellant's case and claims succeeded in 6, all 6 of which were
IRAs.
Another issue we believe of interest to the subcommittee is
the Federal circuit's recent decision en banc in a case called
Kaplan v. Conyers. The issue was simple: May the Board review
an agency's determination that an employee is not eligible to
occupy a position that is classified as noncritical sensitive.
In that case, our agency argued that by limiting the Board's
review in these types of appeals, that the Federal circuit's
ultimate decision could have the effect of precluding
whistleblower claims by employees in positions at issue. The
Federal circuit dismissed this argument. The Supreme Court
declined to hear the case. We understand that the House and
Senate are considering legislation that would reverse this
decision.
In addition to our adjudication function, the Board is
tasked to conduct studies relating to the civil service and
other merit systems in the executive branch. Since 2010 we've
issued a series of reports, including one that may be of
interest to Member Lynch, as we discuss a change in culture of
agencies in order to allow whistleblowers to come forward.
In the near future, the Board is looking at studying the
specific impact of the Whistleblower Protection Act of 2012,
agency implementation of the act and the change of law in the
landscape of the act.
This concludes my statement. I look forward to answering
your questions. Thank you.
Mr. Farenthold. Thank you very much.
[Prepared statement of Ms. Grundmann follows:]
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Mr. Farenthold. Mr. MacLean, look forward to hearing your
story.
STATEMENT OF ROBERT MACLEAN
Mr. MacLean. Thank you, Mr. Chairman and Ranking Member
Lynch and Ranking Member Cummings.
I was in the first class of 35 air marshals to graduate
after the 9/11 attacks of 2001. In 2003, a perfect storm hit.
All marshals were called in for emergency training. Al Qaeda
hijackers would exploit U.S. Department of State visa and
checkpoint screening loopholes in order to sneak weapons onto
long haul flights, kill crews, and crash their jets. Briefers
were specific to major U.S. east coast cities and European
capitals.
Two days later, TSA blasted out an unmarked text message to
all marshals' unsecured cell phones: Cancel all hotel
reservations to avoid all cancellation fees. Flights for 4
hours or longer wouldn't have marshals for 2 months until TSA
got its new fiscal year funds. Marshals around the country told
me that they got the same text. We thought it was a mistake,
given the alert and a very specific law that 9/11-type flights
must be covered.
I called the supervisor, who confirmed TSA formed a global
plan because it was broke. I called three IG offices until I
spoke to an agent detailed from FEMA. He just warned me about
risking my career. Since the text was not specific, it was not
marked nor secured, I called a reporter covering TSA's
dangerous rules. He verified with marshals across the country
and was in contact with Congress. The story went on the Web.
Hours later most press had coverage of outraged bipartisan
Members of Congress, including Hal Rogers, the Republican
chairman with the oversight of the TSA. After first denying it,
TSA said it made a mistake and canceled its plan before ever
taking effect. The IG said that TSA blew cash on executive
bonuses.
Weeks later I cofounded the air marshal chapter of the
Federal Law Enforcement Officers Association, FLEOA. It's not a
union, but a collective voice to work with Congress and agency
officials to better safety and security. The Air Marshal
Service Director asked the IG to investigate me and my FLEOA
air marshal board for complaining about hazardous policies. He
called us organizational terrorists.
For 2 years we worked with Chairman Jim Sensenbrenner's
Judiciary Committee. In 2006, he issued a 147-page report about
the Air Marshal's dangerous policies and retaliation against us
FLEOA representatives. None of this was considered retaliatory,
because the director and his executive who fired me, Frank
Donzanti, later testified that they were all at one time FLEOA
members.
Mr. Donzanti told me I was under suspicion for disclosing
unclassified sensitive security information or SSI. Internal
Affairs ordered me to divulge all media I was a source for. I
admitted to everything, as it was all unclassified at the time
and everyone agreed with me, Congress, bipartisan. But a decade
later, I've been second-guessed in hundreds of briefs and
hearings and depositions.
Dumbfounded for 19 weeks, TSA finally concocted its single
charge to fire me. The text message it chose not to send to our
$22 million encrypted smart phone system was now SSI. TSA
forced its SSI chief in charge when I made my disclosure not to
show up for his ordered deposition and replaced him with an
attorney who was with the Postal Service when I made my
disclosure. TSA was a little nervous. Its attorneys interrupted
him 252 times during his deposition. This was the TSA's expert
on SSI, who didn't come to the TSA long after I made my
disclosure.
Mr. Donzanti was the only witness allowed at my hearing 3
years later. Everyone else was denied. Despite unbelievable
excuse why he didn't have the authority to ground me for almost
5 months, the fact that he was permanently removed from all
supervisory duties just weeks after my hearing, Mr. Donzanti's
credibility was never scrutinized.
Despite a precedential decision, a unanimous Ninth Circuit
Court of Appeals panel ordered that TSA's 2003 program's lack
of clarity must be considered, but all of the TSA's SSI experts
were blocked from my hearing. Last year, in another
precedential decision, the Court of Appeals for the Federal
circuit unanimously ruled I did not violate any laws and
ordered a new hearing to determine if I had a reasonable belief
of any wrongdoing. The government en banc appealed that
decision to every Federal circuit judge. It was denied
unanimously.
Finally, Mr. Chairman and Ranking Member Lynch, TSA took my
testimony out of context to cancel the Ninth Circuit's
unprecedented--I'm sorry--it was unanimous, good faith belief
order, it quoted me as saying that it didn't matter to me if I
disclosed SSI to the public. But what the transcript reveals is
that I stated that it did not matter if I disclosed SSI to my
supervisor. It was a perfect cut-and-paste job. With that, the
government now argues in its current appeal to the Supreme
Court of the United States that I, quote, ``intentionally
released sensitive security information,'' unquote. My oral
arguments before the Supreme Court are on November 4.
I look forward to answering your questions. Sorry for going
over time.
Mr. Farenthold. You didn't do too badly.
[Prepared statement of Mr. MacLean follows:]
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Mr. Farenthold. Dr. Van Boven, you're recognized here for 5
minutes.
STATEMENT OF ROBERT VAN BOVEN
Dr. Van Boven. Thank you. I'm a physician scientist----
Mr. Farenthold. Could you make sure your microphone is
turned on there. There's a button there. It says ``talk'' on
it.
Dr. Van Boven. I'm a physician scientist and was a director
of the Department of Veterans Affairs Central Texas Traumatic
Brain Injury Research Program in Austin from 2007 to 2009.
Beginning in 2002, the VA and the University of Texas agreed to
jointly build a brain imaging center in Austin and the VA
invested $6.3 million. The center was opened in January of
2006, but recruiting for a director did not start for 6 months.
I was recruited a year and a half later, in July. Troop
deployments at the time were averaging 22,000 servicepersons
per year with 6,000 TBI victims annually.
With over 300,000 military TBI casualties worldwide since
2000 and 2 million annual civilian cases, advances to make
these invisible wounds visible and to develop effective
treatments for TBI were and remain to be sorely needed. With
training at Harvard, Northwestern University, and 7 years
postdoctoral research at Hopkins and the NIH, I felt this was a
perfect opportunity for a neurologist scientist to make a
difference.
But within weeks at the helm, I learned that 2.1 million,
approximately one-third of the funds provided to the BIRL, or
Brain Imaging and Recovery Lab, had already been spent on ghost
staff, as well as unqualified administrative clinicians
performing noncredible diabetic research unrelated to TBI. He
depended on the technical support of a semiretired research
contractor who hadn't published in 10 years. He had been fired
from his immediate past employer and engaged in billing which I
believed to be fraudulent. The team had not collected any data
for 10 months, findings that were subsequently confirmed by the
OIG.
Now, my efforts to terminate the contracting services and
invalid research were overruled. My protest resulted in calls
for my resignation and involuntary reassignment under a person
I accused of wrongdoing. The retaliation and counterclaims that
followed were akin to Kafka's ``The Trial.'' False allegations
were withheld from me. I was not able to confront witnesses.
Evidence of retaliatory animus by those accused of wrongdoing
were stricken from the scope of investigations, and I was found
guilty without an opportunity for defense.
An Administrative Board of Investigation was manipulated
with brazen disregard for VA policies and due process and
fairness, and an ABI called in response to my complaints was
later amended to add a long list of counterclaims. Patriotism
was also punished; that is, I was condemned for volunteering to
organize a 5K run for wounded warriors with Governor Perry,
Willie Nelson, and 1,000 Americans.
Later, the ABI scope and justice itself was turned upside
down. The scope is now restricted to allegations against me.
The new ABI was reconvened despite an ongoing OIG
investigation, which is violation to VA policies, its chair was
a past subordinate of an official alleged with wrongdoing, and
during the ABI hearing any mention of senior management
misconduct or waste was stymied. The chief of staff was also
authorized by the VA headquarters to be the deciding authority
for a grievance against him, and this chief of staff found
himself not guilty.
After removal from the BIRL in 2008, I was banned from
oversight of my own human studies, posing risk to the subjects
and violating all kinds of VA policies. The center was idle but
still burning money. It was moved to Waco in July of 2009, and
most of the 6.3 million was spent without studying or helping a
single veteran. Many of my complaints to the OIG and the ORO
were substantiated by these investigations, in part prompted by
Washington Post coverage.
The ABI grievance hearings and a VA Summary Review Board
defied the Whistleblower Protection Act's principles and
engaged in unjust practices in their own right, and did a good
job of it. The VA attempted to suppress information from
Congress. Moments before the Merit Systems Protection Board
hearing, VA officials asked if I would stop initiating contact
with Congress and others for a settlement.
Settlement was accepted because I was advised that
corrective action by the Merit Systems Protection Board was
unrealistic. In fiscal year 2013, the MSPB granted 4 out of 657
persons, that is less than 1 percent, with corrective action
after adjudication for appeals with whistleblower reprisal
claims. Even after my termination the VA continued to engage in
harmful retribution, blacklisting me with marathon persistence.
Past failings in transparency and mismanagement are indeed
prologue. VA officials later testified before Congress again in
2010 falsely claiming that personnel in Waco, with a director
who had a nicotine expert, had TBI and neuroimaging expertise,
hence justifying the BIRL's closure. I had been contacted by a
Waco whistleblower later that told the opposite story, and he
was persecuted for it, and indeed, I referred him to the
Government Accountability Project and he's being represented
them.
Four years later, deceit was revealed. A second failed
program now, overseen by the same officials that oversaw the
BIRL, is covered in the obituary section--I mean the front
pages, it may as well have been the obituary section--of the
Austin Statesman this past Sunday. The article points out that
the two imaging programs, the BIRL and Waco, cost taxpayers $12
million and squandered a decade of opportunity.
Ironically, through a congressionally directed medical
research program award, one of three in the Nation, I and
colleagues at MIT, UCSF, and the Department of Defense are now
helping and carrying out a treatment trial at Fort Hood. That's
covered by the Sentinel.
So with over a billion dollars a year in research budgetary
resources and appropriations and the same for medical support
like the BIRL, scrutiny of the VA research management program
in oversight appears worthy.
Now, in conclusion, delivering help to those who are
afflicted with brain disorders from TBI and post-traumatic
stress disorder is dependent on good science and integrity. I'm
a clinician. I take care of people with brain injuries daily.
However, if a culture fights rather than fosters transparency,
that suppresses rather than rises to the opportunity for
improvement, then the infamous stereotypes will continue to
curse the VA bureaucracy and degrade the whistleblower alike,
and the public will suffer. Whistleblowers have their roots in
stopping crime. They need your protection from persecution and
denigration so they can help transparency, integrity, and
performance in government today.
I thank you.
Mr. Farenthold. Thank you very much, Doctor.
[Prepared statement of Dr. Van Boven follows:]
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Mr. Farenthold. And I did see the article in the Statesman
this weekend after the Texas football game. It was much more
interesting than the sports pages.
Mr. Devine. Could you get your microphone, too, please,
sir?
STATEMENT OF TOM DEVINE
Mr. Devine. Thank you, sir. I'm the legal director of the
Government Accountability Project. We're a nonpartisan,
nonprofit whistleblower support organization that since 1977
has helped over 6,000 whistleblowers and been a leader in the
campaigns to pass or defend nearly all Federal whistleblower
laws.
We're also a founding member of the Make It Safe Coalition,
which is the tip of an iceberg for a unique, trans-ideological,
bipartisan solidarity consensus between voters and
whistleblowers. Our coalition recruited over 400 organizations
and corporations with some 80 million members to support
passage of the Whistleblower Protection Enhancement Act. They
ranged some from the Center for American Progress, Common
Cause, the unions, Public Citizen, to the Liberty Coalition,
the National Taxpayers Union, the Taxpayers Protection
Alliance, the Competitive Enterprise Institute, the American
Conservative Defense Alliance, and the American Policy Center.
This is an unprecedented mandate for the values of your
hearing.
But for whistleblowers, the nearly 2 years since passage of
the WPEA have been the best and the worst of times. There's
unfinished business and how it is resolved will complete the
struggle. I'd like to summarize five areas where there are
challenges or hard work left to achieve the act's promise.
The first is the sensitive jobs loophole. The decision that
Chairman Grundmann summarized by the Federal Circuit Court of
Appeals, Kaplan v. Conyers, has created the most significant
threat to the merit system that has kept the civil service
professional and nonpartisan since 1883.
I won't repeat the arguments that the chairman made, but
where the dust has settled is that the government now has
uncontrolled power to designate virtually any job in the
government as sensitive. The Federal circuit applied the
principle to those who stock sunglasses at commissaries, and
proposed regulations by the Office of Personnel Management
would permit designation for all jobs that require access to
either classified or unclassified information. In other words,
all jobs that require literacy are sensitive now.
Sensitive employees will no longer be entitled to defend
themselves through an independent due process hearing, and
there are no consistent procedures for justice within the
agency. The bottom line is this is a structure to replace the
merit system with a functional blank check for a national
security spoils system. That is simply unacceptable.
Second is the MacLean case that Mr. MacLean has testified
on. He testified on what happened to him. I'd like to testify
on the significance to the WPEA.
This November, the Supreme Court will hear its first WPEA
case, Whistleblower Protection Act case, since the law was
enacted. At stake are the two most basic significant premises
for this law. First, that only Congress can restrict public
whistleblowing disclosures, not the agencies who allegedly
engaged in fraud, waste, abuse, illegality, or activities
threatening the public. Otherwise, wrongdoers would have the
right to gag whistleblowers exposing their own misconduct.
Second, when Congress restricts public whistleblowing
disclosures, it must do so with specificity. Otherwise,
employees will have to guess whether they have legal rights
when they serve the public's right to know and uncertainty
creates an inherent chilling effect.
An adverse ruling would cancel everything that we had
accomplished in the Whistleblower Protection Enhancement Act.
We believe a congressional friend-of-the-court brief from Mr.
Cummings, as well as others at the Federal circuit, made a
major difference in the results, and we're recruiting
participants for a congressional friend-of-the-court brief to
the Supreme Court.
The third issue is circumventing the whistleblower
protection rights by making it a crime to blow the whistle
instead of an employment offense. The war on whistleblowers
goes well beyond unprecedented Espionage Act prosecutions.
Since passage of the WPEA, we've seen a stark shift from
traditional employment actions to criminal investigations and
prosecutive referrals. Increasingly, whistleblowers are given
the choice of resigning or risking jail time.
Ernie Fitzgerald once nicknamed whistleblowing as
committing the truth because you're treated like you committed
a crime, and this literally is becoming the new reality. It's
not surprising. Criminal investigations are much easier and
less burdensome than multiyear litigation. There's no risk of
losing. All you have to do is close the case. And the chilling
effect of facing jail time is much more severe than facing an
adverse action. This problem could easily be fixed by codifying
legislative history through the 1994 amendments of the WPEA.
And finally, there are pending WPEA issues that are
confronting us. They're confronting us from the remainder of
the Whistleblower Protection Enhancement Act, whether there
should continue to be normal access to appeals court, whether
civil service employees like corporate whistleblowers should
have access to court in a jury trial if they don't get timely
rulings, and whether the MSPB should have summary judgment
authority.
There is also hard work to continue and resume from OSC-
MSPB reauthorization. In 2007, this committee prepared
legislation and marked it up through subcommittee to make over
and modernize these institutions, which haven't had that
upgrade since 1978. Further action was postponed until the
WPEA, and it is time to roll up our sleeves and get to work on
it.
Mr. Chair, the WPEA was landmark legislation to restore
rights that Congress has now passed unanimously four times
since 1978. But the pressure to enforce abuses of secrecy
through silence also is timeless, trans-ideological and
bipartisan.
The WPEA's most significant issues have not yet been
resolved, and agency creativity is already producing new, more
intimidating forms of harassment. The rules that govern the
merit system procedures are increasingly becoming out of date.
Our work isn't finished, and the whistleblower community and
GAP stands ready to do our share.
Mr. Farenthold. Thank you very much, Mr. Devine.
[Prepared statement of Mr. Devine follows:]
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Mr. Farenthold. I'll now recognize myself for the first
round of questioning.
Ms. Grundmann, I believe it was Dr. Van Boven pointed out
what struck me as an incredibly low success rate that
whistleblowers have in front of your agency. Are those numbers
accurate? And what are some of the reasons that whistleblowers
typically lose when they're before you guys?
Ms. Grundmann. Let me address the first issue. The numbers
are what they are, but as I said in my opening statement, those
numbers are reflective of the cases that were adjudicated under
the old law. So we're closing out on our fiscal year numbers
for 2014 that will fully reflect how the law has impacted the
outcome.
I believe your second question is----
Mr. Farenthold. So you're saying that those numbers reflect
past law?
Ms. Grundmann. Right. Right.
Mr. Farenthold. So let's step into current. I realize you
all haven't completed the numbers.
Ms. Grundmann. Right.
Mr. Farenthold. I'd like to see those numbers when they're
done. But at least anecdotally, can you give me some idea why
the whistleblowers are losing all the time.
Ms. Grundmann. Under the old law, it's quite apparent,
which is why Congress changed the law. In addition, in changing
the law, the Whistleblower Protection Enhancement Act, this
Congress overruled a long series of cases by the Federal
circuit which we were obligated to follow since they are our
reviewing court.
For reasons why they prevail, we really don't track why
particular individuals prevail. We do track when cases are
dismissed. A number of cases are filed untimely. A number of
cases are dismissed because of failure to exhaust the
administrative remedies through the Office of Special Counsel.
There could be a number of other reasons which we don't track.
We are a very small organization.
Mr. Farenthold. So now, Mr. Devine, you're head of an
advocacy organization. Does somebody track the reasons people
lose there? Does somebody read the cases? Microphone, please,
sir. Could you turn your microphone on, please, sir.
Mr. Devine. Yes, we do track the cases, and the WPEA is
requiring the Merit Board to give much more detailed statistics
and analysis of the causes.
I'd like to say that while we haven't agreed with all the
Board's rulings, this Board is unsurpassed at the leadership
level, at the top, for fairness, objectivity, and honest
interpretation of the law. The problem that we've seen is more
at the administrative judge level.
The Board is not designed with the resources or the time to
hear complex cases. The judges have to finish these cases in
120 days, and it's not always realistic when we're talking
about major breakdowns in the system. And they don't have the
political independence to challenge misconduct at higher pay
grade levels than the judges frequently are. It's not designed
for the cases that are the most significant for the WPEA.
It would be very helpful if the administrative judges were
required in the OSC-MSPB reauthorization to get some intensive
training on the importance of this act and its mandate and what
it means, and if they were upgraded from being just
administrative judges to administrative law judges with more
independence from political pressure.
Mr. Farenthold. All right. And, Dr. Van Boven, I've never
ceased to be stunned at what comes out of the VA. I mean, we've
just had a huge scandal with wait lists and long wait times.
It's something that we struggle with in my office in a lot of
the casework that we do for individuals.
I understand you're now separated, but I assume you still
have some friends and contacts there. I know it's been barely a
month since the President assigned the reforms that we passed
out of this House and the Senate passed. Is it getting better?
Are we just spinning our wheels up here? Microphone, please.
Dr. Van Boven. I think that with firm determination and
leadership, top-down culture leadership and accountability,
that it will set an example and I think that it can occur. The
problem is, Mr. Devine just alluded to, it's that there are
stodgy indoctrinated pieces of the fabric that need to be, to
mix metaphors, diarrhoeased. We need an enema.
The thing is that you're wondering about why that 1 percent
prevails, and I applaud the Merit Systems Protection Board's
statement of saying the numbers are what they are. God bless
her. Because the point is, once we open our eyes, and it's all
about transparency, and none of us like to admit our own
transgressions, that I'm saying hate the sin but not the
sinner. So I think, look, we can always change.
That gets to the next point: Why do those people prevail?
I'll tell you why they prevail. Because it was just like that
line from ``Mr. Smith Goes to Washington,'' he says basically--
I'm paraphrasing, I was trying to look it up--he says, I'm
never going to quit. He says, someone will listen to me
eventually.
Well, I felt the same way. When the VA tried to settle with
me or make me go away, they said, Dr. Van Boven, it's been 4
years with you, it's been like round 13. I said, are you
kidding me? I was bluffing. I said this is round one. I was
broke and unemployed. I said, I'm going to make this my life
passion. So I think real solid determination.
You know, Sam Houston said, do right and risk the
consequences. This man did right and he risked the
consequences. And whether or not what a court says or what the
hearings come out to say and how many people vote for it or
against it, it doesn't matter, because 120 years ago we said
it's okay to have slaves. They were wrong. And I think the same
thing goes here. Once we open our eyes and say we've got to do
something, then change will happen.
Mr. Farenthold. Thank you very much.
I see my time has expired, actually, over by a minute and a
half, so I'll recognize Mr. Lynch for 6-1/2 minutes.
Mr. Lynch. Thank you, Mr. Chairman.
Ms. Lerner, you got some data, though, in your testimony
you shared with us regarding the old system and the new system
under the WPEA. I know you didn't drill down on some of your
written testimony, but what do you see in terms of, as Ms.
Grundmann has indicated, there has been a spike in appeals, but
you've also got some results, I think, right?
Ms. Lerner. That's right. I mean, I--my microphone is on,
right? I think you can look at it in a couple of different
ways. To give it some perspective, I think that the rising
numbers can be viewed as a very good thing. For one thing,
people aren't going to come forward unless they feel like
they're going to be protected from retaliation.
And our numbers of complaints have gone through the roof.
We, as I mentioned, have about 5,000 this year, and those are
increases in both disclosures of waste, fraud and abuse, and
health and safety issues, and retaliation complaints. So more
people are coming forward to make disclosures. More people are
coming forward with complaints. But I think those are actually
good things. Whistleblowers who are coming forward are having
more of an impact than at any time in our agency's history.
And a couple other points. The numbers are also increasing,
I think, because of changes at OSC. We've been very aggressive
in trying to protect whistleblowers. The staff is using every
tool that we have available to us to curb waste, fraud, and
abuse, and we've had some very high-profile cases.
And when we talk about changing the culture, when you get
strong results, either through systemic changes like we've been
able to see at the VA and the Department of Homeland Security
and the Air Force and the FAA, that's a message that gets out
to all Federal employees, that they can make a difference.
The other message that gets out is when you discipline
people they see the consequences of retaliating, and the
Whistleblower Protection Enhancement Act has given us the tools
that we need to bring disciplinary actions, and I think that
that will also have an effect.
Education and outreach is also very important, and the fact
that the administration is now requiring all agencies to go
through our certification process I think is also going to have
a very positive affect on culture.
Mr. Lynch. All right. If the person who complains is not
there the next day, then that's a pretty strong signal that the
administration is sending out there that that's not a good
career move to speak up and to complain about the way things
are being done.
I do want to just take a step back and just say, I thought
the testimony here, across the board, every single one of you
has, I think, offered very thoughtful and important testimony,
very helpful to me, I think.
Mr. Devine, you laid out those five points or five issues
that you wanted to raise, the first one being--what was it--
sensitive job loophole. Do you think it is worthwhile for
Congress to try to define that legislatively or would judge-
made law, would that suffice?
Mr. Devine. Unfortunately, Mr. Lynch, that's the only
solution that's left. We've run out of options in the courts.
And the civil service merit system will have to be
legislatively reborn independent of the national security
sensitive job----
Mr. Lynch. Not the answer I wanted to hear. I was trying to
come up with a definition of sensitivity that would really
provide the fullest recourse for whistleblowers. And I think
about Dr. Van Boven at the VA dealing with patients and patient
records and confidential information. And it's right across
government. I mean, the more important work we're doing would
obviously ring that bell for sensitivity and close down the
recourse of complaining employees. We're going to have a real
struggle with that and we've got to figure a way to do that.
Mr. Devine. It's going to be tough, but I don't know, sir,
if it's necessary to come up with a new definition of
sensitivity with respect to civil service rights. That concept
comes from the McCarthy era in 1954 and it's been dormant. It's
been in a coma until the last two administrations, which have
revived it. And the normal boundary for sensitive jobs has been
when you have access to classified information. Classified
information is very broadly defined. And that's work, and there
haven't been any even accusations that it hasn't worked. This
is simply a power grab to shift control of employment rights
from the civil service system to officials with national
security blank checks.
And your point about the VA is very well taken.
Unfortunately, we've been representing VA whistleblowers since
the 1990s and things are not getting better there. We're very
grateful that the Office of Special Counsel, has made this the
first time in its history, has selected a whole agency to
investigate for prohibited personnel practice, because they
permeate it.
The gentleman who came after Dr. Van Boven, Dr. David
Tharp, who carried on his dissent for the next $12 million that
didn't produce any research, the veterans groups have twice
made him, in the last 4 years, twice made him the DAV employee
of the year, he is so outstanding. The harassment of him was so
severe that he volunteered for service in Afghanistan to escape
the Center of Excellence. We've got a very severe problem.
Mr. Lynch. Okay. I don't have any more time to delve into
it, but, again, I appreciate the testimony of all the
witnesses. Thanks for your help.
Mr. Farenthold. Thank you very much.
We'll now recognize the vice chairman of the subcommittee,
Mr. Walberg.
Mr. Walberg. Thank you, Mr. Chairman. And thank you to the
witnesses for taking additional stance in difficult
circumstances.
Dr. Van Boven, if you would, please describe the nature of
the public health threat to the veterans from traumatic brain
injury.
Dr. Van Boven. Well, I think the more you look, the more
you find. You know, years ago, something like this had another
name, it was called shell shock and you get over it. And, in
fact, Eric Hipple, who I speak with, the former Detroit Lion
and sports concussion expert, spoke in terms of, well, there's
a badge of honor to see the stars.
Mr. Walberg. I sat on the plane with him yesterday coming
here, so.
Dr. Van Boven. Fantastic. Exactly. Well, you're why he
didn't have dinner with me. Just kidding.
Mr. Walberg. Sorry about that.
Dr. Van Boven. No, no. He's a great guy. But the point is,
he's a spokesperson on the issue, and the issue is that it's a
cumulative effect. It's like radiation. We're learning that
multiple concussions, they build up and they can have additive
effect. The same nodes or circuits that are messed up can set
the stage to increase your risk of post-traumatic stress
disorder, chronic traumatic encephalopathy, and be victims like
Muhammad Ali. We are now, like, saying, wait a minute, this is
a disaster. We've got to work on this and we've got to get
serious, because if you don't look, you won't find.
Mr. Walberg. How many vets has it struck?
Dr. Van Boven. Well, the veterans, gosh, almighty, I think
that that is something that we haven't scratched on. Look, in
2005, just in soldiers, we said, oh, maybe there's about 2,700;
2007, maybe 4,000; by 2008, we said, well, maybe there's
150,000; and now we've decided there's 300,000. So it's a
matter of sensitivity.
Now, veterans, my goodness, it's almost, I think it's going
to take the same amount of time it took to recognize Agent
Orange. Now, there are a lot of confounds because guess what
makes TBI worse? Alcohol, substance abuse, sleep deprivation,
stressors. It's a toxic mix.
And so it's no wonder, and I say this really tragically,
that so many of our veterans of war end up spiraling down
socially and economically. They lose their wife, they lose
their life, and they end up plummeting down to the VA system,
which takes the bottom 20 percent or less economically that
give health care. There's these million vets, for example, that
the VA takes care of.
I think that the problem is, when there's all these Federal
employees, I think we need to help them by helping the people
that are taking care of them so that when they see a problem
they don't fear retribution, it, in fact, might be a badge of
honor rather than denigration to be a whistleblower.
And then when you've got OSC, it reminds me of Eliot Ness,
Eliot Ness trying to take on the mob. Look, with 120 people
taking thousands and thousands of claims with a $2.5 million
budget, how can you expect them to do their job?
Mr. Walberg. So concluding that research and continued
research and consistent research is necessary, with respect to
the funds for TBI research, where did the money go?
Dr. Van Boven. There were ghost employees, people that
didn't set foot in a lab, but they were taken from payroll.
There was no accounting. There was no budgeting.
Mr. Walberg. And it was used for what?
Dr. Van Boven. Well, it was used for people that were on
salary but not doing research. It was used for scanner time
that was frivolously used for, I'm sorry, some kind of
experimentation. I mean, I couldn't understand it. So I sent it
off to five reviewers across the Nation to kind of make sense
of something----
Mr. Walberg. And you found out how many vets were being
helped?
Dr. Van Boven. Zero. Not one veteran was treated at the
BIRL, and not one study has been done on veterans at Waco.
Zero. Thirteen million dollars and 8, 9 years later.
Mr. Walberg. What motive did the DVA have to cover up the
funding diversion instead of ending it? I mean, in your mind.
What motive?
Dr. Van Boven. I don't know what that stands. I'm sorry.
Oh, yes, sorry. Thank you. It's got a new name. He was asking
about JCAHO. But it's now called the Joint Commission. That's
why I was confused.
So the motivation is very simple, and Ed Sherwood testified
to it. He said, I am getting ready because we are in the bottom
10 percent of the Joint Commission for clinical performance--
and this is all testimony, I am paraphrasing--and he said, and,
you know, the director is getting a lot of heat over it. And he
told me, he said, you know, I could lose my job because of
this. He said, so before JCAHO comes in and tears us apart and
we lose our job and get zapped by them--I am quoting, I am
paraphrasing--he said, I get my friend, this administrator, to
get in there and clean things up to keep the hospital
accredited, and in turn I give him research dollars, although
he hadn't done any published work, any reports, any progress,
no science. It didn't matter because this was just basically
money that he had power of, he wasn't a scientist, but he could
just use it to help protect his job. That was the motive.
Mr. Walberg. Mr. Chairman, could I follow up or am I out of
time?
Mr. Farenthold. Without objection, we will give you another
minute.
Mr. Walberg. Thank you. Thank you. That may be all it
needs. Did this coverup serve or obstruct WPA's efforts, their
goals?
Dr. Van Boven. I think it was in a vacuum. I don't think
WPA was anywhere in anyone's mind. And any time I would raise
prohibited personnel practices I was admonished and chastised
during these internal tribunals, saying we are not here to hear
about this, these kind of what you think are illicit motives of
retaliatory animus, we are here to talk about you, Dr. Van
Boven. And so it was completely cut out.
Mr. Walberg. And the peer review process didn't work?
Dr. Van Boven. Well, the peer review, if I may, you know,
part of the problem, you saw the chief of staff who reigned
over his own grievance against him and found himself not
guilty. I think that that's symbolic and representative of the
VA system right now.
Look, we have an office inspector general, an Office of
Research Oversight who is supposed to investigate his boss, the
VA, and then but also answer to his boss. I mean that's where
you get all this incredibly diluted type of reports from ORO
and the OIG. I think we need outside independent assessments.
Health care is the same problem.
Look, I am sorry I've got to inject this. Because I am a
neurologist. I take care of patients. In 1999, the Institute of
Medicine reported that ``To Err is Human,'' that there was
100,000 people dying in hospitals every year from medical
mistakes. Okay? And so Congress was really up in arms, and we
are going to do something, and we are going to improve
transparency in government. Right? Fifteen years later, the
Leapfrog organization this fall has reported that that number
of hospital errors causing deaths has quadrupled, 400,000 a
year. It is the number three killer of Americans now behind
heart attack and cancer.
If you go to the Joint Commission and speak to Hal
Bressler, who is the chief counsel there, who has been there
for 30 years--again, entrenched bureaucrat--and you ask him
about, hey, I got some disclosures of problems, because you
know, who knows but the doctors in the trenches, patients don't
understand the details, and they shouldn't have to, but when
doctors feel so much fear they can't speak out, well, guess
what happens? Hal Bressler of the Joint Commission said,
Robert, to my lawyers, very simple, he said the problem is
there has only been two cases ever, of even though it's on the
books that hospitals cannot retaliate for whistleblowing or,
you know, sharing sentinel events that cause a patient's death,
although it's against the law and against our policies, there
is no protections. We can't do subpoenas. We can't do
investigations. Therefore, unless the hospital is stupid
enough--and there were two cases in history--to say, yeah, we
did it, we committed the murder, and punished him for reporting
to you, unless they do that, Joint Commission can't do
anything.
We need laws. Think about it. You know those reports about
you can save lives every year, thousands of them, thousands
every year, guaranteed, if you provide protection and support
for physicians in hospitals.
Mr. Walberg. Thank you.
And thank you, Mr. Chairman.
Mr. Farenthold. Thank you very much.
We will now recognize the ranking member of the full
committee for his questioning.
Mr. Cummings. Thank you very much, Mr. Chairman.
I want to say to all of you, I agree with Mr. Lynch, your
testimony has been extremely helpful. And I think there is no
member of the committee and the Congress that fails to feel
strongly about protecting whistleblowers. It is very, very
important.
And, Ms. Lerner, as I listened to you, I think we are
having some success. I think that is why you are seeing as much
action as you are seeing, and that's a good thing.
One of the reforms included in the landmark Whistleblower
Protection Enhancement Act is a 2-year pilot program that
allows whistleblowers to appeal a judgment of the Merit Systems
Protection Board to any U.S. court of appeals with
jurisdiction. Prior to the establishment of the pilot program,
the Federal Circuit was the only court of appeals with
authority to adjudicate whistleblower appeals.
Mr. Devine, I understand that prior to the creation of the
pilot program the track record for decisions in the Federal
circuit was adverse to whistleblowers. I think it was something
like 3 to 226 against whistleblowers for decisions on the
merits. Is that right?
Mr. Devine. It degenerated to 3 in 232.
Mr. Cummings. Oh, okay. Can you explain for us the concern
that the pilot program was meant to address?
Mr. Devine. Yes, sir. It was meant to create healthy
competition, to translate the terms of the act when there was
dispute about them, the same as we rely on in every other
aspect of the legal system, having a difference of opinions and
finding the truth from the composite.
It's needed even more. The Federal circuit has not ruled in
favor of a whistleblower on the merits since passage of the
WPEA. They have not been born again. And in the meantime, other
courts of appeals have been coming in. And in fact on whether
the rights were retroactive, one court of appeals said we don't
need to determine that because the Federal circuit rulings all
along were erroneous, and we are going to, by the court
opinion, restore all the rights that the Federal circuit took
away.
If we had had all circuits review, we wouldn't have had to
keep passing the Whistleblower Protection Act over and over
again, because the aberration of one hostile court would have
been subsumed.
We are very grateful that the House has passed legislation
extending the 2-year pilot test to 5 years, because the GAO
study to see whether it worked or not is 4 years, and we hope
that the Senate follows suit on that.
I'd also like to supplement the answer on peer review as
not being part of the solution at the DVA. It actually was the
primary vehicle to attack the whistleblowers at the DVA. It's
the classic star chamber proceeding in that they are not
allowed to know the charges against them, they are not allowed
to see the witnesses testifying against them, they are not
allowed to present their own witnesses. It was a vehicle to be
able to give an undefended, unreviewable attack on the
whistleblower. And the same solution for retaliatory criminal
investigations, if applied to retaliatory peer reviews, the
same upgrade of language from legislative history culled from
the 1994 amendments would allow people like Dr. Van Boven to
defend himself before he has to go to the MSPB for a hearing.
Mr. Cummings. Chairman Grundmann, what impact has the all-
circuit review provisions of the Whistleblower Protection
Enhancement Act had on the Board's adjudication of
whistleblower cases?
Ms. Grundmann. In short, not much. There have only been
four cases appealed outside the circuit. And of the four cases,
only two of them have been decided. The other two are still
pending. So as Mr. Devine indicated, if the goal of this law is
to develop a wide variety of decisions from different circuits,
then I would suggest that four decisions is not many.
Mr. Cummings. At the time this provision was considered in
the Protection Act there was a concern that allowing for
whistleblower appeals to other circuit courts of appeal would
result in a flood of cases being filed in the other courts. My
last question, Chairman Grundmann, can you tell us how many
cases have been filed in other circuits?
Ms. Grundmann. Just four.
Mr. Cummings. Four?
Ms. Grundmann. Four total, on one hand.
Mr. Cummings. And does that surprise you?
Ms. Grundmann. That's a difficult question to answer,
because it does take a while for a case to complete itself,
complete its process, and then be filed in court. But we've
been tracking this for 2 years, and all we've seen is four
cases in total.
Mr. Cummings. So, Mr. Devine, you said you'd like to see
that legislation extended, the pilot program extended another 3
years?
Mr. Devine. Yes, sir.
Mr. Cummings. Consistent with what we passed.
Mr. Devine. Very supportive of the bill the House passed to
make it 5 years.
Mr. Cummings. And do you think that will make a difference?
It sounds like it is almost a little early to even make a good
judgment on it based on what you said and what Chairwoman
Grundmann said.
Mr. Devine. Yes, sir. Well, we would love to see this made
permanent as far as having a research base to demonstrate that.
It's going to take more than a few years to develop an adequate
number of cases for a statistically significant base.
Mr. Cummings. Thank you very much, Mr. Chairman.
Mr. Farenthold. Thank you very much.
We will now recognize the chairman of the full committee,
the gentleman from southern California, Mr. Issa.
Mr. Issa. Thank you, Mr. Chairman. This is one of those
bipartisan things that brings together both sides of the dais,
and so I'll follow up where the ranking member left off.
Mr. Devine, if I hear you are right, and if I look at what
I think Mr. Cummings noted, and, Ms. Grundmann, you said, which
is there is no flood. So it is a relatively small amount of
cases. And if we extend--and I appreciate the comment about
making it permanent--but if we extend it significantly we do no
harm, that the original short period of time was based on the
assumption that there might be a flood and we might have it
look at it. Is that pretty much the consensus of everybody
there?
Mr. Devine. Yes, sir. The predictions of a flood of cases
either for normal access to appeals courts or for jury trials
in district court have always flunked the reality test. They
have been challenged prior to the passage of a dozen laws for
corporate whistleblowers at the district court level, for
example. That flood has simply never occurred. It has been
crying wolf over and over and over.
Ms. Grundmann. Let me just add briefly----
Mr. Issa. Yes, please.
Ms. Grundmann. --as I am obligated to do, that is a policy
call for Congress. We don't take a position on it. But as I
stated, the statistics do not provide much of a basis for
anybody to draw any conclusions at this point.
Mr. Issa. So without taking a position, the numbers speak
for themselves that there isn't a flood. And if we are going to
evaluate the benefits and, to be honest, to see some of these
cases come to maturity, it may take more time than was
originally planned in the pilot.
Ms. Grundmann. That is correct.
Mr. Issa. Thank you.
Mr. MacLean, I want to thank you for the work that you have
done to further, if you will, our awareness. The fact is that I
look forward to your case being fully adjudicated. And I think
in fact that's part of what we on the dais want to make sure is
made available, is access to whistleblowers in an appropriate
venue of their choosing, and then let's see ultimately when
they trickle up to the Supreme Court how they are decided.
Ms. Lerner, you have been a tremendous champion, and I
appreciate the work that you have done. And this is a
subcommittee hearing and I know that before I got in here from
other duties most of this was done, but I want to take a moment
and thank you for being, if you will, a good public servant.
And, quite frankly, for all of you, this hearing is about
an area in which this committee is passionate. There is very
little time left in this Congress. But if we can in fact do a
further draft, the ranking member and myself, and get it
introduced in the lame duck, we will. And that will take a
little time.
But this hearing today, Mr. Chairman, does help us. So with
that, I yield back.
Mr. Farenthold. Thank you very much, Mr. Chairman.
We will now recognize the gentlelady from the District of
Columbia.
Ms. Norton. Thank you, Mr. Chairman. I am very pleased that
we are having this hearing. And I am pleased that the chairman
is here because this, the bipartisan Whistleblower Protection
Enhancement Act, I think is an indication of the concern of
Congress, continuing concern I must say. Indeed, as I listened
to Ms. Grundmann speak of having sat in my class on
negotiations, I can only think that she has accomplished a lot
more than any negotiations class could have given her, as she
has risen to become chair of the Merit Systems Protection
Board.
Ms. Grundmann, I retain my tenure at Georgetown. I teach a
seminar called Lawmaking and Statutory Interpretation. It's
interesting that as long as they are writing about statutory
interpretation and how it mixes or links with what we pass,
they can write on any subject they want to. And I note that I
have learned something about your decisions and the decisions
of the Federal circuit, because any number of them over the
years have chosen to write on what looks to be the conflict
between the statute and what the Board and the Federal circuit
have found.
And then I note that Congress has kept trying to revise
this statute. And I don't know if we need to try again,
listening to some of the other ways to approach it that have
come out in this hearing.
I want to raise another issue that could affect far more
Federal employees, conceivably virtually every Federal
employee, and wipe out altogether the Whistleblower Enhancement
Act. And I am referring to Kaplan v. Conyers, a decision that
reversed what the Merit Systems Protection Board found in favor
of the Federal employees. And the administration appealed all
the way to the Federal circuit and the Supreme Court. And the
Supreme Court has let that stand.
We use the word security very loosely. This is a
frightening circumstance, where an agency head or his designee
can designate any position as security sensitive. Understand
these are not positions that require a security clearance. So
in the parlance of the day, most people would not understand
that these positions are commonplace positions, having nothing
to do with security. And I want to ask the chairman if I could
enter into the record the statements of two of the
organizations that represent the Federal employees on the
impact of this decision.
Mr. Farenthold. Without objection, so ordered.
Ms. Norton. The first thing I thought about when I looked
at this decision was the Whistleblower Protection Act means
nothing because there is no appeal whatsoever. It seems to me
to go against everything that Congress has passed for the last
50 years. So if you think that you're a victim of retaliation
or that somebody has discriminated against you because of your
religion or your race, leave alone trying to retaliate against
you, there is nothing you can say because there is no recourse.
So I have to say, is there any civil service system? And
why isn't that an incentive for agency heads to simply
disregard the system altogether?
Now, I am pleased to note that I have introduced a bill,
and there are two Republicans and three Democrats in this
committee who have sponsored this bill, and the Senate has
adopted this bill, and it is a bipartisan bill now in the
Senate. So you can see that this troubles the Congress itself.
How to deal with a new wrinkle, I would call it, a new
layer, first time I have ever heard of a layer, outside of
security. So by calling these security-sensitive positions,
these positions have been tucked right in there with positions
where you need a security clearance. And you can understand
where there is a security clearance and the kinds of
information that could not in fact come forward. These are not
those positions.
And I want to ask about the impact of the Conyers ruling,
particularly on our attempts to protect whistleblowers, and for
that matter on Federal employees across the country--across the
board--recognizing that these first cases have involved DOD
employees. But I read nothing in the regulations that would,
even though most DOD employees of course do not have security
clearance, but I read nothing in the regulations that even
confine it to DOD employees. And I note that the administration
is trying to expand with further regulations the position it
has taken by apparently writing regulations as I speak by the
OPM and the office of national intelligence that would expand
the Federal positions labeled by this new label, security
sensitive, to virtually all Federal employees.
I would like to hear, especially I would like to what all
of you think. I suppose I should begin with Ms. Lerner, the
Special Counsel, and see if she has any role in advising the
administration, which is I think taking the Conyers decision
and raising it to even further levels that are unheard of in
what has been called up until this point a civil service
system.
Ms. Lerner. Thank you for your question.
Up until now, we have not had a role in advising the
administration on this issue. I think it is important to note,
however, that Congress has set up the Office of Special Counsel
as a safe channel for disclosing classified information. So
there is no doubt about the Office of Special Counsel's ability
to responsibly and appropriately handle these cases. I don't
know that that has been mentioned or acknowledged. And I know
you have introduced legislation, and as you mentioned the
Senate has, too. But that's something to keep in mind in
response to any objections to employees having the ability to
appeal to the Office of Special Counsel.
Ms. Norton. Are you saying even secure positions?
Ms. Lerner. Yes. Yeah. We can handle classified information
and secure positions.
Ms. Norton. Mr. Devine, do you think a legislative remedy
is necessary? And I should ask Ms. Grundmann, inasmuch as the
Merit Systems Protection Board ruled in favor of the employees
and was overruled in the Federal circuit. Do you think
legislation, whether the legislation I introduced or has been
introduced in the Senate or other legislation, could in fact
correct this situation?
Ms. Grundmann. That is what I understand to be the goal of
the legislation you introduced. But again, we have no position
on policy. However, I can say that we have argued before the
Federal circuit precisely the types of statements and arguments
that you have made here today, which is there would be no way
for us or any third party to know whether somebody was removed
for an improper reason such as whistleblowing or retaliation
for whistleblowing.
Right now, because of the state of the law, we are bound to
follow the Conyers, Northover decision, which precludes our
review in its entirety. Let me also note that there are certain
agencies out there that have only noncritical sensitive
positions. Everybody has some sort of sensitivity designation.
So all the individuals potentially in that agency don't have
any MSPB review.
Ms. Norton. DOD and others as well?
Ms. Grundmann. There are components within the Department
of Defense. I think the labor unions, the statements that you
submitted you will find those comments. In the two particular
cases that appeared before the Board, both these individuals
were low-graded individuals. They are low-level GS employees
who did not have access to classified information. In fact,
their ineligibility was based on determinations, personal
determinations, mostly financial, credit rating, bankruptcies.
Ms. Norton. Mr. Devine, just finally could you say
something on a legislative solution here? Or am I overwrought
about what this does to the Whistleblower Protection Act or,
for that matter, to Federal employees more generally?
Mr. Devine. To my great dismay, no, you are not
overwrought. I have been working on good government rights
through Federal employees making a contribution since 1976, and
this is the most severe threat that's occurred. Whistleblower
rights were immediately a target of the Conyers lawsuit thanks
to the White House decision. But trying to build whistleblower
rights without a foundation of the merit system is trying to
build a home without a foundation. And when the security
clearance precedent took away access to the civil service
system and the MSPB, it was only a matter of time before
whistleblower protection rights were next. It was inevitable.
It happened.
And there is not any question in our mind that the days are
numbered for the Whistleblower Protection Act's survival if
this decision is not reversed. I wish that it weren't necessary
to have legislation, because having worked four times to pass
the Whistleblower Protection Act we know how hard that is and
how long it takes and how much work it is. But there isn't any
other option left.
And it shouldn't be controversial legislation. It's just to
restore the status quo for a merit system and Federal
employment that existed from 1883 to 2013 without any incident
due to the lack of sensitive job designations. This should not
be a controversial bill.
And there is no time to waste. Agencies, at the Department
of State, agency by agency, they are starting to make all their
employees sensitive, noncritical sensitive. All the IGs that we
depend on to protect the whistleblowers are transforming their
employees to be critical sensitive. The entire Border Patrol,
where we have had some of the most significant whistleblowing
disclosures, will all be noncritical sensitive. The government
is being transformed from the rule of law to a national
security spoils system.
Ms. Norton. Thank you, Mr. Chairman. I don't know if the
administration knows what it is doing, but it is wiping out the
civil service system, it seems to me.
Mr. Farenthold. I thank you for your line of questioning.
And I actually do want to follow up on it. I mean, I think we
do have an issue of sensitivity creep. And I think Mr. Lynch
pointed out our challenges in drafting legislation that is
appropriate for that. I mean, I think clearly the case of
someone stocking sunglasses is not going to have access to
sensitive information, but I think the majority of us would
agree that Mr. Snowden clearly had access to and exposed
sensitive information.
So finding the right place to draw the line is challenging.
I know it's certainly something that's going to be critical to
Mr. MacLean in his ongoing litigation as to how that goes.
Anything we do now probably won't help you. You are in the
courts' hands.
But I would appreciate, and you don't have to come up from
it now, I'd actually request that if you all in the next few
days could send to the committee any thoughts you would have on
how we draft that language to protect the legitimate
whistleblower while still protecting our national security
interests. And a piece of it may be where that information is
released. Clearly flying overseas and releasing NSA
information, as Mr. Snowden did, is not appropriate. But coming
to a congressional committee, or a special counsel, or the
Office of Inspector General with your agency might be an
appropriate place to do that. And as we look at reworking that,
at least I would appreciate each of you all's thoughts and
input on how to do that.
I do have a couple of questions that I want to hit. Mr.
Devine, you offered your five concerns, your five loopholes, if
you will, that you think need addressing. And I would like to
ask our other witnesses--I realize Ms. Lerner and Ms.
Grundmann, as government employees you are kind of in an
awkward situation there. I would ask that if you feel
comfortable speaking for yourself rather than the agency,
someone with knowledge in the field, you're welcome to answer.
I'll understand if you decline to answer.
But if any of you all have any other suggestions for
improvements in the law overall, I would like to hear. I am
giving you an out, Ms. Lerner, but we will start with you.
Ms. Lerner. I think it's an important question. I would
like to be able to give it some thought.
Mr. Farenthold. Okay. Send it on with your thoughts on the
language on the sensitivity creep, as we will call it.
Ms. Lerner. Sure.
Mr. Farenthold. And Ms. Grundmann?
Ms. Grundmann. Well, in terms of that particular issue, the
Board has already spoken through its decision. I think we were
rather clear on how we felt the issue should be handled. The
Federal circuit disagreed with us. So certainly it is in this
body's hands to resolve any outstanding issues. We will follow
up with you, however.
Mr. Farenthold. Mr. MacLean?
Mr. MacLean. Throughout my case, the TSA just thumbed its
nose at MSPB orders and Federal circuit court orders. So the
agencies are allowed to get away with what they do because I
think the MSPB is too weak to uphold the orders. And they just
go ahead and ignore them, such as switching out witnesses and
ignoring deposition orders.
Mr. Farenthold. So some teeth in dealing with folks within
agencies who disregard the whistleblower protection might be
something you would suggest? I don't want to put words in your
mouth.
Mr. MacLean. It's hard to say, because there was just never
any accountability when the final decisions came from the full
Board. And I think they are overwhelmed with a lot of caseload.
It's good that this is opened up to multiple circuits, because
I think the Federal circuit was overloaded with this. And now
it's good that it's been spread around. So now they can spend
more time to take a look at this.
Mr. Farenthold. Dr. Van Boven, you have any thoughts?
Dr. Van Boven. Well, with regards to where to draw the
line----
Mr. Farenthold. Can you turn your microphone on? Why am I
the only one you all forget to turn your microphones on with?
Dr. Van Boven. I am sorry. I don't have the expertise to
comment on where to draw the line on sensitivity issues and
whistleblowers' rights. But with regards to more broader
suggestions on my plight and history and what are lessons
learned and how can we improve that, I have the following
suggestions.
Number one, I think that there should be outside,
independent investigations with regards to wrongdoing in an
agency. I think it's a conflict of interest when you have to
have the, as I mentioned before, a chief of staff who is making
a decision and deciding about whether or not he did something
wrong. So, too, I think that there needs to be agencies that
can have independent assessment. Oh, that's the OSC.
So my feeling is that OIGs and the OROs and all the rest,
it is a comedy of errors. I think that you should put teeth
into OSC, 120 people, $2.5 million. I'm sorry, she didn't pay
me for this, but I think that if you really want to do it, then
give them the guns and the power to help people.
And the second thing is we need more cultural top-down
saying it is not the whistleblower that has the problem. He is
blowing the whistle because something is wrong, and we need to
try to 'fess up and give incentives. Either the stick, just
like in hospitals, you have a patient that is staying too long
and they come back 3 days after you discharge them and they
die, well, gosh, there's penalties there. And then also the
carrot in terms of we are going to have rewards for people who
show real improvements in performances. And I always say to my
patients it is better to prick your own bubble than have
someone else prick it for you. So I am my own toughest critic
in terms of so they have rewards for those that point out
problems in themselves before someone blows the whistle.
Mr. Farenthold. Thank you very much. Listen, I couldn't
agree with you more about needing to get to the bottom of some
of the cultural problem. And again, I don't intend to beat up
on the VA, but they seem to have asked for it. And hopefully we
have been able to do that with our recent legislation.
Finally, I want to wrap my questioning up--and we will give
Mr. Lynch a second round of questioning when I am done--with a
broad overview. Each one of you is involved directly with
whistleblowers. Some of you are whistleblowers yourselves. This
committee relies heavily on whistleblowers. Quite frankly, the
American people rely heavily on whistleblowers. It's the people
who have the courage to do the right thing and point out what's
going wrong, sometimes at their own peril. We're trying to fix
it where it isn't as perilous for them. But these are true
American heroes who do the right thing and come forward.
I want to give each one of you the opportunity, whoever is
watching this on the Web that might be thinking about being a
whistleblower, or somebody who is reading the transcript of
this hearing that's thinking about being a whistleblower, take
10 or 15 or 30 seconds, what would you say to somebody who is
thinking about becoming a whistleblower? We'll go down the line
and start with Ms. Lerner. And when we are done I will pass on
to Mr. Lynch.
Ms. Lerner. I think what I would say to a whistleblower is
that they have a lot of avenues to come forward. And I
particularly want them to think about the Office of Special
Counsel. We are a robust, active agency. We are understaffed,
but we are getting terrific results for whistleblowers. We have
a record number of corrective actions, almost 200 this year, on
behalf of whistleblowers.
We need people to come forward with their disclosures. And
I think the results that we have gotten, because whistleblowers
have come to us, show the value. We have gotten amazing results
at the Air Force, the FAA, the Department of Homeland Security,
and most recently at the VA.
And just today in fact the new Secretary of the VA I
believe testified that he wanted everybody to be a
whistleblower at the VA. Probably going a little bit too far.
But the message is I think he wants people to know that the
culture is going to change at the VA. And we need
whistleblowers to come forward in order to make our agencies,
our government better and safer for the American public.
Mr. Farenthold. Ms. Grundmann.
Ms. Grundmann. Thank you. One of our functions of course is
a study function. And we have routinely seen that Federal
employees still perceive evidence of prohibited personnel
practices, one of them being reprisals for whistleblowing. So
that creates a culture problem.
We commend this body for taking the initiative to change
the law to create new avenues for whistleblowers to come
forward. But ultimately, as Ranking Member Lynch mentioned at
the beginning, the culture needs to change within an agency
whereby employees are encouraged to come forward and whereby
their allegations are investigated.
And when the investigation is done, if there is no
wrongdoing accomplished, employees should be told an
investigation was completed and you did the right thing by
coming forward. So the culture change is what needs to occur,
and it's educational and it's long term.
Mr. Farenthold. Thank you very much.
Mr. MacLean.
Mr. MacLean. I would advise people that your whole life is
going to change. It doesn't matter what you believed what was
doing right at the time. Years down the road everything that
you said and done is going to be highly scrutinized. A lot of
your friends at work are never going to talk to you again. You
could lose your job. It's a huge, huge risk. Prepare for the
absolute worst.
Mr. Farenthold. Would you do it again?
Mr. MacLean. Absolutely. I was a law enforcement officer.
You paid me three times, four times more than your average
Federal worker to make split decisions in one of the most
dangerous areas to enforce the law. So it was my duty. It was
my oath to do what I had to do. And at the time, I believed I
was doing everything to protect the public.
So absolutely. I took that law enforcement oath. So I would
do it again and again. Better people than me have given up
worse, given up more.
Mr. Farenthold. Thank you very much.
Dr. Van Boven.
Dr. Van Boven. Right now these are----
Mr. Farenthold. Microphone.
Dr. Van Boven. I'm sorry. Right now, I think that the
applause for whistleblowing is frustratingly anemic at best. I
think that the current culture is that you have to be
masochistic, a Don Quixote, or want to have financial ruin and
have a Pyrrhic victory and a probable divorce. And these are
the statistics.
Look at Lois Jenson of the first class action lawsuit in
America. I lived a few miles from where she was up in,
Virginia, Minnesota. After 12 years, she and a half dozen
people got $600,000, but her life was ruined, and she is still
a wreck. If we think in terms of Mr. Wigand of the tobacco
industry, he has been psychologically devastated as a result of
all these things. I myself, thankfully, I survived, but barely.
So the bottom line is you know we got Boy Scouts and Girl
Scouts, you give them badges. We should start early and really
make it happen. Where is my badge? I think that if we really
want to give positive reinforcements, then make it visible and
to say you are a hero and mean it. Because right now people
say, oh, they want to applaud a whistleblower, but they don't
want to be too close to the whistle.
Mr. Farenthold. Thank you very much.
And, Mr. Devine.
Mr. Devine. Mr. Chairman, the first thing I would say is
that this is unsurpassed as a crossroads decision in your life,
which will never be the same. Make this decision with your
family and the loved ones who are depending on you, because
they are going to be affected by it. And the cost will be
severe if you are going to make a significant difference.
But if you are willing to pay the price, you can make a
difference, because there is nothing more powerful than the
truth. So think it over.
Number two, do your homework. It's the highest risk
decision you will be making, and you have to do the most
advanced preparation. So get that book, ``The Whistleblower's
Survival Guide: A Handbook for Committing the Truth.'' It's
based on the experience of 6,000 whistleblowers' lessons
learned.
And the third thing I'd advise, if they're a Federal civil
servant, to convince Congress to give you rights that are
analogous to those of corporate employees who have full, normal
access to court to enforce them.
Mr. Farenthold. Thank you very much.
Mr. Lynch.
Mr. Lynch. Thank you.
Normally, I would say the witnesses have suffered enough,
but I do have a couple other questions. Just as sort of an
anecdote, in Boston the VA has switched over. They have done
this whole whistleblower support protocol. I was just involved
in a case at one of my local VA hospitals--I have got three--
where the whistleblowers' complaints were borne out and the
system was changed because they came forward. It's not entirely
a happy ending, but I have to say that they came forward, they
pointed out deficiencies, and those deficiencies were changed.
Somewhat reluctantly, but they were changed.
So there is the opportunity, I think, to educate our folks,
our managers, to implement these programs to make it more
conducive for people to come forward. And I think that part we
need to do better and we need to do it all across government.
And I think that will help change the culture in a way if we
are seen as supporting this, and maybe by that way, by that
action, the risk that Mr. MacLean talked about.
And I hate hearing that, that you take your life in your
hands. And maybe we haven't really drilled down on Mr.
MacLean's case, but I will do that now. You served as an air
marshal back in 2003. And what I understand is in August 2003
TSA proposed a change in policy to cancel all air marshal
coverage on long distance flights for that time period. And it
coincided with a period of high risk on the airlines, long
distance airlines, from Al Qaeda. Isn't that correct?
Mr. MacLean. Yes, sir.
Mr. Lynch. And you came forward after you received your
notice, which was nonclassified at the time, and you complained
about it. And you also, as you described earlier in your
testimony, you went to the press, and they confirmed it with
other air marshals. And instead of being rewarded for your
diligence--of course TSA had to change their policy--you were
fired in what, 2006?
Mr. MacLean. Yes, sir.
Mr. Lynch. And the excuse they used was that they had gone
retroactively and in 2006 changed their classification of your
text messages that you received to classified. And so you were
in a sensitive position. Is that what their argument is
basically?
Mr. MacLean. They retroactively designated my disclosure
with an agency-regulated unclassified marking called sensitive
security information years after the fact.
Mr. Lynch. Right. And so you were fired for that.
Mr. MacLean. Yes, sir.
Mr. Lynch. Tell me and tell this committee about the
difficulty you have had in getting employment as an air marshal
or other employment since that job action.
Mr. MacLean. I applied for almost a dozen police agencies
in southern California, and none of them even came forward and
said we don't want to hire you because you got fired from the
TSA. I simply got, thanks for applying, you weren't the most
qualified, maybe try again in the future.
I only had a high school diploma, didn't have a college
degree. So it was very difficult for me. And most of the jobs,
I have been jumping job to job with commission only, door-to-
door sales jobs. It's about the only thing I could find.
So, yeah, I was pretty much blackballed, being a veteran,
Air Force veteran, a Border Patrol agent. The man who fired me
said I had an impeccable, perfect record. It didn't matter. I
still couldn't get a job as a cop again.
Mr. Lynch. What exactly were you told about how your career
may be harmed if you didn't remain silent? Were there any
warnings given to you about what you were doing coming forward?
Mr. MacLean. After the fourth proper channel that I went
through, which was finally a special agent with the inspector
general, he simply said the agency went broke. This happens.
There is nothing you can do, there is nothing we can do, you
don't want to cut your career short over making a big deal
about this. And that was the final time, I was advised not to
go further.
Mr. Lynch. Well, I think the circumstances that you find
yourself in is a disgrace to us as Federal employers, both
yourself and Dr. Van Boven. And I think your example is
extremely instructive to us going forward in trying to devise a
policy where employees like yourself will be protected during
this process. I think you prevented a dangerous situation from
being put upon the public, the flying public, and it's a
disgrace that you're being punished for that.
So thank you for your testimony. As I said, I just wanted
to spend a little time on your case and amplify it a little
bit. Hopefully, it will help you going forward.
Mr. MacLean. Thank you, sir.
Mr. Lynch. Thank you.
Mr. Farenthold. I'd like to thank everybody on our witness,
especially our whistleblowers. I'm going to echo what Mr. Lynch
said, that it is a disgrace. And I hope you take away from this
the members of this subcommittee I think unanimously are
committed to making the situation better. And we are going to
keep working on it. Again, thank you all for your testimony.
The subcommittee stands adjourned.
[Whereupon, at 3:45 p.m., the committee was adjourned.]
APPENDIX
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Material Submitted for the Hearing Record
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