Mr. PLATTS. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, this amendment would require the Merit Systems Protection Board to rely on a consistent standard for clear and convincing evidence, which is the burden of proof that must be met to sustain an agency's affirmative defense that it would have taken the same personnel action in question independent of an employee's protected contact.
Under the amendment, clear and convincing evidence will be defined as ``evidence indicating that the matter to be proved is highly probable or reasonably certain.'' This standard is consistent with United States Supreme Court precedent and administrative decisions for remedial employment statutes.
By way of background, when Congress passed the Whistleblower Protection Act of 1989, it intended to toughen the legal burden of proof for a Federal agency's affirmative defense once a whistleblower establishes a prima facie case of retaliation from ``preponderance of the evidence'' to ``clear and convincing evidence.'' However, just the opposite has occurred. The clear and convincing evidence standard is now the primary basis cited to rule against whistleblowers in decisions on merits.
The reason behind this is that the Merit Systems Protection Board has created a unique test for clear and convincing evidence which is inconsistent with long-established judicial and administrative norms. In assessing the standard, the board considers three factors:
First, the merits of an agency's stated independent justification for acting against a whistleblower; second, whether there was a motive to retaliate; and third, whether the action reflects discriminatory treatment compared to that afforded employees who have not engaged in protective conduct. [Page: H2533]
The three-part test leaves the board with broad discretion in any given case with respect to how many criteria an agency must demonstrate and what level of proof must be demonstrated for each factor.
Adoption of this amendment is necessary in order to restore congressional intent in passing the Whistleblower Protection Act.
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Through the WPA and this legislation we are now considering, Congress has defined the terms for two of the three tests an employee must pass to obtain relief: ``reasonable belief'' and ``contributing factor.'' For the administrative process to function as intended, Congress must also define ``clear and convincing evidence.''
Accordingly, I urge a ``yes'' vote on the amendment. I appreciate this amendment being made in order by the Rules Committee.
