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Advocacy groups are at odds over the controversial Whistleblower Protection Enhancement Act (S. 372) that is currently pending in the Senate. The National Whistleblowers Center asserts that unless the Senate takes the poison pills out of the bill, the passage of this legislation would severely undermine the rights of whistleblowers. The Government Accountability Project insists that while the bill is not perfect and will need future updates, it must be signed into law just the way it is. Will this controversy kill the bill or make it stronger?
The Senate passed the Whistleblower Protection Enhancement Act (S. 372) on December, 10, 2010 by unanimous consent. The text of the bill contains what many consider to be serious setbacks for the rights of whistleblowers. The bill may be changed further either by the House or through a conference committee. Full text of the Whistleblower Protection Enhancement Act (S. 372)
The cost of fraud in the U.S. is $660 billion annually, it destroys our country’s economy and undermines national security. Instead of being praised for their heroic actions, whistleblowers from all walks of life are routinely silenced, while their careers and reputations are destroyed under the color of law. Federal law enforcement agencies have traditionally abused the awesome government resources to investigate, harass and prosecute our country’s unsung heroes at the expense of American taxpayers. According to the opponents of the bill, S. 372not only falls short of protecting whistleblowers, but also takes away important legal victories achieved in the past.
One of the setbacks contained within the bill pertains to the sweeping new powers handed to the Merit Systems Protection Board (MSPB). The Board boasts a shamefully lopsided record of siding with the government in 97% of cases. The system that was created for the purpose of protecting whistleblowers is being misused against them. MSPB is a broken, inefficient and ineffective agency in desperate need of reform. Instead, through S. 372the Senate is entrusting the MSPB with the ability to summarily dismiss a whistleblowers case without a hearing, based solely on agency affidavits.
Based on the Board’s track record, the writing is on the wall. Empowered with additional powers, the MSPB would undoubtedly utilize them to summarily dismiss the vast majority of cases, while denying whistleblowers their day in court. Since the creation of the Civil Service Reform Act of 1978 the Federal Circuit has rejected numerous requests from the executive branch for a judicial creation of the authority to dismiss cases summarily. See Crispin v. Dept. of Commerce, 732 F.2d 919 (Fed. Cir. 1984). Section 118 of S. 372will largely extinguish any hope of legal recourse for most whistleblowers by counteracting the important reforms contained in the same legislation.
Unless the bill is amended, Administrative Judges with the MSPB will now be able to dismiss whistleblower claims without a hearing, based solely on affidavits filed by the agencies. Unless whistleblowers are able to conduct extensive and very costly pre-trial depositions, they will be unable to rebut these affidavits, and their cases will be dismissed. This significant rollback of current rights would make it not only increasingly more difficult, but also more expensive for whistleblowers to prevail in any actions, despite any of the other reforms contained in the legislation.
S. 372 provides for a very limited right to seek a jury trial in federal court in some whistleblower cases, if the employee files a request with the MSPB at an early stage of the case. However, the federal employer will be permitted to file a motion under Federal Rules of Civil Procedure - Rule 12(d), forcing the employee to survive summary judgment before the MSPB can permit a case to go to federal court. At that stage, the employee won’t have the benefit of discovery or may be forced to litigate the merits of a case on summary judgment.
Ultimately, the MSPB would rule whether or not the employee should be permitted to take the case to federal court for a jury trial. According to the latest statistics, the MSPB Administrative Judges (AJ’s) ruled in favor of employees a total of 1.7% of the time out of a total caseload of 4,698 cases nationwide. The same MSPB judges who rule overwhelmingly in favor of the agencies will be empowered to be the gatekeeper for federal court. Much as an elusive oasis in the desert, the illusion of access to federal court is just that – an illusion. The MSPB must approve any initial application for court access. Given the high standards on demonstrating a right to remove the case, and the reputation of the MSPB, few if any whistleblowers will ever have their case approved for court access.
Section 117 of the S. 372 specifies that the applicant would have to obtain certification from the MSPB in order to be granted the right to pursue their claims in district court. If the MSPB issues a final order of dismissal in a case within 270 days, the right to federal court access is terminated. With the new summary dismissal authority, the Board won’t have any trouble dismissing whistleblower cases well within the 270 day time frame. Therefore, the only access road to the promise land of jury trials is guarded by the same monster that has been historically destroying any hope for justice in thousands of whistleblower cases.
It should be noted that the MSPB “Judges” presiding over the whistleblower cases are in actuality GS-14 General Attorneys (not Administrative Law Judges). MSPB AJ’s have no special training, are serving as hearing officers, are not bound by the Judicial Canon of Ethics, and their title of a “Judge” is purely honorary. Recommendations that the MSPB be required to utilize statutory Administrative Law Judges, in place of the current "Administrative Judges" were rejected.
S. 372does not contain any substantive provisions to reform either the MSPB or the Office of Special Counsel (OSC). Any meaningful reform of the Whistleblower Protection Act should have included substantive corrections to the MSPB and the OSC. The Merit Systems Protection Board is a quasi-judicial agency in the Executive branch. OSC was originally established as an office of the MSPB.Much like the MSPB, OSC has a dubious reputation dating back to its inception.
The most recent head of the OSC, Scott J. Bloch, pleaded guilty to criminal contempt of Congress on April 27, 2010. Under his leadership, the historically inept OSC reached new lows by dismissing, closing and destroying hundreds of whistleblowing complaints without investigation. OSC was also found to have misused its prosecutorial power for political purposes.
Bloch notoriously assigned interns to issue closure letters in hundreds of whistleblower complaints without investigation and employed a company “Geeks on Call” to destroy electronic records of whistleblower cases.
For breaking the law in his war on whistleblowers, Scott Bloch was not charged with obstruction of justice, evidence tampering, destruction of official files, impeding an official federal investigation, civil right violations and violations of the Whistleblower Protection Act (WPA).Instead, Bloch was charged only with criminal contempt. While this charge carried a possible prison sentence, Department of Justice prosecutors said they would not oppose probation for Bloch. In a twisted irony that further exacerbates paramount injustices of our legal system, Bloch is currently working as an employment attorney at the Tarone & McLaughlin law firm in Washington.
In the unlikely event that some whistleblowers would be able to climb over the roadblocks of the MSPB and get their case into a district court, they might be greeted by the likes of Alex Kozinski (former head of the OSC and a sworn enemy of whistleblowers). Kozinski kept a copy of the Malek Manual on his desk and reportedly used its techniques (such as transfers, investigations and harassment) to purge the professional civil service experts from the OSC staff. They were replaced with obedient minions who viewed whistleblowers as crazy, disloyal troublemakers.
While serving as the head of the OSC, Alex Kozinski taught courses to federal managers on how to fire whistleblowers without getting caught by OSC investigators. For example, Alex Kozinski tutored Secretary Watt on how to purge a whistleblowing coal mine inspector from the Department of Interior. He used the OSC Investigations Manual as a handout in these morbid lectures. Senior Supervisors still serving in various government agencies quite possibly received such training on how to get rid of “inconvenient” employees and whistleblowers. These techniques are still being implemented within federal agencies today, with virtual impunity. Alex Kozinski’s abuses were the major catalyst for passage of the Whistleblower Protection Act (WPA) of 1989, and he was forced to resign.
A few years later, 43 Senators voted against his confirmation for a seat on the Ninth Circuit Court of Appeals, after Senator Levin’s intensive investigation of Kozinski’s tenure as the OSC’s Special Counsel. In spite of the controversy surrounding his dubious OSC performance, Kozinski became the Chief Judge of the U.S. 9th Circuit Court of Appeals.
Section 105 of the pending Whistleblower Amendment Bill excludes the following agencies from the whistleblower legislation:
the Federal Bureau of Investigation,
the Central Intelligence Agency,
the Defense Intelligence Agency,
the National Geospatial-Intelligence Agency,
the National Security Agency,
the Office of the Director of National Intelligence,
the National Reconnaissance Office and
any executive agency, as determined by the President.
Additional dangerous loopholes in the bill include the exclusions for “minor violations of law”, “inadvertent violations” and violations that occur “during the conscientious carrying out of official duties” provides for a dangerous precept that federal managers would be allowed to decide what laws they can violate. Virtually all instances of government corruption, fraud, waste and abuse are related to the actions taken during the performance of official duties. Many such violations could be misrepresented as “minor” or “inadvertent” if the agencies are allowed to make their own determination as to their own misconduct.
Consistent with other whistleblower laws, the Whistleblower Protection Act currently protects employees who disclose violations of law, rule or regulation. This right was affirmed by the U.S. Court of Appeals for the Federal Circuit in Drake v. AID. The Drake case is one of the very few cases in the 32-year history of the Civil Service Reform Act where an employee actually won his case in the Federal Circuit and the agency was ordered to take corrective action. S. 372 radically changes the definition of protected disclosures, permits agencies to fire employees who report actual violations of law and overturns one of the only good decisions ever to be rendered by the Federal Circuit.
In short, what was meant to be an enhancement of the Whistleblower Protection Act contains setbacks and shortcomings that would further empower the offending agencies, while insulating them from even a remote possibility of whistleblower recourse.
Proponents of the corrections for the bill argue that unless the bill is fixed before it’s signed into law, whistleblowers rights will be catapulted backwards into the dark ages. Aggrieved whistleblowers will continue to be subjected to retaliatory investigations, warrantless surveillance and malicious prosecutions. Federal agencies will be invincible against any recourse sought by whistleblowers. Unless these changes are implemented, America’s unsung heroes will be left at the mercy of the federal management as well as the morally defunct, ineffective agencies, such as the OSC and the MSPB, who would receive a carte blanche to continue covering up government corruption.
S. 372 appears to be is a bad deal for whistleblowers. It contains limitations on the right to protected activity and the right to court access that will set a dangerous precedent for other whistleblower laws. Many of its positive features are thwarted by carefully drafted "fine print" that will negate the ability of whistleblowers to obtain protection. Without major corrections to S. 372, most federal employees who are retaliated against for blowing the whistle will continue to lose their cases.
All concerned citizens are well advised to contact their elected representatives and strongly express their opinions as to whether this bill should be signed into law. Contact information is provided herein for your convenience: