On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009. Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.
This post is the sixth in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.
VI: WILL ANY FEDERAL EMPLOYEES EVER HAVE THEIR CASE HEARD IN FEDERAL COURT?
The short answer to this question is virtually, none.
When read together, the numerous “poison pill” provisions inserted into S. 372 all but guarantee that very few, if any, federal employee cases will ever be removed to district court for a real trial.
As outlined in the blog postings 1, 2, 3, and 5, between the new limits on the definition of protected disclosure, the extremely narrow class of cases permitted to be filed in federal court, the 270 day rule, and the summary judgment rule, it will be virtually impossible for an employee to successfully meet the criteria established in the Senate Bill for filing a claim in federal court.
The Senate Bill does contain a provision in which a federal employee can ask the MSPB to certify their case for a federal court trial before they undergo the expensive full MSPB proceeding. See Section 117 (a)(k)(4)(A)(ii)(1) (Page 29). However, this certification provision is a complete illusion. It requires the MSPB to admit that a case is too complex for the MSPB to handle. It will be extremely rare for that certification to happen.
Additionally, an employee has no practical method to appeal a ruling by the MSPB denying certification and court access. First, such appeals cannot be immediately filed. The employee will be forced to spend money fully litigating their case before the MSPB, and can only appeal the denial after the employee loses their case.
Second, the standard of review contained in S. 372 is the highest standard applicable in law. Instead of a de novo review of the law or facts, the courts are required under the law to defer to the rulings of the MSPB, and can only reverse such a ruling if the decision is found to be “arbitrary, capricious or an abuse of discretion.” This standard is almost impossible to meet. Thus, a ruling by the MSPB denying an employee the right to file his or her claim in federal court is, for all practical purposes, unreviewable.
President Obama promised all federal employees full access to federal court when adjudicating their whistleblower cases. In one such statement, published on the official Obama transition team web site, the President-Elect stated:
Often the best source of information about waste, fraud, and
abuse in government is an existing government employee
committed to public integrity and willing to speak out. Such
acts of courage and patriotism, which can sometimes save lives
and often save taxpayer dollars, should be encouraged rather
than stifled. We need to empower federal employees as
watchdogs of wrongdoing and partners in performance. Barack
Obama will strengthen whistleblower laws to protect federal
workers who expose waste, fraud, and abuse of authority in
government. Obama will ensure that federal agencies expedite
the process for reviewing whistleblower claims whistleblowers
have full access to courts and due process.
S. 372, as it is currently reads, does not fulfill that promise. It creates a false hope, and then cheats federal workers out of the rights for which they were promised and for which they need.