Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

Tomorrow, September 21^st, the Merit System Protection Board  (MSPB) will hear oral arguments in two cases Rhonda K. Conyers v. Department of Defense and Devon H. Northover v. Department of Defense for the first time in 27 years.

According to the Make It Safe Coalition, the cases, decided under a previous Board, “created an open-ended loophole permitting agencies to cancel MSPB review of any federal job by designating it ‘sensitive’ – a non-reviewable, vague national security category that can be attached to any case that ‘could enable its occupant to bring about a material adverse effect on national security’. Such employees would be limited to internal review, where agencies act as the judges of their own alleged misconduct.”

Newly-confirmed MSPB members vacated the decisions in January and requested an advisory opinion from the Office of Personnel Management (OPM) and amicus curiae (“friend-of-the-court”) briefs. You can read these documents on their website by clicking here.

It is certainly encouraging that the new MSPB Chairman, Susan Tsui Grundmann, decided to hear oral arguments in cases like these that “present issues of special significance because of their broad potential impact on the Federal civil service and merit systems.” Let us hope that it truly does “result in the best decisions for Federal employees and agencies, and the American people.”

The public is welcome to attend the hearing at 10:00 am at the Unites States Court of Appeals for the Federal Circuit, Room 201, 717 Madison Place, N.W., Washington, D.C. For those who cannot attend, recordings of the oral arguments will be made available on the MSPB website.

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Last April, I submitted a report to the United Nations High Commissioner for Human Rights and the U.S. State Department about how U.S. law fails to give whistleblowers customary remedies for their retaliation claims. My report listed the international treaties that required the United States to protect whistleblowers. It listed specific cases in which whistleblowers' rights had been denied, including one case, Bradley Birkenfeld, in which the whistleblower was currently imprisoned. It also decried the pitiful state of the law when it comes to protecting federal employees who blow the whistle on waste, fraud and abuse. I called on the State Department to answer to the United Nations for this failure to give whistleblowers the same rights that victims of auto accidents have.

Last month, the State Department issued its report to the United Nations under its Universal Periodic Review (UPR). That report makes no mention of whistleblower rights.  It does not even include the word, "transparency." I called on the State Department to answer how the limits on political asylum (such as requiring applications to be filed in English within one year of entry to the US) comported with the duty to provide asylum to international whistleblowers seeking refuge here.  No mention of that either. The UPR process provides for direct questioning of U.S. representatives in November. Perhaps those representatives will face questions about how whistleblowers here get less rights that other victims of wrongful conduct, and why the U.S. has not passed laws to assure whistleblowers our customary rights and remedies.

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A New York State appellate court has ordered the New York City Department of Transportation to reinstate whistleblower John Tipaldo. When Tipaldo reported that his superiors violated bidding rules, we was demoted from his position as Acting Assistant Commissioner for Planning. That was in 1996. In 2006, the trial court granted the City summary judgment on grounds that Tipaldo had not made a formal report of the bidding violations to the "appointing authority." The appellate court reversed in 2008 holding that Tipaldo's report to the Department of Investigations was appropriate when the "appointing authority" was the person engaged in the violations. Tipaldo v. Lynn, 48 AD3d 361. The appellate court held that since there was no dispute about the retaliatory demotion, the case would be remanded only for a determination of damages and remedies. On the second appeal, the court held that Tipaldo was entitled to interest on his back pay, thereby increasing his award from $175,000 to $662,721. The appellate court awarded the interest even though the state's statute did not make any explicit provision for interest.  The state statute has "the goal of remediating adverse employment actions which, if allowed, would undermine an important public policy, that is, encouraging public employees to expose fraud, waste and other squandering of the public fisc." Tipaldo had hired an expert to compute the interest and the City did not. The court also held that Tipaldo was entitled to reinstatement even though he had declined promotions offered after his demotion. The court said that his corroborated fear of retaliation made his decisions reasonable so that he could still receive reinstatement as part of the court's order. It took Tipaldo 14 years, and two trips to the court of appeals to get justice.  This is an example of how public officials, when challenged by the integrity of a whistleblower, will waste unlimited public resources to delay justice. This might be a good time for New York's legislature to consider improving its whistleblower law to provide for general and punitive damages, interest, expert fees, attorney fees and jury trials. The case is Tipaldo v. Lynn,  Thank you to the New York Public Personnel Law blog for alerting me to this decision.

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Harper's Magazine is publishing a report by Scott Horton on yet another prosecution for releasing information. Called "Obama's War on Whistleblowers," the article focuses on the prosecution of Steven Kim, a scholar of North Korea’s nuclear program. Since Kim did consulting work for the State Department, the prosecution contends he should not have spoken to Fox News about how the North Koreans were likely to react to proposed sanctions. Former prosecutor and Johns Hopkins professor Ruth Wedgwood told Horton that the Fox News report “contains completely unremarkable observations about what a country would do if it was sanctioned for its poor behavior. These kinds of observations were well known to anyone paying attention to public sources and ought not be the basis for making someone a federal felon.” Assistant Attorney General David Kris says the charges are a “warning to anyone who is entrusted with sensitive national security information and would consider compromising it.” Those who are following the prosecutions of Thomas Drake and Bradley Manning, and the failure to grant clemency to Brad Birkenfeld, may see a pattern. Horton notes that Obama, as a lawyer, represented a whistleblower.  As a candidate, Obama pledged to “strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government.” Horton complains that the prosecution of Kim will effectively "censor public debate about vital facts relating to international affairs and possibly to war. *** [W]e’re supposed to be kept ignorant while the national-security state cares for us all."

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