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Whistleblowers beware: this week the Supreme Court dealt a death blow to the Privacy Act. David Colapinto, NWC General Counsel and Privacy Act expert, appeared on NPR to talk about the ruling and it's devastating effects for whistleblowers. Full story here

Congress originally passed the historic Privacy Act after the Nixon administration illegally broke into Daniel Ellsburg's psychiatric records. The law was designed to provide a recourse for whistleblowers whose reputations get smeared by the government, but now the Court has decided that these brave workers can only receive out-of-pocket damages. Any mental or emotional distress is written off to the wind, regardless of how willful

In a strong dissent, Justice Sotomayor made it clear that this is, "not the result
Congress intended when it enacted an Act with the express purpose of safeguarding individual privacy against Government invasion."

But it's clear that the spirit under which this law was enacted is no longer the spirit of government. David Colapinto concluded, "When we look at what is happening with government surveillance of citizens, this is just part of a disturbing trend where our courts and our government are throwing out restrictions on government abuse of power."

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In the first Federal Rail Safety Act (FRSA) case to go to a jury trial, the jury awarded $50,000 in compensatory damages, and one million dollars in punitive damages. Andy Barati was working for the Metro North commuter rail on Grand Central Terminal, New York City, in 2008 when a jack failed and a railroad tie injured his foot. Management's response: blame the victim and fire him. Soon, management realized that firing a railroad work for reporting an injury became illegal as part of the 2007 enactment of the FRSA. Management converted the discharge to a suspension.  Still, the Occupational Safety and Health Administration (OSHA) found that management violated the FRSA. OSHA also cited Metro North for poor training and lighting.  The Wall Street Journal reports that Barati received $5,254 in back pay.  Barati's lawyer, Charlie Goetsch, pressed on to get Barati his full remedies under the FRSA.  He asked the jury in the Connecticut federal court to send a message that it is unacceptable to discourage workers from reporting injuries, and did they ever.  Goetsch is the author of the TrainLawBlog, and was a guest on Honesty Without Fear, the Whistleblower's Radio Hour.  Congratulations to Charlie Goetsch and Andy Barati.

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The commissioned corps of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA) work on the cutting edge of federal research and policy on diseases, medical devices, public health, global warming and our environment. Yet, they fall into an exclusion from the Civil Service Reform Act (CSRA) that denies them any of the protections of the Whistleblower Protection Act (WPA). The WPA protects only civilian federal employees.  Reference 5 U.S.C. § 2101(1). They also have no coverage, and no protection, from the less effective Military Whistleblower Protection Act, 10 U.S.C. § 1034.

In today's Washington Post, page B4, columnist Joe Davidson picks up their cause. He decries how their "fine work" does them no good if they become whistleblowers.  He laments how the law has so far failed to protect PHS whistleblower Paul T. "PJ" Hardy. He was fired after raising concerns about the Food and Drug Administration (FDA) approving breast cancer detection devices without adequate proof of safety and effectiveness. The Office of Special Counsel (OSC) sought a stay on his behalf. The Merit System Protection Board (MSPB) concluded it had no power to act because of the PHS and NOAA exclusion from the CSRA.  "This loophole doesn't make any sense," Special Counsel Carolyn Lerner told Davidson. "It undermines public health and safety and should be addressed through legislation.  There really are no statutory protections."

Attorney Stephen M. Kohn is Executive Director of the National Whistleblowers Center (NWC) and is representing Hardy. "We are going to push as aggressively as possible for the protection of all federal employee whistleblowers to be free from targeted monitoring," he told Davidson. Hardy and other PHS whistleblowers have filed a lawsuit in federal court to challenge how managers targeted them for surveillance. Targeting certain employees because of their protected whistleblowing violates the freedoms of the First Amendment. Hardy also challenges his dismissal as a violation of the First Amendment. When no federal statute provides a remedy for these violations, the First Amendment should apply to protect the victims of unlawful retaliation.

The National Whistleblowers Center has now issued an ACTION ALERT. Follow this link to call on legislators and HHS Secretary Kathleen Sebelius to reinstate Hardy and close the CSRA loophole.

Davidson calls on all government agencies to appreciate that "an otherwise legal search can become illegal if it's conducted in retaliation for whistleblowing" (quoting Kohn). Davidson also agrees with Senator Charles Grassley's letter that, "denying or interfering with employees' rights to furnish information to Congress also is against the law." Here, here!

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Attorney Stephen Kohn today presented oral argument on behalf of former federal prosecutor and whistleblower Richard Convertino (pictured).  Convertino is seeking reversal of an order issued last year by Chief U.S. District Judge Royce Lamberth in Washington, DC.  That order dismissed Convertino's claim that an official of the Department of Justice willfully released private information about a pending investigation against Convertino to punish him for criticizing the Bush administration's tactics in the war on terror. Judge Lamberth held that allowing Convertino to pursue discovery of the source of the leak would be "futile."

During oral arguments today before the Court of Appeals for the District of Columbia Circuit (DC Circuit), Judges David Tatel, Judge Karen LeCraft Henderson and Judge Judith Rogers asked detailed questions about how Convertino's attempts to obtain disclosure of the source could proceed against the Detroit Free Press and its reporter. Kohn explained how a federal judge in Detroit was just waiting for the DC Circuit to rule and could then proceed to compel the paper to disclose its records and reveal what it knows about the source. A posting in The Blog of Legal Times, says that Judge Tatel, "expressed concern about the potential lack of evidence on which [Judge] Lamberth made his finding about the futility of keeping the case going." Judge Tatel noted how the Detroit Free Press still has not answered under oath about what it knows. During the argument of government attorney, Samantha Chaifetz, Judge Tatel obtained an admission that if Judge Lamberth had no evidence in the record to show that further discovery would be futile, then that finding would be an abuse of discretion. Judge Rogers said this would have been a different case if the discovery was before Judge Lamberth who could rule on the issue, but it is not. Judge Henderson stated directly that Kohn's affidavit was not conclusory and it met the requirement for providing detailed information about how the additional discovery could make a difference.  The judges allowed attorneys on both sides to exceed their 15-minute limits to answer all their questions. We can be hopeful that the Court's opinion will stand for the value of allowing whistleblowers the time needed to prove their cases when they face protracted resistance.

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