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

In Nancy M. Modesitt’s recent research article “The Garcetti Virus,” she explains how a doctrine known as the job duties exclusion has come to erode protections once afforded to whistleblowers. She explains that this doctrine allows the discharge of an individual who discovers illegal activities while performing his or her job and then reports those issues to a supervisor. Although one might think the current whistleblower laws would protect such disclosures, Modesitt explains that is no longer the case.
Modesitt details how the the Federal Circuit created the job duties exclusion more than a decade ago in the case of Wills v. Department of Agriculture (1998). The case involved an employee in the Department of Agriculture who reported to his supervisor that a number of farms he had investigated were not complying with a government soil-protection program. The supervisor disagreed with the employee’s findings and overruled him on 6 of the 7 cases. The employee complained about the decision and later claimed that he was retaliated against for his comments. When the case was heard by the Federal Circuit, the court decided that the employees comments did not put him “at personal risk for the benefit of the public good.” As such, the court ruled that his comments could not “constitute a protected disclosure under the [Whistleblowers Protection Act (WPA)].” In later cases involving disclosures made by federal employees, the courts further limited the protection afforded to them for their whistleblower activities.

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In this week's Honesty Without Fear radio program, I interviewed Robert "Bob" Whitmore and his lawyer, Paula Dinerstein, about the landmark decision Whitmore won from the U.S. Court of Appeals for the Federal Circuit last week. The Federal Circuit has finally put to rest the unfortunate practice of judges at the Merit System Protection Board (MSPB) of allowing the agency to "prove" that they would have fired the whistleblower anyway, and then never hearing the whistleblower's side of the story.  The Court rejected this procedure saying:

Doing so prevents whistleblowers from effectively presenting their defenses, and leaves only the agency’s side of the case in play. This can have a substantial effect on the outcome of the case, and so constitutes harmful error. (Page 28.)

The Court also held that the MSPB judge erred in excluding Whitmore's witnesses about his whistleblowing.  The Court upheld the exclusion of one witness on grounds that Whitmore's attorney had not submitted a detailed statement of what the witness would say (a claim that Dinerstein disputes). Most importantly, the Court held that the MSPB failed to consider evidence that points to retaliation as management's real motive for firing Whitmore, and that without considering this evidence, it cannot say that the agency proved "by clear and convincing evidence" that it would have fired Whitmore even if he had never done any whistleblowing.  This decision represents a bold change in direction for the Federal Circuit, and breaths life into the 1994 amendments to the Whistleblower Protection Act.  The Federal Circuit concluded its decision by recognizing the important role that whistleblowers play in our country:

The laws protecting whistleblowers from retaliatory personnel actions provide important benefits to the pub- lic, yet whistleblowers are at a severe evidentiary disad- vantage to succeed in their defenses. Thus, the tribunals hearing those defenses must remain vigilant to ensure that an agency taking adverse employment action against a whistleblower carries its statutory burden to prove—by clear and convincing evidence—that the same adverse action would have been taken absent the whistleblowing. ...

Congress decided that we as a people are better off knowing than not knowing about such violations and improper conduct, even if it means that an insubordi- nate employee like Mr. Whitmore becomes, via such disclosures, more difficult to discipline or terminate. Indeed, it is in the presence of such non-sympathetic employees that commitment to the clear and convincing evidence standard is most tested and is most in need of preservation.

Dinerstein, a lawyer at Public Employees for Environmental Responsibility (PEER), this victory is a remarkable accomplishment. Dinerstein also represented whistleblower Teresa Chambers.  Chambers has been reinstated to her position as Chief of the U.S. Park Police after winning a decisive victory from the Federal Circuit last year. As Dinerstein explained on Honesty Without Fear this week, the Chambers opinion was more narrowly crafted to help Chambers without changing too much precedent.  Whitmore's decision is a sweeping opinion that rejects the limitations of past Federal Circuit decisions, requires MSPB judges to conduct full hearings with all the relevant witnesses, and enforces the "clear and convincing" standard for the agency's burden.

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The Alaska Dispatch published a story yesterday that reveals how the Federal Bureau of Investigation (FBI) condones misconduct and punishes those who speak out for the truth. The story by investigative reporters Amanda Coyne and Tony Hopfinger is called, "Why is the lead agent in the botched case against Ted Stevens still working for the FBI?" The lead agent in question is Mary Beth Kepner.  The whistleblower is Chad Joy, who was Kepner's partner during the 2008 Stevens investigation.  In an eight page whistleblower disclosure, Joy alleged that Kepner (1) hid information that Stevens' legal team should have been entitled to review, (2) leaked grand jury testimony of a government witness, (3) didn't document interviews, (4) acted inappropriately with sources, and (5) failed to properly document for a judge an application for a wire tap. Joy alleged that the prosecution also failed to disclose evidence and transported a witness back to Alaska to make him unavailable to testify at the trial. Coyne and Hopfinger reference a newly released Department of Justice report that confirmed Kepner's misconduct in the Steven's investigation. The report is dated August 2011. Kepner is still on the job at the FBI.  

The Stevens' case was Joy's first case as an FBI agent.  "I don't want to be punished for coming forward," he wrote. In 2009, the FBI removed him from all criminal cases. Coyne and Hopfinger say this, "effectively end[ed] his career." In early 2010, he resigned. Meanwhile, the U.S. Attorney's office in Anchorage, Alaska, launched an investigation led by Frank Russo. Russo found that Kepner's lapses were minor, and then nitpicked Joy's work.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center, told Coyne and Hopfinger that Russo's investigation into Joy's complaint was illegal. Kohn explained that  procedures require investigations to be forwarded to the Inspector General for the Department of Justice. DOJ officials refused to answer Coyne and Hopfinger's questions about the Russo investigation.

"This all very troubling. If someone blows [the whistle] on an issue, they are going to face retaliation," Kohn said. "Part of the defense is always to discredit the witnesses. That's why it's necessary to take the whistleblower case out of the hands of the locals. Kohn called for the Inspector General to look into Joy's original complaint and begin an investigation into how the complaint itself was handled.

FBI rules bar a supervisor from taking retaliatory action against a whistleblower. Kohn said that because Joy's whistleblower memo helped trigger the investigation -- one that ultimately led to Stevens essentially be exonerated -- the review of the charges and the decision to take him off of criminal cases was a "retaliatory action."

Former FBI agent and NWC board member Jane Turner also suffered retaliation. She blew the whistle on agents who took mementos from Ground Zero following the 9/11 terrorist attacks. She won a jury verdict against the FBI over her treatment.
Turner said that agents who violate the FBI's code of silence are undercut and isolated. "They do everything they can to get you to quit" she said.

When you blow the whistle on the FBI, "it's death by a million paper cuts," she told Alaska Dispatch.

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An assistant professor at Middle Tennessee State University has launched a website to recruit participants for her study of government whistleblowers and reporters who use whistleblowers as sources. Dr. Cary A. Greenwood, APR, Fellow PRSA, is a former corporate and government public relations manager who knows somthing about the problems of government whistleblowers. If you are a government whistleblower who is willing to be interviewed for an anonymous study about the impact of whistleblowing on your relationship with your government agency, or if you are a reporter who has used whistleblowers as sources, please contact her at cary.greenwood@mtsu.edu. You can also review her credentials.

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Last week, the National Whistleblowers Center filed a motion for preliminary injunction under the Freedom of Information Act in U.S. District Court in DC. The motion has been filed in order to get the FDA to release all documents pertaining to their illegal surveillance of employees’ private email correspondence. NWC has a limited number of documents that show the FDA conducted special targeted monitoring of employees who blew the whistle on misconduct and inappropriate approvals of unsafe medical devices. The FDA activated spyware on whistleblowers’ work computers to spy on their password protected Gmail-to-Gmail correspondences to Congress, the Office of Special Counsel and other oversight authorities.

According to Lindsey Williams, Director of Advocacy and Development for the National Whistleblowers centre, “It is critical that the FDA immediately release the documents related to their illegal spying program. The program has created a chilling effect throughout the federal government. Federal employees must feel free to report their concerns to Congress and OSC.”

As per preliminary injunction rules, the judge must hold a hearing within the next 20 days and rule shortly there after.

*Abisola Ojikutu (a NWC intern) drafted this posting

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On May 22, 2012, the No FEAR Coalition honored three whistleblowers and our own Richard Renner, who serves as the Legal Director and Secretary of the National Whistleblowers Center. The award for Renner recognized his advocacy for whistleblowers and his pro bono work. Appropriately the awards ceremony was held at the Martin Luther King, Jr. National Memorial. Renner, who has a long record of service for civil rights issues, received his award at the entrance to the memorial of the revered civil rights leader.

During the ceremony the No FEAR Coalition also honored three other whistleblowers. Dr. Marsha Coleman-Adebayo, founder of the No FEAR Coalition (and a Board Member of the National Whistleblowers Center), presented awards to Dr. Margaret Flowers, a pediatrician, single payer advocate, organizer of Occupy Washington DC and co-director of ItsOurEconomy.US.  Alease Wright, former National Federal Women’s Program Manager at the U.S. Environmental Protection received an award for advancing the rights of women and involvement in community activities for women and youth throughout her career. Ms. Wright was victimized by EPA, but continued to maintain her integrity and commitment to others. Alicia Dabney, an employee of the U.S. Forest Service received an award for speaking out against sexual assaults by supervisors in that Service.

Before beginning the event Dr. Marsha Coleman-Adebayo led a demonstration in front of the memorial, chanting “No justice, no peace!” This was primarily in protest to the retaliation of federal agencies against whistleblowers, and the agencies’ inefficiency in handling the outrageous number of discrimination and retaliation claims pending in their offices of civil rights. Some speakers, for example, mentioned they had cases pending since 1989. This was an inspiring crowd of whistleblowers and whistleblower supporters that gathered at the MLK Memorial. They were loud and clear that they were not scared to stand up for justice, and were definitely not scared to let their voices be heard. Matthew Fogg spoke about his whistleblowing at the U.S. Marshals Service. Melissa Seaver spoke about continuing federal discrimination against Native Americans, and about losing her home to a Department of Agriculture foreclosure.

Photos by NWC interns Adrian Amaya and Andy Lugo, and Richard Renner. This blog post was written by Adrian Amaya.
 

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