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

New MSPB case statistics have implications for pending whistleblower legislation.

Things just keep getting worse for federal employees and whistleblowers who challenge adverse actions taken by federal employers. Charlotte Yee recently posted on the Government Accountability Is A Citizen’s Responsibility blog the official Merit Systems Protection Board (MSPB) Fiscal Year 2008 (Oct. 2007 – Sept. 2008) statistics for all non-benefit cases decided by MSPB administrative judges. The results are, once again, astoundingly biased in favor of the federal employers.

The MSPB judges ruled in favor of employees a total of 1.7% of the time out of a total caseload of 4,698 cases nationwide.

In other words, if you are a federal employee and have a whistleblower reprisal claim or otherwise challenge serious discipline or a termination before the MSPB you have more than a 97% chance of losing your case (even after factoring in the cases that settle). 

Even though the MSPB continues to utterly fail to be a fair arbiter of federal employee cases, the Senate is proposing to give the MSPB more power to decide cases in favor of federal employers. In S. 372, the so-called Whistleblower Protection Enhancement Act, the Senate is giving the MSPB new summary judgment procedures (only in whistleblower cases). This will make it even more difficult for employees to prevail in whistleblower cases because unlike cases filed in federal court, the MSPB has very limited discovery tools available.   Summary judgment is a procedure that is available in court cases, under the Federal Rules of Civil Procedure. However, those federal rules for court cases also provided for broad discovery. Not so at the MSPB. If enacted, the new MSPB summary judgment procedures will result in a more efficient way for the MSPB to dispose of cases and rule against federal employees without holding a hearing. 

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The Australian Law Reform Commission recommended that national security whistleblowers should face criminal sanctions only when their disclosures, "damage national security, interfere with an investigation and endanger someone's life or safety." The Commission also recommended that a new law create an offense of unauthorized disclosure only in these circumstances.

Today Australia's Attorney-General, Robert McClelland, tabled the recommendation in Parliament so that the government could review it.  The recommendation follows a 2005 disclosure by retired customs officer Allan Kessing about security breaches at Sydney Airport. Kessing was charged with disclosing information without due authorization. He made his disclosure to an opposition member of Parliament and it was published in a periodical two years later. The Herald Sun reports on the action in today's edition.

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A number of prominent national security whistleblowers and advocacy groups released a letter today opposing the Whistleblower Protection Enhancement Act (S. 372) until corrections are made to the national security provisions. The letter, addressed to Senators Joseph Lieberman and Susan Collins of the Senate Committee on Homeland Security explains how the bill rolls back existing whistleblower protection and expands the state secrets privilege. This bill breaks promises made by both President Obama and the Senate to strengthen whistleblower rights. The letter makes it clear that these whistleblower advocates are not willing to risk sending these dangerous national security provisions to conference before they are fixed – they must be corrected now.

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Today’s Politico article entitled “Critics question whistleblower bill” highlights the broken promises of the White House and Senate on national security whistleblower protection. The NWC has repeatedly pointed out the serious flaws in the national security provisions of the Whistleblower Protection Enhancement Act (S.372). Politico points out that Senator Daniel Akaka (D-Hawaii) continues to stand behind these dangerous provisions and does not take issue with the fact that this new Intelligence Community Whistleblower Protection Board would not have the power to award a whistleblower his or her job back. The Senate Homeland Security Committee promised changes would be made to the bill’s flaws, but changes have not come. The House version of the bill (H.R. 1507), however, allows whistleblowers access to federal courts and is fully supported by the NWC. Senate Intelligence, Judiciary, and Homeland Security Committee are set to meet this week, but are "unlikely" to address correcting the repeal of existing FBI whistleblower protections. Prominent FBI whistleblowers recently issued letters stressing the importance of national security whistleblower protection and urged the bill to not be passed in its current form. Support their cause and TAKE ACTION! to stop the passage of this bill.

*Philip Barrett (a NWC intern) contributed to this posting

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Uganda's The New Vision reports that the country's Parliament is debating a Whistleblower Bill to protect disclosures of public and private corruption.  Legislators are debating whether protected disclosures should be made to regional officials or to national offices.  Perhaps someday they will protect all disclosures of corruption.

Meanwhile, the same article reports that a tax whistleblower is pressing for payment of a promised reward.  This whistleblower helped the government collect 3.8 billion schillings (about $1.5 million) in taxes between 2002 and 2005. However, he still has not received his entitlement of ten percent (10%).  He has filed a court claim for payment, and as a result, his identity has been disclosed.  The New Vision reports that he is now in "grave danger."

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We just received a lovely visit from Keiko Nagai Ito and Tomoshige Nakamura of CrossIndex Corp. The are reviewing whistleblower protection laws from around the world in preparation of Japan's 2011 review of its Whistleblower Protection Act.  Pictured here are Phil Barrett (intern with the National Whistleblowers Center), myself, Keiko Nagai (consultant to CrossIndex Corp.), Tomoshige Nakamura (CEO of CrossIndex Corp.) and Michael D. Kohn (president of the National Whistleblowers Center).

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The Senate version of the Whistleblower Protection Act (S.372) contains troublesome provisions that actually reduce whistleblower rights but may be passed soon due to a Senate tactic called “hotlining.” When a bill is “hotlined” in the Senate, there is no roll call vote, no debate, no amendment process, and the bill is passed after a certain amount of time as long as no Senator objects. Even more outrageous, in some instances, the “hotline” notification may not even reach some Senators! Although many provisions of S.372 enhance whistleblower protection, there are many “poison pills” that must be corrected, including these:

• the strong FBI whistleblower protection law is repealed (page 46)
• agency heads (covering over half the federal workforce) may unilaterally fire a whistleblower with no administrative or judicial review (page 73)
• the agency that fires a whistleblower is given exclusive power to investigate on whether that agency broke the law (page 70)
• gives the federal agency the ability to request the dismissal of a case without giving the employee a hearing or jury trial (page 57)

The House of Representatives version of the bill (HR.1507) enhances whistleblower protection and the National Whistleblowers Center fully supports the passage of the House version.

It only takes one Senator’s demand that these issues be fixed in order to stop this Trojan horse from destroying existing whistleblower protections. That Senator can be yours. Please TAKE ACTION and contact your Senator today!

*Philip Barrett (a NWC intern) contributed to this posting

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Iceland’s economy has been ravaged by the international financial crisis. Rage against corruption sparked protests.  Iceland's legislature is now trying to resurrect their economy by ensuring that citizens will have free speech rights that will spur economic growth. On February 16 members of the Icelandic Parliament proposed a bill which could make Iceland a “journalist haven.” It would also provide protections for whistleblowers and other sources who expose fraud. Members of Parliament are obviously keen to the role fraud played in the current crisis. National Public Radio reports on the leadership of the Icelandic Modern Media Initiative (IMMI) in calling for a slew of reforms.

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Sen. Charles Grassley (R-Iowa) has introduced a bill that will make changes to the False Claims Act (FCA) in response to court decisions that limited the rights of whistleblowers.  The main features of S. 2964 (introduced January 28, 2010) would add administrative procedures designed to make it more difficult for crooks to set up phony medical providers to submit false bills to Medicare and Medicaid.  However, in a third branch of the bill, Sen. Grassley proposes to fix a writing error introduced last year to the anti-retaliation provision. Sen. Grassley also proposes a nationwide two-year statute of limitations for retaliation claims.  The national statute of limitations would address the Supreme Court's holding in Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409 (2005). The Supreme Court said that the FCA's six-year statute of limitations did not apply to the FCA's whistleblower protection claims.  Whistleblowers would have to respect the statute of limitations in their home state instead. (Karen Wilson's retaliation claim was then dismissed because she missed North Carolina's three-year statute of limitations.) Sen. Grassley also proposes to expand the definition of "original source" so that a whistleblower can still receive rewards if he or she has, "knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and has voluntarily provided the information to the Government before filing an action . . .." The Senate has referred S. 2964 to its Finance Committee.

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Yesterday, Transparency International (TI) released a practical guide for combating corruption in relief and reconstruction efforts.

“Disasters like the catastrophe in Haiti highlight the absolute necessity of ensuring that the funds and supplies allocated actually reach those in need. Corruption in emergency aid is a matter of life and death. Stopping and preventing corruption should be a strategic priority for the humanitarian community,” said Christiaan Poortman, Global Programmes Director at TI.

Strong whistleblowing mechanisms are recommended as the best way to stop corruption and ensure that humanitarian aid gets where it needs to go.  The report states that a “confidential and independent mechanism (whether internal or exernal) helps create an environment intolerant of corruption, in which staff feel safe to blow the whistle without fear of reprisal.”  TI recommends that whistleblowing actually be made a staff duty and if an investigation finds corruption, the agency must take action to ensure that staff trust the whistleblowing process to correct their complaints (Pages 19-20).

For entire report please click here.

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