Federal Circuit finally gets due process and "clear and convincing"
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.
Bob Whitmore worked as an economist for the U.S. Department of Labor for 37 years. His duties included enforcement of the rules that require employers to report workplace injuries and illnesses. OSHA uses this information to guide where enforcement action is needed, and to inform policy decisions. In 2005, Whitmore became concerned that management was allowing whole industries to under-report the injuries in their workplaces. He shared his concerns with reporters at the Oakland (California) Tribune who were investigating the injuries in construction of the Bay Bridge. Whitmore spoke out against an industry practice that rewards workers for not reporting injuries. Whitmore also served as a witness for an Asian woman who had an equal employment opportunity (EEO) complaint against OSHA management. During the next two years, Whitmore continued to speak out against OSHA acquiescence to industry under-reporting, and he suffered increasing conflict with his managers. His supervisor mishandled his leave balances and resisted an audit that would get the balance set straight. He reported illegal gambling by his supervisor and he suffered poor performance reviews. On July 10, 2007, Whitmore and his supervisor got into an argument over the leave balance. The supervisor ordered Whitmore to leave, and the two got into an argument. The supervisor spat on Whitmore (although there is now a dispute about whether it was intentional) and Whitmore made a conditional threat to to assault the supervisor (Whitmore later expressed remorse for that threat). Management placed Whitmore on leave during an investigation. OSHA management picked a former employee to conduct the investigation, and the conduct of the investigation suggested less than a commitment to find the truth. Soon, management got the investigator's report, but had already decided to fire Whitmore.
The Federal Circuit opinion makes clear that it found Whitmore's conduct to be insubordinate. This finding, however, served to strengthen the Court's holdings for whistleblowers. Even when there is no doubt that the whistleblower engaged in misconduct, the whistleblower should still win unless the agency proves, clearly and convincingly, that it would have taken the same action if the protected activity had never been considered. "Evidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion," the court says on page 24.
I wonder if the Federal Circuit judges are aware of the proposal contained in the Whistleblowers Protection Enhancement Act (WPEA), S. 743, that would end the Federal Circuit's monopoly on MSPB whistleblower cases and allow whistleblowers to appeal to the other courts of appeals. Could the Federal Circuit be making a "switch in time" to save its jurisdiction? Dinerstein thinks the effect of recent appointments by President Obama better explains the change in Federal Circuit philosophy on whistleblower cases. Whatever the cause, we can rejoice that the Federal Circuit is seeing the light and making it shine. Congratulations to Paula Dinerstein and Bob Whitmore.
Tune in today at 1:00pm EDT to 
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