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

These promises are easy to fulfill.  S. 372 can be amended on the Senate to make the law consistent with President Obama’s campaign promises – and consistent with the goal of providing real protection to federal employee whistleblowers.  

It is time for the White House to stop listening to those who benefit from whistleblowers being silenced.  President Obama must demand that his staff fully and immediately implement the promises he made to every American whistleblower during his campaign.

It is a promise that he must keep.  

President Obama stated that whistleblowers are the “watchdogs of wrongdoing” and should have “full access to courts and due process.”  The President must take a leadership role and ensure that the whistleblower bill that passes in the Senate is consistent with his campaign promises.

When the next disaster hits – and it turns out there was a whistleblower trying to warn the public before people were hurt – will President Obama be able to stand before the voters and say that he did his best, that he fulfilled his promise?  Or will he be accused of abandoning the courageous employees who tried to “do the right thing?”

These are extremely serious allegations, but let me explain how it works.  When the employee files a whistleblower claim the agency conducts the investigation.  The agency is empowered by the statute to render a credibility determination against the whistleblower.  The agency can make a finding that the employee is not trustworthy.  Such a finding in law enforcement or intelligence will mark the end of that employee’s career.

First, under the Supreme Court cases of Brady v. Maryland, 373 U. S. 83 (1963) and Giglio v. United States, 405 U. S. 150 (1972) if a law enforcement officer has issues related to truthfulness in testimony the prosecution in any criminal case is required to provide this information to the defense.  Therefore, these agency findings will be required, under constitutional law, to be submitted to the defense in any case where the employee may testify.  These types of findings on credibility will mark the end of an employee’s career as they will no longer be able to work on any cases that may require in-court testimony.

Second, a finding by an agency that an employee was not truthful or reliable will be forwarded to the security clearance office.  They security clearance will likely be reviewed and denied.  If an employee’s security clearance is revoked they will be removed from their position.

Third, a whistleblower who suffers a Giglio smear or has their security clearance revoked will face long-term consequences, including the inability to work in the private sector.  Essentially the ability to get another job in the intelligence or law enforcement area is gone.

Finally, the Title II has a masterful stroke if the employee appeals their adverse credibility determination to the newly created Intelligence Community Review Board.  The Board is statutorily given the ability to issue a final decision on the credibility and truthfulness of the whistleblower.  Under the statue, this finding must be made public and published to Congress.  The finding that will destroy a whistleblowers career is plastered in the public domain for anyone to see.

You may be asking yourself, isn’t the right to an appeal something good?

Under normal circumstances, yes, but not when Franz Kafka writes the law.  The appeals provision is as follows.  The whistleblower is not given the right to appeal before a court, they must appear before the Intelligence Community Whistleblower Board.  The Board is comprised of executives in the intelligence community and is prohibited from hearing testimony or admitting evidence.  Thus, when an agency discredits a whistleblower, they cannot present any new evidence to defend themselves.  The Board will render a final decision on credibility, which will be based solely on an agency created record.  They are prohibited under the statute from simply calling the whistleblower in and rendering their own decision on credibility.

So, is taking a whistleblower to this Board legal malpractice?  Yes.

The risk that any employee faces in appearing before the Board is just too great.  The employee should avoid these procedures at all costs.  Given the track record of the FBI and other agencies in handling whistleblower complaints, to place a client’s hands in this process would be tantamount to professional suicide. There is nothing good in Title II as it is currently drafted.  It will be a sad day for the public’s right to know, oversight and accountability, and basic fair play for the Senate to ever approve such a bill.

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NWC Executive Director Stephen M. Kohn has asserted in the 12-part blog series entitled “What’s Wrong With The Senate Whistleblower Bill?” that the “when read together, the numerous ‘poison pill’ provisions inserted into S. 372 all but guarantee that very few, if any, federal employee cases will ever be removed to district court for a real trial.”

On the other hand, according to a news media report, the White House and members of the Senate including Senator Daniel K. Akaka (D-HI) assert that the Senate bill would dramatically improve protections for federal employees and give whistleblowers, like Bunny Greenhouse, access to federal court.  

This assertion is wrong, however.

The Senate bill limits access to jury trials to employees who suffer a major personnel action as defined by Section 7512 of the Civil Service Reform Act (5 U.S.C. § 7512).  This means that a whistleblower must suffer a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less (there are additional limitations to these five actions) in order to potentially receive a jury trial in federal court.

In Ms. Greenhouse’s case, a federal court has already ruled that she did not suffer a major personnel action as defined by Section 7512.  A copy of the Court's ruling is linked here.  This ruling directly contradicts the exaggerated claims by the White House and proponents of the Senate bill about the true scope of the bill’s jury trial provisions.  

It is clear that Ms. Greenhouse would not qualify for the right to jury under the Senate’s proposed whistleblower bill unless the Senate bill is changed to remove the limitation to jury trials for only those cases involving major personnel actions.

So, the question is what do you think will happen?

My opinion is that federal agency employers will just get “smarter” about how they retaliate against a whistleblower.  They will avoid the list of actions that could potentially expose them to real consequences – a jury trial in federal court.  They will suspend a whistleblower for 13 days instead of 14 days.  They will transfer employees to another position outside their area of expertise without a reduction in grade or pay.  There are many ways that an employer can create a hostile working environment and silence a whistleblower.  The only way to truly protect whistleblowers is to prohibit any retaliation against a whistleblower.

I urge you to read Bunny’s letter and get informed about the provisions in the current Senate bill.
 

That’s right.  The Director of the FBI can simply order the dismissal of any whistleblower case filed by any FBI employee.  End of story.

I know this sounds radical, but Section 121(e) (Page 56) grants these powers to the agency directors!

This radical grant of power to the agencies accused of wrongdoing is one of the most obvious manifestation of the deficiencies in the Senate bill.  The national security whistleblower provisions are not designed to protect whistleblowers.  They are designed to ensure that no whistleblower case is ever filed, and if it is filed, that the whistleblower will lose – not just their case, but potentially their security clearance and their ability to ever work in law enforcement or other security areas again.

The fact that the directors of each agency covered under the national security whistleblower provisions are granted this extraordinary power is simply the last step in a process that undermines whistleblower protections.  

It is unacceptable to create a process that grants the agency embarrassed by the whistleblower’s disclosure the authority to summarily and without any judicial review throw out a whistleblower’s case.

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The right to federal court in provided in the House version of the bill and recommended by the GAO does not exist in S. 372.  This not only undercuts essential due process rights, but also creates an atmosphere where the intelligence agency can retaliate against the whistleblower knowing that the employee will never be able to have his or her day in court.

Access to federal court remedies is the single most effective check on any government agency’s propensity to try to silence a whistleblower.  Instead of providing court access, the Senate bill creates an Intelligence Community Whistleblower Protection Board that only purports to be system of review.

The Board is comprised of intelligence agency officials, not administrative judges, and is not subject to the minimum due process requirements of the Administrative Procedures Act.  The Board does not have the authority to hold hearings or interview the whistleblower.  However, the Board is given the authority to determine a whistleblower’s credibility solely on the basis of the recorded created by the agency that retaliated against the employee.  

Second, the Inspectors General are stripped of their responsibility to investigate or remedy a whistleblower retaliation case.  Instead, the power to investigate whistleblower cases is vested directly with the agency that retaliated against the whistleblower in the first place. There is not even a pretext of independence.  If you blow the whistle against the CIA, it is the CIA that will look into your case.  

Third, the due process protections afforded whistleblowers under the current Whistleblower Protection Act do not exist.  Under current law, the Office of Special Counsel investigates whistleblower claims.  Because of abuses within that office, the contents of these investigations remain protected by the Privacy Act.  Only the employee can consent to the release of the findings.  Why?  In the past, a whistleblower would go to the Special Counsel.  The Special Counsel would draft a report critical of the whistleblower. The agency could and would use the report to discredit the whistleblower and would effectively end that employees career.

In 1989 that process was reformed.  The Special Counsel report could only be provided to the employee, who would have the ability to keep the report confidential.  

Not so under the new Senate legislation.  The agency itself will conduct the investigation and issue the report.  The report is not confidential, and can be used to justify further retaliation against the employee.  

Forth, the agency is vested with the power to draw “credibility” determinations against the whistleblower.  Thus, the agency can reach a finding that the employee is not credible.  This finding will not only be used to defeat the whistleblower case, but will be sent over to the security clearance office.  An employee who is found not “credible” will very likely lost their security clearance and with that their reputation and ability to even obtain work in law enforcement or security-related agencies.

Fifth, the adverse credibility determination is not subject to any meaningful appeal. The Board can only reach a ruling on the credibility of a whistleblower based on the record created by the very agency that retaliated against the employee!  The Board is prohibited from even talking to the whistleblower and reaching its own credibility finding.

For example, if the CIA makes a finding that a whistleblower is not credible, and the whistleblower files an appeal of that finding, the Intelligence Community Whistleblower Protection Board is prohibited from taking any testimony from the whistleblower in order to rebut the adverse agency finding.

Sixth, the agencies can introduce secret evidence in a whistleblower case against the employee, and the employee is prohibited from ever learning what that evidence is.  Thus, an employee can lose his or her case based on secret evidence that they are never able to rebut.  

Seventh, the law creates a short sixty-day statute of limitations for filing national security whistleblower claims.  The current Whistleblower Protection Act contains no such statute of limitations.  Such a short filing period will result in many cases being dismissed as untimely filed.  Given the other problems with the law, that may end up being a blessing to most workers, who will not have to incur additional attorney fees simply to have the agency that fired them write a report attacking their credibility!

The bottom line is that the provisions set forth in Title II of S. 372 are anti-whistleblower in nature, and represent a serious setback for all national security whistleblowers.
 

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Title II of S. 372 (Page 38) completely ignores the findings of the General Accounting Office (GAO).  The GAO conducted an in-depth review of employment-protections for employees at the CIA, the NSA and the Defense Intelligence Agency. These employees were excluded from protection in the Civil Service Reform Act of 1978.  The reason for this exclusion was the issue of classified information, and whether permitting these employees access to administrative or judicial remedies could result in the improper release of classified information, and thereby harm national security.

The GAO reviewed how these intelligence agencies handle Title VII cases (i.e. cases filed with the EEOC alleging race, sex and other forms of discrimination).  Under Title VII, these employees are allowed to take their retaliation cases to a jury trial in federal court.

After a systemic and in-depth review, the GAO concluded that national security employees could have full civil service protection, and could have their employment claims adjudicated in federal court, without any threat to national security. The GAO concluded that there were already in existence agency-controlled methods to prevent the release of classified information in employment cases, and that national security employees could have full civil service protection.

The Senate Committee and the White House acted as if this report never existed.

The NWC provided the GAO report and an explanation of the report to White House and Senate Committee staff.  Not one objection was made by either the White House or Senate Committee staff to the findings of the GAO.  This was probably due to the fact that the GAO report completely debunked the argument that national security would be endangered if national security employees were given meaningful whistleblower protection.  They had no legitimate reason to deny national security employees the protection they have long deserved.

However, despite the undisputed facts set forth in the GAO report and President Obama’s campaign promises, the White House introduced a legislative proposal that ignores the GAO findings and completely guts all national security whistleblower protections.  The Senate approved the White House proposal.

Tomorrow we will learn why the national security whistleblower section in S. 372, if passed, would constitute one of the most anti-whistleblower laws ever enacted into law by Congress.
 

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Under the law compensatory damages must be proven – they are not like punitive damages, which are designed to punish a wrongdoer.  Instead, they are part of the “make whole” remedy, and are designed to compensate employees for actual and proven losses for emotional distress, loss of reputation, physical injuries and other demonstrable non-wage damages often suffered by a whistleblower.  

The key to all employment laws is the “make whole” idea that an employee should not suffer because he or she engaged in protected activity (i.e. made a disclosure, in the public interest, concerning waste, fraud or abuse).   Compensatory damages are designed to compensate an employee for actual and demonstrable harms.  If an employee can prove that he or she had more then $300,000.00 in compensatory damages, the employee should be entitled to obtain all of the relief he or she needs to be made whole.

The caps contained in S. 372 set a dangerous and bad precedent for all future whistleblower laws, and need to be removed from the bill before it is voted on by the Senate.

Burden of Proof:  Since the late 1980’s it became apparent to whistleblower supporters that the standard burden of proof in civil law cases was difficult for whistleblowers to meet.  The agency which employed the worker controlled access to most of the personnel information relevant to a case, many witnesses were either under the control of the agency, or were afraid to testify against their bosses at trial and the agency controlled the timing of the case (i.e. the agency could decide it wanted to get rid of the whistleblower, and then spend a year collecting negative information, and spring the termination decision on the employee only after it had carefully concocted a case).  Consequently, Congress changed the burden of proof under all of the modern whistleblower laws.  In order to justify the termination of a whistleblower, the agency would have to prove, by “clear and convincing evidence” that it would have made the same employment decision, even if the worker had never blown the whistle.  

S. 372 takes a major step backward on this issue.  The Senate Homeland Security Committee adopted the recommendation of the White House to abolish this burden of proof in any case in which an employee somehow gets into federal court.  See Section 117(a)(5)(C)(iii) (Page 33).  In other words, if the employee somehow jumps over each and every roadblock and files a claim in federal court, the employee will discover another painful fact:  their case is much harder to prove.  The burden on agencies to prove the termination was justified by clear and convincing evidence has been lifted and replaced with the lower standard of “preponderance of the evidence.”

Please see Professor Robert G. Vaughn’s testimony in front of the Senate for a more complete explanation of burdens of proof.

Appellate Review:  For years, as reflected in numerous public statements and comments/testimony before the relevant Committees, both the House and the Senate have recognized that it was a terrible mistake granting exclusive appellate review to a special federal court whose jurisdiction is primarily a review of trademark and copyright infringement cases.  This special court, known as the Federal Circuit, lacked any expertise in employment or labor disputes, and had no sympathy or understanding of whistleblower law.   Both the House and the Senate Committees reviewed the case precedent rendered by the Federal Circuit and concluded that granting this court exclusive jurisdiction over whistleblower claims was disastrous.  

Significantly, the Federal Circuit has exclusive control over only cases filed by federal employees.  All other whistleblower laws (and all other federal employment laws) are heard in normal appeals courts.

The Senate bill properly ends the Federal Circuit’s monopoly over appellate review.  However, the bill contains two provisions that could undermine this reform.  First, the bill permits the Office of Personnel Management to file appeals of federal whistleblower claims.  See Section 108(b).  OPM can file the appeal in the Federal Circuit.  Because of this loophole, employees may find themselves before the notoriously anti-whistleblower Federal Circuit, even though Congress had intended to break that Court’s monopoly.  

Second, there is a five-year sunset provision.  The problems with this sunset provision are explained below.

Sunset: The progressive features in the Senate bill that allow a whistleblower access to federal court (See Section 117(b)(1)) and all circuit review (See Section 108) have a five-year sunset provision.  This means that after five years the right to go to federal court and have any circuit review the case automatically disappears.  This makes no sense.  The record in the House and Senate Oversight Committees unquestionably supports the need for these two provisions and they should not be subjected to as sunset provision after five years. The sunset provisions could result in federal employees losing these two important procedural right five years after the bill is passed.


All of these problems must be fixed before the Senate votes on the final legislation.
 

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As outlined in the blog postings 1, 2, 3, and 5, between the new limits on the definition of protected disclosure, the extremely narrow class of cases permitted to be filed in federal court, the 270 day rule, and the summary judgment rule, it will be virtually impossible for an employee to successfully meet the criteria established in the Senate Bill for filing a claim in federal court.

The Senate Bill does contain a provision in which a federal employee can ask the MSPB to certify their case for a federal court trial before they undergo the expensive full MSPB proceeding. See Section 117 (a)(k)(4)(A)(ii)(1) (Page 29).  However, this certification provision is a complete illusion. It requires the MSPB to admit that a case is too complex for the MSPB to handle.  It will be extremely rare for that certification to happen.  

Additionally, an employee has no practical method to appeal a ruling by the MSPB denying certification and court access.  First, such appeals cannot be immediately filed.  The employee will be forced to spend money fully litigating their case before the MSPB, and can only appeal the denial after the employee loses their case.

Second, the standard of review contained in S. 372 is the highest standard applicable in law.  Instead of a de novo review of the law or facts, the courts are required under the law to defer to the rulings of the MSPB, and can only reverse such a ruling if the decision is found to be “arbitrary, capricious or an abuse of discretion.”  This standard is almost impossible to meet.  Thus, a ruling by the MSPB denying an employee the right to file his or her claim in federal court is, for all practical purposes, unreviewable.  

President Obama promised all federal employees full access to federal court when adjudicating their whistleblower cases.  In one such statement, published on the official Obama transition team web site, the President-Elect stated:

Often the best source of information about waste, fraud, and
abuse in government is an existing government employee
committed to public integrity and willing to speak out. Such
acts of courage and patriotism, which can sometimes save lives
and often save taxpayer dollars, should be encouraged rather
than stifled. We need to empower federal employees as
watchdogs of wrongdoing and partners in performance. Barack
Obama will strengthen whistleblower laws to protect federal
workers who expose waste, fraud, and abuse of authority in
government. Obama will ensure that federal agencies expedite
the process for reviewing whistleblower claims whistleblowers
have full access to courts and due process.

S. 372, as it is currently reads, does not fulfill that promise.  It creates a false hope, and then cheats federal workers out of the rights for which they were promised and for which they need.

 

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One of the main purported benefits of the current MSPB process is its streamlined procedures.  Under the current law, employees are entitled to a hearing before the MSPB if they can establish jurisdiction.  The employees avoid the considerable costs associated with defending a traditional summary judgment motion and instead may address those issues at the hearing on the merits of the case.

Why is this summary judgment procedure a bad development?   Here is what will happen in practice.  In almost every case the agency will file for summary judgment. In a motion for summary judgment the judge decides, without a full trial, that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  If the judge grants the agency’s motion the whistleblowers case will be dismissed.

The new summary judgment provision forces the employee to conduct expensive discovery simply to defeat the motion.  Given the past substantive and procedural decisions issues by MSPB “judges,” the overwhelming majority of these motions will be granted and the whistleblower cases will be dismissed without there ever being a hearing.  Over 90 percent of the summary judgment decisions will be against the whistleblower. [Note:  MSPB judges are not real judges.  They are not subject to any judicial confirmation process and do not have to be attorneys.  Their appointments are not reviewed or approved by the Senate Judiciary Committee.]

Given the new 270 day rule for completing adjudications before the MSPB, summary judgment rulings will become commonplace.  

This rule is a major setback for employees.  First, agencies will not settle cases until their summary judgment motions are filed.  The pressure to settle a case shortly before a hearing will be eliminated because agencies will wait to see if the case is dismissed before a hearing is even set.  

Second, given the 270-day rule for completing adjudications, employees will be forced to comply with short deadlines in responding to summary judgment motions.  The agencies will be able to compile an evidentiary record against the employee in short period of time that the employee will not have the time to contradict.

Third, Section 117 (a)(k)(4)(A)(ii)(1) (Page 29) provides that an employee can request a certification to federal court within the first 30 days of filing a complaint with the MSPB (Please read tomorrow’s posting for more explanation of this section).  In practice, as soon as employee requests a certification for federal court the employer will file a summary judgment motion in order to try to dismiss the case at the MSPB level.  This allows the agencies to convert the entire MSPB process into a costly and overly prejudicial summary dismissal action.

The summary judgment provision tilts the procedures radically onto the side of the agencies, and all but guarantees that cases will be completed within the 270 day time period necessary to block access to federal court.  

Americans need to ask the Senate why they inserted such an anti-whistleblower provision into a law purportedly designed to “enhance” whistleblower rights.  The summary judgment provision must be removed from the Senate Bill.

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