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

In the Drake decision, the Federal Circuit reaffirmed the right of federal employees to blow the whistle on any violation of law.  The poison pill inserted into S. 372 reverses the Drake decision.

Significantly, in one of the handful of positive Federal Circuit decisions, that Court has rejected numerous requests from the executive branch that the authority to dismiss cases summarily be judicially created.  The Court recognized that in 1978, when the Civil Service Reform Act was originally passed, this was a big issue and was hotly contested.  The whistleblowers prevailed at that time.  It would be a shame to lose that hard earned victory in an "Enhancement" act. See Crispin v. Dept. of Commerce, 732 F.2d 919 (Fed. Cir. 1984). The summary dismissal provision, section 118 is linked here.

2. New Powers for the MSPB Without Structural Reform.  S. 372 contains no substantive provisions to reform either the Office of Special Counsel or the MSPB.  These two gatekeeper offices, which have a notoriously bad record on whistleblower cases, remain intact.  Instead of reforming these departments, S. 372 gives significant new authorities to the MSPB, including the power to dismiss cases on the basis of agency affidavits alone, and the power to act as the gatekeeper for court access.  Any meaningful reform of the WPA process should have included substantive corrections to the OSC and MSPB. Recommendations that the MSPB be required to utilize statutory Administrative Law Judges, in place of the current "administrative judges" were rejected.

3. A New Reactionary Definition of Protected Disclosure.  Consistent with other whistleblower laws, the WPA currently protects employees who disclose violations of law, rule or regulation."   This is an unqualified right at was affirmed by the U.S. Court of Appeals for the Federal Circuit in Drake v. AID.  The Drake case is one of the very few cases in the 32-year history of the Civil Service Reform Act in which an employee actually won his case in the Federal Circuit and the agency was ordered by the court to take corrective action.  S. 372 radically changes the definition of protected disclosures, permits agencies to fire employees who report actual violations of law and overturns one of the only good decisions ever to be rendered by the Federal Circuit.   The new definition of protected disclosure also conflicts with the fundamental Merit Systems Principles codified into law at 5 U.S.C. § 2301(b)(9) and the Office of Government Ethics implementation of Executive Order 12731.  See OGE, Standards of Ethical Conduct for Employees of the Executive Branch, Final Rule, 57 Federal Register 35006 (August 7, 1992).

This radical change to the definition of protected disclosure, which is unprecedented in any existing whistleblower law and which is not supported by any current federal court decision, was made in the following sections of S. 372 (which are linked here):  Section 101(a); Section 102; Section 110(b)(1)(A)(i)(I) and (B)(A)(i)(I), and numerous other sections.

4. No All-Circuit Review.  Since the reform efforts commenced, every advocate for fixing the current WPA process strongly urged that the Act be amended to permit "all-circuit" review of MSPB decisions.  Currently, only the Federal Circuit can hear WPA appeals, and every witness and every Member of Congress who addressed the issue soundly condemned that court's record in these cases.  All Circuit review was always viewed as a bottom-line demand. 

S. 372 does not achieve the goal of all-circuit review.  On its face it does not permit all-circuit review for all WPA cases, but limits such review to cases in which the WPA claim is not joined with claims related to other sections of the CSRA. (It is typical that WPA cases are joined with other civil service claims)  Section 108(b)(1)(B).  Second, the provision has terminates in five years, and their is no guarantee that it will be renewed.  Section 108(b)(1)B). 

However, the largest loophole in the all-circuit review procedure is an exception that swallows the rule.  The bill permits the Office of Personnel Management to have appeals filed in other judicial circuits transferred back to the Federal Circuit.  Section 108(b).

5. No Meaningful Access to Federal Court.  The supporters of S. 372 point to the provisions in the law that permit some WPA cases to be transferred to federal court for a jury trial as a landmark reform contained in the law.  However, this reform is illusory.  First, the MSPB is empowered to be the gatekeeper for federal court.  The MSPB must approve any initial application for court access, and the standards it must apply for permitting court access are strict.  Given the high standards on demonstrating a right to remove the case, and the reputation of the MSPB, few if any whistleblowers will ever have their case approved for court access.  Section 117(a), new provisions (k)(4).

Second, if the MSPB issues a final order of dismissal in a case within 270 days, the right to federal court access is terminated. Section 117(a), new provisions (k)(3(B). Given the new summary dismissal authority, the Board will not have a problem dismissing whistleblower cases well within the 270 day time period.  Moreover, the Administrative Judges in WPA cases have historically held whistleblowers to very strict time limits, that are often prejudicial to the employees (who lack resources and, because of the very low success rate before the Board, access to attorneys).  The new 270-day deadline will make the MSPB procedures even less employee-friendly than under the current, broken system.

6. The Bill Permits Policy-Based Censorship of Government Scientists.  Supporters of S. 372 have pointed to a provision of the law that prohibits censorship of government scientists as a major breakthrough for federal employee rights.  Again, a close reading of those provisions demonstrates that the opposite is true.  The bill actually would permit censorship of scientific papers and dissenting scientific opinion.  S. 372 explicitly excludes from the definition of protected activity dissenting policy positions advocated by government employees.  Section 102. Furthermore, the Act narrowly defines the circumstances upon which a government scientist can claim improper censorship.  Those circumstances are limited only to "censorship" that "relate(s)" to a gross "violation of law, rule or regulation," "gross mismanagement, a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety."  Sec. 110(b).   It will be very difficult for scientists who are being censored to meet this standard and obtain any relief.

7. The Bill Does Little To Aid in National Security-Related Disclosures.  S. 372 contains a very narrow right for employees to make classified whistleblowers to a limited committees in Congress.  This provision adds little to pre-existing law.  See Whistleblower Protection for Intelligence Community Employees; Reporting Urgent Concerns to Congress, 5 U.S.C. App. § 3, §8H.  The new procedures in S. 372 to protect intelligence agency employees from retaliation suffer from the same problems that exist for all other federal employees.

CONCLUSION

The Senate version of the Whistleblower Protection Enhancement Act (S. 372) is a bad deal for whistleblowers. It contains limitations on the right to protected activity and the right to court access that will set a dangerous precedent for other whistleblower laws.  Many of its positive features are thwarted by carefully drafted "fine print" that will negate, in practice, the ability of employees who report waste, fraud and abuse to obtain protection. 

Without major corrections to S. 372, most federal employees who are retaliated against for blowing the whistle will continue to lose their cases.  We call upon the House of Representatives to fix the bill when the House considers it.

The street crime-fighting record of Sheriff Wells was praised, but there were a number of allegations over the years that he mixed public and private business. Sheriff Wells was an advisor to Florida governor Jeb Bush. When George W. Bush appointed a new U.S. attorney, Paul I. Perez, Wells met with Perez to express his “opinion that Mr. Del Fuoco needed to be closely supervised.” According to the St. Petersburg Times “given the history of investigation into the Sheriff’s Office, Perez’s visit put him in a position where it could have appeared he was being influenced by Wells, an expert on legal ethics says.”

In 2002, Del Fuoco was still working on the sheriff’s case, but was spending most of his time investigating corrupt police officers in another city. So, when he discovered a black vehicle watching his home he assumed that it was as a result of that case. However, it was quickly discovered that a Manatee sheriff’s employee had run Del Fuoco’s tag numbers through the Florida Crime Information Center (FCIC) computer in order to get his home address and other personal information. Del Fuoco, concerned for his family, repeated asked Perez for protection, but received nothing for those efforts.

Out of frustration that the DOJ had done nothing to protect his family, Del Fuoco filed a lawsuit against the Sheriff and some of his employees for illegally accessing law enforcement data to retaliate against him for prosecuting Delta Squad members. The lawsuit “ helped poison Del Fuoco’s relations with supervisors, who felt he had acted rashly.” Del Fuoco’s lawsuit also helped spur more allegations involving the Manatee Sheriff’s Office to be reported to the U.S. Attorney’s Office. However, in May 2003, Del Fuoco was transferred from the criminal to civil division, all contemporaneous with filing a lawful complaint of whistleblower retaliation with the U.S. Office of Special Counsel (OSC). Del Fuoco considered his demotion to be in retaliation for filing the lawsuit against the politically connected sheriff. In fact, shortly after Del Fuoco was removed from the investigation into Sheriff Wells the investigation of Wells was dropped and the investigators were told that since Wells “swings a big bat,” there “would be no further investigations targeting him.” Del Fuoco resigned his position at the DOJ in August 2005.

Please click here to read a letter dated April 26, 2004 from Attorney Stephen M. Kohn to former Attorney General John Ashcroft detailing the improper and illegal harassment suffered by Mr. Del Fuoco and his family.

The National Whistleblowers Center hopes that the Senate Judiciary Committee conducts a full investigation into whether or not nominee Robert E. O’Neill retaliated against whistleblower Jeffery J. Del Fuoco for having the guts to stand up to a corrupt, politically connected sheriff. If the committee concludes that O’Neill illegally retaliated against a whistleblower, then they should not approve of his nomination.

Related Articles:

“Robert O’Neill nominated for U.S. attorney” St. Petersburg Times, June 9, 2010

“Was Manatee sheriff a target of prosecution or persecution?” St. Petersburg Times, March 29, 2008

“Former Manatee County sheriff merits closer scrutiny” St. Petersburg Times, April 4, 2008

April 26, 2004 letter from Attorney Stephen M. Kohn to former Attorney General John Ashcroft

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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The House of Representatives enacted these protections when it overwhelmingly passed H.R. 985 in a veto-proof, bipartisan manner, and again when it added these provisions to the stimulus bill.  However, both times the Senate failed to pass or agree to the strong protections twice enacted by the House.  

This year, in another bipartisan effort, Representatives Van Hollen (D-MD), Waxman (D-CA), Towns (D-NY), Braley (D-IA), and Platts (R-PA) have reintroduced this bill as H.R.1507.

While the House version of the bill is more inclusive, the Senate version, S. 372, lacks many key protections. The Senate bill currently lacks coverage for the hundreds of thousands of federal employees who participate in the global war on terror and oversee a budget well over $150 billion.

One reason typically cited for denying court access for all federal employees is the claim that it could create a national security risk. However, this is not true. In an objective and independent review, the General Accounting Office (GAO) saw "no justification for treating employees at [intelligence] agencies differently from employees at other federal agencies except in rare national security cases." There is nothing in H.R. 1507 that would permit a whistleblower to reveal national security secrets to the media or the courts, yet misinformation about extending full due process protections to national security whistleblowers is still pervasive today.  The GAO’s findings demonstrate these claims of risks to national security are a myth.

Recent revelations in the news media of numerous scandals involving the intelligence agencies (such as CIA assassinations, detainee abuse and torture and illegal wiretapping) once again show that the need to provide strong protections to all federal employees who blow the whistle has never been greater.  Had the real whistleblower protections contained in H.R. 1507 been in place it is unlikely that information about illegal wiretapping and assassinations would have been withheld from Congress.  However, by enforcing the code of silence upon FBI and intelligence employees and by failing to provide for strong anti-retaliation provisions for national security whistleblowers, the timely reporting of illegal conduct to appropriate law enforcement authorities and to Congress was prevented and the wrongdoing continued.

It is time for Congress to enact a true whistleblower protection act for national security and FBI employees that provides for court access and jury trials, as does H.R. 1507, so that FBI and intelligence agency employees do not have to choose between keeping silent and risking their livelihoods when they witness illegal conduct committed by their agencies.

The Senate bill also contains weaker provisions and fails to effectively extend court access and jury trials to protect federal employees who work outside the area of national security or intelligence.  

For example, Bunnatine Greenhouse, who was the highest ranking civilian contracting officer in the Army Corps of Engineers when she blew the whistle on Iraq contracting misconduct, has noted that she would not be entitled to a jury trial in federal court under the Senate bill.  Read Bunny Greenhouse's Letter.

In these times of record government spending, all federal employees, including those who work at the FBI and the intelligence agencies, need to be protected by a strong whistleblower law that includes the right to court access and jury trials.  Study after study has shown that strong protections from retaliation are what encourage employees to report fraud and other misconduct.

Who is going to tap President Obama on the shoulder again and remind him that he needs to keep his promise to America’s whistleblowers too?
 

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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