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 public, yet whistleblowers are at a severe evidentiary disadvantage 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 insubordinate 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.