Whistleblower Protection Blog

Will Supreme Court take a swipe at the "cat's paw"?

Richard Renner — Thu, 18 Mar 2010 13:11:01 -0500

A growing trend in employer attempts to evade liability for discrimination is to find a manager with no record of discrimination and use that manager to be the official "decision maker" for firing the employee. Civil rights and whistleblower advocates use the "cat's paw" theory to argue that the official decision-maker was just a "cat's paw" for the manager who really wanted the employee fired for an illegal reason. The U.S. Supreme Court is now poised to decide whether it will consider the validity and requirements for establishing that a decision-maker is a cat's paw. It invited the Solicitor General to file a brief on the issue. Solicitor General Elena Kagan has now filed that brief and it is an excellent explanation of why we need the cat's paw theory to prove illegal discrimination. Anyone who needs to prove employer knowledge of protected activity, or that animus by one official is connected to the decision-maker, should study this brief.

Vincent Staub worked at Proctor Hospital in central Illinois as an angiography technician. He was also a member of the U.S. Army Reserves. The department's second in command, Janice Mulally, was openly hostile to Staub for the inconvenience of scheduling technicians around his reserve duties. She assigned him extra shifts to work as "payback ... for everyone else having to bend over backwards to cover [his] schedule for the Reserves." Michael Korenchuk, the department head, was also critical of Staub’s military duty obligations. He called it “a b[u]nch of smoking and joking” and a “waste of taxpayers' money.” Mulally issued a warning to Staub ordering him to report to a supervisor whenever he left his work station. A few weeks later when Staub was at lunch, Korenchuk reported to the VP of Human Resources, Linda Buck, that Staub was not at his work station. Buck confirmed that the warning was in Staub's personnel file and fired him. Staub sued under the Uniformed Services Employment and Reemployment Rights Act of 1984 (USERRA), 38 U.S.C. 4301.

USERRA has an enhanced standard for proving retaliation against an employee's military reserve duties. Similar to the standard used in modern whistleblower laws, USERRA required Staub to prove that his military service was a "motivating factor" in the adverse action. 38 U.S.C. 4311(c)(1). If his succeeded, then the employer would have to convince the jury that it would have fired him anyway even if he had no military status.

The trial court instructed the jury that “[a]nimosity of a co-worker toward the [Staub] on the basis of [Staub’s] military status as a motivating factor may not be attributed to [the employer] unless that co-worker exercised such singular influence over the decision-maker that the coworker was basically the real decision maker.” The court also instructed that “[i]f the decision maker is not wholly dependent on a single source of information but instead conducts its own investigation into the facts * * * , [the employer] is not liable for a non-decision maker’s submission of misinformation or selectively chosen information or failure to provide relevant information to the decision maker.”

The jury found in favor of Staub and awarded $57,640 in damages. The hospital appealed and got the Seventh Circuit to reverse. The court emphasized that liability under the cat’s paw theory requires
“a blind reliance, the stuff of ‘singular influence.’” The Court of Appeals said that since Staub could not prove that Mulally had such "singular influence" over Buck, the judge should never have allowed the jury to hear what Mulally said about Staub's military service. Without this evidence, the Court of Appeals said the employer had to win. This appellate decision is Staub v. Proctor Hosp., 560 F.3d 647 (7th Cir. 2009).

Staub appealed to the U.S. Supreme Court. Last November, the Court asked the Solicitor General to submit a brief. This is traditionally an indication that the Court is interested in the case. Now that the Solicitor General has filed a brief asking the Court to accept the case, that bodes even better for Vincent Staub.

The Solicitor General notes that the Seventh Circuit's"singular influence" requirement is inconsistent with USERRA's "motivating factor" requirement. It undermines the enforcement of USERRA,
frustrating the congressional objective of “encourag[ing] noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service.” 38 U.S.C. 4301(a)(2). This argument connects the outcome to the remedial purpose of the law. This is the type of argument that has been absent from the Solicitor's office for too long, and is a breath of fresh air to read.

The Solicitor General's brief also cites the court to ten other appellate decisions that have allowed "cat's paw" liability to attach whenever the biased manager merely "influenced" the adverse decision. Only the Fourth Circuit has agreed with the Seventh Circuit's strict requirements. Hopefully, this outstanding brief will influence the Supreme Court to accept Staub's case and reinstate the jury's verdict. With this one swipe, the Supreme Court can put asunder this latest employer tactic to evade liability.

Staub's Petition for Writ of Certiorari

Solicitor General's Amicus Brief of the United States

Federal judge awards truck driver $153,870 plus reinstatement

Richard Renner — Tue, 16 Mar 2010 15:52:12 -0500

Federal Administrative Law Judge Daniel Leland issued an order yesterday reinstating truck driver Cynthia Ferguson to her job with New Prime, Inc. He also awarded her $26,601 in back pay, $2,269 in compensation for her personal property, $50,000 in compensatory damages, and $75,000 in punitive damages for conduct that "was both reprehensible and inimical to the purpose of the Act." That Act is the Surface Transportation Assistance Act (STAA) that protects truck drivers when they blow the whistle on safety violations.

Ferguson refused to driver her truck over the Donner Pass near Reno, Nevada, on December 25, 2008. Ferguson saw the weather and the hazardous driving conditions as she drove. After consulting other drivers, listening to radio weather reports and receiving reports from the State authorities advising against travel, Ferguson said that she was not going to drive through Donner Pass until weather and driving conditions improved. Her dispatcher got upset with her and recommended that New Prime, Inc., fire her. Prime then dispatched Ferguson to Springfield, Missouri, where a Prime management official, Jack Ewing, fired her.

Judge Leland held that Ferguson's refusal to drive was legally protected because violations of DOT regulations would have occurred but for Ferguson's refusal to drive in the hazardous weather. Judge Leland credited Ferguson's testimony noting that she properly relied upon reliable reports of bad weather and unsafe driving conditions through Donner Pass. Judge Leland also ordered that New Prime, Inc., reinstate Ferguson as a driver, and that it pay Ferguson's legal fees.

Congratulations to Ferguson's attorney, Paul O. Taylor of the Truckers Justice Center, on this fine result.

NWLDEF to Host Training Seminar April 1, 2010

Lindsey Williams — Tue, 16 Mar 2010 14:36:41 -0500

JOIN OUR LAWYERS & THE MEDIA
TRAINING SEMINAR
Thursday, April 1, 2010 12:00 - 2:00 pm EST

Sponsored by the National Whistleblowers Legal Defense & Education Fund

Lawyers & the Media: Strategies that Work and Pitfalls to Avoid in Whistleblower Cases
Whistleblowers who come forward to expose wrongdoing are critical sources for journalists. All attorneys who represent whistleblowers and journalists who use them as sources must understand the laws in place to protect whistleblowers when their story reaches the public. Attorneys also need to know how to effectively present their client's cases to journalists. This seminar will cover the 1st amendment protections that attorneys need to know to protect their clients, and journalists need to protect whistleblower sources

This training will take place on April 1, 2010 at the National Whistleblowers Center and via telephone conference

For a full description of the seminar and faculty information click here. To register for this seminar, click here.

truthout reports WPEA being "hotlined"

Richard Renner — Mon, 15 Mar 2010 19:41:51 -0500

The independent journalism website, truthout.org, is reporting that the Senate is set to "hotline" the Whistleblower Protection Enhancement Act (WPEA), S. 372. Hotlining is a procedure in which the Senate leaders agree that a bill is uncontroversial and they put the measure on the Senate floor to call for passage by unanimous consent. If no Senator objects, then the measure passes the Senate.

That means it will only take one Senator to block unanimous consent and save current whistleblower rights from the poison pills contained in the Senate's current version of S. 372. These "poison pills" include repealing the current whistleblower protections for FBI employees, allowing the heads of intelligence agencies to fire whistleblowers with no due process at all, allowing intelligence agencies to conduct the fact findings in cases they do allow, and allowing for dismissal of whistleblower cases without a hearing. Follow this link for more information on S. 372. Follow this link to TAKE ACTION to call on your Senator to oppose S. 372 with the poison pills.

The full text of the truthout.org story follows in the continuation of this blog entry.

MONDAY 15 MARCH 2010 Share

Hotlined Senate Bill Weakens Whistleblower Protection

Monday 15 March 2010

by: Yana Kunichoff, t r u t h o u t | Report

photo
(Image: Jared Rodriguez / t r u t h o u t; Adapted: stevendepolo, GrungeTextures)

Changes to the Whistleblower Protection Enhancement Act currently working its way through the Senate would cover up intelligence failures and civil liberties abuses in the Federal Bureau of Investigation (FBI) by repealing existing protections for FBI whistleblowers and strengthening the state secrets privilege.

The bill is currently being "hotlined" through the Senate, which entails both the Senate majority leader and minority leader agreeing to pass the legislation by unanimous consent without a roll-call vote. This practice is usually used to pass uncontroversial bills and simple procedural motions, but opponents fear it is being used to push through this measure with little or no public debate.

"It's unethical to use an 'enhancement act' as a vehicle for repealing existing whistleblower rights," said Stephen Kohn, executive director of the National Whistleblowers Center, an advocacy organization which aims to protect federal employees who speak out about wrongdoing in the workplace.

Though the hotlining process allows senators to object to the passage of a bill in an alloted amount of time, sometimes as little as 15 minutes following its adoption, advocates believe that the unseen power of the FBI in the nation's legislature will ensure that the bill passes.

If it does, it would effectively remove federal employees working for the FBI from protection under the Civil Service Reform Act of 1978, which specifically protects whistleblowing in the workplace.

Kohn, an attorney who has represented prominent whistleblowers in court, says the provision would mean that FBI employees must prove "gross mismanagement" if they are to speak out on wrongdoing in the workplace, which "would make it very difficult to prove" as most bigger investigations start with a "small mismanagement."

He lays responsibility for the passage of this law with Sens. Joseph Lieberman and Susan Collins, respectively the chairman and ranking member of the Committee on Homeland Security and Government Affairs. People should know "if it does get hotlined, their senators went along with it," Kohn said.

Neither Senator Lieberman's nor Susan Collins' office responded to requests for comment.

According to a letter signed by well-known national security whistleblowers and advocates, the bill "will become known as the Whistleblower Discouragement Act of 2010 if these provisions related to national security and FBI employees are not fixed. The ability of Inspectors General, Congress and the American public to learn about waste, fraud and abuse in numerous agencies that spend hundreds of billions of dollars will be completely undercut. Intelligence failures that led to incredible blunders both before and after the 9/11 attacks will be hidden from oversight and scrutiny. Although honest federal employees who desire to inform their government officials of mistakes and abuses will be the first victims of S. 372, the real victim will be the American people.”

However, it is not only those who work with the FBI that will be affected by this. "The current version [of the bill] will set whistleblower protections back 30 years for hundreds of thousands of federal employees," the letter went on to say.

The act of whistleblowing and what federal employees have blown the whistle on ranges from Bunnatine Greenhouse standing up against contracts given to Halliburton for the reconstruction of Iraq to Jane Turner uncovering failures in the FBI's protection of child sex crime victims to Joseph Carson speaking out against safety violations at the Department of Energy.

Protections for whistleblowers have also long been a matter of debate - many prominent whistleblowers have cases pending for whether their release of often sensitive information was warranted, and federal employees with lower profiles often suffer intimidation and job discrimination for their pains.

Carson, who has been called a career whistleblower, was denied job duties, told he was an unacceptable employee and had his security clearance threatened with removal, which would have kept him from being able to do his job, for trying to highlight safety problems in his workplace.

He said, however, that the problem goes far beyond whistleblowing and, in focusing on the workforce retaliations which he and countless other suffered, "obscures the forest for the trees."

According to Carson, it is the inherent weakness of the US Office of Special Counsel (OSC), set up to protect the rights of federal employees against employer retribution and other discrimination, which "violates the heart of the federal civil service" and "has been so corrupt it has never really pushed what its powers are to protect federal employees."

The systemic nature of the intimidation, which he and countless other whistleblowing federal employees suffered, has led Carson to turn the fight away from his employers to the OSC itself - he has been involved in a federal legal appeal against the OSC for 18 years. If he wins, he will have the agreement of a federal court that the OSC did not do its duty. If he loses, he plans to take his case to the Supreme Court.

"There is a good news aspect to this in the sense that this is fixable," said Carson. However, until then, "I would have to frankly advise any concerned federal employee, if you can't live with yourself looking the other way, don't."

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This work by Truthout is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License.

Blowing the Whistle on FBI Crime Lab Abuses

David Colapinto — Mon, 15 Mar 2010 12:32:01 -0500

Another Reason FBI Whistleblower Protections Should Not Be Weakened

The Washington Post and Associated Press are reporting that the Department of Justice failed to properly review more than 100 criminal cases that were prosecuted in the District of Columbia and which were suspected of being tainted by false forensic evidence from the FBI crime lab. These cases were ordered reviewed because in 1997 the DOJ Inspector General verified whistleblower allegations by Dr. Frederic Whitehurst about serious misconduct at the FBI lab.

Photo: Dr. Whitehurst

In December 2009, Donald Gates, an innocent man, who spent 28 years in jail after being convicted for crimes he did not commit, was set free by D.C. Superior Court after DNA testing confirmed that forensic testimony presented in court by FBI analyst Michael Malone was false. On the basis of Malone’s fabricated tests and false testimony Gates was wrongfully convicted of rape and murder.

Gates’ case was on a list of cases ordered to be reviewed following the DOJ IG’s report verifying Whitehurst’s whistleblower allegations. Notably, Whitehurst specifically blew the whistle on Michael Malone, who the IG confirmed deliberately lied and falsified evidence in the judicial inquiry brought against Alcee Hastings (then a sitting federal judge and now a member of Congress). As a result of verifying that Malone lied in the Hastings case, the DOJ decided to conduct a review of all of Malone’s cases.

However, Gates’ case was not properly reviewed by DOJ and he continued to sit in jail until December 2009 when new DNA testing confirmed that he could not have committed the crime for which he had been convicted.

This is another reason why FBI whistleblower protections should not be weakened as proposed by the Senate in S. 372 and reported last week in Politico.

But for Whitehurst blowing the whistle on Malone, the FBI lab analyst who lied in this case, Gates’ case never would have been reviewed and he likely would still be in jail. When efforts were made by Gates’ attorneys in 2008 to seek new DNA testing they were able to persuade the judge to order that test because the IG had verified Whitehurst’s allegations against Malone in the 1997 IG report. Had Whitehurst not come forward nobody would ever have looked at Gates’ case or anyone else’s case handled by the FBI crime lab. Gates would still be sitting in jail even though he is an innocent man.

By weakening FBI whistleblower protections to permit the FBI to investigate and adjudicate whistleblower retaliation claims by its own employees and agents, the Senate is ensuring that nobody will blow the whistle on misconduct at the FBI. If you want to know the consequences of that, go ask Donald Gates.

Please TAKE ACTION and tell the Senate to fix the repeal of existing FBI whistleblower protections.

New Jersey Supreme Court poised to punish for purloined documents

Richard Renner — Fri, 12 Mar 2010 14:09:26 -0500

The New Jersey Supreme Court heard arguments on Tuesday in a case where whistleblower Joyce Quinlan is asking for reinstatement of her $10 million jury verdict. An appellate court had vacated the verdict finding that Curtiss-Wright was justified in firing Quinlan for taking company documents for use in her litigation. The New Jersey Law Journal reports that the questions during oral argument suggest the state supreme court is likely to agree that whistleblowers cannot use company documents without the company's permission, even if those documents show that the company engaged in illegal discrimination. I hope the court's decision will make clear that:

If the company permitted you to see the documents during work, then copying the documents is not theft if you leave the originals for the company.
If the documents show the company engaged in illegal conduct, then it is against the public interest for the company to require employees to keep the documents secret.
If a whistleblower sees documents while performing normal work duties and copies them for use in official government investigations or judicial proceedings, then making and using the copies is protected activity.
If a company has a duty to provide documents in discovery and fails to do so, then the company should be punished and not the employee who caught them breaking the law.

If the New Jersey Supreme Court decides instead that company policies of confidentiality are more important than eliminating discrimination, then it will point to the need for a federal private sector whistleblower law that makes the scope of protected activity clear. The case is Quinlan v. Curtiss-Wright Corp., A-51-09 (64,728). The question presented is, "Was plaintiff’s removal of confidential documents from her employer for use in advancing plaintiff’s gender-discrimination lawsuit against the employer protected activity under the Conscientious Employee Protection Act?"

North Syracuse, New York, pays $260,000 to settle whistleblower's suit

Richard Renner — Fri, 12 Mar 2010 12:20:46 -0500

The Village of North Syracuse, New York, has agreed to pay former police officer Michael Stassi $260,000 to settle his whistleblower retaliation lawsuit. Stassi had to blow the whistle in 2005 on time card cheating by his superiors. Syracuse.com reports that former Sgt. Daniel Keefe plead guilty to having subordinates sign statements that Sgt. Keefe was working during times he was not working. Former Capt. Michael Casey also plead guilty to official misconduct. Former police chief David Wilkinson plead guilty to submitting false time sheets to North Syracuse, and a former employer. The court ordered him to pay $3,760 in restitution. The news report does not detail what retaliation Stassi suffered, but thanks to the movie Serpico, one can easily imagine the hardships on a police officer who breaks the "code of silence." Stassi filed his retaliation case in 2008. It was delayed after Wilkinson filed for bankruptcy protection. Now it is settled for a lot more than the fraudulent time sheets cost. It is another example of how cover-ups can cost more than the initial crimes. Retaliation claims can cost an employer a lot more than just addressing the issue a whistleblower raises.

Metro report finds "shoot the messenger" phenomenon; I know a fix

Richard Renner — Fri, 12 Mar 2010 11:48:51 -0500

Today's Washington Post (Metro page B-1) reports on "a blunt assessment" of Washington DC's Metro transit administration. Retired Metro manager David L. Gunn wrote the report. Among other problems, it finds a "shoot the messenger" phenomenon "that discourages employees from raising safety concerns." The report is particularly sobering in light of last year's collision that killed nine people. Metro has had other fatal accidents since then.

I know a fix for the "shoot the messenger" phenomenon. Any Metro manager, union official, or journalist could help. One change could assure that safety issues are raised and addressed in the warm glow of pubic attention. Every Metro train operator, bus driver, maintenance worker and manager needs to know that a recent federal law now protects them from retaliation when they raise safety concerns.

Last October, I wrote here about how the Washington Post could report on the National Transit Systems Security Act of 2007 (NTSSA). NTSSA has given every transit system employee the right to put safety first, to bypass the chain of command, and to disobey unsafe or illegal orders. Under NTSSA, every Metro employee has legal protection if they choose to speak to a newspaper about safety concerns. They would be protected if they follow safety rules and run "late" as a result. Victims of retaliation need to know that they have only 180 days to file a complaint (some laws allow only 30 days).

I would be happy to speak to any group of Metro employees about their rights under NTSSA and how to enforce them. Just call me, 202-342-6980, Ext. 112.

OSHA Listened, and now Celeste Monforton does too

Richard Renner — Fri, 12 Mar 2010 11:32:47 -0500

Public health researcher Celeste Montorton (of George Washington University's School of Public Health) has posted an extensive commentary on the whistleblower issues raised during last week's OSHA Listens public hearing. Through her The Pump Handle blog, she appreciates the criticism of OSHA's whistleblower program. She quotes from Jason Zuckerman's comment about how OSHA regional directors too often rubber stamp whatever the employer says. She quotes from my remarks about how OSHA has failed to address the management and oversight concerns raised in a report by the General Accounting Office. She concludes, "Defending [whistleblowers] is OSHA’s core mission. There’s no reason this program this program should be treated like an orphan; it should be OSHA’s jewel—a treasured program at the heart of an effective worker health and safety protection system." Jason and I had some concrete suggestions for improving OSHA's whistleblower program, and Celeste offers some of her own. The floor is wide open now for policy makers at the Department of Labor to make some bold improvements in the whistleblower program.

Maryland "Little FCA" moving forward

Richard Renner — Fri, 12 Mar 2010 09:09:13 -0500

WBAL-TV of Baltimore reports that the Maryland legislature is moving forward with a bill to create a "Little FCA" in Maryland. Modeled on the federal False Claims Act (FCA), and looking for the benefits of the Grassley Amendment, Little FCAs provide financial rewards to whistleblowers who file sealed complaints against fraud by government contractors. Under the Grassley Amendment, state and local governments with Little FCAs receive a higher percentage of the fraud recoveries in their states. The WBAL story reports that Virginia has recovered $228 million a year since adopting their Little FCA.

Who can say no to free money for the state treasury? WBAL reports that medical providers and the Chamber of Commerce have opposed the bill. However, none would speak to WBAL. What would they say? "We should be able to get away with fraud"? WBAL says critics have previously claimed that the reward provision would encourage frivolous lawsuit and put pressure on businesses to settle. The $228 million Virginia gets every year does not sound frivolous to me. The pressure to settle, though, sounds pretty good. Indeed, the FCA's reward provision is the most effective tool ever in the detection and proof of frauds against the government.

The administration of Gov. Martin O'Malley said the bill is likely to be amended. My suggestion: don't limit the bill to medical fraud. Maryland deserves to get the enhanced recovery for all frauds in the state.

Federal Employees Have Less than 2% Chance of Success Before MSPB Judges

David Colapinto — Thu, 11 Mar 2010 10:39:12 -0500

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.

If that is not bad enough, the Senate has proposed in S. 372 a very limited right to seek a jury trial in federal court in only some whistleblower cases (e.g., where there is a suspension of 14 days or more or a removal) if the employee files a request with the MSPB at an early stage of the case. However, the federal employer will be permitted to file a motion under Federal Rule Civil Procedure Rule 12(d), forcing the employee to survive summary judgment before the MSPB can permit a case to go to federal court. At that stage, the employee will have the benefit of no discovery, or may be forced to litigate the merits of a case on summary judgment, before the MSPB rules, in its discretion, whether or not the employee should be permitted to take the case to federal court and seek a jury. The same MSPB judges who rule currently rule for employees 1.7% of the time will be making these decisions under this convoluted procedure.

Finally, the MSPB statistics are revealing with respect to how the Senate proposes to “enhance” the whistleblower rights of employees who work for intelligence agencies and the FBI. In S. 372, employees who work in the field of national security will get no court access. Instead, they will be provided an administrative procedure that is even worse than the MSPB. In S. 372 the Senate proposes that FBI, CIA, NSA and other intelligence agencies will assign their own judges to decide the cases. Once the very agency that fired or disciplined the employee for whistleblowing makes the ruling as to whether there was retaliation the employee can appeal to a new Board that must defer to the agency’s decision. It is hard to imagine how anyone could devise a system that is worse than the current MSPB system to decide whistleblower cases, but that is precisely what the Senate and the Obama administration are proposing in S. 372.

The proposals in S. 372 are doomed to fail because they will further bias the system in favor of the employer. We already know the track record of the MSPB with over 30 years of statistics where employees now win only 1.7% of the time. Giving the MSPB more power, without providing employees full access to court, will not make much difference in these statistics. As for the FBI and intelligence agency employees, creating an entirely new administrative system that is even more biased in favor of the employer than the MSPB, without any court access for trials, is an insult to the brave employees who protect our national security. Accused terrorists have more rights in court than any employee of the FBI or intelligence agency blowing the whistle on illegal conduct, fraud or waste and abuse.

There is a solution to this problem. The House of Representatives with broad bi-partisan support has twice passed a bill that, while not perfect, addresses most of these problems in federal employee whistleblower cases in a constructive way based on other laws, such as Title VII of the Civil Rights Act, that provide court access for federal employees in addition to administrative remedies. The House bill (HR 1507), introduced by Rep. Chris Van Hollen (D-Md) and Rep. Todd Platts (R-Pa), provides important reforms to the MSPB and permits full court access for employees to obtain jury trials in federal court.

Tell your Senator to strengthen the Senate bill by removing the poison pill provisions of S. 372 that are an impediment to real reform before it passes the Senate.

Jane Turner speaks out about the WPEA, S. 372

Richard Renner — Thu, 11 Mar 2010 04:55:48 -0500

Jane Turner had worked as a Special Agent for the FBI for twenty years. She led efforts to force the FBI to provide protection for child sex crime victims on the North Dakota Indian Reservations. She also reported theft of evidence from the scene of the 9/11 terrorist attacks. In retaliation for exposing FBI failures within its child crime program, Turner was removed from her position. She prevailed in a jury trial that redressed her bad performance reviews. Her whistleblower case is still pending with the U.S. Department of Justice.

Today Jane Turner spoke with James Corbett of CorbettReport.com.Turner spoke about the problems with the current Senate version of the Whistleblower Protection Enhancement Act (WPEA), S. 372. CorbettReport.com provides Open Source Intelligence News. Turner explains how Title VII of the Civil Rights Act allowed her to have a jury trial to challenge her retaliatory performance review. However, a special law for FBI employees provides for a special proceeding at the U.S. Department of Justice for her whistleblower claims. Turner explains how S. 372 would take away the right of FBI agents to make whistleblower complaints like hers. Turner calls on everyone to TAKE ACTION on S. 372 to counter the power of the FBI to block whistleblower rights. The 25-minute interview is available from CorbettReport.com in MP3 format.

Australia considers national security whistleblowing

Richard Renner — Thu, 11 Mar 2010 01:39:43 -0500

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.

Enron whistleblower shares laments with Madoff whistleblower

Richard Renner — Thu, 11 Mar 2010 01:03:51 -0500

Sherron Watkins became a Time Magazine Person of the Year in 2002 (with Cynthia Cooper of WorldCom and Coleen Rowley of the FBI) after blowing the whistle on Enron's house of cards. Now she has published a review of No One Would Listen, the new book by Harry Markopolos. Markopolos tried repeatedly, over nine years, to get the Securities and Exchange Commission (SEC) to investigate Madoff's fund. Markopolos figured out that it was a fraudulent Ponzi scheme, and told the SEC, but could not get them to lift a finger.

Watkins can relate. In her review published in Financial Times, Watkins says, "Both Markopolos and I were by turns dogged, shocked, frustrated and treated like pariahs." "No one would listen to me either," Watkins adds. "Unfortunately, whistleblowers who expose the emperor as having no clothes are usually ignored. The apparent success of the emperor – Madoff or Enron – and the power and popularity they enjoy can make them immune to dissenters."

Watkins' review also makes a point about the importance for whistleblowers to maintain their credibility and avoid exaggeration. Readers can see a sample of Markopolos' personality, and then have more insight into Watkins' comments, by watching Markopolos' interview on John Stewart's The Daily Show last Monday.

Shine more sunlight on S. 372

David Colapinto — Wed, 10 Mar 2010 13:15:12 -0500

What does Louis Brandeis' famous quote, "sunlight is the best of disinfectants," have to do with efforts to reform federal employee whistleblower protections? Well, if you have been following the legislative progress of S. 372, the so-called Whistleblower Protection Enhancement Act, through the Senate you would understand how perceptive Brandeis was about the positive effect of publicity.

In the back rooms of Senate offices, senate staffers have been working in secret to load up the Senate's whistleblower bill with numerous poison pills that do more to protect federal agencies and managers than to enhance federal employee whistleblower rights.

Press coverage yesterday by Politico and today by In These Times and last summer by the Washington Times sheds some light on the inner workings of the Senate and the influence of federal agencies, the FBI and the intelligence community to water down important whistleblower reforms.

The back room influence of federal managers and agencies has produced a Senate bill that is much weaker than the stronger House bill (H.R. 1507), co-sponsored by Rep. Chris Van Hollen (D-MD) and Rep. Todd Platts (R-PA), that has strong bi-partisan support in the House and which was endorsed by President Obama during the campaign.

Here is a summary of where the Senate bill stands from our perspective at National Whistleblowers Center.

Sen. Joe Lieberman (I-CT) and Sen. Susan Collins (R-ME) are in charge of the committee reporting out the bill and are most responsible for letting the poison pills contaminate S. 372. Sen. Daniel Akaka (D-HI) is in charge of the bill as subcommittee chair. The buck has to stop with those in charge. Sen. Kit Bond (R-MO) has put a hold on the bill because he reportedly has his own concerns about the national security/intel provisions, but the nature and extent of those concerns are not really known. The most problematic provisions of the bill that the committee chairs and sponsors (i.e. Lieberman, Collins, and Akaka) have allowed to be inserted into the bill at mark up need to be resolved and corrected.

Before the Senate bill was even marked up at the end of July 2009 the bill's sponsors said that before the bill passes the Senate they would fix provisions that weaken existing FBI protections. They continued to promise that over the summer. As confirmed by the article published yesterday in Politico, the promised fixes on the FBI portion of the bill have not materialized.

To make matters worse, Sen. Akaka and other sponsors agreed to some changes which they insist fix the FBI protections, but everyone knows these don't fix the problem and they are merely cosmetic. This compounds the problem because the bill's sponsors are now dug in fighting for a bill that will weaken existing FBI whistleblower rights (which are very weak to begin with). To weaken them more is intolerable. Several FBI employees (like Bassem Youssef and Jane Turner) have pending cases under the current law. Several FBI employees (including Youssef) have won at the investigative stage of the process with favorable reports from either DOJ IG or DOJ OPR. This bill would change the landscape overnight and the FBI would be in charge of investigating and adjudicating whistleblower complaints by its own employees (including those who have initially prevailed) if the Senate bill becomes law.

Additionally, the sponsors of the Senate bill are fighting to preserve other nasty national security provisions in S. 372 affecting employees at all the intel agencies. While they initially claimed these provisions were inserted into the bill at the 11th hour as a placeholder and were admittedly not complete and were open to changing them, these, too, have not been substantially modified. These intel provisions, like the FBI provisions, will enable the intel agencies to control the investigations and adjudications of all whistleblower complaints filed by employees of their respective agencies. As a result, nothing more than a glorified internal agency grievance procedure is being proposed in this Senate bill for intel and FBI employees. All of the appeals beyond that to a new Board and to appeals court are smoke and mirrors because all of the initial fact finding and adjudication will take place by the intel agencies and FBI that initially fired or disciplined the whistleblower. On review by the Board or court of appeals, the FBI and intel agency findings of fact will be given substantial deference as a matter of law, and it will be virtually impossible to reverse those decisions. It will also expedite the removal or discipline of any whistleblower that utilizes this process.

At the time of the Senate markup on S. 372, I wrote a summary and analysis of some of the key provisions of the revised Senate bill. Most of the problems with the markup version of the bill noted on July 29, 2009 still exist.

Aside from the FBI and national security provisions, there are several troubling problems with the Senate's provisions to protect Title 5 federal employees. The Senate bill creates the most convoluted and weak jury trial provision ever proposed under law, it requires the whistleblower to seek approval by the MSPB to go to federal court and get a jury, and the whistleblower must survive summary judgment before the MSPB at the outset of a case (before any discovery takes place) in order to get a request for a jury trial approved by the MSPB. Also, the Senate has introduced summary judgment procedures for the first time in MSPB cases (and only for whistleblower cases). If this becomes the law, the jury trial right proposed by the Senate will be an illusory right. There will be so many roadblocks that this bill will not effectively change the existing process for most employees.

Unfortunately, most of the bad provisions contained in the Senate bill have the tacit or express approval of the Obama administration, which throughout this process has deferred to the views of the federal agency managers and heads of the intel agencies. As a result, the Senate incorporated many of the agencies' wish lists how to deal with whistleblower complaints into the Senate bill. While President Obama campaigned on the right of all whistleblowers to get full court access and he supported HR 985/HR 1507 as the model for reform, his administration has not weighed in on the side of the House bill thus far, despite President Obama's campaign promises. Consequently, once this bill passes the Senate it could be very difficult to remove all of the poison pills given the positions taken by the Obama administration during the drafting of the Senate bill.

As currently drafted, the Senate bill protects federal EMPLOYERS more than enhancing employee whistleblower rights. It is by far much more deferential to the EMPLOYER than any comparable whistleblower law affecting private industry, particularly in the areas that count the most.

We are not asking for perfection. Rather, we are asking these politicians to live up to their commitments to enact real whistleblower reform and not provide us with more watered down and paper rights that won't protect anyone except those federal managers and agencies that break the law or commit fraud, waste and abuse.

We continue to urge everyone to contact their Senators and President Obama and tell them to fix the poison pills in the bill before Senate passage of S. 372.

If you have any questions about S. 372 and the much stronger House version (H.R. 1507), please don't hesitate to contact me, Steve Kohn or Lindsey Williams at NWC, (202) 342-1902.

Whistleblower Advocates Oppose Senate Bill

Lindsey Williams — Wed, 10 Mar 2010 13:14:48 -0500

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.

Fred Whitehurst and Bill Bransford speak to Federal News Radio about WPEA

Richard Renner — Wed, 10 Mar 2010 06:38:46 -0500

FBI whistleblower Fred Whitehurst and an attorney for federal managers, Bill Bransford, spoke with Federal News Radio yesterday. They presented different sides of the argument about the Senate version of the Whistleblower Protection Enhancement Act (WPEA), S. 372. Whitehurst decried the bill saying it, "returns control of the process back to the very organization that is being exposed, and that's bizarre." Bransford supported the bill saying, "It was a very difficult problem that really was not capable of being fixed legislatively, but we tried. So you had this imperfect law, and, the result of it is, you get some really bad cases that come up before the federal circuit court of appeals . . .." Bransford said that he and the management-side Senior Executive Association (SEA) support S. 372. I find this curious since Bransford testified last summer to a Senate Committee saying that he opposed letting federal employee whistleblowers bring cases to a jury. Now he supports S. 372. I conclude that S. 372 does not provide any meaningful hope that whistleblowers could actually get to a jury. That is why the managers like it and the National Whistleblowers Center (NWC) does not. Federal News Radio is providing MP3 files of its interviews. The NWC is providing an Action Alert page for those who want to express a call for effective protection, not S. 372.

Critics Question Senate Whistleblower Bill

Lindsey Williams — Tue, 09 Mar 2010 20:30:28 -0500

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

OSHA Listens, all day today

Richard Renner — Thu, 04 Mar 2010 11:32:36 -0500

The Occupational Health and Safety Administration (OSHA) is conducting its public hearing all day today. The "OSHA Listens" event is also available by webcast. Assistant Secretary Dr. David Michaels opened the event by decrying the 5,000 fatalities American workers suffer every year. He said OSHA is looking for ways to bring that number down because, "No one should have to be injured or killed for a paycheck." The sixty (60) people who asked to submit comments are divided into 13 panels. The first panel included family members of workers killed on the job. They belong to United Support and Memorial for Workplace Fatalities (USMWF). Employer groups were on the second panel. They generally called for OSHA to spend more money on compliance programs (like asking employers to be safer), and less on enforcement (that could result in fines against employers). I was struck by an answer from Stephen Sandherr of the Association of General Contractors. When Dr. Michaels asked what metrics OSHA should use to improve safety, Mr. Sandherr said employers should strive for a "culture of safety." Such a culture improves morale because workers know that management cares about them going home after every shift. It reminds me of the Nuclear Regulatory Commission's requirement for a "safety conscious work environment." Both require that workers have the freedom to raise concerns without fear of retaliation. OSHA may hear more about that when Panel 13 starts. Myself and Mr. Jason Zuckerman of The Employment Law Group are scheduled for this last panel. It was originally scheduled for 5:30 pm, but was set for 5:10 pm on this morning's program. It might start even sooner than that. My comments are posted in a prior blog entry.

Luzdary Giraldo of the New York COSH, and Tom O'Connor of National COSH both called for improving OSHA's whistleblower protections. Mr. O'Connor explained that enforcement programs do no good where workers are too afraid of retaliation to make a complaint. Here! Here!

FBI Whistleblowers Speak Out Against S. 372

Lindsey Williams — Wed, 03 Mar 2010 14:16:41 -0500

FBI whistleblower Dr. Frederic Whitehurst issued a letter today strongly opposing the repeal of FBI whistleblower rights contained in the current Senate version of the Whistleblower Protection Enhancement Act (S. 372). This bill is currently being “hotlined” in the Senate, a process by which legislation can be passed by unanimous consent, without any formal debate or vote.

In the 1990's Dr. Whitehurst blew the whistle on scientific abuses in the FBI crime lab. He won his cases and as a result, President Clinton signed an order protecting FBI agents who blow the whistle. The current Senate bill repeals the Clinton order and the law it was based on. It will result in the dismissal of numerous pending whistleblower cases, including that of FBI Counterterrorism Unit Chief Bassem Youssef.

Dr. Whitehurst wrote:

"Like most Americans I was looking forward to seeing President Obama and Congress fulfill their promise to strengthen these whistleblower rights that protect Americans. However, I was horrified to discover that the Senate whistleblower bill does not do this. For national security whistleblowers it does the exact opposite. S. 372 repeals the FBI whistleblower protections that I sacrificed my career for."

Dr. Whitehurst's letter comes shortly after two other FBI whistleblowers, Jane Turner and Sibel Edmonds, issued a similar plea to fix the Senate bill.

Although many provisions of the bill enhance whistleblower protections, there are many "poison pills" that must be corrected, including these (see links to Committee on Homeland Security and Governmental Affairs report accompanying S. 372):

S. 372 repeals the FBI whistleblower protection law! Originally passed in 1978, improved in 1989, and given strong teeth by President Clinton in 1997, the law has been instrumental in permitting FBI agents to expose abuses ranging from civil rights violations, agent misconduct, and threats to our nations security. (see p.46)

Agency heads of the Justice Department, Commerce Department and security agencies (Defense Department etc.), covering over half the federal workforce, are given the power to unilaterally fire a whistleblower with no administrative or judicial review. (see p.73)

National security whistleblowers are denied the right to have their retaliation cases reviewed by independent agencies, such as the Office of Special Counsel or the Inspector General and they are denied the right to court access. Instead, the very agency that fired the whistleblower is given exclusive power to conduct the "fact finding" investigation into whether that agency broke the law. (see p.70)

A new procedural roadblock impacting every federal employee was inserted into this 105-page bill. This provision gives all federal agencies the power to request the dismissal of a whistleblower case without giving the employee an opportunity to have a hearing and will prevent most employees from obtaining a jury trial. (see p.57)

"Hotlining" requires unanimous consent, which means that every Senator, regardless of committee assignment, has the opportunity to weigh in on this legislation. It only takes one Senator's demand that these issues be fixed in order to stop this Trojan horse from destroying existing whistleblower protections.

Please take the time to read both Dr. Whitehurst’s letter and Jane Turner and Sibel Edmonds’ letter. You can TAKE ACTION by requesting that your Senator place a hold on S. 372 until these national security provisions are fixed.

*Meryl Grenadier (NWC fellow) contributed to this posting.