On July 29, 2009 the Senate Committee on Homeland Security and Governmental Affairs unanimously reported out of committee S. 372, the Whistleblower Protection Enhancement Act of 2009. Unfortunately, this bill contains many significant differences from the House Bill (H.R. 1507), which the National Whistleblowers Center (NWC) fully supports.
This post is the fifth in a series of twelve, examining specific weaknesses in the Senate Bill. Each installment examines a crucial issue of whistleblower rights compromised by the Senate’s version of the bill.
V: THE NEW SUMMARY JUDGEMENT RULE: GOLIATH FINALLY WINS!
S. 372 contains a new provision that permits the Merit Systems Protection Board to dismiss whistleblower claims under a procedural rule known as “summary judgment.” See Section 118. This new rule permits the MSPB “judges” to summarily dismiss a whistleblower claim without ever conducting a hearing.
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.