We have received confirmation from two sources that a Senator has placed an anonymous hold on S. 372, the Senate’s flawed version of the Whistleblower Protection Enhancement Act (WPEA). This hold effectively kills the bill as the Senate adjourned tonight until the next Senate is seated. Earlier this evening, the House passed a modified version

Bunny Greenhouse testifies

When the Iraq was was about to begin, Bunny Greenhouse alone challenged the legality of awarding no-bid, no-compete, cost plus contract to Haliburton. The Army swiftly retaliated and she lost her career and position as the Army Corps of Engineers top procurement executive. Today Bunny spoke out against S.732, the Senate’s version of a Whistleblower

Dr. David L. Lewis

My client, Dr. David L. Lewis, is issuing an open letter today urging the House of Representatives to correct the “the grievous and manifold shortcomings in S. 372 before voting on it.” He also urges his fellow citizens to join him in taking action to share his concerns with their representatives.

Dr. Lewis was a top microbiologist at the U.S. Environmental Protection Agency (EPA). He raised the standards for dental hygiene worldwide when he showed how previous practices were inadequate to protect dental patients from the transmission of HIV.  He showed how EPA’s rules for land application of sewage sludge did not have the scientific support needed to protect us from airborne diseases. That is when “industry representatives and EPA managers went ballistic.” His retaliation case is still pending.

He is today concerned that:

  • S. 372 ― for the first time ever ― would deny protection to federal employees if a judge finds that violations of law exposed by whistleblowers were “minor,” “inadvertent,” or committed when the violator was engaged in a “conscientious carrying out of official duties.” Every federal manager faced with a whistleblower retaliation claim will be hiding under this gaping loophole.
  • S. 372 would deny protection for whistleblowers who challenge an act of discretionary authority, or any retaliation against other whistleblowers. These exclusions would render whistleblowers even more powerless to prevent waste, fraud, abuse and violations of law within the federal government.
  • S. 372 would allow judges on the Merit System Protection Board (MSPB) to dismiss whistleblower cases without any hearing. Due to all of the loopholes already at the disposal of employers who retaliate, federal employees prevail in less than 2% of the cases that proceed to a hearing. The current system needs to provide more fairness to whistleblowers ─ not to make it even more burdensome to prevail.

He urges everyone to Take Action by contacting their representatives. The full text of his letter follows in the continuation of this entry.Continue Reading Dr. David Lewis says “Fix S. 372”

Julia Davis is an award winning screenwriter and published photographer. She is Vice President of Fleur De Lis Film Studios, and the LA Homeland Security Examiner for Examiner.com. In her column today, she decries the flaws in S. 372, the Senate’s version of the Whistleblower Protection Enhancement Act (WPEA).  She objects to its creation of a summary judgment procedure at the Merit System Protection Board (MSPB). "Unless the bill is amended, Administrative Judges with the MSPB will now be able to dismiss whistleblower claims without a hearing, based solely on affidavits filed by the agencies." She notes that whistleblowers will have to survive this expensive process to benefit from the right to request a jury trial in district court. With MSPB’s track record of ruling for employees 1.7% of the time, S. 372 offers little hope for whistleblowers. Davis says:

The same MSPB judges who rule overwhelmingly in favor of the agencies will be empowered to be the gatekeeper for federal court. Much as an elusive oasis in the desert, the illusion of access to federal court is just that – an illusion.

Davis also faults S. 372 for failing to provide substantive reform of the MSPB and the Office of Special Counsel.  Her production company has released a letter to Congressional leaders urging correction of S. 372. She invites readers to take action to correct S. 372’s flaws.Continue Reading Julia Davis says “NO” to S. 372 flaws

This week, the federal Merit System Protection Board (MSPB) released a report to President Obama. The report reviews hurdles federal employees have to jump before they can win a case of whistleblower retaliation. It is called Whistleblower Protections for Federal Employees. In the cover letter to President Obama dated September 2010, MSPB Chair Susan Tsui Grundmann states:

This report spells out in greater depth the difficulties a potential whistleblower may face when navigating the law to seek protection from agency retaliation. I hope you will find this report useful as you consider issues affecting the Government’s ability to protect employees who disclose fraud, waste, abuse, and other wrongdoing within the Federal Government.

An MSPB press release about the report lists some of the hurdles. (See the continuation of this blog entry for that list.) The MSPB report fails to mention other hurdles, particularly those of MSPB’s own making. Another study found that MSPB, under the prior administration, ruled for federal employees in only 1.7% of cases. The MSPB’s report cites the Federal Circuit case of Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 1153, 120 (2000), but does not mention that this case required the whistleblower to have “irrefragable proof” of mismanagement to have any protection from retaliation.

Also missing from MSPB’s report are a list of things that MSPB itself can do to improve the rights of federal employee whistleblowers. The MSPB can find that its past holdings have impeded whistleblowers from raising concerns about mismanagement, and urge the appellate courts to defer to its expertise under FCC v. Fox Television Stations, Inc., 556 U.S. ___, 129 S. Ct. 1800 (2009), and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). MSPB can hire Administrative Law Judges, and set standards for assuring that employees have adequate time and support to complete meaningful discovery. MSPB can simplify the process for whistleblowers and the Office of Special Counsel to seek stays of prohibited personnel practices and other forms of immediate relief.

Recognizing its role as an adjudicative body, MSBP declined to express any recommendations for changes in the law. Nowadays, it is hard to find anyone who would argue that there is no need to change the law. Unfortunately, the most prominent proposal for changing the Whistlebleblower Protection Act, S. 372, is itself flawed and would add additional hurdles for federal employee whistleblowers. I recently asked my colleagues in the National Employment Lawyers Association (NELA) if any of them would take contingent cases under S. 372 if it passed.  I have had no takers. No experienced lawyer has come forward to say that this law will make it viable to represent federal employee whistleblowers. We are a long way from assuring that federal employees who speak up for taxpayers get the customary legal protections required by international law.Continue Reading MSPB reports on the federal whistleblower predicament

After a careful review of S. 372, the National Whistleblowers Center, the Federal Ethics Center, and the National Security Whistleblowers Coalition strongly recommend that the bill not be approved in its current form. We urge the House of Representatives to fix the bill and send it back to the Senate for final approval. Here is why the bill must be fixed:
Continue Reading S.372: A Bad Deal for Whistleblowers

Charlotte Yee worked for the U.S. Department of Labor for twenty (20) years. During her last five years, she served as a manager and a whistleblower against waste, fraud and discrimination.  She was physically attacked by her boss and eventually left federal service for her own safety. On Monday, she posted a letter about her personal journey confronting the problems with the Senate’s version of the Whistleblower Protection Enhancement Act (WPEA). "Last week, when I signed MISC’s change.org petition to pass the bill I did so with an asterisk," Yee says. "I did so with the understanding that the bill’s main supporters would then work fervently to get the best parts of the bill passed and the poorest parts thrown out. In retrospect, it may have been a bone-headed and risky action: one made from the heart and not from the head." She realizes that "With any type of legislation, the devil is in the details." The bottom line on the Senate bill is that it "is a trojan horse." She particularly objects to provisions that would allow the Merit System Protection Board (MSPB) to deny whistleblowers a right to go to federal court either because MSPB chooses to issue a summary judgment, or because MSPB predicts that a federal court would dismiss the case. As the MSPB currently rules against whistleblowers over 98% of the time, it is easy to predict that very few cases would get MSPB’s permission to go to federal court. Yee asks MISC to, "seriously consider the repercussions of the Senate bill as proposed." You can read the full text of her open letter in the continuation of this blog entry.Continue Reading Charlotte Yee weighs in on WPEA

In yesterday’s Washington Post, an editorial called "Charging WikiLeaks" urges the Obama administration to refrain from pressing criminal charges against WikiLeaks leaders for releasing classified State Department cables. "Media outlets do not have a legal duty to abide by the government’s secrecy demands," the editorial declares. What should the government do? At the end of