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Federal Employees News Digest : Aug 12, 2013
August 12, 2013 Vol. 63, No. 4 3 Visit us on the Internet at www.FederalDaily.com So, the 1989 WPA was passed, but it didn't provide protection despite tighter language. Why not? Devine: The federal circuit was unde- terred, and it continued to create new loop- holes that weren't included in the statute that in fact defined the language in the 1989 WPA. As a result, in 1994, Congress again amended the law, and overturned the loopholes that were created to date in the law---loopholes that had frustrated many lawmakers, as you can see in the com- mittee reports. The law in 1989 had been changed from protecting "a lawful disclo- sure of significant government misconduct" to "any lawful disclosure of government misconduct." Congress thought the Federal Circuit would respect this edit, and stop creating loopholes on its own authority. But it didn't. Remember, all of this is important because fear of retaliation is one of the most frequently cited factors as to why would-be whistleblowers remain silent observers. And we need whistleblowers to protect everyone. But the 1994 revision of federal whistle- blower law also, somehow, didn't lead to solid whistleblower protection? Devine: That's right. In the amendments to the 1994 law, if you read the committee reports [on its development], lawmakers really are saying, "We don't know how to make this more clear: 'any' means any." And again, "There are no exceptions to this law, unless provided by law by Congress." But the court again did not respect this man- date. Starting immediately---in 1995---the court started anew a pattern of the most aggressive and ambitious series of new loop- holes to the law. There was a test of wills between Congress and this one court that insisted on setting the legal rules of the game for whistleblowers in the federal govern- ment---despite a law that dictated otherwise. It wasn't just loopholes either. How much impact did the court's interference have---in effect, its refusal to enforce Congress's third big effort, in 1994, at protecting federal whistleblowers? Devine: The court's overall track record was three wins and 227 defeats for whistle- blowers on the merits between October 1994 and passage of the Whistleblower Protection Enhancement Act last year. Just after the 1994 amendments were made, the Whistleblower Protection Act was the strongest free speech law in history---on paper. But the court, which has the monop- oly on final review of the cases, had turned the odds of your being able to exercise those rights into, like, winning the lottery. How would you characterize the appeals court's sustained resistance to enforcing whistleblower protections for feds? Devine: The loopholes created by the court are just one example of hostile judi- cial activism. Probably the most egregious example was the way the government revised the merits test---the standard for receiving eligibility for whistleblower pro- tection. The statute said that once you won jurisdiction---that is, once you have proven the right to have your case heard, rather than hitting a loophole preventing that--- you had protection against retaliation, as long as you disclose something that you reasonably believe evidences government misconduct. The types of misconduct listed under the law for disclosure protection include illegality, gross waste, gross mis- management, abuse of authority, substan- tial and specific danger to public health or safety. If you reasonably believe you are disclosing evidence of any of these types of misconduct, you were supposed to be protected against retaliation. But, in its own deliberations and decisions, the court in effect changed this standard to something far tougher. What did the court change the stan- dard to? Devine: The court changed the stan- dard to require "irrefragable proof." Fact is "irrefragable" is a word I had never heard of when I read the 1999 court ruling demand- ing it. The court at that point decided that an Air Force whistleblower, who had exposed a pork-barrel abuse involving a computer training course, was not entitled to protec- tion under the "reasonable belief " standard. Even the secretary of the Air Force agreed with this appellant's dissent, and canceled the controversial program. But the Federal Circuit Court of Appeals determined he didn't pass the merits test, and didn't have legal rights against retaliation because the disclosure wasn't worthy under the law. That is, the court's take on the law---which had become the irrefragable proof. This standard, which we tracked back to its roots, has its roots in King George's authority over the colonies in the American Revolution. It means uncontestable, undeniable, irre- futable or really incapable of being over- thrown---like King George's authority over the colonies! So, you're saying the court kept mov- ing the goalpost for any whistleblower, no matter what the Congress enacted, because it wanted to keep the power to decide who was and who wasn't a legiti- mate whistleblower? Devine: Yes---the court had turned the WPA from history's strongest free speech law to a Trojan Horse that would spell cer- tain doom for any employee who took their rights under it seriously. How did this situation evolve? Devine: Well, this court was created in 1982---[under legislation authored] by Sens. Ted Stevens and Pat Schroeder, heads of the respective relevant committees in Congress. The idea was to favor consistency in civil service rulings, and to get rid of any confusion between what happened in the merit system whether a case came from Alabama or Idaho. The court sure did create consistency: It was certain that the employee would lose. continued from page 1 Don’t miss our discussion of weekly news topics. Discuss these stories and more with your fellow federal workers at www.Federalsoup.com. continued on page 4
Aug 5, 2013
Aug 19, 2013