CIR: The War on Whistleblowers

Critics call for stricter OSHA regulations

Lisa Pickoff-White — Tue, 29 Jul 2008 14:30:03 -0700

While the Occupational Safety and Health Administration handed out its third largest fine in history, outside critics and an internal whistleblower are calling for more stringent regulations and for the agency to better police its own workers. The Imperial Sugar explosion in February, which killed 13 workers, put OSHA in the spotlight. While OSHA announced an $8.7 million fine on Friday, Imperial Sugar said that it met OSHA regulations and will fight the fine, according to an article in the New York Times. Critics, on the other hand, want OSHA to tighten rules and ramp up oversight. Safety violations are often grouped into the agency’s “general duty” clause, allowing inspectors to cite companies for unsafe practices that are not specifically regulated.

So while there were 44 violations issued for spark-producing electrical equipment, which is regulated, under the general duty clause there were only two, one at each plant, for faulty ventilation and two for failing to maintain dust collection systems. “It’s basically an admission that their standards have gaps,” Mr. [Eric] Frumin said.

For example, many safety violations aren’t on OSHA’s list of regulations, so inspectors have to cite them as general violations. Large explosions and other tragedies briefly spotlight draw attention to workplace safety. But job-related health issues, as opposed to accidents, account for 80 percent of all workplace problems, Adam Finkel, OSHA’s former director of health standards, notes. In 2002, Finkel leaked documents showing that OSHA was not testing its own inspectors for beryllium exposure. Finkel was transferred to a non-supervisor position within OSHA later that year. OSHA did not start testing inspectors until 2004. A year ago, a federal judge ordered OSHA to release the inspection data after Finkel filed a Freedom of Information Act request. Alternet reports:

The results were "a big eye-opener" for Finkel. Of OSHA's 989 inspectors in March 2005, 271 were tested, and 10 – or 3.7 percent ¬– were confirmed positive for sensitization. Based on information from Newman, the beryllium expert, Finkel had expected only 1 to 2 percent would be positive. As of March 2008, the numbers had increased only slightly, to 11 confirmed positives out of 301 tests. What do those results mean for the hundreds of other OSHA inspectors -- not to mention 1,000 or more retirees? "I don't know if it's the tip of the iceberg or the whole iceberg," Finkel says. So he went back into the ring with OSHA, filing a Freedom of Information Act request to find out how much beryllium the inspectors were exposed to. Then he went a step further, requesting records from all inspections where OSHA took samples for air contaminants.

>>Learn more about whistleblowers in the CIR and Salon report The War on Whistleblowers.

Deputy at whistleblower office resigns

CIR Staff — Mon, 21 Jul 2008 11:56:54 -0700

The second-in-command at the U.S. Office of Special Counsel, a federal agency designed to protect government whistleblowers, resigned last week, saying his boss, U.S. Special Counsel Scott J. Bloch, put "political agendas and personal vendettas" ahead of the OSC's mission. In an article for CIR and Salon last November, James Sandler reported that the system set up to protect whistleblowers has instead been used to punish them. The Office of Special Counsel, Sandler reported, has "long been considered a failure, due to a chronic backlog of cases, lack of resources and poor leadership." The resignation of James Byrne last week is the latest development in a drama that has been unfolding at the OSC for several years. As reported by the Washington Post:

James Byrne's resignation as deputy to Bloch is effective Saturday, The Associated Press reports. Bloch is under federal investigation, accused of destroying evidence potentially showing he retaliated against his own staff. Bloch, appointed by President Bush in 2003 to protect government whistle-blowers and to enforce prohibitions on political activity in the federal workplace, is facing allegations of political bias, obstruction of justice and mismanagement. The inspector general at the Office of Personnel Management has investigated Bloch since 2005 over alleged mistreatment of employees and his handling of whistle-blower cases.

>> Learn more about the Office of Special Counsel and the system designed to protect whistleblowers in a special project from CIR: "The War on Whistleblowers."

FBI raid on whistleblower official

James Sandler — Thu, 08 May 2008 01:27:37 -0700

Late last year, I interviewed United States Special Counsel Scott Bloch for a Salon.com article about the lack of protections for government whistleblowers—federal employees who his office is supposed to protect from retaliating supervisors and political appointees. Now Bloch is making headlines again. News broke Tuesday that federal agents raided Bloch’s home and office as part of an investigation that began in 2005—he was allegedly retaliating against his own whistleblowing employees. Tuesday’s raids came after Bloch hired a commercial computer repair company (Geeks on Call, 1-800-905-GEEK) to scrub his government computer. According to news reports, the FBI and the Office of Personnel Management were investigating whether the “Geeks on Call” episode amounted to destroyed evidence or obstruction of justice since Bloch was under investigation at the time. The OPM has been investigating a host of allegations against Bloch since more than a dozen of his own employees blew the whistle on him in 2005. Back in November, when I asked Bloch about allegations that he had "purged" backlogged cases and retaliated against his own employees, he responded defensively: "People have the right to file complaints if they want to and lawyers can say anything they want. But it’s all fiction. All the stuff is made up ... There are no whistleblowers that have complained to me. I don’t know of anyone who’s complained." He also wrote a lengthy response to the Salon.com article in the comments section of the online magazine:

Reckless accusations are leveled at me and my career officials at OSC, such as that we threw out 1000 cases without justifications. Why does Salon or whistleblower groups then repeat these scurrilous charges when a bi-partisan group of 13 investigators from Congress (House and Senate) came in, over three weeks, looked through our files and questioned my career staff in four areas of enforcement, and gave a clean bill of health in a letter, declaring that we did not throw those cases out without justification and said we were doing a “great job for whistleblowers?” That was in May of 2005, and still these baseless charges are trotted out every chance the press gets.

The FBI has not yet disclosed the motive or findings of this week's raid on Bloch's office. And Bloch has yet to respond to this latest move. On Wednesday, Republican Representative Thomas Davis III (Va.) called on Bloch to resign. “Civil servants depend on the OSC to protect them from discrimination and improper actions by supervisors … In light of the various investigations into Mr. Bloch's conduct, including the FBI probe revealed yesterday, it's hard to believe he can continue to operate effectively," said a statement released by Davis, who is the ranking republican on the House Oversight and Government Reform Committee. "It's time the OSC put this turbulent period behind it." In an article in today’s Washington Post, the White House refused to comment on the affair because it was a “personnel” matter.

Park police whistleblower wins case against feds

James Sandler — Fri, 15 Feb 2008 13:55:25 -0800

A high-profile whistleblower scored a crucial victory yesterday in her fight against the federal government, the focus of a CIR/Salon.com feature last November. Teresa Chambers—who was fired as Chief of the U.S. Park Police in 2004—prevailed in a petition she had filed with the U.S. Court of Appeals for the Federal Circuit. Chambers claimed in her petition that public comments she made about dwindling budgets and increasing crime in the nation’s parks—and her subsequent firing for making those comments—amounted to protected speech under the Whistleblower Protection Act. The Federal Circuit Court yesterday agreed, in a 2-1 decision, that Chambers’ comments were a “substantial and specific danger to public health and safety,” and that a lower court initially ruled incorrectly. The Appeals Court remanded Chambers’ case back to the lower court to reconsider its decision. The Appeals Court, however, sustained other charges of misconduct made against Chambers. Chambers, for her part, is not waiting around. She recently took a job a Police Chief of the Riverdale Park department in Prince George’s County, Maryland. “It could be years before the [lower court] renders its new decision,” Chambers said in response to the recent decision. “In the meantime, I'm very happy in my new position.”

Whistleblower official responds

Carrie Ching — Wed, 07 Nov 2007 12:13:46 -0800

Last week, James Sandler's investigation on whistleblower protections—or lack of—was published by Salon. Within hours the story was picked up by blogs, including IRE's Extra Extra and the FedBlog of GovernmentExecutive.com. Salon's comments forum was also pinging with responses. Many were from people who were whistleblowers themselves. The U.S. Special Counsel Scott Bloch, the man in charge of investigating whistleblower cases for the federal government, posted a lengthy response to Sandler's article. Excerpts from the Salon comments are below. Bloch responds:

I have tried to protect whistleblowers every chance I could. I have taken it on the chin from advocacy groups who profit from trying to stir up trouble and make everyone else but themselves look bad. I tried to file on behalf of Ms. Chambers, but her attorney with PEER (Public Employees for Environmental Responsibility) filed on her behalf before we could, and this deprived her of our ability to pursue her case. She lost our presumption of a stay of termination. If we had been allowed to file on behalf of Ms. Chambers, I believe we would have obtained the stay we were going to seek and the case would have been settled favorably for her. As it was, the court denied the stay requested by her and she has lost at every stage. —Mitch191

And an anonymous response to Bloch's post:

What Special Counsel Bloch says: "I tried to file on behalf of Ms. Chambers, but her attorney with PEER (Public Employees for Environmental Responsibility) filed on her behalf before we could, and this deprived her of our ability to pursue her case." What the law says: "If an employee . . . seeks a corrective action from the Board under section 1221 . . . the Special Counsel may continue to seek corrective action personal to such employee . . . with the consent of such employee. . ." 5 U.S.C. 1214(a)(4) —Anonymous

Other comments:

obviously whistleblowing is a fools errand. however that's what the press is for. —david sugarman

My advice to potential whistleblowers -- based on my personal experience -- is that if you blow the whistle you might as well pack up your shit and wait to be escorted out the door or to the basement. Period. Your performance is irrelevant. Your length of service is irrelevant. The fact that you have a "really good case" is irrelevant. —Mishima666

I've "blown the whistle" twice, once while working for the federal government, once while working for a private corporation. Results: good. Retribution: none. How is this possible? If your goal is to correct a problem (rather than take personal credit and glory) there are a thousand ways to shed an embarrassing light, which cannot be ignored, on a problem - anonymously. Get smart before you take any action and you need not fear punishment. In fact, the entire exercise can be great entertainment (watching them scurry to fix the problem, while not quite understanding how they came to be on the defensive). —comfortable

I am a long-serving Navy attorney and have done significant work in the area of complaints on both the civilian and uniformed side of the house. This is a good story in that it points out issues in our system of resolving these types of complaints, but it is not the full story. One can read this and walk away with the impression that anybody that complains is subjected to retaliation and of those retaliated against, only a small number ultimately receive protection and/or justice. What it does not do is give you the numbers of people who report issues and are never retaliated against or the numbers of people who report issues, are retaliated against and receive some form of protection and/or justice before it goes to the MSPB obviating the need for a MSPB hearing. —jazzlstnr

>> Read more comments on "The War on Whistleblowers" on Salon's website. >> Read blog responses to "The War on Whistleblowers" on Technorati.

The War on Whistleblowers

Carrie Ching — Tue, 30 Oct 2007 13:05:19 -0700

America’s whistleblower courts were created to ensure federal employees could fearlessly speak out about government abuse, corruption and mismanagement. This CIR/Salon investigation reveals that the system set up to protect whistleblowers has instead been used to punish them. At whistleblower court, employees lose nearly 97 percent of the time. >> Read the story on Salon.com If there is any doubt about how the Bush administration treats government whistle-blowers, consider the case of Teresa Chambers. She was hired in early 2002, with impeccable law enforcement credentials, to become chief of the United States Park Police. But after Chambers raised concerns publicly that crime was up in the nation's parks, she was rebuked by superiors and fired. When Chambers fought to regain her job through the legal system meant to protect whistle-blowers, government lawyers fought back, and associated her with terrorists. Despite a multiyear legal struggle, she is still fighting for her job. Whistle-blowers have faced hostility not only under Republican administrations. During President Clinton's tenure, Bogdan Dzakovic, an undercover security agent with the Federal Aviation Administration, suffered retribution for speaking out about weak airport security -- three years before Sept. 11, 2001. Dzakovic was passed up for promotion time and again, and today, he says, he remains consigned to data entry duties for the Transportation Security Administration. Every year, hundreds of federal workers sound the alarm about corruption, fraud or dangers to public safety that are caused or overlooked -- or even covered up -- by U.S. government agencies. These whistle-blowers are supposed to be guaranteed protection by law from retaliation for speaking out in the public's interest. But a six-month investigation by the Center for Investigative Reporting, in collaboration with Salon, has found that federal whistle-blowers almost never receive legal protection after they take action. Instead, they often face agency managers and White House appointees intent upon silencing them rather than addressing the problems they raise. They are left fighting for their jobs in a special administrative court system, little known to the American public, that is mired in bureaucracy and vulnerable to partisan politics. The CIR/Salon investigation reveals that the whistle-blower system -- first created by Congress decades ago and proclaimed as a cornerstone of government transparency and accountability -- has in reality enabled the punishment of employees who speak out. It has had a chilling effect, dissuading others from coming forward. The investigation examined nearly 3,600 whistle-blower cases since 1994, and included dozens of interviews and a review of confidential court documents. Whistle-blowers lose their cases, the investigation shows, nearly 97 percent of the time. Most limp away from the experience with their careers, reputations and finances in tatters. Legal experts and lawmakers say the system is badly in need of reform. In fact, new legislation to strengthen whistle-blower protections has been moving through Congress this year, with strong bipartisan support, and is expected to come before the Senate this session. But in the latest setback to the system, the Bush White House has vowed to veto the legislation, citing among its criticisms a risk to national security. "Whistle-blowers are treated like a skunk at a picnic, and there's no excuse for it," Sen. Charles Grassley, the Iowa Republican, said after being provided with details of the CIR/Salon investigation. Grassley has long sought stronger whistle-blower protections and is backing the new legislation toward reform. "It's whistle-blowers who can help us truly understand problems at government agencies. They stick their necks out to speak the truth. They don't take the easy way out." "It's imperative that there are whistle-blower protections for civil servants when they see something that is wrong," said Lynn Jennings, an attorney who served during the Clinton administration as general counsel for the special whistle-blower court, known as the Merit Systems Protection Board. "They need to know that if they speak out they are going to be protected. Ultimately, it is to save lives, to save money, to save the integrity of the federal government." To be sure, some cases brought by whistle-blowers are frivolous. Recent cases included one in which an employee sought protection after reporting missing candy bars at a government commissary. In another case, a worker complained about colleagues using a drinking fountain as a spittoon. One government worker was discovered by investigators to have fabricated his entire complaint. Most such cases, however, are weeded out of the system. But the apparently legitimate cases -- some involving serious issues such as aviation security or tainted meat in the U.S. food supply -- have long been undermined by a lack of resources and case backlogs. And legal precedents created by the Federal Circuit Court of Appeals in Washington -- the sole appeals court that hears and interprets the law for the special whistle-blower system -- have made it virtually impossible in recent years for whistle-blowers to win their cases. The beginnings of modern whistle-blower protections can be traced to the U.S. Senate floor in April 1951, when the junior senator from California proposed a new law, telling his fellow lawmakers that "it is essential to the security of the nation and the very lives of the people" that employees do not become "a parade of yes-men for administration policies." The senator was Richard Nixon, and his proposed law eventually stalled. It might have faded away forever, if not for the scandal that shook public confidence in the federal government under Nixon's own administration two decades later. In the wake of Watergate, Congress passed the Civil Service Reform Act of 1978. It established the Office of Special Counsel, with a staff of investigators to look into complaints of retaliation against employees who spoke out. The new law also created the Merit Systems Protection Board, the administrative court with a bipartisan panel of three judges, and it assigned a special federal appeals court to interpret the law in the most complex cases. But year after year, whistle-blowers complaining of retaliation lost their cases. Some faced insidious tactics by their co-workers and superiors. Joseph D. Whitson Jr. was a civilian chemist in the Air Force who spoke out about superiors falsifying drug test results. His desk was moved to a room in the basement and his job duties stripped. Vernie Gee Sr. was an agricultural inspector who sounded the alarm about tainted meat in the U.S. food supply and inspectors taking bribes from slaughterhouses. Gee was beaten up by a plant worker during an inspection -- and then reprimanded by superiors for fighting. George Randall Taylor, a chief of police at a Navy base in Bermuda, exposed coverups of rapes on the base. He was then forced into a psychiatric hospital. Before Teresa Chambers was fired from the Park Police, she found used condoms on her car, and someone pepper-sprayed her office door. "One of the great tricks in whistle-blowing is to get rid of someone for a reason that doesn't seem like it was for whistle-blowing," said Fred Alford, a professor of government at the University of Maryland. "You do all the things you can to get someone to quit, to get them enraged, to get them to act out. Then you can fire them." Government managers and attorneys almost always argue that measures taken against whistle-blowers were justified because of bad behavior or poor performance by the employee. "It is usually not that hard for [agencies] to build up a case against somebody if they want to," said Elaine Kaplan, who headed the Office of Special Counsel under President Clinton. "They start looking at your e-mails, they start nitpicking you â€¦ It is difficult to prove whistle-blower retaliation." Details of Chambers' case reflect that struggle. Prior to becoming chief of the Park Police, Chambers had a distinguished 28-year career in law enforcement. She was a Republican, was eager to serve the nation in the wake of the 9/11 terrorist attacks, and would be the first woman to lead the force. But her pedigree apparently would no longer matter once her public comments created political embarrassment for the Bush administration. After 9/11, the administration feared terrorist attacks on high-profile U.S. landmarks, and ordered Chambers to double the number of officers standing guard at icons like the Statue of Liberty and those on the National Mall in Washington. But the Park Police force already faced staffing shortages, and Chambers was forced to pull officers who were patrolling other national parks, leaving those areas vulnerable. Drug dealers soon moved in, and rapes more than tripled. In August 2002, when one of Chambers' patrolmen was handling a traffic accident with insufficient backup, he was run over and killed. In the fall of 2003, when a Washington Post reporter contacted Chambers for a story about the growing peril in the parks, she responded candidly. The Park Police, she told the Post, needed twice as many officers and millions of dollars to cover overtime expenses. She said officers had been working grueling 12-hour shifts, and department morale was plummeting. "My greatest fear is that harm or death will come to a visitor or employee at one of our parks," she said. Retaliation against her began almost immediately. Chambers' supervisor, Donald W. Murphy, then the deputy director of the National Park Service, ordered her in an e-mail to never again "reference the President's '05 budget under any circumstances" and summoned her to his office. In court documents later filed by Chambers she described how armed federal agents suddenly appeared and surrounded her in Murphy's reception area, and took away her gun and badge. She was then paraded in front of media when escorted to another building to collect her belongings. During the course of her case, Bush officials and attorneys attacked Chambers from multiple angles, documents show. One high-ranking official at the Interior Department, which oversees the Park Police, said Chambers was no longer "trustworthy" and that she "potentially endangered large numbers of citizens" by speaking to the media. Murphy, her former boss, said Chambers had been "communicating to the criminal elements," signaling to them that national parks had become their "free territory to exploit." A lawyer for the Bush administration asserted that Chambers had made reconnaissance operations easier for "America's enemies in the world." In a recent interview, Chambers questioned whether raising concerns about an understaffed force angered Bush officials who were talking up policies for securing the U.S. homeland. "Was it just a bad day at the White House where I said we needed more officers, when somebody else was standing at a podium saying we've never been safer?" asked Chambers, who now teaches part-time at Johns Hopkins University and maintains a Web site documenting her case. "I don't know." One advocacy group that assists whistle-blowers, the Government Accountability Project in Washington, has scrutinized past rulings to determine how whistle-blowers fare. GAP's pioneering work showed that whistle-blowers seldom win. But until now, no comprehensive study has been done on whistle-blower cases. The Merit Systems Protection Board does not specifically keep track of cases, but using records obtained through the Freedom of Information Act, the CIR/Salon investigation reviewed 3,561 whistle-blower cases filed since 1994, when the Whistleblower Protection Act was last revised by Congress. The cases often traversed a costly and drawn-out series of legal steps prior to a decision. During the Clinton administration, in cases from 1994 to 2000, whistle-blowers won only 3.5 percent of the time. During President Bush's tenure, from 2001 through June 2007, 3.3 percent of whistle-blowers won. Most whistle-blowers spent several years fighting in court. "Whistle-blowers are overly confident in the law, but in most cases there is no recourse," said University of Maryland's Alford, who has studied the issue. "We have this idea of whistle-blowers from television -- from '60 Minutes,' from Time magazine. But most whistle-blowers live and die in anonymity." "If you are looking at that record and advising [a whistle-blower], I would suggest seeking out a different venue," said Robert G. Vaughn, a law professor at American University who has written extensively about the Merit Systems Protection Board. Beth Slavet, a former judge on the Merit Systems Protection Board during the Clinton and Bush administrations, said of the court's record: "It has a chilling effect. Why would you bring a case that you don't think you can win?" The system's track record has left some whistle-blowers wondering whether their cases were tainted by partisan politics. In the 2003 case of Craig F. Johns, a former special agent for the Department of Veterans Affairs, confidential court documents obtained by CIR and Salon reveal such meddling -- by a Republican judge on the court itself. Johns' case, which alleged forged training records and anti-gay harassment inside his agency, had crawled through the whistle-blower courts for seven years. In 2003, his case reached its final appeal at the Merit Systems Protection Board. At the time there was a vacancy on the bipartisan three-judge court. Johns' case was being heard by a Democrat and a Republican -- two judges with sharply different interpretations of the whistle-blower law. Beth Slavet, the Democrat, was a former staffer for Sen. Ted Kennedy and had an extensive career practicing labor law. Her Republican colleague, Susanne T. Marshall, had never been an attorney or even graduated college, but had been appointed to the court after a long career as a Republican staffer on the Senate committee for governmental affairs. The two judges had in fact battled for more than three years over the Johns case, the court documents show, clashing over, among other things, how to address Johns' claims of anti-homosexual harassment. Discrimination laws do not cover sexual orientation, but Slavet felt Johns' case underscored such a need and drafted a decision that would grant Johns' case a new hearing. But Marshall disagreed, and she used a procedural tactic to stall the case until an incoming Bush-appointed judge arrived to replace Slavet, whose term was almost over. Slavet wrote a scathing memorandum to Marshall in response: "It is fundamentally unfair to the parties and destructive of the process to hold up these cases pending my departure and Mr. McPhie's confirmation," Slavet wrote in the memo dated Feb. 25, 2003, referring to the incoming Bush appointee, Neil McPhie. Soon after, McPhie joined the court and Slavet's term ended. Marshall and McPhie decided the Johns case that August: "Corrective Action Denied." It was not the only case that Marshall stalled, documents show. There was the case of Lori A. Sutton, a Department of Justice secretary who alleged retaliation after filing an equal opportunity complaint; and the case of Valerie E. Johnson, a Department of Defense commissary worker who alleged retaliation after exposing the reselling of food items that had been picked at by rats. Marshall and McPhie also ruled against these whistle-blowers. Marshall is no longer with the court and could not be reached for comment. But the current general counsel of the Merit Systems Protection Board, Chad Bungard, disputed that Marshall's stalling of whistle-blower cases should be chalked up to partisan politics. "This could be totally innocuous," Bungard said. "I can't speculate on what Marshall's intent was." Craig Johns has since left government work and opened a rescue ranch for injured animals in Texas, naming it the Ranch of Last Resort. "It's very disturbing, to learn about this political interference," he said recently. "This is why I prefer the company of animals to people." Johns' case, like many others, never made it to the Federal Circuit Court in Washington, the only court that can preside over appeals of whistle-blower cases beyond the Merit Systems Protection Board. Through a series of precedent-setting rulings -- which are binding for the entire whistle-blower legal system -- the judges on the Federal Circuit Court have interpreted the law in recent years to the point where, as one investigator from the Office of Special Counsel put it, whistle-blowers must "utter magic words" to get protection. Whistle-blowers are often employees who, during the course of their jobs, notice violations of rules or laws; before going public, they may casually mention the wrongdoing to a boss, or write a memo expressing the need to address a danger to public safety. Teresa Chambers is one example of a person who first raised concerns within her department, to no avail. But legal precedents created by the Federal Circuit Court have rigged the odds heavily against such employees. One ruling determined that employees will not be protected if the nature of what they disclose is "debatable" by others. Another precedent says whistle-blowers won't be protected if the coverup they disclose is common knowledge in the office. Another precedent strips protections for whistle-blowers who complain only to their direct boss but to no one higher up the chain. Perhaps the most notorious precedent, known as "Huffman," says whistle-blowers will not be protected if it is their job to scrutinize safety issues or mismanagement, and they speak out about a coverup -- like meat inspectors who discover a coverup of tainted beef in the food supply, or law enforcement officials who speak out about dangers to public safety. In other words, these legal precedents have made the law more beholden to murky workplace protocols than to the substance of the allegations, even when those allegations concern serious public safety issues and are proven to be true. "The problem is that no whistle-blower knows a damn thing about whistle-blowing before they do it. You can't go back and repackage the disclosure to meet the requirements of the law," said a senior Pentagon official who specializes in employment law. The official spoke on the condition of anonymity, fearing that he would not be protected from retaliation if he were openly critical of whistle-blower protections. "Never have your name in print," he said. Another government lawyer, who insisted on anonymity for the same reason, characterized the Federal Circuit Court's view of whistle-blowers as juvenile. "No one likes a tattletale," he said. "It's that simple." The Federal Circuit Court's longest sitting jurist, Haldane Robert Mayer, was appointed by Ronald Reagan. Prior to his appointment, Mayer had been the acting U.S. special counsel -- the chief whistle-blower investigator. But Mayer resigned from that position in 1982 after the Office of Special Counsel was accused of holding seminars for political appointees and agency managers -- to teach them how to fire whistle-blowers effectively within the confines of the law. The scandal led Congress to strengthen the whistle-blower law, but it did not stop Reagan from appointing Mayer to the bench. "Judge Mayer is one of the most significant people in the legal system to translate the whistle-blower law passed in response to his own [alleged] abuses of power," said Tom Devine, legal director for the Government Accountability Project. Judge Mayer did not respond to an interview request. In fact, many whistle-blower cases never even make it to the court. They first go to the U.S. Office of Special Counsel, the agency charged with investigating whistle-blower complaints. But the agency has long been considered a failure, due to a chronic backlog of cases, lack of resources and poor leadership. Year after year, the special counsel attempts to justify the existence of the agency by publicizing a handful of whistle-blower cases. "You make examples of high-level and mid-level officials to let them know that they are not going to get away with it," explained Scott Bloch, the current special counsel, during an interview in September. But in reality, only 5 percent of employees said they were satisfied with the treatment their case received from the Office of Special Counsel, according to an agency survey released last year. Whistle-blowers find themselves waiting in line behind hundreds of other employees who file complaints each year. Elaine Kaplan, the Clinton-era special counsel, left office with more than 1,000 cases backlogged. "We received a tremendous amount of complaints there," she said. "To tell you the truth, we were starting to move cases more quickly toward the end, but no one wants their case to move quickly to a bad conclusion." Since Bloch's appointment by President Bush in 2003, the office has been fighting critics from both political parties, going round and round over allegations of everything from purging backlogged cases to discriminating against gay whistle-blowers. Bloch himself has for two years been under investigation for retaliating against his own employees. "People have the right to file complaints if they want to and lawyers can say anything they want," Bloch said when asked about the whistle-blower complaint against him. "But it's all fiction -- all the stuff is made up!" The new whistle-blower law making its way through Congress, called the Whistleblower Protection Enhancement Act of 2007, is no panacea. But crucially, say its backers, it would allow whistle-blowers to appeal their cases in other U.S. circuit courts, whose judges may have a different interpretation of the law than those on the Federal Circuit Court. And prior to that stage, if the Merit Systems Protections Board didn't act on a case in a timely manner, whistle-blowers would be able to get a jury trial at a federal district court. Moreover, the legislation would seek to include whistle-blowers in the national security realm, instead of having to rely on more secretive internal procedures at the FBI or other law enforcement and intelligence agencies for recourse. "These changes would help whistle-blowers appeal negative decisions and hopefully increase the likelihood their complaints of retaliation would be heard," said Sen. Grassley, who is co-sponsoring the legislation. Briefed on the results of the CIR/Salon investigation, Democratic Sen. Daniel Akaka of Hawaii, who introduced the legislation, said: "What these statistics show is a real need to strengthen protections for federal whistle-blowers and close loopholes in the law created by judicial decisions that are inconsistent with congressional intent. It is important for our laws to protect the rights of these individuals who come forward with legitimate claims." But the Bush administration has vigorously opposed stronger whistle-blower protections. In a confidential e-mail from 2006, obtained by CIR and Salon, the White House registered strong objections to a congressional committee that was reviewing a similar law to protect whistle-blowers drawn up last year, saying the "excessively overbroad definition of whistleblowing ... forbids using any common sense." And President Bush has said he will veto the new legislation moving through Congress, saying in a two-page Statement of Administration Policy that the new law would "increase the number of frivolous complaints and waste resources" and could "compromise national security." Sean Kevelighan, a spokesman for the Bush administration, declined to elaborate on the administration's position. "There is a policy that we let the Statements of Administration Policies speak for themselves," said Kevelighan. But for the thousands of federal employees who have descended into the bewildering world of whistle-blowing, there is only deep frustration or bitter resolve. "My only regret is the stress that it placed on my family, my wife, myself," said Craig F. Johns, the Veterans Affairs special agent whose appeal was blocked by Marshall, the Republican judge. "I'm still suffering the economic and psychological consequences, but I will never regret speaking the truth." "I grew up believing that federal service was an honorable profession," said Bogdan Dzakovic, the former undercover FAA investigator, who remains a federal employee, unhappily waiting for his pension. "I realized that [blowing the whistle about security problems] was a totally pointless exercise." Teresa Chambers, the former Park Police chief, is still trying to appeal her case to the Federal Circuit Court, nearly four years after her firing. "Growing up in municipal policing, it was the expectation that we would be candid with the community that we served," Chambers said. "I was aghast to find out that [in the federal workforce] candor was not only not expected, it was in this case forbidden."

Protecting Whistleblowers: Richard Nixon?

Carrie Ching — Mon, 29 Oct 2007 23:00:00 -0700

When he was a young U.S. Senator, Richard Nixon stepped forward as one of the great champions of whistleblower rights. History would eventually catch up with him. Produced by: Carrie Ching
Written by: James Sandler

The Whistleblowers: Selected Case Studies

Carrie Ching — Wed, 26 Sep 2007 17:24:02 -0700

The whistleblowers below are not all protected by the current Whistleblower Protection Act, which does not cover federal employees who work at certain national security agencies, in certain scientific or research capacities, nor does it extend to private contractors. The whistleblower legislation circulating in the House and Senate aims to protect many of the whistleblowers exempted from current law.

Department of the Interior Teresa Chambers, Chief of the US Park Police, was fired for blowing the whistle on dangerous staffing shortages in her department. An Inspector General found a “climate of fear” at the agency and employees complained about the chilling effect her case had on whistleblowing. They called it the “Chamber’s Effect.” National Security Bogdan Dzakovic was an FAA security investigator who blew the whistle on airport security weaknesses known prior to 9/11. After 25 years of government service, he is now “updating agency phonebooks” and doing other administrative tasks at the TSA.
Mike German was an FBI Special Agent, and a rising star in the Bureau, who blew the whistle on colleagues violating wiretap regulations in a counter-terror operation. He went up the chain of command with his allegations, and was later forced to resign.
Frank Terreri was a federal air marshal who disclosed serious security problems in the post-9/11 Air Marshal Service. Superiors took his gun and badge and opened several investigations against him. He was reinstated one day after the ACLU filed a first amendment suit.
Pentagon
Bunny Greenhouse was the top procurement official at the Army Corps of Engineers. She blew the whistle on a multi-billion dollar no-bid contract with Halliburton for work in Iraq and was subsequently demoted.

Samuel Provance was an army intelligence soldier who blew the whistle on a cover-up involving abuses at Abu Ghraib. He was demoted and alleged a campaign of humiliation and retaliation against him. He was honorably discharged in 2006.
Ernie Fitzgerald was one of America’s seminal whistleblowers, a civilian Air Force analyst fired in 1969 after disclosing a $2.3 billion dollar cost overrun in a pentagon aircraft program. He was eventually reinstated and served the government until retiring, at age 80, in 2006. Miscellaneous
Rick Piltz was a senior official with the U.S. Climate Change Science Program who blew the whistle on a White House official—a former petroleum lobbyist—who was altering scientific reports to reflect administration views. He resigned out of frustration.
Natresha Dawson was a paralegal at the Office of Special Counsel, the agency charged with investigating whistleblower complaints. She was fired for criticizing the counsel’s general lack of respect for whistleblowers. The Special Counsel is currently under investigation for retaliation against several of his employees.

Defining a Whistleblower: The Legal Precedents

Carrie Ching — Tue, 25 Sep 2007 13:35:54 -0700

The Whistleblower Protection Act—the modern legal shelter for federal whistleblowers—was last strengthened by Congress in 1994. Since then, the U.S. Court of Appeals for the Federal Circuit—currently the only appeals court that can hear government whistleblower cases—has single-handedly changed the meaning of whistleblower protections. When the Federal Circuit rules on a case, it often creates new standards that whistleblowers must abide by in order to be protected under the law. Below are some of the most frequently cited legal precedents, which critics argue, have made it nearly impossible for federal employees to blow the whistle. Laws currently circulating the House and Senate seek to overturn many of these precedents: John D. Horton v. Department of Transportation, September 1995

John D. Horton alleged retaliation after complaining to his boss about misconduct in the office. The Federal Circuit said that while misconduct may have occurred, Horton was not protected from retribution because he spoke out to his boss, who he also alleged was involved in the misconduct. The Court said that the purpose of the law is “to encourage disclosure of wrongdoing to persons who may be in a position to act to remedy it, either directly by management authority, or indirectly as in disclosure to the press.” This precedent has been criticized for encouraging employees to first go outside of their chain of command, instead of raising concerns internally.

William E. Willis, II v. Department of Agriculture, April 1998

Willis was not protected from retaliation after uncovering wrongdoing, because uncovering wrongdoing was part of his day-to-day job responsibilities. The Federal Circuit said that even if Willis suffered retaliation for speaking out, he did nothing “for the benefit of the public good” and “did no more than carry out his required everyday job responsibilities.” Critics argue this precedent could subject government employees like meat inspectors or law enforcement officials—whose job it is to uncover wrongdoing—to retaliation if what they uncover is unpopular with managers of political appointees.

Larry Meuwissen v. Department of Interior, December 2000

Meuwissen was not protected from retaliation because while what he spoke out about may have been unlawful, it was a common practice at his agency. The Federal Circuit said that “ a disclosure that is publicly known is not a disclosure.” The purpose of the law, the court said, is to “protect employees who possess knowledge of wrongdoing that is concealed or not publicly known, and who step forward to help uncover and disclose that information.” Critics argue this precedent dissuades employees from coming forward if others already know about the wrongdoing.

Kenneth D. Huffman v. Office of Personnel Management, August 2001 The Huffman case codified precedents set earlier in Horton and in Willis, saying that the employee cannot prove retaliation after blowing the whistle as part of his job duties or to the alleged wrongdoer himself.

John E. White v. Department of the Air Force, December 2004 White faced retaliation after he blew the whistle on gross financial mismanagement at his agency. While his allegations were eventually proven, the Federal Circuit ruled White was not protected because the allegations were “debatable by reasonable people.” This decision softened a related decision whereby the employee must have “irrefragable proof” of gross mismanagement. Critics argue this precedent requires that whistleblowers come forward with an unrealistic and unattainable level of proof.

Garcetti v. Ceballos, May 2006 This U.S. Supreme Court decision regarding a state employee’s case codified the precedent set in Willis whereby an employee is not protected from retaliation if he blows the whistle during the course of his normal job duties. As such, Garcetti limits the degree of public employees’ free speech rights while they are on the job.