No One Likes Snitches, Including Judges

by
Ann Woolner
Bloomberg news columnist

February 22, 2008

Politicians never tire of campaigning against waste, fraud and abuse in government. It is as if the three evils appear as budget items requiring only sufficient intestinal fortitude to snip out.

If it were that simple, we wouldn't need whistleblowers. It isn't. We do.

Pentagon auditors disclose ghost purchases for items that don't exist. Forest agents find a cover-up of parkland timber theft amounting to tens of millions of dollars involving companies close to the Clinton White House.

Then there are those who warn of hazards their superiors won't acknowledge. The chief of the U.S. Park Police tells the Washington Post her department is too underfunded to properly protect national sites post-Sept. 11.

Inspectors buck airline-friendly higher-ups to make safety violations known, as Business Week recently reported.

An air marshal complains his agency requires undercover agents to identify themselves in front of other passengers when boarding and to dress in a way that makes them stand out.

But doing the right thing can mean ratting on the boss, who is more likely to bestow walking orders than medals on those who do the exposing.

So Congress passed a law in 1978 and strengthened it in 1989 to say federal managers can't fire, demote or reassign to broom- closet duty employees who blow the whistle. It's a good law, but it's only a law.

Judges Step In

In real life, the federal judges charged with interpreting that law don't seem to like it much. Ever since it began taking these cases, the U.S. Court of Appeals for the Federal Circuit in Washington has weakened protections for whistleblowers while making it easier for managers to retaliate.

Only two employees won reprisal claims in the appeals court in more than 13 years, compared with 183 managers who prevailed, according to the Government Accountability Project, a Washington- based nonprofit watchdog.

No doubt some employees penalized for poor work invoke bogus claims to whistleblower rights. But we are talking about a court that seems to either assume they're almost all bogus or which re- writes the law to create impossible hurdles for even the solid ones to jump.

The lopsided record suggests "obsessively hostile judicial activism" by a court intent on defeating the law's purpose, Tom Devine, legal director of the group, has told Congress.

Steer Clear

So when whistleblowers want to appeal a decision by the pro- management Merit Systems Protection Board, they can expect a tremendous "emotional and financial outlay with no good result in the end," says Debra Katz, a lawyer in Washington's Katz, Marshall & Banks, focusing on employment, whistleblower law and civil rights law.

"We have really advised clients to not to pursue that," Katz says.

Besides the body count, the court hurts whistleblowers by writing precedent-setting rulings narrowing the protections Congress enacted.

Consider these decisions:

You aren't eligible for protection if someone else blew the whistle first, even if you risked your job to corroborate the other informant's allegations.

In another decision, the court said you also can lose if your superiors already knew they were doing wrong. (Yes, you read that right.)

Take Aim

If your boss harasses you in the mistaken belief you are the one who blew the whistle, you are out of luck. That is, the appeals court held, managers who finger the wrong employee as a snitch can freely retaliate.

What is that, the two-wrongs-make-a-right doctrine?

And consider this: The appeals court in 1995 ruled against a border patrolman who was sacked after reporting that another agent fatally shot and buried an unarmed Mexican in an unmarked grave. The agency blamed the snitch for not snitching sooner. Apparently he took too much time — overnight — to shake off the killer's implied death threat against him.

The court in 1993 ruled that whistleblowers, to win a retaliation claim, had to first overcome the "presumption that public officers perform their duties correctly, fairly, in good faith and in accordance with the law."

Six years later, the court said meeting that burden requires "irrefragable proof." The word means airtight.

That is the decision for which the appeals court has been most roundly slammed because it makes it virtually impossible to win a retaliation claim. It also clearly showed the court's bias.

Reasonable Belief

The whistleblower law itself merely says the employee qualifies for whistleblower status if he or she "reasonably believes" that misconduct has occurred.

The "irrefragable" language created such a backlash, inviting Congress to rein in the court yet again, that the judges later eased off a tad. They narrowed slightly the sorts of cases where it would be applied and ruled that a tattling employee can get whistleblower protection if the official conduct is so egregious it isn't "debatable among reasonable people."

The irony is that this back and forth sprung from a case brought by an Air Force computer specialist who had complained that a training program was counterproductive, wasteful and illegal. Eventually, the secretary of the Air Force agreed and axed the program, but not before the whistleblower, John E. White, had been reassigned to an outpost in the desert. White got no relief from the court.

Patent Work

Congress, which shored up the whistleblower law in 1994, is again poised to step in. The House and Senate have passed bills to shut the loopholes the appeals court created and to end the exclusive hold those judges have on whistleblower cases.

Like other sorts of disputes, these would be handled by appellate courts based where the issues arose.

The judges on the Washington court probably won't miss this type of work as the overhaul would let them focus on patents, which is their main task, anyway.

Fine. Spread the civil service work around. Then federal employees who blow the whistle on waste, fraud and abuse would stand a chance of getting a fair hearing on whether they deserve protection against a vindictive boss.

(Ann Woolner is a Bloomberg news columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner @ bloomberg.net.

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The original of this article: No One Likes Snitches, Including Judges: Ann Woolner  Bloomberg.com