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Keep It Safe for Whistle-Blowers

September 26, 2000|TOM DEVINE and MARTIN EDWIN ANDERSEN | Tom Devine is legal director for the Washington-based Government Accountability Project. Martin Edwin Andersen, a former senior advisor for policy planning with the criminal division of the U.S. Department of Justice, was a whistle-blower in 1997 regarding a department program

It may not titillate official Washington like the awful debate over what the meaning of "is" is, but the short-term fate of hundreds of federal government whistle-blowers hangs on Congress reaffirming before adjournment its definition of "any." At stake is whether an out-of-control U.S. Court of Appeals will stymie more than a decade of bipartisan consensus and be allowed to gut one of the most important clean-government laws of the last century.

In 1989 Congress passed by unanimous vote, and five years later strengthened, the Whistleblower Protection Act, or WPA. The statute protects federal workers who challenge waste, fraud and abuse of the taxpayers' trust in the workplace. Until its passage, federal workers were prevented from exercising their 1st Amendment rights and brought cases of wrongdoing to the public's attention only at the greatest peril to their careers and livelihoods.

A series of decisions by the U.S. Court of Appeals for the Federal Circuit, a hotbed of extreme activism hostile to federal employee rights, have shot the WPA through with gaping holes that leave whistle-blowers in arguably worse shape than before Congress passed its landmark legislation. It's bad enough that the court has a monopoly on judicial review for all civil service cases. It's downright sinister that the bench is headed by H. Robert Mayer. His attacks on whistle-blowers--when he was a government manager--helped move Congress toward passage of the WPA as an attempt to shield them from his agency's predations.

Congress unanimously reaffirmed its intent in 1994 with amendments that strengthened the WPA. A year later the Federal Circuit Court began issuing decisions that stripped whistle-blowers of their rights. The most immediate problem is a series of precedent-setting rulings creating exceptions to coverage for "any"--the word chosen by Congress--lawful disclosure evidencing specific, significant misconduct.

The decisions have ripped away protection for whistle-blowers who disclose wrongdoing to possible wrongdoers (frequently their bosses), within the chain of command, when performing their job duties, or when challenging illegal policies. What this means, in practice, is that whistle-blowers can no longer feel they are protected by the law when they attempt to solve problems internally.

Typically, whistle-blowers try to work within the system. In stripping protection for nearly 95% of these people, the only protection left is when they make disclosures concerning personal conduct on matters unrelated to their responsibilities as public servants.

Last year, the court exceeded the limits for any rational definition of extremism. In White vs. LaChance it redefined the legal concept of "reasonable belief" in a way that cancels protection under the law for whistle-blowers. The court found against whistle-blower John White, whose criticisms of an Air Force pork barrel training program had been upheld by an independent third-party review, as well as a chagrined military agency that agreed to cancel it.

The court claimed that federal workers could not claim "reasonable belief"--the test for qualifying for protection--unless they overcome a presumption that the government acts "correctly, fairly and in good faith" by "irrefragable proof." This polysyllabic test, according to Webster, means "incapable of being overthrown, incontestable, undeniable, incontrovertible."

The court has set the bar so high that it is easier to send a criminal to jail than it is for a whistle-blower to have his or her rights protected under the WPA.

This election year has seen a lot of high-minded promises being made about restoring faith in government and protecting the taxpayers. When it was passed in 1989, a bipartisan group of legislators said that the WPA should be called the Taxpayer Protection Act. Those incumbent representatives who want to redeem their pledges to the voters should move to restore the WPA protections by law, with a normal judicial review process outside the hands of a band of willful judicial hatchet men.

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