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Whistleblower News: One Major Setback, One Important Victory

Whistleblowing has a long tradition in America of outing the wrongs and public risks of corporate and government entities that would otherwise not be held accountable.
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For employees with access to that information, becoming a whistleblower is not a decision to be taken lightly. You do it because it’s the right thing. In qui tam cases, you may also be handsomely rewarded if it is later revealed that you saved the U.S. government a significant amount of money. Also, the Whistleblower Protection Enhancement Act, passed last year by Congress, allows for compensatory damages for those whistleblowers who win their cases following an administrative hearing.

Of course, government itself is not always open to having its flaws revealed. Whistleblowers everywhere suffered a serious setback with the issuance of an Obama administration memo, instructing both the Office of Personal Management and the director of national intelligence to set standards given federal agencies broad power to fire employees – without appeal – if they are deemed ineligible to hold “noncritical sensitive” jobs. Essentially, it provides a sweeping power to sidestep civil service laws, which lays the foundation for whistlblower rights.

The government brushes off criticism of the request, saying the standards will simply allow agencies to better know which jobs are going to qualify as “sensitive.” But the guidelines are extremely vague, and could potentially include jobs such as police, immigration officials and customs enforcement personnel.

If these proposed rules are finalized, they could be invoked to deny a broad number of employees the right to defend themselves in whistleblower cases when they are subject to retaliation – as they almost always are. Those workers would be denied the potential for compensatory damages because they would be conveniently denied an administrative hearing.

Take the case of a Marine Corps adviser who, upon returning to Iraq, publicly disclosed bureaucrats in the Pentagon blatantly ignored on-the-ground request for vehicles that were resistant to mines, when roadside bombs were posing a major threat to active duty soldiers.

The adviser was suspended, but later reinstated following an appeal through the Merit System Protections Board.

This is not an isolated situation. Just in the last 10 years, we have whistleblowers to thank for the exposure of the Bush administration’s efforts to censor climate change reports and the U.S. Food & Drug Administration’s shortcomings in halting the distribution of unsafe drugs to unsuspecting consumers.

Many whistleblowers face a harsh degree of retaliation.

One of those recently in D.C. won an important victory after a seven-year battle to regain his job as a former federal air marshal. This individual was fired after he was discovered to be the source of numerous stories revealing that the U.S. government planned to remove armed security from long-distance passenger flights as a cost reduction measure, despite all indications that Al Qaeda was intent on hijaking more planes in an effort to target both Europe and the U.S. He noted that the obvious dress code of air marshals tipped off terrorists as to their presence.

In response to the numerous media stories that followed, Congress walked back its previous efforts to cut back on commercial flight security. Additionally, air marshal dress code changed.

But the air marshal was still fired. Just this past month, the U.S. Court of Appeals in Washington, D.C. unanimously ruled that his disclosures were covered under the Whistleblower Protection Act. That meant he would receive new hearings to have his firing reconsidered.

A ruling against the air marshal, legal analysts believe, would have resulted in a dangerous precedent that could have prompted government authorities to enact sweeping secrecy regulations that would basically withhold the protections intended for whistleblowers.

In offering legal representation to whistleblowers, our attorneys are committed to defending not only your rights as an employee, but also as a brave citizen who is speaking to truth to power and standing up for what is right and just.

The Law Offices of Ira S. Newman provides whistleblower representation to New York residents. Call 516-487-7375 or send us an e-mail.

Additional Resources:
Air marshal whistle-blower fired in 2006 claims big win in court, May 25, 2013, By Dan Weikel, The Los Angeles Times
Silencing the Whistle-Blowers, May 27, 2013, By Eyal Press, The New York Times
More Blog Entries:
Former School Employee Alleges Retaliation, Seeks Whistleblower Status, April 22, 2013, New York Qui Tam Lawyer Blog