A new column in Legal Times underscores why Congress should finish up its bill on whistleblower protections. Legislation has passed in the House and Senate, but now needs to be reconciled before being sent to President Bush, who has already threatened a veto.
The article highlights why so many whistleblower lawsuits are doomed to die a slow and painful death. After taking their claims before administrative judges at the Merit Systems Protection Board (MSPB), where they almost never win their cases, whistleblowers are often forced to appeal to the U.S. Circuit Court of Appeals for the Federal Circuit. That is exactly what happened to the former Chief of the U.S. Park Police, Teresa Chambers, who appealed her case to the Federal Circuit following a ridiculous ruling by MSBP which denied Chambers whistleblower protections. Her case illustrates how patriotic truth-tellers can end up in a never-ending churn of legal contortions. Chambers was notified she would be removed from her position in December 2003, and today, in early 2008, there is still no legal resolution in her case. Although she prevailed before the Federal Circuit, her "reward" is that she is now forced to go back to the incompetent MSPB for yet another hearing of her case.
Carol Czarkowski was another whistleblower who prevailed before the Federal Circuit (the decision in her case came in November 2004). It took Czarkowski eight years to reach a settlement with the Navy, her former employee, after they repeatedly attempted to legally stonewall her.
Still, the track record of the Federal Circuit is the leading reason why whistleblowers are denied justice. According to attorneys Debra Katz and Nicole Williams of Katz, Marshall and Banks, who write about Chambers' case in Legal Times:
Out of the 186 whistle-blower cases that came before it [the Federal Circuit] from October 1994 to Feb. 14, 2008, this employee victory was only the third time that the court ruled for the whistle-blower.
The recently passed whistleblower legislation, which still needs to be finalized by Congress, would end the stranglehold that the Federal Circuit has on these cases by allowing whistleblowers to appeal to any of the relevant U.S. District Courts, as is done for other kinds of government employee litigation. Without this legislative provision, it is not an understatement to say that efforts to improve whistleblower protections would be useless.