Washington, DC – In an unprecedented move, Eugene Scalia, the Solicitor for the US Department of Labor, has intervened in an appeal before his department to argue that whistleblower protections should be narrowed. Scalia has filed a brief seeking to overturn a $200,000 punitive damages award won by an Assistant US Attorney in a whistleblower case against the Department of Justice.
The whistleblowing prosecutor Greg Sasse from Northern Ohio cited retaliation for reporting irregularities in pollution prosecutions to a member of Congress. In Scalia’s brief, released today by Public Employees for Environmental Responsibility (PEER), the controversial son of the Supreme Court Justice whose recess appointment by President Bush circumvented strong Senate opposition to his confirmation, argues –
Government whistleblowers are not protected in disclosing to Congress.Scalia attempts to revive President Bush’s ill-fated attempt to limit protections in the recently signed Corporate Accountability Act (Sarbanes/Oxley) by arguing that only reports to duly authorized congressional committee investigations, not reports to individual members of Congress are protected under Department of Labor (DOL) administered whistleblower statutes. In so doing, Scalia is adopting a position that has even been abandoned by the White House (see http://grassley.senate.gov/releases/2002/p02r8-01.htm).
DOJ is constitutionally “immune” from whistleblower claims by federal prosecutors.According to Scalia, prosecutors can never be whistleblowers on matters within the umbrella of prosecutorial discretion. Further, Scalia argues that “separation of powers” considerations place federal prosecutors beyond the reach of any judicial power, leaving prosecutors with no remedy for retaliation incurred by seeking environmental prosecution of politically-connected industries, disclosing information about attempts to obstruct investigations or prosecutions, or reporting environmental violations to EPA or other investigative agencies.
Punitive damages against the federal government are barred by sovereign immunity.This stance would insulate the federal government from serious sanctions for outrageous conduct.
“This brief confirms Scalia’s critics worst fears about his fitness for office,” stated PEER Executive Director Jeff Ruch whose organization represents whistleblowers inside environmental agencies.”The nation’s top labor law enforcement officer is seeking to weaken the very laws he is charged with enforcing; laws designed to protect the public health by ensuring anti-pollution rules are obeyed.”