Whistleblowers Still Run Daunting Gauntlet Under Obama
Minuscule Chances of Success, No New Policies and Key Slot Remains Unfilled
Washington, DC — The fate and treatment of whistleblowers has not materially improved under the Obama administration, according to Public Employees for Environmental Responsibility (PEER). President Obama has staked out no policy differences from the Bush administration and has yet to even nominate a Special Counsel, a key position that is supposed to defend and advocate for whistleblowers. The absence of any whistleblower initiative from the Obama administration is critical because the prospects for whistleblowers successfully challenging retaliatory actions by their agencies are bleak:
- An examination of decisions from Merit Systems Protection Board (MSPB) judges who hear whistleblower cases reveals that, on average, federal employees won less than one in 50 hearings (1.6%) in 2008, the latest year for which statistics are available;
- For those cases that are appealed to the Federal Circuit Court of Appeals, the odds are even worse with whistleblowers winning only one in 200 cases (0.5%) in the last 15 years; and
- President Obama has not nominated a Special Counsel, a position vacant since President Bush fired his own appointee for cause in December 2008. That previous Special Counsel, Scott Bloch, subsequently pled guilty to criminal obstruction charges stemming from his effort to block congressional inquiries into reprisal against whistleblowers inside his own office.
“Protection of whistleblowers does not appear on the Obama administration’s radar,” stated PEER Executive Director Jeff Ruch. “The White House has taken the time to name National Endowment for the Arts advisory committee members but has not found time in 18 months to select a Special Counsel.”
Significantly, the Obama administration has also not settled many of the whistleblower cases emanating from the Bush administration, including cases cited as abuses by Obama officials, such as the dismissal of U.S. Park Police Chief Teresa Chambers for honestly answering questions from the Washington Post.
While new Obama appointees to the MSPB show signs of reversing dismal trends for whistleblowers, the cadre of administrative judges remains unchanged. The evaluation criteria for those judges (which PEER obtained under the Freedom of Information Act) reveal a priority on volume and speed: judges are expected to render between 80 and 120 decisions per year, 95% of which are expected to be completed within “relevant time limits”(generally 110 days from the filing of the initial complaint). Even the “Quality of Decisions” standards appear to give equal weight to elements such as proper spelling and citation versus “consideration of relevant facts, evidence and authority bearing on the issues.”
“The chances for whistleblowers winning in the federal civil service system remain remote at best,” commented PEER Staff Counsel Christine Erickson. “We have not found any evidence to support the counterargument that ‘all the good cases settle’ before MSPB must make a decision.” Besides legal services, PEER provides channels for federal employees to blow the whistle anonymously, so their message is delivered without revealing the identity of the messenger.