ATTORNEY NEWSLETTER
On July 14, 2014, the United States House of Representatives voted to pass the All Circuit Review Extension Act. The bill extended the filing window under the Whistleblower Protection Enhancement Act of 2012 (“WPEA”). Now, thanks to Congress, federal employees who seek to blow the whistle have five years (up from two) to present evidence of fraud, waste, or abuse to the Merits Systems Protection Board, or Director of the Office of Personnel Management.
Congress reacted with legislation after years of complaints from federal employees about the lack of protection from employer retaliation. A great impetus for the legislation is the well-known lack of support for federal employee whistleblower in federal court. A recent case by the United States Supreme Court immediately comes to mind, and must be regarded as the greatest slap in the face by the Court to civil rights since the appalling decision of Justice Kennedy in Alden v. Maine (1999) 527 U.S. 706). There, the Court stated law enforcement who worked overtime without proper pay could not Petition Government for Redress of Grievance because the state had sovereign immunity from suit in federal court.
In Garcetti v. Ceballos (2006) 547 U.S. 410, the Court held that a public defender who submitted a personal memo to his supervisor, after discovering that the police affidavit issued in that criminal case was largely fiction, was not protected from retaliation for simply reporting the fraud, waste, and abuse. One would think that at the very minimum, that if the Free Speech Clause of the First Amendment meant anything, it meant the right to speak one’s conscience—even in the workplace. The Court held otherwise – public employees making statements in regards to their jobs are not protected under the First Amendment because they are not speaking as citizens and therefore, can be made subject to discipline. The sad ruling came from the very U.S. Supreme Court that was once widely regarded as the nation’s great defender of the First Amendment. Now, in the wake of Garcetti, even a public defender would now have to think twice before making the career ending decision to expose fraud in government. With such absurd rulings issued by the highest court in the land, it is little wonder that Congress was induced to intervene to protect federal whistleblowers with the WPEA.
Under the precursor to the WPEA, federal employees were not eligible for whistleblower protection including harassment, suspension, demotion, or termination, if they:
• Were not original reporters of the fraud, waste, or abuse;
• Disclosed evidence of fraud, waste, or abuse to a co-worker;
• Disclosed evidence of fraud, waste, or abuse to a supervisor;
• Disclosed the ramifications of a policy decision; or
• Reported fraud, waste, or abuse during the course of work.
The Office of Special Counsel is the government agency responsible for investigating federal-agency whistleblower claims. As with most government agencies, the OSC is presently under tight budget constraints, and lack adequate resources to thoroughly investigate whistleblower complaints. Carolyn Lerner, head of the OSC, is hopeful however that the OSC budget will keep pace with its mandate to duly investigate claims under the WPEA.
The Evans Law Firm, Inc. litigates qui tam cases (whistleblower/false claims), consumer fraud class actions, insurance and banking fraud, financial and physical elder abuse, and personal injury. If you believe you or someone you know has been a victim of any of the above, contact the Evans Law Firm for a free and confidential consultation at 415-441-8669 or via email at info@evanslaw.com.
