The war on whistle-blowers

The system's track record has left some whistle-blowers wondering whether their cases were tainted by partisan politics. In the 2003 case of Craig F. Johns, a former special agent for the Department of Veterans Affairs, confidential court documents obtained by CIR and Salon reveal such meddling -- by a Republican judge on the court itself.

Johns' case, which alleged forged training records and anti-gay harassment inside his agency, had crawled through the whistle-blower courts for seven years. In 2003, his case reached its final appeal at the Merit Systems Protection Board. At the time there was a vacancy on the bipartisan three-judge court. Johns' case was being heard by a Democrat and a Republican -- two judges with sharply different interpretations of the whistle-blower law. Beth Slavet, the Democrat, was a former staffer for Sen. Ted Kennedy and had an extensive career practicing labor law. Her Republican colleague, Susanne T. Marshall, had never been an attorney or even graduated college, but had been appointed to the court after a long career as a Republican staffer on the Senate committee for governmental affairs.

The two judges had in fact battled for more than three years over the Johns case, the court documents show, clashing over, among other things, how to address Johns' claims of anti-homosexual harassment. Discrimination laws do not cover sexual orientation, but Slavet felt Johns' case underscored such a need and drafted a decision that would grant Johns' case a new hearing. But Marshall disagreed, and she used a procedural tactic to stall the case until an incoming Bush-appointed judge arrived to replace Slavet, whose term was almost over.

Slavet wrote a scathing memorandum to Marshall in response: "It is fundamentally unfair to the parties and destructive of the process to hold up these cases pending my departure and Mr. McPhie's confirmation," Slavet wrote in the memo dated Feb. 25, 2003, referring to the incoming Bush appointee, Neil McPhie. Soon after, McPhie joined the court and Slavet's term ended. Marshall and McPhie decided the Johns case that August: "Corrective Action Denied."

It was not the only case that Marshall stalled, documents show. There was the case of Lori A. Sutton, a Department of Justice secretary who alleged retaliation after filing an equal opportunity complaint; and the case of Valerie E. Johnson, a Department of Defense commissary worker who alleged retaliation after exposing the reselling of food items that had been picked at by rats. Marshall and McPhie also ruled against these whistle-blowers.

Marshall is no longer with the court and could not be reached for comment. But the current general counsel of the Merit Systems Protection Board, Chad Bungard, disputed that Marshall's stalling of whistle-blower cases should be chalked up to partisan politics. "This could be totally innocuous," Bungard said. "I can't speculate on what Marshall's intent was."

Craig Johns has since left government work and opened a rescue ranch for injured animals in Texas, naming it the Ranch of Last Resort. "It's very disturbing, to learn about this political interference," he said recently. "This is why I prefer the company of animals to people."

Johns' case, like many others, never made it to the Federal Circuit Court in Washington, the only court that can preside over appeals of whistle-blower cases beyond the Merit Systems Protection Board. Through a series of precedent-setting rulings -- which are binding for the entire whistle-blower legal system -- the judges on the Federal Circuit Court have interpreted the law in recent years to the point where, as one investigator from the Office of Special Counsel put it, whistle-blowers must "utter magic words" to get protection.

Whistle-blowers are often employees who, during the course of their jobs, notice violations of rules or laws; before going public, they may casually mention the wrongdoing to a boss, or write a memo expressing the need to address a danger to public safety. Teresa Chambers is one example of a person who first raised concerns within her department, to no avail. But legal precedents created by the Federal Circuit Court have rigged the odds heavily against such employees.

One ruling determined that employees will not be protected if the nature of what they disclose is "debatable" by others. Another precedent says whistle-blowers won't be protected if the coverup they disclose is common knowledge in the office. Another precedent strips protections for whistle-blowers who complain only to their direct boss but to no one higher up the chain. Perhaps the most notorious precedent, known as "Huffman," says whistle-blowers will not be protected if it is their job to scrutinize safety issues or mismanagement, and they speak out about a coverup -- like meat inspectors who discover a coverup of tainted beef in the food supply, or law enforcement officials who speak out about dangers to public safety.

In other words, these legal precedents have made the law more beholden to murky workplace protocols than to the substance of the allegations, even when those allegations concern serious public safety issues and are proven to be true.

"The problem is that no whistle-blower knows a damn thing about whistle-blowing before they do it. You can't go back and repackage the disclosure to meet the requirements of the law," said a senior Pentagon official who specializes in employment law. The official spoke on the condition of anonymity, fearing that he would not be protected from retaliation if he were openly critical of whistle-blower protections. "Never have your name in print," he said.

Another government lawyer, who insisted on anonymity for the same reason, characterized the Federal Circuit Court's view of whistle-blowers as juvenile. "No one likes a tattletale," he said. "It's that simple."

The Federal Circuit Court's longest sitting jurist, Haldane Robert Mayer, was appointed by Ronald Reagan. Prior to his appointment, Mayer had been the acting U.S. special counsel -- the chief whistle-blower investigator. But Mayer resigned from that position in 1982 after the Office of Special Counsel was accused of holding seminars for political appointees and agency managers -- to teach them how to fire whistle-blowers effectively within the confines of the law. The scandal led Congress to strengthen the whistle-blower law, but it did not stop Reagan from appointing Mayer to the bench.

"Judge Mayer is one of the most significant people in the legal system to translate the whistle-blower law passed in response to his own [alleged] abuses of power," said Tom Devine, legal director for the Government Accountability Project.

Judge Mayer did not respond to an interview request.

Next page: A confidential e-mail from the Bush White House aimed at preventing a stronger whistle-blower law