by Nick Schwellenbach
One of two whistleblowers to win even a temporary victory before a government whistleblower review board under a Bush administration appointee lost last week after the board’s February reversal was upheld by the Federal Circuit Court of Appeals.
The decision underscored the difficulties whistleblowers faced under the Bush administration. Under Neil McPhie, the Bush-appointed chairman of the three-person Merit Systems Protection Board, whistleblowers had a 1-44 win-loss track record, according to a tally by the non-profit Government Accountability Project (before the February reversal, the track record was 2-43). In the original ruling on the whistleblower Kenneth M. Pedeleose’s case, McPhie dissented from the decision that favored Pedeleose and voted against him in the second decision as well.
In late July, President Obama nominated a new chair and vice chair for the board, who have won praise from whistleblower protection advocates. The nomination for chair is Susan Grundmann, formerly the general counsel for the National Federation of Federal Employees. Anne Wagner is the nominee for vice chair, and has spent time as a lawyer with the American Federation of Government Employees and more recently with the Government Accountability Office. Bush appointee Mary D. Rose will continue on the board as its third member until March 2011.
With Thursday’s loss, whistleblowers have won only three cases out of 202 at the Federal Circuit Court of Appeals, where they can appeal board rulings, since October 1994, when Congress last strengthened the Whistleblower Protection Act. Both chambers of Congress have been moving forward on legislation to improve whistleblower protections. House and Senate versions of the legislation end the Federal Circuit Court of Appeals monopoly on appellate review. The House version gives all government whistleblowers access to trial courts, whereas the Senate version restricts the access national security whistleblowers have to those courts.