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Courtesy of Flickr user steakpinballThe first time I heard the words "stare decisis" was my in my first term at law school in a rainy corner of England. My tutor explained that stare decisis is an accepted legal convention by which courts are bound by previous decisions they have made and by those of higher courts – also known as binding precedent.
The purpose of this principle is to ensure legal certainty and fairness for litigants. It also means there is a built-in check on judicial activism, so that society is less likely to end up with 'Judge made law'.
In United Kingdom courts, stare decisis is an accepted convention in judicial decision-making, and is only occasionally challenged. So, as a lawyer working on whistleblowing issues in the UK, I was very interested to come across this term several years after law school when I attended The Matthew Fogg Symposia on the Vitality of Stare Decisis in America in October, an event sponsored by the National Forum of Judicial Accountability (NFoJA) and GAP at the University of Baltimore.
The relationship between whistleblowing cases and stare decisis is not a connection that I have made while practicing in the UK. While there have been moments of judicial activism in UK courts (most notably, Lord Denning sitting in the Court of Appeal during the 1970s), our courts will generally defer to Parliament and recognize that law-making should be left to the legislature. So I was surprised to attend a conference dedicated to the issue of stare decisis, and to learn that that this was problematic for US whistleblowers.
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On Tuesday, the United States District Court for the District of Columbia upheld the validity of a constitutional rights claim against former Secretary of Defense Donald Rumsfeld for his role in the torturing and illegal imprisonment of a U.S. citizen who was working as a translator in Iraq.
This was a good decision. Released publicly yesterday morning, the case, John Doe v. Donald Rumsfeld, et al, (No. 08-cv-1902 CKK), is available here.
Out of many suits brought against Rumsfeld over the torture of detainees in Iraq, this is only the second case that has been allowed to proceed. GAP is co-counsel in this suit, along with Chicago-based civil rights law firm Loevy & Loevy.
The other case that is proceeding against Rumsfled, by the way? Donald Vance and Nathan Ertel v. Donald Rumsfeld, et al (06 C 6964). Those in the whistleblower community might remember Vance as the winner of the prestigious Ridenhour Truth-Telling Prize back in 2007, which is really one of the highest national honors a whistleblower can receive. Last year, a federal court in Chicago held in Vance that two American citizens who were also tortured while detained by U.S. forces in Iraq could bring constitutional claims against Rumsfeld. That decision is currently on appeal to the United States Court of Appeals for the Seventh Circuit. A decision is expected soon.
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Today, the Government Accountability Project (GAP) is announcing the successful settlement by Air Force aircraft mechanic George Sarris of his Whistleblower Protection Act (WPA) lawsuit. GAP adjunct attorneys Thad Guyer and Stephanie Ayers challenged a wide range of retaliation surrounding removal of Sarris' security clearance, ranging from removal of meaningful duties to lowered performance appraisals.
“The Air Force agreed to give Mr. Sarris everything that the Merit Systems Protection Board (MSPB) could order, and more, without a hearing,” commented GAP Legal Director Tom Devine.
A loophole in the WPA deprived Sarris of the right to challenge the security clearance removal. Congress is reconsidering an overhaul of the law, which was on the verge of passing last December when the final vote was blocked by a secret Senate “hold” an hour before adjournment. That overhaul, the Whistleblower Protection Enhancement Act (WPEA), would give employees a chance to file lawsuits challenging retaliatory removal of clearances.
Sarris is a well-known figure within the whistleblower rights movement, who spoke at the 2010 National Whistleblower Assembly. He expressed his feelings at the end of a nearly four-year struggle:
In an attempt to prevent me from disclosing non-airworthy conditions overlooked by previous generations of aircraft mechanics, management presented me with two un-lawful written orders threatening me with disciplinary actions. Essentially, management attempted to blackmail me into allowing the operation of non-airworthy aircraft in exchange for continued employment. I did not fall prey to blackmail and elevated my concerns through the appropriate channels.
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The Government Accountability Project (GAP) today released two documents on significant developments in the pending whistleblower appeal of former Federal Air Marshal (FAM) Robert MacLean – the courageous FAM fired for publicly protesting TSA plans in 2003 to abandon Air Marshal coverage during a confirmed terrorist plan for an oversees airlines hijacking.
In a desperate attempt to save face, three years after MacLean’s disclosures – which prevented the cancellation of FAMs on high risk flights – the TSA retroactively labeled the evidence MacLean used to make disclosures to Congress as “Sensitive Security Information.” TSA asserted that, in turn, MacLean violated agency regulations and used this fabrication as grounds for his termination. Yesterday, two congressional offices, those of House Oversight and Government Reform senior members Dennis Kucinich (D.-Ohio) and Carolyn Maloney (D.-NY), filed an amicus curiae, or friend of the court, brief with the U.S. Merit Systems Protection Board (MSPB), where MacLean’s appeal is pending.
In conjunction with the brief, MacLean submitted evidence that the agency’s only witness against him has been demoted two grades for alleged sexual misconduct. This demotion took place after a recently-completed Transportation Security Administration (TSA) internal investigation of the official, on charges that he was shielded from disciplinary action in exchange for purging TSA whistleblowers and leaders of the Federal Law Enforcement Officers Association (FLEOA).
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Remember former U.S. Special Counsel Scott Bloch? Appointed under the Bush administration to head the Office of Special Counsel (OSC), which investigates federal whistleblower disclosures, Bloch quickly gained notoriety as a threat to the merit system and his own employees. Bloch was put under investigation in 2007, following a litany of allegations that he was pursuing personal political agendas over his mandate to protect whistleblowers. A quick and dirty attempt to wipe his own hands clean has landed him a month's worth of jail time, unless his own prosecutors give him a 'get out of jail free' card.
Last April, Bloch pleaded guilty to criminal contempt of Congress for withholding information from Congressional investigators. In 2006, he hired Geeks on Call to scrub his government-issued computer of evidence that he violated the Hatch Act, which prohibits federal employees from engaging in partisan political activity. After Bloch withheld details from the House Oversight Committee of this evidential purging, a federal judge sentenced Bloch to a mandatory one-month minimum jail term.
Red flags went off in the whistleblower community earlier this month when Assistant U.S. Attorney Glenn Leon filed a motion for reconsideration to reduce Bloch’s jail term to probation. Bloch’s lawyers eagerly joined the motion. Apparently, Magistrate Judge Deborah Robinson’s ruling threatened the plea deal that Bloch and his prosecutors arranged.
The new Merit Systems Protection Board (MSPB) was off to a flying start in the first year of Obama administration appointees. Thanks to Chair Susan Grundmann’s leadership, the Board made more progress toward protecting the merit system than in any other year since it was created by the Civil Service Reform Act of 1978. It established an unprecedented infrastructure of research, transparency, and public enfranchisement. It issued landmark precedents that restored its authority to enforce the merit system. It reversed a decade long trend of ruling against whistleblowers. In 2010 for merits decisions by the full Board, there were more whistleblower victories (four) than in the previous decade (three). That is four times the total of one Board whistleblower victory during the entire term of previous Chair Neil McPhie.
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Unfortunately, for whistleblowers, the Administrative Judges (AJ’s) who conduct hearings and issue initial decisions do not seem to be listening yet. In November and December 2010, AJ’s ruled against whistleblowers in 31 of 33 decisions. For the year their record was 12-187, with whistleblowers on the short end. They continue routinely to rubberstamp agency reprisals through expansive readings of Federal Circuit loopholes that have gutted the Whistleblower Protection Act. Setting the pace for bias was AJ Elizabeth Bogle of the Washington Field Office, who ruled against the whistleblower defense in 23 decisions out of 23 cases. The Board is doing what it can through rulings. In 2010 it remanded, or sent back, 11 cases for a hearing that AJ’s had dismissed. But it is clear that until Congress overhauls the statute, the Board’s leadership will be insufficient to reverse deeply ingrained administrative law patterns hostile to whistleblowers.
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Last week, the U.S. Merit Systems Protection Board (MSPB) ordered the National Park Service to reinstate whistleblower Teresa Chambers as Chief of the U.S. Park Police
, as well as to reimburse her for back pay and legal costs. Her case garnered national attention when she was removed by the Bush administration in 2004 after telling the Washington Post
that "traffic accidents had increased along the Baltimore-Washington Parkway because two, rather than the recommended four, officers were on patrol," as well as that more officers were needed to safeguard the country's national monuments and memorials.
The fifty-three page ruling
by the MSPB is a tremendous victory, and is precedent-setting for other federal employee whistleblowers. From the Washington Post
The case also sends an important message that legal safeguards apply to top officials who expose problems, not just to middle- and low-ranking ones.
However, Chambers' ultimate victory does not eclipse the struggles faced during her seven-year legal battle. Chambers and her husband engaged in an all-out campaign -- often working 18-20 hours a day (see video below) -- to build a case, with the aid of public interest lawyers and a web of public support. The case suggests that success resulted not only from the slivers of protections afforded under the Whistleblower Protection Act, but also from the Chambers’ own determination, hard work, and network of advocates. Yet, many whistleblowers are unable to dedicate such time and money to their cases, and thus, fall through the cracks.