Our failed Whistleblower Laws

Many of the values and beliefs of a society are formed by childhood routines. In my generation, we all grew up pledging our allegiance at the start of each school day; we proudly held our hand on our heart and said the words while thinking of our past heroes and our future national glory.

Don Reed, an air traffic controller fired at Pueblo, after he exercised his religious freedom rights. He later won a unanimous jury decision, awarding him $2.25 Million for FAA’s improper actions.

One of the values so indoctrinated was Religious Freedom. We knew the history, and we resolved to protect, just as our forefathers had done. The clear idea was that the state (as in, elected officials as well as agencies like FAA, chock full of employees and contractors) must not impinge on the right of the individual to practice their chosen faith. In the early 1990’s an air traffic controller in Colorado chose his faith over the work scheduling demands of his ATC job. And so it was, for this defiant exercise of a protected right, that FAA chose to fire Don Reed.

Now, the interesting thing about this is that Mr. Reed stood his ground. He went to the U.S. District Court, used the legal process, got a jury trial, and he won. He won because of one other vaunted and priceless value we all had indoctrinated during our school days: that no individual should be denied his or her right to a jury trial. The simple idea that our system must protect our Due Process right* to be heard and to be treated fairly.

*What is Due Process? It is the legal requirement that the state must respect all of the legal rights that are owed to a person. Typically, “Due process” means:
1) NOTICE, generally written, but some courts have determined, in rare circumstances, other types of notice suffice[citations needed]. Notice should provide sufficient detail to fully inform the individual of the decision or activity that will have an effect on his/her rights or property or person.
2) right to GRIEVE (that being the right to complain or to disagree with the governmental actor/entity which has decision making authority) and
3) the right to APPEAL if not satisfied with the outcome of the grievance procedure.
Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due-process violation, which offends against the rule of law. (copied from wikipedia)
Suppose for a moment that, instead of being fired for a religious freedom issue, Mr. Reed had been fired in 1995 for speaking up about an FAA safety failure or details being concealed from the investigation of a fatal accident. Had he filed at the U.S. District Court, his case would have been dismissed. Agency counsel would have argued that Mr. Reed had failed to exhaust his administrative options (OSC and MSPB), and the Judge would have promptly agreed. And by the time all of that was done, OSC and MSPB would have giggled while rejecting his Appeal: “Sorry, Don, but you filed too late; you should have come to us first.”

Mr. Reed won his civil action because he had the right to demand a jury trial in a U.S. District Court. Guess what: Whistleblowers do not have that same right. Sadly, Whistleblowers are routinely denied the right to a fair trial. That right was taken away from Whistleblowers decades ago. When Congress passed the Civil Service Reform Act in 1978, they were thinking ‘gee, we can unburden the court system if we offload these cases to be handled administratively by a new Merit Systems Protection Board’. And, similarly,they were thinking, ‘gee, we can also require Whistleblowers to go through the Office of Special Counsel’.

Here’s the problem: creating these new administrative processes for hearing a Whistleblower case meant that Federal Whistleblowers could no longer go directly to the U.S. District Courts. Their legal rights were taken away. It also meant that all Federal Whistleblowers became dependent on the Administrative Judges (AJ’s) and federal employees at MSPB and OSC to do their jobs. And that is precisely where this is failing, for the AJ’s and the MSPB/OSC employees are not doing their jobs as Congress had designed. They are not accountable and, in fact, it appears that what they mostly do is watch the calendar and clean up their backlog when they need to each year, so as to qualify for performance bonuses. Not surprisingly, the best way to clean up that backlog is to compel settlements that are nearly always severely tilted to the benefit of the rogue officials running amok and destroying lives within their corrupted agencies. Frankly, this is the type of non-performance we can all expect where budgets are limited, transparency is minimal, and accountability is absent.

Due Process. It is at the heart of our legal system. Without real and meaningful Due Process, the rights of individuals will be trashed. And Federal Whistleblowers, whether serving in aviation or medicine or social service or finance or anywhere in the federal government, will be muted. Is it any wonder than, that agencies like FAA are straying so far from their Public Service mission?

Imagine a world where agency failures are concealed from Public view, and where Whistleblowers are strongly encouraged to just shut up, close their eyes, and be happy for their paycheck. We are living there. Today.