Whistleblowers Still Run Daunting Gauntlet Under Obama

The fate and treatment of whistleblowers has not materially improved
under the Obama administration, according to Public Employees for
Environmental Responsibility (PEER). President Obama has staked out no
policy differences from the Bush administration and has yet to even
nominate a Special Counsel, a key position that is supposed to defend
and advocate for whistleblowers.

The
absence of any whistleblower initiative from the Obama administration
is critical because the prospects for whistleblowers successfully
challenging retaliatory actions by their agencies are bleak:

• An
  examination of decisions from Merit Systems Protection Board (MSPB)
  judges who hear whistleblower cases reveals that, on average, federal
  employees won less than one in 50 hearings (1.6%) in 2008, the latest
  year for which statistics are available;
• For those
  cases that are appealed to the Federal Circuit Court of Appeals, the
  odds are even worse with whistleblowers winning only one in 200 cases
  (0.5%) in the last 15 years; and
• President Obama
  has not nominated a Special Counsel, a position vacant since President
  Bush fired his own appointee for cause in December 2008. That previous
  Special Counsel, Scott Bloch, subsequently pled guilty to criminal
  obstruction charges stemming from his effort to block congressional
  inquiries into reprisal against whistleblowers inside his own office.

"Protection
of whistleblowers does not appear on the Obama administration's radar,"
stated PEER Executive Director Jeff Ruch. "The White House has taken
the time to name National Endowment for the Arts advisory committee
members but has not found time in 18 months to select a Special
Counsel."

Significantly, the Obama administration
has also not settled many of the whistleblower cases emanating from the
Bush administration, including cases cited as abuses by Obama
officials, such as the dismissal of U.S. Park Police Chief Teresa
Chambers for honestly answering questions from the Washington Post.

While new Obama appointees to the MSPB show signs of reversing dismal
trends for whistleblowers, the cadre of administrative judges remains
unchanged. The evaluation criteria for those judges (which PEER
obtained under the Freedom of Information Act) reveal a priority on
volume and speed: judges are expected to render between 80 and 120
decisions per year, 95% of which are expected to be completed within
"relevant time limits"(generally 110 days from the filing of the
initial complaint). Even the "Quality of Decisions" standards appear
to give equal weight to elements such as proper spelling and citation
versus "consideration of relevant facts, evidence and authority bearing
on the issues."

"The chances for whistleblowers winning in the federal civil service
system remain remote at best," commented PEER Staff Counsel Christine
Erickson. "We have not found any evidence to support the
counterargument that 'all the good cases settle' before MSPB must make
a decision." Besides legal services, PEER provides channels for
federal employees to blow the whistle anonymously, so their message is
delivered without revealing the identity of the messenger.

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View the track record of MSPB judges

See the evaluation criteria for MSPB judges

Consider the case of U.S. Park Police Chief Teresa Chambers

Examine delay in rules protecting scientific whistleblowers

Look at continued mistreatment of whistleblowers

Revisit the bizarre history of the previous Special Counsel