Anti-whistleblower track record continues

Introduction

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.

Pedeleose’s case revolved around whether and under what circumstances employees can disobey orders by their management when an inspector general’s office is conducting an inquiry into related issues.

In addition, Pedeleose says his case also demonstrates that the Pentagon IG’s office colluded with his management in disciplining him, arguments which the court found “unpersuasive” in his case. A previously unavailable government report obtained by PaperTrail said there was some inappropriate activity.

An industrial engineer with the Defense Contract Management Agency, Pedeleose oversees Lockheed Martin’s operations in Marietta, Georgia, such as the Air Force C-130J cargo plane. Earlier in the decade he blew the whistle on cost and safety problems, helping to spark changes in the C-130J program. He says he has been the victim of a barrage of reprisals by his agency for disclosing information to Congress and the Defense Department IG.

Pedeleose was given a 30-day suspension in 2005 for failing to cooperate in an investigation by his own agency into the roots of rumor circulating in his office of a “hit list” of employees targeted for termination. He refused partly on the basis that his agency’s investigation would conflict with issues the Defense Department IG was exploring.

Originally, the board agreed that Pedeleose had a basis to refuse cooperation, overturning his suspension in October 2007.

Following the original ruling, the Office of Personnel Management appealed to the board and asked it to reconsider its original decision because it expanded the opportunities employees could disobey management and evade punishment. (The classic exception is disobeying clearly unlawful orders.)

In February 2009, the board reversed its original order. It said Pedeleose should have cooperated because he was instructed to do so by the IG, though the IG was unsure about the legality of his agency’s investigation.

A 2008 Interior Department Inspector General report said one Pentagon IG official may have acted inappropriately in Pedeleose’s case. The Pentagon IG’s then-general counsel, Uldric Fiore got involved in DCMA discussions of how to discipline Pedeleose and did not limit one of his subordinates’ communications with DCMA, who viewed DCMA as a client of the Pentagon IG’s office, the report said. Fiore “may have compromised the independence of” the Pentagon IG’s office and created “an appearance of the loss of impartiality.”

Much of the Interior Department inspector general’s finding is based on an e-mail by a subordinate of Fiore’s that appears to show that the Pentagon IG’s office had discussions with DCMA over disciplining Pedeleose. The report quotes Fiore, “I don’t think you can take a three-line snippet e-mail and say that there was an extensive discussion about how to, you know, punish [Pedeleose] if he didn’t cooperate.”

The Interior Department Office of Inspector General report was obtained by Douglas Kinan, a whistleblower who has been assisting Pedeleose, through the Freedom of Information Act.