22 February 2008

Federal Circuit Maims Whistle Blower Protections

From here:

So Congress passed a law in 1978 and strengthened it in 1989 to say federal managers can't fire, demote or reassign to broom- closet duty employees who blow the whistle. It's a good law, but it's only a law. . . . Ever since it began taking these cases, the U.S. Court of Appeals for the Federal Circuit in Washington has weakened protections for whistleblowers while making it easier for managers to retaliate. Only two employees won reprisal claims in the appeals court in more than 13 years, compared with 183 managers who prevailed . . .

Consider these decisions:

You aren't eligible for protection if someone else blew the whistle first, even if you risked your job to corroborate the other informant's allegations.

In another decision, the court said you also can lose if your superiors already knew they were doing wrong. . . .

If your boss harasses you in the mistaken belief you are the one who blew the whistle, you are out of luck. That is, the appeals court held, managers who finger the wrong employee as a snitch can freely retaliate. . . .

The appeals court in 1995 ruled against a border patrolman who was sacked after reporting that another agent fatally shot and buried an unarmed Mexican in an unmarked grave. The agency blamed the snitch for not snitching sooner. Apparently he took too much time -- overnight -- to shake off the killer's implied death threat against him.

The court in 1993 ruled that whistleblowers, to win a retaliation claim, had to first overcome the ``presumption that public officers perform their duties correctly, fairly, in good faith and in accordance with the law.''

Six years later, the court said meeting that burden requires ``irrefragable proof.'' The word means airtight. . . . The whistleblower law itself merely says the employee qualifies for whistleblower status if he or she ``reasonably believes'' that misconduct has occurred.

The ``irrefragable'' language created such a backlash, inviting Congress to rein in the court yet again, that the judges later eased off a tad. They narrowed slightly the sorts of cases where it would be applied and ruled that a tattling employee can get whistleblower protection if the official conduct is so egregious it isn't ``debatable among reasonable people.''

The decisions go to the Federal Circuit because all appeals come from the Merit System Protection Board. According to the article: "The House and Senate have passed bills to shut the loopholes the appeals court created and to end the exclusive hold those judges have on whistleblower cases." Similar appellate structures exist for the Tax Court and the NLRB.

Congress is obviously doing the right thing. A deeper question is why the Federal Circuit has gone rogue. Its intellectually property jurisprudence has recently received repeated slams from the U.S. Supreme Court for being off base.

While subject matter specific courts have great intellectual appeal, some of the most famous subject matter specific courts have produced questionable results that appear biased.

The Federal Circuit Court of Appeals (a federal Article III court) has been strongly anti-whistle blower and too lenient in invalidating marginal intellectual property claims.

The Texas Court of Criminal Appeals (a state court of last resort) is strongly pro-prosecution.

The Board of Immigration Appeals (a federal administrative court) is strongly anti-immigrant and moreover, often acts as a rubber stamp on lower court decisions without engaging in substantive review.

The National Labor Relations Board (a federal administrative court with non-judicial responsibilities as well) has become strongly anti-labor.

The Delaware Chancery Court has not been nearly so greatly criticized, it is a favorite of senior managers at publicly held companies across the nations, but the Chancery Court is popular to a great extent because of, rather than due to the absence of, a perceived bias in favor of corporate management.

There is, similarly, a strong perception that the housing courts of New York City are biased in favor of tenants.

Bias is an inherent risk in any judicial system, but it appears that it takes superhuman fortitude to remain neutral in a context in which the same fact patterns constantly recur between parties in unequal relationships, in case after case. The system of precedent also contributes by making early victories that slightly bias the system one way or the other snowball such that judges who disagree with the earlier biases reading fresh from the statute are duty bound to perpetuate these biased readings of the law.

In contrast, judges with diversified caseloads, like those of the U.S. Courts of Appeal for geographic circuits, come to individual cases with less baggage, and must consider, but are not bound by, most of the precedent which comes from other circuits. This allows the "wisdom of crowds" to surface and mitigate bad decisions. It also makes it easier to flag for the U.S. Supreme Court through mature circuit conflicts, situations where precedent has drifted from statutory intent.

A similar process has helped the common law evolve, as state supreme courts and courts of appeal routinely rely upon the experience of other states in reaching their decisions, without being bound to follow poorly reasoned precedent in other states. This process also flags for the U.S. Supreme Court unclear areas of constitutional law through interstate conflicts of law on the federal constitutional issues that arise in the state court.

Another factor that may impact specialized courts is that it is easier to deliberately pick judges prone to be biased on a particular issue where the political winds strongly favor one side in the disputes of the type that it handles, while it is harder to pick judges for a diversified docket who will show bias to all of the politically privileged sides of ongoing legal struggles across the board. Even strongly liberal or strongly conservative judges are rarely monolithic.

Perhaps we would be better off if the U.S. Court of Appeals for the Federal Circuit were simply disbanded. Obviously, the judges would have to be reassigned to other Article III courts given the protections that adhere to Article III judges, but our nation's experiment with a specialized court has largely proved to be a failure.

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