My client, Dr. David L. Lewis, is issuing an open letter today urging the House of Representatives to correct the “the grievous and manifold shortcomings in S. 372 before voting on it.” He also urges his fellow citizens to join him in taking action to share his concerns with their representatives.
Dr. Lewis was a top microbiologist at the U.S. Environmental Protection Agency (EPA). He raised the standards for dental hygiene worldwide when he showed how previous practices were inadequate to protect dental patients from the transmission of HIV. He showed how EPA’s rules for land application of sewage sludge did not have the scientific support needed to protect us from airborne diseases. That is when “industry representatives and EPA managers went ballistic.” His retaliation case is still pending.
He is today concerned that:
- S. 372 ― for the first time ever ― would deny protection to federal employees if a judge finds that violations of law exposed by whistleblowers were “minor,” “inadvertent,” or committed when the violator was engaged in a “conscientious carrying out of official duties.” Every federal manager faced with a whistleblower retaliation claim will be hiding under this gaping loophole.
- S. 372 would deny protection for whistleblowers who challenge an act of discretionary authority, or any retaliation against other whistleblowers. These exclusions would render whistleblowers even more powerless to prevent waste, fraud, abuse and violations of law within the federal government.
- S. 372 would allow judges on the Merit System Protection Board (MSPB) to dismiss whistleblower cases without any hearing. Due to all of the loopholes already at the disposal of employers who retaliate, federal employees prevail in less than 2% of the cases that proceed to a hearing. The current system needs to provide more fairness to whistleblowers ─ not to make it even more burdensome to prevail.
He urges everyone to Take Action by contacting their representatives. The full text of his letter follows in the continuation of this entry.
David L, Lewis, Ph.D.
December 16, 2010
The Whistleblower Protection Enhancement Act (S. 372)
For 32 years, I worked for the U.S. Environmental Protection Agency’s Office of Research & Development (“EPA-ORD”) in Athens, Georgia. During that time, I received EPA’s top awards for peer-reviewed research articles, including the Science Achievement Award for Biology & Ecology in 2000 and the Science & Technology Achievement Award in 2002. I also received four Sigma Xi Active Faculty Research Awards, and published more than fifty peer-reviewed research articles. This included first-authored papers in Nature, Nature Medicine and Lancet. The CDC and other public health organizations worldwide adopted the current heat-sterilization standard for dentistry as a result of my research on dental devices. My coworkers and I found that HIV and other viruses could thwart government-recommended disinfection methods by hiding in lubricants expelled by dental drills and other common devices used to clean and repair teeth.
When I applied these same findings to EPA’s methods recommended for killing pathogens in sewage sludge (“biosolids”) used in agriculture, industry representatives and EPA managers went ballistic. Managers in charge of EPA’s biosolids program met with industry executives; and, together, they ended my research career at EPA and the University of Georgia. Seven years after EPA terminated me for publishing this research in Nature, my whistleblower retaliation case is still pending on appeal. Like many whistleblowers, I was fired for simply doing my job. So, I know how important it is for public health and scientific integrity that we have meaningful whistleblower protections.
Having read the Senate’s latest version of the Whistleblower Protection Enhancement Act (WPEA), S. 372, I am profoundly concerned that it will roll back existing whistleblower protections for federal employees. What I read clearly confirmed the findings of attorneys at the National Whistleblowers Center (NWC) as reported in their public statement “S. 372: A Bad Deal for Whistleblowers.”1 For example:
-
S. 372 ― for the first time ever ― would deny protection to federal employees if a judge finds that violations of law exposed by whistleblowers were “minor,” “inadvertent,” or committed when the violator was engaged in a “conscientious carrying out of official duties.” Every federal manager faced with a whistleblower retaliation claim will be hiding under this gaping loophole.
-
S. 372 would deny protection for whistleblowers who challenge an act of discretionary authority, or any retaliation against other whistleblowers. These exclusions would render whistleblowers even more powerless to prevent waste, fraud, abuse and violations of law within the federal government.
-
S. 372 would allow judges on the Merit System Protection Board (MSPB) to dismiss whistleblower cases without any hearing. Due to all of the loopholes already at the disposal of employers who retaliate, federal employees prevail in less than 2% of the cases that proceed to a hearing. The current system needs to provide more fairness to whistleblowers ─ not to make it even more burdensome to prevail.
Even the potential benefits of S. 372 would provide little encouragement to whistleblowers given the legal obstacles they already face. Their best ─ and often only ─ hope is to possess the right to a trial by jury. Yet S. 372 will give the MSPB the power to completely remove this hope by simply issuing a summary judgment followed by a final dismissal within 270 days. S. 372 would also open the door for the Office of Personnel Management to circumvent the provision that could break the Federal Circuit’s monopoly on whistleblower claims.
Moreover, S. 372 will even further discourage private attorneys from taking whistleblower contingency cases. Most whistleblowers would exhaust their savings long before they could ever find justice under the law, and few will have access to experienced attorneys.
Taxpayers and public servants want and deserve better that what the Senate is offering; and whistleblowers should not be pushed backwards in their struggle for meaningful protections. I pray that the House of Representatives will correct the grievous and manifold shortcomings in S. 372 before voting on it. And I urge my fellow citizens to take immediate action through the NWC’s Alert2 and help encourage our Representatives to take these important steps for the sake of our Nation’s future.
Respectfully,
David L. Lewis, Ph.D.
Former EPA Research Microbiologist
