Why the Supreme Court Got It Wrong When It Rejected a Government Whistleblower's First Amendment Claim

By JESSELYN RADACK
Wednesday, Jun. 07, 2006

On May 30, the Supreme Court decided a whistleblower case, Garcetti v. Ceballos. The case involved a deputy district attorney in Los Angeles, Richard Ceballos. Ceballos made the brave decision to alert his supervisors to wrongful - indeed, unconstitutional - conduct and insist that it be remedied. The Court rewarded him by holding that it was legal for his bosses to punish him for that very bravery.

This decision is just as wrong as it sounds - and in this column, I'll explain why.

Ceballos' Whistleblowing and My Own - and the Court's Wrongheaded Ruling

Ceballos' story begins with his determination that an affidavit for a search warrant that had been submitted to the court by his office contained serious misrepresentations. He relayed his findings to his supervisors, and followed up by preparing a memorandum recommending that the prosecution be dropped on the ground that it had arisen from an unconstitutional search.

Despite Ceballos' concerns, one of his supervisors decided to proceed with the prosecution anyway. Ceballos then suffered severe retaliation for his conscientiousness and candor: He was reassigned to another position, transferred to another courthouse, and denied a promotion.

He argued before the Supreme Court that this retaliation violated the First Amendment.

The hard truth is that whistleblowers often face the kind of retaliation Ceballos suffered. My own experience - which I explained in more detail in an earlier column - proves the point. While working as a legal advisor in the Justice Department's ethics unit, I advised the Criminal Division that it would violate ethics rules to have the FBI interrogate "American Taliban" John Walker Lindh without his attorney. The FBI went ahead with the interrogation anyway -and then asked what it should do next. In light of the government's ethics violation, I advised that the interview might have to be sealed and used only for national security and intelligence-gathering purposes, not for criminal prosecution.

Then came the retaliation: After years of outstanding performance evaluations and a recent promotion and merit bonus, I was given a blistering evaluation and told to find another job.

After the vitriolic review, I discovered that the judge presiding over the Lindh case ordered that all Justice Department correspondence relevant to his interrogation be submitted to the court. Contrary to usual Department procedure, I had not been told about this order. Oddly, when I went to comply with it, my emails had mysteriously "disappeared" from the office file.

I believe that the kind of retaliation Ceballos and I suffered is a core First Amendment violation. After all, the government in both cases punished a citizen for conscientiously speaking his or her mind on an issue of intense public interest.

Yet the Supreme Court did not see it that way in Garcetti v. Ceballos.

The Supreme Court held that the First Amendment protects public employees only for statements that are not made pursuant to their official duties. Put another way, government workers cannot be punished for speech uttered as a citizen - only for speech uttered as an employee.

That means that a government employee can - in the Court's view - be punished, consistent with the First Amendment, for insisting that supervisors address the very kind of misconduct about which that employee is most likely to be knowledgeable.

Surely that cannot be the correct rule: It's like taking the canary out of the coal mine, and allowing the air to become more and more toxic within. Avoiding workplace disruption should not be synonymous with avoiding workplace dissent.

Why Statutory Protections and Internal Grievance Procedures Are Not Sufficient

The Supreme Court seemed to believe that existing internal grievance procedures and statutory whistleblower protections are sufficient to protect whistleblowers. But they're not.

Internal grievance processes are notoriously futile. Worse, they often are turned against the complaining employee - with the employee becoming the subject or target of the very investigation she helped launch. In my own case, the Justice Department's Office of the Inspector General spent countless hours and dollars investigating me - instead of the real wrongdoers.

What about statutes like the federal Whistleblower Protection Act of 1989 (WPA)? According to precedent in the Federal Circuit - the Circuit that hears all WPA claims - the WPA doesn't cover employees in situations like mine. Indeed, the Federal Circuit has held specifically, in the 2001 case of Huffman v. Office of Personnel Management, that "complaints to a supervisor about the supervisor's own conduct are not disclosures covered by the WPA," even though " disclosures to the press are protected." And even more significantly, since its 1998 ruling in Willis v. Department of Agriculture, the Federal Circuit has deemed the very type of whistleblower speech that the Ceballos majority left twisting in the wind - statements made in connection with normal employment duties -- to have no WPA protection.

Here's a news flash for the Supreme Court: The Whistleblower Protection Act is an abysmal failure. It is a paper tiger that provides no private cause of action, excludes many categories of national security whistleblowers, and contains no enforcement mechanism.

When I blew the whistle on government misconduct in the Lindh case - first internally and then in the press, after I was forced out of the Justice Department - the government publicly branded me a "turncoat," got me fired from my private sector job by disparaging me to my new bosses, placed me under criminal investigation, and put me on the "no-fly" list. And the WPA helped me not at all.

The bottom line is that, under current federal statutes, the government can retaliate against dissenting voices in spades, and the WPA - the main federal whistleblower protection law - provides no remedy or relief.

The Court Is Wrong to Suggest that Government Attorneys Are Protected

The icing on the cake of the Supreme Court's new employee-speech jurisprudence comes in one of the final paragraphs of the Ceballos opinion, which states that "[c]ases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment." In other words, the Court suggests that attorneys don't need constitutional whistleblower protections; ethics rules and obligations will protect them instead when they object to a superior's wrongful decisions.

But that's simply not true in practice - as my own experience shows. I invoked the very kind of ethics rules the Court is referencing in its Ceballos opinion--rules against communicating directly with a person represented by counsel, creating prejudicial pre-trial publicity, and following supervisory lawyers. Yet my invocation of these ethics rules did not protect me at all.

To the contrary, threatened by my making the point that they were behaving unethically, my supervisors decided to claim that I was the one who was behaving unethically - and even referred me to the state bars in which I am licensed. No one likes to hear that his or her behavior was unethical. A natural, if ugly, response is not only to deny the violation, but to try to discredit the whistleblower.

Where Whistleblower Protection Is Most Needed: Revealing Official Wrongdoing

It's clear to the public - but apparently not to the Supreme Court - where the First Amendment interest in whistleblower protection is most intense: In cases where a government employee "outs" a government employer or supervisor's wrongdoing, when it otherwise would have been kept secret.

These are the cases where a rogue law enforcement officer or agency flouts the rules - and puts the integrity of our whole system in jeopardy. An employee should not be stopped from speaking against miscreants just because it is part of her job to do so! Should I have remained silent on a key ethics issue precisely because I was in the Justice Department's ethics unit? Such a rule is nonsense. It keeps the very people most knowledgeable from applying their expertise to help root out misconduct before it festers.

It is equally absurd to think that the public interest in hearing the views of informed employees evaporates when they speak, just as their jobs require, on the very subjects that are central to their jobs. As the Ceballos dissent sagely notes, this leaves out in the cold civil servants "whose specific public job responsibilities bring them face to face with wrongdoing and incompetence in government, [and] who refuse to avert their eyes and shut their mouths."

Employees should not have to choose between their consciences and their careers. Yet that is exactly what the Supreme Court has asked of them. Whistleblowing - already an altruistic act - has been transformed by Ceballos into a form of career suicide.


Jesselyn Radack works at Grayson & Kubli representing whistleblowers in qui tam actions and serves on the D.C. Bar Legal Ethics Committee. The criminal case against her was closed with no charges ever being brought. The Maryland Bar complaint was dismissed. The D.C. Bar complaint is still pending after nearly three years. She can be contacted through www.cradl.info.

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