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Appeals Through Regional U.S. Courts of Appeal

What are they?

Contents



U.S. District Courts handle (and their regional appellate courts review) cases involving non-government whistleblowers (qui tam and Sarbanes-Oxley lawsuits), and those involving important federal interests (such as First Amendment free speech, Fourth Amendment searches and seizures and Civil Rights law violations). Although plaintiffs who believe federal employees have violated their constitutional rights can sue a government employee individually, as well as the agency, most individual (Bivens) claims are dropped when a judge determines the defendant employee acted within the scope of his or her duties.

Ordinarily, the geographic area where the incident happened or the victim lived matters for jurisdiction at both the district court and Court of Appeals levels. These very busy courts are not a place to complain pro se, unless asking the District Judge to appoint an attorney. Still, unlike the MSPB and Federal Circuit, District Courts and their appellate brethren have pro bono programs. While access is limited, lawyers in these programs do help those unable to pay normal attorneys' fees (at the request of a judge who finds the plaintiff too poor to pay despite an apparently worthy case).

Equal Employment Opportunity Commission (EEOC)

Federal and other employers cannot discriminate on the basis of race, sex, national origin or disability. The EEOC enforces statutes including the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the Age Discrimination in Employment Act and the Americans with Disabilities Act of 1990. The EEOC's claims process has strict deadlines. OSC and EEOC have agreed among themselves that the EEOC will evaluate cases involving retaliation for filing claims within the EEOC's jurisdiction. That may be wider than the OSC's in retaliation cases because the employing agency will be held responsible for allowing a hostile work environment to continue, as well as for acts of non-employees (such as contractors) about which the employee's supervisor knows or should have known.

EEOC decisions not to pursue a case can be appealed to federal District Court rather than the Federal Circuit. This matters because of the pro bono programs mentioned above, as well as district judges' expertise and impartiality. Plus, these statutes allow recoveries for future losses, pain and suffering and other non-monetary losses (although not backpay covered by the WPA).

Department of Labor (DOL)

Administrative law judges within the DOL hear retaliation claims involving reported Occupational Safety and Health Act (OSHA) and Fair Labor Standards Act (FLSA) violations, among over 150 environmental and labor statutes. See http://www.dol.gov/dol/compliance/compliance-majorlaw.htm Initial violation reports can be internal or made to an outside entity. Then, the employee generally must report the alleged retaliation to DOL within 30 days. The DOL litigation process may take two years. Appeals can be made directly to the regional Courts of Appeal. U.S. District Courts are not involved. Private whistleblowers seeking relief under the new Sarbanes-Oxley act also use this forum.

Other Initiatives

Regulations concerning Hazard Analysis Critical Control Points, administered by the Department of Agriculture, indirectly protect some private sector whistleblowers by making violations prosecutable in federal court under the False Claims Act (qui tam provisions).

The Department of Energy's Office of Contractor Employee Protection has been moved within its IG office, over considerable objection. DOE handles claims that private contractors have retaliated against their own employees for disclosing wrongdoing to the government. See http://www.oha.doe.gov.

To investigate scientific misconduct, the Department of Health and Human Services has an Office of Research Integrity (ORI) within the National Institutes of Health. ORI says that it's the responsibility of the investigatory body and ORI, not the whistleblower, to ensure that the allegations are thoroughly and competently investigated. However, many covered employer institutions have not implemented its voluntary guidelines, which suggest arbitration of whistleblower complaints. http://ori.dhhs.gov. The Office of Worker's Compensation Programs covers job-related disabilities. See also http://expage.com/page/owcp.

Because information known to federal employees based on their jobs can only rarely support a qui tam action, most civil servants cannot benefit from that law's "private attorney general" provisions. However, those cases are attractive to private sector lawyers.

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