Tracking the latest developments in the fight for a fair America
By Tom Devine,
Legal Director, Government Accountability Project
On Tuesday, the Supreme Court heard Department of Homeland Security v. MacLean,its first case concerning rights under the Whistleblower Protection Act (WPA) since the Act was enacted in 1978. The decision will have fundamental consequences for whistleblowers and for the country.
The case involved the termination of Federal Air Marshal (FAM) Robert MacLean, who successfully warned the media, public and congressional officials of Transportation Security Administration (TSA) plans to cancel all relevant air marshal coverage during a planned 2003 Al Qaeda terrorism attack. Our intelligence agencies confirmed that Al Qaeda suicide hijackers were targeting multiple American cities and European capitals in their planned climax to the 9/11 terrorist campaign.
Following a media and congressional uproar, TSA officials responded the day after MacLean’s disclosure by explaining that the orders canceling air marshal coverage were mistakes and restoring protection. But in 2004, the TSA learned that the whistleblower was MacLean.
The TSA believes that whistleblower protection does not apply to disclosure of what it deems “Sensitive Security Information.” In this case, TSA retroactively slapped that label onto the information MacLean disclosed. Then it fired him for threatening the nation’s safety by violating regulations concerning this kind of information. The action was upheld by the U.S. Merit Systems Protection Board.
The Board’s ruling could have the effect of terminating the Whistleblower Protection Act as a transparency check for accountability at government agencies. The law protects those who disclose government misconduct, unless the disclosure is specifically prohibited by law. Twice last year the U.S. Court of Appeals for the Federal Circuit unanimously rejected the Board’s reading, once in a three judge panel decision and once by the entire court after the government sought en banc review. Undaunted, TSA convinced the Supreme Court to consider its appeal.
The Supreme Court is examining the meaning of that boundary in two respects. First, it is expected to rule on the government’s contention that for purposes of the Act, “law” can include government agency regulations. Second, it will decide whether the relevant statutory provision—which directed the Department of Homeland Security to issue regulations prohibiting disclosure of any information the DHS Secretary believes would be “detrimental to the security of transportation”—was sufficiently specific to provide MacLean with fair notice that he could not make public disclosures. The combined impact will be to decide whether agencies can cancel Whistleblower Protection Act free speech rights through internal secrecy rules based on generalized congressional instructions to enforce the agency mission however the bureaucracy thinks best. That’s a subjective, open-ended blank check.
If the Court reverses MacLean’s unanimous appeals court victory, the whistleblower law that Congress has passed unanimously four times could become a bureaucratic honor system. Whenever an agency gets in trouble, it would have the power to gag its employees and cancel their whistleblower rights without giving them fair notice of what information can be disclosed.
The public policy consequences are even more basic to a free society and to our security. At stake is whether individual government workers have the freedom to make a difference by warning the country when bureaucrats make what could be disastrous mistakes. In this dispute, TSA bureaucrats mistakenly ordered all relevant air marshals to be AWOL during a possible enemy attack, but those who made the mistake insist that Mr. MacLean must pay with his career for disclosing the information to correct it. This case proves why we need whistleblowers as the human failsafe when government bureaucracies break down. What would have happened if MacLean had remained silent?
Tom Devine is legal director of the Government Accountability Project
Ever been ripped off by a big bank? Were you charged fees you never expected? Were you misled about the terms of a loan?
If so, you may have a tough time standing up for your rights in court. That’s because many big banks have buried forced arbitration agreements in the fine print of their customer contracts. As we explain in our short documentary, Lost in the Fine Print, if the bank has a forced arbitration clause you can’t take the bank to court. Instead, you have to go to an arbitrator effectively chosen by the bank itself.
One study found when consumers go up against businesses in arbitration, the business wins 94 percent of the time.
The Consumer Financial Protection Bureau has the power to ban forced arbitration in contracts for consumer financial products, including banking services. It is expected to issue a report on the issue next year.
But we’re not waiting. We’ve joined with other activist and consumer groups to demand that five big Wall Street banks drop their forced arbitration clauses. Want to join us? Click here to sign our petition.
If we don’t stop them, the practice of forced arbitration will only spread. And you can take that to the bank.
When it comes to judicial confirmations, predictions about what President Obama might achieve in a Republican-controlled Senate have not been optimistic. Some congressional scholars have said that a “total shutdown” of confirmations is “not out of the question,” and that a “Republican Senate would undoubtedly stop confirmation on virtually all Obama-nominated judges[.]” Yesterday, Talking Points Memo quoted several conservative lawyers who agreed that a Republican Senate would dramatically restrict the president’s ability to select and appoint federal judges, and today’s New York Times editorial said that “Republicans would . . . be certain to block Mr. Obama’s choices for judgeships—all but guaranteeing a judicial crisis unless the president agreed to conservative choices.”
Such pessimism is born of the obstruction and incendiary vitriol that Senate Republicans have used following last November’s Senate rules reform. Facing unprecedented wholesale obstruction that prevented the Senate from confirming three D.C. Circuit judges and a key executive nominee, Senate Democrats reduced the threshold for most nominations from 60 to a majority of those voting. In response, Minority Leader Mitch McConnell warned, “You’ll regret this, and you may regret this a lot sooner than you think.” Since then, Republicans have not consented to a single judicial confirmation vote, even for noncontroversial nominees later confirmed unanimously. The result has been a long line of needless cloture votes and more than 400 hours of wasted floor time.
But it would be myopic to focus solely on this initial response to rules reform and conclude that, with a Republican majority, the confirmation process will grind to a halt. After all, political rancor has always been part and parcel of judicial nominations. Republicans certainly have upped the ante, first with their blockade of the D.C. Circuit, and then with mindless, wasteful delays for every judicial nominee, but opposition party blustering about nominations is nothing new.
It’s helpful, therefore, to look at judicial appointments through a wider historical lens, a perspective that reveals signs of promise. Each of the three preceding two-term presidents—Presidents George W. Bush, Bill Clinton, and Ronald Reagan—faced an opposition Senate during his last two years in office. But in each case, about 20 percent of their total judicial appointments were confirmed during that time. Put another way, for all three presidents, 20 percent of their total confirmations came during the last 25 percent of their time in office:
Ronald Reagan Court Total Confirmed Confirmed first 6 years Confirmed last 2 years % confirmed last 2 years District Court Judges 296 229 67 22.6% Circuit Court Judges 83 66 17 20.5% Total: 379 295 84 22.2% Bill Clinton Court Total Confirmed Confirmed first 6 years Confirmed last 2 years % confirmed last 2 years District Court Judges 310 252 58 18.7% Circuit Court Judges 65 50 15 23.1% Total: 375 302 73 19.5% George W. Bush Court Total Confirmed Confirmed first 6 years Confirmed last 2 years % confirmed last 2 years District Court Judges 263 205 58 22.1% Circuit Court Judges 61 51 10 16.4% Total: 324 256 68 21%
That is not to say that confirmations did not slow down. According to data from the Congressional Research Service, President Clinton had only a 62 percent confirmation rate in his last two years (compared to 85 percent overall), and the Senate left 41 nominees pending at the end of the 106th Congress. Similarly, the last Senate of the Bush administration confirmed judicial nominees at a rate of 65 percent (compared to 87 percent for Bush’s entire two terms), and left 30 nominees pending.
Nonetheless, these data show that President Obama can continue to appoint federal judges throughout the remainder of his term, and that neither the White House nor Senate Democrats should yield to the narrative of an inevitable confirmation shutdown. Even before the next Congress, the Senate should confirm all of the 25 district court nominees already pending on the Senate calendar or waiting for a committee vote. Indeed, 16 of these nominees have the express support of their home-state Republican senators. Then, assuming President Obama matches the total of George W. Bush—the lowest of the last three two-term presidents—he would add 68 more confirmations during his final two years in office. Depending in part on which judges take senior status or retire, these numbers reflect a meaningful opportunity for the president to shape the judiciary and enhance his judicial legacy.
Still, some argue that, even assuming that judicial confirmations remain possible, the White House will have to compromise with Republican Senators and nominate more conservative judges. If that’s true, professionally diverse lawyers who have experience advocating for individual rights, such as public defenders, public interest lawyers, and plaintiffs’ lawyers, could be out of luck. But again, history suggests otherwise.
In 2000, President Clinton’s last year in office, the Senate confirmed Richard A. Paez and Marsha Berzon to the Ninth Circuit after both faced lengthy partisan opposition. It took more than 1500 days for Judge Paez to be confirmed, which at the time was the longest wait for any judicial nominee in American history. Paez had practiced at several public interest organizations and Legal Aid in Los Angeles. Berzon had primarily represented labor unions and employees at a small firm that she co-founded. Then-Senate Majority Leader Trent Lott, R-Miss., displeased that two public interest lawyers might serve on a federal court of appeals, lamented that “[t]he [Ninth] Circuit is out of control, and these nominees will only make it worse.” Yet 14 Republicans broke ranks with their leadership, and joined every Democratic member to confirm Paez 59-39. Berzon was confirmed by an even wider margin, 64-34.
Examples of Republican success are also instructive. In 2007, President George W. Bush’s penultimate year in office, the Democratic-controlled Senate confirmed Leslie Southwick to the Fifth Circuit, despite widespread opposition from Senate Democrats and civil rights groups. Majority Leader Harry Reid, D-Nev., opposed Southwick because, as a state court judge, Southwick had “joined decisions that demonstrate insensitivity to—and disinterest in—the cause of civil rights.” Assistant Majority Leader Dick Durbin, D-Ill., said that Southwick “has lost the confidence of the civil rights community . . . across the Nation.” But despite this controversy, and the widely-held view that Southwick was a movement conservative nominated to advance President Bush’s agenda, he was confirmed with the support of nine Democrats, 59-38.
One final example is worth noting. Though he was only a one-term president (and thus not a lame duck during his last two years), President George H.W. Bush appointed Clarence Thomas to the Supreme Court in 1991, when Democrats controlled the Senate during the 102nd Congress. Notwithstanding Thomas’s conservative record, contentious confirmation hearings, and swirling controversy arising out of sexual harassment allegations, 11 Democratic Senators voted to replace civil rights icon Thurgood Marshall with Clarence Thomas. It is not often one can say this, but over the next two years, on the issue of judicial confirmations if nothing else, Justice Thomas should provide President Obama with great hope.
Finally, there’s this: Predicting a confirmation shutdown ignores what Senate Republicans still have at stake. Of the eight pending judicial nominees yet to have a confirmation hearing (and therefore less likely to be confirmed this year), six are from states with at least one Republican Senator. These include three Texas nominees that Republican Senators John Cornyn and Ted Cruz—both members of the Senate Judiciary Committee—recommended for nomination. Moreover, 25 of the 32 current vacancies without a nominee are in states with at least one Republican Senator, including seven that, because of their burdensome caseloads, are considered “judicial emergencies.” (Senator Charles Grassley, the presumptive Republican Chairman of the Judiciary Committee, has often said that judicial emergencies should be a priority.) On top of that, 16 more judges from red or split states have already announced they will retire or take senior status next year. Thus, a Republican shutdown of judicial confirmations will not be a simple rebuke of the president and Senate Democrats; it will directly harm the very constituents the new majority of Senators were elected to serve.
Good thing the Federal Trade Commission is acting, because forced arbitration prevents consumers from effectively fighting for themselves.
Have you been “throttled” by AT&T?
According to the Federal Trade Commission, since 2011 it’s happened more than 25 million times, affecting 3.5 million customers.
Throttling refers to slowing down your internet connection when you use more data than your provider wants you to use, whether for email, streaming video or anything else.
The FTC alleges AT&T throttled customers who pay $30 a month for data plans that AT&T calls unlimited – in some cases slowing their internet speeds by up to 90 percent. AT&T says it told its customers they could be throttled. The company says it put notices in bills (and who doesn’t read every word of their cell phone bill)? They also claim to have sent emails and text messages to customers on the verge of being throttled. But, according to The New York Times:
While AT&T said that customers were notified by text message before the program was put into effect, the commission said that “most unlimited mobile data plan customers have never been sent a text message or email” about it.
And, as The Washington Post reports:
The FTC found in its investigation that AT&T was aware that consumers saw throttling as inconsistent with promises of “unlimited” data. When the company explained the concept to focus groups, the FTC reported in its suit, customers grew upset. The company’s own researchers then urged AT&T’s marketers that “saying less is more” when it comes to selling such services. …
“AT&T promised its customers ‘unlimited’ data, and in many instances, it has failed to deliver on that promise,” said [FTC chairwoman Edith] Ramirez in a statement. “The issue here is simple: ‘unlimited’ means unlimited.”
And, the Post reports, this is not the first time AT&T has come under scrutiny from the FTC. In addition to “throttling,” the company also has been accused of “cramming” :
AT&T is also paying $105 million to settle charges from this month that it loaded consumers’ wireless bills with bogus third-party fees without their consent. Those fees, according to the FTC and the [Federal Communications Commission], added “hundreds of millions of dollars” to AT&T’s bottom line over a five-year period and misled customers into thinking that they were being charged for AT&T’s own services.
Since becoming FTC chairwoman a year ago, Ramirez has won high marks from consumer advocates. But the rights of consumers should not be dependent on who happens to be running a government agency – when an agency has the power to act at all. Consumers should be able to band together and fight for their rights in court.
But when it comes to AT&T, they can’t. That’s because AT&T has something else in the fine print, along with the notice about throttling: AT&T has a forced arbitration clause – the kind of clause we take on in our 20-minute documentary Lost in the Fine Print.
Indeed, AT&T has a notorious place in the annals of forced arbitration. When customers were charged more than $30.00 each for phones AT&T said would be free, they tried to band together to sue the company. AT&T appealed all the way to the Supreme Court. In a decision written by Justice Antonin Scalia, the five-member conservative majority ruled that AT&Ts forced arbitration clause shut the customers out of court.
So now that AT&T is at it again, victims of throttling can’t come together to stand up for their rights in court. Instead they have to go one at a time to an arbitrator essentially chosen by AT&T, or they can go, again one at a time, to small claims court. One person actually did that. It took a lot of time and effort. And though he got a refund on part of his bill, even then he couldn’t stop AT&T from continuing to throttle him.
The other 3,499,999 customers allegedly throttled by AT&T shouldn’t have to do the same in order to get justice.
So please go to www.lostinthefineprint.org and click on the “Take Action” link. It will take you to a page where you can demand that AT&T – and other companies you deal with that use forced arbitration – remove those clauses from their terms of service.
Watch this story about AT&T and throttling from NBC Nightly News:
By Kasey Burton
Extern, National Employment Lawyers Association
On October 8, I attended the oral argument at the U.S. Supreme Court in the case of Integrity Staffing Solutions, Inc. v. Busk. The issue before the Court is whether employees should be paid for time they spend, after their shifts are over, waiting to complete a mandatory security screening used to see if the employees are trying to steal anything. Workers at Amazon.com warehouses, employed by Integrity Staffing, are required to undergo a mandatory search of their body and belongings before being permitted to leave the facility. The search, which is similar to that conducted at airports, requires employees to empty their pockets, have their bags searched, and walk through a metal detector. Long lines often form at the screening stations, requiring workers to wait up to 25 minutes before they can leave the premises.
Although this case will address the specific issue of whether warehouse employees must be compensated for anti-theft inspection of their person and belongings and the waiting time involved, the impact of the Court’s decision will likely be far broader. As counsel for the workers Mark R. Thierman said, this is about Integrity Staffing’s attempt to push the line of compensation to encompass less and less. (The workers are also represented by Professor Eric Schnapper, University of Washington School of Law.)
Counsel for Integrity Staffing Paul D. Clement characterized the wait time as simply a “logical part of the egress process” that did not merit compensation. He argued that the Portal-to-Portal Act of 1947, which amended the Fair Labor Standards Act, requires the screening to be an “integral and indispensable” component of the workers’ “principal activities” in order to mandate compensation under the law. Clement repeatedly asserted that the screenings were in no way “integral and indispensable” to the work the employees performed. He compared the screening to checking out at the end of the workday—an activity for which employees are not compensated.
Curtis E. Gannon, Assistant to the Solicitor General, arguing for the government, agreed. He urged the Court to find that the screening failed to rise to the level of compensable activity. When pressed by Justice Ruth Bader Ginsburg for an example of how invasive a security screening had to be before it could be compensable, Gannon stumbled, eventually capitulated, and stated that he could not provide a specific example of when a screening would cross the line into compensable territory.
Thierman reframed the discussion, distilling the Court’s inquiry to two questions: Is it work? If it is work, is it a “principal activity” requiring compensation? Although Justice Samuel Alito chastised Thierman for failing to argue whether the screenings were “integral and indispensable” to the employees’ work of packing and shipping merchandise, Thierman persevered, picking up steam as he continued. He focused his argument on the practical realities of the security screenings, arguing that they went far beyond a basic check-out process. He explained that had the employees been required to remain at their workstations for screeners to inspect them, the time would certainly be compensable. The warehouse workers, he explained, are “engaged to wait.” Because they are required to wait for up to 25 minutes each workday to be screened, he argued, they must be compensated for their time.
The Justices, based on their questions and comments, appeared to be split along predictable lines, with Justice Anthony Kennedy’s vote hanging in the balance. The conservative justices appeared concerned with the abstractions of the law, while the liberal justices aimed to reconcile the law with the practical realities of the retail workplace in the 21st Century. Justice Elena Kagan focused her questioning on the anti-theft nature of the screenings, categorizing the screening procedure as inventory control. Justice Ruth Bader Ginsburg asked about what appeared to be the intentional shortage of screening staff that, as she noted, shifted the cost of conducting the screenings onto the employees who were forced to wait. Justices John Roberts and Antonin Scalia both insisted that a “principal activity” could not include going through a security screening, because a “principal activity” must be an important, central function of the job.
Justice Kagan asked one of the more interesting questions, positing a hypothetical based on real life. She said that there was a judge years ago in New York who required his law clerks to arrive early every workday to cut up his grapefruit and make his breakfast. She wondered whether the government thought that was compensable time. Gannon had to concede that it was.
Kasey Burton is a third year law student at the University of Washington School of Law, in Seattle. She is externing at the National Employment Lawyers Association, an AFJ member organization, which filed an amicus brief in this case.