Plight of whistleblowers at VA has gotten worse

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During a July 8, 2014, hearing of the House Committee on Veteran’s Affairs entitled “VA Whistleblowers: Exposing Inadequate Service Provided to Veterans and Ensuring Appropriate Accountability,” then-Chairman Jeff Miller stated that

“Rather than pushing whistleblowers out, it is time that VA embraces their integrity and recommits to accomplishing the promise of providing high quality healthcare to America’s veterans.”

Unfortunately, five years later, the plight of whistleblowers at VA appears to have gotten worse, not better, than it was in 2014. As highlighted in a VA Office of the Inspector General report issued last week, the VA Office of Accountability and Whistleblower Protection – which was specifically set up to protect whistleblowers — was instead stifling claims and retaliating against the very employees the office was designed to protect.

The allegations raised in the report raise an important question as to whether government agencies should be allowed to police themselves and, if they should not, what alternatives should be put in place instead.

At the same July 2014 hearing referenced above, VA whistleblower Scott Davis testified, in reference to retaliation he faced for whistleblowing at VA, that: “This goes to the very heart of the question whether or not VA should be allowed to police itself and whether or not an outside agency should be brought in.”

Upon further reflection, perhaps rather than another agency, what we need is an independent federal court to review whistleblower claims. Throughout our nation’s history, Congress has created stand-alone tribunals of specialty jurisdiction on several occasions, most recently creating the US Court of Appeals for Veterans Claims (CAVC) in 1988. 

The CAVC example is instructive, in part because it was created specifically in response to cultural issues and poor performance at the VA. At the time the proposal was being legislatively considered, one academic referred to VA as “the embodiment of Henry VIII in America,” a reference many whistleblowers today would probably be in agreement with.  

Moreover, a concurrent report by the House Committee on Government Operations in 1988 highlighted the VA’s frequent attempts to hide its problems, noting that “favoritism [and] undue emphasis on production quotas . . . hampered VA from operating in the best interest of veterans.” This statement also unfortunately rings true today.

Similarly, the Washington Post affirmed in an article about the judicial review debates that “courts exist in part precisely to settle disputes between citizens and the executive branch.  No agency should be the judge of its own actions.” 

Yet, nearly 30 years after the passage of the Veterans Judicial Review Act, Congress passed legislation directing VA to do just that — to judge its own actions — when it established OAWP. 

Those in favor of the status quo are quick to note that there are several existing, and purportedly independent, agencies that deal specifically with whistleblower complaints, mainly the Merit Systems Protection Board, which is a quasi-judicial agency.

However, the MSPB is far from an idyllic portrait of justice; federal employees won relief in just three percent of cases over the last three years, and federal employees are temporarily without an option for a mid-level appeal, because the three-member, presidentially appointed board at the MSPB is currently without any members, and has been without a quorum for the past two years, creating an exhaustive backlog of cases.

By contrast, at a recent event at the U.S. Supreme Court celebrating the thirtieth anniversary of the CAVC, Justice Stephen Breyer, who testified in favor of the CAVC’s creation in 1988, noted that whereas most of our government is currently considered dysfunctional, the nation’s newest federal court was perhaps the best example of how government should function.

Furthering Breyer’s point about governmental dysfunction as well as the argument in support of independent review in a judicial forum for whistleblowers, is the fact that Congress, despite agreeing to hold a hearing on the OIG report, is not allowing actual whistleblowers to participate in the hearing. 

For example, Scott Davis, the whistleblower who testified at the 2014 hearing, was denied the opportunity to submit a statement for the record in response to the OIG report, despite his firsthand experiences that substantiate many of the report’s findings. 

“I was initially optimistic when I read the findings in the OIG report,” said Davis in an email, “however, the decision by Chairman Takano (D-Calif.) to not allow whistleblowers to speak or submit statements for the record at a hearing about whistleblower retaliation is a slap in the face to all VA whistleblowers.”

He added that the OIG report “raises critical questions about legal avenues to address whistleblower concerns beyond the current archaic system.” 

Similarly, VA whistleblower James DeNofrio said in a statement:

Recent findings by the VA OIG detail a complete failure by VA to implement the bipartisan congressional efforts spearheaded by Chairman Jeff Miller to protect whistleblowers. VA employees are rightfully more fearful than ever of retaliation if they expose VA wrongdoing or veteran care issues. OAWP has been found by OIG to be directly engaging in whistleblower retaliation while OSC and MSPB have left whistleblowers trapped in a broken system without judicial due process to address claims of retaliation.

Of course, independent judicial review of specialty claims, including whistleblower claims, is not a panacea of perfection. However, it certainly appears to be a viable option worth considering that would produce more equitable outcomes for federal whistleblowers than the current system of self-policing at OAWP.

Rory E. Riley-Topping served as a litigation staff attorney for the National Veterans Legal Services Program (NVLSP), where she represented veterans and their survivors before the U.S. Court of Appeals for Veterans Claims. She also served as the staff director and counsel for the House Committee on Veterans’ Affairs, Subcommittee on Disability Assistance and Memorial Affairs for former Chairman Jeff Miller (R-Fla.). You can find her on Twitter: @RileyTopping.

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