Rule of Law: Officially Dead

Apparently, every statute will now need further clarification to highlight the circumstances to which it will apply.  In a neener-neener moment, the Labor Department has determined that whistleblower statutes won't provide protection against retaliation for federal employees.  In de rigeur Bushco style, the determination is buried in a footnote to a March 30, 2007 ruling by the Labor Department.

PEER link

Washington, DC -- The Bush administration has declared itself immune from whistleblower protections for federal workers under the Clean Water Act, according to legal documents released today by Public Employees for Environmental Responsibility (PEER). As a result of an opinion issued by a unit within the Office of the Attorney General, federal workers will have little protection from official retaliation for reporting water pollution enforcement breakdowns, manipulations of science or cleanup failures.

Citing an "unpublished opinion of the [Attorney General's] Office of Legal Counsel," the Secretary of Labor's Administrative Review Board has ruled federal employees may no longer pursue whistleblower claims under the Clean Water Act. The opinion invoked the ancient doctrine of sovereign immunity which is based on the old English legal maxim that "The King Can Do No Wrong." It is an absolute defense to any legal action unless the "sovereign" consents to be sued.

The original upublished opinion can be found at the PEER link.

The offending footnote in its entirety is as follows.  (bold added)

PEER link

Footnote 1

The Clean Air Act, 42 U.S.C.A. § 7622(a) (CAA) (West 2003); the Safe Drinking Water Act, 42 U.S.C.A. § 300j-9(i)(1)(A) (SDWA) (West 2003); the Comprehensive

Environmental Response, Compensation, and Liability Act, 42 U.S.C.A. § 9610(a)(CERCLA) (West 2005); the Toxic Substances Control Act, 15 U.S.C.A. § 622(a)(TSCA) (West 1998); the Federal Water Pollution Prevention and Control Act, 33 U.S.C.A. § 1367(a)(FWPPCA) (West 2001); and the Solid Waste Disposal Act, 42 U.S.C.A. § 6971(a) (SWDA) (West 2001). Regulations implementing these statutes are found at 29 C.F.R. Part 24 (2006). The Administrative Law Judge (ALJ) assumed that all of the statutes applied. Recommended Decision and Order (R. D. & O.) at 52.

Though neither the parties nor the ALJ addressed the issue, federal agencies such as the EPA are immune from suit unless Congress unequivocally waives that immunity. We have recently decided that among these six environmental whistleblower statutes, Congress waived federal sovereign immunity only with respect to the employee protections of the SWDA and CAA. See Erickson v. U.S. Envtl. Prot .Agency, ARB Nos. 03-002 - 004, 03-064; ALJ Nos. 99-CAA-2, 01-CAA-8, 13, 02-CAA-3, 18, slip op. at 10-12 (ARB May 31, 2006). EPA has not argued against coverage under either of these statutes, nor has Lewis specifically argued for such coverage. Our decision would be the same regardless of which of the two statutes is assumed to apply. Therefore, for purposes of this decision we will assume coverage under the CAA.

PEER again:

"Federal workers who are working to clean up pollution should not be penalized for their pains," stated PEER Senior Counsel Paula Dinerstein, who is now litigating against the Labor Department's earlier ruling before the 11th Circuit U.S. Court of Appeals in Atlanta. "This bald assertion of immunity is both legally unsupported and the precise opposite of the direction in which we as a nation should be heading."

Of course, turning back the clock on protections has been an overriding Bush theme since day one.