In Huffman v. OPM, 2001, #00-3184, the U.S. Court of Appeals for the Federal Circuit went to a dictionary to define the word “disclose” in the Whistleblower Protection Act (WPA). It ruled that telling a wrongdoer about his or her wrongdoing cannot be a “disclosure”’ because the wrongdoer already knows about it, and because the purpose of the WPA is:
“to encourage disclosures that are likely to remedy the wrong. … The wrongdoer is not such a person. Extending the WPA to cover reports to a supervisor of the supervisor’s own misconduct would also have drastic adverse consequences. As we stated in Willis, “[d]iscussion and even disagreement with supervisors over job-related duties is a normal part of most occupations.” Willis, 141 F.3d at 1143. If every complaint made to a supervisor concerning an employee’s disagreement with the supervisor’s actions were considered to be a disclosure protected under the WPA, virtually every employee who was disciplined could claim the protection of the Act. Although Congress intended that the WPA’s coverage be broad, we think it unlikely that Congress intended the Act to extend that far, and we hold that it did not.”
It seems more likely that the Court refers to “drastic” consequences to its own docket than to the employee. But it misses the point. Instead of pinning nature of the disclosure on the consequences of the wrongdoing, no matter how criminal or disastrous, the Court pinned it on the mere circumstances.
Its decision means that the WPA does not protect the innocent employee of a criminal enterprise who sees something he is not supposed to, and reports it to his supervisor, not knowing that his supervisor is in on it. Thus the supervisor could murder the employee and, under the Court’s interpretation, it could not be a WPA case.
In Barefoot v. Estelle, 463 U.S. 880 (1983), in order to put a convicted murderer on death row, the Supreme Court of the United States held that no one could question whether psychiatry even had any validity in predicting future dangerous behavior; that the psychiatrist making the prediction did not even have to personally examine person about whom the prediction is made; and that merely answering of hypothetical questions about the person is good enough to admit as evidence in a court of law. Paraphrasing the decision, one might as well say:
“Don’t worry about a thing; even though your heart surgeon has not examined either you or your medical record, he has learned about you through hypothetical questions, and there is no evidence that he is almost entirely unreliable.”
In the Toyota v. Willams case, 2002, U.S. Supreme Court certiorari to the united states court of appeals for the sixth circuit, No. 00-1089, a woman who could not raise her arms above her head was fired because Toyota instituted a job rotation policy requiring every person on the line to be able to perform every job on the line. They called it a “business necessity”, which perhaps not coincidentally would eliminate anyone who couldn’t do it because of a disability. The Japanese have been notoriously intolerant of differences. The High Court unanimously ruled in Toyota’s favor, stringing out a long, involved rationale on the nature of disabilities which none on the Court apparently had.
Not even the U.S. Army requires every grunt and tech to do every job. If it did, it might send to the firing squad every helicopter tech who couldn’t bake a cake, and every cook who couldn’t maintain a helicopter. It would be a long list and a lot of bullets.
Wisdom and reasoning and decisions worthy of the highest Courts in the land should not be so easy to lampoon. But when they are specially constructed to reach a desired end, rather than as expressions of Constitutional justice, they quickly become so. "