I ran into a former client of mine the other day and he excitedly told me about how Congress had finally rectified an injustice he had suffered. While it didn’t do him any good personally, he was still delighted that the law was eventually made right, so others did not have endure what he did.
My client worked as an Administrative Judge for the Department of the Interior and was called upon to decide a claim for compensation under the White Earth Land Settlement Act. This law was designed to compensate members of the White Earth Indian Band for confiscation of tribal lands and was to be administered by the Department of Interior. In a gutsy decision, he issued a thoughtful and reasoned decision that criticized prior precedent followed by the Interior Department. He issued a decision that described how the prior decision was erroneous and he reached an opposite result. Don’t you just love judicial independence? Well, not so fast. The Department of the Interior did not like this decision, and so my client was promptly fired. So much for judicial independence.
I helped him bring a claim under the Whistleblower Protection Act, but the federal appellate court with exclusive jurisdiction under the Act dismissed his claim, reasoning that he was just doing his job and that his decision explicating the legal error of a prior court decision was not the kind of report of a violation of law that the Act was designed to protect. His termination would stand. That decision came down in 2000.
Despite the many roadblocks to Congressional action that we hear about in the news these days, more than a decade later the Congress rectified this narrow interpretation and in late November of last year President Obama signed into law the “Whistleblower Protection Enhancement Act of 2012”. A Senate Report on this legislation specifically cited my client’s case as one of the erroneous judicial interpretations that had whittled away the protections of the Whistleblower Protection Act and now required correction. Fortunately, my client landed a new job as an Administrative Judge in another department of the federal government many years ago. He continues to serve as a Judge to this day. But now he also has the satisfaction of knowing that his claim in the lawsuit was ultimately vindicated. Both Houses of a deeply divided Congress, and the President of the United States, agreed that federal employees ought to have job protection when they act to make something right and try to uphold the law.
This fairly recent example of our Legislative and Executive Branches agreeing to rectify the error of the Judicial branch, gives me a glimmer of hope that maybe, even in today’s polarized political environment, the damage done recently by the Supreme Court to a key section of the Voting Rights Act may still be undone.
By Michael W. Unger. Mr. Unger, of Unger Law Office in Minneapolis, is a certified civil trial specialist who has handled many types of civil litigation in the past, but who now chooses to focus his practice on representation of plaintiffs in personal injury, wrongful death and medical malpractice cases.