Hundred-Years War: The Ongoing Battle between Courts and Agencies over the Right to Interpret Federal Law, The

Since the Supreme Court\u27s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass\u27n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts\u27 established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left unanswered by Brand X - specifically, whether agencies can also ignore federal court interpretations of federal statutes when the agency\u27s interpretation is not entitled to Chevron deference - and argues, based on consideration of constitutional theory and practical repercussions, that agencies may only do so in extremely limited circumstances where there is substantial justification. This Article reviews the Equal Employment Opportunity Commission\u27s policy of ignoring federal precedent in order to illustrate the damage caused by an unjustified polic

Why Whistleblowers Lose: An Empirical and Qualitative Analysis of State Court Cases

This Article was originally intended to be an analysis of the propriety, or impropriety, of the doctrines most commonly used by courts to decide employees’ whistleblowing retaliation claims against employers. However, upon conducting initial research, it quickly became apparent that there was very little data available on whistleblowing cases. Unlike employment discrimination cases, where several empirical studies have been conducted, there is only one empirical analysis of whistleblower claims, which focused solely on outcomes in the federal administrative process for claims brought under the Sarbanes-Oxley Act (SOX). That study revealed that whistleblowers fare poorly for a number of reasons, but many of the reasons suggested by the author appear to be unique to SOX plaintiffs. This Article studies the success rates of whistleblowers suing under state law, as different a context as possible from SOX, and identifies common reasons whistleblower claims fail in these cases

Causation in Whistleblowing Claims

his article attempts to bring coherence to the confusion of state whistleblower causation standards by: (1) explaining the causation standards presently used in federal whistleblower protection statutes; (2) identifying the proliferating causation standards used in whistleblower claims brought under state law; (3) assessing the most commonly used causation standards, including exploring the tort causation doctrine and theory that underlie some of these standards; and (4) proposing a uniform standard for causation in state whistle- blower litigation

The Garcetti Virus

In an era where corporate malfeasance has imposed staggering costs on society, ranging from the largest oil spill in recorded history to the largest government bailout of Wall Street, one would think that those who uncover corporate wrongdoing before it causes significant harm should receive awards. Employees are particularly well-placed to uncover such wrongdoing within companies. However, rather than reward these employees, employers tend to fire or marginalize them. While there are statutory protections for whistleblowers, a disturbing new trend appears to be developing: courts are excluding from the protection of whistleblowing statutes employees who report wrongdoing as part of their jobs. Under this doctrine, the internal safety inspector who uncovers illegal behavior while performing his duties and reports it to his boss can legally be fired for blowing the whistle. This Article explains how this doctrine, the job duties exclusion, was developed by the Federal Circuit over a decade ago to limit claims brought by federal employees under the federal Whistleblower Protection Act. Flawed at its inception, the doctrine languished, with no states adopting it until the Supreme Court’s decision in Garcetti v. Ceballos. In Garcetti, the Court applied the job duties exclusion to a claim brought under the First Amendment. Even though Garcetti involved a constitutional, not a statutory, claim, the decision has given new life to the doctrine developed by the Federal Circuit. Since Garcetti, courts have begun applying the job duties exclusion to state statutory whistleblower claims, placing protections for employees at grave risk. This Article examines this developing trend, explaining how Garcetti has had an impact on what is fundamentally a state statutory interpretation issue. It identifies the flaws of the job duties exclusion as first articulated, the reasons why state courts should not apply it to state whistleblower protection statutes, and recommends that legislatures amend statutory protections to ensure that employees who do the right thing and report corporate malfeasance are protected against retaliation

Causation in Whistleblowing Claims

Whistleblowing cases have continued to increase in number in recent years as state and federal legislatures have added protections for employees who disclose illegal or wrongful activity by their employers. But even as the number of cases continues to climb, cohesive and coherent doctrines applicable in whistleblowing litigation have failed to emerge. A significant reason for this is that much of whistleblower protection is statutory in nature, and federal statutes vary greatly from state statutes, even as state statutes differ. A second reason is that courts have drawn upon doctrines developed under Title VII of the Civil Rights Act of 1964 in deciding whistleblowing cases, and Supreme Court decisions as well as statutory amendments have frequently altered legal standards in these cases. And a third reason is that there are overlapping common law and statutory protections, which result in the potential for different whistleblowing doctrines to develop, even within a single state. Causation is one of the elements of a whistleblowing case where this doctrinal confusion proliferates. While federal statutory standards appear to be coalescing around requiring the plain-tiff to prove that the employee‘s whistleblowing was a contributing factor in causing the employee to be fired, the same cannot be said for claims brought under state law. Causation standards in state whistleblower cases encompass a wide array of options, ranging from the stringent standard of requiring that the employee establish that his or her whistleblowing was the sole cause of retaliation, to the more lenient standard of requiring that the employee prove that the whistleblowing was a motivating factor of the employer‘s retaliation.At the same time, as my earlier work illustrates, inability to prove causation is one of the more common reasons that whistle-blowers fail to prevail in litigation. This article attempts to bring coherence to the confusion of state whistleblower causation standards by: (1) explaining the causation standards presently used in federal whistleblower protection statutes; (2) identifying the proliferating causation standards used in whistleblower claims brought under state law; (3) assessing the most commonly used causation standards, including exploring the tort causation doctrine and theory that underlie some of these standards; and (4) proposing a uniform standard for causation in state whistle-blower litigation

The Hundred-Years War: The Ongoing Battle Between Courts and Agencies over the Right to Interpret Federal Law

Since the Supreme Court’s 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass\u27n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts\u27 established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left unanswered by Brand X - specifically, whether agencies can also ignore federal court interpretations of federal statutes when the agency\u27s interpretation is not entitled to Chevron deference - and argues, based on consideration of constitutional theory and practical repercussions, that agencies may only do so in extremely limited circumstances where there is substantial justification. This Article reviews the Equal Employment Opportunity Commission\u27s policy of ignoring federal precedent in order to illustrate the damage caused by an unjustified policy

The Garcetti Virus

In an era where corporate malfeasance has imposed staggering costs on society, ranging from the largest oil spill in recorded history to the largest government bailout of Wall Street, one would think that those who uncover corporate wrongdoing before it causes significant harm should receive awards. Employees are particularly well-placed to uncover such wrongdoing within companies. However, rather than reward these employees, employers tend to fire or marginalize them. While there are statutory protections for whistleblowers, a disturbing new trend appears to be developing: courts are excluding from the protection of whistleblowing statutes employees who report wrongdoing as part of their jobs. Under this doctrine, the internal safety inspector who uncovers illegal behavior while performing his duties and reports it to his boss can legally be fired for blowing the whistle. This Article explains how this doctrine, the job duties exclusion, was developed by the Federal Circuit over a decade ago to limit claims brought by federal employees under the federal Whistleblower Protection Act. Flawed at its inception, the doctrine languished, with no states adopting it until the Supreme Court’s decision in Garcetti v. Ceballos. In Garcetti, the Court applied the job duties exclusion to a claim brought under the First Amendment. Even though Garcetti involved a constitutional, not a statutory, claim, the decision has given new life to the doctrine developed by the Federal Circuit. Since Garcetti, courts have begun applying the job duties exclusion to state statutory whistleblower claims, placing protections for employees at grave risk. This Article examines this developing trend, explaining how Garcetti has had an impact on what is fundamentally a state statutory interpretation issue. It identifies the flaws of the job duties exclusion as first articulated, the reasons why state courts should not apply it to state whistleblower protection statutes, and recommends that legislatures amend statutory protections to ensure that employees who do the right thing and report corporate malfeasance are protected against retaliation