C. Truth – Thanks for your response and sharing your letter. I will pen a note for a couple of Arkansas politicos who might pay attention to this.

Thanks Siun for letting me know about C. T.’s reply.

Good. FYI, Eureka Springs and Siun:

I did a morning read and looked for signing statements on the No FEAR Act. As Siun asked, I reposted with light of day changes. It’s #187 in the thread above under “Fact or Fiction.”

Let me know that you’ve come back here for further word. There’s much new in what I wrote today — on the unitary executive theory and other stuff — and I want to make sure you get that as well.

If I don’t get word in a follow-up over here I’ll hunt you both down on an active thread. Siun is right, there’s something up that we shouldn’t let slide.

Thanks Siun for letting me know about C. T.’s reply.

From me2me link on bush out blows whistleblowers

Is it really possible (legal) that a Labor Secretary has the power to overturn a judges ruling?

Whoops! Forgot to answer your question. Sorry. The answer is, Yes, but any such ruling is subject to further limited review in an Article III court. But that’s standard practice.

From me2me link on bush out blows whistleblowers

At the same time, the U.S. Environmental Protection Agency (EPA) is taking a more extreme position that absolutely no environmental laws protect its employees from reprisal. EPA’s stance would place the provisions of all major federal environmental laws, such as the Clean Air Act and the Safe Drinking Water Act, beyond the reach of federal employees seeking legal protection for good faith efforts to enforce or implement the anti-pollution provisions contained within those laws.

These actions arose in the case of Sharyn Erickson, an EPA employee who had reported problems with agency contracts for toxic clean-ups. After conducting a hearing, an administrative law judge called EPA’s conduct “reprehensible” and awarded Erickson $225,000 in punitive damages but the Labor Secretary overturned that ruling.

Is it really possible (legal) that a Labor Secretary has the power to overturn a judges ruling?

I read about this case on truthout.org and downloaded the memo and feds’ brief. It was outrageous! I was so livid I sent word to Patrick Leahy.

Here’s the letter:

Dear Senator Leahy,

I have no stake in this outrage other than that of an ordinary citizen … all right, so I’m an attorney. But I urge your staff to “blow the whistle” on another secretive evasive action by the Environmental Protection Agency (”EPA”) under color of yet another eerie memo prepared by the Attorney General’s Office of Legal Counsel (”OLC”).

All the materials are linked to at http://www.truthout.org/docs_2006/090406B.shtml, which sets out the story. I reviewed the September 23, 2005 OLC memo and the amicus brief filed on behalf of plaintiff Erickson.

The issue is whether whistleblower protections under the Clean Water Act (”Act”) permit a right of action against the EPA pursuant to the right of action established under the Act or whether, instead, these protections succumb to sovereign immunity. While OLC finds words to pick on, the memo never address the catchall “and any other requirement, whatsoever” in section 1323(a), which broadly waives soverign immunity. The words are simply ignored.

Worse yet, as the amicus brief notes, sovereign immunity was addressed in the No FEAR Act of 2002, of which the OLC memo makes no mention.

Were this a lawfirm opinion and I on the firm’s opinion committee I would never let something like this out of the shop. Of course the memo would not have seen the light of day but for FOIA. It is at best a bad brief. But then this administration furthers secrecy secretly, working the dark side if you will.

Although it sounds in Eleventh Amendment terms — Hello! States’ rights for the federal executive?? — the tactic smacks of the unitary executive theory.

I hope this note does some good.

Best,

I’m no expert in this area, but it looks like another special from Alberto “Stretch” Gonzales.

Though I didn’t note this (nor does the truthout article), the assault on whistleblower rights got momentum from a SCOTUS decision in May, Garcetti v. Ceballos, which denied employees first amendment rights for what they say as part of their jobs.

Garcetti was 5-4. Alito cast the deciding vote. The year before, O’Connor had authored a 5-4 decision encouraging whistleblowers to report sex discrimination in schools. Surprise, surprise!

When you consider how lawless this administration is and how demoralized our professional civil servants are these days — not only at the EPA, but at CIA — these developments send a cold shiver down my spine.

Bluementhal has a book out now too?!? Keith O, James Moore, Gore Vidal & Frank Rich this fall..who did I forget? There’s got to be at least 20 more books I want to read. Dear God, I will never catch up at this rate…whimpering.

Gore Vidal? Stop my pounding heart!

This is just too, too good. Dean, Blumenthal and Arianna. Don’t know if I can take this much truth.

True. But who would want to follow John Dean’s act? Cripes, that’d be like following Stevie Ray Vaughn.

Remember when people suspected Blumenthal of being the shadowy figure blogging under the name ‘Atrios’?

I’ve been listening to Thomas Laqueuer’s History 5 lectures from Berkeley (oh the wonders of podcasts) — he jokes about how, back in the 70s, he had to provide a long explanation of why religion was wrapped up in politcs…

But he also talks about the issues at stake preceding the English Civil War and French Revolution: the claims to special authority from monarchs by dint of special circumstances, and the pushback from legislatures and popular movements.

We’re dealing with an arbitrary monarch now. One who’d be comfortable in the 17th century.