A three-judge panel on the DC circuit Court of Appeals has rejected an appeal by fired Inspector General Gerald Walpin that aimed to force the Obama administration to give him back his job. Byron York reports that the panel unanimously ruled that Walpin’s firing did not violate the laws enacted by Congress, and that the retroactive 30-day notice met the conditions for termination:
The United States Court of Appeals for the District of Columbia has rejected fired AmeriCorps inspector general Gerald Walpin’s lawsuit seeking reinstatement to his job. In a ruling issued Tuesday morning, the three-judge panel — one appointed by the first President Bush, another appointed by President Clinton, and the third appointed by the second President Bush — agreed with a lower-court ruling that Walpin does not have a “clear and indisputable right” to his former job.
Did Walpin argue that he had a “right” to his job? Perhaps that’s just an artifact of legal argumentation, but the issue goes beyond Walpin and speaks to the independence of the IG corps. Congress created specific job protections to keep IGs from getting targeted for political retribution, a necessary shield for people whose job exists to expose waste, fraud, corruption, and abuse. Those job protections were intended to go beyond the normal civil-service rules, creating a special category that required an administration of either party to produce substantial and indisputable grounds for termination.
Instead, the court appears to have gutted those protections by accepting the lack-of-confidence grounds given by the White House in Walpin’s case:
Further, the judges ruled that Obama’s explanation that he no longer had “fullest confidence” in Walpin “satisfies the minimal statutory mandate that the president communicate to the Congress his ‘reasons’ for removal.”
It is an across-the-board defeat for Walpin. But it is also a clear danger sign for the independence of inspectors general. The court’s decision effectively means that the president can remove future inspectors general immediately, without notice to Congress, simply by placing an inspector general on immediate administrative leave, following by formal firing 30 days later. Also, the president can simply tell Congress he did it because he no longer has confidence in the inspector general.
That doesn’t even meet the standard for civil-service protections. Any IG could find himself on the unemployment line if a probe turned up fraud or corruption at high levels of an administration simply for no longer having its “fullest confidence.” And what IG who discovered that kind of fraud and abuse would have the “fullest confidence” of the suspects in such a probe? It’s an absurdly low standard that might not even survive a challenge to a termination of at-will employment in the private sector.
Walpin can challenge this to the Supreme Court. If the law really does allow for that size of a loophole in IG protections, however, the new Congress should insist on writing a much tougher law protecting IGs from political payback, such as in the Walpin case. Otherwise, the IGs still in place will know how to keep their jobs, which will be to kowtow to the existing administration.