“The Outsiders: Broadening the Scope of Standing in the Whistleblower Actions in Light of Anderson v. U.S. Dep’t of Labor”

Former staff member Dawn Franklin wrote the following comment appearing in JNREL Vol. 20 No. 2. Staff member Sunni Harris wrote the following abstract.

In 1972, Congress passed the first Whistleblower Provision to protect employees that were discriminated against because they testified or filed suit under the Water Pollution Act. Since 1972, almost every state has enacted whistleblower statues to protect those bringing suits under environmental bills. However, as law surrounding this area matures, the question has become whether anyone other than employees and "authorized representatives of employees" have standing to bring a whistleblower claim against a company.

The court in Anderson v. Dep't of Labor, 422 F.3d 1155 (10th Cir. 2005), seems to answer this question in the negative. In this case, the mayor of Denver appointed the Plaintiff to serve as a political appointee on Metro Reclamation District's ("Metro") board in hopes that she would represent the aims of Metro's employee union ("OCAW"). Metro is a wastewater treatment plant. When the plaintiff discovered that Metro was planning to accept treatment wastewater from a Superfund site, she immediately spoke out against the plan to the public and press. As a result, Metro threatened the plaintiff with censorship and other sanctions. In response, the plaintiff filed a suit alleging that Metro's actions violated seven environmental whistleblower provisions.

The Anderson court held that the plaintiff's status as a political appointee precluded her from bringing a lawsuit against Metro pursuant to whistleblower statutes. The court's reasoning was two-fold. First, it determined that the plain language and congressional intent of the whistleblower statutes excluded her from the scope of their protection. Second, it determined that Anderson could not serve two masters. Specifically, Anderson could not be both an agent for the state of Colorado as a political appointee and an authorized representative of the OCAW board.

The Anderson court seems to underestimate the value of non-employee whistleblowers. Non-employees, including political appointees such as the plaintiff, should not fear retaliation from an employer upon reporting employer violations. Without the protection of the law to allow them to perform their jobs feely, a nonemployee's job becomes nearly impossible. Thus, in the future, courts should expand protection of whistleblower statutes to cover non-employees.