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MSPB Watch Files Amicus Curiae Brief in Federal Court to Undo MSPB’s Erosion of Whistleblower Protections

By: MSPB Watch Tuesday January 21, 2014 8:12 pm

Last September, nearly a year after the passage of the Whistleblower Protection Enhancement Act, the U.S. Merit Systems Protection Board issued a decision in O’Donnell v. USDA, 2013 MSPB 69 (Sept. 10, 2013), which resurrected a whistleblower-hostile ruling from 2000: that disclosures of wrongdoing made in the adjudicative context could not be protected because an appeals mechanism already exists to correct legal improprieties.

This judicial ruling was issued via a minor holding by the U.S. Court of Appeals for the Federal Circuit in Meuwissen v. Department of Interior234 F.3d 9 (Fed. Cir. 2000).

When O’Donnell came down, I took issue with the Board’s analysis in several postings, focusing primarily on the Board resurrecting Meuwissen despite the passage of the WPEA:

So minor was this particular ruling, in fact, that in the 13 years that followed, it was mentioned, in passing, only twice (once by the Federal Circuit in 2002 and once by the full Board in 2009 – not including non-publicly available AJ initial decisions), and applied only twice: once via the case in which it was resurrected (O’Donnell), and once in a subsequent case which relied on O’Donnell (Daniels v. SSA).

Today, both O’Donnell and Daniels are working their way through the federal appellate courts, and both take direct aim at Meuwissen. 

Here’s my attempt, via an amicus curiae brief in O’Donnell:

[Link to Scribd page or via direct download]

There’s no guarantee the brief will be accepted by the court. It was rejected once before for a technicality, but I resubmitted it. The Department of Justice had until January 16 to oppose or respond, but they did neither, so we’ll see.

“I don’t even think of retaliation as immoral, at this point.”

By: MSPB Watch Wednesday November 6, 2013 2:50 pm

Can you be an effective advocate for whistleblowers’ rights if you don’t believe retaliation is immoral?

Readers of this website know that I am not a fan of Tom Devine, Legal Director at the Government Accountability Project. I believe that he possesses/possessed far too much influence in whistleblower circles, given that (a) at bottom he does not believe in the rule of law (by his own admission to me), and (b) he does not believe that retaliation is immoral, by his own words to the public just last month. Take a look:

“I don’t even think of retaliation as immoral, at this point.” -Tom Devine, Legal Director at the Government Accountability Project, speaking at Harvard Law School in October 2013 at a program organized by Ralph Nader

Fuller video/context for fact-checkers here.

I’m not going to belabor the point. I’m just going to put this out there: would a so-called abolitionist have been taken seriously in the 1800′s if he didn’t see slavery as an immoral institution? Would a suffragist be taken seriously at the turn of the 20th century if she didn’t see disenfranchisement as immoral? Would a civil rights activist in the 1960′s be taken seriously if he didn’t see segregation as immoral?

Is retaliation for speaking the truth a lesser form of struggle than the above?

Were slavery, disenfranchisement, and segregation not also defended on naturalist, universal, and timeless grounds before this fallacy was exposed for the power-entrenching excuse that it is?

If one doesn’t believe in the rule of law or the immorality of retaliation (or injustice and denial of due process), and one holds a large degree of influence over the development of whistleblower rights for 30+ years, what is the likely degree of health and vitality of those rights, 30 years out?

Despite what my detractors say, my objections with Devine are rooted in the fundamental difference that retaliation is not a natural part of life that we must resign ourselves to and accept. It’s a social norm that can be regulated and abolished. And it is this difference that colors my ethics and motives, as well as his.

White House Admits NSA Disclosures Raise “Legitimate Questions” for U.S. Allies

By: MSPB Watch Monday October 21, 2013 5:51 pm

From The Guardian:

The White House conceded on Monday that revelations about how its intelligence agencies have intercepted enormous amounts of French phone traffic raised “legitimate questions for our friends and allies”.

In a statement released after a phone call between Barack Obama and his counterpart, François Hollande, the White House made one of its strongest admissions yet about the diplomatic impact of the disclosures by the former NSA contractor Edward Snowden.

The French government had earlier summoned the US ambassador in Paris on Monday to demand an urgent explanation over claims that the National Security Agency had engaged in widespread phone and internet surveillance of French citizens.

The French daily Le Monde published details from the NSA whistleblower Edward Snowden, suggesting the NSA had been intercepting French phone traffic on what it termed “a massive scale”.

Well, of course. This was obvious to anyone able and willing to recognize the significance of Mr. Snowden’s disclosures to the public interest, as well as the fact that he, like many whistleblowers, was shut out of the democratic process because of the failures of internal channels and whistleblower protections.

At the risk of inflaming passions in the whistleblower community, it bears asking: will the thought leaders in whistleblower circles who got it so very wrong about Mr. Snowden own up to their errors in judgment?

Did a U.S. Senator Block Additional Funding for Whistleblower Protection as Payback?

By: MSPB Watch Saturday October 19, 2013 1:54 pm
Sen. Mike Johanns, R-Neb.

Sen. Mike Johanns, R-Neb.

A few days ago, it was revealed that U.S. Senator Mike Johanns (R-Neb.) objected to, and got removed, a provision in the shutdown deal legislation that would have funded the Office of Special Counsel, the nation’s top federal whistelblower defender, at the levels proposed by the White House, $20.6M (a figure which itself has been deemed “conservative” to address whistleblower case backlogs).

What motivated Sen. Johanns to do this? One possible reason: payback for having been inartfully named in a January 2011 OSC report on inappropriate political activities by Bush Administration officials, around the 2006 election period. Johanns was the Agriculture Secretary at the time.

According to GovExec.com,

OSC faulted travel by Johanns to events with GOP candidates ahead of the 2006 election. It said several events just before the elections that the Agriculture Department concluded were official business and paid for with federal funds were clearly political and should have been funded by the campaigns.

One such event was a Johanns appearance with former Rep. Heather Wilson, R-N.M., and former Sen. Pete Domenici, R-N.M., to tout an expanded Forest Service facility in Albuquerque, N.M.

The report also cited instances where Agriculture deemed events political, such as an appearance by Johanns with then-Rep. Mark Kennedy in Minnesota- who was running for the Senate-where OSC said the agency violated the Hatch Act by failing to receive reimbursement.

Johanns objected to the report and provided documentation, which prompted a partial correction by OSC (updated versions of the report could not be accessed on OSC’s website at the time of publication update: cached version available here).

OSC currently faces record-high levels of whistleblower retaliation complaints and disclosures. In the past four years, OSC’s caseload jumped 29 percent while its budget increases went up only 6 percent.

The return on the investment speaks for itself:

OSC does not just spend taxpayers’ money; it returns substantial sums to the Federal government by pressing for corrective action to remedy waste and fraud. Since 2009, OSC calculates at least $11.4 million has either been directly returned to, or saved by, the government as a result of whistleblower disclosures to our agency. That figure, while impressive, does not reflect the full benefit of OSC’s work: By pursuing whistleblower disclosures, the agency has saved the government hundreds of millions of dollars by preventing wasteful practices and disasters from occurring or recurring.

It should be noted that OSC’s report was issued before the current Special Counsel, Carolyn Lerner, took office, in June 2011.

The Transparency Establishment’s Echo Chamber

By: MSPB Watch Wednesday October 16, 2013 12:16 pm

The Office of Special Counsel was not, in fact, brought up in the FOIA Summit. OSC’s role in FOIA oversight is discussed here, here, and here. Asking why it wasn’t brought up is the same question as why some of the groups involved don’t seek additional funding for OSC, or inquire about its performance or the Merit Systems Protection Board’s performance.

It’s ironic that for all the discussions and plans to add processes and councils and such, an agency with the decades-old ability to strike fear into the hearts of bureaucrats is being overlooked by the transparency establishment. After all, FOIA law requires agencies to reveal their own dirty laundry themselves, and the element of blind trust in government is baked into that law.

I guess acknowledging that that trust is regularly abused is beyond the scope of the FOIA summit.

Grassroots Whistleblowers and Republican Senators Hold Obama Crony Accountable

By: MSPB Watch Tuesday October 1, 2013 1:49 pm
Elaine Kaplan

MSPB Watch calls out Elaine D Kaplan.

A few weeks ago, the Senate confirmed the nomination of OPM general counsel/acting OPM director/former Special Counsel Elaine Kaplan to the little-known U.S. Court of Federal Claims. The Court of Federal Claims hears government contracts cases, vaccination fund claims, and other odd legal bits and ends. Past alumni from this court have gone on to the nation’s federal courts of appeals, but this is by no means a guarantee. In fact, since 1982, when this court was created, only one nominee faced opposition in the Senate. Until Kaplan, that is.

On September 17, 2013, the Senate held a vote (itself a rare feat for such nominees), and approved Kaplan’s nomination by 64-35, with 1 abstention. The 35 opponents were all Republicans – a mix of Tea Party and establishment pols, including Mitch McConnell and the whistleblower-friendly Chuck Grassley. No Democrat voted against Kaplan, and 11 mainstream Republicans voted in favor.

Why did they vote this way? Was it because Kaplan is openly gay? Perhaps, though just a few days later the Senate voted, by 98-0, to confirm the nomination of Todd Hughes to the U.S. Court of Appeals for the Federal Circuit. Hughes is the first openly gay nominee to the nation’s courts of appeals. Was it because Kaplan is a woman? Perhaps, though on the same day that she was confirmed, the Senate also confirmed, by voice vote (“all in favor say aye… all opposed say nay… the ayes have it”), the nomination of Patricia Campbell-Smith to the same Court of Federal Claims.

So what’s the reason? Could it be a letter of concern sent by a number of federal whistleblowers, recounting Kaplan’s questionable history as Special Counsel and her uneven commitment to whistleblowers? Perhaps. Was it plain old partisanship? Also plausible.

Kaplan, by all accounts, is an establishment figure in the federal watchdog community. She was awarded for her efforts as Special Counsel by the veal pen entities Government Accountability Project and the Project on Government Oversight, despite her mediocre record as the top federal whistleblower defender. She is close with the federal employment bar. And she played a key role in promoting the Obama Administration’s unprecedented assault on civil service protections (a move which placed her good government allies in an awkward position, no doubt).

But a number of marginalized whistleblowers had the courage to air their concerns to the Senate Judiciary Committee, and in turn 35 Republican Senators were willing to reject the fetid, calcified, elitist, out-of-touch Obama/GAP/employment bar confluence of interests that makes a mockery of rule of law and democracy and exploits whistleblowers with impunity.

It bears mentioning that none of the three alumni from the Court of Federal Claims who were elevated to the federal circuit courts had any Senate opposition at this stage. For Kaplan to move up, she would have to distinguish herself now, and a future president would have to take on the chance of passing a nominee with “baggage.”

There’s a lesson here for firepups, somewhere.

GAP’s Whistleblower Whiplash

By: MSPB Watch Tuesday August 20, 2013 8:26 pm

Two developments in the whistleblower world caught the Government Accountability Project speaking out of both sides of its mouth today.

Whistle Blower puppet

GAP’s Tom Devine is inconsistent on whistle blowers.

Here’s GAP’s Legal Director, Tom Devine, on news that the Federal Circuit dealt a serious blow today to national security employees’ (and possibly all federal employees’) civil service protections:

Last year Congress unanimously passed the Whistleblower Protection Enhancement Act (“WPEA”) due to hostile Federal Circuit activism creating judicial loopholes that gutted statutory free speech rights. Apparently the Federal Circuit did not get it. This time the court created a loophole to remove the civil service rule of law from virtually the entire federal workforce. It erased all federal laws that shield the two million federal employee workforce from becoming a national security spoils system.

And

After Conyers, federal employees will have two rights left: be national security ‘yes people,’ or leave. A bureaucracy where it is only legally safe to be a national security ‘yes man’ is a clear and present danger to freedom for all Americans.

Of course, courts do not issue rulings destroying 100+ years of civil service protections willy-nilly. Someone has to argue for that position. Conspicuously missing from GAP’s myopic condemnation is any mention of the driver and originator of this decision: the Obama Administration, as well as Acting OPM Director Elaine Kaplan, a former Special Counsel and recipient of a GAP-sponsored award.

Turning to the second development, here’s the very same Tom Devine defending the White House on charges that the president misspoke/misled/lied to the public when he said that his executive order (PPD-19) would have given Edward Snowden a viable channel to blow the whistle. The article ably lays out all the different interpretations and positions on this issue. For my purposes, however, it’s sufficient to quote the end:

“There is no substitute for codified rights,” said GAP’s Devine. “But to be fair, the president is doing what he can to sweep in contractors” under the October directive. Devine’s discussions with White House aides indicate they believe the White House has the authority to act alone, he said, perhaps by using “expansive definitions of government employee.”

Sometime between the time Obama signed the October order and the stripping of contractor protections in the defense bill, Devine said, the issue fell off the White House radar.

So there you have it folks. When it comes to a conscious, relentless effort to eviscerate decades-long civil service protections, the Obama Administration is nowhere to be mentioned in Devine’s indignant quotes. But when the president makes a comment that perks the ears of whistleblower advocates across town, Devine is there, ready to offer innocuous sounding excuses on his behalf.

Here’s a question to my fellow whistleblowers: does this conduct do justice to your sacrifices?

Fact Checking the President on Edward Snowden and Whistleblower Protections

By: MSPB Watch Saturday August 10, 2013 10:15 pm

For a copy of PPD-19, click here.

For information about Congress’ role in stripping whistleblower protections for intelligence community contractors in December 2012, click here.