Dear Whistleblower and Advocate,

As you may know, President Obama nominated former Special Counsel Elaine Kaplan on March 19 for a judgeship on the U.S. Court of Federal Claims. This court, based in Washington, has jurisdiction over government contracts, vaccination fund claims, and other discrete areas. It does not review whistleblower/MSPB claims. The nomination is for 15 years, however it is not uncommon for Federal Claims judges to move on to higher profile positions. For instance, former Special Counsel Alex Kozinski left OSC in 1982 for the Court of Federal Claims, only to become a federal appeals judge on the Ninth Circuit. He is now Chief Judge of that circuit. Same with Randall Rader, the Chief Judge of the Federal Circuit (though he was never Special Counsel).

I don’t know how we all feel about Elaine Kaplan, but the public record, as well as personal anecdotes I’ve heard, are not good. My letter explains why.

I believe, as I explain in the letter, that a person who has made the decisions that Ms. Kaplan made should not be awarded with a judicial post. The Court of Federal Claims is not a high profile position, but it is a stepping stone to more influential positions. I plan to make my opposition heard at this level, and I ask you to join me if you agree.

If you have experiences of your own and can provide documentation to support it, please let me know. The letter is not set in stone. Also, feel free to send this to whomever you wish. I will be collecting signatures for the rest of the week or so.

There will also be an accompanying website that will collect all letters sent: http://thecaseagainstelainekaplan.wordpress.com/

Sincerely,
David Pardo
dpardo at mspbwatch dot net 

Tom Devine of the Government Accountability Project has an unfortunate habit of being loose with the facts and revising history. It happens in private, but more problematically it also happens in public, where public records contradict his past statements (including, oddly enough, an article from just last month. More on this below).

Election of Remedies

Here’s one example, in the context of objecting to a proposed MSPB rule that would limit whistleblowers’ rights. (I wrote about that rule here, here, and here).

This is an excerpt from Devine’s rulemaking comment about the election of remedies issue found in 5 U.S.C. 7121(g)(3):

In proposed sections 1201.21(d) and 1209.2(c) and (d), the Board would strip agencies of the burden to prove the merits of its charges against employees who file Individual Rights of Action (“IRA’s) or the reasonableness of its penalty, including whether termination or another personnel action “will promote the efficiency of the service.” The Board’s rationale is that the changes are necessary to comply with 1994 amendments to the Whistleblower Protection Act (“WPA”) requiring employees to make a choice of forum. Those amendments are codified in 5 USC 7121(g)(3). Unless modified, this regulation could force employees to choose between their rights under the WPA, or their rights under the rest of the Civil Service Reform Act. There is no sound basis in policy or law to force that choice, which in terms of damage to the merit system would far outweigh the nuts and bolts benefits in the proposed regulations.

In overview, the Board’s job is to protect the merit system. While it is necessary to comply with statutory requirements, the Board should not engage in any nondiscretionary actions that shrinks the scope of the merit system. That is what has happened here.

First, the provision in the 1994 amendments was meant only to apply to employees in collective bargaining agreements. (“CBA’s”) It provides no authority to shrink the rights of others not covered by CBA’s. Nor is there any policy basis to strip OSC complainants of civil service merit system rights that govern all other Board proceedings. The choice of forum provision was enacted to prevent duplicative, parallel due process proceedings conducted by the Board (either through a direct appeal or OSC-based complaint), at the same time as a labor management conducted by the Federal Labor Relations Board through its arbitrators. There is not a word of legislative history, or any record at all, that it was intended to require inconsistent standards for employees who start with the OSC, compared to starting with the Board. Nor is there any record basis that the amendments force the Board to discard the efficiency of the service standard or create an exception to the overriding requirement of 5 USC 7701(c)(1) that an agency must prove performance-based charges with substantial evidence, and misconduct based adverse action by a preponderance of the evidence.

Indeed, the Board does not have that authority. Prohibited personnel practices are an additive basis to reject an agency action [“notwithstanding paragraph (1)”], not substitutive. Congress has not created an “WPA OSC” exception to section 7701(c)(1), and the Board cannot do so on its own.

If the Board feels compelled to adjust regulations for the 1994 amendments, it should act in a way that minimizes dilution of the merit system. To the maximum extent possible, restructuring hearing procedures should not affect overall agency burdens. To illustrate, if an agency cannot prove the merits of its charges, that factor combined with protected activity and knowledge should satisfy the nexus element for a prima facie case of retaliation as a matter of law. As a matter of law, it also should defeat the agency’s clear and convincing evidence defense of independent justification, based solely on the strength of evidence criterion to assess the agency defense.

Similarly, there is no authority in law to remove an employee for reasons that do not promote the efficiency of the service. Correspondingly, the final regulation should specify that as a matter of law if there is protected activity and knowledge, a personnel action that does not promote the efficiency of the service establishes compliance with the nexus element for a prima facie case of retaliation, and as a matter of law defeats the clear and convincing evidence defense based solely on failure to meet the discriminatory treatment criterion.

In short, it is unnecessary to overturn longstanding Board case law and doctrines of jurisprudence, merely for compliance with a 1994 WPA amendment passed to avoid duplication between arbitrations, and OSC or Board rulings or hearings. If the Board feels compelled, however, to act within the law it must make corresponding adjustments so that it does not arbitrarily force employees pursuing their WPA rights through to Special Counsel to sacrifice the most basic rights of the civil service system. [Emphasis added.]

Here’s the relevant portion from AFGE’s comment:

AFGE opposes the Board’s proposal to limit the issues before the Board when an appellant chooses to pursue an Individual Right of Action appeal. The proposed rule is an overly harsh rule that, as the Board admits, reverses longstanding Board law. It also leaves an appellant with no way to keep a case whole when the appellant chooses to pursue a claim with the Special Counsel. This makes no sense and, AFGE believes, is contrary to the statute. Nothing in 5 U.S.C. 7121(g) requires this result, and the Board’s rule will subvert the will of Congress by discouraging employees from seeking the assistance of the Special Counsel. The Board should not make this change. [Emphasis added.]

Union Protectionism

These two comments are rebutted by the legislative history of H.R. 2970, a 1994 law that amended the Whistleblower Protection Act of 1989 (and by extension the Civil Service Reform Act of 1978) to “further protect Federal employees who report misconduct from reprisal for that action.” In reality, though, Congress added the election of remedies provision to serve the interests of two unions (AFGE and NTEU) at the expense of the Office of Special Counsel, and by extension at the expense of federal employees.

At the time it was supposedly no big deal, because OSC was a trap for the unwary and advocates sought its abolition. So a couple of unions kneecapping OSC to divert union or future union litigants away from them (and thus ensure their sustainability by being the only viable option for employees under duress) was understandable.

Tom Devine, also at the time, made a couple of comments to preserve OSC’s viability but did not raise further concerns.

The provision passed but MSPB did not attempt to amend their regulations to reflect it until this year.

Here’s what Congress, the Special Counsel at the time, AFGE, NTEU, and Devine said about 5 U.S.C. 7121(g)(3), on September 14, 1993. Pay close attention to whether “the provision in the 1994 amendments was meant only to apply to employees in collective bargaining agreements,” as Devine now argues, or whether it was conceived to apply to all federal employees.

Rep. Pete McCloskey (page 2):

In addition, the bill would give Federal employees alternative venues to seek resolution of disputes that might arise in their case. This change will not only give employees who do not want to seek corrective action from OSC a choice of where to seek redress, but it should provide an incentive for OSC to improve its performance in the eyes of Congress and Federal employees. If the changes are enacted, and OSC continues to be perceived as hostile to complainants, Federal employees may stop seeking help there and OSC’s role in the context of whistleblower protection will cease to exist.

Kathleen Day Koch, then-Special Counsel (page 7):

As I state earlier, Mr. Chairman, I have not addressed those sectons of the bill that do not directly impact OSC. However, I do have a concern with Section 5(d) of the bill which would appear to diminish the protections currently available to whistleblowers. The bill as drafted would force whistleblowers to choose between coming to OSC and going directly to the board.

The bill would not allow whistleblowers to exercise the independent right of action they currently have which allows them to take their rcase before the board after coming to OSC. I believe that the current independent right of action provision which was added by the Whistleblower Protection Act is an effective measure for ensuring maximum consideration of whistleblower claims and should be maintained. [Emphasis added.]

Mark D. Roth, AFGE (pages 16-17):

AFGE views the alternative forum option offered by the bill as a direct acknowledgement that the OSC has failed to act in a timely and effective manner in too many of the situations brought before it, to the detriment of those the office is charged with helping. The beauty of this bill is that it simply allows individuals raising allegations of prohibitive personnel practices to obtain relief elsewhere.

This option is crucial where, as here, the avenue presently in place, namely the OSC, has proven itself unsympathetic or ineffective. I would stress that the bill neither allows multiple bites of the same apple nor does it abolish outright the OSC.

Again, this parallels in many ways the administration’s current reinvention effort which requires various centralized regulatory agencies, like the GSA, GPO, and OPM to, “compete.” Although many OSC customers have called for the sunsetting of that office, we believe that by breaking up the Special Counsel’s monopoly and requiring that office to compete with others, this bill may provide that office with the necessary incentive to provide a quality product in order to survive or it will see its whistleblower market go elsewhere.

…

We support many features of the bill. We just want to briefly mention two features that we think are extremely significant and that is, one, the bill’s express language guaranteeing that employees charging a prohibited personnel practice may utilize negotiated grievance procedures and two, the direct empowerment of arbitrators to order corrective action and stays from those practices and/or discipline in meritorious cases.

Grievance and arbitration is a proven mechanism. It allows for swifter and less costly resolution of prohibited personnel practices than either the courts or the OSC and MSPB can provide. Thus, the resulting law would allow for the swift correct of the practice and discipline of those who are found guilty of committing it. [Emphasis added.]

[Roth's written statement is also worth reading, on pages 18-19]

Tim Hannapel, NTEU (pages 20-21):

We are also very much in favor of the bill’s attention, as Mr. Roth just testified, to the role of the negotiated grievance procedure for resolving disputes that arise in the workplace. . . . Together with the recognition of the plenary powers granted to the arbitrator, the salutary objectives of that grievance procedure would be much easier to realize. We believe that the combination of these significant improvements should lead to greatly expanded protections for whistleblowers. . . . Third, we suggest that even more attention be paid to the negotiated grievance procedures, possibly by making it the exclusive administrative remedy for items that fall within its scope, and this would honor the significance of the labor/management relationship that is embodied in the collective bargaining agreements. . .

To be fair to Hannapel, he focused his comments on union issues – the negotiated grievance process. When Rep. McCloskey asked Hannapel to clarify (page 24), Hannapel answered:

For people who are in a bargaining unit, rather than going to the Office of Special Counsel or to the MSPB, they would be required at the administrative level to use the grievance procedure.

McCloskey followed up on this issue with Tom Devine, whose statement did not mention the election of remedies issue:

[Rep. McCloskey, page 33:]  What about Mr. Hannapel’s comment a short time ago that for covered employees, perhaps those four options [OSC, MSPB, union, federal court] should for the time being exclude the MSPB and OSC initial coverage and focus on obviously encouraging the collective bargaining grievance process while still allowing the de novo right in the Federal Court?

[Tom Devine, pages 33-34:]  We think that his point is well taken, that the latter two options are the best routes for an employee to have a fighting chance of defending his or her career successfully. We favor the idea of managed competition, however, which doesn’t force an employee to go one route or the other, but maintains the option of choosing an alternative.

[McCloskey:] As you know, my bill has the four options basically, but should we restructure the process for the [union] covered employees, just have the two options to start with?

[Devine:] We think that the way the bill is drafted, by maximizing your choices, it also maximizes the chances that you will be able to defend yourself somehow.

McCloskey’s version and Devine’s response, minus the federal court option, is what was enacted in 5 U.S.C. 7121(g)(3). This exchange makes clear that Congress contemplated forcing employees to choose between OSC, MSPB, and a union, regardless of one’s union membership. Devine did not raise any consequence issues at the time.

The Art of Spinning

Devine is also now attempting to reframe the issue from one of Congress forcing employees to choose between a union, an MSPB direct appeal, and an OSC complaint, to one of Congress not having intended to “require inconsistent standards for employees who start with the OSC, compared to starting with the Board,” because if they didn’t mention it, they must not have meant it.

It’s a crafty argument, but ultimately it fails because the inconsistent standards issue is a consequence of forcing employees to choose between fora. Congress need not, and certainly does not, anticipate or speak about every foreseeable and unforeseeable consequence of their main policy choices. Moreover, they rely on subject matter experts to raise these issues for them. In this case, that would have been Devine himself, or the Special Counsel.

Notably, the Special Counsel at the time, Kathleen Day Koch, raised the issue of consequences when she said:

The bill would not allow whistleblowers to exercise the independent right of action they currently have which allows them to take their case before the board after coming to OSC. I believe that the current independent right of action provision which was added by the Whistleblower Protection Act is an effective measure for ensuring maximum consideration of whistleblower claims and should be maintained.

She may not have gotten it exactly right, but that’s the problem with predicting consequences.

By reframing the issue from one of Congress making broad, structural changes, to one of Congress neglecting to speak about one of several consequences of their broad decisions, Devine tries to cast doubt about the validity of the plain language of the law. He is trying to redefine reality.

All the other issues Devine mentioned (interaction with section 7701, efficiency of the service) are problems that arise when a rights-limiting provision is introduced into a rights-enhancing legislation; it’s going to be awkward, no matter what. That doesn’t mean the original decision to limit whistleblower rights wasn’t intended by the unions or Congress.

Prior Inconsistent Statement

Oddly enough, Devine’s comment is also contradicted by… Devine’s recent public statements. Here is what he told Bloomberg BNA in a June 12, 2012 article (subscription required, though available in full here) (full disclosure: I work at BNA, though not in the employment division. These are solely my own views):

Tom Devine, legal director at the Government Accountability Project, a Washington, D.C.-based nonprofit that represents federal whistleblowers before the board, told BNA June 7 that, with the exception of the change affecting federal whistleblowers, the MSPB proposed regulations are “stuffed with nuts and bolts changes that would make the board more user-friendly.”

Although the whistleblower provisions will make life more difficult for federal whistleblowers and their legal representatives, Devine said, “it’s difficult to criticize the board for conforming its regulations to clear statutory language, even after an 18-year delay.”

“The next step is obvious. When Congress reauthorizes spending for the Merit Systems Protection Board, it should modify the statute,” he said. “There is no excuse for whistleblowers who process claims through OSC to have second-class rights, but the problem is not with the proposed rule—it’s with how Congress wrote the 1994 law.” [Emphasis added.]

Final word: If Devine and AFGE truly feel that 5 C.F.R. 1209.2 is not in accordance with the law (assuming it’s enacted as proposed), they should file suit, challenge it under the Administrative Procedure Act, and let a federal judge look at all the facts and arguments. If that judge finds that 5 C.F.R. 1209.2 was mandated by 5 U.S.C. 7121(g)(3), or is a reasonable interpretation thereof, then I would imagine that Devine and others would seek a legislative change.

Or they could avoid getting exposed by a judge and seek legislative change directly.

Either way, will Devine and other responsible actors acknowledge their role in this fiasco? Based on his conduct, I wouldn’t bet on it.

Read more public comments here.

Whistle Suits (image: Truthout.org/flickr)

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every Saturday evening at www.mspbwatch.net/digest.

Federal Judge Strikes Down NDAA’s Indefinite Detention Provision: A federal judge in Brooklyn, New York struck down the indefinite detention provision of the National Defense Authorization Act, saying it constitutes an unconstitutional infringement on the First Amendment. The suit was brought by several journalists who feared their activities might fall under the reach of the law — substantially supporting al-Qaeda, the Taliban, or associated forces – without even knowing it, and facing indefinite detention for many years. The judge, Katherine Forrest, repeatedly offered government lawyers the opportunity to rebut the reporters’ fears, but they declined to do so.

Below the Fold:

–A Malaysian tribunal found George W. Bush, Dick Cheney, Donald Rumsfel, Alberto Gonzales, John Yoo, Jay Bybee, David Addington and William J. Haynes guilty of war crimes.

–The Washington Post editorial board calls on the Federal Aviation Administration to take whistleblowers’ complaints seriously.

–The ACLU is weighing in on behalf of Peter Van Buren, the State Department whistleblower who wrote a book and blog critical of his employer’s exploits in Iraq.

–A Homeland Security House subcommittee looks at corruption inside DHS.

–Employees at a nuclear waste site in Washington state are coming forward, saying too many shortcuts are being taken in the construction of a facility to dispose the waste.

–An FBI crime lab whistleblower’s 20 year campaign to expose and correct violations of defendants’ due process rights is beginning to bear fruit.

–House Oversight Chairman Darrell Issa is alleging the Federal Maritime Commission may be “an agency in crisis.”

–Union protectionism in 1994 may haunt whistleblowers and the Office of Special Counsel in 2012.

–Several whistleblowers and advocacy groups will host an annual conference in Washington, D.C., May 21-23.

Send tips to tips@mspbwatch.net.

MSPB may harm whistleblowers — and OSC — with a proposed rulemaking project based on a legislative move struck by two unions in 1994.

At issue are a statute and a regulation: 5 U.S.C. 7121(g) and 5 C.F.R. 1209.2. Section 7121(g) requires employees fighting an agency action to choose between a union grievance, an MSPB direct appeal, and a personnel complaint at OSC. More on this statute below.

5 C.F.R. 1209.2 describes those appeals over which MSPB has jurisdiction:

–Otherwise Appealable Action appeals – a/k/a direct appeals, those which allow non-probationary employees to challenge terminations or suspensions directly at the MSPB; and

–Individual Right of Action appeals – the mechanism added by the Whistleblower Protection Act of 1989, which allows whistleblowers to file a complaint at OSC and then appeal at MSPB without losing any rights for having gone to OSC.

In 1994, however, two unions sought to force whistleblowers to choose between unions, OSC, or MSPB, with the stated objective of making OSC compete for relevancy.

Mark Roth, then General Counsel of AFGE, had this to say (page 17):

AFGE views the alternative forum option offered by [5 U.S.C. 7121(g)] as a direct acknowledgement that the OSC has failed to act in a timely and effective manner. . . . I would stress that the bill neither allows multiple bites of the same apple nor does it abolish outright the OSC. . . . [W]e believe that by breaking up the Special Counsel’s monopoly and requiring that office to compete with others, this bill may provide that office with the necessary incentive to provide a quality product in order to survive or it will see its whistleblower market go elsewhere.

Problematically, this strikes at the core innovation of the Whistleblower Act of 1989 — the IRA — which sought to give whistleblower two bites at the same apple – once at OSC, and another at MSPB,  if necessary to achieve justice following OSC’s failures. Moreover, experience has shown that the competition envisioned by AFGE has not made OSC more relevant. Now, it may serve to undercut OSC and harm whistleblowers.

Tim Hannapel of NTEU revealed the NTEU’s key goal as protecting the union grievance procedure (page 20):

We are also very much in favor of the bill’s attention, as Mr. Roth just testified, to the role of the negotiated grievance procedure for resolving disputes that arise in the workplace. . . . Together with the recognition of the plenary powers granted to the arbitrator, the salutary objectives of that grievance procedure would be much easier to realize. We believe that the combination of these significant improvements should lead to greatly expanded protections for whistleblowers. . . . Third, we suggest that even more attention be paid to the negotiated grievance procedures, possibly by making it the exclusive administrative remedy for items that fall within its scope, and this would honor the significance of the labor/management relationship that is embodied in the collective bargaining agreements. . .

How would the revised 5 C.F.R. 1209.2 work?

Now, MSPB is seeking to interpret section 7121(g) by revising 5 C.F.R. 1209.2 in the following manner:

–Currently, if the whistleblower is terminated, goes to OSC, and then files the IRA, he can still fight the agency action on the merits, in addition to bringing up a whistleblowing reprisal defense. Plus, he can bring a 2302(b)(9) or discrimination defense.

–Under the proposed change, however, if the the whistleblower is terminated and files a complaint with OSC, when he files the IRA at MSPB, the only issues in play would be the whistleblowing prima facie case, the agency’s clear and convincing defense, and nothing else. No opportunity to fight the termination on the merits (i.e., argue he didn’t do what he is accused of doing), or bring a 2302(b)(9) or discrimination defense.

In other words, if this revision is implemented, MSPB would be asking a whistleblower to choose between filing right away at MSPB and preserving all of his rights, or going to OSC and giving up some. In addition to harming whistleblowers’ rights, it would also make OSC a less attractive option.

If that were not enough, this proposed change was met with approval by the following whistleblower-hostile agencies:

–Will A. Gunn, General Counsel, Department of Veterans Affairs: “We agree with the Board’s decision to promulgate regulations that overrule Massimino and bring Board practice into compliance with the requirements of 5 U.S.C. 7121(g).”

–Catherine L. Kessmeier, Deputy Assistant General Counsel, U.S. Navy: “We support the MSPB’s new interpretation of section 7121(g). That statute permits employees affected by an appealable action to elect ‘not more than one of’ three remedies: an MSPB appeal, a grievance, or an OSC complaint with the potential of an IRA appeal to the MSPB. By adjudicating IRA appeals of otherwise appealable actions in the same manner as direct appeals, the MSPB effectively allows employees to elect two remedies, and OSC complaint and an MSPB appeal. By adjudicating those IRA appeals in the same manner as IRA appeals of non-appealable actions, the Board would give effect to section 7121(g) and to the employee’s election under that statute. Including notice of the right to make an election under section 7121(g) and the ramifications of such an election would not impose a substantial burden on the agency.”

–Jessee C. Alexander-Hoeppner, Attorney-Adviser, Department of State: “We support the proposed changes to [section] 1209.2 pertaining to the Board’s jurisdiction.”

How did we get here?

The brain trust behind the statute forcing this change is none other than NTEU’s Elaine Kaplan and Tim Hannapel, and AFGE’s Mark Roth. Kaplan and Hannapel later became the Special Counsel and Deputy Special Counsel, respectively, in 1998 (and were subsequently given an award by POGO). Ms. Kaplan is currently General Counsel of the Office of Personnel Management, and also provided comments to this project (but not about section 1209.2).

What’s next?

It depends on what MSPB does in the beginning of June. They may issue this proposed revision for notice-and-comment rulemaking, or not, depending on the feedback they received. More news as it happens.

December 21, 2011

Mr. Mark A. Robbins, Esq.
Executive Director (acting)
Election Assistance Commission
1201 New York Avenue, N.W.
Suite 300
Washington, D.C. 20005
202-566-3100

Subject: The Future of the Merit Systems Protection Board

Dear Mr. Robbins,

Congratulations on your nomination to the Merit Systems Protection Board (MSPB).

We are current and former federal employees who have utilized the services of the MSPB and/or the U.S. Office of Special Counsel (OSC).  In our experience, these agencies have contributed to a much more diminished civil service than the one envisioned during their creation by the Civil Service Reform Act of 1978.[1]

We contend that MSPB has been out of compliance with its positive statutory duty to conduct “special studies” focusing on whether federal employees are adequately protected from prohibited personnel practices (PPP’s), including the whistleblower reprisal type PPP, per 5 U.S.C. § 1204(a)(3). This issue has given rise to numerous suits and FOIA requests, none of which has dispelled these concerns.[2]

We seek your input, either before, during, or after your confirmation hearings (pursuant to questions for the record), to address the special studies concern as well as other pressing matters, such as:

The disparity between evidentiary standards for granting stays (“preliminary relief” is a better description) when sought by OSC and when sought by employees;

The lack of an Inspector General at MSPB;

How the “election of remedies” of 5 U.S.C. 7121(g), by including filing a complaint with OSC, creates a perverse incentive for federal labor unions to want OSC to be ineffective;

Requiring OSC to file a 5 U.S.C. § 1214(e) report with the Board to establish jurisdiction for corrective action; and

Ethical obligations for MSPB attorneys, including any attorney Board Members, when MSPB fails to comply with the law.

You are not yet employed by MSPB, therefore it is not yet your client, and you are not precluded by attorney-client ethics from speaking frankly about its interpretation of, and compliance with, 5 U.S.C. § 1204(a)(3), as well as the issues listed above.

We look forward to your views on these pressing matters.

Back in August, a suit was filed (with exhibits) by [8-time prevailing whistleblower and federal nuclear safety engineer] Joe Carson against MSPB in federal district court, over MSPB’s refusal to comply with a FOIA request. In his request, reprinted below, Carson raises worthy questions regarding the ethical duties of the MSPB chair, currently occupied by Susan Tsui Grundmann. Take a look.

*****

Freedom of Information Act (FOIA) REQUEST

May 28, 2011
Mr. Bernard Parker, FOIA Officer
U.S. Merit Systems Protection Board
1615 M Street NW
Washington, DC 20419

fax at (202) 653-7130 <FOIAHQ@mspb.gov> <www.mspb.gov>

Subject: New FOIA request based on Chairman Grundmann’s May 24, 2011 denial of my FOIA appeal in FOIA no. CB11-171

Dear Mr. Parker,

As MSPB leadership knows, I contend there is a 32 year-long “broken covenant” by Civil Service Reform Act of 1978 (CSRA). I contend that the government (i.e. Courts, Congress, the Government Accountability Office (GAO), the President, the Office of Special Counsel (OSC), the Merit Systems Protection Board (MSPB), and agency heads) have failed to ensure federal employees are adequately protected from reprisal and other types of prohibited personnel practices (PPPs) as they do their duties in a trustworthy fashion, per the merit system principles - the fundamental objective of the CSRA.

My contentions are detailed at <www.broken-covenant.org>. I contend that thousands of loyal patriotic federal employees, foolhardy enough to put duty to the Constitution and the common good before their personal economies were unlawfully betrayed for doing so since 1979. I contend America is much diminished and more threatened as a result. Furthermore, I contend that if my concerns are substantiated at the Office of Legal Counsel of the Department of Justice, it is GOOD NEWS for America in that: 1) a previously unidentified significant causal factor to much which has befallen and besets America has been exposed, and 2) it can readily be corrected.

If my contentions are substantiated, then the Merit Systems Protection Board – the 3 person Board – for past 32 years, its lawyer members and the lawyers in its Office of General Counsel and Office of Policy are, in my opinion, most responsible. Only MSPB has the positive, nondiscretionary, statutory duty to conduct oversight, via its special studies function at 5 U.S.C. section 1204(a)(3), of the Office of Special Counsel’s interpretation of and compliance with its nondiscretionary statutory duties to protect federal employees from PPPs, most specifically its duty to report its determinations of PPPs at 5 U.S.C. section 1214(e), and agency heads interpretation of and compliance with their nondiscretionary statutory duties to prevent PPPs, per 5 U.S.C. section 2302(c).

I am a licensed professional engineer (PE) employed in the Department of Energy as a nuclear safety engineer. I was so foolhardy as to put my positive legal and professional duty to be a “mandated reporter,” when necessary, to protect others related to my professional duties for their health and safety, regardless of possible job/career retribution. PE’s are “mandated reporters” in such circumstances, I acted consistent with that duty. My actions played a positive, perhaps significant, role in the passage of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) of 2000, by which over 65,000 diseased, disabled, or prematurely deceased Department of Energy contractor workers (or their survivors) have received over 7 billion dollars in compensation. So, as I now see it, I have done my positive legal and professional duty, as great personal and professional cost, as a licensed professional employed by a government agency because other licensed professionals employed by a government agency – attorneys who served on the 3 person Board during past 32 years – betrayed their duty to enforce the laws entrusted to them, particularly section 1204(a)(3).

Why has this gone on for 32 years? As I understand Chairman Grundmann’s reasoning in denying my FOIA appeal, she is really not the Chair of MSPB, with a positive legal duty to ensure MSPB is properly interpreting and complying with its non-adjudicatory statutory duties to protect the Merit Systems in the Executive Branch from PPPs – and to “blow whistles” as a “mandated reporter,” if it is not. Instead, she has an attorney-client relationship MSPB, her government employer. Because MSPB is her client, she must as a licensed attorney – what she was before becoming Chair of MSPB and what she will continue to be when her term at MSPB ends – hold paramount MSPB’s interests – not those of the federal civil service when the two come into conflict. Therefore she is a “mandated NON-reporter” about MSPB’s failures or possible failures to properly interpret and comply with its nondiscretionary duties regarding conducting special studies and oversight of Office of Personnel Management regulations.

Additionally, Ms. Grundmann has a background as a lawyer employed by federal employee unions, so she had an attorney-client relationship with them. In my opinion, federal employee unions have devolved to become low-level protection rackets, which use fear of PPPs to sell union memberships at about $400 -$500/year to federal employees. Federal employee unions, in my close observation and experience, benefit from the “broken covenant” of the Civil Service Reform Act of 1978 – they do NOT want federal employees to be adequately protected from PPPs by agency heads and OSC, because if they were, then they would be even less likely to voluntarily pay union dues. Federal employee unions want status quo – “OSC is the last place an employee alleging a PPP should go” – to continue because it helps sell union memberships.

In fact, federal employee unions were the chief advocate of a 1994 law that put severe restrictions on federal employees represented by federal employee unions (i.e. their members and prospective members, only about 20% of federal employees represented by federal employee unions actually pay their dues), seeking protection from PPPs at OSC, per 5 U.S.C. section 7121(g). They did this to make their remedy for PPPs – binding arbitration – more exclusive. Why? To help sell union memberships, to pay the exorbitant salaries of their officers and their employed attorneys.

So, federal employee unions and their lawyers want and benefit from a broken, lawbreaking fraud of federal law enforcement agency at OSC – one that is “the last place a federal employee alleging a PPP should go,” and lawbreaking enabler of OSC’s fraud at MSPB.

To clarify my understanding of Ms. Grundmann’s ethical obligations as a licensed attorney who is Chair of MSPB and who was previously employed by Federal employee unions, I submit a FOIA request for any responsive records for the following:

1. -Any records relevant to Ms. Grundmann’s duties to be a “mandated reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years.
2. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years.
3. -Any records relevant to Ms. Grundmann’s duties to be a “mandated reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years.
4. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years.
5. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman MSPB if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years, because she was previously employed by federal employee unions, which possibly benefitted from the government lawbreaking, because fear of PPPs helps sell union memberships.
6. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman MSPB if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years, because she was previously employed by federal employee unions, who benefitted from the government lawbreaking, because a broken, lawbreaking fraud of an OSC – “the last place a government employee alleging a PPP should go” – and a lawbreaking MSPB that enables it, helps sell federal employee union memberships.
7. -Any records related to any evaluation MSPB has conducted of its interpretation of and compliance with its non-discretionary statutory duties at 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f).
8. -Any records related to any consideration MSPB has made of telling the President, Congress or anyone else that its interpretations of and compliance with 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f) during past 32 years is suspect.
9. -Any records related to any consideration MSPB has made of seeking interpretations from the Office of Legal Counsel of the Department of Justice of its interpretations of 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f) during past 32 years.
10. -Any records related to MSPB’s compliance with its nondiscretionary statutory duty to conduct reviews of OPM rules and regulations for possible PPP’s, per 5 U.S.C. sections 1204(a)(4) and/or (f)(1)(A), on its own motion.
11. -Any records of any written complaints received from the Office of Special Counsel (OSC), requesting such a review, per section 1204(f)(1)(c),
12. -Any records of any “special studies” conducted by MSPB, per sections 1204(a)(3) and (e)(3), that considered MSPB’s and OSC’s compliance with their positive, nondiscretionary, statutory duties to proactively review any OPM rule or regulation for possible PPP’s.

I will pay up to $100 for the records I seek.

Respectfully,

Joseph Carson, PE

*****

This suit will be tracked at http://mspbwatch.wordpress.com/litigation/

For more information, see www.broken-covenant.org and please sign a related White House petition here.