You are browsing the archive for Court of Appeals for the Federal Circuit.

Chief opponent of whistleblower rights in the House defends ICE whistleblowers

3:30 pm in Uncategorized by MSPB Watch

Representative Lamar Smith (R-Texas), Chairman of the House Judiciary Committee, has come out in support of 10 Immigration and Customs Enforcement agents who filed a lawsuit challenging the administration’s decision to grant temporary legal status to up to 1.7 million children of undocumented immigrants.

In a letter to Homeland Security Secretary Janet Napolitano, Smith asked Napolitano to “take steps to ensure” that the agents “do not suffer retaliation – employment-related or otherwise” for filing a federal lawsuit to overturn the administration policy, the Houston Chronicle reports.

“Such retaliation would have a chilling effect on future lawsuits brought by government employees who witness waste, fraud, abuse, mismanagement, illegality or dangers to health and public safety,” Smith warned in his letter.

“These agents should be considered `whistleblowers’ who came forward to protect the public’s interest and maintain integrity in government programs. They deserve protection from DHS efforts to stop this lawsuit and silence their voices.”

Smith’s letter comes at a crucial time: Congress is currently negotiating the details of the Whistleblower Protection Enhancement Act, which it failed to enact for the past thirteen years. Even more, the bill’s public interest lobbyists have described Smith as the main opponent of crucial, long-sought due process reforms for whistleblowers: the right to a jury trial and the ability to appeal one’s case away from the whistleblower-hostile Federal Circuit.

Moreover, Smith is campaigning on “border security” and “rule of law” – two values that would be greatly protected by a whistleblower bill with real teeth.

Perhaps now would be a good time to ask Smith why he opposes real due process rights for the very agents he is championing in his letter to DHS. Otherwise, it could not be said that the current version of the WPEA is by far the best protection federal employees will ever enjoy, could it?

Dissenters’ Digest for May 20-June 9

4:00 pm in Uncategorized by MSPB Watch

(photo: caribbeanfreephoto/flickr)

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

Beyond Reproach: Efforts to pass the Whistleblower Protection Enhancement Act came under scrutiny this week after it was disclosed by the lead lobbyists that the bill will not contain any jury trial provisions, a long-sought reform. The admission came after the Make It Safe Campaign Steering Committee objected to an open letter to Congress which highlighted flaws in the current bill. However, grassroots efforts, led by this author, pointed out that the Steering Committee has failed to engage the whistleblower community and the public in its lobbying activities, as well as practice transparency and accountability, the values it publicly champions. It remains to be seen whether the Steering Committee will take heed of suggested reforms, the rejection of which may well cost it considerable influence and credibility with the lowest common denominator that truly matters: federal whistleblowers.

Below the Fold: Read the rest of this entry →

Open Letter to Congress: Strengthen the Whistleblower Protection Enhancement Act

2:10 pm in Uncategorized by MSPB Watch

June 4, 2012

An Open Letter to the U.S. Congress from Federal Whistleblowers: Strengthen Whistleblower and TaxPayer Protections by Improving the Whistleblower Protection Enhancement Act of 2012

Dear Member of Congress:

We, the undersigned, are federal whistleblowers who have worked in a broad array of agencies and can attest to the lack of meaningful protections for conscientious truth tellers in government. We have been following the efforts of the U.S. Congress to strengthen the Whistleblower Protection Act (WPA) for more than a decade. During the last decade there have been six unanimous House and Senate votes in favor of restoring credibility for this hopelessly-gutted but much-needed open government reform that is a prerequisite for accountability to the taxpayers. Ironically, secret holds in the Senate repeatedly have blocked final passage, killing both whistleblowers’ rights to justice and the voters’ right to know how their money is being spent.

The necessity to pass this reform is beyond credible debate. All studies confirm that whistleblowers are the best resource against fraud, waste and abuse, exposing more than audits, compliance departments and law enforcement combined. But while Congress has provided credible rights for private sector whistleblowers, the rights themselves for government workers are a fraud.

Since Congress last “strengthened” the Whistleblower Protection Act in 1994, the track record is 3-220 against whistleblowers for final rulings on the merits. A Merit Systems Protection Board study found that whistleblowers are

–9 times more likely to get fired,

–6 times more likely to get suspended,

–5 times more likely to receive a grade-level demotion,

–2 ½ times more likely to be reassigned to a different geographical region, and

–twice as likely to be denied a promotion.

Now that the Senate has unanimously passed S. 743, the Whistleblower Protection Enhancement Act of 2012 (WPEA or the Act), we call upon you to build on these reforms with H.R. 3289 by addressing recent developments that could render these protections obsolete on the first day the Act takes effect.

First, the WPEA’s protections should extend retroactively. The Senate Committee for Homeland Security and Governmental Affairs noted in its committee report, No. 112-155, that it

[E]xpects and intends that the Act’s provisions shall be applied in U.S. Office of Special Counsel (OSC), Merit Systems Protection Board (MSPB), and judicial proceedings initiated by or on behalf of a whistleblower and pending on or after that effective date. Such application is expected and appropriate because the legislation generally corrects erroneous decisions by the MSPB and the courts; removes and compensates for burdens that were wrongfully imposed on individual whistleblowers exercising their rights in the public interest; and improves the rules of administrative and judicial procedure and jurisdiction applicable to the vindication of whistleblowers’ rights.

We could not agree more. The number of employees filing whistleblower disclosures and complaints for prohibited personnel practices is at an all-time high. Many brave current and former employees are waiting for Congress to improve whistleblower laws to have their day in court. Many of these individuals have worked to educate the public and advocate for these reforms; it would be a cruel kind of justice to provide long-sought changes but leave them outside the Promised Land, looking in. Unfortunately, the Senate was not able to cover these individuals by including key language in the bill itself. We call upon you to give effect to the WPEA’s salutary effects by explicitly extending the Act’s reach to pending cases or those initiated on or after the effective date, as required by Supreme Court precedent.

Second, real due process rights are needed. The hallmark of due process is the jury trial – the opportunity to have one’s day in court in front of a jury of one’s peers – and all other whistleblower bills passed by Congress in the last decade have included it. Federal employees deserve the same, not second class legal status. The House should join the Senate in providing jury trial rights for federal employees.

On a related note, the Senate version makes an unacceptable tradeoff: while providing for jury trials, it also lowers the burden of proof for agencies in court. None of the corporate or contractor whistleblower laws require tougher burdens of proof as the price for jury trials.

Third, both the House and Senate versions contain a provision that will undermine the critical All Circuit Review: the ability for the Office of Personnel and Management to bring a case with “substantial impact” on the merit system back into the Federal Circuit. The Federal Circuit has a long and notorious reputation for being hostile to whistleblowers and showing bias for agencies. It would be detrimental to WPEA reforms to allow OPM unfettered authority to appeal major cases to the court that is responsible for undermining Congress’ intent for over 30 years.

Fourth, Congress should overrule the precedent set by the MSPB in MacLean v. Department of Homeland Security, which allowed agencies to use Sensitive Security Information (SSI) and over 100 other non-classified, pseudo-secrecy categories under the new Controlled Unclassified Information (CUI) Executive Order to cancel WPA free speech rights. As civil service law is now written, this new Executive Order designed to shrink irresponsible government secrecy could become the largest gag order on whistleblowers in history. Congress was clear in 1978 – only statutes, their judicial interpretations, and Executive Order designate what is a disclosure prohibited by law. Congress should send a clear message by reining in federal agencies,which have incentives to retroactively designate disclosures SSI or CUI to get rid of whistleblowers.

Finally, MSPB should not be granted summary judgment powers. The reasons for this are many, but some of these include:

–MSPB was designed by Congress to be a forum for quick and simple dispute resolution. Summary judgment is a complicated legal maneuver that will upset the balance struck by Congress in 1978 and 1989; it would require federal employees at all levels of government to act as their own lawyers to protect their interests, or hire ones on their own dime.

–MSPB judges would likely abuse summary judgment powers. The MSPB has a poor track record of protecting whistleblowers and willfully thwarted the intent of Congress’ major whistleblower laws. Additionally, some MSPB judges virtually never grant jurisdiction in whistleblower reprisal cases, forcing the Board to remand cases back with jurisdictional instructions, prolonging litigation and increasing the cost to appellants.

–Summary judgment prevents appellants from cross-examining witnesses who provide adverse written statements. The likeliest scenario is that federal managers and adverse witnesses would provide affidavits that are unfavorable to appellants. Without depositions, appellants would not be able to cross-examine the authors to expose any weaknesses in their written statements.

–Acquiring witnesses for depositions is costly. Agencies must make employee-witnesses available free of cost to appellants at the hearing. However, if summary judgment is granted, there will be no hearing.

–MSPB’s stated justification for summary judgment — to “speed case processing” — is not an appropriate reason. Burdening appellants with onerous legal requirements and then denying them the opportunity to make their case in a hearing is one way to speed case processing, but protecting due process is more important. The solution to backlogs and delays is not instituting a system that is more onerous; instead, MSPB judges must apply the law in good faith and without bias, thus decreasing the number of unnecessary remands.

The last congressional election was decided by voters who are fed up with fraud, waste and abuse by government bureaucracies. Fighting those breakdowns in accountability was the new majority’s campaign commitment. We whistleblowers risk our careers for that campaign rhetoric. It is long past time for results by those who campaign on the principles we live. There is no reason for further delay in finishing the job, and doing it right. What are we waiting for?

Sincerely,

Ray Adams
Air Traffic Controller
Federal Aviation Administration / Department of Transportation

Evelynn Brown, J.D., LLM
Former Federal Program Officer
Administration for Children and Families / Department of Health and Human Services

Gabe Bruno
Retired Manager, Flight Standards Service
Federal Aviation Administration / Department of Transportation

Kim A. Farrington
Former Aviation Safety Inspector – Cabin Safety
Federal Aviation Administration / Department of Transportation

Rand L. Foster
Aviation Safety Inspector
Federal Aviation Administration / Department of Transportation

Edward Jeszka
Retired Aviation Safety Inspector
Federal Aviation Administration / Department of Transportation

Douglas Kinan
Former Equal Employment Opportunity Specialist
Defense Contract Management Agency / Department of Defense

Robert J. MacLean
Federal Air Marshal
Transportation Security Administration / Department of Homeland Security

David Pardo
Former Attorney/Advisor
Federal Aviation Administration / Department of Transportation

Dr. Janet Parker M.S., DVM
Executive Director, Medical Whistleblower
Medical Whistleblower Advocacy Network – Human Rights Defenders

Spencer A. Pickard
Federal Air Marshal
Transportation Security Administration / Department of Homeland Security

George G. Sarris
Aircraft Mechanic
Offutt AFB, Nebraska

Jane Turner
Former Special Agent
Federal Bureau of Investigation / Department of Justice

Glenn A. Walp, Ph.D.
Former Office Leader of the Office of Security Inquiries
Los Alamos National Laboratory / Department of Energy

Richard Wyeroski
Former Aviation Safety Inspector
Federal Aviation Administration / Department of Transportation

 

Dissenters’ Digest for April 8-14

4:00 pm in Uncategorized by MSPB Watch

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.

Foreign Press Covers Obama’s War on Whistleblowers: A Guardian (UK) article covers recent prosecutions of whistleblowers by the Obama Administration and discusses the general state of free speech and dissent during Obama’s reign. Separately, Russia Today interviews two whistleblowers’ lawyers from competing organizations and discusses the case of John Kirikaou, the CIA whistleblower and torture critic who was recently indicted for allegedly sharing secret information with reporters. NPR and Salon have coverage of that prosecution.

FBI Blocks Publication of Whistleblower’s Book Critical of Agency: A lawyer for FBI whistleblower Sibel Edmonds claims the FBI is blocking publication of his client’s book in violation of agency regulations, according to a press release by the National Whistleblowers Center. Edmonds, who worked as a contract linguist at the FBI, was fired six months after 9/11 following complaints to management about possible compromises to national security and shoddy wiretap translations, according to the Associated Press. Edmonds’ suit was blocked by Attorney General John Ashcroft, who invoked the controversial state secrets privilege. Edmonds has additional coverage on her independent media site, Boiling Frogs Post. She is also featured in this podcast interview by Peter B. Collins.

99% Spring: Real Grassroots Activism or Partisan Co-opting? The “99% Spring” activism training effort by MoveOn.org is seen as an attempt to co-opt the Occupy movement for Democrats’ electoral gain, according to an anonymous party activist. Mother Jones, which is seen with the same suspicion as MoveOn in the link above, offers one account of MoveOn’s training, but a different on-the-ground account is unmoved.

Updates in State Dep’t Whistleblower Peter Van Buren’s case: State Department critic and whistleblower Peter Van Buren is profiled by his lawyer, Jesselyn Radack of the Government Accountability Project, who is covering for Glenn Greenwald on Salon.com. Van Buren separately discusses a recent interrogation by Diplomatic Security. The State Department is moving to fire Van Buren for critical blogging of his employer.

Below the Fold:

JOBS Act encourages fraud in the financial markets, according to Rolling Stone columnist Matt Taibbi.

–The reputation of the late community organizer Cesar Chavez comes under scrutiny for questionable professional conduct.

–A fired SEC lawyer will have a chance to get his job back following a decision by the Court of Appeals for the Federal Circuit.

–A power struggle at a watchdog agency could undermine nuclear plant safety.

–The White House rejects requests to sign executive order prohibiting LGBT discrimination by federal contractors.

–A California state report blasts UC-Davis over pepper spray incident.

Send tips to info at mspbwatch dot net.

Will NGO politics get in the way of zealously representing a whistleblower in court?

5:50 pm in Uncategorized by MSPB Watch

In 2003, Federal Air Marshal Robert MacLean blew the whistle on a TSA plan to cut back air marshals for long distance flights – the very flights taken by the 9/11 terrorists. TSA notified MacLean and the other marshals via unsecured text message. The reason for the cutback was so TSA could save money on hotels for its marshals, at the same time it was handing out bonuses to TSA senior management.

MacLean went to his supervisor and to the Inspector General but neither did anything. Eventually, he went to an MSNBC reporter. As a result, Congress became outraged and the TSA plan was scrapped.

MacLean’s disclosure eventually got him fired, but not before TSA retroactively marked the unsecured text message “Sensitive Security Information,” which could then justify his firing.

After going through rounds of litigation, at both the federal judiciary and an administrative kangaroo court that is the Merit Systems Protection Board (MSPB), MacLean’s case is now at the Federal Circuit Court of Appeals.

Importantly, in 2011, the Obama-appointed MSPB court upheld a Bush-appointed MSPB decision from 2009 finding against MacLean and justifying his termination. To do this, both courts had to ignore clear legislative text and congressional intent.

(As an aside, the Obama-appointed MSPB Chair, Susan Tsui Grundmann, allegedly apologized to MacLean’s attorney at an informal social gathering for coming up with the decision against his client, saying that the Board worked for months to come up with a way around the 2009 decision, to no avail. However, a cursory look at the 2011 decision reveals that it was probably written over the course of a weekend, inexcusably ratifying politically-motivated, whistleblower-hostile arguments that have no bearing to the law. If there were ever an argument that the MSPB is independent from the administration in name only, MacLean’s case is it.)

In any event, MacLean is fighting this decision on appeal. One of the points made by MSPB in the 2011 decision is that MacLean’s disclosures would have been protected if he went to the Office of Special Counsel. However, he did not know of OSC at the time he blew the whistle, nor was DHS educating its employees about OSC, and it’s doubtful whether OSC was even willing or able to receive any sensitive, secure disclosures.

Therefore, MacLean was in no position to go to OSC. If so, why should he be punished for acting out of conscience and possibly preventing another 9/11, when TSA and OSC provided him with no means of disclosing information, and years later a partisan court rubberstamps retaliation by imposing on him a requirement he couldn’t meet at the time? Aren’t we second-guessing the brave men and women who are on the front-lines of homeland defense, to our collective detriment?

This is the essence of a proposed amicus brief to bring to the attention of the Federal Circuit judges the Catch 22 described above. To do this, I made a FOIA request to OSC to see if it was in a position to accept disclosures prohibited by law – the kind of disclosure MacLean is alleged to have made. Time is of the essence though, as the brief has to be submitted by March 23.

Unfortunately, OSC is refusing to grant a request for expedited processing. There is one possibility, though, as under the law an expedited request may be made by “a person primarily engaged in disseminating information, an urgency exists to inform the public about an actual or alleged federal government activity.” (This blog likely does not qualify, as OSC defines “a person primarily engaged in disseminating information” as “a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation.” As a part-time hobby, MSPB Watch likely does not qualify.)

Which leaves the good government groups who support MacLean – the Government Accountability Project and the Project on Government Oversight – as the only ones who can come through for him.

The question remains whether they will work to ensure that OSC provides the relevant information needed to file the amicus brief.

It bears mentioning that, in 2008 and 2009, GAP relied on its work on behalf of MacLean to justify its tax-exempt status. On the other hand, GAP’s Legal Director recently stated that “Everybody knows that Title 5 [executive branch] employees can make classified disclosures to OSC.” As I stated in that post, this is contradicted by MacLean’s actions (as well as that of another GAP client, Thomas Drake).

Given the Federal Circuit’s track record on appeals from MSPB, one would hope that GAP would suborn its political agenda and do everything it reasonably can for its client, as part of its obligations to zealously represent him.

 

Will the new Whistleblower Protection Enhancement Act apply retroactively?

11:06 am in Uncategorized by MSPB Watch

Not without legislative changes. Right now, the two bills (S. 743 and H.R. 3289) state that the law will take effect 30 days after enactment. But there is nothing about whether it will apply to cases pending at the time of enactment, or conduct that occurred before the bill but where no case has been brought.

In other words, if you’re waiting for the new bill to pass before bringing a complaint for reprisal or other PPP, the new law may not help you.

What would?

A simple legislative fix, such as:

This Act shall control any administrative proceeding pending at the time such provision takes effect.

The background rule is that a Supreme Court case from 1994,  Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), states that the presumption is that new laws will not be retroactive unless Congress rebuts this presumption by clearly intending to apply it retroactively. The proposed legislative language above should pass muster, especially since it was blessed by the Federal Circuit in 1996:

Congress easily could have modified the deleted provision to indicate that “the Act shall control any administrative proceeding pending at the time such provision takes effect.” Congress failed to do that in this case and we will not read this language into the statute.

Some additional background is that the 1989 WPA applied retroactively (as noted by the OSC annual report for 1991, pages 9, 11), but the 1994 reauthorization did not because of Landgraf and because it did not have the right legislative language.

So, if you want WPEA to apply to you, contact your member of Congress and Tom Devine, Legal Director of the Government Accountability Project, who is the lead author of WPEA. He may be reached at 202-457-0034 or tomd@whistleblower.org.

 

How to file a federal whistleblower complaint (flowchart)

10:13 pm in Uncategorized by MSPB Watch

Please note: this chart is not exhaustive of all remedies or avenues available under law. See 5 U.S.C. 7121(g) and 5 U.S.C. 1214(a)(3) for other avenues.

Meet your federal whistleblower protectors

10:14 pm in Uncategorized by MSPB Watch

Reflections from Obama Administration Whistleblower Appointments

September 19, 2011, Washington, D.C.

Moderator: Bea Edwards, Government Accountability Project Executive Director

Panelists:

Paul Igasaki, Administrative Review Board;
Carolyn Lerner, Office of Special Counsel;
Susan Tsui Grundmann, Merit Systems Protection Board

Bea Edwards: Okay, we’re ready to begin the first session of the afternoon, thanks everybody for being here. This is my first national whistleblower assembly as Executive Director of GAP. I’m Bea Edwards. I became the Executive Director when the previous director left to join the Office of Special Counsel with our first speaker, Carolyn Lerner.

I’d just like to say a few things as we begin. One of the speakers this morning, Tony Schaffer, spoke about the idea that in Washington, the truth is negotiable. And that is a very chilling idea. And it is a chilling idea because, if you think about it, if the truth is negotiable, then what happens when the negotiations end? What happens is that there is an official truth, which becomes an unquestionable kind of doctrine. And that happens in governments, it can happen. We know, those of us in this community know, that whistleblowers are a very effective way to challenge official truths. Those of us who are a little bit older will remember that it used to be called The Big Lie. That was the phrase during the Cold War, the idea that if you said something often enough, loudly enough, in enough places, it became accepted as the truth, even if it bore no relationship to the facts. And so there’s a long history and tradition of playing fast and loose with the truth. But whistleblowers challenge official truths and they are one of our most effective challenges.

The people who spoke this morning I think made it clear that whistleblowing is dangerous business and that we need, not only the laws that protect those whistleblowers but also the enforcement of those laws. And that brings us to our panel this afternoon because speaking with us this afternoon are those officials here in Washington who are helping to establish credibility and effectiveness in the organizations and agencies that do enforce whistleblower laws.

Our first speaker is Carolyn Lerner. She is the Special Counsel at the Office of Special Counsel. She has been a lifelong civil rights attorney and a specialist at alternative dispute resolution. She is now dedicated to establishing the credibility of the Office of Special Counsel. It is my pleasure to introduce her.

Carolyn Lerner: Thank you. Thank you very much Bea. Thank you for including me on your program here today. I’m delighted to be here. And I’m honored to be on this panel with Susan Grundmann and Paul Igasaki. Saturday will be my 100th day as Special Counsel. And, as expected, there is much to be done and a lot to learn. And I know this audience in particular wants to help get me educated. I’m really glad to be here today.

It’s no secret that the Office of Special Counsel has been through some tough times. I expect that many of you who are here have some doubts about whether things will be any different with new leadership. So, in my brief remarks today, I want to tell you a little bit about my background, the perspective that I bring to the Office of Special Counsel, and then I’m going to share with you some of the actions that we’ve taken already and goals for my term.

Before I was appointed by President Obama, I was, as Bea mentioned, an employment lawyer for twenty years. The last fourteen of which I was a partner at the law firm that I helped to found, Heller, Huron, Chertkof & Salzman. The firm primarily represents individuals, both federal workers and private sector employees, in employment discrimination and civil rights cases. Before leaving my firm, one of my most recent and satisfying cases involved a translator for the Voice of America, the overseas U.S. radio station that the U.S. government runs. The translator was also part of a rock group that made a music video opposing the Iraq war. For this, she was fired. We took the case to court, alleging First Amendment violations against the government. And, as many of you probably know, cases against the government are tough. Indeed, in our case, the government challenged our right to be in court and tried to get the case dismissed using qualified immunity as their defense. But after years of litigation, the U.S. District Court, and then the D.C. Circuit Court of Appeals, ruled in our favor.

Through working on these types of cases, I am well aware of the effect that government actions can have on individuals. And I’m familiar with the frustrations and limits of litigation. Perhaps, as a result, I’ve developed a strong interest in alternative dispute resolution. I’ve taught mediation at George Washington University Law School, I’ve been a mediator for the U.S. District Court and the EEOC, and as an advocate, I’ve use mediation frequently when I represented private individuals. It is this problem solving approach that I bring to the Office of Special Counsel.

Before talking about my goals for the agency, I want to introduce my team that will help me implement these goals. I asked a number of people who are well-known to this community to come join me and the agency and I’m thrilled that they agreed. I want to introduce our Deputy Director, Mark Cohen. Mark, would you stand?

Mark, as Bea mentioned, was the Executive Director at GAP before he came to the OSC. Jason Zuckerman, would you stand?

Jason is our senior legal counsel. He was a partner at the law firm of – it’s called the Employment Law Group. He is a well-known expert in whistleblower law. And finally, our Director of Policy and Congressional Affairs, Adam Miles. Adam, would you stand?

Adam worked at GAP before he went to the House Oversight Committee. He was also instrumental as many of you may know in drafting the Whistleblower Protection Enhancement Act. I am just delighted that Mark, Jason, and Adam are with me.

In our first three months at the agency, and it really has only been three months, Mark, Jason, and I have been spending a lot of time listening to both the dedicated career staff at the agency and meeting with a wide range of stakeholders. We’ve heard some terrific suggestions and we’re already taking some concrete steps to implement many of them.

I want to share with you some of our priorities. As you know, the agency has several important roles, but it has always had a special mandate to protect government whistleblowers. And at a time when our country is in a fiscal crisis, this role has never been more important. There is no question that government workers are in the best position to waste, fraud, and unsafe practices.

We recently took a look at our disclosure cases, and over the past two years alone, we calculated that whistleblowers who had come to our agency had saved the government about $8 million dollars. This 8 million doesn’t even include the savings from disclosures about potential threats to lives, health, and safety that could have resulted in catastrophic losses of lives and money, but for the disclosures. And though these employees perform an important service, studies have shown that about 80% of whistleblowers in the private sector regretted having come forward because of the negative consequences that they’ve suffered. This is also consistent with the experience that we’ve had at the Office of Special Counsel, where about 80% of our whistleblowers also expressed some concerns about retaliation after having come forward.

Creating an environment within government where open dialogue about problems is accepted an indeed encouraged is one of my primary goals as Special Counsel. And though it’s only been three months, I think we’re already making a bit of a change. We’ve already increased the number of OSC employees who work on whistleblower reprisal complaints. This week, in fact, we’re starting the retaliation pilot project at the agency that’s going to focus exclusively on retaliation cases. Several attorneys in this project are being detailed from other units at the agency. This commitment of additional resources should reduce the backlog and get relief to whistleblowers more quickly.

We must also do a better job communicating. People who come to our agency should that they have had a full and fair opportunity to be heard. To that end, we’re working with our Complaints Examining Unit to communicate more with complainants at the start of the process, and when a case is referred to the Investigation and Prosecution Division for investigation, we will contact complainants early on in the process and ask for suggestions.

Having represented employees, I know how frustrating it is to have to wait for an agency to complete its investigation. Especially when an employee is out of work or suffering ongoing retaliation or harassment. One action that we can take is to exercise our authority to seek stays from the MSPB. Indeed, one of my first acts as Special Counsels was to obtain a stay in the firing of a whistleblower, so we would have an opportunity to investigate the matter before the agency took action against the employee.

I also know from experience about the benefits of early mediation. I strongly believe that mediation can help both complainants and agencies obtain quicker and better results. This will also benefit the OSC. Having cases settle will allow us to use our very limited resources to investigate and litigate other cases. So, I’m working to expand our capacity and capability to mediate more cases so we can offer this as an option to more complainants at the beginning of an investigation.

We’re also taking action to make the OSC more accessible. Thirty years after it was created, many federal employees are still unaware of this agency. I was amazed when I was nominated into this position how many people would ask me, “What is the OSC?” They also wanted to ask me “Why are you interested in taking this job?” but that’s another story. I am determined to improve our outreach to federal employees and to make the agency more accessible and well-known.

One concrete step that we will take is revamping our website. We want to improve it to make it a better resource for federal employees both about their rights and to make filing a complaint easier. Recently, both GAP and POGO, very generously, provided helpful recommendations for improvements to the website. We’re grateful for their work on this and we hope to implement many of their suggestions.

In closing, I want to reiterate to you: my mission at OSC is to make this public service agency as robust and vibrant as it can be. We will listen, we will be timely, and we will resolve cases with justice. But there is a lot to do, and we know we can’t do it alone. So I’m asking you of some things, too. Please work with us: share your thoughts and ideas for how we can move the agency forward together. And, finally, please be patient. All of this is going to take some time.

Finally, thank you for what you do, and what you’ve done to advance the same, larger cause. I look forward to working with all of you.

Bea Edwards: And our second speaker will be Susan Grundmann, she is the chair of the Merit Systems Protection Board. Civil liberties and labor rights attorney also. She’s also served as general counsel for the National Federation of Federal Employees. Under Chairman Grundmann, MSPB provided justice for Teresa Chambers, who is a very important member of our community. Ms. Grundmann.

Susan Grundmann: Thank you Bea and Tom Devine and GAP for this gracious opportunity to meet with you and speak with you about our mission and our values,  our goals and our challenges.

So let’s talk a little bit about MSPB and some changes. Our focus as you’ve seen is probably a little different than the last board. Whereas prior to 2009, the focus had been on national security, and as a result, processing cases much faster, particularly through legislative reforms at DoD and DHS.

Now this board has viewed things a little bit differently. And we view that it is time to return back to basics and refocusing upon those principles upon which we were founded under the Civil Service Reform Act, and of course, they are the merit principles, they are the nine rules that are the foundation of federal employment. They are what makes civil service civil. Including, in particular, protection for reprisal for whistleblowing. And this principle is important for a number of reasons. Because it is key, as Carolyn mentioned, to good government. Preventing fraud, waste, and abuse, preventing violations of law, rule and regulation, protecting individuals from a significant and substantial danger to their health and well-being.

So we have, first of all, recommitted to these principles in our strategic plan, and our strategic plan is not just to protect the merit principles but to promote a workforce that is free of prohibited personnel practices, including protection from reprisal for whistleblowing.

Now this plan was developed in conjunction with my stakeholders, one of which is GAP, and has consistently been a great voice in this community.

We recommit to these principles daily, through our adjudication functions, our statutory functions. The first being that we’ve issued a number of precedential decisions ordering corrective action for whistleblowers and remanded cases back for full merits hearing to the AJs. In fact, we’ve issued one last week, King v. Army.

In our second statutory mission, which is to issue reports to the President and the Congress on the health and well-being of the civil service, at the end of last year we’ve issued a whistleblower report wherein we noted that Congress has continually attempted to address these issues and we urged Congress to be aware of the difficulties that a potential whistleblower would encounter when navigating this particularly difficult area of the law.

Now coming up this year we will be issuing an additional report which, internally, we refer to as whistleblower Number Two and it highlights a series of best practices that agencies should follow in building an environment where federal employees can come forward without fear of reprisal.

Finally, we refocused, not just on prevention, but promotion, through education, of the meaning and the value and the spirit of these principles. As some of you may know, we feature a merit principle every month on our website. This month, coincidentally, it is protection from reprisal for whistleblowing. [inaudible]

We also, like Carolyn said, embarked on a series of aggressive outreach, not just to employee groups and union groups who understand these types of issues but to management groups and to good government folks and to affinity groups to educate them as well.

Finally, with the advent of social media, we Tweet these principles repeatedly throughout the year. And we’ve added a new gadget if you will — we have a new mobile app which will allow you to download our cases, our studies, and our other public media wherever you go.

[inaudible] the power of training in education. But we do our limitations. And first in the area of adjudication. We are enforcing the law. We are not writing the law. We are bound by the Whistleblower Protection Act and its letter. And we’re also bound by our case precedent from our reviewing court, that being the Federal Circuit, the key case being Hoffman v. OPM. And let me give a shout out to my guy here, this is Jim Issman, he is our general counsel. He argued Hoffman vs. OPM. He argued on behalf of Hoffman.

But let me mention what Hoffman means. It brings to light some of the limitations of the Whistleblower Protection Act, primarily two of them: that disclosures are not protected if they’re made within an employee’s chain of command, which is the natural place that an employee would go to with an experienced wrongdoing. You go to your supervisor first. The other area that’s highlighted by this case is that disclosures are not protected if they are made within the employee’s scope of duties, which is, again, the natural environment that employees would be exposed to wrongdoing. Now this is different than Chief Judge Igasaki’s area of the law, so he’s got some other protections that the Whistleblower Protection Act does not [inaudible].

The second area is that our, well while we can educate and promote these narrow principles, we don’t have the authority unilaterally to change policy, nor do we have the authority unilaterally to change culture, which leads me to this upcoming report, which will urge agencies to create a culture whereby disclosure of wrongdoing is not okay, but is actually going to be encouraged.

Now this report finds that the fear of reprisal and actual reprisal is still there at the same percentage as it was in 1992, which is a little bit daunting, because if you think about it, back in 1992 there was no No FEAR Act yet. So even in the wake of the No FEAR Act, people are still experiencing these same types of issues.

So, what we’re going to urge first and foremost is that agencies assure their workforce that management will not be requiring absolute proof of wrongdoing. That a mere reasonable suspicion is going to be enough. Even minor wrongdoing, this is a quote from the report, is still wrongdoing.

When individuals bring potential wrongdoing to management’s attention, we urge agencies to give that report serious consideration, including referring that report to an impartial individual or office if necessary, like the IG. And even after investigation, if the charges are not verified, management should tell the employee that the investigation was taken seriously and that individual did right by coming forward. So this is a lot to look forward to in this report. I commend it to you, it’ll be out around Halloween, no timing, the timing is not suspect here, but I leave it to you to embrace and I encourage you to take it forward to support your position. Thank you very much.