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Grassroots Whistleblowers and Republican Senators Hold Obama Crony Accountable

1:49 pm in Uncategorized by MSPB Watch

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.

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GAP’s Whistleblower Whiplash

8:26 pm in Uncategorized by MSPB Watch

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.


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?

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DC Media Relays OPM Director’s Crocodile Tears for Civil Servants On Last Day in Office

2:16 pm in Uncategorized by MSPB Watch

Various publications covering the federal government relayed concerns by outgoing OPM director John Berry over the “denigrat[ion]” of public service while ignoring his role in the Obama Administration’s unprecedented assault on workplace protections for hundreds of thousands of civil servants, via Berry v. Conyers & Northover. (The “Berry” is for John Berry, on behalf of the Office of Personnel Management).

Whistle blowers

Whistle blowers

That case, which is currently on appeal, has generated the following comments:

Tom Devine, Government Accountability Project:

If the ruling stands, “the merit system will be history.”

Lynne Bernabei, Bernabei & Wachtel, PLLC:

[T]he Obama administration’s support of this position is an integral part of the administration’s increasing secrecy and support of a national security system that is unaccountable.

Judge Dyk, dissenting opinion in Berry v. Conyers & Northover:

The majority completely fails to come to grips with the [Civil Service Reform Act of 1978]. . . the majority’s holding effectively nullifies the statute.

Angela Canterbury, Project on Government Oversight:

Congress must legislate to overturn the wrongheaded over-reach of the Federal Circuit, . . . and to prevent agencies from arbitrarily labeling away the rights of civil servants.

None of the major publications that cover civil service issues mentioned that decision. Instead, we’re treated to this:

Federal Times, April 11, 2013:

After taking over OPM, Berry quickly became known for his optimistic and passionate speeches defending federal employees. As the political winds soured on civil servants in recent years, Berry continued speaking up for feds. At a March labor-management meeting, an angry-sounding Berry warned that the government risks becoming unable to recruit and retain a qualified workforce if it keeps freezing employees’ pay, cutting their benefits, and publicly denigrating them.

Government Executive, April 11, 2013:

Berry has been a vocal champion for federal workers during the last four years, and has a good reputation among lawmakers on Capitol Hill. His exit comes just as federal employees at a number of agencies are starting to feel the effects of sequestration, including furloughs.

The biggest offender seems to be the Washington Post, which served up the following:

Though Berry faced major headaches from computer systems and retiree issues, his greatest frustration was something more fundamental.

“I don’t know if we succeeded in beating back those small-hearted people who somehow feel it is appropriate to denigrate public service,” he said during an interview.

“I don’t know what sort of smallness of mind or heart motivates them, but they need to understand that public service matters. And these jobs are just too important to not be able to recruit the best and the brightest to do them. . . . Do you want Homer Simpson researching cancer for your children’s diseases?”

It was President Obama, Berry’s boss, who, with congressional approval, upset federal workers by freezing their basic pay rates, a freeze now in its third year.

Obama has proposed a 1 percent pay raise for next year, paired with a requirement that employees increase contributions to their pensions.

The freeze happened on Berry’s watch, but it was largely out of his hands.

Meanwhile, Federal News Radio covered its flank a bit by getting positive comments from stakeholders. None of these publications, however, mentioned the decision that could gut civil service protections for hundreds of thousands of employees.

It’s difficult to square Berry’s stated concerns for public servants in the media when he’s trying to strip them of their rights in court. It’s even more difficult to see what’s in it for the free press to give him a pass.
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The Case Against Elaine Kaplan

9:59 am in Uncategorized by MSPB Watch

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:

David Pardo
dpardo at mspbwatch dot net 

Are Good Government Groups Quick to Praise the New Special Counsel?

10:42 pm in Uncategorized by MSPB Watch

Is it too soon to say things like:

With this remarkable record and the extraordinary leadership of Special Counsel Carolyn Lerner, we can expect that as disclosures continue to skyrocket and the caseload grows, [the Office of Special Counsel] will handle their investigations and litigation with utmost efficiency and integrity.

As the Project on Government Oversight did just this past week, or:

The track record under the helm of Special Counsel Carolyn Lerner, who assumed office in 2011, is equally as unprecedented as its increased caseload and having increased productivity by over 50% in the past few years[.]

As the Government Accountability Project did a few days ago?

Consider that there are a few grumbles that have arisen so far concerning OSC’s performance:

Let me be clear: OSC deserves credit for the evident turnaround since the Scott Bloch era. Persistent underfunding continues, in part because the groups mentioned above have not pushed for it before. But this post is not so much about OSC’s performance today, as it is about grounding laudatory statements (and the propensity to make them) with facts. The groups above have a history of jumping to award OSC leadership when, frankly, it did not deserve it. The pattern may be repeating itself here. Facts matter, and the jury is still out.

Justice Sought in Scott Bloch’s Prosecution

8:42 pm in Uncategorized by MSPB Watch

In the 1990′s, Douglas Kinan was an Equal Employment Specialist with the Department of Defense’s Defense Logistics Agency, out of Boston. While there, he blew the whistle on multi-million dollar pricepromotion fixing and rampant racial discrimination. He also refused to go along with the frame-up of an innocent employee. Even after leaving DoD, he reached out to every federal agency that could investigate, including the Office of Special Counsel, to no avail. Through these efforts, he came to know former Special Counsel Scott Bloch during Bloch’s lawless heyday.

Kinan retired in August 2012 after a 12 year run with the Massachusetts trial court system.

This is his letter [pdf] to U.S. District Judge Robert L. Wilkins, who is overseeing Bloch’s latest criminal prosecution. In it, Kinan writes:

Mr. Bloch’s conduct deserves to have a constant light on it until there has been a just resolve befitting his ‘alleged’ criminal activity, of which he pleaded guilty and later was allowed to withdraw his guilty plea. If it were a poor person, without connections, he/she would have gone straight to jail.

Accordingly, Mr. Bloch’s conduct, actions and behavior demand just consequences. Mr. Bloch’s conduct was incredibly destructive. He shattered dreams, destroyed lives and families and, using his position of public trust, turned hope into heartache. He didn’t care who he hurt. Your Honor now has the opportunity and privilege to apply the rule of law to make things right.

Thomas Drake and John Kiriakou: Martyrs for rule of law or avoidable casualties of a broken system?

8:40 pm in Uncategorized by MSPB Watch

What do Thomas Drake, John Kiriakou, and their representative in GAP, Jesselyn Radack, have in common?

None went to the Office of Special Counsel when they blew the whistle.

Does it matter? Would it have mattered?

If you were faced with a crisis of conscience at work – if your employer was torching the Constitution, what would you do? Exhaust all reasonable channels before going public? Rush to the nearest newspaper outlet? I’m all for the higher moral principle argument: breaking an unjust law to save the rule of law, especially when the arsonists suffer no consequences.

But there’s still an open question that remains. Why didn’t they go to the only place that is external to their agencies and can provide them with confidentiality and forward their disclosures directly to Congress and the National Security Advisor?

Whether OSC would have done so is a different matter: that’s the “Scott Bloch argument.”

But Bush and company started shredding the Constitution when Clinton-appointee Elaine Kaplan was still the Special Counsel.

Did they know OSC could have accepted their disclosures? Did they even know of OSC?

This is more than who was Special Counsel at the time. It’s about the role of OSC within the national security scheme and its treatment by the establishment (including the NGOs). If it’s ignored for decades and gets treated like the ugly stepchild of the federal bureaucracy that nobody talks about, it can’t help the country when a rogue element in the White House turns its sights on the Constitution.

Seen from this perspective, it’s no wonder Drake and Kiriakou never went to OSC, and it’s no wonder they trashed their careers.

But you won’t hear this argument from Radack, who did exactly what they did, and suffered for it, albeit without the threat of jail time.

Nor can she talk about it without making things uncomfortable for her colleagues, who helped stand up OSC and are responsible, in the veal pen sense, for what OSC is and is not.

Why is whistleblower advocate Tom Devine trying to revise history?

12:38 pm in Uncategorized by MSPB Watch

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 herehere, 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.

Union protectionism in 1994 may haunt whistleblowers and OSC in 2012

7:34 pm in Uncategorized by MSPB Watch

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.


The Office of Special Counsel destroys(ed?) investigative files after only three years

11:09 pm in Uncategorized by MSPB Watch

Shredded (photo: beginasyouare/flickr)

Shredded (photo: beginasyouare/flickr)

document obtained from the National Archives and Records Administration, dated January 30, 2003, shows that the Office of Special Counsel is allowed to destroy “litigation and investigative files” for cases that are not noteworthy after only three years.*

Such a policy, if still in place, would make it difficult to reopen any cases for whistleblowers who were denied due process at the hands of OSC since its founding 33 years ago (and there are many).

A FOIA request is in process to determine if this policy is still in place. One would hope, after the SEC records destruction debacle of this past summer, that critical law enforcement agencies would hold on to their files for as long as possible.

*Elaine Kaplan was Special Counsel at the time. Ms. Kaplan is now general counsel for the Office of Personnel Management.

NARA Records Retention Schedule for OSC

See also: