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FAA May Be Trying to Evade Disclosure by Creating New FOIA Restrictions Announced via Litigation

9:26 pm in Uncategorized by MSPB Watch

Readers of my website, MSPB Watch, know that I have sued the Federal Aviation Administration earlier this year for withholding responsive documents required to be disclosed under the Freedom of Information Act.

My request asked for all documents pertaining to an assignment that I worked on while employed by the FAA. In that request, I suggested that responsive documents were “in the possession” of certain individuals, but I clarified that there might be others.

The FAA searched those individuals’ inboxes and one database, but nowhere else. The problem is that two of those individuals did not provide emails that are known to exist.

One individual, Richard Clarke, retired before I made my request, and so his account had been deleted. Another individual, Dale Roberts, suffered a computer malfunction; his inbox did not reveal anything; and, as was recently revealed in court documents, he chose not to enable his account’s archives feature.

During my administrative appeal, in October 2012, I reiterated my request for all documents related to the assignment and I said that “If such emails or other documents are not available, a reasonable search would involve any appropriate backup tapes or files.”

The FAA chose to ignore my appeal, so I sued, in January 2013.

In a motion for summary judgment dated March 11, the FAA raised the argument before the judge that its search was complete and that I am not entitled to a search of the backup tapes (or “disaster recovery tapes,” as it calls them) because…

And this is where it gets interesting.

In the March 11 filing, the FAA argued that I am not entitled to a search of the tapes because I did not “specifically” ask for it on request. It cited to the affidavit of Jeb Kreischer, a FOIA program analyst, who signed it under penalty of perjury. Mr. Kreischer did not support his assertion with any policies or documents.

In a response dated April 8, I pointed to a pair of Nov. 2011 letters sent by Victoria Wassmer, the Assistant Administrator for Finance and Management, to another requestor, in which she stated that “if a requestor believes that a search [of email accounts] is not sufficient, the requestor may request on appeal that a NEXTGEN [a/k/a disaster recovery tape] search for records be conducted.”

In other words, I caught Mr. Kreischer in an inconsistency.

In response to that, on April 22, via a supplemental declaration by Mr. Kreischer that was similarly unsubstantiated, the FAA doubled back on its previous assertion and stated that it doesn’t matter when a requestor asks for a tape search; rather, he needs to specifically reference “disaster recovery tapes” in his request.

Moreover, the FAA asserted that “[w]hen requesters state on appeal that they would like such a search, however, the FAA does not consider this statement part of the requesters’ original request.” This is important because if the FAA is late in responding to the “original request,” then it cannot assess search fees. But if the tape search is not part of the original request, then the FAA’s tardiness does not affect its ability to assess fees for the tapes (which can run into hundreds or thousands of dollars).

This is an end-run around the OPEN Government Act of 2007, in which Congress barred tardy agencies from assessing fees as an accountability measure.

That’s exactly what happened here – the FAA was late in responding to my request, but it tried to assess fees for the tapes anyway. I objected and requested it go ahead with its search. Now the issue is going to be decided by the court.

Here’s another red flag that should trouble any member of the public who is concerned about open government issues: the FAA’s assertions in court are actually an attempt to create ad hoc policy to govern when a tape search obligation is triggered. The problem, of course, is that it is attempting to dictate policy to a requestor in court, without giving him any advanced notice.

Does that trouble you? This kind of thing usually troubles the courts.

Next steps: I will be filing a response in court by May 6. Then the FAA and I will meet before the judge on May 17. And then he will render a decision.

By the way, the disaster recovery tapes (or “NEXTGEN”/”NEXGEN” search, as they were called not too long ago), were apparently implemented in May 2008, the same month the FAA received a request from the Office of Special Counsel to preserve all documents for key officials, including then-acting administrator Robert Sturgell. Weird, huh?

Review other litigation documents from Pardo v. FAA here.

MSPB Watch Founder Sues FAA for Wrongfully Withholding Documents Detailing Whistleblower Retaliation

1:29 pm in Uncategorized by MSPB Watch

ALEXANDRIA, Virginia — MSPB Watch founder David Pardo filed a civil complaint in federal district court against the Federal Aviation Administration Jan. 4, alleging the aviation safety agency wrongfully withheld records that would “detail collusive practices by FAA officials to retaliate against a whistleblower, corrupt the legal process, and subvert the rule of law.”

FAA Seal

Did the Federal Aviation Administration illegally suppress whistleblowers?

The complaint, filed in the U.S. District Court for the Eastern District of Virginia under the Freedom of Information Act (“FOIA”), seeks a permanent injunction from the court directing the FAA to disclose all wrongfully withheld records.

Pardo is an attorney who was employed by the FAA until he was terminated in September 2010 after disclosing wrongdoing by FAA officials. Pardo submitted a FOIA request to the FAA on July 27, 2012, seeking records related to an assignment he worked on as an agency attorney that he believes has been “manipulated by FAA officials in the Office of Chief Counsel (“AGC”) and Flight Standards Service (“AFS”) to create a pretext for Plaintiff’s termination.”

The FAA’s Flight Standards Service initially responded to Pardo’s request with a fee estimate of $200 for 6 hours of search time, then an additional $50 for another hour, all of which Pardo agreed to pay. Approximately 10 weeks after receiving Pardo’s request, and after apparently conducting a 7-hour, $250 search, AFS came back largely empty-handed, saying it was “unable to locate any email records” between individuals involved in overseeing the assignment.

However, as noted in Pardo’s administrative appeal, “there seem to be positive indications of overlooked materials. A simple search for [certain key terms] in the inboxes of [named] AFS employees . . . would have yielded any number of a dozen or more responsive emails and attachments. This is corroborated by FOIA documents I have already obtained from non-AFS offices,” Pardo wrote.

A copy of the complaint is available here [PDF].

Follow the litigation, Docket No. 1:13-cv-14, here.

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Dissenters’ Digest for September 2012

1:50 pm in Uncategorized by MSPB Watch

Falling Whistles

(Photo: JNW Photography/flickr)

Dissenters’ Digest takes a look at last month’s top stories covering whistleblowers, watchdogs, and government accountability.

National Security Creep. The month began with a setback for federal employees with a ruling by the Federal Circuit that allows agencies to designate employees’ positions as “non-critical sensitive” and thereby strip away any civil service protections.

Politicizing the Workplace. A Washington watchdog shed light on potential Hatch Act violations by FAA officials who instructed employees that voting for the GOP–and the attendant budget cuts that that would supposedly involve–might cost them their jobs.

$104 Million. UBS whistleblower Bradley Birkenfeld received a $104 million IRS award, the largest ever, for his help in bringing many tax cheats to justice. Despite his actions, Birkenfeld spent 40 months in jail. However that sentence may have been based on false information.

House Passes WPEA. The House of Representatives passed the Whistleblower Protection Enhancement Act by unanimous consent. The Senate is due to consider the measure after the November elections. The measure passed by the House will not protect national security whistleblowersprovide jury trials, or protect whistleblowers terminated under the Bush and Obama administrations. These provisions were under serious consideration, and some of them were even passed by the Senate in May, but lack of fearlesstransparent advocacy by the lead lobbyists is to blame for a bill that falls short of what’s needed. Further, efforts to raise awareness among the federal whistleblower community about the lobbyists’ questionable tactics largely fell on deaf ears, raising questions about the extent to which the liberal good government establishment has “cornered the market” by co-opting its victims and suppressing dissent.

Below the Fold:

September 20

4:04 pm in Uncategorized by MSPB Watch

Two years ago today I was let go from the Federal Aviation Administration for disclosing wrongdoing and for refusing to violate the law. Since that time, I have worked to empower other whistleblowers and see that real reforms pass through Congress. I am sad to say that the biggest obstacle to progress has been Tom Devine of the Government Accountability Project. Numerous times he has advised me to wait until the Whistleblower Protection Enhancement Act passes before filing my complaint against the FAA. But it was only last winter that I tipped him off to the fact that, unless the WPEA contains specific language that allows it to extend retroactively, I and many other whistleblowers would not enjoy the new protections. He then purportedly adopted retroactivity as his top priority for WPEA.

In the last few weeks, I have asked him for regular updates about the bill, including explicitly asking about retroactivity, to no avail. He has been secretiveunprofessional, and untrustworthy. Now I know why:

The WPEA, as currently drafted, will likely not apply retroactively.*

So every whistleblower Devine told to wait has been waiting in vain. Some may have allowed their cases to go stale and be barred by the doctrine of laches.

It would be one thing if Devine and others tried in good faith to make sure the WPEA contained retroactivity. But they did not, because they adopted a secretivecronyistundemocratictimid, ineffective approach to passing public laws.

Shame on you, Tom Devine. You should not be anywhere near Congress for the next whistleblower reforms.

*I say likely for two reasons: There’s a very small chance that, if the bill gets punted until after the elections, the community may decide to rise up and wrest control away from Devine and the MISC Steering Committee, as they should, and get the public involved to pass a good bill. No good laws get passed behind closed doors.

The other reason is because the Senate committee report contains language that expresses the committee’s intent that the WPEA extend retroactively. The Supreme Court, however, has ruled that Congress must speak clearly when intending to extend laws retroactively because “retroactivity is not favored in the law.” It is not certain that legislative intent suffices to meet this burden.

Dissenters’ Digest for June 10-23

3:00 pm in Uncategorized by MSPB Watch

Stonewalled, Sen. Chuck Grassley (R-IA)

Dissenters’ Digest takes a look back at news stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.dissentersdigest.com.

Contempt: A House committee voted to hold Attorney General Eric Holder in contempt for refusing to submit documents in connection with the Fast and Furious gunwalking scandal. President Obama invoked executive privilege, for the first time, to shield the documents from Congress. The measure may soon be presented to the House for a final vote. Meanwhile, Democrats are decrying the move as a political “witch hunt.”

Stonewalled: Senator Chuck Grassley is getting stonewalled by the Food and Drug Administration over an inquiry that it’s been spying on federal whistleblowers. The Senate and related House investigations were sparked by a lawsuit filed by six FDA whistleblowers who were allegedly targeted for surveillance. The National Whistleblowers Center is representing them in court. Relatedly, the Office of Special Counsel, which is also investigating the FDA over the same matter, released a memo this week to the federal government, urging agencies not to spy on whistleblowers. Doing so, the memo said, might lead OSC to conclude that retaliation is afoot.

Looking Backwards: President George W. Bush ignored a number of the CIA’s pre-9/11 warnings, according to new FOIA documents declassified and revealed this week.

Cover-Up: An Army Lt. General is accused of blocking a corruption probe in Afghanistan to help President Obama’s re-election.

Below the Fold:
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Dissenters’ Digest for May 13-19

3:00 pm in Uncategorized by MSPB Watch

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.

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Dissenters’ Digest for May 6-12

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.

Senate Passes the Whistleblower Protection Enhancement Act of 2012: In a rare show of unanimity, the Senate passed S. 743, the Whistleblower Protection Enhancement Act, this week, the latest attempt to update the Whistleblower Protection Act in 13 years. The last attempt, in December 2010, was defeated by a secret hold in the Senate, according to the Government Accountability Project. Not all are enthused with the bill’s protections, which “fall[] short of the comprehensive whistleblower law reforms promised in the 2008 political campaign,” notes Stephen Kohn of the National Whistleblowers Center. Now it’s up to the House to pass their version, H.R. 3289, before the two bills can be reconciled and sent to the President’s desk.

OSC Reports the FAA is Slow in Correcting Whistleblower Complaints: In a rare move, the Office of Special Counsel combined seven whistleblower disclosures from FAA employees into one report to the President and the Congress, citing “an ongoing series of troubling safety disclosures by air traffic controllers and other FAA employees” which have not been rectified by the Department of Transportation. The Special Counsel stated that the “FAA has one of the highest rates of whistleblower filings per employee of any executive branch agency: OSC received 178 whistleblower disclosures from FAA employees since FY 2007, 89 of which related to aviation safety. OSC referred 44 of those to DOT for investigation. DOT ultimately substantiated all but five of those referrals — 89 percent – in whole or in part. In four of the seven cases presented today, the whistleblower had to make repeat disclosures with OSC because the FAA took inadequate steps to correct the concern or failed to implement any corrective action.” The Washington Post has additional coverage.

Below the Fold:

–An internal Pentagon report claims the DoD left whistleblowers vulnerable to reprisal.

–Two F-22 pilots who refuse to fly the aircraft appeared on 60 minutes, claiming a malfunction causes oxygen deprivation aloft.

–The above notwithstanding, the Air Force is in the process of disciplining the F-22 pilots. Congress is expressing concern.

–An EPA scientist who lost her job after blowing the whistle on health dangers to 9/11 first responders prevailed at the Merit Systems Protection Board and will be reinstated.

–The media is silent when the Obama Administration goes after whistleblowers.

–An employment lawyer looks at the fuzzy definition of “gross waste of funds.”

–Thomas Drake speaks with Eliot Spitzer about the DOJ being used to cover up crimes of the Bush and Obama Administrations.

–The FBI is the most effective lobbyist against whistleblower protections, according to a radio interview with National Whistleblowers Center Executive Director Stephen Kohn.

–Former Penn State assistant coach Mike McQueary will file a whistleblower suit against the university over its handling of the Jerry Sandusky abuse scandal.

–The Fourth Circuit revives claims by former Iraqi detainees against contractors who are alleged to have tortured them.

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Dissenters’ Digest for April 22-28

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.

Congress Troubled by Suspicious Death of Russian Whistleblower: Congress seeks to use legislative authority to punish Russian officials allegedly involved in the suspicious 2009 death of Russian whistle-blower and lawyer Sergei Magnitsky, according to the The Hill. NPR reports that the bill in question could complicate US-Russian relations, jeopardizing Hillary Clinton’s 2009 “reset” with the Russian government. However, a person interviewed by NPR said a “reset … with Russian society” is required instead. The story of Magnitsky’s death has been chronicled in an award-winning documentary. Elsewhere, Firedoglake takes on the Congress for selective concern about civil and human rights.

Below the Fold:

–A whistleblower conference is scheduled for May 20-22 in Washington, D.C.

–A recently-unearthed FAA powerpoint presentation says the FAA “must evolve our safety oversight system and embrace the view that industry — not the regulator — is responsible for ensuring safety,” despite decades-old law placing safety regulation as the FAA’s highest priority.

–The first criminal charges are filed in the Deepwater Horizon gulf oil spill.

–Bradley Manning’s trial continues to be shrouded in secrecy.

–The Non-Federal Employee Whistleblower Protection Act reports out of a Senate committee. The bill would expand whistleblower protections for federal contractors.

–The House of Representatives passes the DATA Act, which would create a five-member commission to oversee federal spending.

–Vermont becomes the third state to call for a constitutional amendment overturning Citizens United v. FEC.

–Green Party presidential candidate Jill Stein vows to pardon Bradley Manning as president.

–A Countrywide whistleblower laments the lack of accountability and ethics in the financial sector.

–A Missouri bill to restrict common law whistleblowing protections is passed in the General Assembly. The bill is sponsored by Rep. Kevin Elmer, who has a record of sponsoring discriminatory and birther legislation.

–The Securities and Exchange Commission was accused this week of blowing a whistleblower’s cover. The SEC responds.

–The summary judgment provision in the Whistleblower Protection Enhancement Act of 2012 comes under scrutiny.

–A federal employment attorney advises employees to violate the law when ordered to by superiors (notwithstanding their conscience or oath to the Constitution).

–The Make It Safe Campaign will hold a general membership meeting this Tuesday, May 1.

Send tips to tips@mspbwatch.net.

Dissenters’ Digest for April 1-7

2:00 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.

Justice Department Indicts Former CIA Officer, Whistleblower, and Torture Opponent: NPR reports that John Kiriakou, a former CIA officer and outspoken torture opponent, has been charged with violating the Espionage Act by sharing secret information with reporters. The Government Accountability Project notes that Kiriakou is the first and only person to be indicted by the U.S. government who is associated with the Bush Administration’s torture program. GAP further notes that Kiriakou is the sixth whistleblower to be prosecuted by the Obama Administration. Emptywheel has additional coverage.

Watchdog Uncovers State Department Memo Casting Doubt on Legality of Bush Administration’s Interrogation Techniques: As reported by Firedoglake, a 2006 State Department memo casting doubt on Justice Department arguments approving the CIA’s “enhanced interrogation techniques” has been uncovered. The author of that memo, Philip Zelikow, was a counselor to Secretary of State Condoleezza Rice. It is believed that the Bush Administration attempted to destroy all copies of that memo, but the non-profit National Security Archive obtained one from the State Department through a Freedom of Information request. Emptywheel has additional coverage. Zelikow’s memo can be found here.

New York Times Report Portrays FDA as Victim of White House Politicization: The New York Times reports that FDA officials were instructed to reverse decisions such as publicizing the caloric content of movie-theater popcorn. The overall tenor of the piece portrays White House officials as shrewd and pragmatic, with FDA officials seen as public-minded, if not “naive.” However, there may be some image management going on following recent and troubling reports of retaliation and spying on whistleblowers, who came forward to allege corruption within FDA and the improper approval of unsafe medical devices. The Office of Special Counsel has opened an investigation into these allegations. GAP and the National Whistleblowers Center have coverage of the FDA.

Below the Fold:

–President Obama signs the STOCK Act, requiring financial disclosure by members of Congress and federal executives.

–Lavish Las Vegas conference costs top GSA officials their jobs. Congress is said to investigate.

–The Obama Administration quietly appoints a new FAA chief counsel with extensive ties to the White House.

–EEOC is urged to tackle conflicts of interest in discrimination complaint process.

–The U.S. government aims to protect secrecy in Bradley Manning’s court martial.

–The Office of Special Counsel is currently experiencing an 8-9 month delay in processing FOIA requests, according to recent communications with its FOIA officer.

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Dissenters’ Digest for March 25-31

3:00 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.

Department of Justice’s Recent Actions Worry Accountability and Transparency Advocates: A number of actions taken by the Department of Justice have caught the attention of government accountability groups and civil libertarians this week.

First, Wired reports that the FBI advised its agents in training materials that they may “bend or suspend the law and impinge upon the freedom of others” under certain situations. That training material has since been changed.

Next, a Senate Judiciary Committee hearing focused on the misconduct of federal prosecutors in the trial of the late Alaska Senator Ted Stevens. A $1 million525-page court-appointed report found that these prosecutors withheld key evidence from Stevens’ defense counsel, in violation of ethical rules. The Stevens case was dropped by Attorney General Holder in April 2009. Following the publication of the report on May 15, Senator Lisa Murkowski introduced legislation to prevent the reoccurrence of the same prosecutorial misconduct, which was met with anonymous opposition by DOJ officials. Emptywheel and the Blog of Legal Times have coverage of that opposition.

Finally, a DOJ proposed rule has caught the attention of Senators and FOIA advocates, who noted that DOJ seemed to be usurping the role of the newly-created FOIA ombudsman, the Office of Government Information Service (OGIS). OGIS is an agency within the National Archives and Records Administration (NARA) and was created by the OPEN Government Act of 2007 to mediate disputes between requesters and federal agencies. Its station with NARA is not without purpose, as housing it within DOJ – which is responsible for defending federal agencies in FOIA lawsuits – would have created a conflict of interest. Senators Patrick Leahy and Jon Kyl sent a letter to Attorney General Holder, the Project on Government Oversight reports. DOJ’s Office of Public Affairs responded to POGO with a clarification that seems to put that particular matter to rest, but another FOIA matter is still under dispute.

Supreme Court Weakens Privacy Act: In a 5-3 decision, the Supreme Court held that the Privacy Act does not authorize damages for emotional distress, NPR reports. The suit was brought by a pilot who sued the Social Security Administration for disclosing information to the FAA relating to his HIV status, causing him to lose his license and suffer emotional distress. In a dissenting opinion joined by Justices Breyer and Ginsburg, Justice Sotomayor writes that the ruling “cripples the Act’s core purpose of redressing and deterring violations of privacy interests.” The Washington Post has additional coverage.

Congressmen Support Long-Suffering Whistleblower: Three House members recently submitted an amicus curiae brief to the Court of Appeals for the Federal Circuit in support of TSA Whistleblower Robert MacLean, according to the Orange County Register. In 2003, MacLean disclosed to the press a TSA plan to cut back on federal air marshals at a time of heightened security alerts. This prompted congressional outrage and the TSA plan was scrapped. MacLean’s case has been tied up in litigation since 2006, when he was terminated from the TSA. GovExec and GAP have additional coverage.

Obama Official Declares “Zero Tolerance” on Veterans’ Discrimination: John Berry, director of the U.S. Office of Personnel Management, declared “zero tolerance” for discrimination against uniformed service members returning to their civilian jobs. Berry’s comments follow a report last month by The Washington Post that the U.S. government is the top offender of USERRA, the Uniformed Service Employment and Reemployment Rights Act, which is designed to protect service members from discrimination in the workplace.

Below the Fold:

–The State Department moves to fire a prominent critic and whistleblower.

–GAO: Air Force has a disproportionate number of whistle-blower complaints within DOD.

–OccupyEPA takes to the streets, demands administrator’s resignation.

–A foreclosure fraud whistleblower reports being harassed by mortgage lender despite winning an $18 million award.

–A whistleblowers’ lawyer and a corporate lawyer mix it up on a whistleblower panel.

–Senator Daniel Akaka (D-HI) introduces a bill to reform the Senior Executive Service.

–The U.S. Merit Systems Protection Board took no action to study work conditions at the Office of Special Counsel following the controversial tenure of ex-Special Counsel Scott Bloch, according to a recent FOIA request.

–A House Subcommittee hearing on low morale at the Department of Homeland Security but fails to call any employees as witnesses.

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