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

8:12 pm in Uncategorized by MSPB Watch

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

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

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

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

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

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

[Link to Scribd page or via direct download]

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

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.

And

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

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

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

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

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

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

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

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OSC Defends Whistleblower Who Refused to Disclose Classified Information

10:02 am in Uncategorized by MSPB Watch

Usually it is the whistleblowers who are accused of disclosing classified information, but here is an example of a whistleblower suffering retaliation for refusing to disclose classified information.

On July 25, 2013, the U.S. Office of Special Counsel filed a stay request with the Merit Systems Protection Board on behalf of Brendan Hickey, an Immigration and Customs Enforcement special agent who refused to compromise an investigation and risk disclosing classified information.

The Board granted the stay request four days later. According to the Board, the agent was involved in a top secret, counter-proliferation investigation involving a confidential source provided by the Drug Enforcement Agency. At one point in 2012, he was ordered to create reports on the investigation in the Treasury Enforcement Communications System, but he refused to do so, explaining that the law prohibited the storage of top secret information on TECS.

“Knowing that TECS was not sufficiently secure to store investigative information related to classified material, Hickey believed that inputting such information into TECS would violate federal laws that restrict disclosure of classified information, such as 18 U.S.C. § 798,” the Board said.

(18 U.S.C. 798 is believed to be one of the statutes NSA whistleblower Edward Snowden is alleged to have violated.)

After refusing to comply with other such orders, he was told by a superior that he would be insubordinate, and that “when you challenge the [Special Agent in Charge], you will lose.”

Hickey attempted to comply with the order while following the law, by entering only general details about investigation into TECS. But this was met with a supervisor’s threat to reassign him to “Puerto Rico, the Mexican border, or an immigration group outside his commuting area.”

After the birth of his child in March 2013, Hickey requested leave under the Family and Medical Leave Act. A month later he requested additional, open-ended leave due to medical issues experienced by his wife, necessitating his continued care and support at home. A few weeks later, his supervisors nominated him and another agent to a detail in Puerto Rico, the only two agents nominated in response to a nationwide call. Despite protesting, he reported there on July 8, 2013.

The Board issued a 45-day stay of the agent’s detail, effective August 5 through September 19, during which Hickey will remain in his position and perform regular duties as a Special Agent with ICE, assigned to the ICE office in Providence, Rhode Island (the stay is timed to allow him to complete his affairs in San Juan).

It is not uncommon for OSC to request additional stays while it conducts an investigation into the alleged agency retaliation.

MSPB Chair Susan Tsui Grundmann granted the stay request.

OSC ex rel Hickey v. DHS July 29, 2013

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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1978 to 2012: Transparency and Congressional Deliberation of Whistleblower Laws through the Years

12:17 pm in Uncategorized by MSPB Watch

An array of tin whistles

A look at whistleblower laws of recent decades

In 1978, Congress debated the Civil Service Reform Act extensively. It was a landmark, once-in-a-century effort. Naturally, there would be a lot of coverage. Deliberations in the Senate took 12 days, deliberations in the House took 13 days, and the House-Senate conference took place over at least 6 days, according to records recently discovered in the Library of Congress. Here are some of the mark-up sessions and other documents from those deliberations:

By contrast, research into the mark up of the Whistleblower Protection Act of 1989 revealed only one day’s worth of deliberations, and the Senate’s mark up of the Whistleblower Protection Enhancement Act of 2011/12 took only five minutes.

Contrast this give-and-take in 1978 over the role of the Special Counsel, as just one facet of law, versus the entirety of the discussion over the WPEA in the Senate, 33 years later.

June 1978:

Sen. Chiles offered that

My feeling is if you put a Special Counsel in and he is appointed by the President, you know, we are really having sort of two groups that are supposed to be doing the same thing, and that is protecting the workers. You have the Merit Board, and the Merit Board is a bipartisan board with staggered terms, and it is certainly supposed to be operating in the best interests and for the best results of protecting employees. And then you turn around and appoint a Special Counsel by the President, and then you get into the whole thing of how do you get rid of him. Is he for cause? Who can initiate?

He also raised the point that

If you have a Special Counsel, and I am concerned with what we did with the Special Prosecutor in this regard, we are starting to create individuals or posts with tremendous power but no accountability  You let the President nominate him, but then he can’t be removed except for cause. He is really sort of accountable to no one once he gets in that job.

Senator Jacob Javits (R-N.Y.) responded to Sen. Chiles’ concerns and said that

[A] Special Counsel appointed by the commission would not have the standing that a Special Counsel appointed by the President would. . . . I would hope that we could take a Presidential appointee subject to Senate confirmation, give him the necessary stature and then give him the necessary protection so then he is really acting as the independent prosecutor. . . [unintelligible] making him a Special Counsel is that we don’t necessarily want them to work together. We are a little bit concerned that the Merit Systems Protection Board may, like so many other boards, get impregnated with the views and the attitudes, et cetera, of the agency which it serves. Therefore, as a check and balance, especially for whistleblowers, we want to have somebody out there who can initiate a prosecution.

Sen. Chiles responded that

Now what happens, every time that we decide we can’t trust one group and so we are going to add another check, I think really what we do is we remove a little further from the people the ability to judge and assess responsibilities and to pinpoint that responsibility, and we diffuse it. But we also make it where government can’t work because they start working at loggerheads.

So I would rather have the responsibility be on the appointments of the Merit Protection Board, that board be confirmed by the Senate, make that board of some stature, make them responsible and allow them to appoint the Special Prosecutor or the Special Counsel, and have that chain of responsibility. I think when you start deviating from that, before long we are going to need somebody to check on the Special Counsel. Then we will have to give some independence to that person because we are afraid the Special Counsel, by virtue of his term or the fact he is only removed for cause — that is just looking at it philosophically.

October 2011:

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MSPB Watch Invites Public to Form Citizen Oversight Council to Oversee Federal Agencies’ Compliance with Civil Service Laws

9:20 am in Uncategorized by MSPB Watch

Premised on the notion that you must be the change you want to see in the world, MSPB Watch is seeking partners to adopt–in civilian form–the duties of an inspector general for the Office of Special Counsel and the Merit Systems Protection Board. Currently no formal, independent IG exists for either agency.

MSPB Watch is inviting any interested member of the public to form a citizen oversight council. Duties include researching applicable civil service laws and obtaining public information to determine whether OSC and MSPB are complying with these laws. Once formed, the Council would issue regular report cards on OSC’s and MSPB’s performance; make recommendations for reform; conduct “peer review” for any proposed legal or political campaigns to redress grievances; attempt to engage in formal dialogue with government officials; and provide support for any appropriate member initiatives.

Other initiatives could include “teach ins” to educate whistleblowers, federal employees, and the public about their rights under civil service laws.

Interested persons may contact David Pardo at dpardo at mspbwatch dot net for more information.

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: http://thecaseagainstelainekaplan.wordpress.com/

Sincerely,
David Pardo
dpardo at mspbwatch dot net 

Dissenters’ Digest for February 2013

1:58 pm in Uncategorized by MSPB Watch

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

Clear Conscience: U.S. Army whistleblower Bradley Manning pled guilty to 10 of 22 charges against him, offering a 35-page testimonial explaining why he released hundreds of thousands of diplomatic cables and other evidence of government misconduct to Wikileaks in January 2010.

Guilty of Purging Evidence: Former Special Counsel Scott Bloch pled guilty to erasing 3 government computers that may have contained whistleblower disclosures, retaliation complaints, and other sensitive memos. The charge may involve up to six months in jail.

30 Months in Prison: Ex-CIA spy John Kiriakou reported to prison to begin a 30-month sentence for disclosing the identity of an undercover CIA agent. Kiriakou came to prominence in 2007 for publicly reporting about the CIA’s torture program.

Below the Fold:

Will Congress Step Up With an Amicus at MSPB or Federal Circuit to Ensure Bush/Obama Era Whistleblowers Get Justice?

11:15 pm in Uncategorized by MSPB Watch

In early June, Congress, as channeled by lobbyist Tom Devine of the Government Accountability Project, was keen on making sure the Whistleblower Protection Enhancement Act would get a “clean” savings provision that applied it retroactively, to whistleblowers who were victimized during the last few years.

By the end of August, Devine seemed to be avoiding the issue. After Labor Day, all bets were off in Congress because of “general nervousness,” even though there was “no real opposition” to retroactivity.

The end product didn’t contain the clean savings provision whistleblowers wanted, and now it’s an issue for the courts to resolve. The legal landscape isn’t promising, though presumably the Office of Special Counsel will give it its best shot.

One thing that Congress could do to get past its nervousness this time is understand that real people’s lives are affected. Here’s a running list. Congress should submit an amicus expressing unanimous approval of its newly-minted law applying retroactively. And GAP should organize it.

OSC: Commerce Dep’t Inspector General Gagged Employees From Blowing Whistle

11:17 am in Uncategorized by MSPB Watch

In a Kafkaesque turn of events, the Office of Special Counsel is alleging that top officials in the Commerce Department Office of Inspector General threatened subordinate employees with negative performance reviews if they didn’t sign non-disclosure agreements that barred them from exercising their rights to blow the whistle and petition Congress.

The Special Counsel petitioned the Merit Systems Protection Board to stay enforcement of the non-disclosure agreements, which she argued are an “any other significant change in duties, responsibilities, or working conditions” in retaliation for the employees’ potential for blowing the whistle – a/k/a their “perceived whistleblower” status.

The Special Counsel said in a press release Nov. 30 that “[b]ecause the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities.”

MSPB Member Mark A. Robbins, in a single-member decision, Nov. 29 granted the stay request for 45 days, adding that

For purposes of this nonprecedential single-member decision in this ex parte proceeding, I accept OSC’s assertion that the Former Employees’ inability to report perceived wrongdoing to the appropriate authorities as a result of signing the nondisclosure agreement may constitute a “significant change in duties, responsibilities, or working conditions” under 5 U.S.C. § 2302(a)(2)(A)(xi).“

Other examples of “any other significant change in duties, responsibilities, or working conditions” may be found here.

From OSC’s press shop:

OSC Granted Stay in Challenge to Commerce Department Gag Clauses

FOR IMMEDIATE RELEASE
CONTACT: Ann O’Hanlon, (202) 254-3631; aohanlon@osc.gov

WASHINGTON, D.C./November 30, 2012 –

The Merit Systems Protection Board (MSPB) yesterday granted a stay requested by the Office of Special Counsel (OSC) prohibiting enforcement of unlawful gag clauses in settlement agreements between the Commerce Department’s Office of Inspector General (OIG) and four former employees of the OIG, each of whom was coerced into signing an agreement under threat of harm to their career prospects and future employment. The order is available here.

The agreements prohibit employees from voluntarily communicating with OSC or Congress. The employees were told that manufactured negative performance appraisals would be shared with prospective employers if the employees did not sign the nondisclosure agreements.

The MSPB’s action means that the personnel actions taken or threatened to be taken by OIG senior management must cease for 45 days, giving OSC further time to investigate the allegations. These personnel actions include the threatened communication with prospective employers and the imposition of significant changes in the employees’ working conditions.

The order concludes that an agreement restricting employees’ ability to report wrongdoing is a change in working conditions and is therefore a personnel action under the Whistleblower Protection Act.

In addition, the order applies the Lloyd-LaFollette Act, a 1912 law codifying the rights of federal employees to blow the whistle to Congress.

Because the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities.

“OSC is committed to ensuring that agencies do not interfere with whistleblowing to Congress,” said Special Counsel Carolyn Lerner. “We are pleased that the MSPB has granted the stay so that OSC can further investigate this matter.”