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.

Chilling Effect: Acting ATF Director B. Todd Jones spoke in an internal video to ATF employees where he appeared to admonish his subordinates not to blow the whistle outside the chain of command, lest they face “consequences.” He did not mention they have the right to do so under numerous laws, including the Whistleblower Protection Act of 1989 and the Lloyd-La Follette Law of 1912, which allows civil servants to communicate with Congress without prior restraint. Sen. Chuck Grassley and Rep. Darrell Issa are investigating.

If Nixon had Keylogging Software: The New York Times reported last week that the Food and Drug Administration’s suspected surveillance of whistleblowers is bigger than previously believed, and includes tracking of sources outside the agency.

The FDA reportedly has developed an “enemies list” to push back against negative coverage of its oft-criticized review of drugs and medical devices. The list includes not only scientists employed within the FDA, but also congressmen, journalists, and outside medical researchers. These efforts have resulted in the collection of some 80,000 pages of documents that include private emails to Congress, draft whistleblower retaliation complaints, and communications with journalists and attorneys.

Senator Chuck Grassley took the lead in expressing outrage against what he previously called FDA’s “Gestapo” tactics.

Grassley’s review includes a demand for the legal memo authorizing the spying campaign, which began in mid-2010. Expect the focus to shift to FDA’s past and current chief counsels.

What’s In Your Wallet?: The Consumer Finance Protection Bureau announced its first enforcement action: a $210 million settlement with Capital One for deceptive marketing practices.

The allegations include misleading consumers about the benefits of Capital One products, which were not always depicted as optional. Some consumers were knowingly sold products they could not utilize, and others succumbed to “high-pressure tactics” to buy add-ons like payment protection and credit monitoring. In some instances, Capital One enrolled consumers in products without their consent, or led them to believe there was no additional cost.

Capital One will fully refund its customers at a cost of $140 million and pay another $25 million to the CFPB and another $35 million to the Office of the Comptroller of the Currency, totaling $210 million.

In other news, in-house corporate attorneys are concerned about CFPB enforcement actions.

Full disclosure: I have a Capital One card in my wallet.

Below the Fold:

–An environmental watchdog takes a look at Governor Romney’s anti-civil service track record in Massachusetts.

–24 percent of Wall Street executives believe they need to break the law to succeed; 16 percent would commit insider trading if they could get away with it, according to a survey done by the whistleblower law firm Labaton Sucharow.

–The Justice Department and the FBI are reviewing thousands of criminal cases to determine whether any defendants were wrongly convicted because of flawed forensic evidence. The whistleblower who first brought this to light almost 20 years ago will be monitoring progress. Legislation has already been introduced.

–A Navy whistleblower is now in charge of investigating whistleblower cases in the Defense Department.

–Penn State officials knew.

–A federal district court judge blew the whistle, in a way, about coercive plea bargain tactics that demand waiver of appeal rights in lieu of going to prison on unreasonably heavier charges.

–Some news outlets let political operatives approve quotes before they appear in print. Why not also let them write the articles?

–FDA isn’t the only agency snooping on its employees.

–Treasury officials, unauthorized gifts, prostitutes, and golf.

–The American Federation of Government Employees reached an agreement with the TSA to provide TSA officers personnel appeal rights at the Merit Systems Protection Board.

–The Equal Employment Opportunity Commission approved an 18-year-long race discrimination class action lawsuit brought by U.S. Marshals against the U.S. Marshal Service.

–The White House issued a memo to strengthen the rights of service members who return home and seek to reintegrate into the working force.

Send tips to dissent@dissentersdigest.com.

From a comment to Joe Davidson’s Under Carolyn Lerner, special counsel office is doing its job now, observers say, in The Washington Post (June 28, 2012):

NIshimoto

6/29/2012 9:19 PM EDT

I quit OSC in disgust in 1983 after the selling out of the agency by Reagan’s appointee (still hard to say his name, now a federal judge) and MSPB chief judge Ruth Prokop’s hostility toward the concept of whistleblower protection and against OSC itself. Great attorneys and investigators had been hounded into oblivion when lucky – but into undeserved disgrace for most.

I hope Carolyn Lerner has exorcised those ghosts. Kudos and appreciations to her for her accomplishments.

(By the way, that Reagan appointee was Alex Kozinski, who is now chief judge of the U.S. Court of Appeals for the Ninth Circuit.)

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:
Read the rest of this entry →

June 4, 2012

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

Dear Member of Congress:

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

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

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

–9 times more likely to get fired,

–6 times more likely to get suspended,

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

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

–twice as likely to be denied a promotion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sincerely,

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

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

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

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

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

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

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

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

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

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

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

George G. Sarris
Aircraft Mechanic
Offutt AFB, Nebraska

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

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

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

Whistle Suits (image: Truthout.org/flickr)

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

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

Below the Fold:

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

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

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

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

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

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

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

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

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

Send tips to tips@mspbwatch.net.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How did we get here?

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

What’s next?

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

The following minority report has been posted on May 14, 2012 in response to section 118 of S. 743 and H.R. 3289, the Whistleblower Protection Enhancement Act of 2012.

Why the Merit Systems Protection Board Should Not Be Granted Summary Judgment Powers

What is Summary Judgment?

Summary judgment is a complicated legal process used to cut short proceedings in judicial trials. According to law.com, summary judgment is defined as follows:

A court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial. A summary judgment is based upon a motion by one of the parties that contends that all necessary factual issues are settled or so one-sided they need not be tried. The motion is supported by declarations under oath, excerpts from depositions which are under oath, admissions of fact and other discovery, as well as a legal argument (points and authorities), that argue that there are no triable issues of fact and that the settled facts require a summary judgment for the moving party.

The opposing party will respond by counter-declarations and legal arguments attempting to show that there are “triable issues of fact.” If it is unclear whether there is a triable issue of fact in any cause of action, then summary judgment must be denied as to that cause of action.

The theory behind the summary judgment process is to eliminate the need to try settled factual issues and to decide without trial one or more causes of action in the complaint. The pleading procedures are extremely technical and complicated and are particularly dangerous to the party against whom the motion is made.

In MSPB proceedings, summary judgment would take place during or after discovery, upon motion from the agency or appellant, and, if granted, would deny the appellant the opportunity to present his evidence during a live hearing.

What is the MSPB?

The Merit Systems Protection Board is an independent, quasi-judicial agency in the Executive branch that serves the interests of prompt, procedurally simple dispute resolution. The Board’s mission is to protect Federal merit systems and the rights of individuals within those systems. MSPB carries out its statutory responsibilities and authorities primarily by adjudicating individual employee appeals and by conducting merit systems studies.

Why the MSPB Should Not Possess Summary Judgment Powers

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

–MSPB judges would likely abuse summary judgment powers. The MSPB does not have a good track record of protecting whistleblowers or fulfilling the intent of Congress’ major whistleblower laws. Additionally, some MSPB judges virtually never grant jurisdiction in whistleblower reprisal cases, forcing the Board to remand cases with jurisdictional instructions.

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

–Acquiring witnesses for depositions is costly. However, agencies must make employee-witnesses available free of cost to appellant for the hearing.

–MSPB’s stated justification for summary judgment — to “speed case processing” — is not an appropriate reason. Burdening appellants with onerous legal requirements and then denying them the opportunity to make their case in a hearing is one way to speed case processing, but protecting due process is more important. The solution to backlogs and delays is not instituting a system that is more onerous; instead, Congress should appropriate more funding to hire more judges.

–Summary judgment is not the same thing as the jurisdictional test the MSPB currently uses. Under the current jursidictional test, the MSPB ultimately weeds out cases that are should not have been filed. Summary judgment would weed out meritorious cases where appellants are unsophisticated in the law or cannot afford depositions to rebut damaging but ultimately weak adverse written statements.

–Where summary judgment is used in the Equal Employment Opportunity Commission, there is also the possibility of appealing cases to jury trial in federal court. As of now, no such right exists for MSPB cases, nor is it clear whether such a right will be provided by Congress.

–The current plan to try summary judgment for five years means denying justice to appellants in those five years. No one should be asked to sacrifice his or her rights to test a congressional experiment.

In conclusion, MSPB should not have this power under any circumstances, not even as a bargaining chip in legislative negotiations.

Statement of the Problem

The Office of Special Counsel interprets 5 U.S.C. § 1214, the statute dealing with its investigation of prohibited personnel practices (PPPs), in a way that deprives employees of protection from PPPs, limits its administrative flexibility, engenders a culture of retaliation and lawbreaking in the federal government, violates reporting requirements, and denies the public the right to know the full extent and occurrence of retaliation and other PPPs in the civil service.

What the Law Requires

5 U.S.C. § 1214, together with 5 U.S.C. § 1212, are the statutes whereby OSC derives its authority to protect federal employees from prohibited personnel practices.

Section 1212 is the general mandate for OSC to protect employees from PPPs:

(a) The Office of Special Counsel shall—

(1) in accordance with section 1214(a) and other applicable provisions of this subchapter, protect employees, former employees, and applicants for employment from prohibited personnel practices;

(2) receive and investigate allegations of prohibited personnel practices, and, where appropriate—

(A) bring petitions for stays, and petitions for corrective action, under section 1214

Section 1214 is more detailed, and provides the duties OSC must abide by and the powers it may exercise, in its discretion. A table has been provided for ease of reference:

[Download here]

The key provisions are § 1214(a)(1)(A), §§ 1214(b)(2)(B)-(D), and § 1214(e).

Section 1214(a)(1)(A): OSC’s Duty to Investigate PPPs

5 U.S.C. § 1214(a)(1)(A) states as follows:

(a)(1)(A) The Special Counsel shall receive any allegation of a prohibited personnel practice and shall investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken. [Emphasis added.]

Note that this section involves two duties, using mandatory language – one to receive allegations and another to make a preliminary investigation as to whether reasonable grounds exist that a PPP took place. (Notably, OSC was sued at least twice for failing to make this preliminary investigation. In the D.C. Circuit, the federal appeals court held that OSC can be taken to court to enforce this duty. In the Sixth Circuit, the federal appeals court there reached the opposite conclusion.)

Section 1214(b)(2)(B)-(D): Reporting Occurrences of PPPs Which Require Corrective Action to MSPB

5 U.S.C. § 1214(b)(2)(B)-(D) states as follows:

(b)(2)(B) If, in connection with any investigation, the Special Counsel determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken which requires corrective action, the Special Counsel shall report the determination together with any findings or recommendations to the Board, the agency involved and to the Office of Personnel Management, and may report such determination, findings and recommendations to the President. The Special Counsel may include in the report recommendations for corrective action to be taken.

(C) If, after a reasonable period of time, the agency does not act to correct the prohibited personnel practice, the Special Counsel may petition the Board for corrective action.

(D) If the Special Counsel finds, in consultation with the individual subject to the prohibited personnel practice, that the agency has acted to correct the prohibited personnel practice, the Special Counsel shall file such finding with the Board, together with any written comments which the individual may provide. [Emphasis added].

Note that although section 1214(b)(2)(B) uses the word “shall,” it is only conditioned on OSC making the discretionary determination that there are reasonable grounds that a PPP has occurred which requires corrective action (see “If… the Special Counsel determines”). In addition, the “which requires corrective action” qualifier sets section 1214(b)(2)(B) apart from section 1214(a)(1)(A), as follows:

Section 1214(a)(1)(A) requires OSC, upon receiving allegations, to determine whether reasonable grounds exist that a PPP took place.

Section 1214(a)(2)(B) allows OSC to determine whether reasonable grounds exist that PPP took place which requires corrective action - in other words, to determine whether the PPP requires corrective action. If OSC makes this discretionary determination, it must then report it to the MSPB and other listed entities, after which prosecution may follow.

It’s important to mention at this point that only MPSB can provide required corrective action. An agency may provide corrective action, voluntarily, at any point. But Congress, when drafting the predecessor statute to 5 U.S.C. § 1214, was explicit in that only MSPB may provide corrective action of this sort, H.R. Conf. Rep. 95-1717, Oct. 5, 1978, page 134. The reason for this distinction is that corrective action may not be required if the agency can demonstrate that it would have taken the same personnel action in the absence of whistleblowing (in the context of reprisal for whistleblowing), or that no nexus exists between the agency’s personnel action and the protected employee activity (in the context of reprisal for exercising one’s rights). Only an MSPB hearing can afford the parties the opportunity to present evidence and render a judgment whether corrective action is required under the law.

So far, I’ve made a distinction between OSC’s duty to determine whether reasonable grounds exist that a PPP occurred and OSC’s discretionary power to determine whether a PPP requires corrective action by the MSPB. Under the second scenario, a record would exist at MSPB.

However, does the law require public reporting of PPPs where OSC did not determine that corrective action is required, for whatever reason – that is, where it had no occasion to go to MSPB?

Section 1214(e): Public Reporting of Civil Violations, Including PPPs Where OSC Did Not Determine Corrective Action Is Required

Section 1214(e) states as follows:

(e) If, in connection with any investigation under this subchapter, the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred other than one referred to in subsection (b) or (d), the Special Counsel shall report such violation to the head of the agency involved. The Special Counsel shall require, within 30 days after the receipt of the report by the agency, a certification by the head of the agency which states—

(1) that the head of the agency has personally reviewed the report; and

(2) what action has been or is to be taken, and when the action will be completed.

This provision is worth analyzing in detail, because OSC has interpreted it over the years in a way that is inconsistent with what the law seems to require (more on this below).

Section 1214(e) reads as follows:

“If, in connection with any investigation under this subchapter”: that is, subchapter II of Chapter 12 of Chapter II of Title 5, the subchapter that encompasses the statutes governing OSC’s operations;

“the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred”: so far, this is a very broad mandate – “any” violation of “any” law, rule, or regulation, except for…

“other than one referred to in subsection (b) or (d), the Special Counsel shall report such violation to the head of the agency involved.”: subsection (b) deals with PPPs “which require corrective action.” (Recall that PPPs are violations of law – 5 U.S.C. § 2302(b)). As discussed in much detail above, these are not any PPPs, but only those for which OSC has exercised the discretionary power to determine that corrective action from MSPB is required. This is where the distinction above becomes critical — unless OSC takes the additional step of determining that a PPP requires corrective action from MSPB, it falls under the reporting obligations of section 1214(e). Recall that PPPs which require corrective action will already be reported elsewhere – MSPB. Section 1214(e) is what ensures that other PPPs get reported to the public and are not buried.

In addition, subsection (b) does not include other prohibited activites that fall under OSC’s enforcement jurisdiction, such as ones that fall under 5 U.S.C. § 1216.

Subsection (d) deals with violations of law that implicate criminal activity – these violations get reported to the Attorney General, which ensures that the violations gets reported somewhere.

Finally, purely civil violations that do not fall within sections 1214 or 1216 are covered by section 1214(e).

All told, the only things that may not be reported to the head of an agency under section 1214(e) are criminal violations and PPPs which require corrective action.

This analysis is reflected in this flowchart and the Powers and Duties table above.

OSC Practice

Shortly after its founding, in 1978, the Office of Special Counsel reported to Congress the ways in which it handles whistleblower retaliation complaints. It included the following description, on pages 17-18:

In a much larger number of cases, agencies agreed to take corrective action recommended by the Special Counsel without submission of an investigative report and formal recommendations to the agency head. In some instances, simply bringing the allegation to the attention of appropriate agency officials resulted in corrective action for the complainant. In other cases, agency officials agreed to or initiated corrective action after being notified of the Special Counsel’s intent to file a petition for stay of personnel action with the Board.

…

In addition, avoidance of a public record of a personnel related problem is sometimes an incentive for an agency to resolve the matter to the satisfaction of the employee and the Special Counsel.

The Annual Reports for 1981 contains a similar description:

Although the office filed no new complaints requesting the Board to order agencies to take corrective action during 1981, agencies frequently corrected situations giving rise to employee complaints during the course of a Special Counsel inquiry. When a complaint is resolved informally, there is no need for the Special Counsel to submit formal recommendations to the agency head or to file complaints for corrective action with the Board.

Agency officials are normally agreeable to correcting a problem once it is brought to their attention by the Special Counsel, even where an investigation may not lead to a finding of a prohibited personnel practice. Where it appears that the facts will show that an agency official’s action resulted from a prohibited personnel practice, the agency usually will agree to correct the problem to avoid having it brought to the attention of the agency head or being made public by a Special Counsel complaint filed with the Board.

The Annual Reports for 1987-1996 contain the following description:

The Prosecution Division reviews completed full field investigations to determine whether the inquiry has established any violation of law, rule or regulation, and whether the matter warrants corrective or disciplinary action, or both. OSC may have discussions with an agency about a case at any point of the investigation or analysis in order to obtain a mutually agreeable resolution. Otherwise, the Special Counsel may refer the matter in writing to the agency head under 1214(b)(2)(A) with a recommendation for corrective action.

…

Finally, if an investigation discloses a violation of any law, rule or regulation not otherwise within the enforcement authority of OSC, the Special Counsel sends a report of OSC’s findings to the agency head concerned under 1214(e) for certification of any action to be taken on the matter.

The Annual Report for 1998, for instance, contains the following description:

Where an investigation discloses a violation of any law, rule or regulation not otherwise within the enforcement authority of the OSC, the Special Counsel sends a report of the OSC’s findings to the agency head concerned under 1214(e) for certification of any action to be taken on the matter. The OSC reports evidence of any possible criminal violations identified during an investigation to the Department of Justice pursuant to 1214(d).

How to Harmonize OSC Practice with the Law

OSC should reinterpret section 1214 as follows:

–OSC is required it to make a determination as to whether reasonable grounds exist that a PPP occurred.

–If so, it sends letter to the offending agency’s head and requires a certification within 30 days as to what will be done.

–If the agency refuses to take adequate steps, OSC may proceed to either terminate the case while publicizing online the letter and the agency certification, or refer the case for prosecution and seek corrective action at MSPB.

–Either way, the whistleblower benefits over the status quo: chances increase that the agency will correct the situation on its own, but if it does not, it will have to reveal its litigation strategy before a lengthy and costly legal case commences.

What are the Consequences of OSC’s Misinterpretation of 5 U.S.C. § 1214?

There is no legal basis for OSC’s reading that section 1214(e) exempts from its reporting requirement all violations of law “not otherwise within the enforcement authority of OSC” [i.e. sections 1214 and 1216]. Section 1214(e) is quite specific that the only items not required to be reported by OSC are criminal violations and those PPPs which require corrective action. There is no justification for OSC’s giving agencies an incentive to informally correct the personnel issue in exchange for foregoing a PPP determination report. In other words, secret negotiations that bury the facts of agency retaliation are not authorized by law. In fact, the opposite is true – the facts must be reported: by OSC or by MSPB.

Avoiding making these reports – and failing to maintain the public database of them as required under 5 U.S.C. § 1219(a)(3) – has led, in my experience and perspective, to a culture of retaliation and lawbreaking to take root and flourish in the federal civil service. Much money and public trust has been wasted because one of the watchdogs of the civil service has interpreted away a key duty.

What Can Be Done?

The issue of OSC’s interpretation of 5 U.S.C. § 1214 is the subject of a FOIA request I made in December 2011. I anticipate a response by August 2012. In the meantime, I will forward this information to OSC as a whistleblowing disclosure pursuant to 5 U.S.C. § 1213(g)(1). I will update once I receive OSC’s response.

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 million, 525-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.

Send tips to info at mspbwatch dot net.

Earlier today, a nominee of one party appeared in front of a lone Senator of the opposite party. These men traded cordial remarks while discussing the future of the nominee’s legal and political career. Mark A. Robbins, nominee for the Merit Systems Protection Board, appeared in front of the Senate Homeland Security and Government Affairs Committee, which was represented solely by Senator Daniel Akaka.

Akaka began by introducing Robbins, who was flanked by his parents and many of his friends. After going over his resume, Akaka swore in Robbins and handed him the floor. Here’s what Robbins had to say.

This was followed by a few softball questions, and the matter was over and done with in less than an hour.

What did not take place:

Any serious discussion of the MSPB’s current difficulties, Robbins’ plans for helping to remedy them, and whether MSPB will fulfill its mandate as originally designed by Congress. To hear it from Robbins’ himself (and I was there), you would think that MSPB was doing just fine and was in no need of any course correction.

My blog – its very reason for existence – is proof to the contrary.

Sadly, Akaka played along with this charade, and the NGOs who deign to represent the whistleblower and good government community (and who indeed have a near-monopolistic hold on Congress’ attention) were nowhere to be found. Not one word has been uttered from the press shops of GAP, POGO, MISC, or NWC about Robbins’ nomination. Maybe maintaining cordial relations is more important than holding government officials’ feet to the fire; maybe discussions take place behind closed doors and out of public sight; maybe it doesn’t really matter who the nominee is as long as the whistleblowers keep coming in through the front door.

The Civil Service Reform Act was signed into law in 1978. At the time, it was landmark legislation that was motivated by the abuses of the Watergate scandals. The Whistleblower Protection Act was passed in 1989, a year before the Americans with Disabilities Act. The ADA has achieved public renown and near-constitutional status. No one would think of repealing it or letting its provisions go unenforced. But how many Americans have heard of the CSRA or WPA? How many know the turbulent history of the Office of Special Counsel, assuming they’ve even heard of it? How many realize that the WPA is one of the least observed laws in the U.S. Code?

It’s been over a dozen years since whistleblower legislation was passed by Congress. But do these new, enhanced laws matter if they can be gutted and ignored before the ink dries?

It’s not enough to pass new laws, or to make sure the ones in the books are enforced. If we really care about good government, it’s also important to raise the profile of these laws to near-constitutional levels. It starts by practicing transparency, by asking the tough questions regardless of impact on personal relationships, and by looking past transactional, beltway politics.