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The elephant in the federal whistleblower community

7:02 am in Uncategorized by MSPB Watch

Last night, Department of Energy whistleblower Joe Carson sent the following message about Tom Devine, legal director of the Government Accountability Project:

To whom it may concern in federal whistleblower community.  (I am sorry if I am sending this to anyone who has asked to be removed from emails from other members of the federal whistleblower community, I tried to use a more updated list.)

in the past year, I have spent about 15K in:  1) obtaining expert, independent, legal opinion on my contentions of misinterpretation of key civil service laws since 1978, and 2) in filing briefs at US Supreme Court in a case against U.S. Office of Special Counsel (OSC).  Tom Devine actively thwarted both efforts, as best I can tell – I surmise he advised OSC to do what it could to evade having the Supreme Court review how it interprets key aspects of its duties (since OSC has a mandate to “act in the interests” of feds who seek its protection, why wouldn’t it want the Supreme Court to review it interpretations of law – in fact agencies regularly file briefs at Supreme Court basically saying “we believe we are interpreting the law correctly, but would welcome a Supreme Court review.”

I cannot tell you how many times people in media, Congress or White House have told me something  like “get Tom Devine to call for an Office of Legal Counsel review to resolve your “broken covenant” www.broken-covenant.org concerns, because the media will then pick up on it, driving Congressional and Administration attention.”

He does not disagree with the legitimacy of my concerns about 34 years of lawbreaking at OSC/MSPB and Presidential level – lawbreaking by omission in what they have not done to protect feds from PPPs – all 12 varieties codified in law, not just the whistleblower reprisal variety – and have not done in ensuring OSC is able and willing to receive classified whistleblower disclosures and process them in accordance with law, including providing the mandated confidentiality to the whistleblower.

Instead his mantra is “no looking back, but we can make improvements going forward.”   How convenient to his exploitative, self-serving, agenda by which we remain victims forever, precluded from any justice.   Others at GAP, specifically Jess Radack will NOT take him on about it, apparently she fears for her job if she does.   So she betrays GAP clients who are victims of “Obama’s war on (classified) whistleblowers.”   By her sworn duties as an attorney representing such classified whistleblowers who are  alleged to have unlawfully leaked classified info, she should be banging the drum that the only legally established channel by which a federal employee (or federal contractor employee) can confidentially make a classified whistleblower disclosure – OSC – is unable and/or unwilling  to receive such classified disclosures (OSC has neither  the special equipment nor people with the requisite security clearances).   That is highly germane to Obama’s war on classified whistleblowers – that the primary lawful way Congress created to make such classified disclosures is not available to them.

Continue reading at http://www.scribd.com/doc/106111645/Joe-Carson-My-Issues-With-Tom-Devine

Nobody, and I mean nobody, is saying that Carson is wrong, or that I was wrong in my contentions against Devine, either. But almost nobody is willing to buck the system and publicly support Carson’s efforts to resolve these issues or my and others’ efforts to enfranchise whistleblowers in legislative advocacy. What do they say, behind closed doors? Here are a few categories of responses:

Those who privately acknowledge the validity of Carson’s concerns but do nothing about it: In this category fall FAA whistleblower and FAA Whistleblowers Alliance director Gabe Bruno and TSA whistleblower Robert MacLean. Bruno is loathe to “alienate” GAP because it can help whistleblowers, including FAA whistleblowers, achieve the 2% success rate at the MSPB. MacLean is Devine’s client. Neither have done much, if anything, to advance Carson’s concerns.

Those who defend Devine on the grounds that he’s a good guy who helped them with their cases, but say nothing about miscellaneous concerns about Devine: Marine Corps whistleblower Franz Gayl and White House whistleblower Gordon Hamel, who were represented by Devine in their cases.

Those who defend GAP but say nothing about concerns about Devine: NSA whistleblower Thomas Drake.

Those who impart advice about advocacy tactics, civility, respect, etc. but say nothing about concerns about Devine: PHS whistleblower Don Soeken, FAA whistleblower Gabe Bruno, and Emory whistleblower James Murtagh.

These are serious issues. We can’t afford to waste time with power games and whisper campaigns because of a sense of indebtedness to Tom Devine. For people who themselves spoke out against wrongdoing and wanted to be heard on the merits, it’s highly hypocritical to dismiss or consciously ignore allegations of wrongdoing within the community on the basis of personal loyalty or fear of upsetting the status quo. Carson is correct: there won’t be peace in the community until these issues are addressed and resolved.

Why is whistleblower advocate Tom Devine trying to revise history?

12:38 pm in Uncategorized by MSPB Watch

Tom Devine of the Government Accountability Project has an unfortunate habit of being loose with the facts and revising history. It happens in private, but more problematically it also happens in public, where public records contradict his past statements (including, oddly enough, an article from just last month. More on this below).

Election of Remedies

Here’s one example, in the context of objecting to a proposed MSPB rule that would limit whistleblowers’ rights. (I wrote about that rule herehere, and here).

This is an excerpt from Devine’s rulemaking comment about the election of remedies issue found in 5 U.S.C. 7121(g)(3):

In proposed sections 1201.21(d) and 1209.2(c) and (d), the Board would strip agencies of the burden to prove the merits of its charges against employees who file Individual Rights of Action (“IRA’s) or the reasonableness of its penalty, including whether termination or another personnel action “will promote the efficiency of the service.” The Board’s rationale is that the changes are necessary to comply with 1994 amendments to the Whistleblower Protection Act (“WPA”) requiring employees to make a choice of forum. Those amendments are codified in 5 USC 7121(g)(3). Unless modified, this regulation could force employees to choose between their rights under the WPA, or their rights under the rest of the Civil Service Reform Act. There is no sound basis in policy or law to force that choice, which in terms of damage to the merit system would far outweigh the nuts and bolts benefits in the proposed regulations.

In overview, the Board’s job is to protect the merit system. While it is necessary to comply with statutory requirements, the Board should not engage in any nondiscretionary actions that shrinks the scope of the merit system. That is what has happened here.

First, the provision in the 1994 amendments was meant only to apply to employees in collective bargaining agreements. (“CBA’s”) It provides no authority to shrink the rights of others not covered by CBA’s. Nor is there any policy basis to strip OSC complainants of civil service merit system rights that govern all other Board proceedings. The choice of forum provision was enacted to prevent duplicative, parallel due process proceedings conducted by the Board (either through a direct appeal or OSC-based complaint), at the same time as a labor management conducted by the Federal Labor Relations Board through its arbitrators. There is not a word of legislative history, or any record at all, that it was intended to require inconsistent standards for employees who start with the OSC, compared to starting with the Board. Nor is there any record basis that the amendments force the Board to discard the efficiency of the service standard or create an exception to the overriding requirement of 5 USC 7701(c)(1) that an agency must prove performance-based charges with substantial evidence, and misconduct based adverse action by a preponderance of the evidence.

Indeed, the Board does not have that authority. Prohibited personnel practices are an additive basis to reject an agency action [“notwithstanding paragraph (1)”], not substitutive. Congress has not created an “WPA OSC” exception to section 7701(c)(1), and the Board cannot do so on its own.

If the Board feels compelled to adjust regulations for the 1994 amendments, it should act in a way that minimizes dilution of the merit system. To the maximum extent possible, restructuring hearing procedures should not affect overall agency burdens. To illustrate, if an agency cannot prove the merits of its charges, that factor combined with protected activity and knowledge should satisfy the nexus element for a prima facie case of retaliation as a matter of law. As a matter of law, it also should defeat the agency’s clear and convincing evidence defense of independent justification, based solely on the strength of evidence criterion to assess the agency defense.

Similarly, there is no authority in law to remove an employee for reasons that do not promote the efficiency of the service. Correspondingly, the final regulation should specify that as a matter of law if there is protected activity and knowledge, a personnel action that does not promote the efficiency of the service establishes compliance with the nexus element for a prima facie case of retaliation, and as a matter of law defeats the clear and convincing evidence defense based solely on failure to meet the discriminatory treatment criterion.

In short, it is unnecessary to overturn longstanding Board case law and doctrines of jurisprudence, merely for compliance with a 1994 WPA amendment passed to avoid duplication between arbitrations, and OSC or Board rulings or hearings. If the Board feels compelled, however, to act within the law it must make corresponding adjustments so that it does not arbitrarily force employees pursuing their WPA rights through to Special Counsel to sacrifice the most basic rights of the civil service system. [Emphasis added.]

Here’s the relevant portion from AFGE’s comment:

AFGE opposes the Board’s proposal to limit the issues before the Board when an appellant chooses to pursue an Individual Right of Action appeal. The proposed rule is an overly harsh rule that, as the Board admits, reverses longstanding Board law. It also leaves an appellant with no way to keep a case whole when the appellant chooses to pursue a claim with the Special Counsel. This makes no sense and, AFGE believes, is contrary to the statute. Nothing in 5 U.S.C. 7121(g) requires this result, and the Board’s rule will subvert the will of Congress by discouraging employees from seeking the assistance of the Special Counsel. The Board should not make this change. [Emphasis added.]

Union Protectionism

These two comments are rebutted by the legislative history of H.R. 2970, a 1994 law that amended the Whistleblower Protection Act of 1989 (and by extension the Civil Service Reform Act of 1978) to “further protect Federal employees who report misconduct from reprisal for that action.” In reality, though, Congress added the election of remedies provision to serve the interests of two unions (AFGE and NTEU) at the expense of the Office of Special Counsel, and by extension at the expense of federal employees.

At the time it was supposedly no big deal, because OSC was a trap for the unwary and advocates sought its abolition. So a couple of unions kneecapping OSC to divert union or future union litigants away from them (and thus ensure their sustainability by being the only viable option for employees under duress) was understandable.

Tom Devine, also at the time, made a couple of comments to preserve OSC’s viability but did not raise further concerns.

The provision passed but MSPB did not attempt to amend their regulations to reflect it until this year.

Here’s what Congress, the Special Counsel at the time, AFGE, NTEU, and Devine said about 5 U.S.C. 7121(g)(3), on September 14, 1993. Pay close attention to whether “the provision in the 1994 amendments was meant only to apply to employees in collective bargaining agreements,” as Devine now argues, or whether it was conceived to apply to all federal employees.

Rep. Pete McCloskey (page 2):

In addition, the bill would give Federal employees alternative venues to seek resolution of disputes that might arise in their case. This change will not only give employees who do not want to seek corrective action from OSC a choice of where to seek redress, but it should provide an incentive for OSC to improve its performance in the eyes of Congress and Federal employees. If the changes are enacted, and OSC continues to be perceived as hostile to complainants, Federal employees may stop seeking help there and OSC’s role in the context of whistleblower protection will cease to exist.

Kathleen Day Koch, then-Special Counsel (page 7):

As I state earlier, Mr. Chairman, I have not addressed those sectons of the bill that do not directly impact OSC. However, I do have a concern with Section 5(d) of the bill which would appear to diminish the protections currently available to whistleblowers. The bill as drafted would force whistleblowers to choose between coming to OSC and going directly to the board.

The bill would not allow whistleblowers to exercise the independent right of action they currently have which allows them to take their rcase before the board after coming to OSC. I believe that the current independent right of action provision which was added by the Whistleblower Protection Act is an effective measure for ensuring maximum consideration of whistleblower claims and should be maintained. [Emphasis added.]

Mark D. Roth, AFGE (pages 16-17):

AFGE views the alternative forum option offered by the bill as a direct acknowledgement that the OSC has failed to act in a timely and effective manner in too many of the situations brought before it, to the detriment of those the office is charged with helping. The beauty of this bill is that it simply allows individuals raising allegations of prohibitive personnel practices to obtain relief elsewhere.

This option is crucial where, as here, the avenue presently in place, namely the OSC, has proven itself unsympathetic or ineffective. I would stress that the bill neither allows multiple bites of the same apple nor does it abolish outright the OSC.

Again, this parallels in many ways the administration’s current reinvention effort which requires various centralized regulatory agencies, like the GSA, GPO, and OPM to, “compete.” Although many OSC customers have called for the sunsetting of that office, we believe that by breaking up the Special Counsel’s monopoly and requiring that office to compete with others, this bill may provide that office with the necessary incentive to provide a quality product in order to survive or it will see its whistleblower market go elsewhere.

We support many features of the bill. We just want to briefly mention two features that we think are extremely significant and that is, one, the bill’s express language guaranteeing that employees charging a prohibited personnel practice may utilize negotiated grievance procedures and two, the direct empowerment of arbitrators to order corrective action and stays from those practices and/or discipline in meritorious cases.

Grievance and arbitration is a proven mechanism. It allows for swifter and less costly resolution of prohibited personnel practices than either the courts or the OSC and MSPB can provide. Thus, the resulting law would allow for the swift correct of the practice and discipline of those who are found guilty of committing it. [Emphasis added.]

[Roth's written statement is also worth reading, on pages 18-19]

Tim Hannapel, NTEU (pages 20-21):

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

To be fair to Hannapel, he focused his comments on union issues – the negotiated grievance process. When Rep. McCloskey asked Hannapel to clarify (page 24), Hannapel answered:

For people who are in a bargaining unit, rather than going to the Office of Special Counsel or to the MSPB, they would be required at the administrative level to use the grievance procedure.

McCloskey followed up on this issue with Tom Devine, whose statement did not mention the election of remedies issue:

[Rep. McCloskey, page 33:]  What about Mr. Hannapel’s comment a short time ago that for covered employees, perhaps those four options [OSC, MSPB, union, federal court] should for the time being exclude the MSPB and OSC initial coverage and focus on obviously encouraging the collective bargaining grievance process while still allowing the de novo right in the Federal Court?

[Tom Devine, pages 33-34:]  We think that his point is well taken, that the latter two options are the best routes for an employee to have a fighting chance of defending his or her career successfully. We favor the idea of managed competition, however, which doesn’t force an employee to go one route or the other, but maintains the option of choosing an alternative.

[McCloskey:] As you know, my bill has the four options basically, but should we restructure the process for the [union] covered employees, just have the two options to start with?

[Devine:] We think that the way the bill is drafted, by maximizing your choices, it also maximizes the chances that you will be able to defend yourself somehow.

McCloskey’s version and Devine’s response, minus the federal court option, is what was enacted in 5 U.S.C. 7121(g)(3). This exchange makes clear that Congress contemplated forcing employees to choose between OSC, MSPB, and a union, regardless of one’s union membership. Devine did not raise any consequence issues at the time.

The Art of Spinning

Devine is also now attempting to reframe the issue from one of Congress forcing employees to choose between a union, an MSPB direct appeal, and an OSC complaint, to one of Congress not having intended to “require inconsistent standards for employees who start with the OSC, compared to starting with the Board,” because if they didn’t mention it, they must not have meant it.

It’s a crafty argument, but ultimately it fails because the inconsistent standards issue is a consequence of forcing employees to choose between fora. Congress need not, and certainly does not, anticipate or speak about every foreseeable and unforeseeable consequence of their main policy choices. Moreover, they rely on subject matter experts to raise these issues for them. In this case, that would have been Devine himself, or the Special Counsel.

Notably, the Special Counsel at the time, Kathleen Day Koch, raised the issue of consequences when she said:

The bill would not allow whistleblowers to exercise the independent right of action they currently have which allows them to take their case before the board after coming to OSC. I believe that the current independent right of action provision which was added by the Whistleblower Protection Act is an effective measure for ensuring maximum consideration of whistleblower claims and should be maintained.

She may not have gotten it exactly right, but that’s the problem with predicting consequences.

By reframing the issue from one of Congress making broad, structural changes, to one of Congress neglecting to speak about one of several consequences of their broad decisions, Devine tries to cast doubt about the validity of the plain language of the law. He is trying to redefine reality.

All the other issues Devine mentioned (interaction with section 7701, efficiency of the service) are problems that arise when a rights-limiting provision is introduced into a rights-enhancing legislation; it’s going to be awkward, no matter what. That doesn’t mean the original decision to limit whistleblower rights wasn’t intended by the unions or Congress.

Prior Inconsistent Statement

Oddly enough, Devine’s comment is also contradicted by… Devine’s recent public statements. Here is what he told Bloomberg BNA in a June 12, 2012 article (subscription required, though available in full here) (full disclosure: I work at BNA, though not in the employment division. These are solely my own views):

Tom Devine, legal director at the Government Accountability Project, a Washington, D.C.-based nonprofit that represents federal whistleblowers before the board, told BNA June 7 that, with the exception of the change affecting federal whistleblowers, the MSPB proposed regulations are “stuffed with nuts and bolts changes that would make the board more user-friendly.”

Although the whistleblower provisions will make life more difficult for federal whistleblowers and their legal representatives, Devine said, “it’s difficult to criticize the board for conforming its regulations to clear statutory language, even after an 18-year delay.

“The next step is obvious. When Congress reauthorizes spending for the Merit Systems Protection Board, it should modify the statute,” he said. “There is no excuse for whistleblowers who process claims through OSC to have second-class rights, but the problem is not with the proposed rule—it’s with how Congress wrote the 1994 law.” [Emphasis added.]

Final word: If Devine and AFGE truly feel that 5 C.F.R. 1209.2 is not in accordance with the law (assuming it’s enacted as proposed), they should file suit, challenge it under the Administrative Procedure Act, and let a federal judge look at all the facts and arguments. If that judge finds that 5 C.F.R. 1209.2 was mandated by 5 U.S.C. 7121(g)(3), or is a reasonable interpretation thereof, then I would imagine that Devine and others would seek a legislative change.

Or they could avoid getting exposed by a judge and seek legislative change directly.

Either way, will Devine and other responsible actors acknowledge their role in this fiasco? Based on his conduct, I wouldn’t bet on it.

Read more public comments here.

Public advocacy saves whistleblowers from administrative minefield

3:48 pm in Uncategorized by MSPB Watch

Great news out of Congress: legislators in the House of Representatives negotiating the Whistleblower Protection Enhancement Act have decided to scrap the provision that would give the Merit Systems Protection Board summary judgment powers.

Here’s a detailed writeup why this would have been a bad deal for whistleblowers; in short, it would have prejudiced many whistleblowers with agencies’ sophisticated legal maneuvering that would have denied them the ability to tell their side of the story to a third party.

What made this happen? As stated by Tom Devine of the Government Accountability Project, in a community conference call earlier today: sustained public protest.

“Congress heard you,” Devine said.

What lessons can we draw from this? Simply put, public outcry works. Backroom negotiations do not.

Devine also told the community that jury trials are off the table, and Senators Kyl and Sessions are demanding that even if bench trials are introduced, agencies should still have an easier time defeating whistleblower complaints. This is disappointing because the original deal was that if jury trials are introduced, then agencies’ burden of proof is lowered (to preponderance of the evidence), but if bench trials are introduced, the burden of proof stays the same (clear and convincing evidence).

Kyl and Sessions are reneging on their promise.

The already-passed Senate version of the WPEA contains this very compromise: jury trials and preponderance of the evidence standard. The initial House version contained the other compromise: bench trials and clear and convincing evidence standard.

If clear and convincing evidence is good enough for an MSPB judge, it should be good enough for a federal district judge. (It should be also good enough for a jury, but that point’s moot).

Kyl and Sessions should answer why they reneged on their earlier promise.

How do we seek change?

Look to the summary judgment example.

Finally, we should expect Congress to pass the WPEA in September, Devine said.

Dissenters’ Digest for July 8-21

10:00 am in Uncategorized by MSPB Watch

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.

Former Office of Special Counsel staffer looks backwards

7:29 am in Uncategorized by MSPB Watch

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.

To NIshimoto and everyone else: stay tuned for Dissenters’ Digest for 1982 and ’83.

(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.)

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:
Read the rest of this entry →

Open Letter to Congress: Strengthen the Whistleblower Protection Enhancement Act

2:10 pm in Uncategorized by MSPB Watch

June 4, 2012

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

Dear Member of Congress:

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

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

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

–9 times more likely to get fired,

–6 times more likely to get suspended,

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

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

–twice as likely to be denied a promotion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sincerely,

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

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

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

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

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

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

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

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

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

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

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

George G. Sarris
Aircraft Mechanic
Offutt AFB, Nebraska

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

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

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

 

Dissenters’ Digest for 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.

Send tips to tips@mspbwatch.net.

Union protectionism in 1994 may haunt whistleblowers and OSC in 2012

7:34 pm in Uncategorized by MSPB Watch

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How did we get here?

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

What’s next?

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

 

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

7:54 am in Uncategorized by MSPB Watch

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.