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GAP’s Whistleblower Whiplash

8:26 pm in Uncategorized by MSPB Watch

Two developments in the whistleblower world caught the Government Accountability Project speaking out of both sides of its mouth today.

Whistle Blower puppet

GAP’s Tom Devine is inconsistent on whistle blowers.

Here’s GAP’s Legal Director, Tom Devine, on news that the Federal Circuit dealt a serious blow today to national security employees’ (and possibly all federal employees’) civil service protections:

Last year Congress unanimously passed the Whistleblower Protection Enhancement Act (“WPEA”) due to hostile Federal Circuit activism creating judicial loopholes that gutted statutory free speech rights. Apparently the Federal Circuit did not get it. This time the court created a loophole to remove the civil service rule of law from virtually the entire federal workforce. It erased all federal laws that shield the two million federal employee workforce from becoming a national security spoils system.

And

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

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

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

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

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

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

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

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

2:16 pm in Uncategorized by MSPB Watch

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

Whistle blowers

Whistle blowers

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

Tom Devine, Government Accountability Project:

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

Lynne Bernabei, Bernabei & Wachtel, PLLC:

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

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

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

Angela Canterbury, Project on Government Oversight:

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

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

Federal Times, April 11, 2013:

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

Government Executive, April 11, 2013:

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

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

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

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

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

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

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

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

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

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

9:59 am in Uncategorized by MSPB Watch

Dear Whistleblower and Advocate,

As you may know, President Obama nominated former Special Counsel Elaine Kaplan on March 19 for a judgeship on the U.S. Court of Federal Claims. This court, based in Washington, has jurisdiction over government contracts, vaccination fund claims, and other discrete areas. It does not review whistleblower/MSPB claims. The nomination is for 15 years, however it is not uncommon for Federal Claims judges to move on to higher profile positions. For instance, former Special Counsel Alex Kozinski left OSC in 1982 for the Court of Federal Claims, only to become a federal appeals judge on the Ninth Circuit. He is now Chief Judge of that circuit. Same with Randall Rader, the Chief Judge of the Federal Circuit (though he was never Special Counsel).

I don’t know how we all feel about Elaine Kaplan, but the public record, as well as personal anecdotes I’ve heard, are not good. My letter explains why.

I believe, as I explain in the letter, that a person who has made the decisions that Ms. Kaplan made should not be awarded with a judicial post. The Court of Federal Claims is not a high profile position, but it is a stepping stone to more influential positions. I plan to make my opposition heard at this level, and I ask you to join me if you agree.

If you have experiences of your own and can provide documentation to support it, please let me know. The letter is not set in stone. Also, feel free to send this to whomever you wish. I will be collecting signatures for the rest of the week or so.

There will also be an accompanying website that will collect all letters sent: http://thecaseagainstelainekaplan.wordpress.com/

Sincerely,
David Pardo
dpardo at mspbwatch dot 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.

 

Dissenters’ Digest for March 25-31

3:00 pm in Uncategorized by MSPB Watch

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

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

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

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

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

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

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

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

Below the Fold:

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

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

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

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

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

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

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

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

Send tips to info at mspbwatch dot net.

Letter to Mark A. Robbins, GOP Nominee for MSPB Member

9:20 am in Uncategorized by MSPB Watch

December 21, 2011

Mr. Mark A. Robbins, Esq.
Executive Director (acting)
Election Assistance Commission
1201 New York Avenue, N.W.
Suite 300
Washington, D.C. 20005
202-566-3100

Subject: The Future of the Merit Systems Protection Board

Dear Mr. Robbins,

Congratulations on your nomination to the Merit Systems Protection Board (MSPB).

We are current and former federal employees who have utilized the services of the MSPB and/or the U.S. Office of Special Counsel (OSC).  In our experience, these agencies have contributed to a much more diminished civil service than the one envisioned during their creation by the Civil Service Reform Act of 1978.[1]

We contend that MSPB has been out of compliance with its positive statutory duty to conduct “special studies” focusing on whether federal employees are adequately protected from prohibited personnel practices (PPP’s), including the whistleblower reprisal type PPP, per 5 U.S.C. § 1204(a)(3). This issue has given rise to numerous suits and FOIA requests, none of which has dispelled these concerns.[2]

We seek your input, either before, during, or after your confirmation hearings (pursuant to questions for the record), to address the special studies concern as well as other pressing matters, such as:

The disparity between evidentiary standards for granting stays (“preliminary relief” is a better description) when sought by OSC and when sought by employees;

The lack of an Inspector General at MSPB;

How the “election of remedies” of 5 U.S.C. 7121(g), by including filing a complaint with OSC, creates a perverse incentive for federal labor unions to want OSC to be ineffective;

Requiring OSC to file a 5 U.S.C. § 1214(e) report with the Board to establish jurisdiction for corrective action; and

Ethical obligations for MSPB attorneys, including any attorney Board Members, when MSPB fails to comply with the law.

You are not yet employed by MSPB, therefore it is not yet your client, and you are not precluded by attorney-client ethics from speaking frankly about its interpretation of, and compliance with, 5 U.S.C. § 1204(a)(3), as well as the issues listed above.

We look forward to your views on these pressing matters.

[1] See www.broken-covenant.org and www.mspbwatch.net for more information.
[2] A current FOIA appeal is pending in front of Chairman Grundmann, seeking any agency interpretations ostensibly relied upon by the MSPB in court to justify MSPB’s position regarding 5 U.S.C. § 1204(a)(3). See www.mspbwatch.net/foia for more information.

Letter to Mark Robbins

 

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

11:09 pm in Uncategorized by MSPB Watch

Shredded (photo: beginasyouare/flickr)

Shredded (photo: beginasyouare/flickr)

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

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

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

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

NARA Records Retention Schedule for OSC

See also:

 

The more things change…

11:21 am in Uncategorized by MSPB Watch

It used to be, before 1883, that civil servants and applicants for federal government jobs would lobby Congress and political parties for appointments, at all levels. Congress would extort campaign contributions in return, leading to a downward spiral of incompetent governance.

Then President Garfield was assassinated by someone who campaigned for him but was spurned for a job after Garfield’s election. So Vice President Chester A. Arthur, on taking over the presidency, lobbied and got passed the Pendleton Civil Service Reform Act of 1883. That law created the Civil Service Commission, which existed until 1979, when it was replaced by MSPB, OPM, and FLRA (Federal Labor Relations Authority).

From the First Annual Report of the U.S. Civil Service Commission, 1884:

There can be no more emphatic evidence that the old [spoils] system had become intolerable than the passage of the [Pendleton Civil Service Reform Act of 1883], by which members of Congress made a patriotic surrender of so much of their patronage.

and,

Member of Congress, pursued alike by the importunate appeals of those seeking office as a charity and by the clamor and threats of those demanding it as a reward for partisan work, were no longer independent. They were almost forced to devote to office-seeking the time needed for legislation, and to foist incompetent supernumeraries upon the public treasury which it was their special duty to protect.

http://mspbwatch.files.wordpress.com/2011/11/first-ar-of-the-uscsc.pdf, page 11 (emphasis added).

As mentioned above, today we don’t have an official patronage system by which Congress collects campaign contributions from partisan civil servants. But isn’t there a de facto spoils system when lobbyists write more legislation than do the politicians?

 

New FOIA litigation in progress, aimed at clarifying ethical issues at MSPB

6:16 pm in Uncategorized by MSPB Watch

Back in August, a suit was filed (with exhibits) by [8-time prevailing whistleblower and federal nuclear safety engineer] Joe Carson against MSPB in federal district court, over MSPB’s refusal to comply with a FOIA request. In his request, reprinted below, Carson raises worthy questions regarding the ethical duties of the MSPB chair, currently occupied by Susan Tsui Grundmann. Take a look.

*****

Freedom of Information Act (FOIA) REQUEST

May 28, 2011
Mr. Bernard Parker, FOIA Officer
U.S. Merit Systems Protection Board
1615 M Street NW
Washington, DC 20419

fax at (202) 653-7130 <FOIAHQ@mspb.gov> <www.mspb.gov>

Subject: New FOIA request based on Chairman Grundmann’s May 24, 2011 denial of my FOIA appeal in FOIA no. CB11-171

Dear Mr. Parker,

As MSPB leadership knows, I contend there is a 32 year-long “broken covenant” by Civil Service Reform Act of 1978 (CSRA). I contend that the government (i.e. Courts, Congress, the Government Accountability Office (GAO), the President, the Office of Special Counsel (OSC), the Merit Systems Protection Board (MSPB), and agency heads) have failed to ensure federal employees are adequately protected from reprisal and other types of prohibited personnel practices (PPPs) as they do their duties in a trustworthy fashion, per the merit system principles - the fundamental objective of the CSRA.

My contentions are detailed at <www.broken-covenant.org>. I contend that thousands of loyal patriotic federal employees, foolhardy enough to put duty to the Constitution and the common good before their personal economies were unlawfully betrayed for doing so since 1979. I contend America is much diminished and more threatened as a result. Furthermore, I contend that if my concerns are substantiated at the Office of Legal Counsel of the Department of Justice, it is GOOD NEWS for America in that: 1) a previously unidentified significant causal factor to much which has befallen and besets America has been exposed, and 2) it can readily be corrected.

If my contentions are substantiated, then the Merit Systems Protection Board – the 3 person Board – for past 32 years, its lawyer members and the lawyers in its Office of General Counsel and Office of Policy are, in my opinion, most responsible. Only MSPB has the positive, nondiscretionary, statutory duty to conduct oversight, via its special studies function at 5 U.S.C. section 1204(a)(3), of the Office of Special Counsel’s interpretation of and compliance with its nondiscretionary statutory duties to protect federal employees from PPPs, most specifically its duty to report its determinations of PPPs at 5 U.S.C. section 1214(e), and agency heads interpretation of and compliance with their nondiscretionary statutory duties to prevent PPPs, per 5 U.S.C. section 2302(c).

I am a licensed professional engineer (PE) employed in the Department of Energy as a nuclear safety engineer. I was so foolhardy as to put my positive legal and professional duty to be a “mandated reporter,” when necessary, to protect others related to my professional duties for their health and safety, regardless of possible job/career retribution. PE’s are “mandated reporters” in such circumstances, I acted consistent with that duty. My actions played a positive, perhaps significant, role in the passage of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) of 2000, by which over 65,000 diseased, disabled, or prematurely deceased Department of Energy contractor workers (or their survivors) have received over 7 billion dollars in compensation. So, as I now see it, I have done my positive legal and professional duty, as great personal and professional cost, as a licensed professional employed by a government agency because other licensed professionals employed by a government agency – attorneys who served on the 3 person Board during past 32 years – betrayed their duty to enforce the laws entrusted to them, particularly section 1204(a)(3).

Why has this gone on for 32 years? As I understand Chairman Grundmann’s reasoning in denying my FOIA appeal, she is really not the Chair of MSPB, with a positive legal duty to ensure MSPB is properly interpreting and complying with its non-adjudicatory statutory duties to protect the Merit Systems in the Executive Branch from PPPs – and to “blow whistles” as a “mandated reporter,” if it is not. Instead, she has an attorney-client relationship MSPB, her government employer. Because MSPB is her client, she must as a licensed attorney – what she was before becoming Chair of MSPB and what she will continue to be when her term at MSPB ends – hold paramount MSPB’s interests – not those of the federal civil service when the two come into conflict. Therefore she is a “mandated NON-reporter” about MSPB’s failures or possible failures to properly interpret and comply with its nondiscretionary duties regarding conducting special studies and oversight of Office of Personnel Management regulations.

Additionally, Ms. Grundmann has a background as a lawyer employed by federal employee unions, so she had an attorney-client relationship with them. In my opinion, federal employee unions have devolved to become low-level protection rackets, which use fear of PPPs to sell union memberships at about $400 -$500/year to federal employees. Federal employee unions, in my close observation and experience, benefit from the “broken covenant” of the Civil Service Reform Act of 1978 – they do NOT want federal employees to be adequately protected from PPPs by agency heads and OSC, because if they were, then they would be even less likely to voluntarily pay union dues. Federal employee unions want status quo – “OSC is the last place an employee alleging a PPP should go” – to continue because it helps sell union memberships.

In fact, federal employee unions were the chief advocate of a 1994 law that put severe restrictions on federal employees represented by federal employee unions (i.e. their members and prospective members, only about 20% of federal employees represented by federal employee unions actually pay their dues), seeking protection from PPPs at OSC, per 5 U.S.C. section 7121(g). They did this to make their remedy for PPPs – binding arbitration – more exclusive. Why? To help sell union memberships, to pay the exorbitant salaries of their officers and their employed attorneys.

So, federal employee unions and their lawyers want and benefit from a broken, lawbreaking fraud of federal law enforcement agency at OSC – one that is “the last place a federal employee alleging a PPP should go,” and lawbreaking enabler of OSC’s fraud at MSPB.

To clarify my understanding of Ms. Grundmann’s ethical obligations as a licensed attorney who is Chair of MSPB and who was previously employed by Federal employee unions, I submit a FOIA request for any responsive records for the following:

  1. -Any records relevant to Ms. Grundmann’s duties to be a “mandated reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years.
  2. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years.
  3. -Any records relevant to Ms. Grundmann’s duties to be a “mandated reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years.
  4. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years.
  5. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman MSPB if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years, because she was previously employed by federal employee unions, which possibly benefitted from the government lawbreaking, because fear of PPPs helps sell union memberships.
  6. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman MSPB if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years, because she was previously employed by federal employee unions, who benefitted from the government lawbreaking, because a broken, lawbreaking fraud of an OSC – “the last place a government employee alleging a PPP should go” – and a lawbreaking MSPB that enables it, helps sell federal employee union memberships.
  7. -Any records related to any evaluation MSPB has conducted of its interpretation of and compliance with its non-discretionary statutory duties at 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f).
  8. -Any records related to any consideration MSPB has made of telling the President, Congress or anyone else that its interpretations of and compliance with 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f) during past 32 years is suspect.
  9. -Any records related to any consideration MSPB has made of seeking interpretations from the Office of Legal Counsel of the Department of Justice of its interpretations of 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f) during past 32 years.
  10. -Any records related to MSPB’s compliance with its nondiscretionary statutory duty to conduct reviews of OPM rules and regulations for possible PPP’s, per 5 U.S.C. sections 1204(a)(4) and/or (f)(1)(A), on its own motion.
  11. -Any records of any written complaints received from the Office of Special Counsel (OSC), requesting such a review, per section 1204(f)(1)(c),
  12. -Any records of any “special studies” conducted by MSPB, per sections 1204(a)(3) and (e)(3), that considered MSPB’s and OSC’s compliance with their positive, nondiscretionary, statutory duties to proactively review any OPM rule or regulation for possible PPP’s.

I will pay up to $100 for the records I seek.

Respectfully,

Joseph Carson, PE

*****

This suit will be tracked at http://mspbwatch.wordpress.com/litigation/

For more information, see www.broken-covenant.org and please sign a related White House petition here.