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

8:12 pm in Uncategorized by MSPB Watch

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

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

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

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

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

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

[Link to Scribd page or via direct download]

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

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

12:17 pm in Uncategorized by MSPB Watch

An array of tin whistles

A look at whistleblower laws of recent decades

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

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

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

June 1978:

Sen. Chiles offered that

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

He also raised the point that

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

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

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

Sen. Chiles responded that

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

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

October 2011:

Read the rest of this entry →

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

11:15 pm in Uncategorized by MSPB Watch

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

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

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

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

GAP Reaches Out to Whistleblower Community to Protect Rights, Six Months Too Late

12:08 pm in Uncategorized by MSPB Watch

The Government Accountability Project issued a call today for whistleblowers to submit friend-of-the-court briefs to the Merit Systems Protection Board to support the retroactive application of the Whistleblower Protection Enhancement Act. MSPB is in the process of deciding whether to apply the WPEA retroactively to scores of cases it had to put on hold, given that the new law overturns several harmful precedents. The issue of retroactivity is a legal one, centering on whether Congress spoke clearly in intending that the WPEA apply retroactively. This “clear statement rule” was imposed by a 1994 Supreme Court case, Landgraf v. USI Film Products, Inc., stemming from the principle that “retroactivity is not favored in the law.”

A year ago, when the WPEA was still in committee, this author reached out to the lead lobbyist in charge of the WPEA, Tom Devine of GAP, to alert him to the fact that the WPEA may not apply retroactively. Devine sent a memo to his congressional contacts, and later in the spring the overseeing Senate committee included language in a Senate report favoring retroactivity. This was followed by a floor statement from Rep. Todd Platts (R-PA) in the same vein. There is no explicit retroactivity language in the bill itself, however. Therefore, as noted by GAP’s email today, all of this may not be enough. Depending how the MSPB, the U.S. Court of Appeals for the Federal Circuit, and possibly the Supreme Court rule, there is a strong possibility that one or more of these bodies may decide that only bill language counts. What it will come down to, essentially, is the legal philosophies of individual judges and decision-makers, and how much credence they give to individual floor statements and committee reports versus bills passed by both chambers of Congress and signed by the President.

Now GAP has issued a call for whistleblowers to submit briefs to the MSPB, by February 15, saying that “Enough whistleblowers writing to the Board about your whistleblowing disclosures (and the public stakes), will help to underscore the weight of this decision by the MSPB.” This will be a weighty decision by the Board, no doubt, but public sentiment may not be relevant or sufficient to resolve a legal question.

Unfortunately, such a call for public sentiment would have been critical when the WPEA was debated, when Congress could take into account policy preferences in a way that courts may not. The record is clear that GAP did not conduct a transparent and inclusive approach to lobbying in 2011 and 2012. It’s disheartening therefore, but not surprising, that GAP’s call for help today is a consequence of its secretive and exclusive approach to advocacy.

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GAP Open Call for Whistleblower Amicus Briefs

OSC Notice of Intent to File Amicus Brief – Jan. 10, 2013

MSPB Amicus Order – Jan. 16, 2013

What’s Missing from the Adulatory Coverage of Obama’s Whistleblower Protections

2:01 pm in Uncategorized by MSPB Watch

Several articles have emerged that contain praise from non-profit groups toward President Obama for taking steps to protect whistleblowers, albeit at a time when more whistleblowers are prosecuted by his administration than ever before. The coverage goes something like this:

Obama’s Justice Department is prosecuting a number of whistleblowers under the Espionage Act.

A government secrecy expert opines that this is unprecedented.

The article mentions Obama’s efforts to expand whistleblower protections through legislation or executive action.

Non-profit groups such as the Government Accountability Project and the Project on Government Oversight applaud Obama for doing more than any other president in history to protect whistleblowers.

What’s missing, however, is any discussion that such steps are mandated by law, specifically 5 U.S.C. 2301(c), enacted by the Civil Service Reform Act of 1978:

(c) In administering the provisions of this chapter—

(1) with respect to any agency (as defined in section 2302 (a)(2)(C) of this title), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and

(2) with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives;

which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles. [Emphasis added.]

Key among those “merit system principles” is the protection of whistleblowers.

So is it a fact that Obama has ”done more to affirmatively protect whistleblowers than any other president,” as POGO’s Angela Canterbury recently stated? Yes.

However, it is not out of benevolence or favored policy, but his constitutional duty to “take care that the laws be faithfully executed.” The fact that a president is finally executing a 1978 law should not be news or grounds for applause. We elect presidents to execute the laws.

What’s newsworthy is why it took 35 years to get to this point.

National Whistleblowers Center explains roots of divisions and setbacks in the federal whistleblower community

3:03 pm in Uncategorized by MSPB Watch

Here it is.

Key passage (emphasis mine):

On February 1, 2007, whistleblower organizations met together as the Make it Safe Coalition (MISC) and agreed that we would support only bills that were improvements on the current law and contained no backward steps for anyone. Those goals were almost met on January 28, 2009 when the House of Representatives voted for strong whistleblower rights, including full federal court access for all federal employees.

However, over the summer of 2009 things started to go wrong. In negotiations the NWC attended with representatives from the White House and Congress, it became clear that some in the Senate did not support full protection for federal employee whistleblowers. Additionally, the White House retreated from earlier pledges to support a strong federal employee whistleblower law, and instead explicitly stated in private meetings that they would oppose full court access and due process protections for national security employees.

Things took a further turn for the worse in August of 2009 when the Senate Committee on Homeland Security and Government Affairs “marked-up” and approved the Whistleblower Protection Enhancement Act. At the committee meeting the Senate sponsors stated that their bill was the “best” whistleblowers could get, and the community needed to get behind it.

In response to the Senate Committee mark-up, the MISC Executive Committee endorsed the bill. However, the NWC saw a number of defects in the legislation that made it impossible for us to support passage of that version of the Senate bill. Instead, we became the “skunk at the picnic” and were placed in a very difficult position of having to publicly oppose that version of the bill.

September 20

4:04 pm in Uncategorized by MSPB Watch

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

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

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

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

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

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

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

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

Veal Pen Watchdogs Misappropriate Whistleblowers’ Support for Strong Bill to Advance Watered-Down Alternative

2:32 pm in Uncategorized by MSPB Watch

Beltway watchdogs the Government Accountability Project and the Project on Government Oversight are lobbying for the passage of a version of the Whistleblower Protection Enhancement Act which POGO claims is “the strongest version . . . [Senators and Representatives] think they can pass this week.” (GAP says virtually the same thing.)

In support, POGO links to an organizational letter it and GAP have drafted and circulated. POGO also links to an open letter by “prominent whistleblowers” who have “thrown their support behind this bill.” (Emphasis mine).

I can tell you that the open letter lobbies Congress to pass a strong WPEA and to specifically address five areas: retroactivity, jury trials, all circuit review, CUI/SSI loophole, and no summary judgment. The letter does not specifically support the version of the bill agreed upon these days, as described here. How do I know this? Because I wrote the letter, along with Tom Devine of GAP and Evelynn Brown of WhistleWatch.org.

That’s not to say that individual whistleblowers on it don’t support the current version, but we did not urge Congress to pass a bill that punts on jury trials and maybe also retroactivity and the CUI/SSI loophole and leaves the door open to summary judgment and revoking all-circuit review after 2 years.

Just to set the record straight, the open letter demands more than Congress is willing to pass at this time, and endorses nothing short of that.

So why is Congress not willing to pass a bill that’s as strong as we demanded?

###

Also, the CYA disclaimer that this is the “strongest version” of the bill Congress is willing to pass should have an asterisk after it, as in:

House and Senate cosponsors of the bills to strengthen protections for federal whistleblowers and taxpayers have reached an agreement and will offer the strongest version** of the Whistleblower Protection Enhancement Act (WPEA) they think they can pass this week.

**In the absence of public outcry.

Update: Ms. Brown’s response can be found here.

Public Sentiment Is Everything (Part II)

10:37 am in Uncategorized by MSPB Watch

On June 16, I wrote the following about the current efforts to pass the Whistleblower Protection Enhancement Act:

There’s a quiet revolution taking place in the federal whistleblower community. Once-obedient and silent whistleblowers are starting to take note that the professional advocates who speak for us are no longer sensitive to our needs. There’s a schism between two major groups, the Government Accountability Project and the National Whistleblowers Center, over the Whistleblower Protection Enhancement Act (or at least there used to be. NWC has not come out against the WPEA recently).

More of us are beginning to see NWC’s criticisms as valid after we engage in independent research, despite GAP’s attempts to poison the well. Tom Devine, Legal Director of GAP, once told me to eschew community organizing tactics in favor of Machiavellianism. The results of his favored approach are not difficult to see: the public is ignorant of the extent of retaliation and lawlessness in the federal government because the professional advocates eschew empowering ordinary citizens in favor of backroom deals and clientelism.

There’s a paternalistic streak running among these professionals, who believe that whistleblowers must be kept silent and obedient, lest the public look at any intra-group conflicts with horror and dismiss us all as cranks. I, for one, have more faith in people’s abilities to judge a situation on the merits than obsess over its optics. A quick look at GAP’s marketing propaganda and reports portrays whistleblowers as two-dimensional mannequins without free will or agency. That’s not without purpose.

The constant obsession over “tactics” being counterproductive begs the question –counterproductive to whom? And to whose agenda? Because GAP’s current tactics certainly don’t benefit me.

Perhaps the straw that broke the camel’s back was when Devine told me that our role was to give Congress a “pep talk,” not criticism, lest their staffers turn their backs on us and our attempt to pass legislation to protect federal employees and taxpayers. Also, that lobbyists and these staffers are the “lower common denominator” to whom we should simply defer.

Forgive me, Mr. Devine, but the lower common denominator are the whistleblowers your organization purports to empower.

The sooner you realize this, the better our chances at passing real reforms.

Last Friday, the whistleblower community received the following message:

Dear MISC Members, the following legislative report is from the MISC steering committee  

Members of our community have been working hard for the best outcome on Whistleblower Protection Enhancement Act issues. This progress report is so that all the other coalition groups, NGO’s and individuals working independently can make informed strategy choices, and so our work and others’ reinforces our mutual efforts most effectively. It also is to sound the alarm on a disastrous new Federal Circuit Court of Appeals decision that gives agencies a nearly blank check to cancel the civil service appeals system for hundreds of thousands of federal workers on the most contrived of national security grounds.

Let’s start with an update on the issues we’ve discussed frequently at coalition meetings and events over the past several months (in some cases, years!):

* Good news is that – 1) we’re making progress on our insistence for all circuits review, removing the Federal Circuit Monopoly, 2) there are ongoing negotiations between congressional offices on the burdens of proof that gives the government the upper hand in district court, and 3) clarification of an Executive Order that could have canceled WPA rights. 

We don’t yet know where we are on the new rights for intelligence community workers, but the intelligence committees are engaged and *appear* to be working in good faith thus far. We should know more by late next week.

* Bad news is that – 1) jury trials are still off the table, 2) we haven’t restored normal burdens of proof for bench trials in district court; and 3) summary judgment again is a threat; and  4) an amendment to close the PHS/NOAA “uniformed employees” WPA loophole, despite impressive public support and the recent FDA surveillance scandal, appears to be off the table due to opposition by the association representing PHS officers.

As explanation, House Judiciary Committee Chair Lamar Smith (R-TX) has continued to be an opponent of jury trials and all circuits review.  In addition, Senator Jeff Sessions’ (R-AL) office is demanding the burdens of proof handicap against whistleblowers if they go to court. All these offices have the authority to single-handedly stop the bill, either through their sequential referral authority (House Judiciary, already claimed), or their ability to impose a “hold.” (done in three other Congresses by Senator Sessions).  We are urging Chairman Issa to work with Smith to ensure credible court access, and for them to ignore the threat of Senator Sessions and pass something we can all support. We hope that if the House does this, then we will have an opportunity to isolate Sessions and work to overcome his objections on the last remaining issue of burdens of proof. We need Senator Grassley to support this outcome.

* Unresolved issues include –1) National security issues – HPSCI has not reported back revealing what it will accept.  2) “MacLean fix” so agency secrecy regs can’t supersede public whistleblower rights. Some House offices are considering this amendment, but there is generally wariness about adding anything “new” that could draw a new Senate hold. But unless it occurs, nearly any agency would be able to circumvent the WPEA and publicly gag its employees through internal regulations. 2) Savings provision so that those who have not yet filed can benefit from the WPEA. It is the same as the MacLean fix; no real opposition and a few offices working on it, but general nervousness. 3) Contractor whistleblower rights experiment.  This is in the House bill, but the Senate has never considered it within the context of the WPEA (though the Senate Homeland Security and Governmental Affairs Committee has passed the McCaskill bill to give rights to all employees of federal fund recipients, S. 241). We are being told that this will draw a hold from one or more Senators. *  Conyers/Northover – This new Federal Circuit decision overturns a MSPB ruling and allows agencies to bypass the civil service appeals process when removing anyone with a job designated “sensitive” – which the court defined as any work that “implicates national security”; i.e., virtually any job. If it sticks, there will be no system of due process to apply and enforce any of our WPEA victories. We think it imperative that Congress act to restore the civil service system, or our victory will be irrelevant until that occurs. WPEA is one potential option, but including this could endanger the bill, and most likely doom it to uncertainty in the Lame Duck session after the elections. We are working closely with allies in Congress and the Administration to find the best vehicle. A GAP release and AP article are linked.

WORKING TOGETHER

Through advocacy to all Hill offices and personal efforts with your own members, the MISC community at large can make a big difference, if not the difference, in our advocacy being heard, and by recruiting media calls to the politicians and shows/editorials, letters to the editor or op-eds; and generally convincing the politicians that they have to be on their best behavior with the WPEA, because too many voters know what it means.  The whistleblower letter organized by Evy Brown has been a very helpful contribution to the advocacy, as has the organizational support letter. Your help with recruiting signatories for both is needed! 

There is still a chance that a bill will be ready during the very narrow window  for congressional work in September. There are only SEVEN legislative days before they leave and are off until after the elections.  We are hoping they will avoid the all-bets-are-off lame duck scenario, but this is really out of our hands. Now is the time for all of us, in our own way, to make our move.

Thank you,

MISC Steering Committee

Shanna Devine
Investigator, Legislative Campaign Coord.
Government Accountability Project
1612 K St NW, Suite 1100
Washington, DC 20006
(202) 457-0034  ext. 132 (voice)
(202) 457-0059 (fax)
Email: shannad@whistleblower.org
Website:
www.whistleblower.org

When you try the same thing for 13 years but get the same result, perhaps it’s time to try something new. With different leadership at the helm.

Chief opponent of whistleblower rights in the House defends ICE whistleblowers

3:30 pm in Uncategorized by MSPB Watch

Representative Lamar Smith (R-Texas), Chairman of the House Judiciary Committee, has come out in support of 10 Immigration and Customs Enforcement agents who filed a lawsuit challenging the administration’s decision to grant temporary legal status to up to 1.7 million children of undocumented immigrants.

In a letter to Homeland Security Secretary Janet Napolitano, Smith asked Napolitano to “take steps to ensure” that the agents “do not suffer retaliation – employment-related or otherwise” for filing a federal lawsuit to overturn the administration policy, the Houston Chronicle reports.

“Such retaliation would have a chilling effect on future lawsuits brought by government employees who witness waste, fraud, abuse, mismanagement, illegality or dangers to health and public safety,” Smith warned in his letter.

“These agents should be considered `whistleblowers’ who came forward to protect the public’s interest and maintain integrity in government programs. They deserve protection from DHS efforts to stop this lawsuit and silence their voices.”

Smith’s letter comes at a crucial time: Congress is currently negotiating the details of the Whistleblower Protection Enhancement Act, which it failed to enact for the past thirteen years. Even more, the bill’s public interest lobbyists have described Smith as the main opponent of crucial, long-sought due process reforms for whistleblowers: the right to a jury trial and the ability to appeal one’s case away from the whistleblower-hostile Federal Circuit.

Moreover, Smith is campaigning on “border security” and “rule of law” – two values that would be greatly protected by a whistleblower bill with real teeth.

Perhaps now would be a good time to ask Smith why he opposes real due process rights for the very agents he is championing in his letter to DHS. Otherwise, it could not be said that the current version of the WPEA is by far the best protection federal employees will ever enjoy, could it?