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:

• Serial No. 95-65 (March-May 1978)
• Senate Hearings on S. 2640 (April-May 1978)
• Committee Print No. 95-13 (Apr. 6, 1978)
• Mark-Up Session on S. 2640 (May 22, 1978)
• Reorganization Plan No. 2 of 1978 (May 23, 1978)
• House Hearings on Reorganization Plan No. 2 (June 6, 13, 15, 1978)
• Mark-Up Session on S. 2640 (June 8, 1978)
• Mark-Up Session on S. 2640 (June 12, 1978)
• Mark-Up Session on S. 2640 (June 14, 1978) I
• Mark-Up Session on S. 2640 (June 14, 1978) II
• Senate Hearings on S. 2640 (June 1978) (Appendix)
• Senate Report No. 95-969 (July 10, 1978)
• House Report No. 95-1396 (July 26, 1978) (Report on Reorganization Plan No. 2 of 1978)
• Senate Report No. 95-1049 (July 28, 1978) (Report on Reorganization Plan No. 2 of 1978)
• House Report No. 95-1403 (July 31, 1978)
• Senate-House Conference on S. 2640 (Sept. 18, 1978)
• Senate-House Conference on S. 2640 (Sept. 25, 1978)
• Senate-House Conference on S. 2640 (Sept. 26, 1978)
• Senate-House Conference on S. 2640 (Sept. 27, 1978)
• Senate-House Conference on S. 2640 (Sept. 28, 1978)
• Senate-House Conference on S. 2640 (Oct. 3, 1978)
• Senate Conference Report No. 95-1272 (Oct. 4, 1978)
• House Conference Report No. 95-1717 (Oct. 5, 1978)

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 →

1. He raised issues that need airing.

2. It’s about the principle, not the person.

3. Perfectionism-based criticism (e.g. that he only talked about Americans, or drone strikes on U.S. soil) is a thinly-veiled attempt to discredit the whole venture. He’s not arguing in court of law, but in the court of public opinion, and this is his opening argument. He can stick to a few talking points for now and draw the line here, to capture the public’s attention and not overwhelm. Besides, others who would go further can build off what he did.

4. He can run for President, and this can even be his opening shot. I doubt he’ll win, but many politicians have run for president to change the direction of their parties. And let’s face it: the GOP needs it.

5. He’s a senator, and so of course he’ll grandstand. What filibuster isn’t about grandstanding, in part? One person who gets to bring the entire political process to a grind just so he can be heard? But in America, we eat that shit up. Focus on the message, folks, not the theatrics.

6. I don’t even mind that some have opportunistically rose up to join him when they supported the opposite policies under the last administration. On the one hand, it’s never too late to find one’s conscience. On the other hand, now it’s too late for them to credibly turn back.

7. Nobody disagrees with his main point: that the U.S. has no authority to use drone strikes on Americans, on U.S. soil, who are not engaged in combat. The only disagreements are why this was worth filibustering. I think it was, because it set the precedent, which has been eroded over the last dozen years, that the president’s war powers have limits. The details are almost beside the point. And indeed, most of the (ad hominem) arguments by the war mongers are based on breathless indignation at the mere notion that the president’s powers have limits, and how dare this wet-behind-the-ears, Atlas Shrugged-toting man-child come in here and show us up? But their reaction shows he drew blood.

For what it’s worth, I applaud his efforts.

Position Available

Wanted: A tough, principled, and tenacious senator who is willing to play a much-needed prosecutorial role on the Senate Committee on Homeland Security and Governmental Affairs. The incumbent is expected to become the conscience of the civil service system and the moral compass of the federal bureaucracy.

Qualifications

Must be:

• Fiercely independent;
• An expert in civil service laws;
• Willing to confront wrongdoing, corruption, cronyism, and coverups in government, wherever they may occur;
• Willing to reach out beyond the traditional Washington accountability bubble and listen to the concerns of ordinary citizens and federal employees;
• Excited about holding agencies’ and watchdogs’ feet to the fire; and
• Willing to resign or blow the whistle loudly before forsaking whistleblowers and their civil rights for business as usual in Washington.

Interested candidates may contact info@mspbwatch.net for more information.

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.

###

GAP Open Call for Whistleblower Amicus Briefs

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

MSPB Amicus Order – Jan. 16, 2013

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 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.

Senate Passes the Whistleblower Protection Enhancement Act of 2012: In a rare show of unanimity, the Senate passed S. 743, the Whistleblower Protection Enhancement Act, this week, the latest attempt to update the Whistleblower Protection Act in 13 years. The last attempt, in December 2010, was defeated by a secret hold in the Senate, according to the Government Accountability Project. Not all are enthused with the bill’s protections, which “fall[] short of the comprehensive whistleblower law reforms promised in the 2008 political campaign,” notes Stephen Kohn of the National Whistleblowers Center. Now it’s up to the House to pass their version, H.R. 3289, before the two bills can be reconciled and sent to the President’s desk.

OSC Reports the FAA is Slow in Correcting Whistleblower Complaints: In a rare move, the Office of Special Counsel combined seven whistleblower disclosures from FAA employees into one report to the President and the Congress, citing “an ongoing series of troubling safety disclosures by air traffic controllers and other FAA employees” which have not been rectified by the Department of Transportation. The Special Counsel stated that the “FAA has one of the highest rates of whistleblower filings per employee of any executive branch agency: OSC received 178 whistleblower disclosures from FAA employees since FY 2007, 89 of which related to aviation safety. OSC referred 44 of those to DOT for investigation. DOT ultimately substantiated all but five of those referrals — 89 percent – in whole or in part. In four of the seven cases presented today, the whistleblower had to make repeat disclosures with OSC because the FAA took inadequate steps to correct the concern or failed to implement any corrective action.” The Washington Post has additional coverage.

Below the Fold:

–An internal Pentagon report claims the DoD left whistleblowers vulnerable to reprisal.

–Two F-22 pilots who refuse to fly the aircraft appeared on 60 minutes, claiming a malfunction causes oxygen deprivation aloft.

–The above notwithstanding, the Air Force is in the process of disciplining the F-22 pilots. Congress is expressing concern.

–An EPA scientist who lost her job after blowing the whistle on health dangers to 9/11 first responders prevailed at the Merit Systems Protection Board and will be reinstated.

–The media is silent when the Obama Administration goes after whistleblowers.

–An employment lawyer looks at the fuzzy definition of “gross waste of funds.”

–Thomas Drake speaks with Eliot Spitzer about the DOJ being used to cover up crimes of the Bush and Obama Administrations.

–The FBI is the most effective lobbyist against whistleblower protections, according to a radio interview with National Whistleblowers Center Executive Director Stephen Kohn.

–Former Penn State assistant coach Mike McQueary will file a whistleblower suit against the university over its handling of the Jerry Sandusky abuse scandal.

–The Fourth Circuit revives claims by former Iraqi detainees against contractors who are alleged to have tortured them.

Send tips to tips@mspbwatch.net.

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.

Justice Department Withheld Evidence of Flawed Forensic Procedures Used in Criminal Cases in the 1990′s: The Washington Post reports that the Department of Justice failed to notify defendants or their attorneys of possibly exculpatory evidence of flawed forensic procedures. FBI whistleblower Dr. Frederic Whitehurst disclosed improper procedures in the FBI crime lab almost 20 years ago, which led to a nine-year DOJ task force to determine if any defendants were wrongfully incarcerated. The Post notes in a separate article that the DOJ task force “operated in secret and with close oversight by FBI and Justice Department brass — including [then-Attorney General Janet] Reno and [FBI Director Louis] Freeh’s top deputy — who took steps to control the information uncovered by the group.” The National Whistleblowers Center, which counts Dr. Whitehurst as a director, has more coverage of this story.

Office of Special Counsel Roundup: The Office of Special Counsel issued a rare subpoena in the case of Pinal County (Arizona) Sheriff and Congressional candidate Paul Babeu, who is being investigated for violating the Hatch Act. The Arizona Republic reports that ”[t]he special counsel is looking into allegations that Babeu and several key aides were working on his congressional campaign with county resources or while on the clock.”

Special Counsel Carolyn Lerner is quoted in a Federal News Radio article about the GSA conference spending scandal. Lerner states that “[t]he value of this isn’t just about the $820,000. It’s really also about the scrutiny it brings to government waste by this one example. . . . Congress is holding hearings. Agencies now are going to be treading more carefully about the way they are spending money.”

Elsewhere, Senior Legal Advisor to the Special Counsel Jason Zuckerman speaks at a panel about ethical culture in government. Zuckerman notes that “[w]e are seeing a huge increase now in people who blow the whistle” and that “[w]e are getting about 2,800 in prohibited personnel practice complaints annually; two years ago, it was about 2,200. In 2002, it was about 1,600.”

Below the Fold:

–The Senate Committee on Homeland Security and Governmental Affairs reports S. 743, the Whistleblower Protection Enhancement Act, to the Senate.

–The prosecutor in charge of the bungled Thomas Drake whistleblower prosecution is leaving the Department of Justice.

–A whistleblower who exposed GSA’s excessive conference spending testifies in front of Congress.

–Following the conference scandal at the GSA, the nonprofit watchdog Cause of Action wrote to OMB seeking a government-wide audit of agencies’ adherence to whistleblower laws. Separately, CoA is seeking from the Office of Special Counsel any whistleblower complaints it received about the GSA.

–LGBT activists plan to press the White House to sign an executive order prohibiting federal contractors from sexual orientation discrimination. Here’s a profile of one of the groups involved.

–A U.S. soldier blows the whistle on photos of troops posing with corpses in Afghanistan.

–A whistleblower from the Department of Veterans Affairs files a retaliation complaint with the Office of Special Counsel after disclosing “improper accounting measures regarding PTSD treatment of veterans.”

–Despite promising to strengthen the Federal Election Commission and “nominate members committed to enforcing our nation’s election laws,” President Obama has yet to come through on either promise.

–Julian Assange, founder of Wikileaks, launches a talk show on Russia Today.

–A State Department whistleblower alleges a high-level U.S. official engaged in sexual relations on the roof of the U.S. embassy in Iraq.

–The chief of police at UC-Davis is stepping down following a scathing report about the widely-condemned pepper spray incident there last November.

–A federal judge rules against CIA whistleblower “Ishmael Jones,” who wrote a scathing book without the agency’s permission. The whistleblower will forfeit all book profits to charity.

–NSA whistleblower William Binney discusses the agency’s billion dollar surveillance facility in Bluffdale, Utah.

–The Center for Progressive Reform looks at how OSHA became stymied by anti-regulatory causes.

–Slate looks at how America came to torture its prisoners.

–An ex-UK ambassador comes out in support of Bradley Manning.

–The mastermind behind the Watergate efforts to discredit Pentagon Papers whistleblower Daniel Ellsberg has died at the age of 80.

–Walmart covered up a massive bribery scandal in Mexico.

Send tips to info at mspbwatch dot net.

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

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

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

Next, a Senate Judiciary Committee hearing focused on the misconduct of federal prosecutors in the trial of the late Alaska Senator Ted Stevens. A $1 million, 525-page court-appointed report found that these prosecutors withheld key evidence from Stevens’ defense counsel, in violation of ethical rules. The Stevens case was dropped by Attorney General Holder in April 2009. Following the publication of the report on May 15, Senator Lisa Murkowski introduced legislation to prevent the reoccurrence of the same prosecutorial misconduct, which was met with anonymous opposition by DOJ officials. Emptywheel and the Blog of Legal Times have coverage of that opposition.

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

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

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

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

Below the Fold:

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

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

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

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

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

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

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

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

Send tips to info at mspbwatch dot net.

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

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

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

What did not take place:

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

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

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

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

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

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

Last month, and to much fanfare, the Office of Special Counsel successfully sought from the Merit Systems Protection Board “stay requests” putting a hold on adverse personnel action against two whistleblowers.

In one case, OSC sought a 45-day stay on the proposed indefinite suspension without pay of Franz Gayl, a civilian advisor to the Marines. In another case, OSC sought a stay for the termination of Paul T. Hardy, an FDA adjunct employee who objected to the improper approval of a medical device.

Legal Authority

The authority for such requests through OSC stems from 5 U.S.C. 1214(b)(1)(A)(i), which states that

The Special Counsel may request any member of the Merit Systems Protection Board to order a stay of any personnel action for 45 days if the Special Counsel determines that there are reasonable grounds to believe that the personnel action was taken, or is to be taken, as a result of a prohibited personnel practice. [Emphasis added.]

This is codified in MSPB practice regulations, specifically 5 C.F.R. 1201.134(a), which states that

Request to stay personnel action. Under 5 U.S.C. 1214(b)(1), the Special Counsel may seek to stay a personnel action if the Special Counsel determines that there are reasonable grounds to believe that the action was taken or will be taken as a result of a prohibited personnel practice [Emphasis added.]

However, due to budget constraints, OSC is not able to represent most federal whistleblowers who suffer retaliation. Because of this, whistleblowers are granted the right to pursue their own Individual Right of Action (IRA) — granting them the right to sue the retaliatory agency in the MSPB pro se or with a private attorney.

Whistleblowers on an IRA also have the right to request stays from MSPB, pursuant to 5 U.S.C. 1221(c):

(1) Any employee, former employee, or applicant for employment seeking corrective action under subsection (a) may request that the Board order a stay of the personnel action involved.

This too is codified in MSPB practice regulations, under 5 C.F.R 1209.9(a)(6)(iii)

(a) Only an appellant, his or her designated representative, or a party properly substituted under 5 CFR 1201.35 may file a stay request. The request may be in any format, and must contain the following:

(6) Evidence and/or argument showing that:

(iii) There is a substantial likelihood that the appellant will prevail on the merits of the appeal; [Emphasis added.]

This difference in language is not insignificant; it raises the evidentiary bar for whistleblowers who are not represented by OSC. Moreover, MSPB’s “substantial likelihood” language may be contrary to Congress’ intent.

Legislative History

In 1988, when Congress was debating passing the Whistleblower Protection Act, the Senate Governmental Affairs Committee Report 100-413 stated the following:

S.508 would remove the monopoly the OSC has over many cases involving employees alleging reprisal for whistleblowing. The bill would provide that whistleblowers who are presently confined to using the OSC can individually petition the MSPB if the OSC terminates its investigation of the employee’s case or if the OSC fails to commit to pursuing the case within 90 days of receiving the complaint.

Whistleblowers filing with the Board through this individual right of action may also request the Board for a stay of the pending personnel action. It is expected the Board will be fairly liberal in granting these stays, since they would be only temporary and would not significantly affect the agency’s functioning.

That being said, what is the MSPB’s record in granting stay requests?

MSPB Statistics

In practice, MSPB only grants about 2 percent of the stay requests it receives, based on a FOIA request for FY 1994-FY 1998.* (A request for more recent data is in progress.) Compounding this problem, MSPB in its annual reports to Congress lists the number of stays requested but not those granted or denied. This is in contrast to every other category of decision it makes. See, e.g., Table 1 on page 25 ofMSPB’s FY 2010 Annual Report to Congress and compare with Table 2 on page 26. Compare with other Annual Reports here.

In addition, for the time period 1994-2000, MSPB denied IRA stay requests in 140 cases in which the requestor later got relief, but granted a stay in only one case where the requestor did not later get relief. This and the 2% statistic above support the contention that MSPB is not “fairly liberal” in granting stays, as imagined by Congress.

Why is this Important?

If federal whistleblowers received stays “liberally,” by newly enacted legislation such as the Whistleblower Protection Enhancement Act currently being debated in Congress, then agencies would be motivated to settle fairly instead of the whistleblower being forced into accepting unfair and one-sided settlements, as is the case when agencies approach the negotiating table. This is largely a function of an inability to retain an attorney and finance the tens of thousands of dollars required to achieve justice in this system.

Possible Remedies

Legislation such as H.R. 3289 and S. 743, the House and Senate versions of the Whistleblower Protection Enhancement Act, should direct MSPB to use “reasonable grounds to believe” as the evidentiary standard in whistleblower stay requests made as part of an IRA appeal.

Another remedy is for MSPB, upon request or sua sponte, to change rule 5 C.F.R 1209.9(a)(6)(iii) to provide parity between OSC petitioners and IRA petitioners.

*Many thanks to Joseph Carson for providing this information.

Cross-posted at MSPB Watch.