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.

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

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

What is Summary Judgment?

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

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

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

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

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

What is the MSPB?

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

Why the MSPB Should Not Possess Summary Judgment Powers

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

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

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

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

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

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

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

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

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

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.

Congress Troubled by Suspicious Death of Russian Whistleblower: Congress seeks to use legislative authority to punish Russian officials allegedly involved in the suspicious 2009 death of Russian whistle-blower and lawyer Sergei Magnitsky, according to the The Hill. NPR reports that the bill in question could complicate US-Russian relations, jeopardizing Hillary Clinton’s 2009 “reset” with the Russian government. However, a person interviewed by NPR said a “reset … with Russian society” is required instead. The story of Magnitsky’s death has been chronicled in an award-winning documentary. Elsewhere, Firedoglake takes on the Congress for selective concern about civil and human rights.

Below the Fold:

–A whistleblower conference is scheduled for May 20-22 in Washington, D.C.

–A recently-unearthed FAA powerpoint presentation says the FAA “must evolve our safety oversight system and embrace the view that industry — not the regulator — is responsible for ensuring safety,” despite decades-old law placing safety regulation as the FAA’s highest priority.

–The first criminal charges are filed in the Deepwater Horizon gulf oil spill.

–Bradley Manning’s trial continues to be shrouded in secrecy.

–The Non-Federal Employee Whistleblower Protection Act reports out of a Senate committee. The bill would expand whistleblower protections for federal contractors.

–The House of Representatives passes the DATA Act, which would create a five-member commission to oversee federal spending.

–Vermont becomes the third state to call for a constitutional amendment overturning Citizens United v. FEC.

–Green Party presidential candidate Jill Stein vows to pardon Bradley Manning as president.

–A Countrywide whistleblower laments the lack of accountability and ethics in the financial sector.

–A Missouri bill to restrict common law whistleblowing protections is passed in the General Assembly. The bill is sponsored by Rep. Kevin Elmer, who has a record of sponsoring discriminatory and birther legislation.

–The Securities and Exchange Commission was accused this week of blowing a whistleblower’s cover. The SEC responds.

–The summary judgment provision in the Whistleblower Protection Enhancement Act of 2012 comes under scrutiny.

–A federal employment attorney advises employees to violate the law when ordered to by superiors (notwithstanding their conscience or oath to the Constitution).

–The Make It Safe Campaign will hold a general membership meeting this Tuesday, May 1.

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