Dissenters’ Digest takes a look back at news stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.dissentersdigest.com.

Chilling Effect: Acting ATF Director B. Todd Jones spoke in an internal video to ATF employees where he appeared to admonish his subordinates not to blow the whistle outside the chain of command, lest they face “consequences.” He did not mention they have the right to do so under numerous laws, including the Whistleblower Protection Act of 1989 and the Lloyd-La Follette Law of 1912, which allows civil servants to communicate with Congress without prior restraint. Sen. Chuck Grassley and Rep. Darrell Issa are investigating.

If Nixon had Keylogging Software: The New York Times reported last week that the Food and Drug Administration’s suspected surveillance of whistleblowers is bigger than previously believed, and includes tracking of sources outside the agency.

The FDA reportedly has developed an “enemies list” to push back against negative coverage of its oft-criticized review of drugs and medical devices. The list includes not only scientists employed within the FDA, but also congressmen, journalists, and outside medical researchers. These efforts have resulted in the collection of some 80,000 pages of documents that include private emails to Congress, draft whistleblower retaliation complaints, and communications with journalists and attorneys.

Senator Chuck Grassley took the lead in expressing outrage against what he previously called FDA’s “Gestapo” tactics.

Grassley’s review includes a demand for the legal memo authorizing the spying campaign, which began in mid-2010. Expect the focus to shift to FDA’s past and current chief counsels.

What’s In Your Wallet?: The Consumer Finance Protection Bureau announced its first enforcement action: a $210 million settlement with Capital One for deceptive marketing practices.

The allegations include misleading consumers about the benefits of Capital One products, which were not always depicted as optional. Some consumers were knowingly sold products they could not utilize, and others succumbed to “high-pressure tactics” to buy add-ons like payment protection and credit monitoring. In some instances, Capital One enrolled consumers in products without their consent, or led them to believe there was no additional cost.

Capital One will fully refund its customers at a cost of $140 million and pay another $25 million to the CFPB and another $35 million to the Office of the Comptroller of the Currency, totaling $210 million.

In other news, in-house corporate attorneys are concerned about CFPB enforcement actions.

Full disclosure: I have a Capital One card in my wallet.

Below the Fold:

–An environmental watchdog takes a look at Governor Romney’s anti-civil service track record in Massachusetts.

–24 percent of Wall Street executives believe they need to break the law to succeed; 16 percent would commit insider trading if they could get away with it, according to a survey done by the whistleblower law firm Labaton Sucharow.

–The Justice Department and the FBI are reviewing thousands of criminal cases to determine whether any defendants were wrongly convicted because of flawed forensic evidence. The whistleblower who first brought this to light almost 20 years ago will be monitoring progress. Legislation has already been introduced.

–A Navy whistleblower is now in charge of investigating whistleblower cases in the Defense Department.

–Penn State officials knew.

–A federal district court judge blew the whistle, in a way, about coercive plea bargain tactics that demand waiver of appeal rights in lieu of going to prison on unreasonably heavier charges.

–Some news outlets let political operatives approve quotes before they appear in print. Why not also let them write the articles?

–FDA isn’t the only agency snooping on its employees.

–Treasury officials, unauthorized gifts, prostitutes, and golf.

–The American Federation of Government Employees reached an agreement with the TSA to provide TSA officers personnel appeal rights at the Merit Systems Protection Board.

–The Equal Employment Opportunity Commission approved an 18-year-long race discrimination class action lawsuit brought by U.S. Marshals against the U.S. Marshal Service.

–The White House issued a memo to strengthen the rights of service members who return home and seek to reintegrate into the working force.

Send tips to dissent@dissentersdigest.com.

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.

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In 2003, Federal Air Marshal Robert MacLean blew the whistle on a TSA plan to cut back air marshals for long distance flights – the very flights taken by the 9/11 terrorists. TSA notified MacLean and the other marshals via unsecured text message. The reason for the cutback was so TSA could save money on hotels for its marshals, at the same time it was handing out bonuses to TSA senior management.

MacLean went to his supervisor and to the Inspector General but neither did anything. Eventually, he went to an MSNBC reporter. As a result, Congress became outraged and the TSA plan was scrapped.

MacLean’s disclosure eventually got him fired, but not before TSA retroactively marked the unsecured text message “Sensitive Security Information,” which could then justify his firing.

After going through rounds of litigation, at both the federal judiciary and an administrative kangaroo court that is the Merit Systems Protection Board (MSPB), MacLean’s case is now at the Federal Circuit Court of Appeals.

Importantly, in 2011, the Obama-appointed MSPB court upheld a Bush-appointed MSPB decision from 2009 finding against MacLean and justifying his termination. To do this, both courts had to ignore clear legislative text and congressional intent.

(As an aside, the Obama-appointed MSPB Chair, Susan Tsui Grundmann, allegedly apologized to MacLean’s attorney at an informal social gathering for coming up with the decision against his client, saying that the Board worked for months to come up with a way around the 2009 decision, to no avail. However, a cursory look at the 2011 decision reveals that it was probably written over the course of a weekend, inexcusably ratifying politically-motivated, whistleblower-hostile arguments that have no bearing to the law. If there were ever an argument that the MSPB is independent from the administration in name only, MacLean’s case is it.)

In any event, MacLean is fighting this decision on appeal. One of the points made by MSPB in the 2011 decision is that MacLean’s disclosures would have been protected if he went to the Office of Special Counsel. However, he did not know of OSC at the time he blew the whistle, nor was DHS educating its employees about OSC, and it’s doubtful whether OSC was even willing or able to receive any sensitive, secure disclosures.

Therefore, MacLean was in no position to go to OSC. If so, why should he be punished for acting out of conscience and possibly preventing another 9/11, when TSA and OSC provided him with no means of disclosing information, and years later a partisan court rubberstamps retaliation by imposing on him a requirement he couldn’t meet at the time? Aren’t we second-guessing the brave men and women who are on the front-lines of homeland defense, to our collective detriment?

This is the essence of a proposed amicus brief to bring to the attention of the Federal Circuit judges the Catch 22 described above. To do this, I made a FOIA request to OSC to see if it was in a position to accept disclosures prohibited by law – the kind of disclosure MacLean is alleged to have made. Time is of the essence though, as the brief has to be submitted by March 23.

Unfortunately, OSC is refusing to grant a request for expedited processing. There is one possibility, though, as under the law an expedited request may be made by “a person primarily engaged in disseminating information, an urgency exists to inform the public about an actual or alleged federal government activity.” (This blog likely does not qualify, as OSC defines “a person primarily engaged in disseminating information” as “a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation.” As a part-time hobby, MSPB Watch likely does not qualify.)

Which leaves the good government groups who support MacLean – the Government Accountability Project and the Project on Government Oversight – as the only ones who can come through for him.

The question remains whether they will work to ensure that OSC provides the relevant information needed to file the amicus brief.

It bears mentioning that, in 2008 and 2009, GAP relied on its work on behalf of MacLean to justify its tax-exempt status. On the other hand, GAP’s Legal Director recently stated that “Everybody knows that Title 5 [executive branch] employees can make classified disclosures to OSC.” As I stated in that post, this is contradicted by MacLean’s actions (as well as that of another GAP client, Thomas Drake).

Given the Federal Circuit’s track record on appeals from MSPB, one would hope that GAP would suborn its political agenda and do everything it reasonably can for its client, as part of its obligations to zealously represent him.