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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.

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 

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.

Dissenters’ Digest for September 2012

1:50 pm in Uncategorized by MSPB Watch

Falling Whistles

(Photo: JNW Photography/flickr)

Dissenters’ Digest takes a look at last month’s top stories covering whistleblowers, watchdogs, and government accountability.

National Security Creep. The month began with a setback for federal employees with a ruling by the Federal Circuit that allows agencies to designate employees’ positions as “non-critical sensitive” and thereby strip away any civil service protections.

Politicizing the Workplace. A Washington watchdog shed light on potential Hatch Act violations by FAA officials who instructed employees that voting for the GOP–and the attendant budget cuts that that would supposedly involve–might cost them their jobs.

$104 Million. UBS whistleblower Bradley Birkenfeld received a $104 million IRS award, the largest ever, for his help in bringing many tax cheats to justice. Despite his actions, Birkenfeld spent 40 months in jail. However that sentence may have been based on false information.

House Passes WPEA. The House of Representatives passed the Whistleblower Protection Enhancement Act by unanimous consent. The Senate is due to consider the measure after the November elections. The measure passed by the House will not protect national security whistleblowersprovide jury trials, or protect whistleblowers terminated under the Bush and Obama administrations. These provisions were under serious consideration, and some of them were even passed by the Senate in May, but lack of fearlesstransparent advocacy by the lead lobbyists is to blame for a bill that falls short of what’s needed. Further, efforts to raise awareness among the federal whistleblower community about the lobbyists’ questionable tactics largely fell on deaf ears, raising questions about the extent to which the liberal good government establishment has “cornered the market” by co-opting its victims and suppressing dissent.

Below the Fold: