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).
That case, which is currently on appeal, has generated the following comments:
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.
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. Read the rest of this entry →
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.
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.
In a friend-of-the-court filing dated Dec. 17, the Government Accountability Project argued that a provision in the National Defense Authorization Act of 2012 should be declared unconstitutionally vague as it might chill whistleblowers’ speech. In describing the legal landscape affecting whistleblowers’ rights, however, GAP painted an unduly narrow picture of the avenues currently available.
On page 11, counsel for GAP described the protections in the Whistleblower Protection Act as follows:
The primary legislation affecting federal whistleblowers, the Whistleblower Protection Act of 1989 (“WPA”), provides certain federal employees who report evidence of violations of law, rule or regulation including gross mismanagement, waste of funds, or substantial and specific danger to the public health or safety with some protection, including judicial review. See 5 U.S.C. § 2302(b)(8).
It noted that “employees in the intelligence community are excluded from the WPA’s protections.”
The brief then continued to state that
[W]histleblowers in the intelligence community . . . are limited to internal administrative avenues. The Intelligence Community Whistleblower Protection Act of 1998 (“ICWPA”) is toothless and creates bureaucratic procedures that makes blowing the whistle an exercise in futility. [Emphasis added.]
This particular claim is false. By law, all executive branch employees have the right to make disclosures of classified (or unclassified) information externally–to the Office of Special Counsel. See 5 U.S.C. § 1213(a)(2). The exemption of intelligence workers from protections against reprisal, found in 5 U.S.C. § 2302(a)(2)(C)(ii), does not affect their right to make disclosures to the Office of Special Counsel.
As such, the ICWPA is not the only avenue to blow the whistle in the intelligence community. Though the WPA does not provide protections against reprisal to intelligence community employees, it does guarantee confidentiality, and an unfiltered channel to the National Security Advisor and relevant intelligence committees in Congress for intelligence-related disclosures. See 5 U.S.C. §§ 1213(h), (j).
Moreover, OSC recently accepted a disclosure from a former FBI employee (FBI is one of the agencies listed in 5 U.S.C. § 2302(a)(2)(C)(ii)), further demonstrating that disclosures by intelligence community employees may be made outside the ICWPA.
Update: In a YouTube video posted Dec. 18, OSC official Bruce Fong (at the 3:31 mark) said that
If your disclosure involves information that you believe might be prohibited from public disclosure, be very careful. You must use a protected channel in order to benefit from the protections of the whistleblower laws. So, if you have information in your disclosure that includes classified information, for example, make sure you use one of the protected channels. The office of inspector general is always a protected channel. So is the Office of Special Counsel. [Emphasis added.]
In a Kafkaesque turn of events, the Office of Special Counsel is alleging that top officials in the Commerce Department Office of Inspector General threatened subordinate employees with negative performance reviews if they didn’t sign non-disclosure agreements that barred them from exercising their rights to blow the whistle and petition Congress.
The Special Counsel said in a press release Nov. 30 that “[b]ecause the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities.”
For purposes of this nonprecedential single-member decision in this ex parte proceeding, I accept OSC’s assertion that the Former Employees’ inability to report perceived wrongdoing to the appropriate authorities as a result of signing the nondisclosure agreement may constitute a “significant change in duties, responsibilities, or working conditions” under 5 U.S.C. § 2302(a)(2)(A)(xi).“
Other examples of “any other significant change in duties, responsibilities, or working conditions” may be found here.
OSC Granted Stay in Challenge to Commerce Department Gag Clauses
FOR IMMEDIATE RELEASE CONTACT: Ann O’Hanlon, (202) 254-3631; firstname.lastname@example.org
WASHINGTON, D.C./November 30, 2012 –
The Merit Systems Protection Board (MSPB) yesterday granted a stay requested by the Office of Special Counsel (OSC) prohibiting enforcement of unlawful gag clauses in settlement agreements between the Commerce Department’s Office of Inspector General (OIG) and four former employees of the OIG, each of whom was coerced into signing an agreement under threat of harm to their career prospects and future employment. The order is available here.
The agreements prohibit employees from voluntarily communicating with OSC or Congress. The employees were told that manufactured negative performance appraisals would be shared with prospective employers if the employees did not sign the nondisclosure agreements.
The MSPB’s action means that the personnel actions taken or threatened to be taken by OIG senior management must cease for 45 days, giving OSC further time to investigate the allegations. These personnel actions include the threatened communication with prospective employers and the imposition of significant changes in the employees’ working conditions.
The order concludes that an agreement restricting employees’ ability to report wrongdoing is a change in working conditions and is therefore a personnel action under the Whistleblower Protection Act.
In addition, the order applies the Lloyd-LaFollette Act, a 1912 law codifying the rights of federal employees to blow the whistle to Congress.
Because the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities.
“OSC is committed to ensuring that agencies do not interfere with whistleblowing to Congress,” said Special Counsel Carolyn Lerner. “We are pleased that the MSPB has granted the stay so that OSC can further investigate this matter.”
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.
Reflections from Obama Administration Whistleblower Appointments
September 19, 2011, Washington, D.C.
Moderator: Bea Edwards, Government Accountability Project Executive Director
Paul Igasaki, Administrative Review Board; Carolyn Lerner, Office of Special Counsel; Susan Tsui Grundmann, Merit Systems Protection Board
Bea Edwards: Okay, we’re ready to begin the first session of the afternoon, thanks everybody for being here. This is my first national whistleblower assembly as Executive Director of GAP. I’m Bea Edwards. I became the Executive Director when the previous director left to join the Office of Special Counsel with our first speaker, Carolyn Lerner.
I’d just like to say a few things as we begin. One of the speakers this morning, Tony Schaffer, spoke about the idea that in Washington, the truth is negotiable. And that is a very chilling idea. And it is a chilling idea because, if you think about it, if the truth is negotiable, then what happens when the negotiations end? What happens is that there is an official truth, which becomes an unquestionable kind of doctrine. And that happens in governments, it can happen. We know, those of us in this community know, that whistleblowers are a very effective way to challenge official truths. Those of us who are a little bit older will remember that it used to be called The Big Lie. That was the phrase during the Cold War, the idea that if you said something often enough, loudly enough, in enough places, it became accepted as the truth, even if it bore no relationship to the facts. And so there’s a long history and tradition of playing fast and loose with the truth. But whistleblowers challenge official truths and they are one of our most effective challenges.
The people who spoke this morning I think made it clear that whistleblowing is dangerous business and that we need, not only the laws that protect those whistleblowers but also the enforcement of those laws. And that brings us to our panel this afternoon because speaking with us this afternoon are those officials here in Washington who are helping to establish credibility and effectiveness in the organizations and agencies that do enforce whistleblower laws.
Our first speaker is Carolyn Lerner. She is the Special Counsel at the Office of Special Counsel. She has been a lifelong civil rights attorney and a specialist at alternative dispute resolution. She is now dedicated to establishing the credibility of the Office of Special Counsel. It is my pleasure to introduce her.
Carolyn Lerner: Thank you. Thank you very much Bea. Thank you for including me on your program here today. I’m delighted to be here. And I’m honored to be on this panel with Susan Grundmann and Paul Igasaki. Saturday will be my 100th day as Special Counsel. And, as expected, there is much to be done and a lot to learn. And I know this audience in particular wants to help get me educated. I’m really glad to be here today.
It’s no secret that the Office of Special Counsel has been through some tough times. I expect that many of you who are here have some doubts about whether things will be any different with new leadership. So, in my brief remarks today, I want to tell you a little bit about my background, the perspective that I bring to the Office of Special Counsel, and then I’m going to share with you some of the actions that we’ve taken already and goals for my term.
Before I was appointed by President Obama, I was, as Bea mentioned, an employment lawyer for twenty years. The last fourteen of which I was a partner at the law firm that I helped to found, Heller, Huron, Chertkof & Salzman. The firm primarily represents individuals, both federal workers and private sector employees, in employment discrimination and civil rights cases. Before leaving my firm, one of my most recent and satisfying cases involved a translator for the Voice of America, the overseas U.S. radio station that the U.S. government runs. The translator was also part of a rock group that made a music video opposing the Iraq war. For this, she was fired. We took the case to court, alleging First Amendment violations against the government. And, as many of you probably know, cases against the government are tough. Indeed, in our case, the government challenged our right to be in court and tried to get the case dismissed using qualified immunity as their defense. But after years of litigation, the U.S. District Court, and then the D.C. Circuit Court of Appeals, ruled in our favor.
Through working on these types of cases, I am well aware of the effect that government actions can have on individuals. And I’m familiar with the frustrations and limits of litigation. Perhaps, as a result, I’ve developed a strong interest in alternative dispute resolution. I’ve taught mediation at George Washington University Law School, I’ve been a mediator for the U.S. District Court and the EEOC, and as an advocate, I’ve use mediation frequently when I represented private individuals. It is this problem solving approach that I bring to the Office of Special Counsel.
Before talking about my goals for the agency, I want to introduce my team that will help me implement these goals. I asked a number of people who are well-known to this community to come join me and the agency and I’m thrilled that they agreed. I want to introduce our Deputy Director, Mark Cohen. Mark, would you stand?
Mark, as Bea mentioned, was the Executive Director at GAP before he came to the OSC. Jason Zuckerman, would you stand?
Jason is our senior legal counsel. He was a partner at the law firm of – it’s called the Employment Law Group. He is a well-known expert in whistleblower law. And finally, our Director of Policy and Congressional Affairs, Adam Miles. Adam, would you stand?
Adam worked at GAP before he went to the House Oversight Committee. He was also instrumental as many of you may know in drafting the Whistleblower Protection Enhancement Act. I am just delighted that Mark, Jason, and Adam are with me.
In our first three months at the agency, and it really has only been three months, Mark, Jason, and I have been spending a lot of time listening to both the dedicated career staff at the agency and meeting with a wide range of stakeholders. We’ve heard some terrific suggestions and we’re already taking some concrete steps to implement many of them.
I want to share with you some of our priorities. As you know, the agency has several important roles, but it has always had a special mandate to protect government whistleblowers. And at a time when our country is in a fiscal crisis, this role has never been more important. There is no question that government workers are in the best position to waste, fraud, and unsafe practices.
We recently took a look at our disclosure cases, and over the past two years alone, we calculated that whistleblowers who had come to our agency had saved the government about $8 million dollars. This 8 million doesn’t even include the savings from disclosures about potential threats to lives, health, and safety that could have resulted in catastrophic losses of lives and money, but for the disclosures. And though these employees perform an important service, studies have shown that about 80% of whistleblowers in the private sector regretted having come forward because of the negative consequences that they’ve suffered. This is also consistent with the experience that we’ve had at the Office of Special Counsel, where about 80% of our whistleblowers also expressed some concerns about retaliation after having come forward.
Creating an environment within government where open dialogue about problems is accepted an indeed encouraged is one of my primary goals as Special Counsel. And though it’s only been three months, I think we’re already making a bit of a change. We’ve already increased the number of OSC employees who work on whistleblower reprisal complaints. This week, in fact, we’re starting the retaliation pilot project at the agency that’s going to focus exclusively on retaliation cases. Several attorneys in this project are being detailed from other units at the agency. This commitment of additional resources should reduce the backlog and get relief to whistleblowers more quickly.
We must also do a better job communicating. People who come to our agency should that they have had a full and fair opportunity to be heard. To that end, we’re working with our Complaints Examining Unit to communicate more with complainants at the start of the process, and when a case is referred to the Investigation and Prosecution Division for investigation, we will contact complainants early on in the process and ask for suggestions.
Having represented employees, I know how frustrating it is to have to wait for an agency to complete its investigation. Especially when an employee is out of work or suffering ongoing retaliation or harassment. One action that we can take is to exercise our authority to seek stays from the MSPB. Indeed, one of my first acts as Special Counsels was to obtain a stay in the firing of a whistleblower, so we would have an opportunity to investigate the matter before the agency took action against the employee.
I also know from experience about the benefits of early mediation. I strongly believe that mediation can help both complainants and agencies obtain quicker and better results. This will also benefit the OSC. Having cases settle will allow us to use our very limited resources to investigate and litigate other cases. So, I’m working to expand our capacity and capability to mediate more cases so we can offer this as an option to more complainants at the beginning of an investigation.
We’re also taking action to make the OSC more accessible. Thirty years after it was created, many federal employees are still unaware of this agency. I was amazed when I was nominated into this position how many people would ask me, “What is the OSC?” They also wanted to ask me “Why are you interested in taking this job?” but that’s another story. I am determined to improve our outreach to federal employees and to make the agency more accessible and well-known.
One concrete step that we will take is revamping our website. We want to improve it to make it a better resource for federal employees both about their rights and to make filing a complaint easier. Recently, both GAP and POGO, very generously, provided helpful recommendations for improvements to the website. We’re grateful for their work on this and we hope to implement many of their suggestions.
In closing, I want to reiterate to you: my mission at OSC is to make this public service agency as robust and vibrant as it can be. We will listen, we will be timely, and we will resolve cases with justice. But there is a lot to do, and we know we can’t do it alone. So I’m asking you of some things, too. Please work with us: share your thoughts and ideas for how we can move the agency forward together. And, finally, please be patient. All of this is going to take some time.
Finally, thank you for what you do, and what you’ve done to advance the same, larger cause. I look forward to working with all of you.
Bea Edwards: And our second speaker will be Susan Grundmann, she is the chair of the Merit Systems Protection Board. Civil liberties and labor rights attorney also. She’s also served as general counsel for the National Federation of Federal Employees. Under Chairman Grundmann, MSPB provided justice for Teresa Chambers, who is a very important member of our community. Ms. Grundmann.
Susan Grundmann: Thank you Bea and Tom Devine and GAP for this gracious opportunity to meet with you and speak with you about our mission and our values, our goals and our challenges.
So let’s talk a little bit about MSPB and some changes. Our focus as you’ve seen is probably a little different than the last board. Whereas prior to 2009, the focus had been on national security, and as a result, processing cases much faster, particularly through legislative reforms at DoD and DHS.
Now this board has viewed things a little bit differently. And we view that it is time to return back to basics and refocusing upon those principles upon which we were founded under the Civil Service Reform Act, and of course, they are the merit principles, they are the nine rules that are the foundation of federal employment. They are what makes civil service civil. Including, in particular, protection for reprisal for whistleblowing. And this principle is important for a number of reasons. Because it is key, as Carolyn mentioned, to good government. Preventing fraud, waste, and abuse, preventing violations of law, rule and regulation, protecting individuals from a significant and substantial danger to their health and well-being.
So we have, first of all, recommitted to these principles in our strategic plan, and our strategic plan is not just to protect the merit principles but to promote a workforce that is free of prohibited personnel practices, including protection from reprisal for whistleblowing.
Now this plan was developed in conjunction with my stakeholders, one of which is GAP, and has consistently been a great voice in this community.
We recommit to these principles daily, through our adjudication functions, our statutory functions. The first being that we’ve issued a number of precedential decisions ordering corrective action for whistleblowers and remanded cases back for full merits hearing to the AJs. In fact, we’ve issued one last week, King v. Army.
In our second statutory mission, which is to issue reports to the President and the Congress on the health and well-being of the civil service, at the end of last year we’ve issued a whistleblower report wherein we noted that Congress has continually attempted to address these issues and we urged Congress to be aware of the difficulties that a potential whistleblower would encounter when navigating this particularly difficult area of the law.
Now coming up this year we will be issuing an additional report which, internally, we refer to as whistleblower Number Two and it highlights a series of best practices that agencies should follow in building an environment where federal employees can come forward without fear of reprisal.
Finally, we refocused, not just on prevention, but promotion, through education, of the meaning and the value and the spirit of these principles. As some of you may know, we feature a merit principle every month on our website. This month, coincidentally, it is protection from reprisal for whistleblowing. [inaudible]
We also, like Carolyn said, embarked on a series of aggressive outreach, not just to employee groups and union groups who understand these types of issues but to management groups and to good government folks and to affinity groups to educate them as well.
Finally, with the advent of social media, we Tweet these principles repeatedly throughout the year. And we’ve added a new gadget if you will — we have a new mobile app which will allow you to download our cases, our studies, and our other public media wherever you go.
[inaudible] the power of training in education. But we do our limitations. And first in the area of adjudication. We are enforcing the law. We are not writing the law. We are bound by the Whistleblower Protection Act and its letter. And we’re also bound by our case precedent from our reviewing court, that being the Federal Circuit, the key case being Hoffman v. OPM. And let me give a shout out to my guy here, this is Jim Issman, he is our general counsel. He argued Hoffman vs. OPM. He argued on behalf of Hoffman.
But let me mention what Hoffman means. It brings to light some of the limitations of the Whistleblower Protection Act, primarily two of them: that disclosures are not protected if they’re made within an employee’s chain of command, which is the natural place that an employee would go to with an experienced wrongdoing. You go to your supervisor first. The other area that’s highlighted by this case is that disclosures are not protected if they are made within the employee’s scope of duties, which is, again, the natural environment that employees would be exposed to wrongdoing. Now this is different than Chief Judge Igasaki’s area of the law, so he’s got some other protections that the Whistleblower Protection Act does not [inaudible].
The second area is that our, well while we can educate and promote these narrow principles, we don’t have the authority unilaterally to change policy, nor do we have the authority unilaterally to change culture, which leads me to this upcoming report, which will urge agencies to create a culture whereby disclosure of wrongdoing is not okay, but is actually going to be encouraged.
Now this report finds that the fear of reprisal and actual reprisal is still there at the same percentage as it was in 1992, which is a little bit daunting, because if you think about it, back in 1992 there was no No FEAR Act yet. So even in the wake of the No FEAR Act, people are still experiencing these same types of issues.
So, what we’re going to urge first and foremost is that agencies assure their workforce that management will not be requiring absolute proof of wrongdoing. That a mere reasonable suspicion is going to be enough. Even minor wrongdoing, this is a quote from the report, is still wrongdoing.
When individuals bring potential wrongdoing to management’s attention, we urge agencies to give that report serious consideration, including referring that report to an impartial individual or office if necessary, like the IG. And even after investigation, if the charges are not verified, management should tell the employee that the investigation was taken seriously and that individual did right by coming forward. So this is a lot to look forward to in this report. I commend it to you, it’ll be out around Halloween, no timing, the timing is not suspect here, but I leave it to you to embrace and I encourage you to take it forward to support your position. Thank you very much.
Last month, and to muchfanfare, 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.
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.]
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.
(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.
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?
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.
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.
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