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A Month in Merit Protection: Recapping Civil Service News for October 2014

A Month in Merit Protection is a running feature on MSPB Watch, recapping news, developments, and notable cases at the U.S. Merit Systems Protection Board and the U.S. Office of Special Counsel. Send tips and items for editorial consideration to dpardo [at] mspbwatch [dot] org.

480px-United_States_Department_of_the_Army_Seal.svg

Seal of the U.S. Department of the Army

Notable Decisions and Rulings

  • Continuing with a line of cases dealing with retroactivity of the Whistleblower Protection Enhancement Act, the MSPB “decline[d] to apply the new IRA appeal right in section 101(b)(1)(A) of the WPEA as it pertains to the PPPs described at 5 U.S.C. § 2302(b)(9)(A)(i) and (b)(9)(C) [retroactively] because doing so would increase a party’s liability for past conduct as compared to pre-WPEA liability.” Colbert v. Dep’t of Veterans Affairs, 2014 MSPB 80 (Oct. 16, 2014)
  • In a precedential decision reversing the MSPB’s decision upholding the removal of a CBP officer, the U.S. Court of Appeals for the Federal Circuit held that the officer, who inadvertently sent an email containing social security numbers to a congressional staffer but who managed to have the staffer delete the email without reading it, did not commit a privacy act violation necessarily warranting his removal. Wrocklage v. Dep’t of Homeland Security, 2013-3159 (Fed. Cir. Oct. 21, 2014)

OSC Filings and Press Releases

  • OSC issued a press release announcing that it obtained a stay request with the MSPB temporarily stopping the proposed removal of an Army police officer who alleged that fellow officers were receiving unearned pay. (Oct. 9/10, 2014)
  • OSC issued a press release announcing that, in response to its investigation, the Department of the Army modified a regulation that could disqualify civilian employees from holding sensitive positions based on their sexual orientation, in violation of 5 U.S.C. 2302(b)(10), which is discrimination based on off-duty conduct that does not affect job performance. (Oct. 16, 2014)
  • OSC issued a press release announcing that the Army engaged in gender identity discrimination against a civilian quality assurance specialist who underwent gender transition and endured hostility as a result. OSC released a redacted prohibited personnel practice report in conjunction with its announcement. (Oct. 23, 2014)
  • OSC issued a press release announcing that it filed a complaint for disciplinary action with the MSPB against an Army Corps of Engineers employee who ran for partisan office in Arkansas while holding federal office, in violation of the Hatch Act. (Oct. 24, 2014)

Other Items of Note

  • The Department of Justice forwarded a report to Senators Grassley and Wyden on proposed modifications to the FBI’s whistleblower protections. (Oct. 17 2014)
  • MSPB adopted as final an interim rule that adapted the Board’s regulations to VA SES removal proceedings. (Oct. 22, 2014)
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OSC Takes Notable Steps Toward Greater Transparency

OSC's Official Seal

OSC’s Official Seal

A new report by the U.S. Office of Special Counsel on transparency initiatives merits a standalone mention.

In OSC’s words, the agency “seeks to leverage its limited resources to create a more transparent and accountable federal workplace.” The effort is detailed in Open Government Plan for the U.S. Office of Special Counsel, issued earlier this month.

The report “describes many of OSC’s current efforts and initiatives to promote openness within our agency and the federal government.” It goes on to say that it “provides a foundation for dialogue around new and better ways for OSC to serve federal employees and the public.” Finally, OSC affirms that it “strives to help agencies create an environment that embraces whistleblowers and responds effectively to employee disclosures.”

Does the report describe a credible effort at achieving these goals? Let’s take a closer look.

Some of the initiatives taken by OSC include the re-launch of its website; collaboration with Harvard’s Negotiation and Mediation Clinical Program, which provided suggestions for how OSC can improve its alternative dispute resolution program; collaboration with federal agencies via the WPEA-mandated Inspector General whistleblower ombudsman program; a memorandum of understanding with the EEOC concerning enforcement of anti-discrimination issues; collaboration with non-profit stakeholders to solicit input; and certification of agencies’ efforts to educate their workforce on whistleblower rights.

Notable reforms include the posting of redacted reports on prohibited personnel practices within the federal government–the first of which, released last month, relates to addressing LGBT discrimination in the Army.

In news close to this author’s heart, OSC is transitioning to a new electronic system for processing FOIA requests, called FOIAXpress, which it says will increase its response rate and reduce delays and backlogs. The new system will allow the public to submit FOIA requests electronically and track progress and receive responsive records via a web portal. And starting in FY 2015, OSC will begin making FOIA request logs available on its website.

Additional reforms also include lengthening the time OSC holds onto official records; seeking approval for a new disposition schedule from NARA; and formalizing records disposition and destruction, including separately preserving “permanent electronic records” of the Special Counsel and the Principal Deputy Special Counsel.

All told, these reforms are a positive step to increase public confidence in OSC and its efforts to create a welcoming environment for whistleblowers and conscientious federal employees.

Full disclosure: OSC is currently investigating this author’s PPP complaint against the Federal Aviation Administration.

(H/T Nextgov.com)

Help Wanted: OSC, MSPB Post High-Level Job Announcements

UnclesamwantsyouNew at USAJobs: The U.S. Office of Special Counsel is seeking an Associate Special Counsel to primarily oversee the Complaints Examining Unit, and the U.S. Merit Systems Protection Board is seeking a Regional Director (presumably a Chief Administrative Judge) to lead the Chicago Regional Office. Both announcement periods end in late November.

A Month in Merit Protection: Recapping Civil Service News for September 2014

A Month in Merit Protection is a running feature on MSPB Watch, recapping news, developments, and notable cases at the U.S. Merit Systems Protection Board and the U.S. Office of Special Counsel. Send tips and items for editorial consideration to dpardo [at] mspbwatch [dot] org.

U.S. Capitol Dome | By Architect of the Capitol, Wikimedia Commons

U.S. Capitol Dome | By Architect of the Capitol, Wikimedia Commons

Notable Decisions and Rulings

  • In a non-precedential decision, MSPB Chair Grundmann and Member Robbins exchanged non-binding and opposing views concerning the scope of the First Amendment in a claim of non-whistleblower retaliation brought by the Office of Special Counsel. Special Counsel ex rel. Cefalu v. Dep’t of JusticeCB-1214-13-0187-T-1 (Sept. 8, 2014) (coverage)
  • A Special Panel convened to resolve disagreements between the MSPB and EEOC held oral arguments (video) to determine whether time and attendance are “essential functions” of a job position for the purposes of a reasonable accommodation under disability law. The Panel’s decision affirmed the EEOC’s interpretation, finding that time and attendance requirements must yield to the employee’s disability. Alvara v. Dep’t of Homeland Security, 2014 MSPB 77 (Special Panel; Sept. 29, 2014)

Reports, Studies, and Newsletters

OSC Filings and Disclosures

Other Items of Note

  • The House Oversight and Government Reform Committee held a hearing titled “Examining the Administration’s Treatment of Whistleblowers.” Special Counsel Lerner and MSPB Chairman Grundmann testified. (Sept. 9, 2014)
  • The MSPB held a Sunshine Act meeting to discuss research topics for its special studies function. (Sept. 16, 2014)
  • Following publicized calls by the White House to increase OSC’s budget to deal with fallout from the Department of Veterans Affairs backlog scandal, Congress appropriated OSC $22.9 million for Fiscal Year 2015. (Sept. 19, 2014)
  • The President signed the All Circuit Review Extension Act of 2014, extending the Whistleblower Protection Enhancement Act’s all-circuit review pilot program by an additional three years. Now, appellants with Individual Right of Action cases may appeal final decisions by the Board to any applicable federal appellate court, not merely the Federal Circuit, until December 27, 2017. (Sept. 26, 2014)

A Month in Merit Protection: Recapping Civil Service News for August 2014

A Month in Merit Protection is a running feature on MSPB Watch, recapping news, developments, and notable cases at the U.S. Merit Systems Protection Board and the U.S. Office of Special Counsel. Send tips and items for editorial consideration to dpardo [at] mspbwatch [dot] org. Disclaimer: the following is not legal advice.

Iwo Jima Memorial | By Francisco Diez, via Wikimedia Commons

Iwo Jima Memorial | By Francisco Diez, via Wikimedia Commons

Notable Decisions and Rulings

  • The FBI is an agency specifically excluded from USERRA jurisdiction before the Board, whether the employee’s claim pertains to reemployment or discrimination. Erlendson v. Dep’t of Justice, 2014 MSPB 61 (Aug. 4, 2014)
  • Finding that jurisdiction now exists over claims of reprisal for assisting a coworker in a grievance proceeding in an Individual Right of Action, the Board applied the knowledge/timing contributing-factor test from whistleblower reprisal cases to a case involving protected activity. The Board also held that, at the jurisdictional stage, an administrative judge “may not weigh evidence and resolve conflicting assertions of the parties, and the agency’s evidence may not be dispositive.” Carney v. Dep’t of Veterans Affairs, 2014 MSPB 62 (Aug. 6, 2014)
  • In a mixed case on appeal from the Equal Employment Opportunity Commission, the Board disagreed with the EEOC’s interpretation of a civil service law, rule, or regulation, finding that the EEOC’s decision is “so unreasonable that it amounts to a violation of civil service law, rule, or regulation,” thus declining to defer to it. The case then headed to a “special panel” composed of EEOC and MSPB members and a former NLRB member. Alvara v. Dep’t of Homeland Security, 2014 MSPB 63 (Aug. 13, 2014)

Reports, Studies, and Newsletters

OSC Filings and Disclosures

  • Special Counsel Lerner referred to the President findings on whistleblower disclosures from a former psychiatrist at the Department of Veterans Affairs in Brockton, Massachusetts, who alleged that VA employees “failed to provide appropriate medical and mental health care to individuals residing in the long-term car units.” Agency reports and the whistleblower’s comments are available here. (Aug. 7, 2014)
  • OSC issued a press release announcing that it filed an amicus curiae brief with the U.S. Court of Appeals for the Federal Circuit in Colin Clarke v. Dep’t of Veterans Affairs, arguing that the MSPB’s decision in that case created “significant procedural hurdles for federal employees alleging whistleblower retaliation.” Mr. Clarke’s opening brief is available here. (Aug. 14, 2014)
  • OSC obtained a stay request on behalf of a supervisory human resources specialist at the Small Business Administration who alleged favoritism in hiring and other manipulations of HR processes. (Aug. 20, 2014)
  • OSC issued a press release announcing that it obtained a stay request on behalf of a USDA whistleblower who objected to “inhumane conditions in a hog slaughterhouse.” (Aug. 21, 2014)

Other Items of Note

  • MSPB announced a Sunshine Act meeting for mid-September to consider suggested topics for its special studies function. (Aug. 14, 2014)
  • MSPB issued a corrected interim final rule implementing the due process provisions of the Veterans Access, Choice, and Accountability Act of 2014. A break-down of the rule is available here. (Aug. 19, 21, 2014)
  • The House Science Committee sent another letter to Department of Commerce Inspector General Todd Zinser, expressing concerns that his office has been trying to identify and punish subordinates who may have contacted OSC or committee staffers who are investigating the IG’s ongoing misconduct. (Aug. 26, 2014)
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Can the U.S. Constitution Protect Against a Retaliatory Termination?

First Amendment of the U.S. Constitution | By dbking, via Wikimedia Commons

That’s the question, more or less, at the heart of an interesting debate between two merit board members in a case involving a criminal investigator agent removed for his subpoenaed testimony.

The U.S. Office of Special Counsel filed a complaint before the Merit Systems Protection Board to reverse the removal of Vincent Cefalu, a Criminal Investigator with the Department of Justice. The DOJ has accused him of lack of candor while testifying under subpoena during a criminal suppression hearing.

The OSC is claiming that the DOJ committed a prohibited personnel practice under 5 U.S.C. § 2302(b)(12) by violating Mr. Cefalu’s rights under the First Amendment to the U.S. Constitution via the removal. (Mr. Cefalu’s speech does not seem to implicate whistleblower protection in this opinion.)

The provision at issue, 5 U.S.C. § 2302(b)(12), states that it is a prohibited personnel practice for an agency to “take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.”

To invoke 5 U.S.C. § 2302(b)(12), the relevant party needs to follow a two-step process: (1) finding that the personnel action violates a law, and (2) that the law implements or directly concerns a merit system principle.

The relevant merit system principle here is 5 U.S.C. § 2301(b)(2):

All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.

Board precedent says that the merit system principles are not “self-executing,” i.e., that it is not the violation of the merit system principles themselves that gives rise to a prohibited personnel practice, but a law that “implements” or “directly concerns” such principles.

At issue in this case is whether the First Amendment is such a law.

That’s where the Board members diverged. Vice Chair Anne Wagner recused herself, and Chairman Susan Grundmann and Member Mark Robbins diverged, leaving no precedential opinion on the matter. Ms. Grundmann opined that the First Amendment is a “law” that “directly concerns” the merit system principles, whereas Mr. Robbins disagreed. Each opinion analyzed Board precedent.

A rather high-level point of contention was about the role of the Constitution’s protections and purpose as they relate to the federal civil service.

Mr. Robbins claimed that to “reduce the Constitution to the nature of a codified statute … for enforcement of a merit system principle as a prohibited personnel practice (PPP), demeans the true nature of our Constitution.”

“As the Preamble states, it was established ‘to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty[.]’ Notably missing here is any mention of enforcing a merit system principle as a PPP,” he said.

Nevertheless, Mr. Robbins conceded the “close-call nature of the arguments presented by both the agency and OSC.”

For her part, Ms. Grundmann argued that “I simply disagree with my colleague that viewing the Constitution as ‘directly concerning’ not only the bedrock principles of equal treatment and fairness, but, specifically, the principle that the federal government administer its personnel system with due regard for the constitutional rights of its employees, diminishes the import of that document.”

Another point of dispute–one relevant to tenured federal employees and their attorneys–is whether future litigants may use the Constitution as an affirmative defense against discrimination or retaliation. Here, too, the authors diverged.

Mr. Robbins argued that “[t]he Board is potentially inviting every adverse action to be turned into a consideration and determination of an appellant’s constitutional rights, either by way of an OSC investigation, or as an affirmative defense raised in an appeal to the Board. Even a quick review of the Constitution raises some intriguing possibilities for creative constitutionally-based affirmative defenses.”

Ms. Grundmann contested this point, stating simply that she does not “see the ‘intriguing possibilities’ that would ensue from recognizing the Board’s statutory authority—whether in adjudicating chapter 75 affirmative defenses or remedying PPPs—to consider whether an agency action was taken in violation of an employee’s First Amendment rights.”

The case was remanded for further adjudication, leaving the precise question of the Constitution’s role in the federal civil service unresolved for now.

DownloadSpecial Counsel ex rel. Cefalu v. Dep’t of Justice (Sept. 8, 2014)

A Month in Merit Protection: Recapping Civil Service News for July 2014

A Month in Merit Protection is a running feature on MSPB Watch, recapping news, developments, and notable cases at the U.S. Merit Systems Protection Board and the U.S. Office of Special Counsel. Send tips and items for editorial consideration to dpardo [at] mspbwatch [dot] org. Disclaimer: the following is not legal advice.

Lady Justice | Source: ChvhLR10, via Wikimedia Commons

Notable Decisions and Rulings

  • Under the procedural due process analysis, the Board will flexibly weigh the cost of additional agency procedures to guard against the risk of erroneous deprivation of an appellant’s private interests. In a furlough action, the risk of erroneous deprivation of 6 days of work does not warrant presenting a response to the furlough action outside of established mechanisms used to process thousands of cases. Vice Chair Wagner dissented. Gajdos v. Dep’t of the Army, 2014 MSPB 55 (July 22, 2014)
  • Citing to requirements in the Whistleblower Protection Enhancement Act, the Board held that when an appellant makes a protected disclosure in the normal course of her duties, 5 U.S.C. 2302 now requires her to prove that the personnel action was taken in retaliation for the disclosure – i.e. with an improper motive, rather than within a close period of time that implies retaliation. Benton-Flores v. Dep’t of Defense, 2014 MSPB 60 (July 31, 2014)

Reports, Studies, and Newsletters

Other Items of Note

  • Special Counsel Lerner appeared with Deputy Special Counsel Eric Bachman before the House VA Committee’s hearing on “VA Whistleblowers: Exposing Inadequate Service Provided to Veterans and Ensuring Appropriate Accountability.” (July 8, 2014)
  • OSC issued a press release announcing that it obtained disciplinary action in two Hatch Act cases. (July 10, 2014)
  • Special Counsel Lerner appeared with Hatch Act Unit Chief Ana Galindo-Marrone before the House Oversight Committee’s hearing on “White House Office of Political Affairs: Is Supporting Candidates and Campaign Fund-Raising an Appropriate Use of a Government Office?”(July 16, 2014)
  • The House Science Committee issued a scathing letter to Commerce Department Inspector General Todd J. Zinser concerning the continued employment of his deputies who were found to have retaliated against DOC IG staffers. The deputies were removed the following month. (July 16, 2014)

MSPB to Issue New Rules to Comply with Compressed VA SES Due Process Schedule

US-DeptOfVeteransAffairs-Seal.svgThe U.S. Merit Systems Protection Board is in the process of issuing an Interim Final Rule* to address the Veterans’ Access to Care through Choice, Accountability, and Transparency Act of 2014, which mandated a new, compressed “due process” mechanism for disciplined VA senior executives.

The rules will create a new Part 1210 in Title 5 of the Code of Federal Regulations. The new rules include:

  • The provisions in Part 1210 apply only to removals or transfers effected under the new law. This authority is in addition to traditional adverse action authority under Title 38 or Chapter 75 of Title 5.
  • An MSPB Administrative Judge must issue a decision within 21 days after an appeal is filed, or else the VA Secretary’s decision is automatically upheld.
  • There are no appeal rights to the three-member Board.
  • The following mechanisms or devices are not allowed: case suspensions, class appeals, dismissals without prejudice, interlocutory appeals, petitions for review, procedures for original jurisdiction cases, stay requests.
  • An Administrative Judge may waive any MSPB rule to meet the expedited review of an appeal.
  • Parties must use the MSPB’s e-Appeal Online system.
  • An appeal must be filed no later than 7 days after the effective date of the removal or transfer.
  • The Agency’s response (response file or Agency file) must be filed within 3 days after the appeal is filed.
  • The initial status conference will take place within a week after the appeal is filed.
  • The parties have an obligation to make initial disclosures, which must be served before the initial status conference.
  • Responses to discovery requests must be made no later than 3 days after the initial status conference.
  • Motions to compel discovery must be filed no later than 5 days after the initial status conference.
  • The permitted discovery devices are interrogatories, requests for production/inspection/copying of documents, and requests for admissions.
  • Depositions are not allowed.
  • Interrogatories are limited to 10, including all discrete subparts.
  • The parties may engage in only one round of discovery.
  • All non-discovery motions must be filed no later than 5 days after the initial status conference.
  • Objections to motions must be filed no later than 2 days after the motion is filed.
  • The VA has a duty to assist the Administrative Judge as necessary to meet deadlines.
  • Amici curiae and intervenors are allowed to participate.
  • A hearing will generally take place no later than 18 days after the appeal is filed.
  • The hearing will be limited to no more than 1 day. Longer hearings may take place subject to the Administrative Judge’s discretion.
  • The MSPB will provide a court reporter.
  • The VA is required to meet its burden of proof of misconduct or poor performance by a preponderance of the evidence.
  • Proof of misconduct or poor performance shall create a presumption that the Secretary’s decision to remove or transfer the appellant was warranted.
  • The appellant may rebut this presumption by establishing that the imposed penalty was unreasonable under the circumstances of the case.
  • If the agency has obstructed the appeal from being adjudicated in a timely fashion, the administrative judge may impose sanctions, up to and including the drawing of adverse inferences or reversing the removal action.
  • Appellants have the burden of proof, by a preponderance of the evidence, concerning: jurisdiction, timeliness, and affirmative defenses.
  • The available affirmative defenses are harmful error, prohibited personnel practices, or that the determination is not otherwise in accordance with the law.
  • If an appellant successfully rebuts the presumption that the penalty was warranted by establishing that the imposed penalty was unreasonable under the circumstances of the case, the action will be reversed. However, the Administrative Judge may not mitigate the Secretary’s decision to remove or transfer the appellant.
  • Bench decisions are permissible.
  • A decision by the Administrative Judge is nonprecedential.
  • Petitions for enforcement and motions for attorney’s fees and damages are permissible and may take place after the 21-day period expires.

*An Interim Final Rule allows the rules to go into effect immediately, subject to any comments the Board might receive.

Following Congressional Call for Accountability, Commerce IG Places Two Deputies On Leave

500px-US-DeptOfCommerce-Seal.svgPer The Washington Post, Commerce Department Inspector General Todd Zinser has placed two deputies on leave yesterday following criticism by a congressional committee and an investigation by the Office of Special Counsel finding that the deputies “allegedly threatened subordinates with negative performance reviews if they did not sign gag agreements before moving to new jobs.” The Post also reported that

Two individuals with knowledge of the removals have confirmed the actions by the inspector general’s office. One said the employees were placed on administrative leave Wednesday. The other source said they were escorted from the building and prohibited from physical and electronic access to the department.

Past coverage of this episode can be found here.