A Month in Merit Protection: Recapping Civil Service News for November 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.

Notable Decisions and Rulings

Seal of the Department of Veterans Affairs

Seal of the Department of Veterans Affairs

  • The MSPB held that an appellant’s “disclosure to a federal judge that agency officials’ threats — of criminal charges and employment actions — to potential witnesses to a criminal trial constitutes a nonfrivolous allegation that he engaged in whistleblowing by disclosing a purported abuse of authority.” Linder v. Dep’t of Justice, 2014 MSPB 84 (2014).
  • MSPB issued its first agency decision in expedited proceedings under the Veterans Access, Choice, and Accountability Act of 2014, upholding the removal of the director of the Central Alabama Veterans Administration Healthcare System. Talton v. Dep’t of Veterans Affairs, AT-0707-15-0094-J-1 (Nov. 19, 2014).

Reports, Studies, and Newsletters

Other Items of Note

  • MSPB filed an intervenor’s brief in Clarke v. Department of Veterans Affairs, which is currently pending in the U.S. Court of Appeals for the Federal Circuit. OSC previously filed a brief in this case. (Nov. 18, 2014)
  • The U.S. Government Accountability Office issued a report comparing OSC and the Department of Labor in handling complaints under a USERRA pilot project. OSC objected to the GAO’s conclusions and methodology. (Nov. 25, 2014)
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MSPB Watch’s “Planned Obsolescence” Policy

MeetIntroducing MSPB Watch’s “Planned Obsolescence” Data Policy:

If you see a post on MSPB Watch or its related websites that offends you and you would like to petition for its removal, contact the publisher at dpardo@mspbwatch.org and your request may be accommodated. The Internet does not forget, but we should be able to forgive. Not legally binding.

Rationale for the policy can be found here.

Happy New Year!

Help Wanted: Fearless, Independent Reporter Interested in Dry Subject Matter and Willing to Work for Free

Company: MSPB Watch LLC
Position: Investigative Reporter/Part-Time Cryptologist
Location: Nationwide with occasional visits to Albuquerque, New Mexico and Washington, DC
Job Status: Part time for now
Salary: Depends on publisher’s financial viability
Website: www.mspbwatch.org

Description:

About MSPB Watch LLC

MSPB Watch is a newsgathering and publishing company that seeks to hold the federal government honest and accountable. It focuses on the custodians of the civil service and works to ensure that MSPB, the U.S. Merit Systems Protection Board, adheres to its mission of “protect[ing] Federal merit systems and the rights of individuals within those systems.”

About the role

MSPB Watch is looking for an experienced, thick-skinned reporter to cover federal civil service issues a few times a month. The ideal candidate must be comfortable with dry legal jargon, ambiguity, coded language, and the occasional covert hostility. The candidate must be willing to carry the weight of the world on his/her shoulders. Ability to run faster than an angry mob is essential for career longevity.

We’re especially interested in candidates that possess the following:

— a minimum of 5 years experience in a cut-throat digital news environment
— fluency with the English language
— technological and social media savvy
— political astuteness
— ease with AP and Bluebook style
— knack for catching typos is a must (trust us)
— good organizational skills
— ability to say no and knowing how much work to take on
— willingness to forgo all personal privacy
— patience and willingness to work for free (for now) for a mercurial and oft-embattled publisher

This is a chance to have fun of sorts doing something you love. We’re an online niche site with 3,500 official views a month and the potential for an Internet-wide audience.

Sound great? Then tell us about you: a resume and a short blurb explaining why you would be a great fit for MSPB Watch.

8

FOIA Appeal Update and MSPB Watch’s Future

As an update to this post from June regarding an appeal of the MSPB’s policy of referring requests for docket pleadings to the agencies where they originated, I’m happy to report that I received copies of the requested OSC complaints directly from the Board. For whatever reason, the Board decided not to pursue its referral policy in this case. A question left for another day is whether a future request will encounter the same or modified referral policy.

Here is the appeal grant letter: MSPB-OCB-2014-00151

Where’s the complaint, though? In truth, I’m not publishing it at this time. I have to confess an error in judgment: I believed that dockets at the Board were like PACER.gov, where anyone with an account could see and download the back-and-forth pleadings of federal litigation. But the Board’s dockets aren’t like this, accessible generally only through FOIA. For reasons that don’t make complete logical sense to me, but seem to be rooted in custom or habit, litigation at the Board is more private than in the federal judiciary – more user-friendly to pro se litigants, but also containing sensitive information that might affect ongoing employment relations. In other words, if one were to design an independent forum where employment disputes could be resolved by disinterested experts and relations with employers could be normalized, the MSPB seems to fit that bill, more or less. Normalization of relations requires a measure of privacy, I would think. This seems to be the model that the EEOC uses, although if all else fails, litigation at the federal district courts (open PACER dockets and all) is an option there, something that isn’t available here.

Another reason for not making the complaints available: unlike PACER, I would have to obtain the respondents’ briefs explaining their side of the story, out of respect for their due process rights. Not having done so, it doesn’t seem fair to single out OSC’s allegations and to leave it at that. That said, anyone interested in these complaints can replicate my FOIA request.

###

A note about this website and its future: no, it’s not going anywhere. But it will be changing in ways that I can’t currently predict. My private practice before the Board is showing early signs of success, and I would like this to continue. It seems to be a good match – accessible legal services for appellants in need; practice that is rewarding to me; and presentation of cases to the Board’s adjudicators in the manner that they’re accustomed to (I hope). If I have to choose between being an effective advocate for current and future clients versus being an independent, adversarial muckracker, for now I choose the former. I don’t think that means relinquishing my First Amendment rights, but it does require being considerate of ongoing human relationships in the courtroom. If there’s abuse of discretion in one of my clients’ cases, I will appeal. If the issue is one of public interest, I may publicize. This is the standard that every ordinary attorney follows and that is the standard I will follow.

And to add even more complexity to the equation, it may very well be that my own retaliation complaint will soon end up before the Board. If so, I don’t intend to publicize every move, but I think the model above is the right one.

1

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)
13

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)