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

A Month in Merit Protection is a new 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.

Initial Decisions

  • Administrative Judge Ronald J. Weiss reversed the agency’s removal of appellant, a Senior Executive and regional commissioner, finding that it failed to establish its charge of conduct unbecoming a Federal employee. Note: this case pertains to the fallout from the controversy involving the GSA’s $822,000 Las Vegas conference scandal, which came to light in 2012. Weller v. GSA, Docket No. DA-0752-12-0519-I-1 (Feb. 4, 2014)
  • AJ JoAnn M. Ruggiero granted a NOAA Special Agent’s request for corrective action, finding the agency wrongfully issued a low performance evaluation and may have denied him a promotion as a result of his disclosure that a fellow agent made a false law enforcement report. Rios v. Dep’t of Commerce, Docket No. NY-1221-10-0261-B-1 (Feb. 6, 2014) (coverage)
  • AJ Jeffrey S. Morris granted in part a Contract Specialist’s request for corrective action, finding that the agency wrongfully constructively suspended appellant for her disclosure that a (non-governmental) contractor employee was allowed to make key contracting decisions, which should have been made by government officials, in violation of acquisition regulations. The AJ found that the agency proved by clear and convincing evidence that it would have taken some but not all of the personnel actions at issue in the absence of the disclosures, and not a constructive suspension claim. Savage v. Dep’t of the Army, Docket No. AT-1221-12-0591-W-1 (Feb. 6, 2014)
  • In a 256-page decision, Chief Administrative Judge William L. Boulden reversed the agency’s removal of a radiologic technologist, finding that the decision was based on whistleblowing and grievance activity reprisal. Ayers v. Dep’t of the Army, Docket No. DA-0752-12-0396-I-3 (Feb. 21, 2014)

Precedential Decisions

  • The Board denied appellant’s Veterans Employment Opportunity Act claim, finding that a denial of a conditional offer of employment based on a negative suitability determination did not violate veterans’ preference. Beyers v. Dep’t of State, 2014 MSPB 8 (Feb. 12, 2014)
  • The Board denied the agency’s petition for review and upheld the order not sustaining appellant’s indefinite suspension. The Board found that the agency failed to provide appellant a meaningful opportunity to respond to its proposed suspension. Ulep v. Dep’t of the Army, 2014 MSPB 9 (Feb. 14, 2014)
  • The Board granted appellant’s PFR of an initial decision that affirmed his indefinite suspension on a charge of failure to meet a condition of employment (eligibility to occupy a sensitive position), reversed the ID, and held the indefinite suspension action as not sustained. The Board found that an element of the agency erroneously concluded that, because appellant’s temporary access to classified information had been removed, he was not eligible to occupy a sensitive position and therefore did not meet a condition of employment. Rather, another element has the authority to deny his eligibility to occupy a sensitive position but did not make such a determination. Jones v. Dep’t of the Navy, 2014 MSPB 10 (Feb. 24, 2014)
  • In a 2-1 decision, the Board denied appellant’s PFR of an initial decision that dismissed his individual right of action (IRA) appeals, modified the ID, and denied appellant’s request for corrective action. The majority found that appellant, a part time physician who alleged several disclosures to the Office of Special Counsel–concerning abusive medical billing practices, non-compliance with radiation exposure regulations, destruction of records, and harassment of a fellow employee–failed to exhaust proceedings before OSC because the information to support the disclosures was “quite brief,” and when given a chance to provide additional information he declined to do so. Vice Chair Anne Wagner dissented, saying she would find that appellant exhausted his OSC remedies with regards to some of the disclosures, given that, in her opinion, appellant “sufficiently articulated with reasonable clarity and precision the basis of his complaint,” and that the Board has “consistently found allegations of similar specificity . . . adequate to meet the administrative exhaustion requirement” in other cases. Clarke v. Dep’t of Veterans Affairs, 2014 MSPB 11 (Feb. 27, 2014)
  • On remand from the U.S Court of Appeals for the Federal Circuit, the Board found, by a 2-0 vote (Member Robbins not participating), that appellant, a former State Department employee then based in Iraq, nonfrivolously alleged a disclosure that substandard and inadequate body armor was being supplied to agency employees en route to Iraq. The Board held that appellant’s disclosure–made to persons who may not have had actual authority to remedy the wrongdoing–was protected under both the retroactive provision in the WPEA (section 101) as well as under the WPA, as, contrary to the WPEA’s Senate Report, “neither the Federal Circuit, nor the Board, had recently interpreted the WPA to preclude protection for a disclosure unless it was made to a person with actual authority to remedy the wrongdoing.” The Board remanded the case to the AJ for adjudication on the merits. Nasuti v. Dep’t of State, 2014 MSPB 12 (Feb. 27, 2014)
  • The Board granted appellant’s PFR of an initial decision that affirmed his removal based on the revocation of his security clearance, vacated the ID, and reversed the removal. The Board found, contrary to the AJ, that appellant’s position did not require a security clearance and that the agency therefore failed to prove its sole charge–that appellant failed to meet a condition of employment. The Board found notable the fact that the agency continued to employ appellant for four years after suspending his access to classified information. Gamboa v. Dep’t of the Air Force, 2014 MSPB 13 (Feb. 28, 2014)

Attorney Fee Awards

  • AJ Brian Bohlen awarded appellant $13,425 in attorney fees “as the prevailing party based on the Board’s Order requiring the agency to rescind its 30-day suspension on Due Process grounds.” Ms. Voeller was represented by Norman Jackman, Esq., of Lincoln, New Hampshire. Voeller v. Dep’t of the Army, Docket No. AT-0752-12-0447-A-1 (Feb. 5, 2014). The underlying decision is Voeller v. Dep’t of the Army, Docket No. AT-0752-12-0447-I-1 (Oct. 17, 2012).
  • AJ Anthony W. Cummings awarded appellant $58,322 in attorney fees “incurred in connection with his successful appeal of the agency’s action constructively suspending him from the position he held as Assistant Inspector General-Management, GS-15, in the agency’s headquarters office.” Mr. Shrewsberry was represented by Adam A. Carter of The Employment Law Group. Shrewsberry v. FCC, Docket No. DC-3443-12-0288-A-1 (Feb. 5, 2014). The underlying decision is Shrewsberry v. FCC, Docket No. DC-3443-12-0288-I-1 (Apr. 24, 2013).
  • Regional Directory Jeremiah Cassidy awarded appellant $188,044 in attorney fees “in connection with . . . arbitration proceedings and her request for review with the Board.” Ms. Hollingsworth was represented by Stephanie M. Herrera, Esq., and Gary M. Gilbert, Esq., of Silver Spring, Maryland. Hollingsworth v. Dep’t of Commerce, Docket No. CB-7121-10-0016-A-1 (Feb. 28, 2014). A prior ruling which recounts this case’s litigation history is available at Hollingsworth v. Dep’t of Commerce, 117 M.S.P.R. 327 (2012).

Reports, Studies, and Newsletters

Personnel Changes

  • N/A

Other Items of Note

  • OSC announced it settled a number of Hatch Act cases based on prohibited partisan activity. (Feb. 3, 2014)
  • Citing to an incident whereby a federal employee “posted dozens of tweets about partisan elections and candidates while on duty,” OSC reminded the federal workforce not to engage in political activity while on duty. (Feb. 3, 2014)
  • MSPB filed a brief in the U.S. Court of Appeals for the Federal Circuit (partly in response to this author’s amicus curiae brief) defending its decision in O’Donnell v. USDA, 2013 MSPB 69 (Sept. 10, 2013), which resurrected a pre-WPEA Federal Circuit ruling that disclosures made in the adjudicative context are not protected.
  • MSPB transferred preparation of its weekly Case Reports to its Office of General Counsel. (Feb. 28, 2014)
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“Hope and fear chase each other’s tails”

And when you quit relying on hope, and instead begin to protect the people, things, and places you love, you become very dangerous indeed to those in power.

A must-read article from Orion Magazine:

THE MOST COMMON WORDS I hear spoken by any environmentalists anywhere are, We’re fucked. Most of these environmentalists are fighting desperately, using whatever tools they have—or rather whatever legal tools they have, which means whatever tools those in power grant them the right to use, which means whatever tools will be ultimately ineffective—to try to protect some piece of ground, to try to stop the manufacture or release of poisons, to try to stop civilized humans from tormenting some group of plants or animals. Sometimes they’re reduced to trying to protect just one tree.

Here’s how John Osborn, an extraordinary activist and friend, sums up his reasons for doing the work: “As things become increasingly chaotic, I want to make sure some doors remain open. If grizzly bears are still alive in twenty, thirty, and forty years, they may still be alive in fifty. If they’re gone in twenty, they’ll be gone forever.”

But no matter what environmentalists do, our best efforts are insufficient. We’re losing badly, on every front. Those in power are hell-bent on destroying the planet, and most people don’t care.

Frankly, I don’t have much hope. But I think that’s a good thing. Hope is what keeps us chained to the system, the conglomerate of people and ideas and ideals that is causing the destruction of the Earth.

To start, there is the false hope that suddenly somehow the system may inexplicably change. Or technology will save us. Or the Great Mother. Or beings from Alpha Centauri. Or Jesus Christ. Or Santa Claus. All of these false hopes lead to inaction, or at least to ineffectiveness. One reason my mother stayed with my abusive father was that there were no battered women’s shelters in the ‘50s and ‘60s, but another was her false hope that he would change. False hopes bind us to unlivable situations, and blind us to real possibilities.

Does anyone really believe that Weyerhaeuser is going to stop deforesting because we ask nicely? Does anyone really believe that Monsanto will stop Monsantoing because we ask nicely? If only we get a Democrat in the White House, things will be okay. If only we pass this or that piece of legislation, things will be okay. If only we defeat this or that piece of legislation, things will be okay. Nonsense. Things will not be okay. They are already not okay, and they’re getting worse. Rapidly.

But it isn’t only false hopes that keep those who go along enchained. It is hope itself. Hope, we are told, is our beacon in the dark. It is our light at the end of a long, dark tunnel. It is the beam of light that makes its way into our prison cells. It is our reason for persevering, our protection against despair (which must be avoided at all costs). How can we continue if we do not have hope?

We’ve all been taught that hope in some future condition—like hope in some future heaven—is and must be our refuge in current sorrow. I’m sure you remember the story of Pandora. She was given a tightly sealed box and was told never to open it. But, being curious, she did, and out flew plagues, sorrow, and mischief, probably not in that order. Too late she clamped down the lid. Only one thing remained in the box: hope. Hope, the story goes, was the only good the casket held among many evils, and it remains to this day mankind’s sole comfort in misfortune. No mention here of action being a comfort in misfortune, or of actually doing something to alleviate or eliminate one’s misfortune.

The more I understand hope, the more I realize that all along it deserved to be in the box with the plagues, sorrow, and mischief; that it serves the needs of those in power as surely as belief in a distant heaven; that hope is really nothing more than a secular way of keeping us in line.

Continue reading here.

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Isolating the Conceit in O’Donnell v. MSPB

Earlier this week, in a non-precedential decision, the U.S. Court of Appeals for the Federal Circuit affirmed the Merit Systems Protection Board’s decision in O’Donnell v. USDA, thereby reaffirming the ruling that a disclosure about an erroneous adjudicative decision is not a ‘violation of law’ under the Whistleblower Protection Act. The Board cited to the Federal Circuit’s 2000 case Meuwissen v. Dep’t of Interior for that point, and read meaning into the fact that the Whistleblower Protection Enhancement Act of 2012 left this particular point unmentioned while overruling a different holding from Meuwissen.

Specifically, it said as follows:

Meuwissen, 234 F.3d at 12-13, was legislatively overruled by the WPEA to the extent that the court found that the appellant did not make a “disclosure” because the administrative ruling with which he disagreed was already publically known. Whistleblower Protection Enhancement Act of 2012, § 101(b)(2)(C) (codified at 5 U.S.C. § 2302(f)(1)(B) (2012)). Nevertheless, the WPEA did not disturb the court’s more general finding that erroneous administrative rulings are not the type of danger or wrongdoing that whistleblower protections were meant to address. We remain bound by the court’s finding in that regard, and we believe that it was correct.

In essence, it pointed to Congress’ silence or nonaction to infer that Congress acquiesced to the Federal Circuit’s undisturbed interpretation of the WPA in Meuwissen.

The Federal Circuit made the same point this week, as follows:

Mr. O’Donnell’s argument that the Board improperly relied on Meuwissen is also unpersuasive. The legislature’s only objection to the holding in Meuwissen was the idea that “disclosures of information already known are not protected.” S. REP. NO. 112-155, at 5. The legislature included language to overrule this holding in the revised statute. See 5 U.S.C. 2302(f)(1).

But the court’s–and the Board’s–reasoning prove too much. To be seen and accepted as legitimate and well-reasoned, they would need to contend with a line of Supreme Court cases on the issue of acquiescence–cases that ask whether Congress’ nonaction was significant and deliberate and therefore blessed earlier court interpretations through its silence or omission. Continue reading

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Former NASA Manager Seeks Crowdfunding for MSPB Age Discrimination Suit

From Nextgov:

As a Web manager and open government lead at NASA’s Ames Research Center, Megan Eskey used social media and other innovative approaches to publicize NASA activities.

Now she’s using those same tools to publicize a discrimination complaint against her former employer and to crowdsource funds to support her suit and those of other federal employees who claim they were fired because of their age, gender or for other discriminatory reasons.

Eskey launched a crowdfunding campaign titled Law 2.0 on the site Indiegogo on March 1, asking for help funding her legal fees and living expenses while she pursues a wrongful termination case before the Merit Systems Protection Board. The site had raised $3,753 as of April 7. She’s also hoping the site will bring publicity to the broader issue of age discrimination in government and to her case specifically, she said, perhaps compelling NASA to settle before a formal ruling.

“The idea of crowdfunding came to me because I thought it was unfair that managers get free lawyers [in wrongful termination disputes] and I had to pay for my lawyers out of my pocket,” Eskey said. “This was an attempt to level the playing field.”

NASA officials fired Eskey in November 2012 after a year of what she claims were discriminatory punishments based less on her performance than on her age. She says the punishments — for infractions such as not notifying her bosses that she was leaving for a conference a day early or rescheduling meetings — increased after she filed a complaint with NASA’s Office of Diversity and Equal Opportunity.

This seems like an interesting and innovative approach to funding an employment discrimination case at the MSPB. Additional information by Ms. Eskey as well as her crowdfunding site can be found here.

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Meet OSC’s Leadership: Eric Bachman, New Deputy Special Counsel for Litigation and Legal Affairs

From an OSC press release:

FOR IMMEDIATE RELEASE
CONTACT: Nick Schwellenbach, (202) 254-3631;nschwellenbach@osc.gov

WASHINGTON, D.C./April 7, 2014 –

The U.S. Office of Special Counsel is pleased to announce that Eric Bachman has joined the agency today as Deputy Special Counsel for Litigation and Legal Affairs.

Mr. Bachman spent the last five years at the Justice Department, where he was most recently a Special Litigation Counsel in the Civil Rights Division. He litigated a number of employment discrimination and retaliation matters as well as Uniformed Services Employment and Reemployment Rights Act (USERRA) cases.

Notably, Mr. Bachman was the lead attorney and later the supervisory attorney for the Justice Department in a class action hiring discrimination lawsuit against the New York City Fire Department (FDNY). That case has led to a $98 million agreement in principle to compensate victims of discriminatory hiring practices, the largest in Justice Department history for a case of its type. Earlier court rulings ordered the City to overhaul its entry-level firefighter hiring process.

“OSC has been doing tremendous work and I’m very excited to join the office,” said Mr. Bachman.

Prior to his time at the Justice Department, Mr. Bachman was a partner at Wiggins, Childs, Quinn & Pantazis, PLLC, where he litigated class action and individual employment discrimination, retaliation, and Fair Labor Standards Act cases. He began his career as a staff attorney in the Jefferson County District Public Defender’s Office in Kentucky. Mr. Bachman has a J.D. from Georgetown University Law Center and a B.A. in History from Middlebury College.

“Eric is an outstanding civil rights attorney who has achieved significant victories on behalf of both individuals and the U.S. government,” said Special Counsel Carolyn Lerner. “We are delighted that he has joined our team.”

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The Green Eggs and Ham Approach to Statutory Interpretation

First, here’s Green Eggs and Ham, by Dr. Seuss (1960):

Do you like green eggs and ham?
I do not like them, Sam-I-am.
I do not like green eggs and ham.

Would you like them here or there?
I would not like them here or there.
I would not like them anywhere.
I do not like green eggs and ham.
I do not like them, Sam-I-am.

Would you like them in a house?
Would you like them with a mouse?
I do not like them in a house.
I do not like them with a mouse.
I would not like them here or there.
I would not like them anywhere.
I do not like green eggs and ham.
I do not like them, Sam-I-am.

Would you eat them in a box?
Would you eat them with a fox?
Not in a box. Not with a fox.
Not in a house. Not with a mouse.
I would not like them here or there.
I would not like them anywhere.
I do not like green eggs and ham.
I do not like them, Sam-I-am.

Full text here: http://www.docstoc.com/docs/74029962/Green-Eggs-and-Ham-text—Green-Eggs-and-Ham-by-Dr-Seuss

And now for an example of legal reasoning that treats statutory interpretation as a Dr. Seuss tale, in which Congress’ failure to speak about one of a myriad of derivative issues denotes its assent or rejection of a contested position, as divined by the interested litigator. The rhetorical trick works like this:

Sam-I-am in this case is Congress, and green eggs and ham is whistleblower retaliation. The narrator is the party attempting to apply whistleblower protection to a disclosure and defend against retaliation. The law in this case is the logic of a Dr. Seuss tale. If Congress was not asked whether it liked green eggs and ham in the hearing room, and it did not say that it did not like green eggs and ham in the hearing room, then green eggs and ham in the hearing room is not unlawful and may take place.

More technically, it goes like this: take contested position X and put aside whether it is your burden to prove, disprove, or distinguish X. Now reframe the issue as one of hypertechnical, different-shade-of-grey standard Y, or unintended consequence Z, and shift that burden to the other party and force them to prove a negative – to overcome the fact that no evidence exists that Congress intended Y or Z. Now keep ignoring your burden to prove, disprove, or distinguish X and point to the absence of evidence to support Y or Z and argue that X must therefore fail, even if Y and Z are red herrings, strawmen, or nonsequiturs in relation to X.

Here are a few such examples in practice:

From Brief for Respondent, Merit Systems Protection Board, Daniels v. MSPB (9th Cir., docketed Nov. 8, 2013), pp. 23-24:

There is no evidence that Congress believed that an adjudicator’s issuance of a decision that may later be found contrary to law is a form of misconduct whose exposure it was seeking to encourage.

X in this example is whether a disclosure in the adjudication context is protected when Congress said that “any disclosure . . . of any violation of any law” is protected. Here, the Board recharacterizes the issue by forcing the other side to offer evidence that Congress intended Y (that an adjudicator’s decision could form a protected disclosure), even if Y is a subset of X and would not have merited Congress’ specific attention. In other words, what should be the Board’s burden to prove that Y can be distinguished from X is now the other party’s burden to prove that Y actually falls under X, thus chipping away X’s broad reach by default.

Another such example:

Comment by Tom Devine, Government Accountability Project, to a notice of proposed rulemaking by the Merit Systems Protection Board (July 23, 2012):

There is not a word of legislative history, or any record at all, that it was intended to require inconsistent standards for employees who start with the OSC, compared to starting with the Board. Nor is there any record basis that the amendments force the Board to discard the efficiency of the service standard or create an exception to the overriding requirement of 5 USC 7701(c)(1) that an agency must prove performance-based charges with substantial evidence, and misconduct based adverse action by a preponderance of the evidence.

X in this example is whether a law that requires employees to choose alternative, non-duplicative paths to hear their employment disputes requires a change in the Board’s regulations. The regulatory change (and the original law) have consequences – “inconsistent” standards for employees who begin down one path versus another, with some rights cut off. But need Congress have spoken on every consequence that would follow, even if not intended had it been brought to its attention? The form of argument is thus: “Choice X begets Consequence Z. Consequence Z is bad, and there is no evidence that this is what Congress desired, so therefore Choice X must not have been what Congress chose (or what the Board should apply).” This is a logical fallacy, however, where the conclusion that one is attempting to prove is included in the initial premises of an argument; the real question is what did Congress choose? If it chose X, and Z is a natural consequence, Z has to follow, whether intended or not. It will be an issue for another day whether that was a wise or informed decision.

After Public Comment, MSPB Foregoes Summary Judgment, Chooses ‘Option B’ for Proposed Jurisdictional Rule

Last November, the Merit Systems Protection Board solicited comments on four options to revise its jurisdictional rules. The options ranged from minor technical corrections to the radical (and in my view, unlawful) imposition of summary judgment in Board proceedings. After receiving comments from the community (including a bizarre bad cop/good cop schtick by the cabal currently in power), the Board decided to avoid the fight over summary judgment and propose a tweak to its regulatory definitions (see Option B). Comments are due by May 5, 2014 at mspb@mspb.gov or as directed in the proposal.

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The Charade Surrounding the Hearing on CFPB’s Toxic Workplace

Let’s get a few things out of the way:

1. The fact that a whistleblower is testifying before Congress on toxic workplaces in the federal government is good and should be promoted (for its own merit, that is, as described below).

2. The fact that CFPB became inhospitable to work at in the 4 years since it came into existence is remarkable.

3. There is a process in place to investigate whether the merit system within CFPB is adequately protected from prohibited personnel practices such as discrimination and arbitrary denial of promotions, but this process is completely broken. I am, of course, talking about the MSPB’s dead-on-arrival Special Studies Function.

That said, what makes the hearing a charade is the fact that Republicans are trying to score points off CFPB to neuter it for political purposes, the Democrats don’t care about working conditions for the feds they claim to support, and the media is pretending to be aghast that this takes place in government and cynically wonders (without doing anything about it, that is) about conditions at other agencies. That this hearing took place at all is a product of partisanship, not genuine concern for the civil service.