Demand For Help Pushed OSC to ‘Tipping Point’ of Capacity

So says the Special Counsel in OSC’s FY 2012 Performance and Accountability Report.

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18 thoughts on “Demand For Help Pushed OSC to ‘Tipping Point’ of Capacity

  1. Even more telling, to me, is that the Special Counsel had NO prosecutions against agency officials for violations of the PPPs. That is NO complaints filed and no successful prosecutions. (Report, p. 29) OSC did not even report a single recommendation to agencies to discipline an employee who violated the PPPs. OSC sought corrective action in 140 cases (Report, p. 28), but did not seek disciplinary action against those who violated the PPPs in any case. With no teeth, how does OSC ever expect to prevent future reprisals?

    In OSC there is a whole division called IPD (Investigation and Prosecution Division), but no prosecutions were filed. Does that appear to substantiate the statement that “The reputation of OSC has improved dramatically since Carolyn Lerner was sworn in as Special Counsel in June 2011?” Seems like the name just needs to be changed to Investigation Division.

    As a client of OSC during FY2012, I cannot see that there is any improvement over years past. As I experienced, OSC only wanted to settle my complaint but did not want to take any action to prevent similar reprisals from happening again in the future. That was no justice for me– and I don’t see that they sought justice for anyone else, either.

  2. I noted this statement from your previous post (http://mspbwatch.net/2012/04/15/is-it-time-to-reexamine-oscs-informal-resolution-practice/) :

    “In other words, secret negotiations that bury the facts of agency retaliation are not authorized by law. In fact, the opposite is true – the facts must be reported: by OSC or by MSPB. ”

    Isn’t it deceiving how OSC does, in fact, enter these secret negotiations and the complainant is not a participant or even privy to their conclusions or positions. In my case (http://2302b8.blogspot.com), the only evidence I ever obtained concerning these “secret negotiations” was through discovery vs. the agency. OSC never cc’d me or included me in the settlement discussions,

    Here is an email I received in discovery from the Agency, but to which I was never before privy. https://docs.google.com/viewer?pid=explorer&srcid=0ByLQ8_wKayohTXlLc1FRR2x3S28&docid=cdf976079516b65cc2636d9ad68e5957%7C87db9db94e233dbfdc414cb794608cca&a=bi&pagenumber=29&w=800

    Yet in the end, I had to file my own IRA appeal to seek any justice whatsoever. As you mentioned, OSC misinterprets their own regulations and fails to report these known violations of the PPPs to MSPB.

    Under 5 USC 1214 (b)(2)(B) “If, in connection with any investigation, the Special Counsel determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken which requires corrective action, the Special Counsel shall report the determination together with any findings or recommendations to the Board, the agency involved and to the Office of Personnel Management, and may report such determination, findings and recommendations to the President. The Special Counsel may include in the report recommendations for corrective action to be taken.”

    Per this section, OSC should have reported the findings of its investigation to the MSPB, SSA and to OPM, The only permissive part of that section was in whether or not OSC decided to report it to the President. Clearly no part of that section was followed.

    It was this whole litigation-averse mindset at OSC, even when known PPP violations occur, that lead me to conclude there is a continuous dereliction of duty towards those whom OSC was formed to protect. This was what led me to notice the utter lack of prosecutions in the 2012 Performance and Accountability Report. I hope you are right that the change in rule on attorneys fees will bring some change to this abandonment of principles.

  3. No. OSC wanted to settle my case and told me they would not give me a copy of the report to the Commissioner even if they were going to send it. That is why I opted to file my IRA. The prevention of future retaliation is/was one of my principal objectives. It was something the OSC abdicated and was willing to allow to continue unchecked in SSA.

    I would love to see a study on recidivist rates among reprisal seeking managers…ah, a topic for another day.

    As I stated in my Prehearing Brief (IAF Tab 43 at 22) (https://docs.google.com/file/d/0ByLQ8_wKayohUFl1aVhrUDl2Qmc/edit), my case was always a case about accountability for the agency’s retaliatory actions. It is not and never was about lost wages or anything closely related to pecuniary gain, recovery, or restitution.

    Well, this comment thread was not intended to be about my case– rather about OSC’s failure to hold retaliating officials accountable for their violations of the WPA. I knew that was the case going in, but still disappointed when you feel its effects first hand. Since OSC did not follow 5 USC 1214 (b)(2)(B) and publish their findings, I have done it for them. The Board now has their findings, and I am sure the Federal Circuit will eventually get to read it, too.

    • I suspect it will take a lawsuit to change this habit of theirs. They picked it up from S. Patrick Swygert, the first Special Counsel, in 1979, who admitted in the first annual report that OSC was using lack of publicity as an incentive for agencies to self-correct. I think that created a moral hazard, actually, incentivizing further retaliations that can be bought off and covered up.

    • Tom:

      I just stumbled into this (life keeps me busy with so many other things) and want to tell you, what I have seen so far of your Prehearing Brief is excellent, and extremely valuable. Thanks for sharing it, and kudos to David Pardo for getting these examples on line for the world to see.

      Needless to say, the failed process at MSPB is daunting, especially for those of us who are responsible employees speaking up to fix waste, fraud, safety and other workplace problems. It is daunting because, first off, we have been maltreated by rogue and unaccountable managers, and secondly, the process is Byzantine and crazy-making. It becomes far less daunting when we can see the careful work of another, such as you, mapping out the process, setting clear examples of how to present a whistleblower case.

      For the record, I had a horrific experience with MSPB at the San Francisco office, under AJ Lunell Anderson. FAA counsel knew how to play the process, to fit MSPB’s gameplan at that time, which was to push all cases to settlement. I learned so much from the experience, though my family and I suffered greatly as the MSPB process produced $30K+ in legal costs but absolutely no corrections against my agency, FAA. Not least of what I learned is that much of the MSPB failure is driven by simple human laziness; i.e., it makes sense that MSPB minimizes their costs in both money and effort by compelling bogus settlements. BTW if you are curious, I have posted records on my case at a website; here is a portal, to a page that also links to documentation for an ongoing FOIA lawsuit at a U.S. District Court, as well as an active ULP (unfair labor practice) against both FAA and NATCA. Please see: http://aireform.com/?page_id=207

      Good luck in your fight, and I hope they make you whole (and then some!).

      • Jeff,

        Thank you for your comment. I really can’t imagine what you must be going through. So much of my ability and desire to fight my case is because I am an attorney, and I relish the legal battle. To have to hire someone to do it all for me would be so cost prohibitive for me… And so stressful. Fighting back has been cathartic for me.

        I, too, have drafted a FOIA/Privacy Act complaint to file in District Court. I haven’t decided to file it yet, but I have certainly considered going the same route since discovery before the MSPB has been a joke. Luckily, I made a Privacy Act request to my agency nearly a year ago, which they have failed to respond to with any production.

        I will post those pleadings too, if I decide to play that card too.

        Good luck!

        Tom

      • Well, I have to consider myself quite lucky, as I have learned (in the past six years) since my case began, that some whistleblowers are even destroyed. I only had an attorney for the two month period when I appealed to MSPB; that would have been a fiscal disaster for most people, and thank God I had some resources and shut off that money-spigot early.

        I am also lucky in that I have that deep whistleblower persistence, and love to learn. So, for example, a year ago, when I filed my first (and, so far, my only) FOIA lawsuit, I justified the $350 filing fee as likely to yield new knowledge. And it has done that, amply. I joke to friends about this lawsuit being my ‘$350 law degree’ … probably a lot less than you had to pay for yours! (Granted, your degree is legit, but ‘mine’ is not)

        For what it is worth, as far as FOIA lawsuits go, I am seeing many of the same patterns in the District Court system that I saw clearly at MSPB. A sort of legal sclerosis. Suspended slow motion, mind-numbing delays by FAA lawyers, and no apparent accountability. A process that appears to feed the participants (lawyers and other court officials) far better than the clients. I gained a disrespect for lawyers years ago, in a divorce, and my MSPB experience intensified that. But, I nonetheless have great respect for those few lawyers who are also true whistleblowers, and speak up for real client rights.

  4. 18 USC § 1519
    Destruction, alteration, or falsification of records in Federal investigations

    Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

    It is well settled that a violation of the anti-retaliatory provision can be found whether or not the challenged practice ultimately is deemed unlawful.

  5. Lets hope OSC will improve there performance quickly on Prohibited Personnel Practices and stop spend time attempting to deny jurisdiction.

      • I am disabled and have attempted to get help with constitutional violation by state official for over 20 years. No person or agency appointed to enforce the constitution seem to have “jurisdiction” or know who has. It’ as though if you have no lawyer, or cannot afford a lawyer to prove jurisdiction in precise legal terms, you will be pushed aside.
        I have continued my life struggle to seek justice through education, research, trail and error for many years. After diligent research, I stumbled across 5 CFR 1850, which states” it is the responsibility of the Office of Special Council to enforce non discrimination on the basis of handicap within a executive government agency.”
        Are they willing to carry out their codified responsibility or continue the practices started by Reagan’s appointee, James Pendleton in 1980.

  6. Andrew:

    You are exactly correct about the tendency of these governmental entities to play ‘hot potato’ with employee cases. It is as if they do not realize that (a) they are enabling bad behavior by agency officials who are never held accountable for their acts, and so go on to abuse others; (b) the aggrieved employees (you, me, and who knows how many thousands of others) work diligently with a bad situation, only to see it become far worse and entirely unfixable (thanks to failures by MSPB, OSC, et al); and (c) the entire Public – Congress, the press, working folks and non-working folks – are all fully duped to believe OSC, MSPB, FLRA, and all the other entities are doing what Congress had intended, when they are NOT. My goodness, looking at the history of MSPB or OSC, what a parade; talk about entrenched bureaucratic terrorism!

    The worst part is, it gets worse. As people become aware of failed, wasteful programs like this, their faith in our government is shattered. Those days pledging the allegiance to the flag start to look like simple indoctrination. It may look like just one whistleblower is getting screwed by one agency, but the ripples eventually go everywhere. It has to be fixed.

    I have hope that things are changing. Last May, OSC’s new Special Counsel, fired off a greatly critical letter about my past agency, the failed FAA (maybe we should call it FFAA?). In the past couple years, NTSB has also been increasingly critical of FFAA safety failures. So, maybe things will continue to improve.

    Good luck, and keep fighting. And, speak out, so more will know the problems.

    Jeff Lewis, [aiREFORM.com]

  7. I have faith in the President and willing to give his appointee, Carol Lerner a chance to move OSC in the right direction for “change”. Although it didn’t help today when I received a call from OSC and the attorney had no record of my certified letter to Ms. Lerner and the Hatch act unit. Let’s see what today brings.

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