Expansion of Some Whistleblower Protection Rights Not Available Retroactively, MSPB Rules

From Hooker v. VA, 2014 MSPB 15, decided March 11, 2014:

The provisions of the Whistleblower Protection Enhancement Act of 2012 permitting the filing of an IRA appeal based on an allegation that a personnel action was taken or proposed as a result of a prohibited personnel practice described at 5 U.S.C. § 2302(b)(9)(B) do not apply in this case.

Although not raised by the appellant on review, we modify the initial decision to address the administrative judge’s findings regarding the appellant’s allegation that the agency proposed his removal in reprisal for his participation in a whistleblower case initiated by another agency employee.  The appellant asserted below that the agency proposed his removal “in retaliation for [his] participation in another whistleblower case initiated by [another employee] in August 2008.”  RF, Tab 26 at 21.  The appellant raised this allegation in his OSC complaint, alleging that his complaint “goes back to August 9, 2008, when [the other employee] requested an internal affairs investigation under Whistleblower Disclosure guidelines,” and an administrative board of investigation was convened at which the appellant and others were compelled to testify “in the Whistleblower Disclosure case.”  Initial Appeal File, Tab 4 at 8 of 17.  As set forth above, the administrative judge found that, although this activity might constitute a prohibited personnel practice under 5 U.S.C. § 2302(b)(1) or (b)(9), it did not constitute reprisal for protected whistleblowing under 5 U.S.C. § 2302(b)(8), and therefore was not within the Board’s jurisdiction.  ID at 6.

After the issuance of the February 2, 2012 initial decision, Congress enacted the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112- 19, 126 Stat. 1465 (WPEA), which was signed into law on November 27, 2012, with an effective date of December 27, 2012.  See King v. Department of the Air Force, 119 M.S.P.R. 663, ¶¶ 1, 3 (2013).  Under 5 U.S.C. § 1221(a), as amended by WPEA § 101(b)(1)(A), an employee, former employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be taken against such employee, former employee, or applicant for employment, as a result of a prohibited personnel practice described in 5 U.S.C. § 2302(b)(8) or § 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Board.

Amended section 2302(b)(9)(B) provides that any employee who has authority to take, direct others to take, recommend, or approve any personnel action shall not, with respect to such authority, take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of “testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii).”  Amended section 2302(b)(9)(A), in turn, prohibits the taking or failing to take, or threatening to take or fail to take, “any personnel action against any employee or applicant for employment because of — the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation — (i) with regard to remedying a violation of paragraph (8); or (ii) other than with regard to remedying a violation of paragraph (8).”  Under 5 U.S.C. § 1221(e)(1), as amended by the WPEA and subject to the provisions of 5 U.S.C. § 1221(e)(2), in any case involving an alleged prohibited personnel practice as described under 5 U.S.C. §  2302(b)(8) or § 2302(b)(9)(A)(i), (B), (C), or (D), “the Board shall order such corrective action as the Board considers appropriate if the employee, former employee, or applicant for employment has demonstrated that a disclosure or protected activity described under section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D) was a contributing factor in the personnel action which was taken or is to be taken.”

It is unclear from the record whether the appellant’s activity constitutes “testifying for or otherwise lawfully assisting” the other employee within the meaning of 5 U.S.C. § 2302(b)(9)(B), and whether the other employee was exercising any appeal, complaint, or grievance right granted by any law, rule, or regulation when he requested an internal affairs investigation under “Whistleblower Disclosure guidelines.”  Nevertheless, we need not resolve these questions because the applicable WPEA amendments do not, in any event, apply in a case such as this, which was pending before the Board when the WPEA was enacted.

The Board has held that the analytical approach set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994), is the appropriate framework for determining whether the provisions of the WPEA should be given retroactive effect.  See Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 7-9 (2013).  In Landgraf, the Court addressed the question of the retroactive application of section 102 of the Civil Rights Act of 1991, which provided the right to a jury trial and the right to recover compensatory and punitive damages for violations of Title VII of the Civil Rights Act of 1964.  Landgraf, 511 U.S. at 247.  At the outset of its discussion of that issue, the Court noted the tension between the two established canons of statutory interpretation, i.e., the presumption against statutory retroactivity and the principle that courts should apply the law in effect at the time it renders its decision.  Id. at 263-64 (internal citations omitted).  In resolving that tension, the Court identified the following process for determining whether to apply a new statute to pending cases:

When a case implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach.  If Congress has done so, of course, there is no need to resort to judicial default rules.  When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.  If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.

Id. at 280.  While recognizing that, in many cases, “retroactive application of a new statute would vindicate its purpose more fully,” the Court deemed that consideration insufficient to rebut the presumption against retroactivity.  Id. at 285-86.

When Congress intends for statutory language to apply retroactively, it is capable of doing so very clearly.  King, 119 M.S.P.R. 663, ¶ 9.  Here, Congress did not expressly define the temporal reach of section 101(b)(1)(A) of the WPEA, which provides that corrective action may now be sought from the Board in an IRA appeal when a personnel action is proposed to be taken as a result of a prohibited personnel practice described at 5 U.S.C. § 2302(b)(9)(B), and that the Board shall now order corrective action if protected activity described under 5 U.S.C. § 2302(b)(9)(B) was a contributing factor in a proposed personnel action.  Rather, the statute provides that, with the exception of provisions not at issue in this appeal, the Act would become effective 30 days after its enactment.  WPEA § 202.  “A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date.”  Landgraf, 511 U.S. at 257.  If anything, the fact that the effective date was 30 days after enactment suggests that retroactivity was not intended.  King, 119 M.S.P.R. 663, ¶ 9.

Despite clear indication in the legislative history that at least some in Congress were aware of the issue concerning the temporal scope of the WPEA, Congress did not expressly include language in the Act providing for its retroactive application.  Id.  Consequently, we must determine, under Landgraf, whether the provisions of the WPEA at issue impair a party’s rights, increase a party’s liability for past conduct, or impose new duties with respect to past transactions.  King, 119 M.S.P.R. 663, ¶ 10.  As discussed below, we find that retroactive application of section 101(b)(1)(A) of the WPEA, as it pertains to the prohibited personnel practice set forth at 5 U.S.C. § 2302(b)(9)(B), would be impermissible under Landgraf because it would increase a party’s liability for past conduct as compared to pre-WPEA liability.

Under both the pre- and post-WPEA versions of 5 U.S.C. § 2302(b)(9)(B), any employee who had the authority to take, direct others to take, recommend, or approve any personnel action was prohibited, with respect to such authority, from taking or failing to take, or threatening to take or fail to take, any personnel action against any employee or applicant for employment because of testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to at 5 U.S.C. § 2302(b)(9)(A).  Thus, the WPEA did not impose new duties with respect to past transactions that were directed at regulating the primary conduct of the parties, cf. Caddell v. Department of Justice, 66 M.S.P.R. 347, 354 (1995) (by classifying a decision to order psychiatric testing or examination as a “personnel action,” the amendment to the Whistleblower Protection Act attached new legal consequences to events completed before its enactment and enlarged the category of conduct subject to 5 U.S.C. § 2302(b)(8) by establishing a new standard of conduct), aff’d, 96 F.3d 1367 (Fed. Cir. 1996), nor did it impair rights a party possessed before its enactment.  In fact, in an otherwise appealable action, the Board has considered an appellant’s allegation of a violation of 5 U.S.C. § 2302(b)(9)(B) as a viable affirmative defense.  See Canada v. Department of Homeland Security, 113 M.S.P.R. 509, ¶¶ 12-17 (2010); Marshall v. Department of Veterans Affairs, 111 M.S.P.R. 5, ¶¶ 15, 19-28 (2008); Viens-Koretko v. Department of Veterans Affairs, 53 M.S.P.R. 160, 163- 64 (1992); see also 5 U.S.C. § 7701(c)(2)(B) (an agency’s decision may not be sustained if the employee shows that the decision was based on any prohibited personnel practice described at 5 U.S.C. § 2302(b)).

Nevertheless, before the enactment of the WPEA, the Board lacked jurisdiction over such allegations raised in an IRA appeal, and therefore could not order corrective action in such cases.  See Wooten v. Department of Health & Human Services, 54 M.S.P.R. 143, 146 (1992).  As set forth above, the WPEA creates a new Board appeal right in IRA appeals for employees like the appellant who allege that a personnel action has been proposed to be taken as a result of a prohibited personnel practice described at 5 U.S.C. § 2302(b)(9)(B), and includes a new provision directing the Board to order such corrective action as the Board considers appropriate when such protected activity is a contributing factor in a personnel action.  Such corrective action may include placement of the individual, as nearly as possible, in the position the individual would have been in had the prohibited personnel practice not occurred, as well as back pay and related benefits, medical costs incurred, travel expenses, any other reasonable and foreseeable consequential damages, and compensatory damages (including interest, reasonable expert witness fees, and cost), and shall include attorney’s fees and costs.  5 U.S.C. § 1221(g)(1).  Under these circumstances, we decline to apply in this case, which was pending when the WPEA was enacted, section 101(b)(1)(A) of the WPEA as it pertains to the prohibited personnel practice set forth at 5 U.S.C. § 2302(b)(9)(B), because doing so would increase a party’s liability for past conduct as compared to pre-WPEA liability.

Past coverage of the WPEA’s retroactivity determination can be found here and specifically to 2302(b)(9) claims here. Background of the incomplete legislative efforts to apply the WPEA retroactively can be found here. Additional context relating to the lead WPEA lobbyists’ tactical effectiveness and ability to tolerate dissent can be found here and here.

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My recusal request letter to OSC

Based on what’s happening privately I’m not even sure this letter will make a difference. One day the facts will become public. In the meantime OSC’s statutory commitment to “act in the interests of employees who seek assistance from [it]” is being tested. I don’t expect it to be met. The usual OSC secrecy, bureaucracy, and paternalism reigns. Not much has changed, at bottom.

Note that all references in the letter to June should read January instead.

James Murtagh’s Extensive Ties to the Group Currently Controlling the Federal Whistleblower Levers of Powers

Dr. Murtagh is a favorite go-to person for GAP. See this and this from Murtagh’s perspective.

See also:

1. This profile of him in GAP’s Tom Devine’s The Corporate Whistleblower’s Survival Guide.

2. Here Dr. Murtagh is featured in a GAP video (scroll to bottom) with then-GAP Executive Director Mark Cohen, who is now the Principal Deputy Special Counsel at the U.S. Office of Special Counsel (and onetime lawyer for Murtagh’s colleague Linda Lewis).

3. One of Dr. Murtagh’s former lawyers is F. Doug Hartnett, who at one point worked (and may still work) at the U.S. Office of Special Counsel under Carolyn Lerner. Hartnett is also a former GAP staffer and former associate of the DC-based employment law firm Passman & Kaplan, P.C.

4. Another of Dr. Murtagh’s former lawyers is Mick Harrison of Bloomington, Indiana. Harrison had some affiliation with GAP. Harrison worked with Richard Condit (now of GAP) on the Teresa Chambers v. U.S. Park Police case of the mid 2000′s. Condit is listed as a reference for Harrison.

5. Currently, Dr. Murtagh is represented by Steven Dennison Smith of Blacksburg, Virginia, against Clark Baker of Los Angeles, California, where I’m listed as a witness. Some of the details of that suit are available here. Attorneys Smith and Harrison previously represented Virginia physician Lokesh Vuyyuru, who had his medical license revoked and who was declared a vexatious litigation for abusing the legal process one too many times. Along the way, Attorney Smith was sanctioned for failing to adequately inquire into his client’s case before bringing suit. At one point, Richard Condit of GAP appealed one of Vuyyuru’s lawsuits all the way up to the U.S. Supreme Court, with no success. Mark Cohen’s email was used for the Supreme Court docket.

6. Dr. Vuyyuru showed up to accompany Dr. Murtagh and their mutual colleague and attorney Steven D. Smith on December 6, 2013, when Dr. Murtagh attempted to criminally enjoin Clark Baker in a Los Angeles court from publicizing his litigation history on jamesmurtaghmd.com. The judge had to give Dr. Murtagh a lecture on the scope of the Bill of Rights and to tell him to take his concerns to civil court instead.

7. Murtagh’s civil lawsuit against Baker is currently pending, where a key issue is whether any of his perceived claims of privilege and confidentiality are legitimate and not contrived schemes for the purposes of silencing or extorting disfavored persons.

About the California Lawsuit That’s Implicating GAP and Several Whistleblowers

The following has not been made officially public:

1. On November 15, 2013, Dr. James Murtagh, a longtime GAP associate and lackey, sued Clark Baker of the Office of Medical and Scientific Justice in California state court for tortious interference with business relationships. The claim is that Baker used confidential information belonging to Murtagh to blacklist him in the temporary physician community. I, along with two other whistleblowers, was named as someone who owed and breached a duty of confidentiality to Murtagh. I was not named as a defendant, and both claims are false.

2. In characteristic fashion, Dr. Murtagh is attempting to cloak his lawsuit in secrecy, filing a motion to seal the entire record. I understand that a hearing on that motion is scheduled for Tuesday, March 18, 2014 at 9am in room 731 of the Stanley Mosk courthouse, in Los Angeles. The docket number is BC527716. Dr. Murtagh is represented by Steven Dennison Smith of Blacksburg, Virginia, and Lurie & Associates of Los Angeles. Mr. Baker is represented by Mark Weitz of Austin, Texas, and Etan Lorant of Los Angeles.

3. In the first week of January 2014, I reviewed over 8,000 emails and narrowed down my production (pursuant to a subpoena from Baker’s attorneys) to over 2,800+ relevant emails and documents. I also drafted a 22-page timeline to recount the relevant events. Dr. Murtagh’s attorneys should now be in possession of this production. (Murtagh’s lawyer sent me a litigation hold notice in December but never followed up with a subpoena.)

4. My understanding is that the Government Accountability Project received a subpoena from Baker’s attorneys around January 12, 2014, but objected on technical and alleged relevance grounds. Their involvement will become apparent over time, if it hasn’t already.

5. I have nothing, absolutely nothing to hide, and I would reveal all 2,800+ emails and the timeline today if it were up to me.

6. That said, I did withhold a number of emails from my production and timeline to prevent further frivolous, derivative litigation. Upon consent or a court order, this information too will become available. This should not be construed as an admission or concession that the information is, indeed, privileged.

7. Despite GAP’s and its cronies’ sub rosa intimidation efforts since January, I will continue to provide testimonial assistance, and all will be revealed in time.

P.S. Also, this. Ask me someday why that letter was necessary.

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“I don’t even think of retaliation as immoral, at this point.”

Can you be an effective advocate for whistleblowers’ rights if you don’t believe retaliation is immoral?

Readers of this website know that I am not a fan of Tom Devine, Legal Director at the Government Accountability Project. I believe that he possesses/possessed far too much influence in whistleblower circles, given that (a) at bottom he does not believe in the rule of law (by his own admission to me), and (b) he does not believe that retaliation is immoral, by his own words to the public just last month. Take a look:

“I don’t even think of retaliation as immoral, at this point.” -Tom Devine, Legal Director at the Government Accountability Project, speaking at Harvard Law School in October 2013 at a program organized by Ralph Nader

Fuller video/context for fact-checkers here.

I’m not going to belabor the point. I’m just going to put this out there: would a so-called abolitionist have been taken seriously in the 1800′s if he didn’t see slavery as an immoral institution? Would a suffragist be taken seriously at the turn of the 20th century if she didn’t see disenfranchisement as immoral? Would a civil rights activist in the 1960′s be taken seriously if he didn’t see segregation as immoral?

Is retaliation for speaking the truth a lesser form of struggle than the above?

Were slavery, disenfranchisement, and segregation not also defended on naturalist, universal, and timeless grounds before this fallacy was exposed for the power-entrenching excuse that it is?

If one doesn’t believe in the rule of law or the immorality of retaliation (or injustice and denial of due process), and one holds a large degree of influence over the development of whistleblower rights for 30+ years, what is the likely degree of health and vitality of those rights, 30 years out?

Despite what my detractors say, my objections with Devine are rooted in the fundamental difference that retaliation is not a natural part of life that we must resign ourselves to and accept. It’s a social norm that can be regulated and abolished. And it is this difference that colors my ethics and motives, as well as his.

Colonialism, Professional Activism, and Self-Determination

An article about professional activism in the environmental movement on PopularResistance.org resonates with what I know and write about the professional whistleblower community. There are many similarities and universal themes. The author has a fluency with the language of decolonization that currently eludes me, so I will simply let the excerpted article speak for itself and let the reader draw his or her own conclusions and insights.

It’s disconcerting to find so few faces in the prominent ranks of the environmental movement that reflect the realities and experiences of those bearing the brunt of climate collapse. Estimates show that since 1990 more than 90% of natural disasters have occurred in poor countries and that, globally, communities of color have been disproportionately impacted by air, soil and water pollution. Numbers also demonstrate that low-income households are hit the hardest by disasters, due to factors such as poor infrastructure and economic instability.

Yet those making strategic decisions are sitting in air-conditioned board rooms, hoping their conversations will pave the way for profound systemic change. Those most impacted by socioeconomic ills and environmental degradation are rarely present at those tables. This disconnect is quite alarming. Those of us frustrated with this scenario have turned to a deeper analysis and framework over the last decade—that of climate justice. Defining climate justice is a work in progress; honoring and integrating it are lifelong struggles.

These are the unsung faces of the resistance. The warriors whose lived experiences and very survival should not only drive the direction of our movements, but will inevitably determine the success of our struggle for collective liberation.

Instead, within the existing mainstream culture, while organizing has shifted to career-based models, anti-oppression work has become fashionable, and even worse, fundable. Through trainings, some may have learned the politically correct language to use, but much of the “anti-oppression” process has remained superficial, void of a real consideration for intersections of race, class and gender. This has resulted in a few token organizers of color hired into the ranks of respectable positions in big non-governmental organizations, with an unspoken expectation that they will be speaking for other brothers and sisters of color. Meanwhile, for those coming from low-income households or without a college education, the doors of opportunity within the environmental and climate movement are almost always out of reach.

For a person once seduced by an organizing career and its false promises of liberation, it was a rude awakening. As a brown migrant woman, often tokenized as the “good kind of Arab,” if I wanted a meaningful voice in this movement, I was going to have to take up space for myself, much like many had done before me. That also meant taking responsibility for my own layers of privilege, like my college education and access to resources, that most in my family aren’t privy to.

The professionalization of change-making has created a non-profit industrial complex (NPIC) which hinders rather than promotes liberationist movements. At Power Shift 2011, a national climate conference bringing together thousands of youth, there was a literal physical divide between the workshop spaces for the college students (mostly white middle-class) and the front-line communities (low-income, mostly youth of color). Since they were assigned different training tracks and curriculum, one of the only overlaps was during keynote speeches.

Meanwhile, NGOs are competing for membership and campaign victories, racing for measurable results that will prove to their funders that they deserve yet more money. In a nine-year period, big greens received over $10 billion in funding, with only 15% of grants (between 2007-2009) allotted to marginalized communities. This discrepancy is appalling, especially given the fact that more money means more institutional costs and infrastructure, which often translates to compromises and watered-down actions. This top-down funding strategy ignores the history of resistance—that large-scale social change stems from the grassroots and a sturdy leadership from the oppressed peoples who have a vested interest in fighting for freedom.

It’s hard to imagine a popular uprising being initiated by those relying on the comforts of paychecks and organizational stability, so those voices shouldn’t dominate the narrative. Often it’s professional activists heard shouting into megaphones, calling for escalation and taking it to the streets. As economies crash, natural disasters multiply, and countries are torn apart by war, that call rings true.

From Naomi Klein to Van Jones, from organizers of the ’99 WTO protest to blockaders of the Keystone XL pipeline in Texas, a similar message resonates: the non-profit industrial complex needs to deepen its class analysis, tackle white supremacy within its own institutions, and dump the colonialist “savior” syndrome. Professional activists must challenge institutionalized and structural privilege within their own organizations, in terms of air time, resources, influence, and how much space they take up.

What can professional activists do to decolonize the mainstream movement? Make financial resources available to those communities that need it most, rather than filling the bank accounts of multi-million-dollar organizations. Open up seats at the decision-making table for the freedom fighters on the front lines, rather than inviting them for the photo op once all the strategy has been laid out. Get out of the way when those whose stories must be told are speaking up, rather than writing up studies about their experience. Take the time to learn and practice genuine allyship that doesn’t translate to condescending tokenism.

To reflect integrity, this process cannot be driven by the need for personal and organizational recognition. Challenging our own internalized -isms is a constant work in progress, one that can take a lifetime. From the jungles of Mexico, the Zapatistas wisely remind us of the longevity of this process, that we must walk on asking questions—”preguntando caminamos.”

The Transparency Establishment’s Echo Chamber, revisited

It’s evident that, for whatever reason, the Transparency Establishment will probably continue to take an artificially narrow view of democracy-sustaining laws that impact millions of people. For this reason, I will accelerate my foray into FOIA law in the likely-mistaken belief that this will make the slightest bit of difference with the professional class. A kitchen-sink approach of historical (but still very relevant) FOIA documents can be found here, and a more organized compendium of resources will be available here.

Obviously, the Special Counsel has a role to play in enforcing FOIA violations. Perhaps not every time, and perhaps only in egregious occasions, but her role is there. The starting point is the law and the status quo. If we as a society are to change it, and to claim there’s a problem with enforcement of this law, an honest assessment would ask if the law as written is being enforced as intended. This should begin before we pile on more resources to OGIS or create a FOIA appeals council.

If we decide that the Special Counsel should not have a say in enforcing FOIA, well that’s a decision that should be debated in the light of day, especially if one carries the mantle of transparency and openness.

The Transparency Establishment’s Echo Chamber

OSC was not, in fact, brought up in the FOIA Summit. OSC’s role in FOIA oversight is discussed here, here, and here. Asking why it wasn’t brought up is the same question as why some of the groups involved don’t seek additional funding for OSC, or inquire about its performance or MSPB’s performance.

It’s ironic that for all the discussions and plans to add processes and councils and such, an agency with the decades-old ability to strike fear into the hearts of bureaucrats is being overlooked by the transparency establishment. After all, FOIA law requires agencies to reveal their own dirty laundry themselves, and the element of blind trust in government is baked into that law.

I guess acknowledging that that trust is regularly abused is beyond the scope of the FOIA summit.