Due Process Fail in the Whistleblower Community

Here is a link to the docket with some downloaded pleadings, following an order by the court unsealing it: http://mspbwatcharchive.wordpress.com/2014/06/15/james-murtagh-md-v-clark-baker-docket/

Read:

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How ‘NGOization’ Inhibits Movement-Building and Disempowers the Grassroots

An excerpt from a highly-relevant article at popularresistance.org:

A political culture of participation, collective decision-making and debate is all but missing. Decisions are made in offices and boardrooms, where professionalized staff preside over donors, petition signers and the occasional volunteer rather than a mobilized or empowered membership.

It wasn’t always like this. We don’t need to idealize the past to realize that there has been a concerted push to make what under other circumstance would be movement organizations into centrally-controlled bodies run by trained professionals. Exceptions to this trend are forever popping up: the environmental movement in the 1970s, the antiglobalization movement of the late 1990s, and most recently Occupy Wall Street are a few of the more prominent examples. But none of these exceptions has put an end to the process of bureaucratization and centralization. In fact, the process seems to accelerate when powerful grassroots movements enter onto the scene.

This process has been dubbed NGOization (after the increasingly-ubiquitous form, the Non-Governmental Organization, or NGO). While NGOization has been going on for decades, the concept is just starting to gain in currency beyond a few academics and grassroots organizers.

NGOization, write Dip Kapoor and Aziz Choudry in their edited collection by the same name, is a process of “professionalization and depolitization” which fragments and compartmentalizes the world into “issues and projects.” It works well, they add, “for neoliberal regimes.”

What NGOization precludes and inhibits is movement-building. Centralized control allows for an efficient mobilization of existing capacity, but it doesn’t provide the opportunities for masses of people to have new experiences, build their own ideas, do their own research, or start their own initiatives. It doesn’t provide the possibility of large numbers of people to decide, together, where to focus their energies or when to divide them.

The driving force behind the process of NGOization is not mysterious. Billions of dollars have been provided to Canadian NGOs to provide social services, dig wells in villages in African villages, support marginalized populations, campaign for environmental protection, and alleviate the effects of poverty. The money comes from government (the federal government spends close to a billion dollars per year on development NGOs alone) and private foundations (millions of tax-deductible dollars are spent annually to support environmental campaigns, for example).

But what do foundations and governments get for their money?

Chill effect

The wide variety of NGOs serves to confuse things. Depending on how one counts, there are hundreds or thousands of grant-dependent mission-oriented organizations in Canada. Many who work in NGOs insist that it is futile to make generalizations. There exist an undeniable plethora of NGOs. All of them, however, depend on a comparatively small pool of funders.

Each NGO is a snowflake, and the overall effect is chilling. While NGOs may have unique cultures and approaches, the agencies and foundations (hereafter: funders) that fuel them share a number of common characteristics. Almost all funders prefer solutions that don’t question prevailing neoliberal policies or capitalism. When they tolerate questioning, effective mobilizing is strictly forbidden. Funders demand centralized control and accountability in the form of regular and extensive reporting, and often direct oversight. Funders avoid grassroots organizing that directly empowers people whenever possible, prefering structures that provide tight, centralized control.

Democratic accountability to a membership is actually a liability for the funded organization, because it distracts them from adapting to funder priorities. That’s part of what makes the first few paragraphs of this article seem so absurd.

How, then, do movements end up in this situation? No one, after all, wants to give up all their power and autonomy. No one intends to sell out.

Every step of the NGOization process is understandable. Anyone who has spent an hour or three discussing a poster design or slogan can see the advantage of clearly defined leadership. Anyone who has attended a grassroots organizing meeting where key tasks didn’t get done can see the advantages of professional, paid staff. And anyone who has tried to take on a major corporation or government with a few hundred dollars in their bank account knows that decent funding can be invaluable.

While activists are often in emergency response mode, funders play the long game. From the perspective of the funder, here’s how you get the process of NGOization going:

1. Set up a large pool of money, perhaps in collaboration with other foundations or governments.
2. Fund a number of organizations to undertake a variety of activities within a large umbrella. Be supportive at first, and fund existing organizations to do what they were already doing.
3. Give them a little time to get comfortable with the funding.
4. Over time, require an increasing volume of paperwork: grant applications and reporting. This increases the amount of time that the staff spend thinking about your priorities to the exclusion of those of their membership or constituency. You can say that this is necessary to ensure that the money is well spent, and talk about wanting to be as effective as possible.
5. Once staff members are accustomed to their new salaries, announce that there’s less money than was forseen. Have them compete with other organizations for your funding. Gradually introduce new priorities for the grants you provide that they would not have accepted before, but aren’t willing to sacrifice their jobs or organization to oppose.
6. Take it slow and steady. Let them raise a fuss about new constraints and requirements while pruning out those who are intransigent or principled. You’ll rarely have to do any direct disciplining. If someone steps out of line, their peers will realize that they are endangering the funding and marginalize their troublesome colleague to the extent needed for the funding to flow.
7. You don’t have to tell anyone about your overall goals, because it’s literally their job to guess what they are, and wonder what you might want. Drop cryptic hints and point to organizations that are doing “exciting” or “effective” work as models.
8. If you decide that a certain group is actually subversive to your aims, simply defund them. Other organizations will be suitably scared, and happily step in to take on tasks for any funding that might have been freed up.
9. Accountability to goals other than those set you set have become a liability to the organizations you fund. Many of them have all but cut themselves off from their member base, if they ever had one.

Read the complete article here.

What The MSPB Bar Project Says about Those It Is Scrutinizing

This is just a preview of what my research (or “retaliatory investigation,” as those with a guilty conscience would like to characterize it) is revealing of those who currently hold onto the strings of power at OSC and MSPB and their friends in the private sector.

The central, even age-old question is this: how does the possibility of making money, a shitload of money, affect one’s incentives? If retaliation is common, and making money off of whistleblowers’ and employees’ suffering is big business, what does it say about the beneficiaries’ willingness to reform the laws to combat retaliation? Maybe not too much as to hurt the bottom line but enough to maintain credibility and influence?

Is it fair and proper to introduce evidence of competing interests into the discussion, or is this project beyond the pale and out of bounds? I think I know what the subjects of my scrutiny would say, but they are clearly self-interested and will resort to anything to maintain the corrupt status quo. My audience, the one that matters, is the pool of employees that serve as fodder to support the careers and livelihoods of lawyers who equate suffering with power, access, and money. More will be coming, I guarantee it.

How the Elite Talk Down to the Rabble in the Whistleblower Community

Through code, innuendo, metaphor, and the indispensable Plausible Deniability, obscuring attempts to charm/reward or intimidate… in other words, the language of power (oooh!). Here you’ll see Thad Guyer, capo consigliere for GAP’s Tom Devine, fishing for info and/or sending an implicit message of displeasure at my creation, mspbbar.wordpress.com, all the while revealing the cabal’s incipient talking points: that my publicizing their litigation/collections/malpractice record is akin to a retaliatory investigation. The conceit there, of course, is that these vultures are somehow voiceless whistleblowers and I’m the vengeful government. He’s not the first to show discomfort at my efforts to show government/bar collusion, but this attempt is by far the most inept. For the record, no, this type of email from him is not common. We are neither friends nor peers.

 

Postscript: I’ve been meaning to start a feature that decodes the cabal’s power moves. This might be  the first such entry. Stay tuned.

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.

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 (backup site). 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.