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

Personnel Changes

  • The Office of Special Counsel announced that Eric Bachman, formerly of the Justice Department, joined the agency as Deputy Special Counsel for Litigation and Legal Affairs. (Apr. 7, 2014)

Other Items of Note

  • MSPB invited public comment on a rulemaking initiative that would clarify the evidentiary proof required to establish jurisdiction. (Apr. 3, 2014)
  • The U.S. Court of Appeals for the Federal Circuit issued a non-precedential decision in O’Donnell v. MSPB, leaving in place a pre-WPEA decision that narrowed the scope of whistleblower protections. (Apr. 9, 2014)
  • OSC announced that it filed two complaints with the MSPB:  a Hatch Act complaint against an IRS employee and a disciplinary complaint against officials at the Customs and Border Protection agency for alleged improper hiring practices. (Apr. 9, 2014)
  • A FOIA lawsuit was filed by the watchdog group Judicial Watch against OSC for its alleged failure to provide documents related to a “request for investigation filed by Judicial Watch with the Hatch Act Unit on June 15, 2010 concerning federal employees Jim Messina and Rahm Emanuel.” (Apr. 25, 2014)
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A Small Grassroots Victory in Defense of the WPEA

A must-read comment by Thomas Daniels to today’s announcement of the Federal Circuit’s order in O’Donnell v. MSPB:

Here is my email to OSC, calling them out on their failure to defend the integrity of the WPEA. I openly cc’d a reported on the Wall Street Journal. Not that he will publish the issue, but because this constant, unimpeded attack against the WPEA needs as broad a voice as it can get. As I wrote before, shame on OSC for standing by and ignoring the Board’s anti-WPEA tactics.

{edit what ever you feel you need to, David — Tom}

———- Forwarded message ———-
From: Tom Daniels
Date: Thu, Jun 19, 2014 at 2:24 PM
Subject: Small Victories re: Meuwissen
To: [Siegelman, Joseph, OSC] , [Carolyn Lerner, OSC], [Louis Lopez, OSC]
Cc: David Pardo , [Damian Paletta, WSJ] , [Larry Meuwissen, SSA]

Dear Ms. Lerner, Mr. Lopez and Mr. Siegelman,

Today, the Federal Circuit denied MSPB’s motion to make precedetial the final opinion in O’Donnell v. MSPB. Like minded advocates seeking to protect the WPA/WPEA from the corruption and disdain of the Merit Systems Protection Board prevented the Board from sneaking in a precedential decision that would have further resurrected Meuwissen v. Dep’t of the Interior from the Congressional trash heap.

Together, we advocates did what OSC should have defended on its own…the integrity of the WPEA.

Don’t stand idly by while the Board continues its assault on the WPEA!

We welcome you to the fight if you want to join, but most of us don’t trust you to do what is right.

If you think there is no attack on the WPEA, read the recent decision in Hawkings-Garcia v. DOT, attached, [Ed: link] and get a feel for how the Board’s AJs continue to chip away at the WPEA.

Sincerely,

Thomas C. Daniels

7

New Meuwissen/O’Donnell Expansion Threatens to Void Whistleblower Protections

Merit Systems Protection Board[Update below]

A number of days ago, an MSPB Administrative Judge out of New York applied the Meuwissen/O’Donnell exception to the Whistleblower Protection Enhancement Act to find that an FAA employee’s disclosure was not protected. Meuwissen/O’Donnell, if you’ll recall, ruled that disclosures about adjudicative errors/violations are not protected under whistleblower laws because a remedy already exists in an appeals process.

This latest decision broke new ground, however, because the disclosure in this case did not stem from an adjudication, but ordinary workplace instructions and disclosures. Here’s the specific disclosure, as characterized by the AJ:

On May 3, 2012, the appellant filed a complaint with the Office of Special Counsel (OSC), alleging that she was retaliated against for having made protected disclosures involving violations of law, rule or regulation; gross mismanagement; and abuse of authority. See IAF, Tabs 1 and 6, Exhibits 5 and 6. Specifically, she alleged that on August 1, 2011, she complained to her supervisor, [JC], concerning his requirement that she train subordinate employee [LA], as it was not within her job duties and therefore violated FAA regulations. See id. She further alleged that Ms. [M] was aware of her stated objection to training Ms. [A]. See id. The appellant claimed she suffered reprisal for these alleged protected whistleblowing disclosures when she was issued the 5-day suspension. n2 See id.

Here is how the judge analyzed the disclosure:

The appellant has not established, by preponderant evidence, that she made protected disclosures that were a contributing factor in the personnel action against her.

Protected whistleblowing occurs when an appellant makes a disclosure that she reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial or specific danger to public health and safety. See5 U.S.C. § 2302(b)(8)(A); Chambers v. Department of the Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008). The proper test for determining whether an employee had a reasonable belief that her disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to, and readily ascertainable by, the employee could reasonably conclude that the actions evidenced one of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8)(A). SeeLachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).

It is well-settled that statutory protection for whistleblowers “is not a weapon in arguments over policy or a shield for insubordinate conduct. Policy makers and administrators have every right to expect loyal professional service from subordinates….” LaChance, 174 F.3d at 1381. Furthermore, the Federal Circuit has found that an employee’s disagreement with an agency ruling or adjudication does not constitute a protected disclosure even if that ruling was legally incorrectSee Meuwissen v. Department of the Interior, 234 F.3d 9, 13-14 (Fed. Cir. 2000). Such rulings are corrected through the appeals process–not through insubordination and policy battles between employees and their supervisors. See id. at 14.

Mr. [C] testified that he asked Ms. [A] to go to the appellant’s desk to observe her a few hours as part of a training detail. He stated that Ms. [A] was not supposed to do anything other than observe the appellant perform her duties. He further stated that this was a common practice as it was a way for employees in other departments to become familiar with how their department worked. See Hearing CD, [C] Testimony. This testimony was unrefuted. During her testimony, the appellant admitted that she had trained subordinates in the past and that this was how training in her department often occurred. She failed to cite to any agency rule, regulation or policy which prohibited Mr. [C] from requesting that she train subordinate employees. See Hearing CD, Appellant Testimony.

I find that the appellant has failed to establish that she had a reasonable belief that Mr. [C]‘s request to train Ms. [A] constituted an abuse of his authority or gross mismanagement, as such a request was within his discretion as the appellant’s supervisor. Nor do I find that the appellant reasonably believed that Mr. [C]‘s request was a violation of law, rule or regulation, especially in light of her admission that that she had trained other employees in the past in a similar fashion. See Meuwissen, 234 F.3d at 13-14 (holding that an employee’s disagreement with an agency ruling does not constitute a protected [*12]  disclosure under 5 U.S.C. § 2302(b)(8)); O’Donnell v. Department of Agriculture, 120 M.S.P.R. 94, P 14-15 (2013), aff’d, ___ Fed. Appx. ___, 2014 U.S. App. LEXIS 6472 (Fed. Cir. 2014) (recognizing that “a subordinate’s refusal to abide his supervisor’s instructions in this regard supplants the orderly appeals process with chaotic agency in-fighting”).

See what the AJ did there?

“…the Federal Circuit has found that an employee’s disagreement with an agency ruling or adjudication does not constitute a protected disclosure even if that ruling was legally incorrect.”

and

“Such rulings are corrected through the appeals process–not through insubordination and policy battles between employees and their supervisors.”

There’s no “adjudication” here, only an instruction by a supervisor for a subordinate to train others. That instruction is now an “agency ruling,” according to this decision. If any supervisory instruction is an “agency ruling” in the eyes of the MSPB, then when does Meuwissen/O’Donnell not apply? When would whistleblower protections apply? Isn’t this exception one that swallows the entire statute?

Further, what is the “appeals process” here? A union grievance? If so, under 5 U.S.C. 7121(g), the employee would then be barred from going to OSC or MSPB. That renders the WPA null and void, in effect. There’s a canon of construction in the law that says that judges should not reach absurd results, or render statutory language void through their interpretations.

One final point: did we not see this coming? When O’Donnell was issued last September, I argued in an amicus that the Board’s analysis of the issue was “unbounded.” What’s more unbounded than a decision that converts garden-variety disclosures to “agency rulings” that fall outside the scope of the WPA?

Note: The case name is Hawkins-Garcia v. DOT, Docket Number NY-1221-13-0072-W-2, 2014 MSPB LEXIS 3692 (June 10, 2014; decision by Maureen Briody, AJ). I requested a copy of the decision via FOIA. This post will be updated once it arrives.

###

Related: Coverage of O’Donnell v. MSPB and Daniels v. MSPB.

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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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O’Donnell v. MSPB Update: MSPB’s Continued Neglect of Supreme Court Precedent Undermines Correctness of Result

Merit Systems Protection BoardDuring my move west a number of developments took place in O’Donnell v. MSPB, the case where the Merit Systems Protection Board is trying to undermine the Whistleblower Protection Enhancement Act by dictating that disclosures about errors of law by administrative judges are not “any violation of any law” under the WPA/WPEA. The Board had the Federal Circuit affirm its decision in relevant part via a one-line sentence, neglecting a body of Supreme Court case law about when Congress “acquiesces” to a judicial decision when enacting subsequent legislation (it’s a high bar that wasn’t met here). Problematically, however, neither the Board nor the Federal Circuit talked about this body of case law in reaching their respective results.

After the Federal Circuit issued its decision, the Board’s General Counsel audaciously asked the court to make the decision precedential, in order to preempt further debate on the issue. A fellow whistleblower, Thomas Daniels of California, who is challenging an underlying decision cited in O’Donnell, came back with a number of arguments as to why the decision should remain non-precedential. He raised the same acquiescence argument as was raised here.

Then a surprising thing happened: the court asked the Board to respond to Mr. Daniels’ filing. Here is its response, which omits any discussion of the Supreme Court’s stance on congressional acquiescence. In other words, the Board is pretending the issue doesn’t exist, which raises questions whether the Board, and the court, reached the right result in the first place.

If this were a whistleblower case, the Board would fail the Whitmore v. Department of Labor test, which requires the adjudicator to consider all pertinent pieces of evidence in reaching a reasoned decision (‘evidence’ here being the relevant case law).

Curiously, in trying to defend against a charge that it neglected to inform Mr. Daniels of the request to make the decision precedential, the Board itself noted the non-binding nature of such precedence on other circuit courts, thus undercutting its basis for the request in the first place, which, as mentioned above, sought to prematurely cut off debate on the issue. The WPEA’s all-circuit review period, and a possible extension of that period by another three years, should ensure that the debate rightfully continues until the correct result is reached, once all parties are required to respect a peer-reviewed judicial process.

The court’s decision is expected shortly.

Read:

RelatedCoverage of O’Donnell v. USDA and Daniels v. SSA

Pardo v. FAA update

[See update below]

###

Here’s where the docket/timeline stands:

Date

Description

Jan. 14, 2013 Complainant files a complaint of prohibited personnel practices with OSC.
Jan. 18, 2013 OSC acknowledges receipt of complaint and assigns it to Julie Martin-Korb, Complaints Examining Unit attorney.
Feb. 7-10, 2013 Complainant submits a stay request to Ms. Martin-Korb and and then withdraws it following an exchange of information.
Mar. 4, 2013 The complaint is reassigned from Ms. Martin-Korb to Jason Zuckerman, Senior Legal Advisor.
Apr. 3, 2013 Complainant waives 90-day status update per 5 U.S.C. 1214(a)(1)(C)(i).
May 14, 2013 Mr. Zuckerman emails Complainant a letter referring his complaint to the Investigation and Prosecution Division.
June 27, 2013 Mr. Zuckerman resends the IPD referral letter to Complainant.
July 10, 2013 60-day status update per 5 U.S.C. 1214(a)(1)(C)(ii).
Sept. 5, 2013 Telephonic equivalent of 60-day status update with IPD attorney Elizabeth McMurray. Topic: case overview and preliminary investigation plan.
Nov. 20, 2013 Telephonic equivalent of 60-day status update with Ms. McMurray. Topic: no significant change.
Mar. 7, 2014 Telephone call; OSC requests Complainant to re-send consent form to submit discovery requests to the agency.

###

Will justice be done? OSC’s silence at this point speaks volumes. More info when I receive it.

###

Update as of June 11: I received a status update from OSC, which content is consistent with statutory requirements. For now I’m satisfied with where things stand with the investigation and to let OSC do its job. Future updates will be on an as-needed basis.

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Change in MSPB’s FOIA Policy Challenged

Merit Systems Protection BoardIn April 2014 the Office of Special Counsel announced that it filed several complaints with the Merit Systems Protection Board against a number of individuals for alleged improper activities. One of the complaints was against human resource officials at the Customs and Border Protection agency, for manipulating hiring procedures. This was the first such complaint by OSC in over 30 years.

I then filed a Freedom of Information Act request with the MSPB for these complaints, hoping to include them in my A Month in Merit Protection series. It was not the first time I requested court documents OSC filed with the Board, but this time the Board’s response was new – a referral to OSC, as that’s where the complaints originated.

In calls with the Board’s FOIA office, I was told that the change occurred in early May following a discussion between the Chairman and the Board’s General Counsel, as memorialized in this email (also here):

I am now challenging the decision to refer my request to OSC. Under FOIA caselaw, referral is improper if the “net effect” is a substantial delay for the requester. As my appeal shows, I do indeed expect a very lengthy delay – OSC’s current backlog is 170 requests, and some of my requests at OSC have been pending for over a year, sometimes two. A somewhat recent FOIA court case ruled that a referral that resulted in a delay of 11 months was improper.

I’m also challenging the referral policy because it seems inappropriate for the Board to give agency-litigants the opportunity to determine what to redact or withhold for documents they’ve already filed in litigation. The appeal goes into more detail but something about this seems off and could risk the Board its neutrality, especially since the policy applies only to agencies and not employees or private parties.

Here is my appeal:

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.

Programming Note

view from sandia mountains

View from Sandia Mountains, Albuquerque, New Mexico (Copyright David Pardo)

Barring any developments of site features or newsworthy events, MSPB Watch will go on hiatus for a few weeks while management relocates to the great state of New Mexico. After regular posting resumes, readers can expect Litigation Tips, investigative reports, contextual research, and more. Stay tuned.