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

A Month in Merit Protection is a running 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.

Notable Decisions and Rulings

  • The Board recognized a change in the Whistleblower Protection Enhancement Act that applied a “substantial evidence” standard of proof, rather than “irrefragable proof,” to rebut any presumption that “public officers and employees perform their duties in good faith and in accordance with the law and governing regulations.” Shannon v. Dep’t of Veterans Affairs, 2014 MSPB 41 (June 5, 2014)
  • In a VEOA case, 5 U.S.C. 3304(f)(1) provides a preference eligible or veteran a right to compete for a vacant position–including a temporary one–and not just a permanent, competitive service position. Modeste v. Dep’t of Veterans Affairs, 2014 MSPB 44 (June 19, 2014)

Reports, Studies, and Newsletters

  • OSC submitted its Annual Report to Congress for FY 2013. (June 2014)
  • MSPB’s Office of Policy and Evaluation published Issues of Merit Spring 2014, covering the following topics: “Sexual Orientation; Looking for Guidance After the FPM; Supervisors and Favoritism; Agency’s Whistleblowing Cultures; Key Competencies; Trait-based abilities.” (June 10, 2014)

Other Items of Note

  • OSC issued a press release describing its ongoing investigation of 37 claims of whistleblower reprisal at the VA. (June 5, 2014)
  • MSPB Watch challenged the Board’s change in its FOIA policy of referring requests for docket filings to the originating agencies. (June 8, 2014)
  • Taking a cue from the Board’s efforts to undermine the WPEA, an administrative judge in New York applied the troublesome decision in O’Donnell v. USDA to find that an employee’s disclosure of an allegedly improper training directive, which had nothing to do with any form of adjudication, was not protected because the disclosure could have been “corrected through the appeals process.” (June 10, 2014)
  • MSPB published a notice in the Federal Register inviting law firms and attorneys to register with the Board if they wish to provide pro bono services to litigants at the U.S. Court of Appeals for the Federal Circuit. (June 13, 2014)
  • Special Counsel Carolyn Lerner appeared before a House Oversight Committee hearing on retaliation and mismanagement at the U.S. Chemical Safety Board. The Inspector General overseeing the CSB, EPA IG Arthur Elkins, submitted a statement to Congress alleging that a high-level OSC official may have revealed the identities of CSB whistleblowers to agency management and attempted to thwart OSC’s investigation. According to IG Elkins, a criminal investigation ensued but was closed when the Justice Department declined to prosecute. At OSC’s determination, the case was referred to the Office of Personnel Management IG as an administrative inquiry in late October 2013. Here is the December 3, 2013, Memorandum of Understanding between OSC and OPM IG regarding these allegations. An invitation for comment to OSC was not returned. (June 19, 2014)
  • The U.S. Court of Appeals for the Federal Circuit denied the MSPB’s request to make precedential its decision in O’Donnell v. MSPB, a case that the Board used to sua sponte resurrect a pre-WPEA, whistleblower-hostile ruling concerning adjudication-related disclosures. (June 19, 2014)
  • OSC issued a press release citing deficiencies in health care reports by the VA’s Office of Medical Inspector. (June 23, 2014)
  • OSC issued a press release describing its efforts to combat LGBT discrimination in the federal workplace. (June 30, 2014)

Revealed: MSPB’s Legislative Recommendations to Congress in FY 2014

An undated “MSPB Reauthorization Act of 2014” reveals no controversial provisions (e.g., summary judgment procedures), except that apparently the Board has had difficulties in obtaining agencies’ cooperation in conducting special studies of the merit systems, and that at one point in the last decade the Board faced the real possibility of being without any members, due to mandatory term limits.

Past MSPB legislative recommendations, from 1979 to January 2012, can be found here.

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

A Month in Merit Protection is a running 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.

Notable Rulings and Decisions

  • A deciding official does not have to consider each of the Douglas factors in making his penalty determination, however Board precedent–Portner v. Department of Justice, 119 M.S.P.R. 365 (2013)–requires the deciding official to consider the relevant Douglas factors which are implicated in the case before him. Chavez v. Small Business Administration, 2014 MSPB 37 (May 28, 2014)

Reports, Studies, and Newsletters

Other Items of Note

  • MSPB changed its FOIA referral/consultation policy for requests seeking documents that originate in other agencies. (May 1, 2014)
  • A comment period closed on an MSPB notice of proposed rulemaking that seeks to change the Board’s jurisdictional rules. (May 5, 2014)
  • MSPB issued a call in the Federal Register for suggested topics for special studies. (May 6, 2014)

Science Committee Sends Interesting Letter to Beleaguered Commerce IG

500px-US-DeptOfCommerce-Seal.svgIn case you missed it, a congressional committee issued a letter last week to Todd Zinser, the Department of Commerce Inspector General, which includes a number of interesting OSC retaliation reports, pleadings, and internal emails from the DOT IG that happen to concern FAA whistleblowers. Because this has been covered in the press already, I point you to this article by the Washington Post. Past coverage of this affair on this blog can be found here.

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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

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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: