1

Meet OSC’s Leadership: Eric Bachman, New Deputy Special Counsel for Litigation and Legal Affairs

From an OSC press release:

FOR IMMEDIATE RELEASE
CONTACT: Nick Schwellenbach, (202) 254-3631;nschwellenbach@osc.gov

WASHINGTON, D.C./April 7, 2014 –

The U.S. Office of Special Counsel is pleased to announce that Eric Bachman has joined the agency today as Deputy Special Counsel for Litigation and Legal Affairs.

Mr. Bachman spent the last five years at the Justice Department, where he was most recently a Special Litigation Counsel in the Civil Rights Division. He litigated a number of employment discrimination and retaliation matters as well as Uniformed Services Employment and Reemployment Rights Act (USERRA) cases.

Notably, Mr. Bachman was the lead attorney and later the supervisory attorney for the Justice Department in a class action hiring discrimination lawsuit against the New York City Fire Department (FDNY). That case has led to a $98 million agreement in principle to compensate victims of discriminatory hiring practices, the largest in Justice Department history for a case of its type. Earlier court rulings ordered the City to overhaul its entry-level firefighter hiring process.

“OSC has been doing tremendous work and I’m very excited to join the office,” said Mr. Bachman.

Prior to his time at the Justice Department, Mr. Bachman was a partner at Wiggins, Childs, Quinn & Pantazis, PLLC, where he litigated class action and individual employment discrimination, retaliation, and Fair Labor Standards Act cases. He began his career as a staff attorney in the Jefferson County District Public Defender’s Office in Kentucky. Mr. Bachman has a J.D. from Georgetown University Law Center and a B.A. in History from Middlebury College.

“Eric is an outstanding civil rights attorney who has achieved significant victories on behalf of both individuals and the U.S. government,” said Special Counsel Carolyn Lerner. “We are delighted that he has joined our team.”

21

The Green Eggs and Ham Approach to Statutory Interpretation

First, here’s Green Eggs and Ham, by Dr. Seuss (1960):

Do you like green eggs and ham?
I do not like them, Sam-I-am.
I do not like green eggs and ham.

Would you like them here or there?
I would not like them here or there.
I would not like them anywhere.
I do not like green eggs and ham.
I do not like them, Sam-I-am.

Would you like them in a house?
Would you like them with a mouse?
I do not like them in a house.
I do not like them with a mouse.
I would not like them here or there.
I would not like them anywhere.
I do not like green eggs and ham.
I do not like them, Sam-I-am.

Would you eat them in a box?
Would you eat them with a fox?
Not in a box. Not with a fox.
Not in a house. Not with a mouse.
I would not like them here or there.
I would not like them anywhere.
I do not like green eggs and ham.
I do not like them, Sam-I-am.

Full text here: http://www.docstoc.com/docs/74029962/Green-Eggs-and-Ham-text—Green-Eggs-and-Ham-by-Dr-Seuss

And now for an example of legal reasoning that treats statutory interpretation as a Dr. Seuss tale, in which Congress’ failure to speak about one of a myriad of derivative issues denotes its assent or rejection of a contested position, as divined by the interested litigator. The rhetorical trick works like this:

Sam-I-am in this case is Congress, and green eggs and ham is whistleblower retaliation. The narrator is the party attempting to apply whistleblower protection to a disclosure and defend against retaliation. The law in this case is the logic of a Dr. Seuss tale. If Congress was not asked whether it liked green eggs and ham in the hearing room, and it did not say that it did not like green eggs and ham in the hearing room, then green eggs and ham in the hearing room is not unlawful and may take place.

More technically, it goes like this: take contested position X and put aside whether it is your burden to prove, disprove, or distinguish X. Now reframe the issue as one of hypertechnical, different-shade-of-grey standard Y, or unintended consequence Z, and shift that burden to the other party and force them to prove a negative – to overcome the fact that no evidence exists that Congress intended Y or Z. Now keep ignoring your burden to prove, disprove, or distinguish X and point to the absence of evidence to support Y or Z and argue that X must therefore fail, even if Y and Z are red herrings, strawmen, or nonsequiturs in relation to X.

Here are a few such examples in practice:

From Brief for Respondent, Merit Systems Protection Board, Daniels v. MSPB (9th Cir., docketed Nov. 8, 2013), pp. 23-24:

There is no evidence that Congress believed that an adjudicator’s issuance of a decision that may later be found contrary to law is a form of misconduct whose exposure it was seeking to encourage.

X in this example is whether a disclosure in the adjudication context is protected when Congress said that “any disclosure . . . of any violation of any law” is protected. Here, the Board recharacterizes the issue by forcing the other side to offer evidence that Congress intended Y (that an adjudicator’s decision could form a protected disclosure), even if Y is a subset of X and would not have merited Congress’ specific attention. In other words, what should be the Board’s burden to prove that Y can be distinguished from X is now the other party’s burden to prove that Y actually falls under X, thus chipping away X’s broad reach by default.

Another such example:

Comment by Tom Devine, Government Accountability Project, to a notice of proposed rulemaking by the Merit Systems Protection Board (July 23, 2012):

There is not a word of legislative history, or any record at all, that it was intended to require inconsistent standards for employees who start with the OSC, compared to starting with the Board. Nor is there any record basis that the amendments force the Board to discard the efficiency of the service standard or create an exception to the overriding requirement of 5 USC 7701(c)(1) that an agency must prove performance-based charges with substantial evidence, and misconduct based adverse action by a preponderance of the evidence.

X in this example is whether a law that requires employees to choose alternative, non-duplicative paths to hear their employment disputes requires a change in the Board’s regulations. The regulatory change (and the original law) have consequences – “inconsistent” standards for employees who begin down one path versus another, with some rights cut off. But need Congress have spoken on every consequence that would follow, even if not intended had it been brought to its attention? The form of argument is thus: “Choice X begets Consequence Z. Consequence Z is bad, and there is no evidence that this is what Congress desired, so therefore Choice X must not have been what Congress chose (or what the Board should apply).” This is a logical fallacy, however, where the conclusion that one is attempting to prove is included in the initial premises of an argument; the real question is what did Congress choose? If it chose X, and Z is a natural consequence, Z has to follow, whether intended or not. It will be an issue for another day whether that was a wise or informed decision.

After Public Comment, MSPB Foregoes Summary Judgment, Chooses ‘Option B’ for Proposed Jurisdictional Rule

Last November, the Merit Systems Protection Board solicited comments on four options to revise its jurisdictional rules. The options ranged from minor technical corrections to the radical (and in my view, unlawful) imposition of summary judgment in Board proceedings. After receiving comments from the community (including a bizarre bad cop/good cop schtick by the cabal currently in power), the Board decided to avoid the fight over summary judgment and propose a tweak to its regulatory definitions (see Option B). Comments are due by May 5, 2014 at mspb@mspb.gov or as directed in the proposal.

2

The Charade Surrounding the Hearing on CFPB’s Toxic Workplace

Let’s get a few things out of the way:

1. The fact that a whistleblower is testifying before Congress on toxic workplaces in the federal government is good and should be promoted (for its own merit, that is, as described below).

2. The fact that CFPB became inhospitable to work at in the 4 years since it came into existence is remarkable.

3. There is a process in place to investigate whether the merit system within CFPB is adequately protected from prohibited personnel practices such as discrimination and arbitrary denial of promotions, but this process is completely broken. I am, of course, talking about the MSPB’s dead-on-arrival Special Studies Function.

That said, what makes the hearing a charade is the fact that Republicans are trying to score points off CFPB to neuter it for political purposes, the Democrats don’t care about working conditions for the feds they claim to support, and the media is pretending to be aghast that this takes place in government and cynically wonders (without doing anything about it, that is) about conditions at other agencies. That this hearing took place at all is a product of partisanship, not genuine concern for the civil service.

7

This Brief in Daniels v. MSPB in the 9th Circuit is a Must-Read for Anyone Concerned about the MSPB’s Commitment to Merit Principles and Whistleblower Protection

At issue in Daniels v. MSPB in the Ninth Circuit in California is whether Mr. Daniels’ disclosures about an incorrect Social Security Administration benefits decision fall under “any violation of any law” under federal whistleblower laws. Mr. Daniels does a great job of showing the Court the “disdain” the Merit Systems Protection Board has for whistleblowers at times, citing to Congressional findings and this website’s statistical analysis. The docket in that case is available here.

Here’s a sampling of Mr. Daniels’ arguments:

Apparently, even Congress cannot teach an old dog new tricks. Despite the clarity of the WPA, Congress had to reiterate in the WPEA and in the Congressional Record that accompanied it that the definition of disclosure is very broad. It did not need to be re-defined by the Board, it needed to be applied! Still, the Board’s argument continues to hinge on the definition of disclosure [now further masqueraded by the definition of “violation”]. However, Congress minced no words when it faulted the MSPB and the Federal Circuit for basing their decisions thus.

And

Now, here the parties sit before this honorable Court litigating again over definitions of “any disclosure” and “any violation of any law” and what is included in those definitions, rather than addressing “the factual question of whether personnel action at issue in the case occurred ‘because of’ the protected disclosure.”

And

Mr. Daniels made five separate disclosures that he raised in his Individual Right of Action appeal to the Board. If the Court finds that even one of those disclosures was protected under the WPA, this case is over and must be found in favor of the Petitioner. If all five of them were protected, as Mr. Daniels alleges, this case highlights the egregious injustice levied against whistleblowers by the Merit Systems Protection Board through its continued defiance of Congress. This honorable court will then realize why statistics reflect irrefutable bias against employee appellants before the Board, year after year, and why Congress found it both prudent and necessary to expand 5 U.S.C. § 7703 to allow for an all-circuit review of the Board’s decisions.

Congress made clear that “it is critical that employees know that the protection for disclosing wrongdoing is extremely broad and will not be narrowed retroactively by future MSPB or court opinions.” Yet here we are.

And

Indeed, Congress has long recognized the disdain the Board has shown by undermining Congress’ broad definition of “any disclosure,” now “any violation of any law,” and by failing to protect Federal employees who risk their professional and financial futures by reporting waste, fraud, abuse or illegal activity. Id. With such a history, is it really a stretch to conclude that the Board would seek to sideline any decision of this Court that might criticize the Board for once again stifling clear Congressional intent?

Facing the bleak reality of a Board openly hostile to Congressional interest in protecting bona fide whistleblowers, Mr. Daniels asks the Court to issue a final decision in this case and not remand it to the Board for further action. Indeed, the Board has proven itself incapable and unwilling to grant whistleblowers the protections Congress has expressly enacted. That wrong can be corrected by this honorable court.

DownloadPetitioner’s Reply Brief in Daniels v. MSPB

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Related: MSPB Watch’s coverage of O’Donnell v. USDA

4

Disconnected from Reality: Civil Service ‘Reform’ Report Recommends Gutting Numerous Civil Rights Laws, Denying Access to Jury Trials, and Entrenching Injustice at MSPB

From pages 33-34 of this report by the Partnership for Public Service and Booz Allen Hamilton:

Administrative appeals of agency decisions to remove or discipline federal employees that are currently filed with the MSPB and/or the EEOC would now be handled by a single adjudicatory body, a reconstituted MSPB, with the exception of cases that have been brought to the OSC.

The MSPB is best positioned to expertly handle cases now brought to the EEOC and has an excellent track record of expeditiously and fairly dealing with employee disputes. The revamped board would investigate and render decisions on all employee disputes involving discipline or termination and ensure that due process rights are maintained. Further, there should be limited judicial review of an appeals authority in a single venue: the U.S. Court of Appeals for the Federal Circuit.

How It Would Work

Employees would file their complaint or appeal either through the negotiated grievance procedure if applicable or the reconstituted MSPB, but not both. If an appeal contains a formal complaint of discrimination or raises an allegation of discrimination in connection with some other management action, the case would fall under the jurisdiction of the MSPB, not the EEOC as is the case today.

The new MSPB would have increased resources and be empowered to investigate disputes and hold evidentiary hearings only if necessary, and would be required to render a final administrative decision within 120 days, a standard met today by the board in the cases it handles.

What this means, in practice, is no more access to federal district courts (jury trials) for numerous discrimination complaints for federal employees. All would be handled by a “revamped” MSPB (which has a track record of ruling for appellants less than 4 percent of the time – an “excellent track record” for rogue agencies, that is). Further, the Federal Circuit has a similar “excellent record” – of affirming the MSPB’s record 95 percent of the time.

This also means no jury trials for employees who allege racial, gender, age, or disability discrimination, or all-circuit review for whistleblowers. It also means allowing summary judgment in whistleblower and adverse action cases – something that Congress rejected in 1978.

This is the naked denial of civil rights and workplace justice under the banner of “reform.”

4

Office of Special Counsel Procures IG Services from the National Science Foundation

An email this morning from Nick Schwellenbach, OSC’s Communications Specialist:

Good morning,

As some of you know, Special Counsel Carolyn Lerner has long been exploring ways to provide Office of Special Counsel (OSC) employees with independent investigations if there are allegations of wrongdoing and prohibited personnel practices involving OSC senior management.

We’re pleased to announce that OSC recently entered into a memorandum of understanding (MOU) with the National Science Foundation’s Office of Inspector General (NSF-OIG). Under the MOU, the Special Counsel or a designated OSC point of contact may request that NSF-OIG provide, on a case-by-case basis and reimbursed by OSC, investigative services to address allegations by OSC employees of wrongdoing or prohibited personnel practices concerning senior OSC management.

If there are complaints made against the Special Counsel and the Principal Deputy Special Counsel they will be evaluated and investigated by the Council of Inspectors General on Integrity and Efficiency’s Integrity Committee as required by the Inspector General Reform Act of 2008.

Best regards,

Nick

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RelatedOSC Needs an Inspector General (Dec. 19, 2012)

Top IG Officials at the Commerce Department Retaliated Against Whistleblowers, OSC Finds

500px-US-DeptOfCommerce-Seal.svgAs a follow-up to this post from May 2013, two top officials at the Commerce Department Office of Inspector General, including one who was tasked with protecting whistleblowers, were found to have retaliated against two whistleblowers in that office, according to a report by the U.S. Office of Special Counsel. The House of Representatives’ Committee on Science, Space, and Technology is now calling for Todd J. Zinser, the Inspector General, to fire the officials.

OSC’s report found no direct “documentary evidence” that Mr. Zinser was aware of the actions of his management team, but it also found the actions taken by Zinser’s office in response to the OSC report “to be entirely insufficient and contemptuous,” according to a bipartisan committee letter and press release.

“Instead of parsing the law to defend your senior officials from the detailed and well-documented OSC report and recommendations, we believe this issue requires your direct attention, including the immediate termination of the two officials responsible for the whistleblower retaliation documented by the Office of Special Counsel,” the committee letter stated. “You also owe this Committee an explanation for the dismissive attitude you have taken towards the OSC’s findings.”

2

Nuclear Base Commander Extols Virtue of Whistleblowers in Resignation Letter

From the Associated Press‘ re-post of Col. Robert Stanley’s resignation letter titled “A Lesson to Remember”:

Wing One Colleagues,

Over the past few months, we have been forced to navigate through some of the roughest waters most of us have ever experienced professionally. We’ve seen the reputation of our beloved wing and America’s ICBM mission tarnished because of the extraordinarily selfish actions of officers entrusted with the most powerful weapon system ever devised by man. As you are now learning, the ramifications are dire. Many lives will be permanently changed as a result.

But this costly lesson must not be in vain.

The lesson? Had just one solitary airman spoken up for integrity, our leadership team would have been able to take action immediately.

Tragically, peer pressure and the fear of being an outcast prevailed. As a result, the misconduct had to be inadvertently discovered by OSI agents.

Think of how different the narrative would be had the silent Airman just come forward. That airman would now be lionized as a hero for casting aside his or her own fear of being made an outcast by a few inadequate peers.

That airman would have single-handedly preserved the honor and dignity of Malmstrom and all the wonderful people who make up this incredible wing.

But it didn’t happen. Wrong won out over right … the voice of integrity was silenced … and the good guy lost at the end of the movie.

This is a wake-up call for everyone who has lost their sense of right and wrong, for those who have become cynical and for those indoctrinated by modern society to acquiesce when faced with bad behavior.

“All that is necessary for evil to flourish is for good people to do nothing.” I highlighted this old axiom as the main point of my change of command speech a little over a year ago. I implored our formations of airmen that it never be said of Malmstrom that “we did nothing” in the face of evil. I can’t imagine a more vivid reinforcement of that lesson than what we’re going through now. . . .

This is perhaps a bit of wishful thinking on the part of Col. Stanley. I think we all know what would have happened to that imaginary airman. Perhaps he or she exists and was cast aside. But this letter is still worth noting, for two reasons:

One, its insights only came about because of a smart leadership call that embraced accountability and transparency. Perhaps there wasn’t a choice in the matter and the Air Force Secretary made the best call out of a set of bad choices. Nevertheless, had the leadership sent “business as usual” signals, there would’ve been no occasion for the author to see the virtue in whistleblowing.

Second, for this officer and those affected by this scandal, this is a “teachable moment” or turning point where the concept of whistleblowing can be engaged (perhaps for the first time) in a more realistic light, and not the caricature so often portrayed in the media and even among its champions.

Maybe this happens every time a scandal erupts: consequences are paid, insights are shared, platitudes spoken, and organizations soon forget the lessons and retreat into groupthink and tribal politics. But it seems to me that an effective whistleblower rights movement would seize this moment by making inroads with the affected Air Force community, at whatever appropriate level, and be willing to learn from and listen to its newest potential adherents, because that way lies the path to cultural acceptance.