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

Notable Decisions and Rulings

  • MSPB affirmed the reversal of two GSA executives’ removals, finding the agency failed to establish the executives had directed or had knowledge of misconduct surrounding wasteful conference spending in 2010. Prouty & Weller v. GSA, 2014 MSPB 90 (2014).
  • MSPB upheld the removal of the director of the Phoenix, Arizona VA Medical Center, under the Veterans Access, Choice, and Accountability Act of 2014, for taking gratuities from a contractor. Helman v. Dep’t of Veterans AffairsDE-0707-15-0091-J-1 (Dec. 22, 2014).

OSC Corrective Actions

  • OSC honored three VA whistleblowers with Public Servant of the Year award. (Dec. 3, 2013) (video of ceremony)
  • OSC reinstated a whistleblowing Federal Bureau of Prisons Physician. (Dec. 11, 2014)
  • OSC prevented the removal of a TSA inspector in Charleston, South Carolina. (Dec. 16, 2014)

Other Items of Note

  • OPM released the Federal Employee Viewpoint results for 2014. OSC and MSPB’s annual rankings for small agencies, as measured by the Partnership for Public Service, are available here.

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

Notable Decisions and Rulings

Seal of the Department of Veterans Affairs

Seal of the Department of Veterans Affairs

  • The MSPB held that an appellant’s “disclosure to a federal judge that agency officials’ threats — of criminal charges and employment actions — to potential witnesses to a criminal trial constitutes a nonfrivolous allegation that he engaged in whistleblowing by disclosing a purported abuse of authority.” Linder v. Dep’t of Justice, 2014 MSPB 84 (2014).
  • MSPB issued its first agency decision in expedited proceedings under the Veterans Access, Choice, and Accountability Act of 2014, upholding the removal of the director of the Central Alabama Veterans Administration Healthcare System. Talton v. Dep’t of Veterans Affairs, AT-0707-15-0094-J-1 (Nov. 19, 2014).

Reports, Studies, and Newsletters

Other Items of Note

  • MSPB filed an intervenor’s brief in Clarke v. Department of Veterans Affairs, which is currently pending in the U.S. Court of Appeals for the Federal Circuit. OSC previously filed a brief in this case. (Nov. 18, 2014)
  • The U.S. Government Accountability Office issued a report comparing OSC and the Department of Labor in handling complaints under a USERRA pilot project. OSC objected to the GAO’s conclusions and methodology. (Nov. 25, 2014)
1

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

480px-United_States_Department_of_the_Army_Seal.svg

Seal of the U.S. Department of the Army

Notable Decisions and Rulings

  • Continuing with a line of cases dealing with retroactivity of the Whistleblower Protection Enhancement Act, the MSPB “decline[d] to apply the new IRA appeal right in section 101(b)(1)(A) of the WPEA as it pertains to the PPPs described at 5 U.S.C. § 2302(b)(9)(A)(i) and (b)(9)(C) [retroactively] because doing so would increase a party’s liability for past conduct as compared to pre-WPEA liability.” Colbert v. Dep’t of Veterans Affairs, 2014 MSPB 80 (Oct. 16, 2014)
  • In a precedential decision reversing the MSPB’s decision upholding the removal of a CBP officer, the U.S. Court of Appeals for the Federal Circuit held that the officer, who inadvertently sent an email containing social security numbers to a congressional staffer but who managed to have the staffer delete the email without reading it, did not commit a privacy act violation necessarily warranting his removal. Wrocklage v. Dep’t of Homeland Security, 2013-3159 (Fed. Cir. Oct. 21, 2014)

OSC Filings and Press Releases

  • OSC issued a press release announcing that it obtained a stay request with the MSPB temporarily stopping the proposed removal of an Army police officer who alleged that fellow officers were receiving unearned pay. (Oct. 9/10, 2014)
  • OSC issued a press release announcing that, in response to its investigation, the Department of the Army modified a regulation that could disqualify civilian employees from holding sensitive positions based on their sexual orientation, in violation of 5 U.S.C. 2302(b)(10), which is discrimination based on off-duty conduct that does not affect job performance. (Oct. 16, 2014)
  • OSC issued a press release announcing that the Army engaged in gender identity discrimination against a civilian quality assurance specialist who underwent gender transition and endured hostility as a result. OSC released a redacted prohibited personnel practice report in conjunction with its announcement. (Oct. 23, 2014)
  • OSC issued a press release announcing that it filed a complaint for disciplinary action with the MSPB against an Army Corps of Engineers employee who ran for partisan office in Arkansas while holding federal office, in violation of the Hatch Act. (Oct. 24, 2014)

Other Items of Note

  • The Department of Justice forwarded a report to Senators Grassley and Wyden on proposed modifications to the FBI’s whistleblower protections. (Oct. 17 2014)
  • MSPB adopted as final an interim rule that adapted the Board’s regulations to VA SES removal proceedings. (Oct. 22, 2014)

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

U.S. Capitol Dome | By Architect of the Capitol, Wikimedia Commons

U.S. Capitol Dome | By Architect of the Capitol, Wikimedia Commons

Notable Decisions and Rulings

  • In a non-precedential decision, MSPB Chair Grundmann and Member Robbins exchanged non-binding and opposing views concerning the scope of the First Amendment in a claim of non-whistleblower retaliation brought by the Office of Special Counsel. Special Counsel ex rel. Cefalu v. Dep’t of JusticeCB-1214-13-0187-T-1 (Sept. 8, 2014) (coverage)
  • A Special Panel convened to resolve disagreements between the MSPB and EEOC held oral arguments (video) to determine whether time and attendance are “essential functions” of a job position for the purposes of a reasonable accommodation under disability law. The Panel’s decision affirmed the EEOC’s interpretation, finding that time and attendance requirements must yield to the employee’s disability. Alvara v. Dep’t of Homeland Security, 2014 MSPB 77 (Special Panel; Sept. 29, 2014)

Reports, Studies, and Newsletters

OSC Filings and Disclosures

Other Items of Note

  • The House Oversight and Government Reform Committee held a hearing titled “Examining the Administration’s Treatment of Whistleblowers.” Special Counsel Lerner and MSPB Chairman Grundmann testified. (Sept. 9, 2014)
  • The MSPB held a Sunshine Act meeting to discuss research topics for its special studies function. (Sept. 16, 2014)
  • Following publicized calls by the White House to increase OSC’s budget to deal with fallout from the Department of Veterans Affairs backlog scandal, Congress appropriated OSC $22.9 million for Fiscal Year 2015. (Sept. 19, 2014)
  • The President signed the All Circuit Review Extension Act of 2014, extending the Whistleblower Protection Enhancement Act’s all-circuit review pilot program by an additional three years. Now, appellants with Individual Right of Action cases may appeal final decisions by the Board to any applicable federal appellate court, not merely the Federal Circuit, until December 27, 2017. (Sept. 26, 2014)

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

Iwo Jima Memorial | By Francisco Diez, via Wikimedia Commons

Iwo Jima Memorial | By Francisco Diez, via Wikimedia Commons

Notable Decisions and Rulings

  • The FBI is an agency specifically excluded from USERRA jurisdiction before the Board, whether the employee’s claim pertains to reemployment or discrimination. Erlendson v. Dep’t of Justice, 2014 MSPB 61 (Aug. 4, 2014)
  • Finding that jurisdiction now exists over claims of reprisal for assisting a coworker in a grievance proceeding in an Individual Right of Action, the Board applied the knowledge/timing contributing-factor test from whistleblower reprisal cases to a case involving protected activity. The Board also held that, at the jurisdictional stage, an administrative judge “may not weigh evidence and resolve conflicting assertions of the parties, and the agency’s evidence may not be dispositive.” Carney v. Dep’t of Veterans Affairs, 2014 MSPB 62 (Aug. 6, 2014)
  • In a mixed case on appeal from the Equal Employment Opportunity Commission, the Board disagreed with the EEOC’s interpretation of a civil service law, rule, or regulation, finding that the EEOC’s decision is “so unreasonable that it amounts to a violation of civil service law, rule, or regulation,” thus declining to defer to it. The case then headed to a “special panel” composed of EEOC and MSPB members and a former NLRB member. Alvara v. Dep’t of Homeland Security, 2014 MSPB 63 (Aug. 13, 2014)

Reports, Studies, and Newsletters

OSC Filings and Disclosures

  • Special Counsel Lerner referred to the President findings on whistleblower disclosures from a former psychiatrist at the Department of Veterans Affairs in Brockton, Massachusetts, who alleged that VA employees “failed to provide appropriate medical and mental health care to individuals residing in the long-term car units.” Agency reports and the whistleblower’s comments are available here. (Aug. 7, 2014)
  • OSC issued a press release announcing that it filed an amicus curiae brief with the U.S. Court of Appeals for the Federal Circuit in Colin Clarke v. Dep’t of Veterans Affairs, arguing that the MSPB’s decision in that case created “significant procedural hurdles for federal employees alleging whistleblower retaliation.” Mr. Clarke’s opening brief is available here. (Aug. 14, 2014)
  • OSC obtained a stay request on behalf of a supervisory human resources specialist at the Small Business Administration who alleged favoritism in hiring and other manipulations of HR processes. (Aug. 20, 2014)
  • OSC issued a press release announcing that it obtained a stay request on behalf of a USDA whistleblower who objected to “inhumane conditions in a hog slaughterhouse.” (Aug. 21, 2014)

Other Items of Note

  • MSPB announced a Sunshine Act meeting for mid-September to consider suggested topics for its special studies function. (Aug. 14, 2014)
  • MSPB issued a corrected interim final rule implementing the due process provisions of the Veterans Access, Choice, and Accountability Act of 2014. A break-down of the rule is available here. (Aug. 19, 21, 2014)
  • The House Science Committee sent another letter to Department of Commerce Inspector General Todd Zinser, expressing concerns that his office has been trying to identify and punish subordinates who may have contacted OSC or committee staffers who are investigating the IG’s ongoing misconduct. (Aug. 26, 2014)
13

Can the U.S. Constitution Protect Against a Retaliatory Termination?

First Amendment of the U.S. Constitution | By dbking, via Wikimedia Commons

That’s the question, more or less, at the heart of an interesting debate between two merit board members in a case involving a criminal investigator agent removed for his subpoenaed testimony.

The U.S. Office of Special Counsel filed a complaint before the Merit Systems Protection Board to reverse the removal of Vincent Cefalu, a Criminal Investigator with the Department of Justice. The DOJ has accused him of lack of candor while testifying under subpoena during a criminal suppression hearing.

The OSC is claiming that the DOJ committed a prohibited personnel practice under 5 U.S.C. § 2302(b)(12) by violating Mr. Cefalu’s rights under the First Amendment to the U.S. Constitution via the removal. (Mr. Cefalu’s speech does not seem to implicate whistleblower protection in this opinion.)

The provision at issue, 5 U.S.C. § 2302(b)(12), states that it is a prohibited personnel practice for an agency to “take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.”

To invoke 5 U.S.C. § 2302(b)(12), the relevant party needs to follow a two-step process: (1) finding that the personnel action violates a law, and (2) that the law implements or directly concerns a merit system principle.

The relevant merit system principle here is 5 U.S.C. § 2301(b)(2):

All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.

Board precedent says that the merit system principles are not “self-executing,” i.e., that it is not the violation of the merit system principles themselves that gives rise to a prohibited personnel practice, but a law that “implements” or “directly concerns” such principles.

At issue in this case is whether the First Amendment is such a law.

That’s where the Board members diverged. Vice Chair Anne Wagner recused herself, and Chairman Susan Grundmann and Member Mark Robbins diverged, leaving no precedential opinion on the matter. Ms. Grundmann opined that the First Amendment is a “law” that “directly concerns” the merit system principles, whereas Mr. Robbins disagreed. Each opinion analyzed Board precedent.

A rather high-level point of contention was about the role of the Constitution’s protections and purpose as they relate to the federal civil service.

Mr. Robbins claimed that to “reduce the Constitution to the nature of a codified statute … for enforcement of a merit system principle as a prohibited personnel practice (PPP), demeans the true nature of our Constitution.”

“As the Preamble states, it was established ‘to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty[.]’ Notably missing here is any mention of enforcing a merit system principle as a PPP,” he said.

Nevertheless, Mr. Robbins conceded the “close-call nature of the arguments presented by both the agency and OSC.”

For her part, Ms. Grundmann argued that “I simply disagree with my colleague that viewing the Constitution as ‘directly concerning’ not only the bedrock principles of equal treatment and fairness, but, specifically, the principle that the federal government administer its personnel system with due regard for the constitutional rights of its employees, diminishes the import of that document.”

Another point of dispute–one relevant to tenured federal employees and their attorneys–is whether future litigants may use the Constitution as an affirmative defense against discrimination or retaliation. Here, too, the authors diverged.

Mr. Robbins argued that “[t]he Board is potentially inviting every adverse action to be turned into a consideration and determination of an appellant’s constitutional rights, either by way of an OSC investigation, or as an affirmative defense raised in an appeal to the Board. Even a quick review of the Constitution raises some intriguing possibilities for creative constitutionally-based affirmative defenses.”

Ms. Grundmann contested this point, stating simply that she does not “see the ‘intriguing possibilities’ that would ensue from recognizing the Board’s statutory authority—whether in adjudicating chapter 75 affirmative defenses or remedying PPPs—to consider whether an agency action was taken in violation of an employee’s First Amendment rights.”

The case was remanded for further adjudication, leaving the precise question of the Constitution’s role in the federal civil service unresolved for now.

DownloadSpecial Counsel ex rel. Cefalu v. Dep’t of Justice (Sept. 8, 2014)

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

Lady Justice | Source: ChvhLR10, via Wikimedia Commons

Notable Decisions and Rulings

  • Under the procedural due process analysis, the Board will flexibly weigh the cost of additional agency procedures to guard against the risk of erroneous deprivation of an appellant’s private interests. In a furlough action, the risk of erroneous deprivation of 6 days of work does not warrant presenting a response to the furlough action outside of established mechanisms used to process thousands of cases. Vice Chair Wagner dissented. Gajdos v. Dep’t of the Army, 2014 MSPB 55 (July 22, 2014)
  • Citing to requirements in the Whistleblower Protection Enhancement Act, the Board held that when an appellant makes a protected disclosure in the normal course of her duties, 5 U.S.C. 2302 now requires her to prove that the personnel action was taken in retaliation for the disclosure – i.e. with an improper motive, rather than within a close period of time that implies retaliation. Benton-Flores v. Dep’t of Defense, 2014 MSPB 60 (July 31, 2014)

Reports, Studies, and Newsletters

Other Items of Note

  • Special Counsel Lerner appeared with Deputy Special Counsel Eric Bachman before the House VA Committee’s hearing on “VA Whistleblowers: Exposing Inadequate Service Provided to Veterans and Ensuring Appropriate Accountability.” (July 8, 2014)
  • OSC issued a press release announcing that it obtained disciplinary action in two Hatch Act cases. (July 10, 2014)
  • Special Counsel Lerner appeared with Hatch Act Unit Chief Ana Galindo-Marrone before the House Oversight Committee’s hearing on “White House Office of Political Affairs: Is Supporting Candidates and Campaign Fund-Raising an Appropriate Use of a Government Office?”(July 16, 2014)
  • The House Science Committee issued a scathing letter to Commerce Department Inspector General Todd J. Zinser concerning the continued employment of his deputies who were found to have retaliated against DOC IG staffers. The deputies were removed the following month. (July 16, 2014)
2

Litigation Tip for Whistleblowers and Appellants: Making Sense of Discovery Deadlines

Here is a quick and dirty rundown of 5 C.F.R. 1201.73, the MSPB’s regulation on discovery timelines. As always, this is for general informational purposes only – make sure to study the discovery regulations for yourself as laws change. Additionally, the judge may issue an order that supersedes or conflicts with the schedule below.

MSPB DISCOVERY SCHEDULE PER 5 C.F.R. 1201.73

*Appellant files appeal

*Acknowledgement Order issued

*AO+20: Agency deadline to file Agency File [5 C.F.R. 1201.22]

*AO+30: Deadline for initial requests to be served on party. State time to respond in request – 20 days

*Discovery Request+20: Deadline for responding party to submit response [provides info, agrees to make depondent available (deposition may be later), or states objection] [AO+50]

*Response+10: Deadline for subsequent discovery request that’s related to previous request [AO+60]

*Response+10: Deadline to file motion for order to compel or issue subpoena [following good-faith narrowing discussion; motion must include copy of original request and statement showing info is discoverable, copy of good faith discussion, and copy of response to request or statement+affidavit that none has been received] [AO+60] [Note that “Response” may arrive before AO+50, and therefore “Response+10” deadline might occur before AO+60]

*Motion+10: Deadline to file opposition to motion to compel/subpoena [AO+70]

*Judge issues Order: compelled party has 20 days to respond. See “Discovery Request+20” for next steps

Note: the Board defines “day” as calendar day. See 5 C.F.R. 1201.4(h). Also of note is 5 C.F.R. 1201.23, which governs what happens when a deadline falls on a weekend or federal holiday.

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)