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  • In a non-precedential decision, MSPB Chair Grundmann and Member Robbins exchanged non-binding and opposing views concerning the scope of the First Amendment in a claim of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)
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7 Courageous DHS Whistleblowers and a Bold Office of Special Counsel Blow the Lid on Egregious Overtime Abuse

From The Washington Post:

Federal employees at the Department of Homeland Security call it the “candy bowl,” a pot of overtime money they have long dipped into to pad their pay even if they haven’t earned it, whistleblowers say.

This practice, which can add up to 25 percent to a paycheck, has become so routine over the last generation that it’s often held out as a perk when government managers try to recruit new employees, according to these accounts.

In a report submitted to the White House and Congress on Thursday, the federal Office of Special Counsel (OSC) details what it calls a “profound and entrenched problem” at DHS and a “gross waste of government funds.” Based on the testimony of seven whistleblowers, the OSC concludes that the pervasive misuse of overtime pay in six DHS offices, including four within Customs and Border Protection (CBP), comes to $8.7 million a year.

Special Counsel Carolyn Lerner submitted the following letter to the President, expressing “deep concerns” about the “long-standing abuse of overtime payments” by DHS:

The agency’s report can be found here and one of the whistleblower’s comments can be found here.

Kudos to OSC, the whistleblowers, and the Disclosure Unit for a job well done.

OSC Defends Whistleblower Who Refused to Disclose Classified Information

OSC seal logoUsually it is the whistleblowers who are accused of disclosing classified information, but here is an example of a whistleblower suffering retaliation for refusing to disclose classified information.

On July 25, 2013, the U.S. Office of Special Counsel filed a stay request with the Merit Systems Protection Board on behalf of Brendan Hickey, an Immigration and Customs Enforcement special agent who refused to compromise an investigation and risk disclosing classified information.

The Board granted the stay request four days later. According to the Board, the agent was involved in a top secret, counter-proliferation investigation involving a confidential source provided by the Drug Enforcement Agency. At one point in 2012, he was ordered to create reports on the investigation in the Treasury Enforcement Communications System, but he refused to do so, explaining that the law prohibited the storage of top secret information on TECS.

“Knowing that TECS was not sufficiently secure to store investigative information related to classified material, Hickey believed that inputting such information into TECS would violate federal laws that restrict disclosure of classified information, such as 18 U.S.C. § 798,” the Board said. 

(18 U.S.C. 798 is believed to be one of the statutes NSA whistleblower Edward Snowden is alleged to have violated.)

After refusing to comply with other such orders, he was told by a superior that he would be insubordinate, and that “when you challenge the [Special Agent in Charge], you will lose.”

Hickey attempted to comply with the order while following the law, by entering only general details about investigation into TECS. But this was met with a supervisor’s threat to reassign him to “Puerto Rico, the Mexican border, or an immigration group outside his commuting area.”

After the birth of his child in March 2013, Hickey requested leave under the Family and Medical Leave Act. A month later he requested additional, open-ended leave due to medical issues experienced by his wife, necessitating his continued care and support at home. A few weeks later, his supervisors nominated him and another agent to a detail in Puerto Rico, the only two agents nominated in response to a nationwide call. Despite protesting, he reported there on July 8, 2013.

The Board issued a 45-day stay of the agent’s detail, effective August 5 through September 19, during which Hickey will remain in his position and perform regular duties as a Special Agent with ICE, assigned to the ICE office in Providence, Rhode Island (the stay is timed to allow him to complete his affairs in San Juan).

It is not uncommon for OSC to request additional stays while it conducts an investigation into the alleged agency retaliation.

MSPB Chair Susan Tsui Grundmann granted the stay request.

OSC ex rel Hickey v. DHS July 29, 2013

MSPB’s regulatory review comment period ends

Here are the comments that were submitted in response to MSPB’s unprecedented overhaul of its adjudicatory regulations:

Below is the proposed rule. The final rule is due in a few months.

Update – a few more comments:

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Source: http://www.mspb.gov/regulatoryreview/

Dissenters’ Digest for May 13-19

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every Saturday evening at www.mspbwatch.net/digest.

Federal Judge Strikes Down NDAA’s Indefinite Detention Provision: A federal judge in Brooklyn, New York struck down the indefinite detention provision of the National Defense Authorization Act, saying it constitutes an unconstitutional infringement on the First Amendment. The suit was brought by several journalists who feared their activities might fall under the reach of the law — substantially supporting al-Qaeda, the Taliban, or associated forces — without even knowing it, and facing indefinite detention for many years. The judge, Katherine Forrest, repeatedly offered government lawyers the opportunity to rebut the reporters’ fears, but they declined to do so.

Below the Fold:

Send tips to tips@mspbwatch.net.

Dissenters’ Digest for March 25-31

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every Saturday evening at www.mspbwatch.net/digest.

Department of Justice’s Recent Actions Worry Accountability and Transparency Advocates: A number of actions taken by the Department of Justice have caught the attention of government accountability groups and civil libertarians this week.

First, Wired reports that the FBI advised its agents in training materials that they may “bend or suspend the law and impinge upon the freedom of others” under certain situations. That training material has since been changed.

Next, a Senate Judiciary Committee hearing focused on the misconduct of federal prosecutors in the trial of the late Alaska Senator Ted Stevens. A $1 million525-page court-appointed report found that these prosecutors withheld key evidence from Stevens’ defense counsel, in violation of ethical rules. The Stevens case was dropped by Attorney General Holder in April 2009. Following the publication of the report on March 15, Senator Lisa Murkowski introduced legislation to prevent the reoccurrence of the same prosecutorial misconduct, which was met with anonymous opposition by DOJ officials. Emptywheel and the Blog of Legal Times have coverage of that opposition.

Finally, a DOJ proposed rule has caught the attention of Senators and FOIA advocates, who noted that DOJ seemed to be usurping the role of the newly-created FOIA ombudsman, the Office of Government Information Service (OGIS). OGIS is an agency within the National Archives and Records Administration (NARA), and was created by the OPEN Government Act of 2007 to mediate disputes between requesters and federal agencies. Its station with NARA is not without purpose, as housing it within DOJ – which is responsible for defending federal agencies in FOIA lawsuits – would have created a conflict of interest. Senators Patrick Leahy and Jon Kyl sent a letter to Attorney General Eric Holder expressing their concerns, the Project on Government Oversight reports. DOJ’s Office of Public Affairs responded to POGO with a clarification that seems to put that particular matter to rest, but another FOIA matter is still under dispute.

Supreme Court Weakens Privacy Act: In a 5-3 decision, the Supreme Court held that the Privacy Act does not authorize damages for emotional distress, NPR reports. The suit was brought by a pilot who sued the Social Security Administration for disclosing information to the FAA relating to his HIV status, causing him to lose his license and suffer emotional distress. In a dissenting opinion joined by Justices Breyer and Ginsburg, Justice Sotomayor writes that the ruling “cripples the Act’s core purpose of redressing and deterring violations of privacy interests.” The Washington Post has additional coverage.

Congressmen Support Long-Suffering Whistleblower: Three House members recently submitted an amicus curiae brief to the Court of Appeals for the Federal Circuit in support of TSA Whistleblower Robert MacLean, according to the Orange County Register. In 2003, MacLean disclosed to the press a TSA plan to cut back on federal air marshals at a time of heightened security alerts. This prompted congressional outrage and the TSA plan was scrapped. MacLean’s case has been tied up in litigation since 2006, when he was terminated from the TSA. GovExec and GAP have additional coverage.

Obama Official Declares “Zero Tolerance” on Veterans’ Discrimination: John Berry, director of the U.S. Office of Personnel Management, declared “zero tolerance” for discrimination against uniformed service members returning to their civilian jobs. Berry’s comments follow a report last month by The Washington Post that the U.S. government is the top offender of USERRA, the Uniformed Service Employment and Reemployment Rights Act, which is designed to protect service members from discrimination in the workplace.

Below the Fold:

  • The State Department moves to fire a prominent critic and whistleblower.
  • GAO: Air Force has a disproportionate number of whistle-blower complaints within DOD.
  • OccupyEPA takes to the streets, demands administrator’s resignation.
  • A foreclosure fraud whistleblower reports being harassed by mortgage lender despite winning an $18 million award.
  • A whistleblowers’ lawyer and a corporate lawyer mix it up on a whistleblower panel.
  • Senator Daniel Akaka (D-HI) introduces a bill to reform the Senior Executive Service.
  • The U.S. Merit Systems Protection Board took no action to study work conditions at the Office of Special Counsel following the controversial tenure of ex-Special Counsel Scott Bloch, according to a recent FOIA request.
  • A House subcommittee holds a hearing on low morale at the Department of Homeland Security but fails to call any employees as witnesses.

Send tips to info at mspbwatch dot net.

MSPB Weekly Case Report Highlights: MSPB holds disclosures made to upper management are not within “normal channels”

From this week’s MSPB Case Report:

Appellant:  Diane Ontivero
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 45
Docket Number:  AT-1221-11-0597-W-1
Issuance Date:  March 28, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 – Jurisdiction
 – Protected Disclosure
 – Contributing Factor

The appellant petitioned for review of an initial decision that dismissed her IRA appeal for lack of jurisdiction.  The appellant’s duties included responsibilty for making credit card purchases on behalf of the agency.  In a series of emails to agency employees and managers, she alleged that agency officials requested that she improperly use her government credit card in violation of agency rules and regulations.  She alleged that, at the end of the next performance evaluation period, she received only an “achieved expectations” rating, and that this rating was taken in retaliation for her disclosures.  On appeal to the Board, the administrative judge dismissed the appeal for lack of jurisdiction.  The judge found that the appellant’s disclosures were not protected because they were made as part of her “normal duties” within “normal channels.”  The judge further found that, even if the disclosures had been made outside of “normal channels,” she failed to show that she reasonably believed that her disclosures concerned violations of law, rule, or regulation.

Holdings:  The Board reversed the initial decision, finding that the appellant established jurisdiction, and remanded the appeal to the regional office for adjudication on the merits:

1.  The appellant made a nonfrivolous allegation that her disclosures were protected.

a.  As the appellant made her disclosures to agency officials in upper management, the disclosures cannot be considered to have been made within “normal channels.”

b.  The appellant established that she had a reasonable belief that the information she disclosed showed a violation of the agency’s government credit card rules and policy.  

2.  The appellant made a nonfrivolous allegation that her disclosures were a contributing factor in her performance evaluation by establishing that the official taking the action was aware of her disclosures, and the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.  

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The U.S. Court of Appeals for the Federal Circuit issued a nonprecedential decision in the following case:

Dolinsky v. Department of Homeland Security, No. 2011-3140 (March 23, 2012) (MSPB Docket No. CH-1221-09-0173-M-1) (affirming the Board’s decision, which denied corrective action under the Whistleblower Protection Act)

Will NGO politics get in the way of zealously representing a whistleblower in court?

In 2003, Federal Air Marshal Robert MacLean blew the whistle on a TSA plan to cut back air marshals for long distance flights – the very flights taken by the 9/11 terrorists. TSA notified MacLean and the other marshals via unsecured text message. The reason for the cutback was so TSA could save money on hotels for its marshals, at the same time it was handing out bonuses to TSA senior management.

MacLean went to his supervisor and to the Inspector General but neither did anything. Eventually, he went to an MSNBC reporter. As a result, Congress became outraged and the TSA plan was scrapped.

MacLean’s disclosure eventually got him fired, but not before TSA retroactively marked the unsecured text message “Sensitive Security Information,” which could then justify his firing.

After going through rounds of litigation, at both the federal judiciary and an administrative kangaroo court that is the Merit Systems Protection Board (MSPB), MacLean’s case is now at the Federal Circuit Court of Appeals.

Importantly, in 2011, the Obama-appointed MSPB court upheld a Bush-appointed MSPB decision from 2009 finding against MacLean and justifying his termination. To do this, both courts had to ignore clear legislative text and congressional intent.

(As an aside, the Obama-appointed MSPB Chair, Susan Tsui Grundmann, allegedly apologized to MacLean’s attorney at an informal social gathering for coming up with the decision against his client, saying that the Board worked for months to come up with a way around the 2009 decision, to no avail. However, a cursory look at the 2011 decision reveals that it was probably written over the course of a weekend, inexcusably ratifying politically-motivated, whistleblower-hostile arguments that have no bearing to the law. If there were ever an argument that the MSPB is independent from the administration in name only, MacLean’s case is it.)

In any event, MacLean is fighting this decision on appeal. One of the points made by MSPB in the 2011 decision is that MacLean’s disclosures would might have been protected if he went to the Office of Special Counsel. However, he did not know of OSC at the time he blew the whistle, nor was DHS educating its employees about OSC, and it’s doubtful whether OSC was even willing or able to receive any sensitive, secure disclosures.

Therefore, MacLean was in no position to go to OSC. If so, why should he be punished for acting out of conscience and possibly preventing another 9/11, when TSA and OSC provided him with no means of disclosing information, and years later a partisan court rubberstamps retaliation by imposing on him a requirement he couldn’t meet at the time? Aren’t we second-guessing the brave men and women who are on the front-lines of homeland defense, to our collective detriment?

This is the essence of a proposed amicus brief to bring to the attention of the Federal Circuit judges the Catch 22 described above. To do this, I made a FOIA request to OSC to see if it was in a position to accept disclosures prohibited by law – the kind of disclosure MacLean is alleged to have made. Time is of the essence though, as the brief has to be submitted by March 23.

Unfortunately, OSC is refusing to grant a request for expedited processing. There is one possibility, though, as under the law an expedited request may be made by “a person primarily engaged in disseminating information, an urgency exists to inform the public about an actual or alleged federal government activity.” (This blog likely does not qualify, as OSC defines “a person primarily engaged in disseminating information” as “a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation.” As a part-time hobby, MSPB Watch likely does not qualify.)

Which leaves the good government groups who support MacLean – the Government Accountability Project and the Project on Government Oversight – as the only ones who can come through for him.

The question remains whether they will work to ensure that OSC provides the relevant information needed to file the amicus brief.

It bears mentioning that, in 2008 and 2009, GAP relied on its work on behalf of MacLean to justify its tax-exempt status. On the other hand, GAP’s Legal Director recently stated that “Everybody knows that Title 5 [executive branch] employees can make classified disclosures to OSC.” As I stated in that post, this is contradicted by MacLean’s actions (as well as that of another GAP client, Thomas Drake).

Given the Federal Circuit’s track record on appeals from MSPB, one would hope that GAP would suborn its political agenda and do everything it reasonably can for its client, as part of its obligations to zealously represent him.