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.

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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 Case Report Roundup for April 27

From this week’s MSPB Case Report:

Appellant:  Joseph Vick
Agency:  Department of Transportation
Decision Number:  2012 MSPB 58
Docket Number:  DA-1221-10-0725-W-1
Issuance Date:  April 20, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
Mootness

The appellant petitioned for review of an initial decision that dismissed his IRA appeal as moot.  The appellant alleged that the agency had suspended him in retaliation for protected whistleblowing disclosures.  During the processing of the appeal, the agency submitted documentation that it had cancelled the suspension and taken other remedial action, and argued that the appeal was therefore moot.  Finding that the only remaining issue was the appellant’s outstanding attorney fees, the administrative judge dismissed the appeal as moot.

Holding:  The Board vacated the initial decision and remanded the appeal to the regional office for further adjudication.   A request for attorney fees in an IRA appeal is a claim for corrective action.  Accordingly, the appeal is not moot.  

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Appellant:  Donald W. Cassidy
Agency:  Department of Justice
Decision Number:  2012 MSPB 60
Docket Number:  DA-1221-11-0365-W-1
Issuance Date:  April 25, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act 
 – Jurisdiction
 – Exhaustion
 – Protected Disclosure
 – Contributing Factor

The appellant, a GS-15 Deputy Chief Counsel with the Immigration and Customs Enforcement, petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction.  He alleged that his nonselection for two Immigration Judge positions with the Department of Justice were in retaliation for complaints he made to the Assistant Chief Immigration Judge concerning the conduct of another immigration judge under his supervision.  On appeal to the Board, the administrative judge found that the appellant had exhausted his remedy with the Office of Special Counsel (OSC) with respect to five alleged disclosures and the two nonselections, but dismissed the appeal for lack of jurisdiction on the ground that the appellant failed to make a nonfrivolous allegation that he made a protected disclosure.

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 Board agreed with the administrative judge’s determination that the appellant exhausted his remedy with OSC with respect to five alleged disclosures and the two nonselections.

2.  The Board agreed with the judge’s determination that the appellant failed to make a nonfrivolous allegation that four of his alleged disclosures — that an immigration judge was late, ineffective and inefficient on the bench, caused a loss of government time, and caused a loss of government money — were protected.

3.  The Board found that the appellant made a nonfrivolous allegation that his fifth disclosure — that the immigration judge’s conduct and unnecessary delays violated the due process rights of detained aliens — was protected, in that he reasonably believed that he was disclosing a violation of law, rule, or regulation.

a.  Although the administrative judge faulted the appellant for not providing a bright line rule concerning the due process rights of detained aliens, this issue is unclear and has been the subject of extensive federal court litigation.

b.  The appellant’s allegations that the delays not only deprived detained aliens of due process rights, but also violated a class action settlement agreement that required an alien’s initial appearance before an immigration judge within 48 hours, is a nonfrivolous allegation of a violation of law, rule, or regulation.

4.  The appellant made a nonfrivolous allegation that his disclosures were a contributing factor in his nonselection for the two positions.  Although the Assistant Chief Immigration Judge to whom the appellant made the disclosures did not make the ultimate decision regarding the appellant’s nonselection, the appellant made a nonfrivolous allegation that the Assistant Chief Judge influenced the selection panelists.

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DECISION

Complainant:  Mia Macy
Agency:  Department of Justice
Appeal Number:  0120120821
Issuance Date:  April 20, 2012

Discrimination – Sex

HoldingThe EEOC held that “discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII . . . .”

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)