An unnamed pilot posted videos on YouTube showing how baggage handlers can access aircraft just by swiping their ID cards at a door. Meanwhile, TSA subjects pilots to thorough searches, even those some pilots are permitted to carry firearms on-board, and have access to a hand ax in the cockpit. Now, the Transportation Security Agency (TSA) has responded -- not by addressing the security issues, but rather by subjecting the pilot to an investigation. According to San Francisco attorney Don Wersto, federal authorities have confiscated the pilot's firearm and removed him from a program that trained pilots on advanced security procedures.Mr. Werno told the Associated Press that the pilot has now removed the videos from YouTube. They had documented the difference in security screenings between pilots and ground crews at San Francisco International Airport. The episode raises a concern that TSA is more concerned about its public image than it is about real security. Real security policy makers welcome disclosures about weaknesses in current practices that they can fix. Hopefully, Mr. Wersto will be advising his client about the right to file a retaliation claim within the 90-day time limit under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR 21").
We have received confirmation from two sources that a Senator has placed an anonymous hold on S. 372, the Senate's flawed version of the Whistleblower Protection Enhancement Act (WPEA). This hold effectively kills the bill as the Senate adjourned tonight until the next Senate is seated. Earlier this evening, the House passed a modified version of S. 372. The House's modification was to remove the provisions for employees of intelligence agencies.
Hopefully, there will be unity for strong whistleblower reforms that the entire whistleblower rights community can support in next Congress. It won't be easy after the recent conflict, but unity is required for true reform.
Captain Dan Hanley (center in photo) is the host of the Whistleblowing Airline Employees Blog Talk Radio Program and a leader of the Whistleblowing Airline Employees Association. He is a former United Airlines pilot, and succeeded in getting the Securities and Exchange Commission to investigate improprieties in United's bankruptcy. When the Senate passed its flawed version of the Whistleblower Protection Enhancement Act (WPEA), S. 372, and the National Whistleblowers Center called on the House to fix the flaws, Capt. Hanley initially signed onto a letter urging NWC to support House passage of S. 372, as is. Now he has retracted his support of that letter. Here is what he says today through Facebook:
My overriding concern is the continued corruption that lies within the DOJ and all intelligence services, which will be exacerbated with passage of the bill in its present form. It is for these reasons that, although some improvements were achieved in specific areas, the overall bill is sorely lacking in areas of import to me and our association.
S. 372 would coral the whistleblower complaints of federal employees in the intelligence agencies to a panel run by the heads of those agencies. Capt. Hanley now rejects the idea that we can advance our cause with legislation that is "sorely lacking in the areas of import to me and our association."
When the Iraq was was about to begin, Bunny Greenhouse alone challenged the legality of awarding no-bid, no-compete, cost plus contract to Haliburton. The Army swiftly retaliated and she lost her career and position as the Army Corps of Engineers top procurement executive. Today Bunny spoke out against S.732, the Senate's version of a Whistleblower Enhancement Act, asking the House to ensure that the "poisons pills packed into S.732" be removed instead of passing the bill in its current state. Bunny would be one of the first beneficiaries if a whistleblower enhancement bill were passed because she can still bring that claim. But Bunny realizes that "the Senate's version of this bill treats whistleblowers as second-class citizens, rolls back some existing protections and leaves national security whistleblowers out in the cold." Congress needs to deliver a meaningful whistleblower bill Bunny Greenhouse and all of the nation's federal workforce deserve - one that doesn't treat whistlebowers as second-class citizens or that rolls-back existing protections.
You can join Bunny Greenhouse in taking action to urge the House of Representatives to correct the flaws in S. 372.
My client, Dr. David L. Lewis, is issuing an open letter today urging the House of Representatives to correct the "the grievous and manifold shortcomings in S. 372 before voting on it." He also urges his fellow citizens to join him in taking action to share his concerns with their representatives.
Dr. Lewis was a top microbiologist at the U.S. Environmental Protection Agency (EPA). He raised the standards for dental hygiene worldwide when he showed how previous practices were inadequate to protect dental patients from the transmission of HIV. He showed how EPA's rules for land application of sewage sludge did not have the scientific support needed to protect us from airborne diseases. That is when "industry representatives and EPA managers went ballistic." His retaliation case is still pending.
He is today concerned that:
- S. 372 ― for the first time ever ― would deny protection to federal employees if a judge finds that violations of law exposed by whistleblowers were “minor,” “inadvertent,” or committed when the violator was engaged in a “conscientious carrying out of official duties.” Every federal manager faced with a whistleblower retaliation claim will be hiding under this gaping loophole.
- S. 372 would deny protection for whistleblowers who challenge an act of discretionary authority, or any retaliation against other whistleblowers. These exclusions would render whistleblowers even more powerless to prevent waste, fraud, abuse and violations of law within the federal government.
- S. 372 would allow judges on the Merit System Protection Board (MSPB) to dismiss whistleblower cases without any hearing. Due to all of the loopholes already at the disposal of employers who retaliate, federal employees prevail in less than 2% of the cases that proceed to a hearing. The current system needs to provide more fairness to whistleblowers ─ not to make it even more burdensome to prevail.
He urges everyone to Take Action by contacting their representatives. The full text of his letter follows in the continuation of this entry.Continue Reading...
Stephen M. Kohn, Executive Director of the National Whistleblowers Center, wrote a history lesson published today by England's Guardian. Responding to recent calls to prosecute WikiLeaks and Bradley Manning under the 1917 Espionage Act, Kohn recounts how the Espionage Act was actually used. "The law has nothing to do with prosecuting spies. From its inception, it had everything to do with suppressing dissent," Kohn says. He explains that:
intellectuals, journalists, film producers and pacifist religious figures were also prosecuted. Prison terms were long, and some political prisoners died in federal jails. The abuses under the law were legendary, and mark a sad day in US history.
Kohn concludes with this plea:
The attorney general should stop trying to resurrect the Espionage Act, and instead dust off his copy of the US constitution. If he has any question as to the meaning of the first amendment, he should read James Madison's 1789 speech, in which he introduced the bill of rights in the first Congress of the United States: "Freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."
Julia Davis is an award winning screenwriter and published photographer. She is Vice President of Fleur De Lis Film Studios, and the LA Homeland Security Examiner for Examiner.com. In her column today, she decries the flaws in S. 372, the Senate's version of the Whistleblower Protection Enhancement Act (WPEA). She objects to its creation of a summary judgment procedure at the Merit System Protection Board (MSPB). "Unless the bill is amended, Administrative Judges with the MSPB will now be able to dismiss whistleblower claims without a hearing, based solely on affidavits filed by the agencies." She notes that whistleblowers will have to survive this expensive process to benefit from the right to request a jury trial in district court. With MSPB's track record of ruling for employees 1.7% of the time, S. 372 offers little hope for whistleblowers. Davis says:
The same MSPB judges who rule overwhelmingly in favor of the agencies will be empowered to be the gatekeeper for federal court. Much as an elusive oasis in the desert, the illusion of access to federal court is just that – an illusion.
Davis also faults S. 372 for failing to provide substantive reform of the MSPB and the Office of Special Counsel. Her production company has released a letter to Congressional leaders urging correction of S. 372. She invites readers to take action to correct S. 372's flaws.Continue Reading...
The U.S. Court of Appeals for the District of Columbia Circuit issued a decision on Friday that offers federal employees more protection from discrimination than employees in the private sector currently enjoy. The decision is Ford v. Mabus, No. 09-5041 (DC Cir. 12-10-2010). Richard Ford worked for the U.S. Navy as an engineer from 1964 until his retirement in 1997. He returned to Navy employment in 2005. Managers decided to pick a younger and less experienced applicant to be branch head, and Ford sued for age discrimination. Applying Gross v. FBL Financial Services Inc., 129 S. Ct. 2343 (2009), the court held that Ford could not show that age was the "but-for" cause of the decision against him. (Congress should legislatively overrule Gross so that older workers have the same protections as workers complaining of race, gender and religious discrimination.) The Court then compared 29 U.S.C. § 623(a) (the private sector law) and 29 U.S.C. § 623a(a) (the law for federal employees). These provisions parallel the differences between 42 U.S.C. § 2000e-2(a)(1) and 42 U.S.C. §2000e-16(a), the Title VII laws against discrimination for private and federal sector employees.
But because of what this court has called section 633a’s “sweeping” language—“all [federal government] personnel actions . . . shall be made free from any discrimination based on age”—we hold that plaintiffs may also establish liability, though not necessarily entitlement to such remedies as reinstatement and backpay, by showing that consideration of age was a factor in the challenged personnel action. We therefore reverse the entry of judgment for the government and remand for further proceedings consistent with this opinion.
This language now opens the door for federal employees to win more age discrimination cases. The same logic can also help other federal employees seek a broader application of Title VII so that our federal government is "free from any discrimination." Congratulations to Richard Ford and his attorney Michael G. Kane of the Washington firm of Cashdan and Kane. My friend Daniel Kohrman and Melvin Radowitz, both of AARP, submitted an amicus brief to help win this important victory.
This week, the federal Merit System Protection Board (MSPB) released a report to President Obama. The report reviews hurdles federal employees have to jump before they can win a case of whistleblower retaliation. It is called Whistleblower Protections for Federal Employees. In the cover letter to President Obama dated September 2010, MSPB Chair Susan Tsui Grundmann states:
This report spells out in greater depth the difficulties a potential whistleblower may face when navigating the law to seek protection from agency retaliation. I hope you will find this report useful as you consider issues affecting the Government’s ability to protect employees who disclose fraud, waste, abuse, and other wrongdoing within the Federal Government.
An MSPB press release about the report lists some of the hurdles. (See the continuation of this blog entry for that list.) The MSPB report fails to mention other hurdles, particularly those of MSPB's own making. Another study found that MSPB, under the prior administration, ruled for federal employees in only 1.7% of cases. The MSPB's report cites the Federal Circuit case of Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 1153, 120 (2000), but does not mention that this case required the whistleblower to have "irrefragable proof" of mismanagement to have any protection from retaliation.
Also missing from MSPB's report are a list of things that MSPB itself can do to improve the rights of federal employee whistleblowers. The MSPB can find that its past holdings have impeded whistleblowers from raising concerns about mismanagement, and urge the appellate courts to defer to its expertise under FCC v. Fox Television Stations, Inc., 556 U.S. ___, 129 S. Ct. 1800 (2009), and Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). MSPB can hire Administrative Law Judges, and set standards for assuring that employees have adequate time and support to complete meaningful discovery. MSPB can simplify the process for whistleblowers and the Office of Special Counsel to seek stays of prohibited personnel practices and other forms of immediate relief.
Recognizing its role as an adjudicative body, MSBP declined to express any recommendations for changes in the law. Nowadays, it is hard to find anyone who would argue that there is no need to change the law. Unfortunately, the most prominent proposal for changing the Whistlebleblower Protection Act, S. 372, is itself flawed and would add additional hurdles for federal employee whistleblowers. I recently asked my colleagues in the National Employment Lawyers Association (NELA) if any of them would take contingent cases under S. 372 if it passed. I have had no takers. No experienced lawyer has come forward to say that this law will make it viable to represent federal employee whistleblowers. We are a long way from assuring that federal employees who speak up for taxpayers get the customary legal protections required by international law.Continue Reading...
Sen. Byron Dorgan (D-ND) is retiring this year, after 30 years in Congress. Sen. Dorgan served as Chairman of the Senate Democratic Policy Committee (DPC). In an address on the Senate floor last week, he reviewed the Committee's hearings on contracting waste, fraud and corruption in Iraq and Afghanistan. He recalled the testimony of my client Bunny Greenhouse. The remarks caught the attention of David Isenberg who quoted it on the Huffington Post as follows:
A very courageous woman came to testify before our committee. Her name was Bunnatine Greenhouse. She was the highest civilian official at the Army Corps of Engineers, the highest civilian official in the Pentagon in charge of contracting. Here is what she said. She objected to the way the Pentagon was doing these contracts, massive contracts, sole-source, a massive amount of money, and she watched as the normal processes were avoided and ignored. She testified in public:
I can unequivocally state that the abuse related to contracts awarded to Kellogg, Brown & Root represents the most blatant and improper contract abuse I have witnessed during the course of my professional career.
This is an extraordinary woman, the highest civilian person in the Army Corps of Engineers. She was in charge of contracting. Two master's degrees, came from a family in Louisiana. All three kids have advanced degrees. Her brother, by the way, was one of the 50 top professional basketball players in the last century, Elvin Hayes. Bunnatine Greenhouse. Remember that name. A very courageous woman, she saw abuses, spoke about it publicly, and for that she lost her career. She gave up her career. She was told: Resign or be fired.
Bunny is still employed at the U.S. Army Corps of Engineers, although the Corps removed her from her top contracting post shortly after her testimony to the Committee. Her legal case is still pending.
Charlotte Yee worked for the U.S. Department of Labor for twenty (20) years. During her last five years, she served as a manager and a whistleblower against waste, fraud and discrimination. She was physically attacked by her boss and eventually left federal service for her own safety. On Monday, she posted a letter about her personal journey confronting the problems with the Senate's version of the Whistleblower Protection Enhancement Act (WPEA). "Last week, when I signed MISC’s change.org petition to pass the bill I did so with an asterisk," Yee says. "I did so with the understanding that the bill’s main supporters would then work fervently to get the best parts of the bill passed and the poorest parts thrown out. In retrospect, it may have been a bone-headed and risky action: one made from the heart and not from the head." She realizes that "With any type of legislation, the devil is in the details." The bottom line on the Senate bill is that it "is a trojan horse." She particularly objects to provisions that would allow the Merit System Protection Board (MSPB) to deny whistleblowers a right to go to federal court either because MSPB chooses to issue a summary judgment, or because MSPB predicts that a federal court would dismiss the case. As the MSPB currently rules against whistleblowers over 98% of the time, it is easy to predict that very few cases would get MSPB's permission to go to federal court. Yee asks MISC to, "seriously consider the repercussions of the Senate bill as proposed." You can read the full text of her open letter in the continuation of this blog entry.Continue Reading...