Washington Post reports: Trump’s lack of appointments creating intolerable backlog of cases.

Washington, D.C. November 22, 2017. For years, whistleblowers have complained about the political nature of the Merit System Protections Board.  Federal employees cannot have their whistleblower cases heard in federal district court, but instead must go before the MSPB, which is appointed by the President. Continue Reading Federal Employee Whistleblowers Denied Due Process

October 12, 2016. Washington, D.C. Monday, the National Whistleblower Center and FBI whistleblowers Fred Whitehurst, Jane Turner, Mike German and Robert Kobus (Amici) filed an amicus curiae brief in a case before the Court of Appeals for the Federal Circuit. The brief was filed in Parkinson v. Department of Justice in support of John C. Parkinson, a former FBI special agent and Iraq war veteran. Continue Reading FBI Whistleblowers Ask Federal Circuit to Uphold Whistleblower Protections for FBI Employees

The Merit Systems Protection Board (MSPB) issued a ruling today in the case of Day v. Department of Homeland Security. The MSPB held that the new definition of a" protected disclosure" set forth in the Whistleblower Protection Enhancement Act (WEPA) applied to cases pending and/or which arose before that law was passed. The Board ruled that the Congress, in enacting the WEPA, intended to "clarify" the scope of disclosures covered under the federal employee whistleblower law, and that this clarification would apply to all pending cases. 

The National Whistleblower Center filed a Amicus Curiae brief with the MSPB in which it had strongly urged the MSPB to apply the "clarification" standard and to apply the WPEA’s definition of protected disclosure to all pending cases. The MSPB agreed with this analysis.  

Stephen M. Kohn, Executive Director of the NWC, said "This is a major victory for all federal employee whistleblowers whose cases were pending at the time the WEPA was passed.  In passing the WEPA Congress recognized that bad administrative and court rulings had undermined its intent to encourage and protect whistleblowers.  This is a major victory for whistleblowers and sends the message that the MSPB will enforce the law."  

 

The MSPB’s decision can be viewed  here.

The NWC’s brief can be viewed here.

 

On April 12, 2013, the National Whistleblower Center filed an Amicus Curiae brief with the Merit Systems Protection Board (MSPB), in the case of King v. Department of the Air Force. At issue is whether the provision of the Whistleblower Protection Enhancement Act of 2012 (“WPEA”) regarding compensatory damages applies to all current cases pending before the MSPB. The MSPB requested stakeholders to file briefs on the issue as they did in Day v. Department of Homeland Security.  

In its brief, the NWC again strongly urged the MSPB to retroactively apply the WPEA to all pending cases. The MSPB’s decision will impact the fate of federal employees and whistleblowers that filed claims or suffered retaliation before the WEPA was signed into law on November 27, 2012.

Stephen M. Kohn, Executive Director of the NWC, said, “it is unequivocal that the intent of Congress was to apply the WPEA, including the provision on compensatory damages, to all pending cases retroactively.”

The NWC’s brief can be viewed here.

 

 Robert MacLeanToday the Court of Appeals for the Federal Circuit issued a decision in MacLean v. Department of Homeland Security.  In 2003, Robert MacLean blew the whistle on the Department of Homeland Security’s Transportation Security Agency’s (TSA) plan to remove U.S. air marshals from long distance flights during a heightened terrorist alert.  Mr. MacLean was concerned that the suspension of overnight missions created a danger to the flying public. He complained to his supervisor and to the Office of Inspector General; both responded that they could do nothing. 

Mr. MacLean then gave information to a MSNBC reporter about the TSA’s plan. The reporter published an article criticizing the plan. The TSA withdrew its plan after criticism from the public and members of Congress. The TSA subsequently fired Mr. MacLean. 

Continue Reading TSA Whistleblower Robert MacLean Wins Appeal

Today the National Whistleblower Center filed an Amicus Curiae brief with the Merit Systems Protection Board (MSPB), in the case of Day v. Department of Homeland Security. At issue is whether the new definition of a protected disclosure set forth in the Whistleblower Protection Enhancement Act will apply to cases pending and/or which arose before that law was passed. The MSPB requested stakeholders to file briefs on the issue.

In its brief, the NWC strongly urged the MSPB to retroactively apply the WPEA’s definition of protected disclosure to all pending cases. The MSPB’s decision will impact the fate of federal employees and whistleblowers that filed claims or suffered retaliation before the WEPA was signed into law on November 27, 2012.

Continue Reading MSPB Urged to Retroactively Apply WEPA

Today, the National Whistleblowers Center and the No FEAR Coalition announced their support for the immediate passage of the Whistleblower Protection Enhancement Act (WPEA) for federal employee whistleblowers.  The decision to support the Senate version (S. 743) of the WPEA came after the Senate removed a final poison pill from the bill. 

Last week, the Senate removed the controversial summary judgment provision from the WPEA. The provision would have given the Administrative Judges of the Merit Systems Protection Board (MSPB) the power to summarily dismiss whistleblower cases without a hearing. The NWC, No FEAR Coalition and other whistleblower groups argued that the summary judgment provision would be harmful to federal employees by radically increasing costs for whistleblowers, undermining their ability to reach settlements, and delaying final decisions. A prior blog posting provides a more thorough analysis of the dangers of the summary judgment provision.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center, acknowledged that "the revised Senate bill (S. 743) is far from what federal employees were promised, but it is finally a step forward." He encouraged Congress to immediately pass the WPEA and promised that the NWC would continue working to improve protections for all federal employee whistleblowers. 

Dr. Marsha Coleman-Adebayo, President of the No FEAR Coalition and member of the NWC Board of Directors, stated that the "summary judgment provisions of Senate bill (S.743) would have seriously undermined the due process provisions of the 1964 Civil Rights Act."  Dr. Coleman-Adebayo explained, "The MSPB has a long history of victimizing federal employees who seek justice by ruling nearly 97% in favor of federal agencies" and that giving MSPS summary judgment "would have been the death nail for any semblance of justice." She urged civil rights and whistleblower groups to support the WPEA and continue working together to improve federal employee whistleblower protections.   

For more information about the legislative history of the Whistleblower Protection Enhancement Act please read the NWC’s position statement

In two landmark decisions last week, the federal Merit System Protection Board (MSPB) MSPB sealheld that it does have the authority to enforce the procedural protections for federal employees who suffer adverse employment actions as a result of issues with their security clearances.  The MSPB recognizes that it does not have authority to review the security determinations themselves, respecting the Supreme Court’s decision in Department of Navy v. Egan, 484 U.S. 518 (1988). Still, federal employees are "entitled to constitutional due process when the agency indefinitely suspend[s] [them] from federal employment based on a suspension of access to classified information." McGriff v. Department of the Navy, 2012 MSPB 62 (April 26, 2012), p. 12. Special Counsel Carolyn Lerner submitted a most helpful amicus brief urging the MSPB to reach this result. In Buelna v. Department of Homeland Security, 2012 MSPB 63 (April 26, 2012), the Board reached the same result for a federal air marshal working at the Transportation Security Administration (TSA) by applying the agency’s Management Directive (MD) No. 1100.75-3. I reported in a 2009 blog post about a federal court decision concluding that Bunny Greenhouse could pursue a claim for her supervisor’s refusal to submit her request for a security clearance. The new MSPB decisions represent a significant advance for national security whistleblowers who face shenanigans with their security clearances in reprisal for making lawful disclosures of misconduct by their agencies. Now they have recourse for violations of their due process rights, even if they cannot challenge a security decision about their clearance.

Congratulations to Corry McGriff’s attorneys Laura O’Reilly and Neil Bonney of Virginia Beach, Virginia, to Alexander Buelna’s attorney, Jeffrey Jacobsen of Tucson, Arizona, and the Special Counsel Carolyn Lerner and her legal staff, including Bruce Fong and Elisabeth Brown.

The commissioned corps of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA) work on the cutting edge of federal research and policy on diseases, medical devices, public health, global warming and our environment. Yet, they fall into an exclusion from the Civil Service Reform Act (CSRA) that denies them any of the protections of the Whistleblower Protection Act (WPA). The WPA protects only civilian federal employees.  Reference 5 U.S.C. § 2101(1). They also have no coverage, and no protection, from the less effective Military Whistleblower Protection Act, 10 U.S.C. § 1034.

In today’s Washington Post, page B4, columnist Joe Davidson picks up their cause. He decries how their "fine work" does them no good if they become whistleblowers.  He laments how the law has so far failed to protect PHS whistleblower Paul T. "PJ" Hardy. He was fired after raising concerns about the Food and Drug Administration (FDA) approving breast cancer detection devices without adequate proof of safety and effectiveness. The Office of Special Counsel (OSC) sought a stay on his behalf. The Merit System Protection Board (MSPB) concluded it had no power to act because of the PHS and NOAA exclusion from the CSRA.  "This loophole doesn’t make any sense," Special Counsel Carolyn Lerner told Davidson. "It undermines public health and safety and should be addressed through legislation.  There really are no statutory protections."

Attorney Stephen M. Kohn is Executive Director of the National Whistleblowers Center (NWC) and is representing Hardy. "We are going to push as aggressively as possible for the protection of all federal employee whistleblowers to be free from targeted monitoring," he told Davidson. Hardy and other PHS whistleblowers have filed a lawsuit in federal court to challenge how managers targeted them for surveillance. Targeting certain employees because of their protected whistleblowing violates the freedoms of the First Amendment. Hardy also challenges his dismissal as a violation of the First Amendment. When no federal statute provides a remedy for these violations, the First Amendment should apply to protect the victims of unlawful retaliation.

The National Whistleblowers Center has now issued an ACTION ALERT. Follow this link to call on legislators and HHS Secretary Kathleen Sebelius to reinstate Hardy and close the CSRA loophole.

Davidson calls on all government agencies to appreciate that "an otherwise legal search can become illegal if it’s conducted in retaliation for whistleblowing" (quoting Kohn). Davidson also agrees with Senator Charles Grassley’s letter that, "denying or interfering with employees’ rights to furnish information to Congress also is against the law." Here, here!

The Merit Systems Protection Board (MSPB) recently allowed a stay in the termination of a Food and Drug Administration (FDA) whistleblower, Paul T. Hardy. The Office of Special Counsel (OSC) requested the stay on his behalf due to reasonable belief that Mr. Hardy’s recent termination from the FDA constituted a violation of the Whistleblowers Protection Act (WPA).

According to the OSC, there is substantial evidence that Mr. Hardy’s termination was a direct retaliation for disclosures he made about serious safety issues with a screening device designed to detect breast cancer. The OSC explained that Mr. Hardy’s whistleblowing “raised issues related to exposing the general population to unwarranted radiation exposure and ineffective cancer screening devices.”

Continue Reading MSPB Approves Stay for FDA Whistleblower