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As part of a House/Senate Conference approved Tuesday, Congress passed an “Enhancement Act” for Department of Defense contractors.  These contractors already had a right to go to federal court and obtain a jury trial. 

However, this new “Enhancement Act” creates a “National Security Exception” that does not exist in the current law.  The new amendment states that whistleblower protections “shall not apply to any disclosure made by an employee of a contractor, sub-contractor, or grantee of an element of the intelligence community.” See section 827(e).

The Committee members also approved an amendment to expand protection previously only available to employees of DOD contractors to cover employees of all federal contractors. Although this is a significant step forward, this amendment also exempted the intelligence committee and has a four-year sunset provision. In other words, if Congress does not reenact it in four years it terminates.

“Exempting National security whistleblowers from all legal protections is a recipe for disaster,” stated Stephen Kohn, Executive Director of the Washington, DC based National Whistleblowers Center.

The legislation passed by a conference committee of lawmakers from both chambers is expected to go to the full Senate and House of Representatives for a final vote this week before being sent to President Barack Obama for his signature.

We need you to take swift action and urge Congress to protect National Security Whistleblowers. Please click the link above and take action. Also, pass this along to friends and whistleblower advocates. Congress must be told in strong terms that they can’t undermine whistleblower protections.

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A recent White House directive on national security whistleblowers has sparked a major dialog in the whistleblower community. You can read the National Whistleblowers Center’s press release on the directive here.

Below is a full-text analysis from the Whistleblower Support Fund’s Linda Lewis (originally published here).

On Wednesday, President Obama signed a new Presidential Policy Directive (PPD-19) entitled, “Protecting Whistleblowers with Access to Classified Information.”

The presidential policy directive aims to ensure intelligence and national security employees are able to legally report agency wrongdoing and be protected from retaliation for doing so. (Federal News Radio).

When I first heard about the directive, I was hopeful that whistleblowers with security clearances might finally get needed protections. But, as I pored over the directive’s details, I became disappointed. I am not a lawyer, so perhaps I missed something of potential benefit. I am quite familiar, though, with the federal bureaucracy’s past responses to whistleblowers with security clearances.

Continue Reading Presidential Policy Directive on Whistleblowers Draws Criticism

Today the National Whistleblowers Center (NWC) joined with the American Civil Liberties Union (ACLU) in an amicus brief filed by the National Treasury Employees Union (NTEU). The brief urges the Federal Circuit to reverse the holding of its panel decision in Berry v. Conyers.  There, the Court held that the Merit Systems Protection Board (MSPB) does not have jurisdiction over management determinations that certain federal employees are “ineligible” for certain jobs (even the employee’s current job) due to “sensitive” information, even when the information is not classified and the position does not require a security clearance.

The amicus brief notes that the text of the Civil Service Reform Act (CSRA) gives the MSPB jurisdiction under 5 U.S.C. § 7701.  The CSRA has no provision denying jurisdiction based on eligibility to handle “sensitive” information. In contrast, the Supreme Court was focused on the President’s statutory authority to make decisions on security clearances to handle classified information. See Department of the Navy v. Egan, 484 U.S. 518 (1988). Finally, the brief notes how federal managers could easily abuse authority to deny “eligibility” to “sensitive” information, particularly in whistleblower cases where the federal employee has used access to information to disclose waste, fraud or abuse. The brief urges the Court to rehear and redecide the case.

Rhonda K. Conyers and Devon Haughton Horthover are federal employees for whom the MSPB issued final decisions. They are represented by the American Federal of Government Employees (AFGE). John Berry, the Director of the Office of Personnel Management (OPM) appealed the decisions to the Federal Circuit and prevailed, 2-1, in the Court’s initial panel decision.

Thanks go to NTEU attorney Paras Shah for leading the writing and filing of this amicus brief.

UPDATE:  On October 16, 2012, the Federal Circuit granted leave to file the brief of amici curiae.

Today is the 100th anniversary of the Lloyd-La Follette Act, a milestone in our nation’s protections for government whistleblowers and a watershed in the balance of power between Congress and the President.  In 1902, President Theodore Roosevelt issued an executive order prohibiting all federal employees from making disclosures to Congress without the permission of their supervisor. In 1909, President Howard Taft issued the same order. Members of Congress called these orders a "gag rule." See 48 Cong.Rec. 4513 (1912) (remarks of Rep. Gregg) .

The Lloyd-La Follette Act made a number of reforms to the civil service system, including definition of the "just cause" required for discipline, and a protection of the right to organize and join labor unions. However, whistleblowers must appreciate this provision, now codified at 5 USC § 7211:

The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.

This provision was intended “to protect employees against oppression and in the right of free speech and the right to consult their representatives.” H.R.Rep. No. 388, 62d Cong., 2d Sess. 7 (1912). Sen. La Follette, the Wisconsin Republican and progressive, recounted the story of a Chicago postal worker who told the newspaper about horribly unsanitary conditions in the post office.  48 Congressional Record, Vol. -1806, Page 10731 (1912). Apparently, he intended to protect not only direct communication with members of Congress, but also communications through the media.

The Supreme Court has upheld the validity of the Lloyd-La Follette Act.  Arnett v. Kennedy, 416 U.S. 134 (1974).  However, the Court in Arnett held that Congress could limit the procedures federal employees could use to enforce the rights created by the statute.  When Wayne Kennedy shunned the opportunity to respond to a notice of proposed removal and instead filed suit against the boss who fired him, the Supreme Court held that he forfeited the one process provided by law to assert his claim of a violation of the Lloyd-La Follette Act.

Lloyd-La Follette remains noteworthy today for its even application across the entire federal employment.  Unlike the more modern Whistleblower Protection Act, Lloyd-La Follette has no exemption or alternative procedure for national security employees. In 1958, Congress passed a Code of Ethics that directs all government employees to “expose corruption wherever discovered.” 72 Stat. B12 (1958) (H. Con. Res. 175). Congress has given new life to Lloyd La Follette by inserting "anti-gag" rules into appropriations acts since 1997. See, for example, Pub.L. 105-61, 111 Stat. 1318, (1997). These laws responded to an order by President Reagan that required national security employees to sign "non-disclosure" agreements. Congress now prohibits the expenditure of any funds to enforce such agreements to the extent that they restrict communications to Congress.

While Congress has helpfully insisted on its right to receive information from federal employees, the Supreme Court has pulled the rug out from state and local employees. Last year in Borough of Duryea v. Guarnieri, 564 U.S. _ (2011), the Supreme Court held that the Petition Clause of the First Amendment offers no protection to employee grievances unless they qualify as matters of "public concern" under the Free Speech Clause. 

Lloyd-La Follette is sometimes called America’s first whistleblower protection law.  As Stephen Kohn has pointed out, this honor actually goes to the Continental Congress which protected naval whistleblowers on July 30, 1777.

The Lloyd-La Follette Act was still visionary in its perception that the effectiveness of Congress depends on the free flow of information, that the integrity of our government depends on the protections we provide to whistleblowers, and that the vitality of our public discourse depends on the nuts and bolts of what employees can do when their rights are violated.  For this, I say Happy Birthday.

 

AFT Acting Director videoJohn Solomon, writing in the Washington Guardian, is reporting today that B. Todd Jones, the Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), released a video last week to all employees. In the video, Jones warns that there would be “consequences” for any employees who report wrongdoing outside their chain of command. Jones was a federal prosecutor when Attorney General Eric Holder asked him to lead the embattled agency after the Fast and Furious scandal. He is supposed to improve morale and instill a new culture in the aftermath of that scandal. Jones’ precise words are:

Choices and consequences means simply that if you make poor choices, that if you don’t abide by the rules, that if you don’t respect the chain of command, if you don’t find the appropriate way to raise your concerns to your leadership, there will be consequences.

Sen. Charles Grassley told Sinclair Broadcast that this video, “ought to be a wake up signal for everybody in Congress who wants to do their job of constitutional oversight. *** It is outrageous that a leader of a major organization of any department, particularly law enforcement, would have the temerity to make those sort of comments."

“This video will cause a chilling effect,” said Stephen M. Kohn, the Executive Director of the National Whistleblower Center. “There are many cases that say whistleblowers can ignore the chain of command. In fact, under the Whistleblower Protection Act [WPA], you may lose protection if you only report to your first line supervisor, and going outside chain is a way to get protection,” Kohn told Solomon. “Also, the WPA says that ‘any disclosure’ is protected, not just disclosures made in the ‘appropriate way.’" Kohn is referring to the problemmatic decision of the Federal Circuit Court of Appeals, Willis v. Department of Agriculture, 141 F.3d 1139, 1144 (Fed. Cir. 1998) which held that a disclosure made as part of an employee’s normal job duties is not protected. However, disclosures to outside agencies or members of Congress avoid this exception to WPA coverage.  See Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).

Solomon notes that the video is an apparent swipe at "Arizona agents who went outside the agency in 2011 and reported concerns to Congress about the bungled Fast and Furious gun probe that let semiautomatic weapons flow to Mexican drug gangs." Regardless of how one feels about the congressional response to Fast and Furious, we can hopefully all agree that the Arizona agents served the public interest by raising their concerns.  Well, maybe all of us except Mr. Jones.

Continue Reading ATF attempts to stifle “outside” whistleblowing

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 Department of Justice’s policy of distorting privacy laws to pursue and discredit whistleblowers continues. The Associated Press reported yesterday that a former CIA officer, John Kiriakou, is being charged with leaking classified information after publicly expressing concerns over the use of torture during interrogations.

The National Whistleblowers Center obtained a copy of the indictment, available here.

In the indictment, the DOJ argues that because the interrogation “operation fell within the scope of a CIA counterterrorism program,” all details are therefore critical “national defense information.” Using this type of circular logic and vague, umbrella terminology is now standard practice for the Department of Justice as it works to hide serious legal and ethical allegations, including those made by Mr. Kiriakou in this case.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center, stated:

We condemn Mr. Kiriakou’s indictment. The First Amendment means what it says; freedom of speech exists in the United States regardless of the wishes of extremists at the DOJ and CIA who are using outrageous charges to attack whistleblowers. These charges should be dropped immediately, and an investigation should instead be made into those responsible for them.

You can read more about the government’s treatment of national security whistleblowers in the recent Whistleblowers Protection Blog article, "Washington Times Covers the Department of no-Justice."

In the first Federal Rail Safety Act (FRSA) case to go to a jury trial, the jury awarded $50,000 in compensatory damages, and one million dollars in punitive damages. Andy Barati was working for the Metro North commuter rail on Grand Central Terminal, New York City, in 2008 when a jack failed and a railroad tie injured his foot. Management’s response: blame the victim and fire him. Soon, management realized that firing a railroad work for reporting an injury became illegal as part of the 2008 enactment of the FRSA. Management converted the discharge to a suspension.  Still, the Occupational Safety and Health Administration (OSHA) found that management violated the FRSA. OSHA also cited Metro North for poor training and lighting.  The Wall Street Journal reports that Barati received $5,254 in back pay.  Barati’s lawyer, Charlie Goetsch, pressed on to get Barati his full remedies under the FRSA.  He asked the jury in the Connecticut federal court to send a message that it is unacceptable to discourage workers from reporting injuries, and did they ever.  Goetsch is the author of the TrainLawBlog, and was a guest on Honesty Without Fear, the Whistleblower’s Radio Hour.  Congratulations to Charlie Goetsch and Andy Barati.

convertino

Attorney Stephen Kohn today presented oral argument on behalf of former federal prosecutor and whistleblower Richard Convertino (pictured).  Convertino is seeking reversal of an order issued last year by Chief U.S. District Judge Royce Lamberth in Washington, DC.  That order dismissed Convertino’s claim that an official of the Department of Justice willfully released private information about a pending investigation against Convertino to punish him for criticizing the Bush administration’s tactics in the war on terror. Judge Lamberth held that allowing Convertino to pursue discovery of the source of the leak would be "futile."

During oral arguments today before the Court of Appeals for the District of Columbia Circuit (DC Circuit), Judges David Tatel, Judge Karen LeCraft Henderson and Judge Judith Rogers asked detailed questions about how Convertino’s attempts to obtain disclosure of the source could proceed against the Detroit Free Press and its reporter. Kohn explained how a federal judge in Detroit was just waiting for the DC Circuit to rule and could then proceed to compel the paper to disclose its records and reveal what it knows about the source. A posting in The Blog of Legal Times, says that Judge Tatel, "expressed concern about the potential lack of evidence on which [Judge] Lamberth made his finding about the futility of keeping the case going." Judge Tatel noted how the Detroit Free Press still has not answered under oath about what it knows. During the argument of government attorney, Samantha Chaifetz, Judge Tatel obtained an admission that if Judge Lamberth had no evidence in the record to show that further discovery would be futile, then that finding would be an abuse of discretion. Judge Rogers said this would have been a different case if the discovery was before Judge Lamberth who could rule on the issue, but it is not. Judge Henderson stated directly that Kohn’s affidavit was not conclusory and it met the requirement for providing detailed information about how the additional discovery could make a difference.  The judges allowed attorneys on both sides to exceed their 15-minute limits to answer all their questions. We can be hopeful that the Court’s opinion will stand for the value of allowing whistleblowers the time needed to prove their cases when they face protracted resistance.

This week, the U.S Office of Special Counsel (OSC) presented their report regarding the allegations made by four whistleblowers about retaliation at U.S Port Mortuary in Dover, Delaware’s Air Force Base. The report reviewed events that occurred over a 17 months period in 2009 and 2010. It concluded that three Port Mortuary officials had indeed retaliated against the four whistleblowers, and a recommendation was made by OSC to take disciplinary action against the officials.

The four civilian employees disclosed a variety of ways in which some remains of soldiers’ bodies had been disposed of without proper respect. Thereafter, these employees suffered retaliation ranging from five day suspensions, indefinite administrative leave, and job terminations. Some of the disclosures were the subject of a November 2011 OSC report regarding allegations on the mishandling of remains at the Mortuary. Under the Whistleblower Protection Act the reprisals were illegal.

The investigation conducted by OSC on the whistleblowers’ retaliation claims found the allegations to be true. OSC now seeks corrective action for the whistleblowers and disciplinary action against the officials who imposed the prohibited personnel practices (PPPs). OSC reports that Air Force officials are working with OSC to provide relief to these whistleblowers.

If the Air Force and OSC do not reach agreement, OSC can pursue disciplinary action against civilian employees before the Merit Systems Protection Board (MSPB). However, MSPB does not have jurisdiction over active military personnel. One of the officials who engaged in retaliation is active military. OSC cannot pursue a case against him at the MSPB but can instead recommend the Air Force discipline the official.

See Special Counsel Carolyn Lerner speak with CNN’s John King.

Intern Laura Berumen wrote this blog entry.