FOIA Failures Are Rampant, by FAA & Other Agencies

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FOIA Failures Are Rampant, by FAA & Other Agencies

Recent news stories, including this one about an ATC-zero incident at Midway [KMDW] in early June, continue to point to the fact that FAA is knowingly snubbing their responsibility to be open and transparent. They are blowing off the FOIA laws. This is not a problem specific only to FAA; it appears to be rampant, at many if not all federal agencies. It is an attitude of arrogance and indifference, with the potential to eventually destroy the credibility and functioning of our entire government.

To his credit, President Obama started his administration with an absolutely glowing declaration about the importance of FOIA. To his discredit, his administration has utterly failed to live up to that declaration ever since. This again goes to attitude: the attitude set at the top enables the attitudes that set in below, at the agencies.

QUOTE

“…The Committee investigation revealed the vast chasm between President Obama’s promises of openness and accountability and the day-to-day management of DHS’s FOIA function by the Secretary’s political staff. The actions exposed in this report highlight not only the Administration’s failures to properly comply with FOIA statutes, but they disclose a concerted effort by DHS political staff to actively thwart a congressional investigation, hide abusive and embarrassing official behavior, and avoid both the shame of public scrutiny and potential criminal prosecution…..”

– Executive Summary, ‘A New Era of Openness?’

For insight into the extent of these FOIA failures, click here to read the full 153-page Staff Report, compiled two years into the Obama administration, after a House Committee on Oversight and Government Reform Hearing about DHS FOIA failures.

FAA & Other Agencies, Using Pay-to-Play and Other Tactics to Deny Us Our Rights Under Federal FOIA Laws

It is a separate issue, yet thoroughly intertwined: the ongoing revelations about Hillary Clinton’s emails on a private server, expose the fact that our elected officials and agency leaders – all the way to the top, and regardless of which party has the White House – are waging a war against our citizens’ right to see what government officials are doing. As such, they are ensuring we can have no real Democracy.

(click n image to view source article at Washington Examiner)

(click on image to view source article at Washington Examiner)

Our FOIA Laws were passed by Congress in 1966. An incredible amount of careful deliberation went into defining the rules needed to be followed, to ensure transparency. FOIA was signed into law by LBJ, on 7/4/1966. The original laws have since been amended to incorporate electronic media. As President Obama wrote in his brilliant FOIA memo on the day he was inaugurated, January 21, 2009:

“…the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government.”

Words are wonderful things, but they need to be backed up by actions. Such has not happened since January 2009. Simply, although FOIA is a critical tool for government transparency, accountability, and performance, it is being side-stepped and ignored. At FAA (and elsewhere), here is what they are doing:

  • Ignoring FOIA requests: just like the Secretary of State did in the article/link shown above, FAA and other agencies are choosing to outright ignore FOIA requests. This is not legal. Legal recourse for citizens is in the U.S. District Courts. However, the district courts are bogged down with both a wholesale indifference and processes that are deplorably byzantine, to the point of making it impossible for justice to be served. The Judges are all political appointees, thus inclined to serve the power status quo in DC. We can have all the laws we want but, if the laws are not enforced, they mean nothing.
  • Delaying & Side-stepping: with time, even the best of laws become ruined by workarounds. There are so many ways FAA fails to comply with the FOIA Laws, yet excuses off their failures. Some of these include:
    1. they’ll spend months delaying on your reasonable request for a fee waiver, and use their indecision to rationalize that the FOIA request could not be started until the the fee waiver issue was resolved.
    2. they’ll claim the FOIA request was never ‘perfected’, lacked specificity, etc.
    3. they’ll use ‘Pay-to-Play’ to intimidate regular citizens away from using the FOIA Laws (see below).
    4. they’ll pretend to not comprehend even the most explicit FOIA request. Even more, they may not call to clarify but process it anyway, building months and years of delays producing a series of response packages that slowly migrate back toward the real response … but only IF the requestor sticks with it for all that time.
    5. they’ll route the FOIA request to multiple offices and refuse to produce ANY responsive records until all offices have finished their seperate sub-response; and, at least one of those offices will never finish … so nothing ever gets released.
    6. they’ll sweep the floor and compile all sorts of unrelated documents so a request that should have cost nothing (under 100 pages and less than 2-hours administrative time to produce), instead costs hundreds of dollars and swamps the requestor with thousands of pages of irrelevant records.
    7. they’ll cry to the People, to the media, and to Congress that they just lack resources and cannot comply with burdensome FOIA laws. It is like declaring, “Pay us more and maybe we’ll do our job,” and Congress does nothing to compel them to perform. Of course, all of this happens while ignoring the simple reality that:
      • they have full-time paid FOIA specialists on staff;
      • the vast majority of their workload is arbitarily added and focused on obstructing the release of disclosable records; and
      • if they ‘erred on the side of disclosure’, their workload would all but disappear.
  • Pay-to-Play: a very effective way to obstruct the FOIA Laws is to demand exorbitant payments and watch the requestors withdraw their FOIA requests. No pay, no play. This violates the spirit and the law within FOIA. Agencies are expected to grant fee waivers, and are also expected to routinely waive requests that require minimal time to produce (e.g., less than 2-hours of administrative processing, and less than 100-pages of responsive records). There is also the Office of Information Policy guidance initiated in 2008, that precludes agencies assessing fees for simple FOIA requests, if the agency fails to comply with the 20-day time limit:
20081231scp-portion-of-guidance-new-limitations-on-assessing-foia-fees-doj-oip-opening-para

(click on image to view an archived copy of the OIP Guidance)

Despite these clear requirements, all of which are aimed at ensuring the People can easily see inside government operations to keep those operations from running astray, FAA and other agencies routinely use Pay-to-Play.

FOIA: A Neo-Journalist Calls for Less Government Transparency

It’s a sad day when a person such as Matthew Yglesias, pretending to be a journalist, advocates AGAINST transparency by public officials. (Q: has the term been created yet, can we just call him a neo-journalist?[1])

Below is an interesting pair of articles, archived in PDF form. The articles evolved out of ‘scandals’ engineered by the mainstream media, related to the Hillary Clinton campaign. This all connects in no small part to the extraordinarily revealing online document disclosures by Wikileaks and others, including:

Whether we are talking about presidential candidates or federal agencies, it is beyond dispute that the People need transparency and accountability by our public servants, and where transparency is impeded, there will be no accountability.

Click on the images below for a scrollable view;
original articles: Yglesias, Taibbi;
downloadable PDF files: Yglesias, Taibbi.

[1] The prefix ‘neo’ seems to have taken on a new meaning of ‘false and intentionally deceptive’, as in ‘neoconservative’ and ‘neoliberalism’.


See also:
  • aiREFORM’s FOIA webpage
  • FAA’s Favorite FOIA Exemptions – the exemptions Yglesias argues for have existed for more than fifty years, and are increasingly abused by FAA bureaucrats and others.

The Need for Reform: It Goes WAY BEYOND Just FAA & the Av-Gov Complex!

This website was started with the intent to empower individual citizens. Simply, I aimed to research and share content that would assist and inform concerned citizens, so they could be as effective as possible in unspinning the spin put forth by FAA and the industry, aka ‘the Av-Gov Complex’. Well, it turns out, when you get deep into assessing and explaining the massive (and growing) failures at FAA, you keep coming back to three root causes:

  1. money: Congress has legislated an enormous slush fund for FAA; billions are routinely taxed and spent each year, not so much for needed aviation infrastructure and programs, but to bolster reelections of those same elected reps.
  2. unaccountability: not just at FAA, but at Congress, too; indeed, it is like a dance, with each party routinely triangulating blame onto the other party, so neither is held accountable for the growing waste and other failures.
  3. lack of transparency: Congress legislated the Freedom of Information Act (FOIA) with hearty debate, and it was passed and signed into law fifty years ago, in 1966; ever since, there has been a steady erosion of our rights to see the inside workings of our government agencies and officials (frankly, in my opinion, the Clinton private server debacle is a CLASSIC example of a FOIA-dodge enabled even by the President, in his refusal to demand an immediate investigation and report).

For the record (not that that matters, coming from this ONE small voice), I am all for what Bernie Sanders represents. I see him as a dyed-in-the-wool whistleblower, just like myself: an individual who speaks truth to power, even knowing the pain and retaliation it will generate. For example, isn’t it a shame that, with hundreds of people in the U.S. Department of State reading emails sent from an ‘@Clinton.com’ private server address, not a single person spoke truth to power about the risk and the FOIA-dodge? Why no whistleblowers? Because they are terrified of the retaliatory pain upon their families that is guaranteed in our current work culture.

For true whistleblowers, their motivation is not immediate and self-serving; their vision is longer, and their personal responsibilities are heavier; it is simply not acceptable to be quiet and enable the expansion of failures and corruption. In aviation, as in the whole political system, expanding failure/corruption will eventually produce fraud and waste … and fatalities.

Anyway, the more I research the candidates and the issues this cycle, the more I can see how clearly the ‘mainstream candidates’ (Clinton and Trump) will only further sustain the failures at FAA. But, I am also discovering that, in the Bernie Sanders campaign, there is a huge groundswell of people who care deeply, with a clear focus on reform. So, on the next page I have compiled a list, as a resource with links to aid in researching, so you can see and hear these voices for change.

I Hope you all will spend some time – and an open mind – hearing what these engaged citizens have to say. And it goes without saying: please vote, make sure your vote matters, and encourage everyone you know to do the same.


UPDATED 7/2/2016

Two great and hard-hitting videos by Lee Camp. The other is at this link.

A Closer Look at the Wrong-Airport Landing at Jabara

Last November, one of the largest cargo aircraft in the world impacted the ground on the flat plains of Kansas. ATC had cleared the flight to land at the McConnell Air Force Base, roughly eight miles further south from where it landed. Thankfully, the impact was somewhat controlled and happened onto a different runway at a different airport. Nobody got hurt.

A copy of the ATC recording (with a transcript) has been posted on YouTube. It is 8-minutes long. It appears to be time-compressed (i.e., long stretches of time between transmissions are removed).

This flight was a Dreamlifter, flying as Giant 4241, which had departed Kennedy Airport on an FAA IFR flight plan. According to a news article, the weather was fine during the 9:40pm landing. The last FAA controllers to work the flight were the radar controllers at the Wichita Approach Control. They pointed the flight toward McConnell Air Force Base, descended it, set it up for a GPS Runway 19L Approach, then issued the charted approach to the pilots. After the FAA controllers ensured that the military tower was accepting the approach, they radioed to the pilots and told them to contact the control tower. The flight crew made the radio call and, interestingly, the speaking pilot started to mis-state that they were on a Visual Approach. As it turned out, they evidently were on a Visual Approach, and were NOT flying the cleared GPS Runway 19L Approach. The evidence suggests that they were landing by simply reading the terrain so easily seen in the generally good flight conditions, but they nonetheless told ATC what ATC wanted to hear. It was minutes later that they realized  they had a problem … they had made their undeclared Visual Approach to the WRONG AIRPORT!

It is interesting to listen to the four people involved in this eight-minute recording — the two pilots, as well as the tower controller and his supervisor. It really sounds like they were all hoping the pilots could just quickly turn around, take off, and land at McConnell AFB, maybe even before anyone noticed what had happened. You can feel their suspending reason for a few minutes … ignoring the fact that this is an enormous aircraft, and it is lunacy to try to consider just flying it out. The Upton Sinclair quote comes to mind. Their ‘dreams’ were quickly dashed at 5:48 on the YouTube video, when the danger of their situation was brought home: a twin engine turboprop suddenly overflew the behemoth. It was sure a good thing that this huge aircraft was hard to miss, parked at the south end of Jabara’s Runway 18.

ATC’s Involvement in this Dangerous Error

So, just to be clear, pilots do not make up approaches and tell ATC any old thing. In this case, the Dreamlifter pilot quickly corrected himself when he first talked to the tower controller, because that tower controller had been notified by the FAA Approach controller that the flight was inbound on a GPS Runway 19L Approach. FAA’s Approach Controllers issued a GPS Runway 19L Approach to this flight.

The red mark shows the approximate position of Jabara Airport, north of the Final Approach Fix (FAF) ‘WARUN’. The underlined ‘3000’ at ‘WARUN’ notes the flight must cross ‘WARUN’ at or above 3000 feet MSL (roughly 1,600 feet above the ground).

When they issued that approach, the FAA controllers took on the responsibility to monitor the flight and ensure the approach was executed. The approach controller had to go through years of training and had to show his trainers that he memorized the critical details, including knowing the safe and legal altitudes for each of the available approaches. That rigorous ATC training conditioned the Approach controller to be extremely vigilant about minimum safe altitudes for flight. Somehow, that vigilance disappeared. In this case,  the flight was supposed to be established on the route segment between the Initial Fix ‘WITBA’ and the Final Approach Fix ‘WARUN’, tracking a magnetic course of 186° and maintaining an altitude at or above 3,000 feet MSL (see the as yellow markings on the AGPS RY 19L Approach details above). Note the carat symbol just equipment at the west of ‘WARUN’ on the approach map view; this is a radio antenna and the VFR Sectional chart shows it to be 421′ above the ground level, just northwest of the controlled airport marked ‘BEECH’.

The pilots missed their runway by roughly eight miles. They put the Dreamlifter down onto the ground miles BEFORE a charted antenna obstruction. So, how can it be that the FAA Approach Control, where the approach clearance was issued, produced no alarms when the 3,000 foot floor was busted (by 1,600 feet!) and when the flight’s projected profile would show a likely collision with the charted antenna? Did the radar automation not create an alarm? Did the controller see it but assume (improperly) that the tower ‘had it under control’? Did the military tower have any equipment or procedures that would have (and should have) detected a busted altitude on such a huge aircraft?

More likely than not, there are many other ATC communications NOT included within this YouTube video. The first reaction of the military controller at McConnell Tower should have been to punch a button and talk to his Approach Controller: “Approach, McConnell Tower, be advised that GTI4241 appears to have landed at a different airport.” Or, “Hey, Approach! Did you clear Giant to land here at McConnell, and did you monitor his descent??” Or, even earlier (to proactively prevent the incident): “Hey, Approach! I am looking out my tower window for that huge Dreamliner and not seeing him. What is his location, and is he still setting up for my airport?”

No calls were made in advance of the incident, perhaps because nobody was looking. So, when the post-incident calls were made, the first reaction of the Wichita Approach controller would have been to file an ATSAP report. He or she would make sure they did so, being careful to present the events to conceal any failures, so that they can receive the full ATSAP immunity, and not be held accountable for their negligence. That excessive immunity is the carrot FAA used to bring NATCA on board, to support ATSAP … which FAA wanted as a way to hide safety reports from citizen FOIA review.

What will FAA do? Will NTSB conduct a thorough investigation, or are they being tamped down these days, told to stay out of FAA’s business? Can we expect the ATC aspect of this dangerous error to be covered up, or will the facts be fully presented for Public review? Will FAA share de-identified ATSAP reports so the Public can understand how this incident happened?

How Secure is the U.S. National Airspace System?

Put differently, what is more dangerous: two sticks of sugarless gum, or a Canadian Cessna 172 rented for personal flying? Evidently, to the authorities we employ to ensure a safe and secure U.S. National Airspace System (NAS), the answer is those two sticks of gum.
Here’s the story…

An image of the human x-ray vault scanner, as found online.

It was the day after Thanksgiving, and this pair of air travelers was stuffed from a very nice vacation — a family visit with a week spent in snowy Vermont. We were heading home. Our itinerary had us departing out of Burlington, first on a short flight to JFK to layover almost five hours, then a long flight back to Portland, Oregon. After goodbye hugs and a short walk, we arrived at Security. As we were doing the shoes-off routine, the agent reminded us all to take everything out of our pockets. I thought I had complied, when he steered me into a booth, which I assumed was some sort of full-body x-ray scanner. There, I had to stand in my socks on two yellow marks, and hold my hands over my head — elbows out, hands in, — sort of a variation of the Burning Man pose.

The test results were mixed: I failed miserably, but the machine sure passed. I forgot that I had stuff in the pockets of my flannel shirt, but the machine detected my cellphone in the left breast pocket. The agent kindly handed me a bowl so I could walk my cellphone back to the entrance of the carry-on x-ray tunnel. Then, when I stepped back into the human x-ray vault, he asked if I had anything else in my pockets. I started to answer ‘no’ but felt something in my right pocket; “Oh, yeah, this packet of Trident, though it is nearly empty.” I was a little surprised when, just a little less kindly then the first time, he handed me another bowl and pointed me back toward the entrance of the carry-on x-ray tunnel. The more focused part of my mind was yelling at me to not crack any jokes — just stay quiet and move along. But, the deeper part of my mind was circling over Nashville, stacking the details I knew about what likely will be this year’s biggest aviation security breach (more about that below). Of course, I complied, but we also snapped a cellphone photo of the x-ray bowl, because it just seemed so damned funny that they needed to x-ray two sticks of Trident in a crushed paper package.

This ‘scan-the-gum’ incident happened on 11/29/13, a Friday afternoon in the middle of the busiest air travel week for the whole year. So, what was it that had me thinking about Nashville? Well, that happened just one month earlier, on 10/29/13, and it happened during a very slow travel period (the overnight hours from Tuesday into Wednesday). Basically, a Cessna with four seats was rented in Windsor, Ontario (across the border from Detroit); the pilot then flew it half way across the U.S. and crashed it … AND NOBODY NOTICED!

Well, eventually somebody noticed. The aircraft had not crashed in the middle of nowhere; no, it had crashed right in the middle of the major airport at Nashville, Tennessee, and then exploded and burned, but it was not until hours later that a pilot taxiing on the Nashville Airport made a radio comment to ATC about the burned debris; or, then again, maybe he commented that he saw what looked like a pilot’s body still in the char. By the end of the day, enough information was gathered to conclude that the flight had entered the U.S. near Detroit, passed through multiple sectors of at least three FAA-staffed enroute centers (first Cleveland, then Indianapolis and finally Memphis), then flew to the very center of the Nashville TRACON airspace (adjacent to Runway 2C, very near the control tower) and crashed. In defense of the controller in the Nashville FAA tower, which is open 24/7, it was very foggy that night, so if he/she heard the explosion, there was an excuse to not see the fire. And, maybe in those early morning hours, the controller was able to imagine they heard no explosion. In any event, not one of a dozen or more FAA controllers on duty — all the way from Detroit to Nashville! — detected this intrusion into the U.S. National Airspace System. In past domestic terrorist incidents, U.S. citizens have crashed similar planes in Florida and Texas. Lucky for us, this Canadian Cessna was carrying only a non-terrorist pilot and was nearly out of fuel when it crashed and burned at Nashville.

Aviation Security Implications

Two years ago, we all were shocked to learn that a controller at Cleveland Center working on the overnight shift had been watching a movie DVD on his laptop computer. His shoe had fallen over onto the floor switch activating his ATC transmitter, and for a few minutes his hot microphone transmitted the sound portion of the action movie he was watching. Up late that night, a ham radio operator (and taxpayer) intercepted the hot microphone transmissions and thought it was some sort of ‘radio interference’; he reasoned that this would be an aviation hazard and he was concerned, so he called FAA’s Regional Duty Officer, hoping to help. link to aiR PDF This happened just days after Hank Krakowski, the head of FAA’s Air Traffic Organization, had submitted his resignation under pressure from a rash of ‘sleeping controller’ incidents (he was replaced by David Grizzle, who served two years then announced his plans to retire). But the interesting details were behind the scenes, within FAA’s damage-control mission internal investigation. Reports and emails produced controller statements that the viewing of movie DVD’s while working overnight air traffic was a common practice, that management was fully aware of this practice, and that it had been going on for decades. link to aiR PDF Even more, a FOIA request (and subsequent FOIA Appeal records) produced FAA statements indicating no disciplinary actions were ever taken for the Cleveland Center DVD hot mic incident.

That Cleveland Center incident was an eye-opener for the Public, but this latest Nashville incident is even more disturbing. In 2011, FAA’s top officials acted alarmed and created the appearance that they were ‘taking action’ to fix the problem, but what change has really happened? And, just as importantly, how healthy is the Whistleblower culture within FAA? Is it still the case that FAA Whistleblowers can expect retaliation if they feel compelled to speak up? Really, think about it. There are likely thousands of FAA employees who could share a general (or specific) safety concern relevant to the Nashville incident, but what if they all choose to stay quiet? How can we have any kind of REAL safety culture where employees are afraid to speak up, where doing so brands them as a ‘Whistleblower’ and thus makes them a ripe target for unaccountable retaliation, even firing? Ask Richard Wyeroski, Gabe Bruno, Peter Nesbitt, Anne Whiteman — or dozens of others — who were fired or forced out when they spoke up….

The bottom-line is simple: a Cessna flying from Ontario to Nashville, was fully ignored by dozens of FAA controllers, and this recent incident proves we have no functional airspace security. Our obsession with TSA’s installing expensive scanning machines and extensive screening procedures is all for image, but fails to accomplish the real goal of true security. And, until we truly improve the FAA/TSA culture so that Whistleblowers are valued and even rewarded, this failure will only persist.

The NoPay Game: also used against FAA Whistleblowers

We survived ‘Shutstorm 2013!’

Or, then too, maybe Congress will put us through this again (again!) in a few more months. Gotta love the fact that today, ‘We the People’ have elected U.S. officials who increase their sway (and crisis-related fundraising) by strategically not doing their jobs.

After the first week of the shutdown, much of the mainstream news began to center on articles about the financial turmoil starting to appear at homes of furloughed Federal employees. Not many people these days can casually endure smaller paychecks, let alone absent paychecks, so household spending also began to ‘shut down’. And, the stress went beyond the employees to all members of their families: their children off to college, the elders they care for, their church/social communities, and on and on. Meanwhile, those whose inaction precipitated this mess … they are mostly millionaires anyway, so one doubts they felt any pain during the shutdown weeks.

The Public may not realize, this power to withhold paychecks is not something only Congress can abuse. Nor must it be done broadbrush. It can be done selectively and, in fact, it is routinely used to attack individual Whistleblowers. In any agency where managers are not held accountable for harming Whistleblowers (and, yes, that means essentially ALL Federal agencies) a rogue manager who dislikes or feels threatened by a Whistleblower can make up any garbage he/she wants and play the NoPay Game with that employee.

Create a little hell.

Or a lot.

Here’s an example showing just how big a mess the NoPay Game can create, when used against an FAA Whistleblower. This is just one example, and I have no doubt it pales in comparison to others. In the interest of accountability, names of FAA officials are included. And, so as not to discriminate, union officials are also named. A few key documents are linked; all other documents will be posted/linked on request…

…in my own retaliation case, the FAA manager at the control tower in Concord, CA, Jason Ralph, abruptly locked me out on the morning of February 16, 2007. I had no idea why; he provided no meaningful paperwork, and so I was uncertain as to my pay status week-to-week, and anxiously watching my bank account and the mailbox to try to figure out what was going on.

A couple weeks later, the first lockout paycheck showed he had placed me into a paid administrative leave status. That continued for a few more paychecks, while I remained away from work. It was all weird and troubling. I made many attempts to get an explanation, but all were rebuffed.

Two months after the lockout had commenced, in late April 2007, Jason Ralph sent me an email out of the blue. He advised that I needed to choose between using my sick leave or my vacation leave, and he declared his intention to apply that leave retroactively and into the indefinite future. A crazy, mindless, and obviously illegal proposal, but this is the kind of thing rogue federal managers can do.

Now, at the time, I had been receiving my paychecks. So, in my email reply, I did not select from his two choices; instead, I pointed out that I was away from work on his orders while he was trying to figure out what he was doing. I pointed out that FAA’s Regional Flight Surgeon, Dr. Stephen Goodman, had agreed to declare me ‘medically incapacitated’ based solely on Jason Ralph’s charges, and I added: “…it would not be appropriate for me to be compelled to use my sick leave to cover your arbitrary and hostile management actions.” PDF

A few weeks later, the first paycheck arrived showing me involuntarily using up my accumulated sick leave. By mid-August, I had exhausted all of my accumulated leave balance, and was suddenly seeing no pay. My NoPay status continued through the end of September.

Fortunately, a new District Manager, Andy Richards, had arrived at San Francisco in August and, in early September he telephoned me out of the blue. Andy then assisted* in correcting the pay status, which was restored to paid administrative leave effective the end of August. I saw the first pay restorations in early October. *Andy was helpful this time, but a year later, he did not help. In fact, FAA records show that he was apparently under orders from above to not assist, as he just ignored the process of firing a 22-year employee with a clean work history. Jason Ralph had been promoted to serve as Andy’s assistant, and it was Jason who sent the key emails to push the firing.

For the record, Andy’s boss had been Teri Bristol until early 2008. His new boss became Kathryn Vernon, starting in early 2008. However, both Ms. Vernon and Ms. Bristol relied heavily on Senior Advisor, Barry Davis to conduct all the real work.

Kathryn Vernon soon promoted to become Northwest Mountain Regional Administrator; Barry Davis soon promoted to become manager of the world’s largest TRACON, in Southern California; and, Teri Bristol promoted to become #2 in all FAA Air Traffic (she is Deputy under David Grizzle). All three of these high officials were deeply involved in the Lewis-FAA case and should be accountable for actions taken; all three have successfully dodged being put on the record. They all refuse to talk about the Lewis-FAA case, and FAA condones their refusal. A gross injustice, initiated by a rogue manager, is thus sustained.
I remained in a paid administrative leave status — paid to stay away from work, involuntarily — until I was eventually fired, on November 6, 2008, 21-months after the lockout had begun.

My ATC medical clearance (which had been improperly retracted in another Whistleblower retaliation, to justify the lockout) was fully restored by Dr. Goodman. I even received a letter from Andy Richards in late April, saying we would discuss my return to work. Glen Rotella (a Labor Relations specialist at FAA’s Western Pacific regional office, AWP) invited me to file a new grievance, so that I could be made whole for the improper NoPay actions imposed from April 2008 through August 2008, and so I filed that grievance on 5/1/08.

Interestingly, FAA emails (obtained years later, via FOIA) show that there was NO PROPOSAL to fire me until just one week after I had filed a grievance. That grievance sought a full restoration of all lost pay, as well as a return to work. The proposal to fire me arrived out of the blue: a FedEx overnighted envelope was stuffed inside my screen door on July 16, 2008 … seventeen months after I was locked out! (and, yes, three months after that 4/17/08 letter from Andy Richards saying we would discuss a return to work)

So, in this particular example, FAA managers are seen to have the authority to just do whatever they want to arbitrarily destroy careers, including playing the NoPay Game. But, that is just the half of it: the larger half of the hell is experienced on the backside, when the damaged employee tries to restore the pay that was arbitrarily withheld. In my case, progress was delayed for years due to sloppy paperwork and outright lies by people like Jason Ralph and Dan Castrellon (who was acting manager at AWP-16, thus Glen Rotella’s boss, during the process of my firing). Eventually, multiple pay audits had to be performed by FAA’s outsourced pay contractor. The first small pay restoration was a block of 72-hours of pay improperly withheld in April 2007, and it was not fully restored until May 2009 … two months after I had been forced to ‘retire’ (manipulated* by MSPB and FAA’s Regional Counsel, Naomi Tsuda and Don Bobertz, to retire at earliest eligibility). The deal was, if I wanted to collect the pension I had earned, I had to ‘voluntarily retire’. *The ‘manipulation’ was easily accomplished, in that all FAA had to do was not produce the evidence. They knew that MSPB would NOT pressure them to produce, so FAA Counsel simply hid everything. All the emails and other requested records that showed the many documented slanders against me (mostly by Jason Ralph, a few also by Dick Fossier, another Labor Relations specialist), as well as clear failures by Dan Castrellon to change course when his subordinate, Ros Marable, pointed out to him that Jason Ralph had provided false information.

They also hid the fact that the final deciding official, FAA manager Marc DePlasco, had written in his ‘Douglas Factors’ analysis (drafted five months AFTER the removal  proposal letter, no less!): “…Mr. Lewis was asked to consider a medical retirement but he refused.” This he wrote nine months AFTER Dr. Goodman had fully restored my ATC medical clearance (which never should have been rescinded in the first place).

In August 2008, Andy Richards lied when he emailed me, claiming he did not have a key email declaring I had already been admonished (thus a fresh new firing proposal was a second disciplinary action where discipline had already happened). This key document was hidden by Counsel; in fact, Naomi Tsuda told MSPB outright that I had not been previously admonished, which was a flat-out lie.

I obtained these copies — and evidence of all the improper concealment during MSPB Discovery — years later, through a series of FOIA requests. (if you are curious, here is a deeper analysis of those concealed records: aiR-Link)
As for the other (and far larger) pay restoration, the process dragged out for three more years.

The very grievance that triggered my firing, which I had filed on 5/1/08, eventually went to a grievance arbitration scheduled for mid-February 2012. I had worked intensively producing records and communicating the need to fully arbitrate, and shared this with a long string of NATCA officials (the union): Mike Hull, Ham Ghaffari, Kevin Sills, Mark Wilson, Anna Jancewicz, Barry Krasner, Jay Barrett, and David Caldwell. But then, at the last minute, NATCA’s arbitration team (Jay Barrett and Mark Wilson) accepted FAA’s settlement offer that paid me at 40-cents on the dollar; what should have been nearly $50K was instead under $20K.

Even more importantly, though, the NATCA decision denied me the opportunity to have a hearing. I had made it VERY clear to all NATCA officials that the hearing was far more important than any cash payout, PDF that the hearing was my one opportunity to put these managers (as well as a few involved union officials, including Ham Ghaffari, David Caldwell, Bill Marks and James Swanson) under oath to create a record. In other words, the arbitration was my final opportunity to use the grievance system as we are all supposed to use it — to assure we are afforded real Due Process, which I had clearly been denied.

So, when NATCA arbitrarily caved in at the last minute, they killed that critical opportunity. That this was an arbitrary (and damaging) decision by NATCA is shown by the larger record of FAA-NATCA arbitrations: as presented in this webpage aiR-Link showing all FAA-NATCA arbitrations at AWP for a relevant 18-month time period, NATCA has routinely taken many marginal cases through full arbitration, including minor cases such as single-day suspensions, and clearly unwinnable cases.

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So, what can we gain from all of this? Well, it may help to recognize that we as citizens are learning right now, about how broken our Congress can be, and the problems that flow out of that dysfunction. But, we also have an opportunity here, to become a bit more familiar with how badly Whistleblowers are maltreated.

The latest rounds are behind us now (for a short while), but we all found it troubling as we heard the news and then began to learn how Shutstorm 2013! caused so many problems for so many people, but imagine having to endure this hell all alone.  A Whistleblower — the woman who speaks up about a safety issue, or the guy who refuses to stay quiet about a fraud — gets singled out by her/his boss, a corrupt official who is arbitrarily acting to destroy careers (and thus families). And the agencies condone this corrupt and damaging behavior!

Imagine the hell of today’s Shutstorm 2013! mess, then imagine it against you and you alone. That is the intensity of what we Whistleblowers endure. That is the reason we must have real and effective laws that protect Whistleblowers. And, that is why we must repair MSPB and OSC and other entities that are failing to do their protective duties.

We need to shut down the NoPay Game, permanently.

If you were a Federal Whistleblower, it might look like this…

With the recent news story about NSA spying on ’email metadata’, we are made all the more aware that we do not know (and may not trust) if our government is looking into our emails, too. We also realize, we need to understand the hazards faced by Whistleblowers, and why they cannot just report a problem into their organization — or to the other government entities (like OSC and MSPB) intended to support Whistleblowers….
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Suppose you are a Federal employee, working for Agency-X, and for years you have seen a routine practice that exposes the public to unnecessary risk; a problem that likely will eventually cause someone to be killed in an accident.

The legal process for a typical Whistleblower:

In a normal scenario, a Whistleblower speaks up about a problem, then endures retaliation, then files a complaint ‘hoping’ to be made whole after the retaliation.
For Federal employees, adjudication of that complaint is done by the Office of Special Counsel (OSC) and/or the Merit Systems Protection Board (MSPB). These are both quasi-judicial entities, crafted by Congress in the 1970’s, with rigid and legalistic procedures.
A typical Whistleblower has zero legal knowledge, but does his/her best to correctly submit the paperwork and navigate the process at OSC and/or MSPB. The typical Whistleblower, inclined to be idealistic (or some might say naive), goes into this process with no awareness that both OSC and MSPB have horrible histories, in which they drag out the process and drain the Whistleblower’s energy and spirit, almost always siding with the agency.

You say to your coworkers, ‘hey, we need to change this’; some of them quietly agree but take no action, and some of them start to distance themselves from you. You elevate the concern to your manager, and they simply blow it off. You elevate it to a higher manager or an office at the Agency-X national headquarters, maybe even a hotline intended to intake such concerns. The next thing you know, your loyalty and performance are being questioned, and YOU are being subjected to regular scrutiny, minor discipline, and other disparate actions.

You think, ‘wow, this is weird, I have served fifteen years here, been well recognized, done a lot of good things, and yet now I am a ‘problem’ because I try to help us all do better … weird’. The discipline escalates, maybe you even get fired. When you receive your first letter formally declaring an ‘adverse action’ (they decided to fire you or suspend you for more than 14-days), the boilerplate at the end of the letter informs you of your right to file an appeal at MSPB. Of course, you know nothing about MSPB, but on the other hand, you are thrilled at the opportunity to have your case objectively reviewed away from the corruption you are increasingly seeing within Agency-X. You file the MSPB Appeal papers and proceed toward an eventual hearing before an Administrative Judge (AJ).

A point needs to be emphasized: you are a Federal Whistleblower, but you have no legal training. So, even the paperwork (a.k.a., ‘pleadings’) format used at MSPB is quite daunting to you. On the other hand, you are now engaged in an adversarial relationship before MSPB. Your adversary is a trained attorney, serving within the Agency-X legal office. Most likely, your adversary handles MSPB cases all the time, and even knows the AJ well enough that they would say ‘hi’ to each other in a grocery line. You, on the other hand, are just a hard-working, concerned Federal employee who blew the whistle and is trying to be made whole for the improper retaliation done to you by a rogue Agency-X manager. You are climbing a steep learning-curve, slowly acquiring an understanding of how the legal process works. You engage in ‘Discovery’, seeking to compel Agency-X to produce emails and other records you know exist, and which will prove to the AJ that you were indeed retaliated against.

So how does Attorney-Client Privilege impact a Whistleblower?

A closer look at Attorney-Client Privilege

Most of us have no idea what the term “Attorney-Client Privilege” means, until we are rudely informed in a legal decision. In the case of Federal Whistleblowers, this decision tends to be painful, as it often coincides with the dismissal of our appeal. That is, when we spoke up about a problem and thus threatened our employing agency, they retaliated, and now our efforts at justice are blocked.
When legal disputes develop, they proceed toward a court where (hopefully) a full and fair judgment will be made. That judgment will happen after both sides of the dispute are presented. Most people retain the services of an attorney to present their side, though some people proceed ‘pro se’, representing the case on their own.
We all have a basic right to not self-incriminate. When we retain an attorney, that attorney becomes an extension of our basic right; i.e., anything and everything we share with our counsel is to be protected from disclosure. The theory is not just about protecting the client’s basic rights, but also about encouraging the client to be fully open with his/her attorney. Nobody disputes that maximizing candor and transparency will provide the highest probability for an optimally fair decision by a court.

There are a few images burned into your mind from this whole difficult experience. One is the sweaty, shaking discomfort on the face of the Agency-X manager when he/she issued you the disciplinary letter, and directed you to sign it. It was quite evident that the letter was ordered from above, maybe much higher, by an unidentified bureaucrat. You engage in Discovery to reveal the real decision-maker, to establish what ‘facts’ they were operating from. And, you run into a problem. The Agency-X attorney is claiming ‘Attorney-Client Privilege’, and MSPB is accepting that stance, thus blocking your Discovery request.

It turns out, some of the critical emails that led to your discipline were eventually shared with the legal office at Agency-X. This was not done in a conventional way, to protect a client in a legal matter; no, this was done as a form of evidence ‘laundering’. MSPB is good with accepting this as establishing an attorney-client relationship; therefore, that evidence is now ‘privileged’ and will not be provided to Discovery. You are screwed, because you cannot provide the smoking-gun evidence MSPB needs to see to tell Agency-X to undo your discipline and clean up their act.

It gets worse: there are other ‘Privileges’

The ‘privilege’ to conceal information applies not just to discussions between an attorney and a client; it also applies to the work done by the attorney, and the deliberation between officials that leads to a decision, such as your firing.

The ‘Attorney Work-Product Privilege’ seems reasonable; it ensures an attorney will not be forced to divulge his/her strategies and other works created while serving a client.

The ‘Deliberative Process Privilege’, on the other hand, is commonly abused by agencies to deny FOIA (Freedom of Information Act) requests. It is little more than a tool to dodge accountability. The rationale used by an agency such as FAA, when they deny records citing deliberative process privilege, is that they do not want to “…discourage candid discussions within the agency and thereby undermine the agency’s ability to perform its functions….”

What this translates to is this: the public is not allowed to see what happened within a meeting, if the agency simply declares it was ‘pre-decisional’. And, naturally, EVERYTHING becomes labeled ‘pre-decisional’.

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The full consequence of these ‘privileges’ is this: Federal agencies are allowed to hide key records, virtually guaranteeing that the damaged Federal Whistleblower will be unable to prove the retaliation. MSPB and OSC have been remarkably non-aggressive in pressing agencies to produce these records, and agency managers have long known they will not be held accountable.

Is it any wonder, than, that Whistleblower cases continue to happen, and that so many people are afraid to speak up?

The time for reform is long past due.

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An Example of Attorney-Client Privilege abuse in a recent MSPB decision

An MSPB AJ in Denver heard a case about a U.S. Department of Agriculture manager, who had filed an MSPB Appeal charging he was retaliated against after blowing the whistle. The AJ essentially sided with the Appellant (Shibuya). USDA wanted a different outcome, so they filed a PFR (Petition for Review) at MSPB. The PFR was accepted by MSPB (many are rejected) and then reviewed by the three current Board members: Susan Tsui Grundmann, Anne Wagner, and Mark Robbins. Upon review, the full MSPB found the AJ had erred. Their 6/14/13 decision, Shibuya v. USDA, vacated the AJ’s decision, and the case was remanded to the Denver Field Office for further adjudication.

Here is an excerpt from the 6/14/13 decision, where MSPB offers their assessment of how attorney-client privilege was abused. [Appellant is the USDA Manager; Mr. Wiley is his private attorney]:

“…Regarding purpose of the arrangement, the record contains an email dated September 6, 2008, in which Mr. Wiley stated that “[s]ince we have this standing contract, you might as well take advantage of my lawyer-ness.” He informed the appellant that he would only make comments that were “absolutely necessary,” that his review “shouldn’t cost more than a couple of tenths of an hour,” and that charging the agency for his review would “remove any doubt that this is an official lawyer-client relationship . . . . That’s a cheap easy procedure to keep a critical document away from the dark side.” IAF-0390, Tab 5, Subtab 4h at 1. Mr. Wiley further advised the appellant that case analyses should be emailed to him so that the documents could be issued with an attorney-client privilege statement. Id. We find that the weight of the record evidence supports the agency’s position that the purpose of Mr. Wiley’s review was to prevent the disclosure of case analyses drafted by agency employees in future third-party proceedings by creating the appearance that the case analyses were privileged documents.

The MSPB then weighed in on whether this arrangement was appropriate:

…we find that it contravenes the agency’s obligation during litigation to disclose non-privileged, discoverable information when requested by the other party, and not to fabricate a privilege in order to prevent the discovery of information. See generally Fed. R. Civ. P. 26(b)(1) and (b)(5)(B). FRCP, Rule #26 Attorney-client privilege exists for the sake of the attorney-client relationship—not the other way around. See Fisher v. United States, 425 U.S. 391 (1976) (the purpose of attorney-client privilege is to encourage clients to make full disclosure to their attorneys, and it only applies where necessary to achieve that purpose). We find that this scheme was an abuse of the privilege and that the agency was right to be concerned by it. The Board takes the integrity of its discovery process seriously. We do not condone the specious “attorney-client relationship” that the appellant and Mr. Wiley cooked up in order to play some procedural game with our administrative judges….
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Metadata Mining is Mega Awful – ADDED 6/20/13: a post by Jim Hightower.