New FOIA Request: seeking a copy of the report concerning the July 2015 electronic computer system outage at MSPB. Continue reading
On the same day that Republicans scored nationwide victories and control of the Senate, the Supreme Court heard the case of whistleblower Robert MacLean. We will have to wait for their official legal decision, but the NY Times article, USA Today article, and other news reports indicate the Justices leaned strongly in favor of Mr. MacLean, in what may be a rare victory for Whistleblowers.
But, here’s something to think about. There is a saying, “Justice delayed is justice denied.” It has been nearly nine years since TSA retaliated against Mr. MacLean. He spoke up about an aviation safety issue way back in mid-2003, while employed at the Transportation Security Administration (TSA). TSA fired him in early 2006. He then went to the Merit Systems Protection Board (MSPB), but they did all they could to pretend his case was not within MSPB jurisdiction. [NOTE: this is standard operating procedure at this miserably failed federal agency; MSPB does almost nothing to protect merit principles.] MSPB issued their initial decision in August 2008, rejecting MacLean’s appeal. So, MacLean went to the United States Court of Appeals for the Ninth Circuit, where a panel of judges quickly determined MSPB should properly hear the Appeal. Mr. MacLean then went to the full MSPB (in DC), where he was again rejected in June 2009.
Another round with MSPB then followed. Same pattern: an Appeal to the regional MSPB, a nearly-automatic rejection, and a Petition for Review to the full MSPB. This was during 2010 and 2011. It produced the same predictable tone-deaf MSPB outcome: MSPB sustained the TSA firing. So, MacLean appealed higher, this time to the United States Court of Appeals for the Federal Circuit, where a panel of three Judges ruled unanimously for MacLean. In a concurring decision, Judge Evan Wallach wrote: “Mr. MacLean presented substantial evidence that he was not motivated by personal gain but by the desire to protect the public.” [see the analysis, by POGO]
Common sense should have led the leadership at TSA to clean up their act, but they did not. Instead, they doubled down. It seems that bureaucrats have plenty of resources (spend all the time and money you want) and nothing to lose (who cares about accountability). So, TSA filed an appeal, this time to the Supreme Court. TSA has its own team of lawyers, but on matters like this, the ‘lawyering’ is handed off to a higher office. The Deputy Solicitor General tasked with defending TSA stupidity, Ian Gershengorn, was thus given the crummy job of arguing on behalf of, well, TSA’s vindictive stupidity. It made for an easy day for nine Supreme Court Justices. One comment by Justice Sonya Sotomayor: “The facts are very much in your favor.”
In time, we will learn if Mr. Gershengorn’s weeks of preparation will prove to be just one more example of pointless government waste by an arrogant and out-of-control federal agency; yet another Publicly-funded ordeal … just like the abusive retaliation TSA and MSPB continue to deal out to MacLean. This has been going on for nearly nine years now. What a colossal waste….
We Need a Change
Maybe the new Congress will start taking their work seriously, and start making federal agencies like TSA clean up their act. If the new Congress does, well, good for them. And, if they don’t, they deserve to be voted out in the next election.
When employees in any profession, be it aviation, food safety, nuclear energy, or whatever, put their job on the line to speak up about a safety or fraud issue within a federal agency, they should not become targets for agency retaliation. And we, as the public who pays for and is allegedly ‘served’ by these agencies, should expect high levels of agency performance (and transparency), to know that our money is not being wasted and our personal safety is not being endangered.
And, FAA is a Ripe Target for A Very Close Look by the New Congress
In the past decade, FAA brutally destroyed the careers of some of its bravest employees, who responsibly blew the whistle about fraud and safety issues. Many were fired in the same timeframe as Mr. MacLean, and many others were fired later, especially in the 2008-2009 presidential transition period. These people were wronged, but even worse, FAA and MSPB have done NOTHING to make these people whole. Here is a short list, of just a few: Gabe Bruno. Ed Jeszka. Jeff Lewis. Peter Nesbitt. David Pardo. Glen Siwarski. Anne Whiteman. Rich Wyeroski.
…And, who knows how many others….
Back in 1981, President Reagan fired thousands of air traffic controllers when their union, PATCO, ordered a strike. The wheels of political change moved slowly, but eventually thousands were hired back. In the early to mid-1990’s, many in their forties and even fifties were rehired, given new jobs at FAA ATC facilities. It has been done; it should be done again, but this time for a far smaller number of far more deserving employees.
Just because FAA and MSPB are broken, does not mean the Public cannot expect these federal agencies to get it right, at least some of the time. These FAA Whistleblowers are all good people, and they deserve to be appreciated. Their careers should not have been arbitrarily destroyed, nor should they have been re-victimized by a broken MSPB, just because they each bravely spoke up to serve the Public.
Maybe, just maybe, this new Congress will put the right pressure on FAA to clean up their act and make these inspectors, controllers, and other FAA Whistleblowers whole.
Here are a few comments submitted to the 11/4/2014 New York Times article by Adam Liptak:
The aviation Whistleblowers. They speak up about maintenance and design failures. They reveal the ATC errors FAA aggressively conceals. They question the practices that cause fatal accidents.
These men and women should be heroes and yet, amazingly, they are more often banished by their employer. They put their jobs – and the welfare of their families – on the line, simply because they choose the road less traveled.
At FAA, and at all agencies, Whistleblowers are being destroyed by vindictive, self-serving rogue managers. The existing Whistleblower protection laws give the larger Public the illusion that there is real support for Whistleblowers, but in fact these laws enable further Whistleblower retaliation. The rogue managers are never held accountable; these laws continue to fail.
This world increasingly needs ‘a few good Whistleblowers’. Support is needed from Congress, and from people who care enough to demand safety, efficiency, and a just system. A change is long overdue. Please join us and advocate for laws that ensure real Whistleblower support.
An excellent idea was announced by David Pardo at MSPBWatch: he is asking those of us who have been through the hell of an MSPB Appeal to share our documents.
The goal, quite simply, is to shine a bright light on just how totally failed MSPB is. The Merit Systems Protection Board has been wasting funds year after year, to create the illusion that the merit systems of federal employees are being protected. The money they spend does not go to true justice; it goes to myopic and unsupported rationalizations to close cases and obstruct justice.
Federal employees are not being protected; I can personally attest to that failure. MSPB uses a ‘Rocket Docket’ to rush appellants through a futile process that almost never tells the agencies to clean up their act. My own MSPB Case thoroughly documents this MSPB failure. MSPBWatch hopes to produce many more revealing examples of MSPB failure.
In essence, too many of us get screwed over by a broken process, but at the end we are so exhausted or depressed that we never share what happened. Still worse, this very process was implemented by Congress decades ago, to justify removing our legal due process!
When we fail to report these failures, the few rogue managers and agencies are not held accountable, and the cycle is repeated all over again upon the next crop of victims. To get out of this cycle, one of the smartest moves we can make is to share the details. Here’s the link to the Post at MSPBWatch.
Many of the values and beliefs of a society are formed by childhood routines. In my generation, we all grew up pledging our allegiance at the start of each school day; we proudly held our hand on our heart and said the words while thinking of our past heroes and our future national glory.
One of the values so indoctrinated was Religious Freedom. We knew the history, and we resolved to protect, just as our forefathers had done. The clear idea was that the state (as in, elected officials as well as agencies like FAA, chock full of employees and contractors) must not impinge on the right of the individual to practice their chosen faith. In the early 1990’s an air traffic controller in Colorado chose his faith over the work scheduling demands of his ATC job. And so it was, for this defiant exercise of a protected right, that FAA chose to fire Don Reed.
Now, the interesting thing about this is that Mr. Reed stood his ground. He went to the U.S. District Court, used the legal process, got a jury trial, and he won. He won because of one other vaunted and priceless value we all had indoctrinated during our school days: that no individual should be denied his or her right to a jury trial. The simple idea that our system must protect our Due Process right* to be heard and to be treated fairly.
Suppose for a moment that, instead of being fired for a religious freedom issue, Mr. Reed had been fired in 1995 for speaking up about an FAA safety failure or details being concealed from the investigation of a fatal accident. Had he filed at the U.S. District Court, his case would have been dismissed. Agency counsel would have argued that Mr. Reed had failed to exhaust his administrative options (OSC and MSPB), and the Judge would have promptly agreed. And by the time all of that was done, OSC and MSPB would have giggled while rejecting his Appeal: “Sorry, Don, but you filed too late; you should have come to us first.”
Mr. Reed won his civil action because he had the right to demand a jury trial in a U.S. District Court. Guess what: Whistleblowers do not have that same right. Sadly, Whistleblowers are routinely denied the right to a fair trial. That right was taken away from Whistleblowers decades ago. When Congress passed the Civil Service Reform Act in 1978, they were thinking ‘gee, we can unburden the court system if we offload these cases to be handled administratively by a new Merit Systems Protection Board’. And, similarly,they were thinking, ‘gee, we can also require Whistleblowers to go through the Office of Special Counsel’.
Here’s the problem: creating these new administrative processes for hearing a Whistleblower case meant that Federal Whistleblowers could no longer go directly to the U.S. District Courts. Their legal rights were taken away. It also meant that all Federal Whistleblowers became dependent on the Administrative Judges (AJ’s) and federal employees at MSPB and OSC to do their jobs. And that is precisely where this is failing, for the AJ’s and the MSPB/OSC employees are not doing their jobs as Congress had designed. They are not accountable and, in fact, it appears that what they mostly do is watch the calendar and clean up their backlog when they need to each year, so as to qualify for performance bonuses. Not surprisingly, the best way to clean up that backlog is to compel settlements that are nearly always severely tilted to the benefit of the rogue officials running amok and destroying lives within their corrupted agencies. Frankly, this is the type of non-performance we can all expect where budgets are limited, transparency is minimal, and accountability is absent.
Due Process. It is at the heart of our legal system. Without real and meaningful Due Process, the rights of individuals will be trashed. And Federal Whistleblowers, whether serving in aviation or medicine or social service or finance or anywhere in the federal government, will be muted. Is it any wonder than, that agencies like FAA are straying so far from their Public Service mission?
Imagine a world where agency failures are concealed from Public view, and where Whistleblowers are strongly encouraged to just shut up, close their eyes, and be happy for their paycheck. We are living there. Today.
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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.
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?
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]:
The MSPB then weighed in on whether this arrangement was appropriate:
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The Office of Special Counsel (OSC) is the lead advocate in the U.S. government, for the protection of federal employees against whistleblower retaliation. OSC has existed since 1979, and their performance history has included numerous stretches of ineffectiveness. However, that appears to have changed, after Special Counsel Carolyn Lerner was sworn in at OSC, on June 17, 2011. OSC has since become largely rejuvenated and is beginning to provide timely and in-depth whistleblower support.
One of the important members of Ms. Lerner’s staff is Jason Zuckerman, who became her Senior Legal Advisor in July 2011. Online documents shed light on the professional background and values of Mr. Zuckerman. Here is an excerpt from an article he wrote in the Fall 2006 issue of Docket Call, the newsletter of the Young Lawyers Conference at the Virginia State Bar:
That was 2006. Six years later, Ms. Lerner and Mr. Zuckerman had both been on board at OSC for a year, and news articles about OSC performance had become predominantly positive, when this June 2012 interview was done by Camille Tuutti at FCW.com:
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A closing thought, regarding OSC’s resurrection, and how it relates to FAA…
It is beyond dispute that FAA’s work culture was seriously dysfunctional by the end of 2008; that, for air traffic controllers, the years of imposed work rules and draconian maltreatment had taken a great toll. It is also quite clear, from the record, that other agencies that were essentially broken in late 2008 included FLRA, MSPB, NTSB and OSC. Since then, both NTSB and OSC have made great progress. MSPB has improved substantially. The report card on FLRA is not clear.
FAA is the only one of these five agencies that has failed to clean up. Especially, in view of the latest failures exposed by the Dreamliner battery fires, FAA remains in failure mode, mired in a deep mud-pit of dysfunction.
We face major serious economic changes in our funding of government. Soon, the Public will demand: FAA must clean up its act. OSC can help make that happen, if they will assist the many whistleblowers who have been clearly damaged by this rogue agency.
Mr. Zuckerman left OSC in November 2013.—
There is a major opportunity in the Lance Armstrong story, with ramifications for all Whistleblowers, past and future, including those in the FAA.
A current NYTimes news story says wealthy supporters of the Livestrong charity he started have been trying to persuade Lance to come clean: to clear his conscience.
Here’s the good and the bad on Lance Armstrong’s history:
The Good: he won seven Tour de France’s. He became an outstanding advocate for those impacted by cancer. He inspired; he was heroic.
The Bad: Lance Armstrong screwed up. He doped, and then he covered it up. His failure tarnished his image and diminished his cause.
This story would not even exist, if not for the few Whistleblowers who bravely spoke the truth. Now, others are encouraging Lance to become the final – and biggest – Whistleblower in his own case.
So, where is the opportunity?
Well, frankly, this guy should be a hero for what he did and does. After coming clean, he will forever be a tarnished hero, but an earnest confession might be as powerful as his past triumphs (and perhaps far more meaningful?), if it helps deter others from making the same mistakes. Plus, his confession would set an example; it would show true leadership toward cleaning up the performance-doping problem that afflicts all sports.
But that is only half of the opportunity. There is also a great opportunity here for political leaders – as in Congress – to help clean up the whistleblower messes that happen within many corrupted federal agencies, such as the FAA.
What if Congress passed legislation that directed federal agencies to give full amnesty to those federal managers who were aware of (and even possibly aided) retaliation against a Whistleblower?
How might this improve the FAA?
If, under the terms of this new law, a single FAA manager came clean with the information they had felt compelled to conceal, he or she would receive nothing more than a ‘thank you’. Meanwhile, the information would enable FAA to ferret out the few FAA managers doing the real dirty business. Which, of course, would be the other half of the new law: FAA leaders would be directed to fully investigate and discipline the key agency wrongdoers.
why not grant him full amnesty?Let’s say a safety inspector in Texas acts to compel American or Southwest to comply with required repairs for a problem like cracked fuselages, but she finds an FAA manager is undermining her work while taking care of his ‘airline customers’. The safety problem was very serious, but due to the manager’s years of intervention, the repairs are still not done. In this case, no accidents have happened related to the failure. So, in the spirit of ‘No Harm, No Foul’, if that FAA manager (or any other employees with knowledge) came forward and admitted he felt pressured by perceived policies to aid the delay by his ‘customer’,
why not grant full amnesty to her supervisor and/or manager, when they come clean and confirm they failed under the pressure of perceived policies?Let’s say an air traffic controller was a witness to an error where two aircraft almost hit on the runway. As a true adherent to the principles of a Safety Culture, she promptly reports the facts to her management. She is shocked when they knowingly DO NOT investigate, and she watches them create no records. She recognizes the error could easily happen again, and with fatalities, so she shares her concern elsewhere. As in the previous example, given that they did not actually collide, let’s consider this another ‘No Harm, No Foul’ situation. There would be considerable value in cleaning this one up, as it would further confirm FAA’s commitment to safety (building the ‘Safety Culture), while also reducing the odds of a repeat with a more serious outcome. So,
if this controller could be granted full amnesty to come clean – to tell all that he knows, and reveal that which was creatively concealed during the major NTSB investigation – what good might come of it? Clearly, the controller would be healthier; the FAA would become less corrupt and more respectable (which would greatly improve employee morale); and, the FAA mission to protect safety would be furthered. FAA would be moving strongly toward a true Safety Culture.Another air traffic controller knows that his brief failure while working alone at the end of his overnight shift contributed to a horrific accident with dozens of fatalities. He knows he was inattentive for just one minute – perhaps distracted by a movie on his laptop computer, or maybe a good book, or maybe he was just tired and shut his eyes – and thus failed to look out the tower window and make the one critically-timed transmission that would have averted this disaster. For that one minute, he failed to do his job. He feels horrible and scared, and is ready to openly share everything when the investigators arrive, but the union officials pressure him, so he speaks only through the union. Nobody is accountable while both the union and the agency do deep damage control, concealing all details so as to diminish liabilities. The result is a secondary tragedy: this controller now has to live with the sole awareness of his failure, which he knows has been improperly concealed. Much as Lance Armstrong is burdened with the extraordinary weight of his ‘secrets’, which have since been almost entirely revealed. So,
Note that in most cases, FAA’s corruption is more in the overall culture than in the individual. So, even in a failure as serious as this, it would be hugely beneficial to safety if we took disciplinary action only against those individuals who clearly and knowingly operated in a manner solely accountable for the outcome.
why not grant full amnesty to all FAA officials involved except the one manager who is accountable for initiating the retaliation? Then, conduct a full investigation and disciplinary action against that one accountable official. The outcome sets an example for other FAA officials, and will thus help clean up FAA’s deep-rooted corrupt practices.An FAA employee with a good record speaks up about a safety issue. She soon receives retaliation: loss of duties, demotion, suspension, maybe she is even fired. She tries to work with her supervisor, her manager, and dozens of other FAA officials, but everyone is afraid to work with her, so the improper retaliation persists. Her Due Process rights are virtually nonexistent. In this case, ‘No Harm, No Foul’ would not apply, as the Whistleblower was damaged. So,
So, what do you think? Should Congress pass REAL Whistleblower Protection by directing FAA and other federal agencies to grant some amnesties and follow through with the appropriate investigations and disciplinary actions?
I certainly think so. This is decades overdue.