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GAP Reaches Out to Whistleblower Community to Protect Rights, Six Months Too Late

Posted by mspbwatch on January 24, 2013 in Blog, NGO Accountability, Select Posts

The Government Accountability Project issued a call today for whistleblowers to submit friend-of-the-court briefs to the Merit Systems Protection Board to support the retroactive application of the Whistleblower Protection Enhancement Act. MSPB is in the process of deciding whether to apply the WPEA retroactively to scores of cases it had to put on hold, given that the new law overturns several harmful precedents. The issue of retroactivity is a legal one, centering on whether Congress spoke clearly in intending that the WPEA apply retroactively. This “clear statement rule” was imposed by a 1994 Supreme Court case, Landgraf v. USI Film Products, Inc., stemming from the principle that “retroactivity is not favored in the law.”

A year ago, when the WPEA was still in committee, this author reached out to the lead lobbyist in charge of the WPEA, Tom Devine of GAP, to alert him to the fact that the WPEA may not apply retroactively. Devine sent a memo to his congressional contacts, and later in the spring the overseeing Senate committee included language in a Senate report favoring retroactivity. This was followed by a floor statement from Rep. Todd Platts (R-PA) in the same vein. There is no explicit retroactivity language in the bill itself, however. Therefore, as noted by GAP’s email today, all of this may not be enough. Depending how the MSPB, the U.S. Court of Appeals for the Federal Circuit, and possibly the Supreme Court rule, there is a strong possibility that one or more of these bodies may decide that only bill language counts. What it will come down to, essentially, is the legal philosophies of individual judges and decision-makers, and how much credence they give to individual floor statements and committee reports versus bills passed by both chambers of Congress and signed by the President.

Now GAP has issued a call for whistleblowers to submit briefs to the MSPB, by February 15, saying that “Enough whistleblowers writing to the Board about your whistleblowing disclosures (and the public stakes), will help to underscore the weight of this decision by the MSPB.” This will be a weighty decision by the Board, no doubt, but public sentiment may not be relevant or sufficient to resolve a legal question.

Unfortunately, such a call for public sentiment would have been critical when the WPEA was debated, when Congress could take into account policy preferences in a way that courts may not. The record is clear that GAP did not conduct a transparent and inclusive approach to lobbying in 2011 and 2012. It’s disheartening therefore, but not surprising, that GAP’s call for help today is a consequence of its secretive and exclusive approach to advocacy.

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GAP Open Call for Whistleblower Amicus Briefs

OSC Notice of Intent to File Amicus Brief – Jan. 10, 2013

MSPB Amicus Order – Jan. 16, 2013

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51 comments on “GAP Reaches Out to Whistleblower Community to Protect Rights, Six Months Too Late”

  1. mspbwatch January 24, 2013 at 6:52 pm

    This isn’t just words on paper. Here’s a list of 38 civil servants who blew the whistle and had cases pending at the MSPB when the WPEA got passed. Their cases were dismissed without prejudice, subject to refiling when the MSPB issues its decision. So they’re just waiting, life/career on hold. In some cases the MSPB’s decision will mean the difference between justice and unemployability. The list also doesn’t include those who waited a few years until WPEA’s passage to file, not knowing if it will make a difference. Others have cases at the Office of Special Counsel, presumably also on hold. This stuff matters.

    Le Lie K. Harrach, SSA
    Laray J. Benton, NRC
    Leonard English, Jr., SSA
    Kevin William Blier, USDA
    Ira S. Weinberg, DOJ
    Adam Conti, DHS
    Matthew John Hayduk, Army
    Christopher M. Grengs, FTC
    Steve Kong, Army
    La Freta C. Dalton, HHS
    Glen F. Welch, GSA
    Barry A. Ormond, DOJ
    Sandra M. Ayers, Army
    Susan Kay Dean, USDA
    Clarence Juan Walton, Army
    John A. Stolarczyk, DHS
    Janice A. Brissette, DOD
    Joshua Clock, DHS
    George Michael Perez, VA
    Marcus L. Mosley, DOT
    David R. Mason, DHS
    Prudence Napier, VA
    Diane Ontivero, DHS
    Dzinh Ton Nguyen, Army
    David Wayne Carson, VA
    Kim Anne Farrington, DOT
    Daniel Teufel, Army
    Samuel B. Sanders, USDA
    Matthew B. Skonovd, DHS
    Amanda Mojdeh Raiszadeh, DHS
    James F. Mattil, State
    Diane King, Army
    Michelle Martin, DHS
    Vernice Lockhart James, SSA
    Elliott Schwalb, HHS
    Angela D. Cooley, VA
    Arthur L. Welton, NASA
    Carlos Gonzalez, VA

  2. govwhistleblower January 24, 2013 at 9:44 pm

    I too should be on the list. I had an appeal for a hearing with the MSPB board for 18 months following the absurd, misapplication of law by Admin Judge Ben Ami who ruled I was not a whistleblower because I provided a rendered copy of my OSC complaint and not the actual complaint to him. The board sat on my appeal request for 18 months until deciding on Sept. 28, 2012 to deny my request. The deliberated on my case for months and months and then only 2 weeks before they changed their own regulation which would have allowed me to have a hearing, rushed to judgment on Sept 28, 2012. What a mockery of the judicial process! GAP could not believe that MSPB could deny me whistleblower status since I have been a bonafide whistleblower before and all throughout the financial crisis. I provided many warnings of the crisis to the chairman of the FDIC, ombudsman and inspector general, and informed them how supervisors were burying all my analyses and warnings of the crisis. Natuarally, had I been allowed a hearing, my evidence would have been available to the public and the captured MSPB did not wish to take that chance just weeks before the presidential election. This is not justice. So much for expanded whistleblower protections for government employees. We need independent oversight of the MSPB, OSC and the non-gov watchdog groups like GAP that say they will lend support and representation and then do nothing when such assistance is needed. Email me at djhask@gmail.com and let’s see how we can take back the rights and protections we have supposedly been given.

  4. Steven Noppenberger February 1, 2013 at 6:53 am

    You can add my name. I filed a charge with NLRB in concern the union refusing to process my grievances. I was threaten by my postmaster to stop filing charges with NLRB against the UNION. The NLRB allowed a charge against USPS. In USPS responding to that charge it acknowledged in writing it worked with UNION to discourage my filing charges against the UNION. This caused NLRB to freak out. The NLRB then threatened me and withdrew it charges. In my case the Judge said USPS are not protected as whistle blowers. His other arguments were falsehoods not supported by testimony or the evidence

    My name: Steven Noppenberger USPS

    • mspbwatch February 1, 2013 at 11:29 am

      Thanks. Yeah, unions don’t like that. Some of the commenters here have some stories that should really come out to greater exposure. RICO behavior abounds with organizations of all stripes.

  5. dougkinan@yahoo.com February 1, 2013 at 9:18 pm

    I should be on that list. The statute of limitations has not yet run on my complaint, which was ignored by Elaine Kaplan. Kaplan’s successor, Scott Bloch then destroyed my file.

    Any procedural guidance from the whistleblower community or an attorney with experience in these matters would be appreciated.

    dougkinan@yahoo.com
    Boston, Massachusetts
    617-323-6171

  6. govwhistleblower April 5, 2013 at 11:47 pm

    Sadly, there will always be good and bad bosses. We need more awareness and oversight of bad bosses. Employees and members of society need to be more vigilant in calling out abuse in the workplace.

    We can never get to the “promised land” as Reverend Martin Luther King hoped until we all give an effort in making it happen. Talk and awareness only goes so far. A commitment to action is what is needed by all those who are empowered to make major business and personnel decisions.

    I am a federal government whistleblower who was retaliated against for blowing the whistle to expose wrongdoing by top officials at the FDIC. Shockingly, I have been unable to get any journalists at the New York Times or Washington Post to investigate my story as of yet. Shame on Bob Woodward if he has allowed the White House to chill his interest. Here is the link to my newly published book about the inside story of how government regulators caused the financial crisis. The book also is to inform the public how justice has been denied.

    (Link: American Betrayal on Amazon)

    If Congress or journalists really desired to pull back the curtains, they would see corruption & discrimination at the highest levels of government, consultancies, and banking industry not seen since the SEC and FDIC were first created. We have a new type of robber-barrons, too tightly connected with regulators to enable any effective policing or regulatory oversight to produce badly needed reforms.

    I headed up the large bank oversight program for the FDIC for a decade up to the financial crisis. I certainly know what happened at the agency and know where the skeletons are buried and hidden from public view. I tried to alert the Financial Crisis Inquiry Commission and was ignored. I alerted the Chairman and the Vice Chairman of the FDIC, ombudsmen, and Inspector General as to how top officials were burying crucial warnings about the emerging crisis under the rug to protect the guilty.

    I am amazed there is a lack of interest by the press to unearth the quiet conspiracy so far successful by the government to hide the damage it has caused American homeowners and investors throughout the world. Heck, there were non-stop stories and investigations by the press about John Edward’s affair with Rielle Hunter. How does that possibly compare to the harmful consequences to the public caused by a handful of top regulators who purposely failed to perform their jobs?

    My account certainly has to be the most shocking, definitive account in identifying the primary culprits and key, hidden factors that led to the financial crisis. I don’t want to blow my horn too loudly but if a journalist or consumer watchdog wanted a reportorial tour de force worthy of a Emmy, there perhaps, is no better means to explore what I have to share.

    Sadly, had government officials listened to what I had said, billions of dollars could have been saved. Of course, the harm and disruptions the mortgage crisis caused homeowners may have been spared as well.

    How often does the press get to see the details of the “inside story” where they can make it public for all to see?

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