Conservatives Tell Rep. Issa: Federal Whistleblowers, and Taxpayers, Deserve Their Day in Court

By ANGELA CANTERBURY AND SUZANNE DERSHOWITZ

Today, the North County Times—a paper in Representative Darrell Issa’s (R-Calif.) district—published an Op-Ed by our allies at National Taxpayers Union (NTU) and Liberty Coalition that makes clear they expect Rep. Issa to fulfill his promise of protections for federal whistleblowers by ensuring those whistleblowers can access the courts to hold the government accountable.

The Senate unanimously passed the Whistleblower Protection Enhancement Act or WPEA (S. 743) in May, and now it’s the House’s turn to take action on Rep. Issa’s version of the bill (H.R. 3289). This landmark legislation would provide a better safety net for federal workers who sound the alarm on waste, fraud, abuse, and illegality. The Project On Government Oversight hopes the strongest possible version of the bill will reach the President’s desk this year.

Unfortunately, gaps in protection in the access-to-court provisions remain in the House bill. As Michael Ostrolenk of the Liberty Coalition and Pete Sepp of NTU wrote, “Every private-sector whistleblower protection law passed by Congress in the last decade includes a right to a jury trial and normal appeals process, which the current bill fails to include.” As Chairman of House Committee on Oversight and Government Reform, Rep. Issa should work to pass a bill in the House that includes the standard that has already been established for private sector whistleblowing.

Ostrolenk and Sepp explain why denying federal whistleblowers these basic legal rights would deny taxpayers more accountability from the government:

The current legislation has too many traps for a whistleblower who might pursue such an avenue: bench, not jury trials, a burden of proof that gives the upper hand to the government and makes more difficult than current law for a legitimate whistleblower to prove retaliation, and appeals that would only go to one inside-the-Beltway-court. Instead, whistleblowers must be allowed to appeal in their own districts.

In order to fulfill his promise to make reforms for federal whistleblowers law this year, Rep. Issa must ensure that whistleblowers that risk it all to protect taxpayer dollars aren’t trapped in expensive, kangaroo courts where the government always wins. That’s the status quo. It’s also the case that the stakes are high for taxpayers when the government can endanger health and safety, suppress information about billions in waste, or put our troops in danger without any concern for ever being held accountable.

As Ostrolenk and Sepp pointed out, “The executive branch must not have the last say or the upper hand in deciding whether or not its own political appointees suppressed information of relevance to taxpayers.”

We couldn’t agree more with NTU and Liberty Coalition, and hope that Rep. Issa is listening. It might help that the Liberty Coalition is a network of 89 member organizations deeply interested in the Bill of Rights and that NTU has 362,000 members nationwide (about 52,000 in California alone).

Angela Canterbury is the director of public policy at the Project On Government Oversight. Suzanne Dershowitz is the public policy fellow at the Project On Government Oversight.

Follow @SuzieDershowitz

Comments

[concerned fed]

there's no substitute for jury trials.

[Evelynn Brown, J.D., LL.M]

This article presents an interesting perspective on several lessor protections for federal whistleblowers which has created a lower class of protections for people who have a duty to protect the public. Simply put, a federal employee has less employment law protection rights than a garbage man, a secretary, a stock broker or a scientist in industry. One need only review the corrupt system at the MSPB and Federal Circuit that blocks a federal whistleblower from presenting a case in front of a jury of their peers. No Fear Act data reveals the federal government is wasting tax payer money to the tune of billions to adjudicate cases of discrimination and whistleblower retaliation. http://www.eeoc.gov/federal/reports/fsp2010/upload/FY-2010-Annual-Report-Part-I-EEO-Complaint-Processing.pdf

[Senor Thrill]

Covers just federal employees?

The Federal Employees' Compensation Act(FECA) has a provision that "precludes" injured/disabled workers, present and former, from access to the US District Court.

This provision has been used to cover up government criminality. Specifically, use of a forged form in a benefit determination. When the forgery was reported as "worker compensation fraud" the Secretary of Labor authorized whistleblower retaliation.

This was accomplished by using medical opinion obtained by fraud used as evidence to terminate medical treatment and compensation. Foreclosure and bankruptcy followed.

When a civil rights claim was filed in the US District Court for the Eastern District of Pennsylvania the US Attorney's Office in Philadelphia directed the US Dept of Labor obtain a psychiaric report using false information. The report, $3500.00, by Dr. Bruce Smoller of Chevy Chase, MD, was used to cover up illegal termination of benefits.

Former US Attorney Pat Meehan. now a congressman, was forced to resign when the psychiatric report was discovered. US District Court judge Paul S. Diamond allowed the illegally obtained evidence and refused to permit one nano-second of discovery. judge Diamond obtained his position with the help of Meehan in 2004. His ruling cited the "preclusion of review provision" of the FECA in order to conceal the documented illegal acts of the US Dept of Labor Office of Worker Compensation Program(OWCP).

The fact that Elaine Chao, wife of republican party boss McConnell, was Secretary of Labor was the reason judge Diamond, a republican appointee in June 2004, shows that political affiliation trumps the rule of law.

You could be one of the Guantanamo detainees and have access to US Court if abused.

You could be a kiddee killing rapist in any jail and have access to US Court if abused.

If you are a injured/disabled federal worker whose civil rights have been purposely denied you are forbidden to go to US District.

[douglas kinan]

Angela, Suzanne:

I doubt this will happen. Official corruption and high crime in government pays and it pays big. They don't even try to hide it anymore.

Nice try, though.

[chvietvet]

Not only whistleblowers but also veterans are victims of our corrupt civil service and the fraudulent actions of the U.S. Office of Special Counsel and Merit System Protection Board. Unfortunately, our representatives in Congress have succeeded in employing dishonorable and underhanded methods to keep any bills promising even the smallest amount of reform from becoming law. If they came to the floor, all such bills would pass with veto-proof majorities. No veteran with preference rights and no whistleblower can ever expect to prevail over the larcenous gangs controlling the federal agencies. In 1998, I returned to the United States after working exclusively in foreign countries since receiving my honorable discharge from the Air Force in 1968. I had extended my tour of duty twice and served nearly two continuous years in Vietnam just prior to my discharge. I returned on the promise of a job with the U.S. Forest Service, brokered by the U.S. Office of Special Counsel after it had verified my complaint that two Forest Service employees had offered me $20,000 to withdraw from a federal civil service selection. They could not get around me on the hiring certificate to hire a less qualified non-veteran because of my preference status as a veteran. The settlement agreement was bogus, and because I blew the whistle on the bribe offer, the Forest Service hired someone away from the Department of the Interior because she had experience firing scientists. After dismissing me at the end of the probationary year, Forest Service employees phoned both Washington State and Federal agencies to make sure I would not be hired again by anyone. In outline form, here is a list of the felonies and prohibited personnel practices committed by federal civil servants, which are "on the record" in testimony recorded at hearings and on documents in the case files.
1. Misappropriation of $20,000 from Forest Service funds earmarked for equipment purchases in 1997;
2. Attempted bribery under threat of cancelling the selection in 1997;
3. Admittedly firing me, allegedly for refusing to change a report I wrote showing that $208,000 was being used to fund a junk science research project in 1998, which was acknowledged by the MSPB to have been a second disclosure protected by the Whistleblower Protection Act;
4. Two counts of perjury by a Forest Service witness, revealed as such during cross examination at the MSPB hearing in 2000;
5. One count of perjury in 2000 by a second Forest Service witness, revealed as such during cross examination but not admitted to by the witness;
6. With no evidence of unsatisfactory performance on my part after the allegations were demonstrated to perjury in the recorded testimony, the administrative judge committed fraud by making up two fictitious examples of poor performance, one of which had been refuted at the hearing by two Forest Service witnesses during the hearing and the other lacking all sense and logic;
7. Malfeasance of the MSPB in refusing to review the initial decision and therefore not having to address the issue of fraud in 2002;
8. Telephone communication between a Forest Service employee and selection committees for Washington State agencies to make sure that I would not be hired between 1999 and 2001;
9. Telephone communications between another Forest Service employee and a selection committee chairman for the U.S. Geological Survey (USGS) in 2003 to make sure that I would not be hired by that agency between 2003 and 2007, during which time I was denied employment in at least 99 selections. My examination score had been the highest of all applicants on most of them;
10. Perjury by six USGS employees in written statements to the EEOC during its investigation of my age discrimination complaint;
11. Obstruction of justice by altering documents from the selection file before submission to the MSPB. Copies before and after the alteration came into my possession at various times;
12. Falsification of a hiring certificate by an unauthorized person to cover up the fact that a veterans' preference law had been broken;
13. Criminally malfeasant preparation of an investigation report by the Veterans' Employment and Training Service in order to permit the MSPB to dismiss my complaints about prohibited personnel practices for lack of jurisdiction in 2007. The report simply failed to mention the Veterans' Employment Opportunities Act, under which the investigation was supposed to be made, and the investigator's letter lacked a date, making it possible for the MSPB to allege that there was no proof of timely appeal;
14. Violation of the Rule of Three in a selection in 2003;
15. Failure to permit me to compete for at least eight vacancies, for which my examination score would have been highest. The investigator for VETS recognized only one of these to be a violation, but he insisted on corrective action later ruled by the MSPB to have been inadequate;
16. Perjury by a USGS selecting official during the reconstruction of an illegal selection in 2008, suborned by the administrative judge for the MSPB because the first statement he made was true and failed to provide the judge with sufficient reason to rule in favor of the agency;
17. Obstruction of justice by alteration of a document showing examination scores at some time between 2003 and 2007;
18. Failure of VETS to investigate complaints at all after the beginning of 2006.
The full list of violations would be too long to include here. The MSPB alleges that it can take no action against agency witnesses who commit perjury because it "is not a criminal court."
The matter has continued in the United States District Court for the Western District of Washington, with more fraud arising. This is just how the system works. I consider it to be nothing more than organized crime within the government. These agencies are centers of crime and corruption because they are responsible for trillions of dollars worth of natural resources of all kinds on federal lands in the West.
It is significant that Scot Bloch was Special Counsel while my complaints were before his agency. He is a felon who got away with pleading guilty to a misdemeanor. During his tenture, one of his attorneys dismissed my whistleblower complaints about a whole series of selections based only on an investigation made the the Veterans' Employment and Training Service. This agency of the Department of Labor lacks jurisdiction and competence to investigate any matter pursuant to the Whistleblower Protection Act.
In addition, Gale Norton was Secretary of the Interior and responsible for the U.S. Geological Survey from 2003 through 2006, when that agency turned me down in 57 selections in spite of my having scored highest on the examinations at least 35 times. She bartered away several billion dollars in oil shales on federal lands to Royal Dutch Shell in exchance for a job with the company for herself at a salary of $1.3 million per year. Although these facts were known by 2009, she has not been prosecuted for corruption.
Is it any wonder that I doubt there will be any jury permitted in my lawsuit. Most Americans are not being properly informed of the extent of government corruption.

[Mr James L Leonard Wolcott]

Sounds about right ,"But" just for inner government Whistleblowers per-se'...

Can't have it overflowing to the "Allready" light in the ass usa courts rules,etc. and conducts..

"The current legislation has too many traps for a whistleblower who might pursue such an avenue: bench, not jury trials, a burden of proof that gives the upper hand to the government and makes more difficult than current law for a legitimate whistleblower to prove retaliation, and appeals that would only go to one inside-the-Beltway-court. Instead, whistleblowers must be allowed to appeal in their own districts"

[Stewart Rosenkrantz]

We need whistleblowers to keep the bad guys in check.

[Cheryl Dykstra]

Rather than wasting my hard-earned tax dollars on perpetual democratic witch hunts, please pay attention to the most egregious misuse of my money. Failure to do so may very well translate into a failure to be re-elected - and, rightfully so, may I add, Sir.

[valerie gilbert]

This country was founded by rebels and firebrands and whistleblowers represent that bold past. We need folks brave enough to speak the truth. We have been living in a world of smoke and mirrors and it is time for all people, those that are willing, to WAKE UP. God bless the whistleblowers of this world, and the brave souls that support them and their mission. Here's to TRANSPARENCY, AUTHENTICITY, HONESTY, and abundance for all. WEAREALLONE.

[Gregg Stoerrle]

What about protecting private sector whistleblowers too?
The protection for us is just as pathetic exspeically under OSHA's whistleblower program.I found out the hard way how bad it was after i blew the whistle and was fired for it 6 weeks later.You know it's bad when after all the evidence you provid showing retaliation for protected activity then you have an OSHA area director provide you inside OSHA documentation that i used under his direction that clealy showed how my employer lied and conspired to lie to the U.S federal investigators and still i was denied justice!
My former employer even promotes on their video's how they do work for the federal government.There was even a coworker who was recruited by my former employer who steped forward after me and provided DOL more proof of what was going on and his was right from U.S Federal construction sites he was working at.This fellow steped forward 15 months after me and yes he was then fired on trumped up charges where he did file under OSHA's whistleblower program only to find out it's a joke.
I have been posting comments under youtube videos by,The U.S department of labor,senator Robert Menendez from my district of NJ,Rep George Miller CA for he has been fighting for better whistleblower protection.I have been posting parts of our case there that clearly show that something is terribly wrong with OSHA's whistleblower program.All i wanted was protection under OSHA that never came.Now i'm on the verge of losing everything i own and my home is going into foreclosure.All this for doing the right thing.Where's my day in court? You can not imagine how hard it was to make that call to OSHA but the danger was there.
Gregg
PROUD NAVY DAD

[Richard Wyeroski]

Federal employees are literally looking the other way because of retribution from management.

The current MSPB system of administrative law has failed miserably and produced a weak ineffective federal worker to scared to do their jobs.

Will we ever learn?