This is an update publication to our article published on April 25, 2012 titled Committee on Homeland Security and Governmental Affairs Report on Lack of Protections for Federal Whistleblowers; MSPB Blind to Justice  7bjbm7p

Our colleague Stephen Kohn, Executive Director, National Whistleblower Center (NWC) graciously provided additional plain language regarding why the Merit System Protection Board (MSPB) should not receive summary judgment powers.  We believe the information Mr. Kohn provided will help further a better understanding of the issues and challenges federal whistleblowers face.   We thank him for taking the time to help the public comprehend these complex legal matters and how vital it is to protect federal whistleblowers.

In regard to Summary Judgment, currently the Board can dismiss a case for “lack of jurisdiction.”  However, only cases that raise no disputed material factual issues, and are extremely simple (and very weak) can be dismissed based on a lack of jurisdiction.  In order for the MSPB to have jurisdiction under the WPA, an employee must make a “protected disclosure.”  This is not hard to do, as any communication with Congress, and Inspector General, the OSC, the press, among others, would be considered a “protected disclosure.”  If an employee did not raise a protected disclosure, they are going to lose their case no matter what, so whether or not summary judgment exists for this class of persons is immaterial.

If the Board has jurisdiction over a case, under current law the Board must grant an employee a hearing.  This is a key right that was debated in 1978, and the employee side won.  Managers and their attorneys within the agencies have attempted on numerous occasions to overturn this major right.  Every attempt has failed, and the courts have pointed to the legislative history behind the original 1978 Civil Service Reform Act as the basis for rejecting these attempts.

Why is summary judgement so bad?

1. It will increase the costs of litigation that a whistleblower must pay,and shift costs to the whistleblower.

2.  The overwhelming majority of cases will be dismissed under summary judgment, and there will be no effective appeal.

This is how summary judgment works:

1.  The employer waits until the time period for discovery is over.  Many employees cannot afford to conduct pre-trial discovery depositions (which are very expensive) and wait until the hearing to question various witnesses under oath.

2.  Once the discovery deadline is over, the employee cannot conduct new discovery (except in the most unusual cases, and based on our experience before these MSPB judges, they will hold employees to the discovery deadlines).

3. After the discovery deadline is passed, the employer can submit affidavits from managers explaining why the adverse action happened.  If the employee did not conduct discovery, and did not take depositions (which cost a ton), they will never be able to refute the statements made by the managers.

4. Thus, based on affidavits filed by managers, most cases will be dismissed without a  hearing.

5.  Under current law, once a whistleblower demonstrates jurisdiction, they can have their case heard before an Administrative Judge, without the cost of conducting depositions.

Bottom line, many cases that have merit settle (or potentially settle) before a hearing.  Under summary judgment, the costs of litigation will double or triple, and most whistleblowers will lose based on a paper-record, that under the strict summary judgment standards, will not be subject to an effective appeal. Because the cases will be dismissed before hearing, the opportunity to settle a case based on the pressure of a hearing is lost.

The jurisdictional issue mixing apples with oranges, in an improper manner.  The standard for dismissing a case based on the lack of jurisdiction is a very difficult standard to meet.  The standard is as follows:  Taking as TRUE everything alleged in the complaint, as a MATTER OF LAW, the employee still must lose.  The summary judgment standard is applied AFTER discovery is completed, and the agency can place facts on the record.

CEO Note: The National Whistleblower Center is representing the Department of Health and Human Services (HHS) Food and Drug Administration (FDA) whistleblowers.  We’ve previously reported numerous problems at HHS including constitutional violations of law.  The invasive email spying is no surprise.  The public should question whether HHS, the protector of health care for all Americans is properly guarding medial records when their ability to discern constitutional protections for employees is clearly clouded.  The public should also wonder why a man like Paul Hardy who stood up for women to be protected from faulty mammogram devices would be fired.  85c9otf

Congressional and Office of Special Counsel (OSC) investigations are ongoing into the common practice of HHS spying on whistleblowers including use of spyware to reach personal communications in private email.  7tljbps  More information can be found on NWC & FDA whistleblowers.  7e7tlk4

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