Last week we were pleased to hear from our colleagues in D.C. that the Senate had passed the Whistleblower Protection Enhancement Act (WPEA).  However, David Pardo and I have gone through the language, section by section.  To our surprise we saw the Motion for Summary Judgment below, despite strong opposition from whistleblowers, whistleblower rights advocates and legal scholars.  Therefore, we are sounding an alarm that providing the Merit System Protection Board (MSPB) with summary judgment powers is a reversal of a basic right for federal service employees to have their ‘day in court’ because it will deny a hearing on the merits.

By way of background, in 2006, the MSPB requested summary judgment power to process cases faster.  Considering the extremely low rate of successful whistleblower cases since that time and the Board’s inability to understand it held a statutory duty to protect whistleblowers under the Whistleblower Protection Act (WPA) of 1989, the Board should not be rewarded with a new loophole to fly through.  That loophole is a gun that creates a way for AJ’s and others (who knows who?) to shoot down a whistleblower prior to scheduling the hearing.

A hearing at MSPB is the lowest level of jurisprudence in the administrative process and vital to pro se appellants who cannot afford legal representatives. Without a hearing, a whistleblower will lose the only economical way to question witnesses under oath, including agency management who approved disciplinary actions such as removals from federal service.  Without a hearing there will be no written record for a higher court to review.

Further, a motion for summary judgment is a complicated legal tactic that would force all federal employees representing themselves to know the complex Federal Rules of Civil Procedure, including Rule 56.  This new power will chill free speech and discourage federal service workers from blowing the whistle in performance of their duties of reporting fraud, waste, abuse, mismanagement and specific dangers to public health and safety.  Duties federal employees have to tax payers, not agency managers who are many times involved in the wrongdoing.  The chilling of free speech thwarts anti-discrimination laws under the No Fear Act.

The Civil Service Reform Act and the WPA never mandated federal service workers obtain a law degree to protect their employment rights. Nor should a federal employee be forced to spend their savings and retirement funds to hire a lawyer just to get their ‘day in court’ at MSPB.   The summary judgement provision is a reversal of a basic right to have an open hearing.  That right should not be a bargaining chip  just because the MSPB can’t meet statutory deadlines for processing cases. Congress should not reward the poor performance of the MSPB with new ways to strip complainants of fundamental fairness at the lowest possible level.

Simply put, a motion for summary judgment is a way to kick a whistleblower complaint out of the system almost immediately after the federal whistleblower files a complaint for prohibited personnel practices.  An unsuspecting whistleblower with zero training in law will never know what hit them.  They will not be able to compete with agency counsel whose budget is unlimited to oppress a whistleblower.   More on that as we continue to add up the costs of agency litigation under the No Fear Act and WPA.

The entire whistleblower advocacy rights community should get behind Stephen Kohn, National Whistleblowers Center on this issue.  Mr. Kohn provided extra reasoning for our website on April 27, 2012.  7r3k2p2   We implore Congress to remove summary judgment power from the Whistleblower Protection Enhancement Act (WPEA).  A laypersons definition of summary judgment can be found here.  7fnloyr

Please note the House Bill, 3289, is very different from the Senate Bill S.743.  Additionally, it does not have the 5 year sunset provision.

* * *Senate Bill 112th Congress (2011-2012) S.743 * * *

BILLS-112s743es.pdf

SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY JUDGMENT.

(a) In General- Section 1204(b) of title 5, United States Code, is amended–

(1) by redesignating paragraph (3) as paragraph (4);

(2) by inserting after paragraph (2) the following:

(3) With respect to a request for corrective action based on an alleged prohibited personnel practice described in section 2302(b) (8) or (9) (A)(i), (B), (C), or (D) for which the associated personnel action is an action covered under section 7512 or 7542, the Board, any administrative law judge appointed by the Board under section 3105 of this title, or any employee of the Board designated by the Board may, with respect to any party, grant a motion for summary judgment when the Board or the administrative law judge determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’.

(b) Sunset-

(1) IN GENERAL- Except as provided under paragraph (2), the amendments made by this section shall cease to have effect 5 years after the effective date of this Act.

(2) PENDING CLAIMS- The amendments made by this section shall continue to apply with respect to any claim pending before the Board on the last day of the 5-year period described under paragraph (1).
* * * House Bill, 112th CONGRESS, H. R. 3289 * * *

SEC. 118. MERIT SYSTEMS PROTECTION BOARD SUMMARY JUDGMENT.

Section 1204(b) of title 5, United States Code, is amended–

(1) by redesignating paragraph (3) as paragraph (4);

(2) by inserting after paragraph (2) the following:

‘(3) With respect to a request for corrective action based on an alleged prohibited personnel practice described in section 2302(b)(8) or subparagraph (A)(i), (B), (C), or (D) of section 2302(b)(9) for which the associated personnel action is an action covered under section 7512 or 7542, the Board, any administrative law judge appointed by the Board under section 3105TM, or any employee of the Board designated by the Board may, with respect to any party, grant a motion for summary judgment.’.

*Bold added for emphasis.

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