CONTACT: Ann O’Hanlon, (202) 254-3631; aohanlon@osc.gov

WASHINGTON, D.C./May 13, 2013 -

Today the U.S. Office of Special Counsel (OSC) filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit in the matter of Kerr v. Salazar. In the brief, OSC advises that provisions in the Whistleblower Protection Enhancement Act (the WPEA) clarifying the scope of protected whistleblowing should apply to cases pending at the time of the law’s passage. This follows OSC’s amicus brief in the matter of Day v. Department of Homeland Security, which raised similar issues.

OSC argues that Congress clearly stated its intent that the WPEA apply to pending Board cases. The Senate Report explicitly states: “(T)he Act’s provisions shall be applied in OSC, MSPB, and judicial proceedings initiated by or on behalf of a whistleblower and pending on or after that effective date (of enactment).” S. Rep. No. 112-155.OSC further asserts that denying whistleblowers the benefit of Congress’s restorative law would undermine, rather than promote, the governmental
interests that Congress advances in the WPEA.

The appellant is Leslie A. Kerr, former manager of the Kodiak National Wildlife Refuge in Alaska. Kerr alleged that whistleblower reprisal motivated her removal from federal service. The District Court ruled that Kerr’s disclosures to her supervisor did not qualify as protected disclosures under the Whistleblower Protection Act because they were
made in the normal course of her employment. Her appeal was pending at the Ninth Circuit when the WPEA became law in 2012.

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The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency. Our basic authorities come from four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA). OSC’s primary mission is to safeguard
the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing. For more information, please visit our website at www.osc.gov.

Jim can be reached through this website here.

Whistlewatch.org received an advanced copy of the book directly from the Jim prior to publication.  It’s a tragic account of how one man tried to speak truth to power that his employer Northrop Grumman was committing fraud against the federal government.

Jim was naive to what would happen as the result of his whistleblowing.  He did not know the extent of the harm that would befall him and his family including loss of his job and career death which forced them to end up in a homeless shelter. It is truly sad that Jim had to risk everything to protect tax payers.  The tax payers owe him a debt of gratitude.  Jim deserves to be honored for his courage and integrity.  2 things in short supply in this country.

Eventually Jim triumphed over adversity winning as a relator in a False Claims Act suit.   No amount of money can replace the loss he suffered.   I am humbled to know James Holzrichter.    My personal special thanks to Jim’s wife and his family.

Listen to the interview of Jim below.  It begins about an hour into the Dick Kay show.

Tom Devine for the Government Accountability Project (GAP) commented on the case here.  We worked with Tom (who deserves abundant praise for his efforts in MacLean) and several other rights advocates to get the Whistleblower Protection Enhancement Act (WPEA) passed last year. See Open Letter here.

The Court of Appeals words are a bright line signal to the MSPB to go back and provide the protections of law provided in the Whistleblower Protection Act (WPA) of 1989 and to examine what the person, here a federal whistleblower “reasonably believed.”  There is no dispute in the record that MacLean “reasonably believed” that the text message canceling flights for federal air marshals posed a danger to public health and safety in the post 9/11 world.

Whistleblowers always seek to raise a red flag to those in positions of authority such as supervisors or higher management then to other personnel outside their direct chain of command, such as here the Inspector General.  When those channels fail, which often they do because management never wants to admit they are in error and fraud, waste, abuse and/or danger to the public remains, I’d strongly and loudly say our best line of recourse is use of our Constitutional free speech rights.  Especially in pressing, demanding, urgent (exigent) circumstances where lives are at risk.

This decision is brilliant because it reinforces what the advocates have been championing for decades.  We note the explicit intent of Congress and plain language meaning of the WPA which states:

Sec. 1213. Provisions relating to disclosures of violations of law, gross mismanagement, and certain other matters

(a) This section applies with respect to–

(1) any disclosure of information by an employee, former employee, or applicant for employment which the employee, former employee, or applicant reasonably believes evidences–

(A) a violation of any law, rule, or regulation; or

(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs;

Legal protections for federal whistleblowers have been constantly eroded by the MSPB since the enactment of the WPA in 1989.  Latest calculations of cases lost by whistleblowers at MSPB since the WPA passed exceeds 5,000 federal government employees harmed by bad decisions.

In 2010, David Colipinto for the National Whistleblowers Center (NWC) summed up the problem:

“The MSPB judges ruled in favor of employees a total of 1.7% of the time out of a total caseload of 4,698 cases nationwide.

In other words, if you are a federal employee and have a whistleblower reprisal claim or otherwise challenge serious discipline or a termination before the MSPB you have more than a 97% chance of losing your case (even after factoring in the cases that settle).”

What remains to be seen is whether the MSPB on it’s own motion will re-open cases where bad decisions were made that thwarted the clear intent and plain language of the WPA.  We urge the MSPB to consider how many federal service workers have been harmed by their hand in arbitrary and capricious decisions, abuse of discretion and lack of due process.

There are thousands of cases that were settled (see below from AJ handbook).  MSPB prefers settlement verses an fair adjudication on the merits of the case.  Whistleblowers are often forced to settle because the federal government using tax payer money with zero limits places the whistleblower under extreme financial and emotional duress. As in the case of MacLean, being fired from the federal government is the kiss of death for ever working again.  No matter what the truth is, no one is going to hire you.

We speculate that the MacLean case cost the tax payers in excess of $20 million since more then 6 federal agencies were involved and courts in several locations.  If MacLean wins and is reinstated…add another $5 million.  $25 million at a minimum.  That’s enough to run a city or a school district or feed the homeless or the budget of the Office of Special Counsel (OSC) that protects federal whistleblowers!  This kind of waste of tax payer money doesn’t pass the puke test!

Now that the MacLean case will be re-opened and ruled on consistent with the WPA, will other whistleblowers be afforded the same treatment?  The MSPB must examine also if a forced settlement on a whistleblower whose pension was at stake or personal financial ruin, loss of reputation and career destruction are also good reasons to re-open other cases.

We urge all federal whistleblowers to join in on the effort to re-open their cases at MSPB.  A class-action suit should be initiated.  The decades long bad decisions by MSPB to ignore the WPA were in fact against public policy.

Today, the movie The Invisible War, an ITVS film will receive the prestigious Ridenhour Prize for truth-telling.  The film reveals rampant sexual abuse of military service members that goes unchecked with almost no prosecutions of violent crimes including gang rape.

The documentary speaks to how thousands of women and some men are raped, drugged, held captive and at times tortured.  In every incident the whistleblower is then subjected to retaliation including being kicked out of military service.  There are women who are unmarried yet the Department of Defense (DoD) charges them with adultery since the sexual perpetrator, a criminal is married.  It’s barbaric reasoning devoid of international human rights law, akin to Taliban treatment of women.

We applaud the efforts of the whistleblowers who spoke truth to power, ITVS/PBS.org and their supporters.

This organization has been covering the case of King v. Air Force.  We’ve worked to raise awareness that King was the Sexual Assault Victims Advocate Program Manager at Sheppard Air Force base in Texas.  In 2009, King herself became a victim of retaliation so severe, she was demoted several levels.  All because she was trying to help for women who were raped.

Government Accountability Project (GAP) worked with Whistlewatch.org on the recent amicus brief for King.  Whistlewatch.org and colleagues filed amicus briefs for Day and King, found here.  Questions on either case should be directed to ebrown@whistlewatch.org.

We thank all our colleagues for their collegiality, assistance to whistleblowers and efforts to educate the public on issues of grave concern.  Congratulations to ITVS!  You deserve an award for recognizing the brave and courageous whistleblowers!

Federal employee whistleblower rights are on trial now at the Merit System Protection Board (MSPB).

May 2, 1953 – April 10, 2013

Estelle Kohn was dedicated to and passionate about educating the public on whistleblower protection issues. She served as the Deputy Director of the National Whistleblower Center and the National Whistleblower Legal Defense and Education Fund for the last ten years.  In this role she built a world-renowned public education program that includes a highly respected public interest student intern program that brings over 60 students each year to Washington, D.C., to work with experienced licensed attorneys in the field of whistleblower law and advocacy.

Ms. Kohn was also instrumental in the development and coordination of the NWC’s educational seminars that have been held throughout the United States. In addition, she established a program with the U.S. State Department in which international delegations visit the NWC to learn about U.S. whistleblower protection laws as they try to develop whistleblower protections in their own countries. Ms. Kohn also ran the NWC Speaker’s Bureau, which sent speakers around the world to educate the public on whistleblower protection issues.

Ms. Kohn also oversaw the NWLDEF’s Attorney Referral Service. In this role she worked directly with thousands of whistleblowers to help find experienced whistleblower attorneys to represent them.

Estelle Kohn was also a loving daughter, devoted sister and dedicated friend.  She will be missed greatly by all who were fortunate enough to have known and worked with her.

Always so true, unselfish and kind.

Few in this world are equal to find;

A beautiful life that came to an end.

She died, as she lived

Everyone’s friend.

Contact mjw@whistleblowers.org for information regarding her memorial service.

Many thanks to my good colleagues for their assistance on this task.  Special thanks to Tom Devine at GAP.

Notice of Opportunity To File Amicus Briefs

A Notice by the Merit Systems Protection Board on 03/20/2013

Below is Patrick’s email.

URGENT ALERT: IRS REGULATIONS PUBLIC HEARING DEADLINE: Weds March 20, 2013

The world is a dangerous place, not because of those who do evil, but because of those who look on and do nothing.

— Albert Einstein

The Internal Revenue Service has a golden opportunity to boost its efficiency discovering federal income tax fraud and to correct deficiencies in its fledgling Whistleblower Program.