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On Tuesday, Senator Claire McCaskill (D-Mo.) chaired a bipartisan hearing of a subcommittee of the Senate Homeland Security & Governmental Affairs Committee. The purpose of the hearing, "Whistleblower Protections for Government Contractors" was to build support for the Non-Federal Employee Whistleblower Protection Act (S. 241), legislation that seeks to expand and make permanent whistleblower protections for government contractor employees. These protections were initially passed in the 2009 stimulus law.
Senator Rob Portman (R-Oh), the former Office of Management and Budget chief, participated supportively. From GovExec:
Sen. Rob Portman, R-Ohio, noted that with "half a trillion dollars a year, or 15 percent of the budget," being spent on contractors, it is time to rethink the 19 current laws. "Whistleblowers are the eyes and ears of all of us, and are a vital communications link between daily program managers and those in Congress responsible for oversight," he said.
The House Oversight and Government Affairs Committee already has approved a two year pilot experiment in jury trial rights for contractor employees as part of HR 3289, the Whistleblower Protection Enhancement Act (WPEA), but the McCaskill stimulus provisions are not included in S. 743 – the Senate version of the WPEA.
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Marine Corps About-Faces on Security Clearance
Today, GAP is pleased to announce that GAP client and Marine Corps whistleblower Franz Gayl – who exposed the Corps' failure to provide American troops with Mine Resistant Ambush Protected vehicles (MRAPs) in a timely manner – has received notice that his security clearance eligibility has been reinstated, and as such, he will resume his regular work duties soon.
Gayl was exiled from his Pentagon job after Marine Corps officials suspended his security clearance for failing to turn over a flash drive that he did not possess, with a serial number that the manufacturer said did not match any they had on record. This news comes shortly after the Corps failed in efforts to suspend him indefinitely without pay.
This action is a victory for the whistleblower who is credited with getting MRAPs delivered to American troops, which former Secretary of Defense Robert Gates stated saved "thousands of lives." The Corps was set to indefinitely suspend Gayl without pay last month, when the Office of Special Counsel (OSC) – the federal agency charged with protecting federal whistleblowers and investigating their disclosures – filed an October 13 stay request with the Merit Systems Protection Board (MSPB), seeking to prevent the action. That 45-day stay was granted to give the OSC time to investigate the proposed suspension and decide whether to take further steps in the matter. Gayl's attorneys at GAP argued the salary cutoff was an effort to starve Gayl out of the Marines without waiting for an official decision on his security clearance.
Dover Air Force Base in Delaware is the main entry point for most of the nation's war dead. Photo courtesy of Flickr user BiggunbenI wrote last week about the Office of Special Counsel's (OSC) investigation into grotesque mishandling of soldiers' remains at Dover Mortuary. Courageous whistleblowers and a revamped OSC led by Carolyn Lerner deserved gratitude, I wrote, "for trying to ensure that our fallen are treated with reverence, dignity and respect, not treated like pieces of garbage." Unfortunately, the simile was literally true, as WaPo later reported:
The Dover Air Force Base mortuary for years disposed of portions of troops’ remains by cremating them and dumping the ashes in a Virginia landfill . . .
The lame response from the Air Force demonstrates the lack of accountability:
Asked if it was appropriate or dignified to incinerate troops’ body parts and dispose of them in a landfill, [Air Force’s deputy chief for personnel Lt. Gen. Darrell G.] Jones declined to answer directly. “We have recognized a much better way of doing things,” he said. “Let me be emphatic: I think the current procedures are better.”
As is too often the case when whistleblowers expose misconduct, WaPo reports
today that the whistleblowers received more punishment than the officials responsible for the disrespectful mistreatment of soldiers' remains.
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Courtesy of Flickr user steakpinballThe first time I heard the words "stare decisis" was my in my first term at law school in a rainy corner of England. My tutor explained that stare decisis is an accepted legal convention by which courts are bound by previous decisions they have made and by those of higher courts – also known as binding precedent.
The purpose of this principle is to ensure legal certainty and fairness for litigants. It also means there is a built-in check on judicial activism, so that society is less likely to end up with 'Judge made law'.
In United Kingdom courts, stare decisis is an accepted convention in judicial decision-making, and is only occasionally challenged. So, as a lawyer working on whistleblowing issues in the UK, I was very interested to come across this term several years after law school when I attended The Matthew Fogg Symposia on the Vitality of Stare Decisis in America in October, an event sponsored by the National Forum of Judicial Accountability (NFoJA) and GAP at the University of Baltimore.
The relationship between whistleblowing cases and stare decisis is not a connection that I have made while practicing in the UK. While there have been moments of judicial activism in UK courts (most notably, Lord Denning sitting in the Court of Appeal during the 1970s), our courts will generally defer to Parliament and recognize that law-making should be left to the legislature. So I was surprised to attend a conference dedicated to the issue of stare decisis, and to learn that that this was problematic for US whistleblowers.
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Yesterday, the law firm of Katz, Marshall and Banks (KMB) upped its pressure on the government to immediately release the findings from an investigation into alleged misconduct at U.S. Office of Special Counsel – the federal agency charged with upholding the rights of federal whistleblowers – under former Special Counsel Scott Bloch's tenure. The investigation concluded nearly four years ago, but to date no information has been made publicly available.
In 2005 the Office of Personnel Management Inspector General (OPM IG) opened an investigation into alleged misconduct at the OSC. This investigation was prompted in part by an OSC complaint that GAP and other stakeholders filed to address a litany of abuses that allegedly took place at Bloch's directive. KMB, in a letter addressed yesterday to the Chair of the Council of the Inspectors General on Integrity and Efficiency (CIGIE), asserts:
This complaint was and is a matter of significant public concern, given its allegations of whistleblower retaliation by the agency charged with safeguarding the federal workforce against whistleblower retaliation; politically and religiously-based hiring for career positions; discrimination on the basis of sexual orientation or perceived sexual orientation; refusal to enforce federal merit systems protection laws; dismissal of hundreds of OSC charges without investigation; placing unlawful "gag orders" on federal government staff; and deliberate interference with a federal IG investigation
Last year Bloch pleaded guilty to misdemeanor contempt of Congress, for withholding evidence during a Congressional investigation. After being sentenced to a one-month jail term, he withdrew his guilty plea and the case remains stalled in the courts. Concerned that OPM may use this delay as pretext to continue withholding its findings, KMB is urging CIGIE to compel OPM to release the results of its investigation.
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GAP's Shanna Devine holds the petition.Over the past several months, GAP supporters have rallied behind Pentagon whistleblower Franz Gayl, calling on Defense Secretary Leon Panetta to demonstrate leadership by ending the retaliation against this pivotal truth-teller whose disclosures resulted in American troops' lives being saved. Gayl exposed the Marine Corps bureaucratic delay in shipping lifesaving equipment to soldiers in Iraq – including Mine Resistant Ambush Vehicles (MRAPs) and nonlethal crowd dispersers.
This morning, in a joint action with the Project On Government Oversight, GAP delivered your message (petition & letter) to Sec. Panetta with approximately 4,000 signatures.
Several supporters went a step further, challenging Sec. Panetta to recognize this unsung hero and honor Gayl for his courage. Below is one example:
When we send our troops into harm's way, we have an obligation to provide the best protections available for them. Mr. Gayl did what was right in doing that. We owe him our gratitude and promotion, honor and an apology for the treatment his courage generated at our hands. Do what is right this time, reinstate Mr. Gayl's security clearance and all else he rightfully earned.
Making reference to the one-quarter of combat deaths in Iraq that could have been prevented with timely shipment of MRAPs, another supporter wrote:
To help you decide this issue, ask the opinion of parents whose sons' and daughters' lives were saved by the MRAPs......and then ask the opinions of parents whose sons and daughters died in vehicles lacking the MRAP protection that Franz Gayl selflessly called for. Mr. Gayl deserves to be judged by that jury.
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Today, GAP is applauding the Merit Systems Protection Board (MSPB) decision to grant a stay request from the U.S. Office of Special Counsel (OSC) that prevents the Marine Corps from indefinitely suspending without pay "MRAP" whistleblower and GAP client Franz Gayl. The OSC sought, and was granted, a 45-day stay on the Marine Corps' proposed suspension of Gayl, which was slated to begin today. The stay gives the OSC time to investigate the proposed suspension and decide whether to take further steps in the matter.
The MSPB announcement of the stay request can be found here.
Even though the MSPB has stayed this action for now, the public need to let Secretary of Defense Leon Panetta know that this kind of treatment against a whistleblower will not be tolerated. GAP and POGO each started petitions to send this important message. Today is the last day to sign!
“GAP applauds the MSPB for granting OSC’s stay request and preventing the Marine Corps from forcing Mr. Gayl out of the agency by cutting off his pay before OSC has the chance to investigate the Marine Corps’ retaliation,” said GAP attorney Jonathan Cantú in response to the ruling. “As the OSC stated in their stay request, ‘it is difficult to imagine a case that would be more appropriate for an initial stay order than this one [where] a public whistleblower … has put his career at risk out of concern for the safety of service members in combat.’ The actions of OSC and MSPB should also be a signal to the Marine Corps to give up their wrong-headed campaign of retaliation against a dedicated employee who simply wanted to protect his fellow Marines.”