| Civil service matters, especially pay and
retirement money disputes (similar to tax
matters) comprise between a third and 60%
of the Federal Circuit's docket each year,
but very few published decisions. These judges
are known for their patent expertise, and
also respected for their tax and foreign
trade decisions involving corporate litigants.
The private employment lawyers who practice
before the Federal Circuit usually put forth
their best efforts in fee disputes. Unlike other
U.S. Courts of Appeal, the Federal Circuit
hears no criminal cases, which might account
for its traditional coolness toward whistleblowers.
Only 3 of the current Circuit Judges (and
1 Senior Judge) have ever prosecuted criminals
(other than in tax cases). Thus, most are
unfamiliar with criminal investigations and
prosecutions, which often start from tips
or other whistleblowing. Plus, none was ever
a federal District Judge (even though this
court reviews District Judges' handling of
patent and some contract cases). Thus, they
all also lack hands-on experience with civil
fraud cases, federal employee negligence
cases and cases involving retaliation against
criminal and EEO witnesses. The Federal Circuit
is also the only federal appellate court
without a pro bono program, which requires
private attorneys privileged to practice
before it to accept some free cases. Other
courts find this assists judges by making
poor peoples' claims clearer and thus allow
fairer treatment. This court disagrees by
nonaction. Georgetown
Law School and Emory
University Law School make Federal Circuit opinions available
online. |
|
OSC receives claims from whistleblowers that
they have suffered reprisals. As its website
explains, it can also receive allegations
of fraud, waste or abuse within the federal
government, but must refer them back to the
affected agency for investigation. Employees
of the FBI, CIA, DIA, NSA, GAO and any agency
excluded by the President remain outside
OSC jurisdiction; employees of government
corporations (such as the Postal Service)
are covered only to a limited extent. In
theory, a covered employee or former employee
of a covered agency can file a complaint
with OSC at any time: whistleblower protection
laws include no statute of limitations. However,
quick reporting may be in the employee's
interest (despite fears of retaliation escalation)--both
because memories fade and loyalties shift,
and because the OSC chooses to investigate
very few cases. Plus, some OSC employees
reject cases under incorrect or overruled
standards, in part because the small office
lacks resources to handle every case.
OSC presents cases it develops against retaliating
managers to the MSPB--at most a handful each
year out of hundreds of complaints. Sometimes,
OSC negotiates with the agency to help a
whistleblower. Usually, however, OSC advises
the employee several months later that he
or she can file an independent right of action
(IRA) with the MSPB. Since 1994, employees
may also independently request that the MSPB
stop temporarily (stay) a proposed personnel
action, such as a transfer or termination.
The MSPB AJ's, evaluated on their speediness,
may give improper weight to the OSC's issuance
of an IRA letter and dismiss cases quickly
on the same grounds.
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The MSPB, a "quasi-judicial" agency,
oversees the civil service disciplinary system.
MSPB jurisdiction includes disciplinary performance
actions taken by agencies, whistleblower
IRAs, and retaliation cases brought by the
OSC. FYI, the MSPB determines whether to
assess demotions or terminations after evaluating
the factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), a non-whistleblower
case. In 2000, the MSPB admitted it found
prohibited personnel practices in only a
couple of the more than 400 cases brought
for its adjudication.
In its first decade, the MSPB did very little
to protect whistleblowers, whose cases it
claimed constituted only 8% of its annual
workload. After a 1992 GAO survey showed
rampant fear of retaliation among federal
employees, the MSPB conducted its own confirming
survey. Testimony during the 1994 reauthorization
process, such as these legislative history excerpts, told the agency and Federal Circuit to
treat whistleblowers more leniently. However,
some MSPB AJs and OSC attorneys still apply
case law overridden by the 1994 Amendments,
perhaps in part because both agencies evaluate
their own employees and managers based on
the number of cases closed. The old jurisdictional
grounds seem most efficient for dismissals.
Few whistleblowers know neither the MSPB's
secret quirks, nor the favorable legislative
history. |