13. Federal Legal Corner: Eligibility for Whistleblower
Protection

The U.S. Court of Appeals for the Federal Circuit recently issued a
decision that recognizes appeal rights under section 2302(a)(2)(c)
(ii) of the Whistleblower Protection Act (WPA) for employees
working in agencies that have not been expressly determined by
the President to be an executive agency or unit whose principal
function is the conduct of foreign intelligence or
counterintelligence activities. In Czarkowski v. Merit Systems
Protection Board, No. 03-3300 (Fed. Cir. Nov. 8, 2004), the
court found that President, or his lawful designee, had not
made an actual determination expressly naming the Navy�s Office
of Special Projects (OSP) as an exempt agency under � 2302(a)(2)
(C)(ii).

The employee, Carol Czarkowski, was employed under a Schedule A
appointment in the excepted service. Her position included dealing
with classified contracts for large dollar amounts and was
subject to a periodic security background investigation. After
Ms. Czarkowski made disclosures protected by the WPA, the agency
removed her supervisory responsibilities and placed her on a
performance improvement plan. After filing an initial complaint
with the Office of Special Counsel, Ms. Czarkowski filed an
individual right of action (IRA) against the agency with the
MSPB, alleging retaliation.

The agency moved to dismiss this case, arguing that the Board
did not have jurisdiction over the complaint because OSP was
exempt from Board jurisdiction under 5 U.S.C. � 2302(a)(2)(C)(ii).
This statute denies the Board jurisdiction over IRA appeals
involving certain agencies, such as the Federal Bureau of
Investigation, the National Imagery and Mapping Agency, and
the National Security Agency. The MSPB upheld the dismissal
of her case on jurisdictional grounds, noting that Ms.
Czarkowski had failed to present evidence contradicting the
OSP�s intelligence function.


The court of appeals in reversing the Board explained that
although many agencies have the authority to, and do actively
conduct foreign intelligence activities, the statute
specifically assigned the President the task of identifying
which agencies meet the �principal function� test. Contrary
to the Board�s position, the statute does not give the Board
the authority to determine which agencies meet this test.
Even in the presence of documents that suggest to the Board
that the President could have or should have made the
determination that an agency meets the principal function test,
the burden is on the agency to establish that the President,
or his delegate, has explicitly exempted an agency or a unit
thereof.

The court noted that by establishing the Intelligence Community
Whistleblower Protection Act (�ICWPA�) of 1998, Congress
expressly provided all intelligence employees an alternate
scheme for disclosing information without fear of reprisal. The
legislative history of the ICWPA also supported the clear inteny
of Congress to require an express Presidential determination.
Further, the court of appeals noted that for policy reasons it
is important that employees are able to determine whether they
are covered by the WPA or the ICWPA, in order to decide how to
disclose information without fear of retaliation.

For employees of those agencies, like the OSP, whose function
includes, or is authorized to include an element of intelligence
activity, this decision will be extremely helpful in obtaining
WPA protection and establishing the jurisdiction of the MSPB over
their whistleblowing complaints. As a result of this decision,
an agency seeking to dismiss a WPA case on this basis will be
required to prove that the President, or his delegate, expressly
and explicitly determined that the principal function of the
agency is foreign intelligence or counterintelligence activity.
This information is provided by the attorneys at Passman & Kaplan,
P.C., a law firm dedicated to the representation of
federal employees worldwide. For more information on Passman &
Kaplan, P.C., go to http://www.passmanandkaplan.com.


Publisher�s Note: Passman & Kaplan have produced a brand new
guide, The Federal Employees Legal Survival Guide, a must have
for all federal personnel managers.

Go to http://www.fedweek.com/pub for more information and
how to order.

How do you tell the difference? Gerald Eastman discusses the answer to this question and more in his recent blog post:


From Gerald Eastman’s “The Last Inspector” blog.

http://eastmans.web.aplus.net/pblog/index.php

http://www.thelastinspector.com/index.html


My blog today has a lot to do with part of my July 29th, 2007 blog, "What is Wrong With the Legal System?" which can be found at the following link:

http://eastmans.web.aplus.net/pblog/ind ... 729-222028

It has to do with the portion of the blog dealing with lawyers I had had to deal with over the course of my quest to end the Boeing fraud documented on my web site, specifically (with the important points bolded):

"You would hope somewhere in this system there was somebody that followed the rules and did their jobs...A prosecutor's office. A company's legal department. A private legal firm. An attorney.

It seems finding people of integrity in the legal system is as slapdash as it was to find such people in my department when I was an inspector at Boeing. I was almost alone in being the one with enough integrity to do my job while being pressured not to do it by people without integrity.

Take the Boeing Legal department, for instance, which I tried to report fraud to on two occasions and who are assisting in my persecution now. They have many attorneys in house who presumably had to pass the bar and have to stay members of the bar to continue their profession.

Why weren't any of them kicked out of the bar association when they advised Boeing that the State Department had no authority to keep them from exporting militarily sensitive devices on aircraft to proscribed countries without an export license? It would seem like an open and shut case. The State Department prevailed over the Boeing legal department's wrong legal opinion that may have placed our country in danger. Boeing had to pay a $15 million dollar fine. But why weren't the attorneys who made that obviously incorrect decision fired or disbarred to keep them from making such huge "errors" in the future? Your guess may be as good as mine. There seems to be a lack of accountability in the profession. Or did Boeing's attorneys give the errant legal opinion and let the militarily sensitive technology on the airplanes deliver just because Boeing needed to deliver the airplanes to meet revenue and profit targets? That might explain both the highly questionable opinion by Boeing's attorneys and why Boeing deferred complying with State Department requests for Boeing to apply for export licenses before delivering such airplanes on multiple occasions. It also explains why such attorneys were not fired or debarred for incompetence. They were just doing their jobs. But that would have made them even better candidates for disbarment, you would think.

But since when did attorneys stop advising companies how to avoid legal problems by ensuring they complied with laws, and stop advising companies how to minimize the damage from any accidental breaking of the law, and start advising their companies how to break the law with impunity?

I saw that in the same Boeing legal department. They refused to end the fraud in quality assurance I reported to their chief counsel on two occasions, and instead seemed to pull out all the stops in ensuring that fraud was not ended, as a naive person like me (at the time) might have expected. Hell, the Chief Counsel of Boeing showed up at the doorstep of my work not to help end the fraud, but instead to decide how to dispose of me, who they viewed as the real problem. You would think any attorney involved in this covering up of this fraud and the resulting retaliation against me would be a prime candidate for disbarment. But I have no knowledge of any of them being disbarred. To this day they labor to cover up the same fraud I reported to them over five years ago...Indeed, my prosecution is just one part of their plan to cover up the noted fraud.

But if private legal departments operate thusly, what about our prosecutors? Wouldn't those attorneys who work on our dime spot such fraud and the related efforts to cover it up by placing false reports to the police to get people trying to end it arrested and the information they were gathering for the relevant authorities confiscated? Nope. They apparently do what the Boeing legal department wants them to do, not what is in the interests of the public or public safety. They decide to participate in the cover up by attacking the messenger of the fraud. Of course, maybe it is not incompetence or corruption that caused our public attorneys to act against their professional ethics. Maybe Boeing's chief outside law firm contributing to the campaign of the prosecutor who faces his first election for King County Prosecutor in a few months played a part. I don't know if Boeing is helping his election directly yet, but they have certainly proven themselves arrogant enough to do so. Shouldn't these types of activities cause these prosecutors to get disbarred as well? It would seem so. I don't see the bar association condoning this type of behavior.

...I am just one insignificant "victim" of unethical public and private attorneys working together that should probably be disbarred for incompetence and/or corruption. There will be others, unless someone, like I did in my job as an inspector at Boeing, stands up and actually does their job with the required ethics."

End of blog excerpt.

What I wanted to relay today was some insight I have gotten into the answer for this conundrum: Attorneys protecting illegalities rather than representing their clients in order to prevent illegalities from occurring or to defend their clients after they have (wittingly or not) engaged in illegal activity. While researching this subject, I have found a startling answer by consulting definitive sources of legal information on the subject:

As it turns out, the behavior of attorneys I mentioned in the above examples that help their clients continue to engage in fraud in any way (covering it up, etc.) are not just doing their jobs as attorneys. Such attorneys are in fact considered accomplices in the fraud or crime they help ensure continues, rather than ensure it ends. Those among you who are legally savvy are probably saying "duh" right now, but this was news to me.

What does this mean? (Yeah, get ready for another "duh" moment.) Of course, it means that attorneys cannot legally act in the way I have witnessed them act. There is nothing that lets them do their jobs in that way. Such attorneys that cover up ongoing fraud or enable its continuance don't just need to be disbarred--they are as complicit themselves with those that commit the fraud they are protecting. They are criminals, not attorneys. Due to the lowly state of public opinion of attorneys you may not sense the significance of this. Some people think all lawyers are bad and even criminally so because they have been so demonized as a group. However, what I found out shows (in this one area of law) who the real attorneys who are criminals are, and why they are criminal accomplices rather than just counsel to criminals.

So, attorneys who protect such fraud should be disbarred and tried with those whose fraud they were protecting. The fact that this kind of behavior by attorneys seems so common (in the limited circle of public and private attorneys I have had to deal with) is even more disconcerting with the knowledge it is not only ABA rules they are breaking, but that they are breaking the law as well.

It is indeed a sad era in America when both public and private attorneys protect fraud that places so many lives at extra levels of risk of an unknown and random severity.

From Mother Jones

An Uncertain Fate for the Whistleblowers Who Took on State Department's Inspector General

The Blackwater investigation has fueled controversy about military contractors' abuses in Iraq. But it has also raised questions about where government whistleblowers can turn for protection.

Brian Beutler, The Media Consortium
October 05 , 2007

The House Oversight and Government Reform Committee room teemed on Tuesday with one of Congress' busiest oversight hearings since the Democrats took power in January. Dozens of cameramen huddled in an erratic arc around the witness table. Print media writers crammed into the crowded audience. And the vast majority of guests were forced to watch the proceedings on a television feed in a different room altogether. We'd all come to watch Chairman Henry Waxman's promised whipping of the government's largest private military contractor, Blackwater USA, and its CEO, the wealthy former Navy SEAL Erik Prince. His company has been implicated in, among other things, shooting a security guard of the vice president of Iraq, instigating the bloody battle of Falluja, and, most recently, a September 16 shoot-out in Baghdad that resulted in the deaths of 17 Iraqis. But beyond illuminating Blackwater's conduct in Iraq, Waxman's investigation also raises questions about the rights of federal whistleblowers and about Congress' ability to protect them.

Most of the work Blackwater does in Iraq is contracted by the State Department, and typically, any inquiry into these events would fall to the department's inspector general, Howard Krongard.

But Waxman's committee has been investigating that very office, as well. Recently, seven people working for Krongard alleged that Krongard himself had, in Waxman's words, "interfered with on-going investigations to protect the State Department and the White House from political embarrassment." Two of those whistleblowers former Assistant Inspector General for Investigations John DeDona and his erstwhile deputy Ralph McNamararesigned specifically because of Krongard's meddling.

How did Krongard respond? Allegedly by threatening to terminate anybody else who dared speak with congressional investigators. Two of his employees special agents Ron Militana and Brian Rubendall have agreed to speak out anyway.

According to Militana, Krongard's congressional liaison informed the duo that "the majority [Democrats] are not friends. The minority staff has been helpful…. You have no protection against reprisal. You have no whistleblower protections. Howard could retaliate and you would have no recourse."

"Howard can fire you. It would affect your ability to get another job," the congressional liaison allegedly threatened.

Waxman, of course, was outraged by the threats and, in a September 28 letter to Krongard, he issued a warning of his own.

"I am appalled by these reports," Waxman wrote. "As an Inspector General, you hold a position of special trust within the federal government. Your office is supposed to be an example of how to protect whistleblowers, not an example of how to persecute them…. You should be aware and you should advise your staff that Congress has passed civil and criminal prohibitions against threatening and tampering with witnesses, retaliating against whistleblowers, and providing false information to Congress."

But there's a catch. The prohibitions Waxman cites are enshrined in the so-called Whistleblower Protection Enhancement Act of 2007a comprehensive bill prohibiting retaliation against government whistleblowers that he sponsored, and which the House has indeed passed. But thanks to Senator Tom Coburn (R-Okla.) it is currently on hold in the Senate, in a form that President Bush has threatened to veto anyhow.

In 1989, former President George H.W. Bush signed into law a federal whistleblower protection act of his own, but many of the provisions therein have since been nullified by a series of court orders, most recently the Supreme Court's decision in the case of Garcetti v. Ceballos, which stripped all government employees of their First Amendment rights whenever they're speaking in an official capacity. Waxman's bill aims to reanimate some of those eroded rights.

Stephen Kohn, a District of Columbia attorney and a national expert in whistleblower law, says all is not lost for Militana and Rubendall if they take the right steps meaning, if they're aggressive enough to do an end-run around the executive branch.

The U.S. Office of Special Counsel should be the place where government employees go for protection when dropping the dime on their superiors' corruption. But the office is now headed by a Bush appointee named Scott Bloch, who has a well-reported record of anti-whistleblower activities. "It's a losing proposition," says Kohn.

That leaves whistleblowers in the hands of the courts. "If they have testified to Congress [to a member or a committee or its staff] they are covered under the oldest whistleblower law on the books," Kohn explains. "Their recourse would be to go into U.S. District Court to get an injunction against any sort of adverse action."

There's no record comparing how responsive the District Court has been in protecting whistleblowers to the more direct route they would have under a better functioning Office of Special Counsel. Kohn says when his firm has turned to the courts, "generally things get ironed out." But that raises the bar on whistleblowing only those with the fortitude (and financial resources) to do battle will step forward.

"The people who are being harassed for that have to assert their right aggressively," Kohn sums up, "or they'll be stepped on."

Brian Beutler is the Washington correspondent for the Media Consortium, a network of progressive media organizations, including Mother Jones.

The Carol Czarkowski Story

Carol Czarkowski was working as a Contracting Officer at the Department of the Navy, when she found evidence of wrongdoing. She requested an investigation from both Senator Robb’s and Senator Warner’s office, both Senators from Virginia. She was a bit surprised that even though Senator Warner had the background of having been the Secretary of the Navy in the mid-1970’s, only Senator Robb ordered a GAO investigation. The Executive Director of the program to which she was assigned as Contracting Officer had informed her, that the Senator had removed $6 million from the program as a result of the disclosure she had recently made to him.

In June, of 1999, two GAO Investigators visited Ms. Czarkowski and talked with her about her allegations. Subsequently, they asked the DOD IG office to investigate the allegations of wrongdoing that she had reported.


The DOD (Department of Defense) assigned a former Navy IG person to investigate. Unfortunately, she reports that investigator did nothing more than call one of the GS-15’s (an upper level manager) in the organization where Ms. Czarkowski was working and “asked him if an investigation was needed.” (Another case of asking the fox if the henhouse is secured?) The GS-15 manager told the DOD IG that no investigation was needed, and the investigator stopped there.

Instead of ethically pursuing the investigation and completing the work, the DOD IG went to Ms. Czarkowski’s office on a day when she was out on sick leave and then helped a security officer pack up her belongings into a box and moved her out of the Program Office where she had been working. When she returned from her sick leave, she was met at the lobby of the Program Office, by the security officer. S/he told Ms. Czarkowski that “anyone who requests a GAO investigation is no longer welcome in the Program Office.” As a result of this, all of her Contracting Officer duties were removed and she was moved to a warehouse in Arlington, Virginia, with no duties assigned and where she was totally away from all other contracting personnel. In other words, exiled.


She states that as far as she knows, no investigation was ever done, and after more than three years of fighting the Navy for the actions taken against her, the Navy Executive Director removed her from government service with only one day of severance pay.

Ms. Czarkowski explained that she had over 29 years of government service history, with outstanding government ratings and was 54 years of age at the time of this cavalier treatment from her supervisors at the Navy.

Just two months prior to her removal, the MSPB had determined that she was a whistleblower, and deserved to be given those protections. (Such as they are!) The Navy, however, just six days prior to her removal, declared that the organization (the Navy) was exempt from the MSPB for security reasons.

Nearly four years later, the Federal Circuit Court found for her and reversed and remanded her case back to the MSPB for settlement. The settlement was finalized between Ms. Czarkowski and the Navy in September of 2005. And she further reports that the Executive Director of the Navy who in her opinion is responsible for and committed the illegal acts against her, has not lost a day of work and has not been fined or suffered any other type of reprimand that she knows of to this day for his actions. In fact, it appears that he has now been promoted to the Under Secretary of the Navy’s office.


Ms. Czarkowski asks “When we have the type of management in the Navy as the person who removed me when as a Contracting Officer, I reported wrongdoing on a Navy contract, how can we expect procurement officers in Iraq to report fraud, waste, and abuse of government funds?”


She regretfully adds that she is not the only employee to have suffered this sort of treatment. And she reports that due to the actions of the Navy management, other employees in the Navy organization where she used to work, prior to her removal, are totally afraid of taking any stand against the management when they discover wrongdoing, because of what they saw was done to Ms. Czarkowski. It has badly damaged morale for employees to see that GS-15, upper level managers were apparently allowed to break the laws with impunity,and ethical employees like Ms. Czarkowski, who tried to do the right thing, suffered severe retribution, and watched his/her career disintegrate.


Ms Czarkowski’s commitment and tenacity are to be commended and respected. Few people are able to navigate through this system and win. Pogo stated that she might be the only federal employee who won their case in the Federal Circuit Court between 1995 and 2005. Like other courageous whistleblowers, she states that she was just doing what a good Contracting Officer would do in looking out for the taxpayer’s dollars. She notes that some employees, who are perhaps more concerned or fearful about their career, would not choose to do what she did.

And therein lies one of the great tragedies of our time. Often it seems those who serve our country and stand up to wrongdoing and criminal behavior when they find it, don’t get to continue to do their duty and those who don’t stand up, are intimidated by the wrongdoers, or are a part of the corruption, seem to finish careers to retirement, get promotions, and avoid the pain, all at the expense of American tax payers and our country.

----------------------------------------------------------------------

The following is another article that was written about Ms. Czarkowski’s situation sent to me by a contact in the Washington DC area. I do not have the source of this, but will post it as it was sent.

Left Behind: Intelligence Agencies

Employees working at intelligence agencies have been excluded from
protections under the Whistleblower Protection Act, including "the
Central Intelligence Agency, Defense Intelligence Agency, National
Security Agency, and certain other intelligence agencies excluded by thePresident."

The case of Navy whistleblower Carol Czarkowski illustrates how
Intelligence agency exclusions can be abused. After Czarkowski filed her Whistleblower Protection Act complaint and the Navy failed to get her case dismissed, it retroactively declared her ineligible for protection under the law because her office was designated an "intelligence agency."

Members of the Senate have observed that the ability to invoke the intelligence agency exemption ex post facto is problematic, noting that the Navy sought the exemption "over a year into whistleblower litigation" and only "after the [Merit Systems Protection] Board rejected an earlier effort to avoid litigation on a different basis."

Czarkowski appealed the attempt to retroactively exempt her
from whistleblower protections under the intelligence agency exemption.
She won that appeal in the Federal Circuit Court in 2004. Five years
after being fired and filing her initial complaint with the Office of
Special Counsel, Czarkowksi is only now headed toward legal proceedings
that will deal with the merits of her case.

Through the Intelligence Community Whistleblower Protection Act of 1998, Congress asserted that it had the right to receive classified
information from whistleblowers working for intelligence agencies in the case of "serious or flagrant" problems. However, Congress failed to provide a legal remedy for the whistleblower. This Act, allows an
Inspector General to investigate whistleblower retaliation. This option was already available prior to the Act and, as a result, the protections are an empty promise at best. According to one official, in the past ten years, only a dozen whistleblowers at the Pentagon ever invoked protection under the Intelligence Community Whistleblower Protection Act.

From Laptop Security blog
http://blog.absolute.com/boeing-employee-fired-for-alleging-security-problems/

Boeing Employee Fired for Alleging Security Problems
Related entries in Business Security

Boeing has fired an employee who spoke with the Seattle Post-Intellencer about alleged computer security problems at Boeing. The employee claimed that the company was misrepresenting the results of its data security audits in the filings to the Securities and Exchange Commission.

The Seattle Post-Intelligencer published a story in July stating that Boeing was not protecting data from theft, manipulation or fraud. The employee claims he was trying to save the company in so doing. He claims that he had earlier tried to raise his concerns with the company and with the Securities and Exchange Commission, but they were not addressed and he was treated badly as a result.

Boeing is required, by the Sarbanes-Oxley Act - to prove they have internal control of their data to prevent it from being manipulated and misrepresented to stockholders. The Seattle P-I obtained documents outlining the challenges Boeing faced in compliance, and the failure of IT to control the data environment. Examples cited were: access to data by employees who should not have access, manipulated security audits, and threats to employees to produce evidence for the audits.

Boeing has faced many data threats this year, including the theft of sensitive company information that could have cost the company billions, and three separate cases of laptop theft and data loss.
Boeing is now investigating, and has fired, the employee who disclosed the information to the Seattle Post-Intelligencer. There has been no confirmation that the information provided by the employee was accurate.

You can read the original Boeing story here.