Chapter 14: Administrative Appeals

‘Tis the majority
In this, as all, prevails.
Assent, and you are sane;
Demur, - you’re straightway dangerous,
And handled with a chain.
Emily Dickinson

By establishing an administrative appeal procedure, the federal employee’s right to seek the protection of the federal courts is thwarted. The idea is quickly apparent; federal employees have fewer constitutional rights than other classes of employees, even though this conflicts with the Constitution which makes no such distinctions. If you contact an attorney (I contacted several, in two states) you will be told that your case will not be heard by the courts until after you exhaust “all administrative remedies,” so you are stuck with several years of work on fruitless appeals, along with sizable personal expenses for postage, telephone and copying machines, before you can go to court.
During this period of time wasted with federal agencies that in no way want to help you, but instead try to defeat you at every turn, the various statutes of limitations are running out. In some cases you might have had good support for a lawsuit on grounds of fraud, libel or slander, or based on the fact that your agency fits the description in the law of a RICO (Racketeer Influenced Corrupt Organization) group, still time is working against you and your facts are getting old. The kissy-kissy people in the federal appeals agencies know that, and are playing a cat and mouse game.
The lawyers will also tell you that this is simply an “administrative law” matter, or an “employment law” matter, and the Constitution doesn’t apply. Again there is nothing in the Constitution that says basic human rights are simply an administrative matter, or fall into a lesser category of “employment law,” but don’t tell the lawyers or the courts that - they’ll ignore your plea.
The effect of this is to downgrade the Constitution. Congress has diminished the Constitution by downgrading free speech for federal employees as a simple administrative or employment matter, not deserving of protection by the courts. Our lawyers and courts, including the U.S. Supreme Court, go along with this basic denial of human rights. We will never have an honest federal government while this nonsense is tolerated by the people.
You might think that our federal politicians simply made a mistake, and have overlooked that their laws have downgraded the civil rights of federal employees. It’s no mistake, and they’ve heard about it from me, from other whistleblowers and from the public interest groups. It is not in their best (financial) interest for federal employees to have free speech, and the politicians like it that way. A high percentage of our politicians are lawyers, and they knew exactly what they were doing, defeating free speech with high sounding words that at first glance look good but protect them from honest words. The courts go along with the game, and uphold the law, The judges get their jobs by political appointment, and prosper in this environment.
Earlier in this book there was a summary of the law for whistleblowers. The federal agency (somewhat like an administrative law court) that hears appeals is the Merit Systems Protection Board, or MSPB. The independent branch within MSPB that represents whistleblowers is the Office of Special Counsel, or OSC.
I had never heard of these organizations, and BIA provided no information about possible appeals through them. Finally, while researching federal employment laws at the library, I discovered that they existed. I was filled with hope because of their stated purpose to seek justice for whistleblowers.
I spent over two years dealing with OSC. They transferred my files and documents from one office to another. My first contact was with the Denver office, and they transferred me to Washington. In June, 1987 I was told that they would reach a conclusion within three weeks. Late in July they reported two more weeks were needed. In late August the case was transferred to Dallas, and in December, 1987, back to Washington and then on to San Francisco, like a hot potato.
By late January, 1988 I was told my case was next in line for review. Nothing happened except it was transferred to Washington once again in March, 1988.
Always there were promises that in another few weeks, or in ten days, or in two weeks they would accomplish another step. All they did was waste my time and effort, and increase my expenses for phone calls, photo copies and postage. The promises they made were more than empty, they were deceptive because they gave false hope, and turncoat because they used my evidence against me.
After my fruitless experience, I learned more about OSC. Other organizations had made studies of OSC, and I got copies of their reports. The first organization, the General Accountability Project (GAP) sent me a packet of information with facts about OSC that all taxpayers should know:
The May, 1987 issue of Multinational Monitor reports: In discussing the 1986 space shuttle Challenger disaster, it said that the real lesson of the disaster was the importance and plight of the whistleblower.
“Employees do not have the freedom to dissent or to blow the whistle ...” The MSPB “has ruled in favor of the whistleblower ... only four times in eight years.”
“When Reagan came to power he quickly gutted the Office of Special Counsel. Within fourteen months “nearly half of the office staff and 70 percent of attorneys and investigators were fired or had resigned.”
An article in the August, 1986, Psychology Today magazine by Donald R. Soeken states that some whistleblowers “become so shattered ... that they need extensive and intensive therapy.”
In the same issue, an article by Myron Glazer and Penina Glazer states that the whistleblower motive seems to be “a strong belief in individual responsibility. A corrupt system can happen only if the individuals who make up that system are corrupt. You are either going to be part of the corruption or part of the forces working against it. There isn’t a third choice.”
The article continues with “the federal administrative review resolves very few cases in their favor, [and] ... the only thing necessary for evil to prevail is for good men to do nothing ... virtually all of the ethical resisters we studied had long histories of successful employment [prior to becoming whistleblowers].”
An article in the July 30, 1984 American Banker reports: “job evaluations suddenly will turn sour ... they will be fired for substandard performance or insubordination.” An attorney who represents whistleblowers states “I know of no case in which a whistleblower did not face reprisal. The rate is 100%.”
Thomas Devine, Legal Director of GAP says that “Since its creation, the OSC has turned down 99 percent of whistleblower cases ...” He reports that an OSC officer “taught a course for federal managers on how to fire employees without OSC interference.”
That makes several sources that have nothing good to say about MSPB and OSC. There is also some worthy information in a recent study made by the Antioch Law School. The law school describes MSPB and OSC as “turncoat” organizations that investigate the person who complains rather than the complaint, and help the federal agencies create a defense against the whistleblower.
In my opinion the employees of MSPB and OSC knowingly violate their oath of office to support the Constitution. They work to defeat the laws of the United States, and are enemies of truth and justice. Many of them are attorneys, who violate the ethical rules of the American Bar Association. They do this with immunity from prosecution, protected by the federal doctrine of sovereign immunity. They work to defeat justice.
The only possible motive that I can see is good pay and job security in return for doing harm to their fellows. They obey the requirements of a federal government that stifles the free speech of honest employees. Within OSC you see a similar pattern to that used by BIA. They get rid of people who are willing to speak honest words, and their processes wear you down until you give up in frustration. This is what our politicians demand, and the alphabet soup agencies are loyal to the politicians.