Tuesday, August 15, 2017

Don't Whistleblow! (or why I left my job at FDA)

For those who are wondering why I left my job at FDA, it was due to persistent harassment and whistleblower retaliation by FDA management (Asim Akbari, Michael Gandolph, Kristine Leiphart, Walter Harris, Stephanie Collins, Christine Galvin, Valeria Ramirez, and Yvette Simpson).  The case has settled now to the "mutual agreement" of all parties.  I specifically retained my right (in the settlement) to discuss all of the events that led up to the settlement.   This is the complaint that I filed in the Merit Systems Protection Board describing my whistleblowing and the subsequent actions of FDA.  I will upload some of the attachments later, but I will need to review them first to ensure that I can legally share them.  


Lessons Learned: 
1) DO NOT WHISTLEBLOW.  If you work for the federal executive and you intend to keep working there, never report anything, no matter what.  No one will care; no will listen; you will be harassed openly and with impunity by all levels of management; your reputation will be tarnished; and you will most likely never get another award or promotion for the rest of your federal career.  It is also very likely that the Agency will manufacture a reason to fire you (the majority of retaliation cases are based on the Agency firing the whistleblower, usually for dubious/subjective reasons, such as "inappropriate conduct.")

In one case, where the employee was attempting to resolve a pay-issue (something that was the government's error and was costing the employee money in his paycheck), his Agency fired him claiming that he was "absent without excuse" when he was dealing with the issue (which he had told his supervisors he would be doing).  

In another case, the whistleblower, on finding problems during an inspection, made the statement: "this is what command gets for not listening to me." The Agency then used this one statement as an excuse to discipline and eventually remove the employee claiming the following violations:  (1) making false statements; (2) making statements with the intent to disparage the command; and (3) conduct unbecoming a federal employee. If the Agency's response seems extreme, it was, the Agency just wanted to get rid of the guy for whistleblowing and were willing to use any excuse (manufactured, embellished, or otherwise) to do so, including throwing the book at a guy or making one statement under his breath (the MSPB judge made that factual finding).  

Where Agencies have the power to discipline and fire employees based on any conduct (subjective or otherwise), employees are correct to be fearful that any perceived disloyalty to the agency (which whistleblowing usually involves, because an employee usually would not be whistleblowing unless they had already alerted and been ignored by management regarding the alleged violation) will result in retaliation and permanent harm to their careers.  

2) The Office of Special Counsel will not help you and will bend over backwards to support management against you.  If you think I am exaggerating then ask yourself why OSC gets more than 5500 cases a year alleging whistleblower retaliation and congratulates itself for disciplining 15 employees a year in connection with those cases. To trust those numbers, means that 99% of complaints are invalid.  Do you really think that 99% of government employees who file complaints are lying?  https://osc.gov/Resources/CBJ-FY2018-Final.pdf.  

In my particular case, OSC ignored the majority of my evidence and ultimately issued me a letter stating that no actionable retaliation had occurred.  In this letter, OSC misstated the law several times (despite my providing them with case citations that correctly stated the law), misconstrued facts, and made some absurd speculations as well (such as stating that Asim Akbari, the second-in-command of HHS OGC Ethics, the office about which I whistleblew for over a year prior to Akbari being hired by FDA's Division of Ethics and Integrity, had no motivation to retaliate against me). Because I am an attorney and I knew that OSC was wrong, I continued to pursue my case ultimately resolving it by settlement.  However, most federal employees would give up when OSC tells them they don't have a case. Ironically, OSC, the agency meant to protect whistleblowers, emboldens rather than deters retaliation by agency management.  

One reason why OSC functions like this is the language of the Whistleblower Statute which requires that OSC prosecute any case in which whistleblower retaliation occurs.  Because OSC does not have the discretion to turn down a case where they do find retaliation occurred (even if the retaliation was minor), OSC is motivated instead to use their resources and staff to find excuses (legally/factually sound or not) to dismiss complaints as not having merit (to the detriment of the thousands of federal employees trying to do the right thing and thinking that OSC will protect them against retaliation).  

After OSC refuses to prosecute a case (by claiming that no actionable retaliation occured), the individual has the right to bring the case directly in front of the MSPB.  It is hard to know just how many meritorious cases where OSC finds "no violation" there are, because good cases, like mine, settle (my case was fully settled, to my satisfaction, within 2 months of filing my complaint with the MSPB). The cases that do end up being fully litigated in front of the MSPB are generally weaker (which is why the agency doesn't settle them)  That said, when a case does end up in front of the MSPB and the MSPB judge determines that whistleblower retaliation did occur, the judge is required to forward the case back to OSC so that OSC can do its own investigation and discipline any agency employees who engaged in retaliation.  Consider the irony here.  Those cases that the MSPB refers back to OSC are cases that OSC already had the chance to review (because whistleblowers are required to file initially with OSC) and OSC already determined that the case had "no merit" and didn't warrant any investigation.   Yet, a court found that not only did the case have merit, but the whistleblower retaliation statute was violated. And these are just the weak cases because good cases never even make it into the courtroom, so we'll never know just how many "meritorious" cases, OSC has thrown out, to the detriment of whistleblowers and the benefit of agency management engaging in retaliation.  

Given the absurdity of OSC's response to my case, I was curious about OSC's initial response to those cases that eventually get referred back to them by the MSPB.  So I put in a FOIA request for a list of MSPB cases, which they sent me.  On May 18, 2017, I sent the list to OSC and asked for the preliminary and final determinations letters for those cases (in order to see how much law they misstated in making their determination to not prosecute the case that eventually was successful in front of the MSPB).  Unfortunately but not surprisingly, OSC does not comply with FOIA so I'm still waiting on the response months later.    

3) The statutory whistleblower protections are not effective in deterring retaliation.  There's a few reasons for this:  

First, litigation is expensive, time-consuming, and very stressful.  Rightfully, most employees prefer to avoid spending years in court (usually after being unfairly fired).  This goes back to my advice to never whistleblow.  No matter how much you might recover at the end, it will take years, cause a huge amount of emotional distress, and you will never be made fully whole. Even if you "win" your case, your federal career will never recover (many whistleblowers end up in court multiple times because the retaliation continues even after they are "reinstated" or have the personnel action corrected).  

Second, because most whistleblowing will involve the unit the employee is working in (and usually wrongdoing by the employee's management), the employee is forced to continue working in an environment where he is perceived as "disloyal" or a "troublemaker" for speaking up and reporting things that management had already determined were not problematic (or violations of law that management is actively participating in).  During the interim period from the date of the whistleblowing/retaliation to the final outcome in a courtroom, the employee is treated like a pariah at the office, colleagues are afraid to interact with him, and any perceived infraction is investigated and pursued by the Agency in the hopes that they can fire the employee for it.  The employee is also subject to the whims of a pissed-off management, which has the power to change the employees working conditions, write up the employee for disciplinary issues, lower an employee's performance appraisal score, and manufacture other reasons to harass the employee.   

Third, management is never held accountable for retaliation. Therefore, even where an Agency eventually loses in court and is forced to reinstate an employee, promote the employee, or settles a case with an employee, the management officials themselves who engaged in the retaliation, get off scot free. It is perfectly rational for a management official to retaliate against any whistleblower because most of the time, the employee will give up, quit, or be fired (and thus out of management's hair), and in the minority of cases where the employee "wins," the management official who retaliated faces no consequences at all.  Openly harassing any whistleblower in your office creates an environment of fear and serves as a useful way for agency management to curb any inclination of other members of the staff to whistleblow as well. 

Solutions: 
Based on my experiences, if Congress were asking me how to strengthen whistleblower protections, I would suggest that they add a provision to the whistleblower statute that a whistleblower has the right to record anything that takes place in the federal office with one-party consent (meaning, only the whistleblower needs to know the recording device is on, and the whistleblower must be part of the conversation) and has the right to keep these recordings a secret. The reason for this is that once a person whistleblows, they have a target on their back and agency management will try to manufacture reasons to fire them, usually by claiming the employee was insubordinate, disrespectful, or disruptive (almost always it is something subjective that is difficult for a person to dispute without corroboration).  Because other employees fear retaliation, the employee being targeted is unable to defend himself; witnesses will only back up agency management's version of events. Allowing the employee to make recordings protects the employee from false allegations and, often, may be the only corroborative evidence the employee has to substantiate claims of retaliation.  

Federal law already allows for recordings with one-party consent, but Agency management has discretion to prohibit it (and an employee can be fired for not following management's directives).  The whistleblower statute should enable employees to protect themselves by specifically authorizing whistleblower employees to record with one-party consent, notwithstanding state laws or management directives.  The whistleblower statute should also state that any and all recording that an employee makes pursuant to the statute will be admissible in the MSPB (it already is admissible based on case law, but the statute should make it explicit).  There should not be privacy concerns here because (1) the employee is part of all these conversations, so there is no expectation of privacy where you are speaking/interacting with someone else; (2) all of these conversations/meetings will only be taking place on government time in the government workplace, where again, there is not an expectation of privacy.  The ability to record conversations preserves factual accuracy in describing past events/conversations, which often are the basis of agency management disciplining whistleblowers.    

In my own case, recording certain conversations was the only proof that I had that my supervisor (Michael Gandolph) was lying through his teeth.  Once Asim Akbari, the office Director, learned about my recordings, he formally told me as a management directive that I could no longer do so.  At that point, Akbari was able to (and proceeded to) invent reasons to discipline me based on "conduct" in the office and I was limited in my ability to defend myself as my colleagues were too afraid to speak up and Akbari controlled his management such that they supported anything he said. 

I will update this post with more attachments/information in the future.  

Thursday, February 9, 2017

USDA doesn't prosecute 99% of Animal Welfare Cases (or how to waste $25 million dollars and get promoted)

This post discusses USDA and APHIS' failure to prosecute Animal Welfare cases under the leadership of Bernadette Juarez at Investigative and Enforcement Services. As you will see below (based on case closure data released by APHIS), less than 1% of Animal Welfare cases are ever prosecuted.

When I worked at Animal Care, the Animal Care Inspectors (who were usually very dedicated to animal welfare) were very frustrated by IES.  It was disheartening to them to see the same violators get away with the same violations over and over again with impunity (due to IES' failure to process cases).  The one solace that they had (that helped them believe their jobs had value and actually helped protect animals) was that, until this year, AC Inspection Reports were publicly available through the website. So even though AWA violators would almost certainly never face any legal consequences, at least the AWA violations were public through the the Animal Care search tool (which was easy to use).  Many animal welfare groups would encourage consumers to look at the inspection reports in order to vet various regulated entities before giving them business (such as pet stores, zoos, breeders).  It was a "name and shame" method which had the effect of encouraging compliance with the AWA so as not to end up with a bad inspection report that anyone could see.

However, now USDA and APHIS has shut down the one effective method of encouraging compliance. Similar to removing Warnings (7060s) from the website, Juarez also now has disabled the AC Inspection Report Search Tool for the same dubious reasons.  USDA has now effectively ensured that animal abusers can continue to abuse animals with impunity and very likely nobody will ever find out about it.

Background
I spoke in my previous post about how a law is only as good as its enforcement.  I also mentioned Bernadette Juarez, who ran IES from around 2008 until 2016 (first as a Deputy Director, then as a Director).  This post is going to substantiate my claims that under Bernadette Juarez's tenure, IES was ineffective and botched cases so that Animal Welfare Act (AWA) and Horse Protection Act (HPA) violators could rest easy knowing that there was a 99% chance their case would never be prosecuted and they would face no real consequences.  As a result of Juarez's failures, she was promoted and  is now the Deputy Administrator of Animal Care where she has quickly gone on to further protect AWA and HPA violators.

Here is APHIS' website description of Bernadette : 

Bernadette Juarez, Deputy Administrator, Animal Care (AC) Program 
Ms. Juarez leads the program’s many employees in protecting and ensuring the welfare of millions of animals nationwide that are covered under the Animal Welfare Act (AWA) and the Horse Protection Act (HPA).  She also oversees the collaborative work done at AC’s Center for Animal Welfare, building critical partnerships domestically and internationally, while seeking to improve regulatory practices and develop training and educational resources.
Prior to being named Deputy Administrator in February 2016, Ms. Juarez served with APHIS’ Investigative and Enforcement Services (IES), first as Deputy Director for nearly 5 years and then as Director beginning in 2013.  As Director, Ms. Juarez was responsible for leading investigations of alleged AWA and HPA violations, as well as all other APHIS-administered statutes and regulations, and pursuing enforcement actions where warranted.  She also transformed the unit’s ability to complete investigation and enforcement actions nearly 50% faster by streamlining its business processes and focusing on the highest priority investigations.  Ms. Juarez’s experience enforcing the AWA and HPA began prior to her joining APHIS as a trial attorney in USDA’s Office of the General Counsel from 2002 to 2009.  In over 6 years, she represented APHIS in numerous AWA and HPA administrative enforcement proceedings. 

That statement may be true, but it is nothing to applaud. Under Juarez's leadership 90% of cases were closed without any results (real or otherwise).  That she closed cases 50% faster than her predecessors is not an achievement in any sense of the word, given how few cases under her tenure ever led to any consequences for the violators. The Agency could close cases 100% faster by just throwing them out, which is essentially what Juarez did. 

As a background, APHIS' Investigative and Enforcement Services (IES) describes itself as providing investigative, enforcement, and regulatory support services to four APHIS programs—Animal Care (AC), Biotechnology Regulatory Services (BRS), Plant Protection and Quarantine (PPQ), and Veterinary Services (VS).  Animal Care's mission is to enforce the Animal Welfare Act (AWA) and the Horse Protection Act (HPA).  To that end, Animal Care sends its inspectors (hereinafter "AC inspectors") to AWA-regulated entities (such as exhibitors, research facilities, and breeders) to inspect whether those entities are in compliance with the AWA.  Animal Care also sends inspectors to some Tennessee Walking horse shows to ensure that the trainers, show managers, and industry officials are in compliance with the HPA.  After Animal Care has done its inspections then, depending on the severity or the frequency of violations, Animal Care must refer the case to IES.  IES' role is to research the case (facts and law) to determine if the case is viable for administrative prosecution, at which point the case is forwarded to USDA's Office of General Counsel (hereinafter "USDA OGC"). In addition, IES prepares the cases they forward to USDA OGC in anticipation of eventual litigation.  IES also has discretion to settle cases before they go to court and to close cases where they do not find a legal violation. Animal Care is required to process almost all cases through IES.  Hence, IES has the power and capability to ruin nearly every AWA or HPA case.

A few years ago, I put in FOIA request for IES' budget.  In response, I received documentation regarding APHIS's budget from FY2011-FY2014.  Give or take, IES got about $14 million a year from congress (which comes straight from the taxpayers).  AWA and HPA cases make up more than a fourth of IES's caseload.  So over eight years of running IES, Juarez likely wasted more than $25 million dollars of taxpayer funds subverting the mission of APHIS and assisting those who willfully violate the AWA and HPA.

In 2016, another FOIA requester received and shared information regarding IES' closed investigations from 2012-2016.  Almost all of these closed cases were opened post-2008 (at which time Bernadette had started leading IES), so for the most part, the lifetime of these cases (from opening to closing) all happened under Juarez's leadership of IES.  Although the FOIA requested all IES closed cases, I limited my analysis below to AWA and HPA cases, about which I have a lot of familiarity.  I previously served in Animal Care, but I worked closely with both IES and USDA OGC, so I've followed AWA and HPA cases from inspection through final action and I understand the process.

The above-mentioned FOIA request produced 292 pages of records and each page contained about 65 cases with the case number, subject name, open date, close date, violation date, program, subprogram, investigation required (yes/no), final action code, final action date.  I could not go through 18,900 of these cases one-by-one (I tried, hence the partial highlighting on the PDF linked here).  The document is a PDF, so I was also unable to manipulate it to isolate the data (as an Excel spreadsheet would have allowed).  What I was able to do, however, was use terms that I knew would be related to AWA and HPA cases in order to sort through the chart for only the AWA/HPA cases and outcomes. I have linked to all the original documents upon which my analysis is based.  I have also gone into a detailed explanation of my methodology so that anyone can duplicate my numbers if they wish

Methodology
In order to come up with the total number of AWA/HPA cases, I used acrobat search tool to search for terms that I know belong to AWA/HPA cases.  Below is the breakdown of the numbers of AWA/HPA cases I found based on each search term I used.

Total number of “Horse Protection cases”:  1294 cases
Total number of “HP unilateral sore”: 256
Total number “Exhibitor”: 484
Total number “HP bilateral sore”: 246
Total number of “HP Foreign Substance” 995
Total number of “Research Facility”: 119
Total number “Dog Dealer”: 857
Total number “Other Dealer” 130
Total number “AWA license”: 18
Total number “AWA identifiers”: 26
Total number “Intermediate handlers”: 23
Total number “Carrier”: 125
Total number “HP scar”: 345
Total number “Random source”: 50
Total number “HP disqualification”: 5
Total number “other HPA violations”: 47
Total number “Carrier”: 115
Total number of “AC none”: 34
Total number “HP Disqualification”: 5
Total number “Inspection Refusal”: 2
Total number of Animal Welfare cases:  5176

5176 AWA/HPA cases, means that AWA/HPA cases accounted for 27.39% of all the cases closed in IES from 2012-2016.  My suspicion is that the outcomes below remain consistent for all of IES (i.e. the other 72.61%), however my analysis was limited to AWA/HPA cases.

Next, I had to isolate the outcomes for AWA/HPA cases.  In order to do so, I used acrobat search to search for the terms for the various outcomes, exported that to a CSV file and then sorted that file and used excel's count function to count out the cases that were either HPA or AWA.


Outcomes
AWA/HPA case results
Percentage of all AWA/HPA cases
Warning (7060)
3560
68.78
Denied / Declined
461
8.90
Consent Decision
187
3.61
Stipulation
177
3.42
Insufficient Evidence
120
2.31
Declined to Pursue
98
1.89
Settlement
75
1.45
No Violation
64
1.24
Statute of Limitations
48
.93
Fact Finding
44
.85
Decision and Order
35
.67
Complaint Dismissed
18
.34
Submitted to external agency
5
.1
AWA license denied
2
.04
External Penalty
1
.02
Suspension
0
0
Informal Conference
0
0
Letter of Warning
0
0
Letter of Information
0
0
Totals
4895
94.55
 
Although these outcomes only account for 95% of the cases, I am not perturbed because the IES closed case chart had many cases that were blank in the final outcome code box, so the missing 281 outcomes is most likely due to that.  It is also possible I somehow missed a term, but unlikely and, given the results I have, I am fairly confident that none of my assertions would change based on the missing 5%.

Analysis
The first thing you should notice seeing this data is that this is not good.  Maybe under Juarez's tenure, the IES cases were processed 50% faster, but they were also processed 100% terribly. Out of 5176 cases, less than 1% of cases processed through IES actually made it into the litigation stage (meaning out of IES and forwarded to USDA OGC who then filed a complaint in an administrative court against the alleged AWA/HPA violator).  Out of that 1%, USDA OGC lost or dropped a third of those (that's what "Complaint Dismissed" means). The fact that one third of the 1% of cases that made it into court were lost or dropped in itself undermines any argument that the low percentage of cases forwarded to OGC and litigated was the result of IES being thorough and only sending the strongest cases up to USDA OGC.  If these 1% were truly strong cases, then one third of them would not have been dropped (without any settlement). Only 35 cases ever resulted in a "Decision and Order" (meaning the court  made a judgment).  Having done a cursory glance at these 35 cases, many of those lost as well, in fact, USDA OGC and APHIS' performance in court was so bad, that a judge even awarded defendants attorneys fees of thousands of taxpayer dollars in one case I examined! Even where those cases were somewhat successful, the sanctions were usually a slap on the wrist. 

But one could argue that in litigation, most cases settle out of court, so maybe IES just settled most of  the cases.  Lets look at the settlement data.  There are three ways that APHIS settles these cases.  Either it could involve a court ("Consent Decision" ) or it could happen while its still at IES (through a "Settlement" or a "Stipulation").  Lets pretend that these settlements actually were effective at deterring future abuse.  Even using that fiction, only 8.48% of cases were settled.  Which means that even assuming that USDA OGC prevailed in most of the 35 cases that they took to court which had a Decision and Order and that all the settlements were effective, you still have a "win" rate of less than 9%, hardly something to be proud of.  I would mention here that these assumptions are not the case, in fact, the settlements generally involve nominal amounts of money, if any.  The largest settlements come from large animal-research facilities, such that the total amount is insignificant for the facility and probably considered the cost of doing business rather than a deterrent  (like the NYU case where APHIS let the defendants pay a $25,000 settlement essentially - which is nothing for an entity as large as NYU).  Many settlements only require an admission of wrongdoing and a promise not to do it again.

So using this data alone, if you get caught violating the AWA or HPA then there is a 91% chance that you will face no legal consequences whatsoever and less than a 9% chance of having to compromise with a settlement.  There is less than a .5% chance of losing in court ( and even if you did lose in court, the administrative law judge will usually lower the sanctions requested by APHIS significantly).  In other words, AWA/HPA violators can continue violating with impunity.


By far, the primary method IES used to "process" cases was to close them out with a Warning (called a "7060" in APHIS parlance).  Close to 70% of cases were closed out with a 7060 .  A 7060 is a letter that APHIS sends to the alleged AWA/HPA violator that essentially says “we think you broke the law; we’re not going to do a thing about it but here’s a letter for your information.”  There is no legal consequence to a 7060.  AWA and HPA violators often receive  multiple 7060s over the years.  The only actual consequence of a 7060 used to be that it was posted on APHIS' website under Enforcement Actions (and posting this information presumably had the"name and shame" deterrent effect - assuming that anyone actually knew how to navigate APHIS' badly organized website to find that information).  However this week, Juarez and APHIS decided to further protect AWA/HPA violators by taking that information off the website (they claim it's for FOIA and Privacy Act reasons.  I worked in FOIA for years and that explanation is bogus).  Because this information isn't even publicly available anymore, now if you violate the HPA or AWA you'll just get a private 7060 in the mail to let you know that APHIS thinks you broke the law but has no intention of ever doing their job.  

The terms "Denied/Declined", "Insufficient Evidence", "Declined to Pursue", and "No Violation" all mean  that IES decided to drop the case completely.  I can't speak to the validity of this, as I have not specifically examined these cases (so they may have been good cases that just got dropped, or, more likely these were bad cases that should never have been pursued to begin with - hence APHIS didn't even make the pretend-effort of issuing a 7060).   I can say, anecdotally, that often cases processed through IES were based on allegations that, even if true, were not actually violations of the AWA or HPA.  During my detail at IES, I even caught Bernadette Juarez herself make this type of mistake. She was moving a case through IES based on an allegation of breeding without a license, but she was misinterpreting how the regulations count  the number of "breeding animals".  When I pointed out to her that the alleged violator's situation fit within the de minimus exemptions in the AWA regulations (the comments to the regulations specifically talked about this type of situation and specifically said that APHIS would consider it de minimus such that it would not require a license), Juarez replied that she was too busy to research the regulations. I guess it was too much to ask that a former USDA OGC attorney who specialized in Animal Care cases and was running IES (the stated purpose of which is to check for the legal sufficiency of cases) should actually read and understand how to interpret her own Agency's regulations! 

A bit less than 1% of the cases were closed because of the "Statute of Limitations", which means that the case sat in IES for so long, that the time-period for enforcement ended.  Most legal matters have a window of time during which they can pursued, that's called the statute of limitations; if you are outside of that time period, then you can no longer pursue a case.  Statutes of limitations apply to federal regulations as well, so this 1% of cases sat in IES so long that the federal government could no longer pursue any action against the violator.  Another thing you'll notice from looking at the chart (even though I did not analyze this data specifically) is that it is typically years between when a case is opened (the violation date) and when it is closed (final action date).  

One reason statutes of limitations run out in these cases is due to the lengthy amount of time that IES spends on processing cases.  IES cases, even simple ones, will usually take years to process and hundreds of hours of taxpayer funded work because of all the "busy-work" they have written into their processes (most of which is repetitive and adds very little value to the case, asides from the  fact that 99% of these cases will never see a courtroom so this work is never actually used). 

An AWA/HPA case typically begins with an AC inspector finds a violation and writes it up in an Inspection Report.  Depending on how many violations there are and the frequency of that particular person's violations, a case will be opened against the alleged violator and that gets sent to IES.  At that point, the AC inspectors have already documented the violation and take pictures or videos to substantiate the violation.   IES contributes the following: First, IES will send out their own IES investigators to interview every single party in any way involved in the case (including the violator and the AC Inspectors).  The IES investigator conducts numerous interviews and then has all parties sign affidavits.  Usually this is the part of the investigation that takes the most time. However, on a practical level, almost none of these affidavits ever end up being used and they serve little to no purpose.  As we've seen above, more than 99% of these cases never make it into a courtroom.  Even if they did go to court, there's very little added value in having an affidavit from an AC inspector, when that AC inspector would testify at the trial anyway (and they would not take a case to trial without an AC inspector willing to give live testimony).  It makes more sense to have an affidavit with regard to the violator, but how useful is to routinely make that much of an effort in every case from the get-go when 99% of them will never see a courtroom?  

Having litigated myself, I could tell you that the first step in any case should be the settlement offer, and then, after that is rejected, you start building your case. That way, you don't spend a lot of time building a case that could settle very easily based on the preliminary evidence. IES does things backwards. They waste substantial time and resources on building their cases and it isn't until years into "investigating" a case that they pursue a settlement. I asked Bernadette Juarez about this when I detailed at IES, and she replied that APHIS can't ask for a settlement unless the case is ready to go to court.  That is an idiotic statement/belief! The purpose of a settlement is to avoid court preparation.  No defendant has a right to have a case be litigation-ready prior to a settlement offer.  

After the "investigation-stage" is over (which really just is an IES investigator "certifying" what the AC inspector has already done), then IES writes a Report of Investigation (ROI).  The ROI is basically a summary of all the AC inspection reports and all the affidavits.  The ROI is usually very long (not merely a quick snapshot of the case that might actually be useful to a USDA OGC attorney) and is written in long paragraph format.  The ROI  also take a lot of time to write up and yields no benefits (the only useful part of the ROI is the table of contents of the actual evidence and that is a very small part of the ROI).  If the case ever makes to to a USDA OGC attorney (which is less than a 5% chance), then the USDA OGC attorney will typically, upon receiving the case, immediately throw the ROI in the trash.  The reason that they do that is because no decent attorney would rely on a non-attorney's summary of the primary evidence.  It is not admissible in court and the legal conclusions written by non-attorneys would not and should not be relied upon by an attorney (especially given the lack of knowledge of the law typical in IES). Any good attorney would review the primary evidence him/herself to come to their own legal conclusions before filing a complaint.  So, to sum up, the entire process of IES takes years to do, costs a lot of money and adds no value to any enforcement.  In fact, IES' role removes value as they take a few years to process cases during which the Statute of Limitations may run out and, by the time it gets to court, if ever, the violations appear less egregious because of the lag in time from violation to prosecution. A judge is not going to care as much that a person failed to properly clean out animal enclosures (a common violation) when the evidence is three years old and the defendant will claim that they have already learned their lesson and cleaned up their act.

The purpose of this post was not just to point out how terrible Juarez is for animals and how she has been rewarded for her incompetence.  Rather this is just one instance of things that happen ever day in the Federal Executive.  Juarez is the rule, not the exception.  In future posts I will speak more about why this system is in place (where the higher up you go, the more inept the person in the position usually is) and the factors that contribute to the federal executive being run by completely useless people who work against their Agency's mission rather than for it. 

Sunday, December 25, 2016

Statement of Purpose

I keep thinking that after all this is over I should write a book about it.  A memoir but also a cautionary, explanatory tale of how the system actually functions.  I have passages running through my head much of the time, but I know the most difficult part of writing is actually writing.  A good idea is practically useless without the more difficult, time consuming, frankly annoying, work of actually carrying it out.  It occurred to me now that I have a blog that I haven't used in awhile which was meant to highlight these very types of issues.  So here I go; short posts may be less annoying than setting out to write a book with nothing but an idea and the truth.  I can gather all of this eventually for the book.

Overview:
The purpose of this is to show how things actually are.  Most people think that a law written is the end of the story.  But it isn't.  You can have the best written laws in the world, but if the people charged with enforcing those laws don't do their job (either because they don't understand the actual law or because they willfully don't agree with it and work to circumvent it, or just because they are incompetent and can't do anything) then the law is worth absolutely nothing.  This goes especially for laws in which an individual does not have a right of action.  Some laws are only allowed to be enforced by the government.  Some laws that even protect the rights of an individual, can still only be enforced by the government.  In that case, if the government agency charged with enforcing the laws says "fuck off" to the individual, the individual literally has no recourse.  They are not allowed to go into court, even civilly, to try and enforce the law themselves.

One great example of this that I was actually thinking of yesterday and which involves whistleblowing (although not federal employee whistleblowing) is something I read about while I worked at the Animal and Health Inspection Service (APHIS), Animal Care. (see Moor-Jankowski v. NYU).  APHIS (through USDA) is charged with enforcing the Animal Welfare Act (AWA).  The lead up to the case is as follows: Plaintiffs were whistleblowers who worked at NYU and reported to APHIS, as well as NYU's IACUC (look that up in google) numerous violations by NYU of the AWA.  As a result, the plaintiffs suffered retaliation by NYU, including termination from their jobs and false allegations of misconduct.  The plaintiffs reported the retaliation to APHIS, as there is a provision in the AWA regulations that implies that retaliation against a whisteblower is illegal.  You would think that provision (if the plaintiffs had read it initially) would have made them feel safe going forward with reporting the NYU violations.  9 CFR 2.32  I've linked to it, it states "No facility employee, Committee member, or laboratory personnel shall be discriminated against or be subject to any reprisal for reporting violations of any regulation or standards under the Act."  So here, the plaintiffs probably felt safe enough doing the reporting.  Animal Care and Regulatory Enforcement (which incidentally, is now called Investigation and Enforcement Services and literally is the defendant's best friend in any litigation for violations of the AWA because they actually hurt the cases that they investigate, and incidentally, the incredibly corrupt leader of IES, under whose watch hundreds of cases were dropped for missing the statutes of limitation, Bernadette Juarez, is now in charge of the Animal Care program, which is one great demonstration of how the federal executive functions, with corruption and ineptitude being rewarded) investigated and concluded that NYU had retaliated against Moore-Jankowski.  One attorney at USDA (Robert Ertman, who I actually had worked with once, and based on this case, he may well have been trying to do the right thing and protect the whistleblowers) was "removed" from the case and after that, APHIS decided to not pursue the retaliation charges against NYU.  Instead, they only pursued the other AWA violations, for which NYU faced up to $26 million in fines.  Then, APHIS (toothless as usual, but given the badly written AWA regulations regarding research facilities, in which basically every actual standard is written as a "suggestion" so that APHIS would have a difficult time proving any research facility actually violated the law, hence the settlements so as to avoid court) let NYU settle for $450,000, but only $25,000 actually had to be paid as a fine; NYU just had to use the other $425,000 to makes its facilities comply with the AWA.  So bottom line, NYU was "punished" by being ordered to spend the money they should have already spent on the facilities that should already have been built and faced no actual repercussions for any of their actions (read the case to see how egregious their actions were, both from an animal welfare perspective and a scientific perspective).  So the plaintiffs are fucked over by APHIS (who used their information to get the "settlement") and left out in the cold to deal with what NYU did.  The plaintiffs then file their own claim in federal court claiming that the AWA was violated.  Without going into all the legalese, they are basically stating that they are allowed to enforce the AWA, on their own, through the courts (which is called a "cause of action").  NYU files a Motion to Dismiss which is really just a statement that the plaintiff's do not have a "cause of action," because nothing that they are alleging is actually a violation of law.  The point of a motion to dismiss is to avoid the time and trouble of sending a case to the jury, where even if the jury agreed with every fact the plaintiff is alleging, the jury could still not find that the law was violated.  Motions to dismiss are often based on jurisdictional grounds, like in this case, that the law the plaintiff is trying to enforce, is not enforceable by the plaintiff.  Here, NYU is arguing that the plaintiffs don't have a legal right to bring the case, because AWA violations can only be enforced by APHIS (USDA).  The court agrees; for a variety of interpretative reasons they do not find that the plaintiffs are entitled under the AWA to enforce a violation on their own.  So, essentially, the court says to the plaintiffs, "sorry but if APHIS won't do their jobs, you're just fucked."

This one case is emblematic of a litany of laws that Congress has entrusted the federal executive exclusively to enforce.  So the issue here is twofold.  First, an individual is fucked if the federal agency won't do their job.  Second, because the law is on the books and on the face of it would seem to protect the individual, the individual is double-fucked because they may rely on that law to do something and think that they will be protected, whereas if there were no law, they would not risk taking the same action.

So the purpose of this blog, generally, and more specifically for the future posts I will write on federal employee whistleblowing, is to highlight how the system does not work and why that is the case.  I cannot say I have simple solutions to these issues.  These issues have weighed on my mind since 2010, when I first started working for the federal executive and got my first glimpse of how things actually are.  It is enough to kill all sense of purpose and idealism.  Ironically, as demonstrated by the NYU case above, laws can many times actually hurt the people they are meant to protect.  In the NYU case, the purpose of the regulation seemingly was to protect employees from retaliation for reporting AWA violations.  However, because only APHIS could enforce it and APHIS is a terrible organization which generally promotes only the corrupt or incompetent, the whistleblowers were actually placed in a worse situation than if the regulations had never been written.  Laws that give a false sense of security are insidious in this way.

I'll end off this post with giving one suggestion to lawmakers: Know who will enforce your laws.  Understand just how incompetent some federal agencies are, especially as you go up the hierarchy.   Congress, write your laws as if for a two-year old.  Many high level federal officials can barely read, let alone comprehend.  Many federal officials just don't care to actually know what they should do and do it correctly.  Those that do care (which, as you go down the hierarchy, you find more and more of), are often in positions where they cannot do the correct thing because of those above them.  Congress, write your laws as if the laziest, most egotistical person you know, is going to be the one in charge of enforcing it.  In other words, assume the worst and proceed accordingly.