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.

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.