Office of Special Counsel Responds To Criticism On Veterans Affairs

Office of Special Counsel

Benjamin KrauseYesterday, the Office of Special Counsel (OSC) decided to reach out following my critique of their slow oversight, putting resolution to a social issues ahead the Tomah VA, Hines VA or Phoenix VA scandals where many veterans were killed.

To my surprise, I had an answer to my critique in multiple email inboxes by 9:30 AM CST. I posted the OSC response at the bottom of this article for readers to check out, in an effort to be fair. I appreciate that OSC reached out and wanted to explain what happened for readers who did not check in yesterday.

For some background, for the past couple years, VA employees and policy failures killed many veterans – this has actually gone on for the past many decades:

RELATED: Voodoo Medicine Used To Investigate Phoenix VA Deaths

RELATED: Deadly Hines VA Hospital Cover-up Exposed

RELATED: New Drug Deaths Linked To Tomah VA Candy Land

OSC, the oversight agency charged with policing VA when OIG fails (and other agencies, too), has done little (at least publicly) to rectify those deaths as far as anyone can tell – the proof is in the pudding, VA is still doing bad things and whistleblowers are still having their lives ruined. Take a look at Brandon Coleman’s struggle at Phoenix VA for one – he is a disabled veteran, counselor and VA whistleblower getting hammered by the unrepentant Phoenix VA.

No one is going to jail, and veterans are still being harmed alongside the whistleblowers trying to protect them. Yesterday, I wrote publicly about my disappointment in the article, At OSC, Do ‘Gay Rights’ Come Ahead Of Veterans’ Deaths?

From my perspective, I am concerned OSC is allocating its limited resources to resolve matters for the purpose of maintaining politically correct positions of the White House over correcting fraudulent VA employee behaviors that killed veterans. I put saving human lives ahead of social issues, but maybe I am unique in that way.

For some perspective of how my brain works, when I thought of writing the article, I was a little curious about how OSC would respond if I publicly shamed them because of their lack of movement on resolving veteran deaths and certain whistleblower problems connected to Hines VA and Phoenix VA. Within a couple hours, I now have an answer.

By 9:30 AM, senior communications specialist Nick Schwellenbach had a response written and was quick to fire it my way by email. In the spirit of transparency, I thought it was fair to post what OSC’s senior public affairs employee had to say in response to my critique.

RELATED: Read Nick Schwellenbach’s OSC Biography

Let me know what you think. I’m looking for solutions rather than mere blasting. While OSC is investigating many VA issues, why are social issues getting resolved before the Phoenix VA scandal, Tomah VA scandal, or most other VA scandals where veterans were killed years ago?

Is OSC doing enough? If they could do more, what would that be? Or, should we be more patient?

Letter From Office Of Special Counsel

** Start Office Of Special Counsel email **

Hi Mr. Krause,

I saw your post this morning about OSC and thought you might like more information about our work with VA whistleblowers who’ve raised concerns regarding VA healthcare.

VA whistleblower cases involving disclosures of threats to patient health and safety are, collectively, our organization’s number one priority. VA cases of all types represent about 40 percent of OSC’s government-wide workload, up from 20 percent in recent years.

As of Special Counsel Carolyn Lerner’s April 2015 testimony, “in 2014 and 2015 to date, OSC has secured either full or partial relief for over 45 VA employees who have filed whistleblower retaliation complaints. OSC is on track to help nearly twice as many VA employees in 2015 as in 2014.” (

Notably, last year, OSC’s report to the White House and Congress on the VA Office of Medical Inspector’s deficient investigations of whistleblower disclosures regarding patient care led to an overhaul of that office.

Here are VA-related press releases from OSC over the last year:

VA Hospital Improperly Substituted Mental Health Drugs to Save Money, April 22, 2015

OSC Helps Protect More VA Whistleblowers, April 9, 2015

OSC Obtains Relief for More VA Whistleblowers, January 20, 2015

OSC Honors Three VA Whistleblowers with ‘Public Servant of the Year’ Award, December 3, 2014

Phoenix VAMC Whistleblowers Obtain Significant Settlements, September 29, 2014

OSC Urges the Federal Circuit to Protect Whistleblower Due Process Rights, August 14, 2014

OSC Cites Deficiencies in VA Health Care Reports, June 23, 2014

OSC Investigating 37 Claims of Whistleblower Reprisal at the VA, June 5, 2014

While OSC’s VA-related caseload is our biggest priority, it is important to note that OSC has jurisdiction over most of the federal government and that we receive important non-whistleblower claims that are also within our jurisdiction.

If you would like more information about OSC’s work, let me know. Also, in the future, you may want to consider contacting OSC for comment so that you have fuller picture when writing about our work.



Nick Schwellenbach

Senior Communications Specialist

U.S. Office of Special Counsel

Office Phone: (202) 254-3631

Cell Phone: (202) 412-4157

[email protected]


** End Office Of Special Counsel email **

My only comment about his answer is that he perceives that I do not have a full picture of what OSC does and does not do. Because of my huge readership, I have a broad understanding of what OSC is and is not doing – probably more than they do on some levels.

There is one backhanded statement Nick made that I’d like to highlight. He suggests that I need a “fuller picture” of OSC before I write about the agency. Well, I took him up on the offer right away and asked him about their investigation at Hines VA into veteran deaths and retaliation against the whistleblower. He gave me the typical, “We don’t generally comment on open investigations…” Whatever… I guess I’m lost as to what additional information Nick hoped to provide me other than non-specific background noise distracting Americans from the real issues.

What is your perspective? Give Nick a call or send him an email if you think he would benefit from your perspective… Tell him “hi” from Ben.

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  1. 06/15/2015

    Dear Benjamin Krause,

    Did expect anything different?

    Did you expect change from these people?

    They ran a PR campaign while 19, 500 died last year.

    Their lawyers are not going to move, especially when we are talking “murders & homicides and manslaughters.”

    PJ says
    June 9, 2015 at 12:46 pm

    “Shame on you, Attorney Krause, you only rely on the “record” and ignore the really big cover-up.

    You need to visit, the National Cemetery in PHX,AZ. Where all the bodies are buried, especially Nehmer qualified vets. How did they get all the VN vets dead in 2010, all born 1941-1948 ?

    WHEN, is anyone going to listen, and look into the RETALIATION that the PHX VAMC, unloaded on vet targets and their families?

    It was covered by major media in PHX at many “townhalls” but never aired, or considered an issue in the news.

    Vets reported how they were “beat”, arrested, and deliberately harmed, injured by the PHX, VAMC, the epicenter for veteran deaths, because…they questioned their care!”

    Even Thomas Murton [Brubaker] would have been spellbound here in Phoenix as everyone walks around like nothing is happening; and as Carl Icahn, his Goldman Sachs buddy, Gannett, USA Today, and in Phoenix the Arizona Republic reporter Dennis Wagner and the other 17 investigative reporters are winging out everything but the real news and getting national awards. And It will take years for the ASU’s Walter Cronkite School of Journalism to get this right.

    Just like in Murton’s case after finding hundreds dead—the Governor and the Senator clamped down on his ass and sent him out of state in 24 hours in 1968.

    “Ain’t that America!”

    Japan Times Article

    The Body of evidence is far beyond OSC.


    Don Karg

  2. I know of some doctors at the long beach VA who screwed up and should have been let go but were reassigned to West LA… is crazy….

  3. Hi Ben and everyone,

    I have been fighting the VA now for over 7 years on an increase. I have a pro-bono attorney going to the CVAC on the VA. The VA has not done their job as usual. My attorney told me they have not done their duty to assist and missing close to two years of records that they already have which should have been in the RBA/C-File.

    Ben, I would hope and appreciate if you could tell the OSC that the VA rater should have all the records in front of them and not make a decision that creates a Notice of Disagreement?? This seems to delay the system which already has a long amount of time. In my CP exam the doctor never really saw me but a nurse did. The doctor was not even a specialist in degenerative disc arthritis?? I would think these VA doctors should be held more accountable?? The VA DBQ is called a conflict of interest to have a VA doctor fill it out?? The outside private doctor don’t want to fill out a 11 page form and they are not getting paid to fill out a form. The outside doctor has told me the VA should fill this out. I tell the outside doctor that the VA doctor has a conflict of interest. So the duty to assist the veteran by filling out a VA form or having evidence of a claim not being there to make a decision still is going on. I am not an attorney but know the VA should not be allowed to with hold evidence. With this I am tempted to fill out a complaint.

    Ben, you would know how many laws the VA is breaking. It is the BVA that is causing the 18-22 suicides a day and homelessness. They don’t want to pay out any claims and the delay-deny-die will not stop as long as they keep giving the doctors money instead of the veterans and their families.

    Thanks Ben and keep chewing on that meaty VA butt!!!

  4. YOU veterans need to become your own political committee. How many vets are there? MILLIONS, well enough to scare the crap out of any potential or current candidate running for office and certainly enough to have a spokesperson at the legislative process when trying to get the word out to the legislator’s. it’s like having a lobbyist’s or like what other newer groups have to speak against the ills by government or corporations.
    Just a thought. millions of vet voters can upturn any election.. emily’s list, credo, daily cos, move on, org, there’s all kinds of newer groups out there championing their causes and. also. connected to that would be any BLOG OR WEBSITE TO SHOW all of the correspondence of BS, letters that Ben got, It would inspire others to give their info to show our nation what’s going on and inspire others to write letters to those who are supposed to represent us but don’t with b ss answers like Ben received. If everyone donated a buck or so a month, you could support a lobbyists or more, plus money for the necessary truth and evidence building website.
    just a thought.
    With injured workers its been harder for us to that since we’ve been obstructed by corporations and their insurers, so many via the net and most of us are barely eking by.
    Anymore I feel as though we’re being treated like those who have no civil rights and the abuses are similar to the kkk. violation of our civil rights by some in our very own govt because we cannot get any representation whatsoever and continually obstructed. 1987-2005 1.3 MILLION WITH THEIR DEFENDANT’s here in CA alone, that was as of 10 years ago and AT LEAST 440,000 get injured or ill every year just in ca alone.I do not say that loosely at all. some in our govt are violating our constitutional, civil and human rights and it’s as bad as it can get and does need to stop,ENOUGH IS ENOUGH. AND IF ALL THESE RIGHTS VIOLATIONS CAN HAPPEN TO OUR VETS, THEN WE’RE ALL AT RISK, AREN’T WE?

    1. That’s a great point Dina! Did you know veterans vote more often than most other voting blocs? Yet, we still struggle to unite under the same banner, so to speak. It certainly would be nice to replicate the “tax pledge” Republicans used to galvanize their voters under infamous lobbyist Grover Norquist. Perhaps we need a “veterans pledge” that unifies all VSO’s and vets together in some way regardless of political leaning?

    2. Right on. If we get together an voice our complaints to the media, elected officials, and general public we can have our “Shankshell Redeempation.” Dina point spot on.

    3. Exactly. It’s not enough. Ow that you can document and prove your position. Individual voices do not and will not get heard without substantial legal aid. I have recorded all of my appointments, meeting interactions and phone conversations with the va on my voice recorder so I have the facts of the bullying and abuse. The va admits and confesses to me almost 100% of the time of their wrongdoings, I record it, but it goes no where because I am just an individual voice that never gets heard. I even told the va if I ever committed suicide or homicide because of the stress, like if I ever just loose it, all my recordings about what drove me there parked right on a hard drive. I am tired of being a vicitm by the va. As an mst survivor I was victimized by the military, as a civilian entitled to federal benefit, I have only been re-victimised by the va. Does it really take death to be heard??? Wasn’t being heard part of the declaration of independence which inspired and lead to the Constitution which I took an oath to protect and defend? Yep I have the answers and the proof, just no voice.

  5. Hey, everybody, Ben is getting married. Can someone figure out how we can all pitch in and get him and his bride a nice wedding present? Can that be done through facebook or something like that?

    1. Thanks for the kind gesture Bruce. Here is something to plant a seed. The best thing you could do is decide how you would like to budget a series of Press Releases via PR Newswire and PR Web about VA, about your story, or about whatever it is that makes sense. When I get back after the 4th of July, I can start touching base with vets willing to fire their story across the newswire for the world to see. Readership here is a strong 45k-50k unique readers per month. The establishment knows folks are watching. A few good jabs post July 4 could be worth while.

      So, for those willing to put in the work, write up an issue you think makes sense. Decide on your PR budget. For the topics that look most effective, we can push them out when I return and build momentum for a “veteran voting bloc” come this 2016…? Ideas?

      1. enjoy your honeymoon Ben and when you get back and you want stories of incompetence wow to I have some personal ones and I think I have told you that I am an Attorney with over 40 years in the practice of Law in California but disabled to the point now that I will likely make my license inactive after next year. Have fun Brother…..John

      2. This sounds very interesting Ben. Can you provide more detail on PR budgeting for press releases? Is this a paid service to distribute press releases? If so, that would be very handy! The veterans scorecard of candidates would also be useful, particularly if both sides were held to a single standard. A candidate doesn’t keep their promise? Flood their district with PR on the issue. It might get their attention.

      3. By the way I emailed you months ago when I subscribed here, but never heard back, just saying.

  6. This response is positively Orwellian.Federal agencies all rely on the same cliches like “ongoing investigation” to obfuscate the truth. To be honest, although I know that it’s critical to protect whistleblowers, I think that the prosecution of the responsible individuals and providing restitution to the veterans and families involved is at least as important. If the OSC and VAOIG keep shirking their responsibilities, then we need to have state police (preferably) or the FBI to take over the investigations.

    I’ve said it SSSOOO many times. The VA can’t be trusted to police itself. Even Special Counsels can be hand-selected. Sad but true. So much for the “most transparent” government in the nation’s history.

    1. With all the negative press the VA has received through out its history, and all the coverups its done. There has been specific questions asked by veterans, and they are; how do we get justice? Where do we go? Who will help us? Will this broken VA ever get fixed? There have been more, but I think you all get the point!
      Well, I’d like an answer! Won’t anyone out here answer these questions?

      1. Ben’s blog is a good example. The only way these issues will get fixed is publicity. Even then it will take a long, hard sustained effort. Years ago I thought we were making progress on Gulf War illnesses. It was shocking how often the DOD or VA could issue a press release…and suddenly everything was fixed. I was amazed at how many civilians I talked to who said, “I thought the VA was taking care of you guys”. Over 20 years later and the VA continues to screw up Gulf War veteran claims because they refuse to train their raters on the law. Even with press and getting Congress’ attention, it will be tough to fix things because Congress will pass legislation, the public will believe things are fixed, and the VA will go back to business as usual. Contact your Congressmen often. Find out who in your local media covers veterans issues and try feed information to them. Write letters to the editor. Think about other issuers for example the #BlackLivesMatter issue. They get the attention because the media eats it up. Think of other issues. They get attention because it gets public interest. Things quieted quickly over Phoenix because Congress passed legislation, so now the media and the public think things are fixed. Try get your Congressman to hold a town hall at your VA. If that happens, publicize it heavily because the Congressman and the VA will not do it. They like things nice, quiet and easy, then they issue their press releases making the public think once again everything is fixed.

      2. To 91veteran, myself and many, and I do mean many, have done what u’ve said, or suggested ,AND MORE.
        Only it’s the same old BS over and over!
        What I would like to see is a large contingency of veterans, civilians (taxpayers) and attorneys converge on Washington D. C. and not only demand change, but demand charges be brought against the perpetrators in the VA. I believe that will be the only way it will change. Hit them where it hurts, in the wallet….
        A Vietnam Veteran and Proud American!!!!

      3. @Crazyelf-
        If a legion of Veterans were to land upon and march in D.C., I would be concerned how the President will unleash his DOJ…only after many Veterans and supporters are hit with pepper spray, tear gas, riot gear, and many arrests. I could see it happening. Plus, many Veterans are rightfully afraid of VA retaliation.
        The DOJ would only be put to task if someone OTHER than a Veteran were to be harmed or “profiled” in such an event.
        The mainstream media STILL is a very powerful tool, and if all these VA problems can be kept in the frontline of every Presidential Election debate, questions asked, and made a major topic for change rather than a gratuitous talking point, we collectively show we Vets are above the fray of rioting and violence we often see these days.
        I just ask where’s the outrage over the “Social Issue” of Veterans being killed and treated like crap by the VA?
        The DOJ is showing a bit of prejudice in NOT taking Veteran’s issues as swift and furiously aggressive as they recently did with Baltimore.

      4. Namnibor
        Two “titles” come to mind, “Born on the Fourth of July” and “Article 99”, I hope you watch the movies or read the books. They are based on ‘real life veterans experiences’! They were willing to give all in fighting the VA.
        This is the only way I see any way to change the ugly side of the VA.,..

    2. I’ll add that Mister Nick did not chime in today at all. Perhaps they realized I wasn’t some dumb ass with a blog of only a couple readers… Nope, my readers are up on the government’s games and there are a lot of you spreading the word that we are being duped for now, but now for long…

  7. Where do we go for help? Over 30 gd years just hear the same bs over and over again. Bitching is all there is without competent representation. The VA just wastes your time grinding you through their incompetent fixed overhead that would kill you if you are stupid enough to let them.

    Where do we go? Where do we go? Sorry Ben, but I don’t see the alternative. All I see is an endless ocean of incompetence who’s main mission is to screw veterans from receiving what is due for wasting their whole gd life: end of story.

    1. Maybe it’s time to set up a “public shaming” page on my site for Federal employees who tragically fail their jobs and kill veterans…? How about that? Public shaming for all to read.

      1. Please do this Ben. This is not only to shame them, but it will allow vets to know and track these weasels if they are shuffled off to some other VA. Allowing comments would help so veterans who have first hand experience with their incompetence could add detail. Some states like CO require medical people to provide any adverse information against them to the state on a public web site. That’s how I found out my Ortho surgeon had been sued in Missouri, and how two incompetent nurses had no action against them. Shuffling these hacks to other VAs scares the he’ll out of me because you don’t know if they are one step ahead of a malpractice suit.

      2. VA Whistleblowers are STILL being treated egregiously?

        REALLY? How bout the “plant” from the Establishment, who is just short of a “crisis actor” This plant made specific comments to infiltrate the opposition; was useful for damage control, and was paid off.

        Currently there is a doc, who’s specialty was bad care for vets, skipped AZ, went to Michigan, and now is headed for Florida.

        These stock of docs are assigned to vets, some without credentials, because they are good for creating a medical crisis, and fudging records.

        Label their identity and misconduct on milk cartons, or beer bottles.
        In the very least, it is a matter of informed consent.

      3. I live in Florida, and use the VA here in central Florida. Whats that idiots name?

  8. Where to start….

    First, they brag about 45 whistleblowers helped, in part or full in the last 18 months.
    – Define partial relief?
    – How many whistleblower complaints were filed over the same time and historically over the previous 5 years what was the average?
    – More complaints currently, my guess is that helping twice as many is not commensurate with the rate of increase in complaints.
    – Even helping twice as many people, how many complaints were filed last year and YTD this year? On track for 40ish helped this year likely statistically insignificant when compared with the volume of complaints. It is akin to saying you are filling in the gap that is the Grand Canyon with a dump truck full of dirt.

    The claim is made, in stories which they shaped the narrative of, that whistleblowers are being settled with, financially.
    – Does this include a signed non-disclosure of terms and ceasing all speaking out against VA?
    – Great that they may be compensated for wrongful termination, etc but that DOES NOT change a system which is fundamentally broken. Settlement with no culture change enables the status quo. Come forward and blow your whistle, you will be paid off and we will change NOTHING.

    They are SOO busy as VA is not the only agency they serve.
    – VA is the second largest agency in the govt, behind DOD. Proportionally they have more complaints, that should be a huge red flag.
    – I feel for the heavy workload, but when giving priority to other issues or agencies, are people dying there too? If not, the priority MUST be cleaning up the issues at VA.

    But heck, what do I know….

  9. I am tired of all the media focus on just VA whistleblowers, instead of veterans who are whistleblowers against the VA. Just yesterday the VA has raised their stakes against me by a new threat, to have me declared incompetent.

    There is more than one Candy Land, my Primary Care Physician is a Valium addict, the VA Police conspired to kill a prominent person, VA false arrests/cover-ups, I have blown the whistle on this and much more. Sure, I got apology phone calls AND a letter of apology from the VA Police, but the retaliation continues and grows worse.

    Ben, and others here: How about a new law: ‘The Whistleblower VETERAN Protection Act’.

    1. B.W.-

      Are you referring to the PHX VAMC?

      Incompetent ? …been there, done it, beat it …

  10. Hello Ben,

    You struck a nerve with the OSC. This is just another set of canned responses to turn the attention away by having these awards and bonus, but never answer the real question, why was only one person fired so far?

    My response to the statement, from Nick, ‘ need a “fuller picture” of OSC before I write about the agency.’ Then I guess that Speaker of the House, Boehner also need the fuller picture when two weeks ago he asked why only one person has been fired from the VA scandals?

    For him to present his list of accomplishments, but fail to answer why people are still waiting months to see a doctor in the VA. Why was the veteran in Seattle forced to sit in his car and call 911 just to get into the VA emergency room?

    So Ben, my response is that you are not alone with your questions but members of the House and Senate are concerned too.

    1. I had a hunch when I wrote that yesterday about ‘gay rights’ vs ‘veterans lives’ it would prick a nerve in those guys to get off their asses and make it happen. The fact it, OSC has always received deference regarding critique since they are considered the last line of defense. Well, I think they could do more. And it’s time we start hitting back against these supposed ‘watchdogs’ where are nothing more than neutered dogs with no teeth. As an American activist, I expect more. Our traditional establishments are selling us out, and we need to get creative in how to address the issue.

  11. OSC is part of the problem not the solution, to many lawyers feeding off of veterans is the real problem there! The whole VA system is broken and that doesn’t give the OSC any kind of free ride. As a matter of fact they are so overwhelmed with events over the last couple years that they are failing at their mission too!

  12. OSC is part of the VA and is there to protect and perpetuate VA concealed policies and practices. If OSC responded so quickly to Ben, he has hit on or is close to something they are quite sensitive about.

    If you believe OSC, there is a bridge for sale in Brooklyn!!

    I have found the VA tries to avoid clear written responses and tries to respond by telephone if at all. What is said on the telephone and what goes into the record are self serving for the VA.

    There is a lot to be said on most every aspect of the VA but I will note just one thing:
    not only are VA whistleblowers retaliated against but so are Veterans who pursue sensitive issues. Ben, addressed this previously.

    Ben, keep up the good work!

  13. I thank you for the post OCS email. I for one sent and email and questioned their integrity,for not owning up to all Veterans of the Vietnam era and from that point until present to all Vet’s that have a need caused from exposure during their tour or tours. I would have included Korea but it was before my time,but I’m sure had I been old enough I would have been in the middle of it,because I am an AMERICAN with all the scars to prove it !!!

  14. One other press release that infuriates me is how many cases have been settled, which means a Whistleblower received a taxpayer payout, likely from the VA budget. Money is being wasted on this that could be used to provide veterans care. If that press release contains details on those doing the retaliation were disciplined in some manner, or prosecuted, then I have less problem with that. Absent there being some disciplinary action, those payouts will continue.

  15. You are right on point! After a lengthy OSC investigation in which they told me that their investigation would not turn up any additional information that I didn’t already have because facility leadership would lie to them too they wanted to send me to mediation. It gets better…..they wanted me to mediate with the same individual that subjected me to an illegal search, destroyed documents that would have prevented my temporary removal and ordered the criminal investigation…..I passed and filed in MSPB. OSC was a waste of time.

    1. Hey Tonja,

      Vets and their families were / are whistle-blowers too, Make no mistake about this!

      Did you ever see the (150) written complaints submitted to Sen. McCains’ office, back in 2010?

      Or what about the Administration policy to deny treatment to s/c vets, rated (100%) so they could suffer and die in other hospitals, while under VA orders by proxy.

      This practice, was the specialty of a certain, “patient advocate” who practiced hate speech against the vets and family members.

      This admin.-professional also held himself out as the ‘personal representative’ of Senator John McCain.

      I attended every ‘townhall’ where vets explained how they were personally injured, by the ill treatment, and it was covered-up.

  16. Press releases are nice, but one indicating they are investigating 37 cases of Whistleblower retaliation shows the VA has a very serious problem with that and a press release is not going to solve that severe of a management failure. It should take no longer than 3 business days to immediately take action on a reported case of retaliation. This isn’t to say the perp should be fired, but reassigned or at least counseled immediately that an investigation into the retaliation is taking place, no further interaction with the Whistleblower is permitted, and any other retaliatory acts would result in immediate suspension without pay until the investigation is complete.
    I see zero press releases in his email about any referrals to the DOJ for prosecution into continued retaliation against Whistleblowers…a violation of federal law. Until that happens, the rotten culture at the VA will continue. Investigating these acts of retaliation should not be a jobs program for OSC. Get serious about it!

  17. ‘Backhanded’ is what OSC does, and ‘secretive’ is what it is. If you want to hold them accountable in the VA arena, and go to the heart of what they’re about, get a Lexis sub, go through the MSPB AJ database, and look up successful VA whistleblowers who prevailed on or settled an Individual Right of Action (5 USC 1221). Then FOIA the docket sheet from MSPB, and from that docket sheet, FOIA Appellants’ jurisdictional responses, which should contain OSC’s preliminary determination / complaint closure letters (5 USC 1214). An IRA at the MSPB is an appeal from an OSC complaint. By definition someone who prevailed on an IRA (and less so if they settled it) is a case that OSC could have, but chose not to, champion to satisfaction (or the w.ber was being unreasonable in OSC settlement phases, but this is rarer). That OSC letter will likely contain evidence of OSC misapplying whistleblower law (SOP).

    Then, of course, run your findings by Nick for comment. ‘Full picture’ and all 🙂

      1. It’s going to be subtle, but OSC distorts the law to find that a disclosure was unprotected because a black/white violation of law is actually, in their eyes, a disclosure of a “lawful exercise of discretionary authority.” Another big one has to do with the complainant’s prima facie case: protected disclosure(s), actual/constructive knowledge of disclosure(s) by responsible officials (a/k/a the “contributing factor”), and personnel action taken within 1-2 years. That’s all it takes to allege/prove one’s case and the burden then shifts to the agency to claim that it would have taken the personnel action anyway (i.e. even in absence of the protected disclosure). The knowledge/timing contributing factor test is key: it’s a presumption that the disclosure was just one contributing factor to the personnel action/retaliation. It doesn’t have to be the sole or even motivating factor, just one. It’s an easy test to meet, relative to other areas of employment law.

        Unfortunately, this is the most common legal obstacle that OSC generates relative to the contributing factor test to get rid of complaints:

        [sample language]: “The examination showed no evidence that any management officials responsible for the personnel actions at issue suffered any adverse impact as a result of your disclosures; any evidence of statements of animus because of your disclosures, or any other evidence that establishes a specific connection between your disclosures and the personnel actions at issue.”

        Here’s the problem. That language there is part of a back-up (not primary/easier) test to establish causality/contributing factor. in other words, if you sent your whistleblowing email to the VA Secretary on down, and your disclosure is protected, and you were fired – done. That’s all it takes, and OSC should investigate further. But if for some reason you made an oral disclosure, and your boss denies it, that’s where the quoted language comes in – to prove, circumstantially, that they knew of your disclosure. The problem is that OSC uses the circumstantial test to increase the burden on most complainants who make direct, verifiable disclosures: it doesn’t matter what your email traffic shows – if you can’t show to OSC your boss’ animus, or more “specific” evidence, they’ll throw it out. Then you go to the MSPB on an IRA, and the real test is used. Hence the disparity in outcomes. And that’s just one example. Of course, most complainants aren’t in a position to push back on OSC’s misapplication of the law.

        In some ways, OSC has its own backlog to deal with, and these are the tactics that they use that would not stand extensive scrutiny (this should ring familiar to your audience). I posit that the more responsible approach is to level with complainants – to tell them flat out that they might have a case, but we don’t know because we have X complaints per examiner and rising, etc. etc. (‘why don’t you go to Congress and lobby for more funding’ being the subtext). Or to issue rulemaking to publicize honest criteria for accepting complaints, based on these backlog constraints.

        But instead what happens is they give the appearance to complainants that “legal obstacles” exist (and sometimes they do and sometimes not), which disempowers folks already under tremendous stress, who now have 65 days to find a lawyer or craft a pro se strategy and learn a new system before the MSPB, under less than ideal circumstances.

        Essentially, OSC’s harmful paternalism stands as an ironic obstacle for OSC to get itself the resources it needs.

    1. Shame on you, Attorney Krause, you only rely on the “record” and ignore the really big cover-up.

      You need to visit, the National Cemetery in PHX,AZ. Where all the bodies are buried, especially Nehmer qualified vets. How did they get all the VN vets dead in 2010, all born 1941-1948 ?

      WHEN, is anyone going to listen, and look into the RETALIATION that the PHX VAMC, unloaded on vet targets and their families?

      It was covered by major media in PHX at many “townhalls” but never aired, or considered an issue in the news.

      Vets reported how they were “beat”, arrested, and deliberately harmed, injured by the PHX, VAMC, the epicenter for veteran deaths, because…they questioned their care!


    2. The Philadelphia Northeastern Regional office has an AJ (government attorney) not ALJ that is about to get the riot act read to him in District Court and the Foley Hoag imposters who make up law on the go. The jury trial is essential in MSPB hearings. Including the bogus appointment of regular attorneys as AJs, which is not in accordance with the Administrative Procedures Act , and the discovery and Brady violations alone, should be enough to send them to jail.

  18. ……………………………………………………………………………………………

    This is HOW, I am trying to kick VA’s lying butt. 🙂 I keep nothing for myself and spend lots of my own money too. I want to put free “VA is LYING” T-shirts and bumper stickers on the streets in EVERY city and town in America. And I want them to be completely FREE to the proud vets who display them.

  19. It also seems, to me at least, these ‘government agencies’ are ‘interpreting’ the “Constitution” and “The Bill of Rights” to their own way of doing business!
    There is a phrase I always elude to; “Congress will not enact laws that will infringe upon the people’s rights!”
    I do believe that is as straight forward as one can get! There are many such statements in our Constitution that cannot/and should never be missinterpreted by a government… yet, we see it happening regularly, WHY?
    Our “Founding Fathers” may not have been perfect, yet, they knew a government NOT “For the People” would desolve over a short time! I believe Dr. Franklin and others in the Congress were very specific over this ‘issue’!
    Maybe it’s time our current Congress go back and read why the “newly formed United States” broke from our Parent Country. Maybe they should re-read the Declaration of Independence AGAIN!
    Does anyone here agree?

  20. Bullshit ,I dare you to call or file a report with OSG. Last year when I contracted C-diff because the nurse who injected a testosterone shot without using sterile practices ,I was @. civillian ER called my team nurse told her where I was she said sign consent to release the Dr findings so they could reimburse me ,I did she also told me to file a grievance against the nurse I Did Worst Fu—-g thing I ever did .i did file with OSC .I have been blacklisted by all Dr you think it doesn’t happen file a report see what happen .

      1. No it’s not phoenix i am in SW Mo & Fayettville Arkansas network. What’s happening to me with the VA has followed me in the civillian sector.i am trying to find out if civillian Drs can get Vista records without my written consent.i have never seen anything like this before I have been blacklisted my medical profession .I can tell you this Google my name and Springfield newsleader in Missouri ,I wrote a letter to Editor never thinking they would publish in the paper this is when VA scandal first broke last year and my Fayettville VA was saying how great they were ,this is when everything went sideways

  21. There is your answer Ben,
    The OSC is nothing equivalent to the VA’s OUR Scandalous Colleagues abbreviated as OSC.
    First, when you make a disclosure there are 2 separate offices one the disclosure unit, where you have to fill out a form 12. What happens there is that they do not have investigatory powers, so it is referred back to the VA, not the IG like it should.
    My request for FOIA proves this by the FOIA person who is not following the law. I have many e-mails that I will be publishing soon with direct quotes from attorneys at OSC that literally states they only intervene in certain cases. I am doing a data collection on all of these attorneys, because they have committed discovery and Brady violations.
    In some cases . specifically evidence related to the US title 18 241.
    The OSC is a show and tell organization, which relies on “big fish” cases to justify their existence. They use these cases as a metric to recieve a bonuses. I have a whole pile of cases that were never made public 1213 (g).
    I and am working with a group that will be working on something big that is going to shame the OSC, yet alone file injunctions against the attorneys in their respective states licensing authority. The IGs were found to be lapdogging with the agencies, and what makes it worst, the OSC has been softening the blow on agencies as well and surprisingly enough, the OSC does not have an IG and does not have jurisdiction to investigate the VA IG, surprising eh?

  22. As we all know federal government entities NEVER make mistakes (ya, right !) – they will make excuses and “backpedal” while they divert the public attention somewhere else until that issue goes down in flames and the situation just re-repeats itself ad infinitum.

  23. That letter was really nothing more than “Damage Control”. Why do I say that? Because in *any* well-written response, it’s usually telling in the last paragraph if it’s well-written, will concisely connect why the letter or paper was written in first place to ensure the lasting impression (and last paragraph) rings-on with the reader.

    Nick wrote:
    “[If you would like more information about OSC’s work, let me know. Also, in the future, you may want to consider contacting OSC for comment so that you have fuller picture when writing about our work.]”

    The very fact they could not or would not answer the REAL questions as far as the actual investigation on “Veteran’s Deaths”, they completely circumnavigated the “subject matter” (Veteran Deaths), and then called to question Ben’s actual knowledge of what OSC actually does…and rather snidely, if I may add. There was no actual answer to why ‘Social Issues” seemingly take front stage while Veterans are already dead and pushing daisies up and Whistle Blowers are being weathered by the VA.

    Damage Control, nothing less. No real answer. A “real answer” would have given the actual number of VA Whistle Blowers that have come forward along with their “statistical number” of only giving you/us the 46 number “to date”. At least in my opinion, it was a rather nebulous reply and again, only Damage Control.

    The only “real answer” you received was one that tells you that your readership base indeed includes those that do NOT put Veterans first. That simple. But you already knew that.

    1. You are so on point! Only thing we can do or anything a whistleblower can do is blind copy any communications when reporting, so when you take them to court to file a Bivens action or Tort claim, you will make your case for “intent”. Nevertheless, requesting an ethics consult is futile because of the good ole networking of telephone communications that are undocumented between OSC and the agencies in government. The OSC should be contracted out to civilian law firms and any recoveries from disclosures from whistleblowers should fund their legal defense. This is because of OSC repeatedly claiming no jurisdiction.

      1. OSC has perfected “hiding behind the law” by convoluted interpretations of it.

    2. “Snidely” is a much softer description than I would have given his arrogant, snotty response.

      1. LOL. I thought the term “snidely” characterized Nick’s very last paragraph in that email to Ben because it closed the letter just shy of without actually calling Ben “ignorant to what they actually do”, but it was “implied”, and done so “snidely”. They were really QUICK to respond to negative publicity, but meanwhile, since the “Whistleblowers Protection Act” was signed by Pres. Obama in 2012, shy of THREE YEARS AGO, so it BEGS to be answered just WHY VA Whistleblowers are STILL being treated egregiously?
        How about actually enforcing the damn law? Or is this too much to ask of the very attorneys responsible for investigating these matters?

        Lastly, I have to ask yet AGAIN, where is VA Secretary McDonald these days? How about some real “sulfur and brimstone”, or also known as a “Hell-Storm”, of radical change within the VA that Sec. McDonald and the President have been granted power to perform?
        Still not seeing nor feeling that “Change I can believe in”!!!

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