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Every Friday on GovExec.com, Legal Briefs reviews cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.


Unlicensed Hire

Justice Department personnel records show that a woman hired to work on racial discrimination settlements between black farmers and the Agriculture Department lied about being a member of the California bar.

Margaret O'Shea, hired as a general attorney at the Justice Department from April 2002 to September 2002, worked on six cases involving claims worth as much as $4 million in the $650 million settlement, according to documents obtained by the Environmental Working Group, a public-interest advocacy organization.

The groundbreaking discrimination lawsuit, Pigford vs. Veneman, alleged that Agriculture denied black farmers loans because of race.

On a hiring form, O'Shea signed a statement claiming she was an active member of the California bar. She stated that her bar membership number was unavailable. An accompanying letter from US. Circuit Judge Myron H. Bright stated that O'Shea was a "dues-paying member of the State Bar of California."

The Environmental Working Group, along with the National Black Farmers Association, called for Justice officials to re-examine the cases on which O'Shea worked. They said that hiring an unlicensed attorney to work on claims involving racial discrimination "adds insult to injury."

Justice Department spokesman Charles Miller said the farmers, whose lawyers were contacted about O'Shea's involvement, have not asked for their cases to be reheard.

Justice has been criticized for opposing Agriculture's decision to pay the farmers in the 1999 settlement. According to the Environmental Working Group, Justice has spent 56,000 hours and $12 million challenging more than 600 payments awarded to black farmers.

"To uphold the integrity of the process, the farmers should be made known ... and their cases should be handled by someone who is licensed to practice law," said Arianne Callender, the Environmental Working Group's general counsel. "Attorneys have to remain ethical at all times, and [O'Shea] does not have the same ethical standards as a licensed attorney."

O'Shea, a 38-year-old University of Pennsylvania Law School graduate, was hired by the Monterey County, Calif., Public Defender's Office from August 2004 to late September 2004 and handled 86 cases in a three-week period. After her supervisors discovered she was not an accredited lawyer, they fired her. The cases she worked on will get another hearing.

O'Shea pleaded not guilty in December 2004 to grand theft for cashing paychecks on the premise that she was licensed to practice law in California. A hearing on the matter is scheduled for March 11.

O'Shea's attorney, Enda Brennan, declined to comment on the matter.

Whistleblower Reversal

Lawyers for the Health and Human Services Department reversed a position they held earlier which maintained that the 1989 Whistleblower Protection Act did not cover certain employees.

Jonathan M. Fishbein, a National Institutes of Health AIDS researcher, was told he was going to be fired for unsatisfactory performance on May 29, 2004. His appeals to the Merit Systems Protection Board allege that the dismissal notice was in retaliation for whistleblowing.

In November 2004, an MSPB administrative law judge rejected Fishbein's plea for whistleblower protection for lack of jurisdiction, but HHS now believes Fishbein is covered by the law.

"There is nothing in record indicating that there was ever any congressional intent to exclude petitioner from the protections of the WPA," wrote HHS lawyer William A. Biglow. "Significantly, the Board of Contract Appeals found that there was nothing in the legislative history to indicate that section 209(f) was meant to exclude appointees from anything more than hiring and compensation laws."

HHS argued in the past that because Fishbein was hired under a provision known as Title 42 209(f), he was not protected by civil service laws giving him the right to appeal. Title 42 allows NIH to pay scientists higher salaries than the normal federal payroll system would allow. There are more than 1,600 Title 42 workers at NIH.

Fishbein, a Johns Hopkins University School of Medicine graduate hired by NIH in 2003, disclosed that the agency failed to enforce rules regarding good clinical practices in AIDS drug trials underway in Uganda. He pointed to extensive standards violations by researchers and an attempted cover-up by NIH officials.

Jonathan M. Fishbein v. U.S. Department of Health and Human Services, Merit Systems Protection Board, DC-1221-04-0762-W-1, Jan. 31, 2005.