Trust Me…I’m from the Federal Government

There is an old joke that goes, “Trust me…I’m from the government.” The line usually elicited a pained laugh from those who’ve heard it. But if you say that line within earshot of attorney Kevin E. Byrnes, you may end up getting a little bit more than a chuckle.

In September of 2000, Byrnes was employed as an Assistant US Attorney for the Central District of Illinois. But that tenure would come to an end on September 15th of that year in an action Byrnes cited as “unreasonable and discriminatory.”

This article doesn’t focus on the acts or actions that caused Mr. Byrnes’ termination, although it is a commonly-held truth that for a career civil servant to be terminated — especially at the federal government level — a serious infraction would have had to occur. Neither does it measure the level of animosity that existed between Byrnes and his superiors at the US Department of Justice (DoJ). Instead, this article focuses on how the federal government manipulates situations — and their agreements — to their advantage.

Mr. Byrnes appealed the DoJ’s termination to the Merit Systems Protection Board (MSPB) to no avail and a final judgment was issued June 4, 2002.

Still believing he had been aggrieved by his former employer — the US Justice Department (DoJ), Byrnes took the next step and filed suit in the US District Court for the District of Columbia alleging that both the MSPB and the DoJ executed an act of employment discrimination under Title VII and the Rehabilitation Act of 1973.

As is wont to happen in today’s “let’s make a deal” judicial climate, attorneys for Byrnes and the two defendant organizations entered into a settlement agreement in late May of 2003, thus ending the court action. The agreement stipulated that the government would identify and remove several documents pertaining to Byrnes’ termination from his personnel file

and, instead, issue replacement documents that indicated Byrnes’ departure was, in fact, a “voluntary resignation” rather than a “termination.”

The agreement also stipulated that the “adverse action” that had caused the initial 2002 decision by the MSPB would have “no force and effect.” But in September of 2003, the MSPB had yet to abide by the agreement, unpublishing the 2002 decision against Byrnes and making whole the agreement to which all parties had enjoined.

Again, taking the logical next step in the food chain of litigation, Byrnes filed a motion to compel the enforcement of the agreement by mandating the MSPB depublish the decision that initiated all of the legal action in the first place.

Stunningly, the Court issued a convoluted ruling in favor of the government; in favor of the MSPB and the DoJ, ruling that:

As is the case in the world of the courts, there is always another step to be taken when you lose and Byrnes took that step, filing suit against the MSPB yet again, this time claiming a violation of his rights under the Privacy Act.

The Privacy Act allows a person to enter into civil actions:

Byrnes claim was that the MSPB — and through it, the DoJ — continued to allow the publication of the decision that indicated he was “terminated” by “adverse action” without, at the very minimum, the inclusion of the subsequent history of the case, thereby creating a state of “inaccurate and incomplete facts.”

It is prudent to revisit the verbiage of the agreement here:

10. Whereas, pursuant to this Agreement, the terms of Plaintiff’s departure from the USAO-CDIL have been changed to a voluntarily [sic] resignation, and Plaintiff is now considered to have voluntarily resigned from the USAO-CDIL on September 15, 2000, the parties agree that the adverse action giving rise to Kevin E. Byrnes v. MSPB, Docket No. CH-0752–00–0880-I-1 has no force and effect.

While it all may seem cut and dry to the layman, in legalese even an agreement to do something as simple as allowing the record to reflect a resignation instead of a termination — which both parties did agree to — is not what it seems.

The Court ruled:

Simply put, even though the MSPB and the DoJ agreed to replace the official designation of Byrnes’ departure from the DoJ as a voluntary resignation instead of a termination, the court ruled that because the wording wasn’t pinpointed accurately in its legalese, the spirit of the agreement meant nothing.

The circumstances of Mr. Byrnes’ departure from the US Department of Justice aside, the disingenuousness of the attorneys for the MSPB and the DoJ is obvious and disturbing. Whether or not Mr. Byrnes deserved to be terminated for whatever reason is tantamount to irrelevant. It is the duplicitous and arrogant disingenuousness with which the MSPB and DoJ pursued their abdication of the agreement that should disturb every rational thinking American.

It brings to mind an experience I once had on Bourbon Street in New Orleans back in the 1980s.

I was approached by a street urchin local almost immediately upon making it to the street from my hotel. It was just after sunset and the street was thriving.

The street urchin said, “I’ll bet you five dollars I can tell you where you got those shoes.” Being from out-of-state by about a thousand miles I was sure in my response. “Sure, I’ll bet you. Where did I get my shoes?” I asked.

The street urchin put out his hand and said, “I didn’t bet you I could tell you where you bought those shoes. I bet you I could tell you where you got those shoes and you got the shoes on Bourbon Street in New Orleans. Now give me my five dollars.”

Five dollars lighter and forty years later, I can’t help but think that kid saw me coming from a thousand miles away, just like the lawyers for the MSPB and the DoJ saw Kevin Byrnes coming from down Pennsylvania Avenue.

Frank Salvato is the executive partner at The CompassPoint Group, LLC. He is the co-host of the Underground USA podcast as heard on iHeart Radio, Pandora, Spotify, Amazon Podcasts, and anywhere podcasts are heard. His writing has been recognized by the US House International Relations Committee and the Japan Center for Conflict Prevention. His analysis has been published by The American Enterprise Institute, The Washington Times, National File, and Accuracy in Media, and is nationally syndicated. Mr. Salvato appeared on The O’Reilly Factor on FOX News Channel and is the author of six monographs examining internal and external threats facing our country. He can be heard twice weekly on “The Captain’s America: Third Watch” radio program syndicated nationally on the Salem Broadcasting Network and Genesis Communications affiliate stations.



Frank Salvato is the executive partner at The CompassPoint Group, LLC, host of The Underground podcast, heard on iHeart Radio, Pandora, Spotify, Amazon and more

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Frank Salvato

Frank Salvato is the executive partner at The CompassPoint Group, LLC, host of The Underground podcast, heard on iHeart Radio, Pandora, Spotify, Amazon and more