You are browsing the archive for 5 U.S.C. 1204.

Whistleblower Requests Investigation of Department of Justice Lawyers and Nominee for Federal Court

4:35 pm in Uncategorized by MSPB Watch

From a just-released press release:

Whistleblower Requests Investigation of Department of Justice Lawyers and Nominee for Federal Court

Actions by Justice Department lawyers raise concerns about possible cover-up involving the U.S. Merit Systems Protection Board

FOR IMMEDIATE RELEASE

PRLog (Press Release)Jan 31, 2012 -

WASHINGTON — Joseph Carson PE, multiple-time prevailing federal whistleblower and nuclear safety engineer, called for an investigation by the Department of Justice’s Office of Professional Responsibility (OPR) into the conduct of attorneys from the office of the U.S. Attorney for the District of Columbia. The basis for the request stems from a 2007 lawsuit against the U.S. Merit Systems Protection Board (MSPB). The attorneys, Sherease Louis, Rudolph Contreras, and then-U.S. Attorney Jeffrey A. Taylor, argued on behalf of their client, the MSPB, that MSPB’s formal interpretation of a critical federal civil service law had been validated, several times since 1978, when Congress reauthorized MSPB.   However, MSPB’s response to a recent Freedom of Information Act (FOIA) request reveal that no such formal interpretation exists.

One of the attorneys named in the request – Rudolph Contreras – has been nominated for a federal district court judgeship in the District of Columbia court – the very court he apparently made a false argument. The Senate Judiciary Committee approved his nomination with an unopposed voice vote on November 3, 2011. A full Senate vote is due at any time.

The 2007 lawsuit began when Carson sued the MSPB to compel it to comply with its mandate under 5 U.S.C. 1204(a)(3): to “report to the President and to the Congress whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.” Carson contends that the MSPB, in its 34 year history, has never complied with this duty.

“If these allegations are true, it means that the Justice Department colluded with MSPB to cover up the fact that MSPB is in violation of its most critical mandate: to be the guardian of the civil service system by shining a bright light on abuses in federal agencies,” Carson said. “Now, we come to find out that Mr. Contreras is mere days away from being confirmed to the D.C. district court. His nomination should be put on hold until the Senate can get to the bottom of this situation.  This is particularly so as the allegations involve a critical law – perhaps THE critical law – for Congress’s ability to do oversight of the integrity of the entire federal civil service.”

A copy of the request to the Office of Professional Responsibility, as well as letters to the appropriate Senate offices, are available at www.mspbwatch.net.

 

New FOIA request: any MSPB “special studies” of OSC under Scott Bloch and beyond

5:08 pm in Uncategorized by MSPB Watch

The following FOIA request has been made to the Merit Systems Protection Board:

I respectfully request any documents related to 5 U.S.C. 1204(a)(3) regarding any studies, and/or inquiries, discussions, or communications as to whether to conduct such studies, related to the tenure and administration of Scott Bloch at the U.S. Office of Special Counsel for the time period of 2003-2008, as well as the period following his ouster (2008-2011).

It’s common knowledge that Bloch allegedly retaliated against his own staff. If so — if he created a hostile environment inside OSC where fear, favor, reprisal, and/or intimidation ran rampant, then the public interest in a civil service free of prohibited personnel practices was/is likely not adequately protected. This is all the more important because OSC is supposed to protect the rest of the civil service from such harms, so a broken culture there has reverberating effects elsewhere.

My request seeks to find out if MSPB issued, or contemplated issuing, any studies, per its statutory authority, to find out if the public interest was harmed.

Did a nominee for federal judge mislead the court?

12:56 am in Uncategorized by MSPB Watch

That’s what a recent FOIA determination might have revealed.

From my January 19 diary:

On January 18, Chairman Grundmann of the Merit Systems Protection Board granted my appeal in a FOIA request that asked for interpretations pertaining to 5 U.S.C. 1204(a)(3). That statute governs the MSPB’s duty to report to Congress and the President “whether the public interest in a civil service free of prohibited personnel practices is adequately protected.” The FOIA request asked for any interpretations or other documents interpreting that phrase.

I made that request because Justice Department attorneys referred to such an interpretation in a 2007 FOIA lawsuit brought against MSPB by a third party (Joe Carson, a fellow whistleblower).

Now, we find out, there was no such interpretation, at least not one that can be made public.

Here’s the FOIA appeal grant: http://mspbwatch.files.wordpress.com/2012/01/mspb-foia-appeal-granted-no-2012-01-003.pdf

This raises the question: why are DOJ lawyers making legal arguments based on documents that either don’t exist or are secret?

It should be noted that one of the lawyers who signed off on the brief in question has been nominated for a federal judgeship by President Obama in July, 2011.

Further research reveals that the nominee – Rudolph Contreras, Chief of the Civil Division of the U.S. Attorney’s office for the District of Columbia — received what appears to be a unanimous vote out of the Senate Judiciary Committee on November 3, 2011, and a Senate floor vote would be the next step, leading to lifetime tenure on the bench. Federal judges in D.C. deal with a lot of FOIA and other administrative issues (similar to the ones raised by the 2007 lawsuit in question), and Mr. Contreras’ nomination was heralded in part because of his expertise in FOIA and administrative matters. Finally, in response to a question by Senator Chuck Grassley about his interpretive method, Contreras stated that 

If the plain language is unclear, I would deferentially look at the relevant administrative agency’s reasonable interpretation of the provision.

The concern raised by last week’s FOIA determination is that Contreras implied to the Court that there was an agency interpretation when, in fact, there was none.

Contreras has been made aware of these concerns and has been asked to respond.

Whatever happens from here on out, this should be looked into before a floor vote takes place.

 

Update: The Senate placed Contreras’ nomination in the Executive Calendar for January 23, 2012. Unsure if this means a vote will take place tomorrow, but is likely soon: http://www.senate.gov/legislative/LIS/executive_calendar/2012/01_23_2012.pdf

MSPB FOIA documents cast doubt on veracity of legal argument by Justice Department lawyers and current judicial nominee

10:55 pm in Uncategorized by MSPB Watch

On January 18, Chairman Grundmann of the Merit Systems Protection Board granted my appeal in a FOIA request that asked for interpretations pertaining to 5 U.S.C. 1204(a)(3). That statute governs the MSPB’s duty to report to Congress and the President “whether the public interest in a civil service free of prohibited personnel practices is adequately protected.” The FOIA request asked for any interpretations or other documents interpreting that phrase.

I made that request because Justice Department attorneys referred to such an interpretation in a 2007 FOIA lawsuit brought against MSPB by a third party (Joe Carson, a fellow whistleblower).

Now, we find out, there was no such interpretation, at least not one that can be made public.

Here’s the FOIA appeal grant: http://mspbwatch.files.wordpress.com/2012/01/mspb-foia-appeal-granted-no-2012-01-003.pdf

This raises the question: why are DOJ lawyers making legal arguments based on documents that either don’t exist or are secret?

It should be noted that one of the lawyers who signed off on the brief in question has been nominated for a federal judgeship by President Obama in July, 2011.

P.S. the 1980 MSPB annual report can be found here: http://mspbwatch.files.wordpress.com/2011/11/mspb-annual-report-1980.pdf

Background:

 

Letter to Mark A. Robbins, GOP Nominee for MSPB Member

9:20 am in Uncategorized by MSPB Watch

December 21, 2011

Mr. Mark A. Robbins, Esq.
Executive Director (acting)
Election Assistance Commission
1201 New York Avenue, N.W.
Suite 300
Washington, D.C. 20005
202-566-3100

Subject: The Future of the Merit Systems Protection Board

Dear Mr. Robbins,

Congratulations on your nomination to the Merit Systems Protection Board (MSPB).

We are current and former federal employees who have utilized the services of the MSPB and/or the U.S. Office of Special Counsel (OSC).  In our experience, these agencies have contributed to a much more diminished civil service than the one envisioned during their creation by the Civil Service Reform Act of 1978.[1]

We contend that MSPB has been out of compliance with its positive statutory duty to conduct “special studies” focusing on whether federal employees are adequately protected from prohibited personnel practices (PPP’s), including the whistleblower reprisal type PPP, per 5 U.S.C. § 1204(a)(3). This issue has given rise to numerous suits and FOIA requests, none of which has dispelled these concerns.[2]

We seek your input, either before, during, or after your confirmation hearings (pursuant to questions for the record), to address the special studies concern as well as other pressing matters, such as:

The disparity between evidentiary standards for granting stays (“preliminary relief” is a better description) when sought by OSC and when sought by employees;

The lack of an Inspector General at MSPB;

How the “election of remedies” of 5 U.S.C. 7121(g), by including filing a complaint with OSC, creates a perverse incentive for federal labor unions to want OSC to be ineffective;

Requiring OSC to file a 5 U.S.C. § 1214(e) report with the Board to establish jurisdiction for corrective action; and

Ethical obligations for MSPB attorneys, including any attorney Board Members, when MSPB fails to comply with the law.

You are not yet employed by MSPB, therefore it is not yet your client, and you are not precluded by attorney-client ethics from speaking frankly about its interpretation of, and compliance with, 5 U.S.C. § 1204(a)(3), as well as the issues listed above.

We look forward to your views on these pressing matters.

[1] See www.broken-covenant.org and www.mspbwatch.net for more information.
[2] A current FOIA appeal is pending in front of Chairman Grundmann, seeking any agency interpretations ostensibly relied upon by the MSPB in court to justify MSPB’s position regarding 5 U.S.C. § 1204(a)(3). See www.mspbwatch.net/foia for more information.

Letter to Mark Robbins

 

Appeal of an MSPB FOIA Determination

8:09 pm in Uncategorized by MSPB Watch

December 18, 2011

FOIA APPEAL

FOIA Tracking No. 2011-12-002

Chairman Susan Tsui Grundmann
U.S. Merit Systems Protection Board
1615 M Street, NW
5th Floor
Washington, DC 20419

Dear Chairman Grundmann,

This is an appeal of the Merit Systems Protection Board’s (MSPB) determination, dated December 9, 2011,[1] into my Freedom of Information Act (“FOIA”) request dated December 6, 2011.[2]

Background

In that request, I requested the following information:

Legal opinions,
Memoranda,
Interpretive rules,
Statements of policy,
Administrative staff manuals and instructions to staff that affect a member of the public,
Rules of agency organization, procedure, or practice,

Or

Any other documents

Related to any interpretation of 5 U.S.C. 1204(a)(3) regarding whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.

This request does not request or refer to any currently publicly available special studies relating to the civil service and to other merit systems in the executive branch.

The MSPB determination repeated most of the request[3] and stated, in relevant part:

Your request has been processed in accordance with the Merit Systems Protection Board’s (MSPB) regulations at 5 CFR Part 1204 that implements the FOIA.

We have conducted a thorough search of our records and found records that are responsive to your request. We are releasing to you the enclosed copies of the MSPB reports in their entirety.

Those reports are:

Prohibited Personnel Practices – A Study Retrospective (June 2010)
Prohibited Personnel Practices: Employee Perceptions (Aug. 2011)[4]

Grounds for Appeal

Denial of Access to Agency Records

The MSPB’s determination constitutes a denial of access to agency records because the MSPB, in litigation, relied on documents referred to in this request but have not submitted them to requester.[5] In 2007, federal whistleblower and Department of Energy Nuclear Safety Engineer Joe Carson sued the MSPB in federal court, seeking a writ of mandamus to compel the MSPB to comply its duty in 5 U.S.C. § 1204(a)(3) to “report to the President and to the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.” [6]

The MSPB, as represented by Department of Justice lawyers, responded by pointing to a multitude of MSPB studies and alleged that it has complied with this duty, stating:

Each special study and the resulting report addresses an important aspect of the civil service, and provides some information about whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.  The federal government is a large organization and addressing the health of the merit systems is a complex undertaking. By conducting detailed studies of particular aspects of the merit systems and reporting the results of those studies to the President and to Congress, the Board is best able to use its necessarily limited resources to serve the public interest in a prohibited personnel practice free federal government. Simply put, the Board’s special studies and reports, which address comprehensive aspects of the federal civil service, individually and collectively meet the requirements of 5 U.S.C. § 1204(a)(3).[7]

Moreover, and more to the point, MSPB argued the following point:

Finally, at no point has Congress amended subsection 5 U.S.C.§ 1204(a)(3) to redirect the Board’s actions under the statute, despite repeated reauthorizations. See Pub. L. 103-424, § 9, 108 Stat. 4361 (reauthorizing the Board for fiscal years 1993 through 1997); Pub. L. 104-208 § 641, 110 Stat. 3009 365 (reauthorizing the Board for fiscal years 1998 through 2002); Pub L. 107-304, § 2(a), 116 Stat. 2364 (reauthorizing the Board for fiscal years 1993 through 2007). The Supreme Court has held that “[w]hen Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the ‘congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.’” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, (1974)); see Doris Day Animal League v. Veneman, 315 F.3d 297, 300 (D.C. Cir. 2003).[8]

(Emphasis added.)[9] It is precisely the “agency interpretation” authorizing the “Board’s actions” referred to in the preceding paragraph that this FOIA request seeks.  However, the MSPB’s determination contains nothing of the sort.

First, an interpretation by an agency assumes some sort of statement that the agency interprets a statute or regulation a certain way.  Under the Administrative Procedure Act (APA),[10] which governs MSPB, this takes the shape of a “rule”:

”rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefore or of valuations, costs, or accounting, or practices bearing on any of the foregoing[.]

Further, under the APA, all rules promulgated by an applicable agency must be published in the Federal Register, except for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”[11]

Second, the Freedom of Information Act requires each agency to “make available to the public information as follows:”

(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency;[12]

and to “make available for public inspection and copying—“

(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register[.][13]

The MSPB’s determination contains no such requested interpretations or statements of policy, nor are they published in the Federal Register.

Finally, despite the MSPB’s official position the 2007 litigation cited above, MSPB Chairman Susan Tsui Grundmann stated the following in her October 2009 Senate confirmation hearing:

The Board’s statutory studies function is also a significant part of the agency’s responsibility. Study reports issued by the Merit Systems Protection Board are highly regarded in the Federal human resources management community and by the stakeholders of the Board. If confirmed, I plan to work with my fellow board members as well as the Office of Policy and Evaluation to continue this record of excellence. In particular, I pledge to report to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is adequately protected.[14]

Requester respectfully submits to the MSPB that this appeal poses an opportunity to fulfill this pledge, by releasing any agency interpretations that interpret 5 U.S.C. § 1204(a)(3) so they may be evaluated by the public and challenged if contrary to Congress’ intent.

Alternatively, MSPB’s Determination Constitutes a Failure to Act

In the alternative, if such agency interpretations do not exist, then MSPB’s response constitutes a failure to act.[15] The FOIA request requested documents responsive to the polar question posed by Congress the Civil Service Reform Act of 1978:[16] “whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.”[17] Such a question, by its phrasing, requires a “yes” or “no” answer.[18]

Anticipating that MSPB might answer this request by forwarding copies of its currently-available special studies, the request noted that it was “not request[ing] or refer[ing] to any currently publicly available special studies relating to the civil service and to other merit systems in the executive branch.”  Such studies, including the two included in MSPB’s response, are not responsive and do not answer Congress’ polar question in 5 U.S.C. § 1204(a)(3).[19] As such, assuming no responsive interpretations exist, the correct response should have been “no responsive records exist.”

Adequacy of Search

Finally, the MSPB’s determination noted that  “we have conducted a thorough search of our records and found records that are responsive to your request.” However, an open question exists as to whether such a search included the Office of General Counsel, or any other office that might contain a legal interpretation referred to above.

Appendices

Appendix A:   FOIA Request No. 2011-12-002, dated December 6, 2011
Appendix B:   MSPB Determination to FOIA Request No. 2011-12-002, dated December 9, 2011
Appendix C:   Complaint or Petition for Writ of Mandamus, Joseph Carson v. U.S. Merit Systems Protection Board, Case 1:07-cv-00445-PLF (D.D.C. 2007)
Appendix D:   Exhibits to Appendix C
Appendix E:    Respondent’s Response to Show Cause Order and Motion to Dismiss Petition for Writ of Mandamus, Carson v. MSPB, Case 1:07-cv-00445-PLF (D.D.C. 2007)
Appendix F:    Carson v. MSPB, 2008 WL 441509 (D.D.C. Feb. 19, 2008)
Appendix G:   U.S. Senate Committee on Homeland Security and Governmental Affairs Hearing on the Confirmation On the Nomination of Susan Tsui Grundmann to be a Member and Chairman of the U. S. Merit Systems Protection Board, Statement for the Record (Oct. 20, 2009)


[1] Attached as Appendix B.
[2] Attached as Appendix A.  This request was made pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) and 5 C.F.R. § 1204.12(8), as a representative of the news media. The request and all related documents are, or will be, made available at www.mspbwatch.net, an accountability blog maintained by requester that is “intended to ensure that MSPB, the U.S. Merit Systems Protection Board, adheres to its mission of ‘protect[ing] Federal merit systems and the rights of individuals within those systems.’”
[3] The omitted portion is as follows:

This request does not request or refer to any currently publicly available special studies relating to the civil service and to other merit systems in the executive branch.

[4] I contend that such reports constitute “currently publicly available special studies relating to the civil service and to other merit systems in the executive branch,” as required under 5 U.S.C. § 1204(a)(3). They are also available at http://www.mspb.gov/studies/index.htm.
[5] See 5 C.F.R. § 1204.21(a)(2). Alternatively, if no responsive interpretations exist, the correct determination should have been “no responsive records exist” – see page 5 below.
[6] See Complaint or Petition for Writ of Mandamus, Joseph Carson v. U.S. Merit Systems Protection Board, Case 1:07-cv-00445-PLF (D.D.C. 2007), attached as Appendix C with exhibits as Appendix D.
[7] Respondent’s Response to Show Cause Order and Motion to Dismiss Petition for Writ of Mandamus, Carson v. MSPB, Case 1:07-cv-00445-PLF (D.D.C. 2007), attached as Appendix E.
[8] See id.
[9] Unfortunately, the court did not consider the merits of this question as it found that it did not have jurisdiction to issue the writ of mandamus. Carson v. MSPB, 2008 WL 441509 (D.D.C. Feb. 19, 2008), attached as Appendix F. Carson told requester that three other courts have reached the same conclusion.
[10] See 5 U.S.C. § 551 et seq.
[11] See 5 U.S.C. § 553(b).
[12] See 5 U.S.C. § 552(a)(1)(D).
[13] See 5 U.S.C. § 552(a)(2)(B).
[14] U.S. Senate Committee on Homeland Security and Governmental Affairs Hearing on the Confirmation On the Nomination of Susan Tsui Grundmann to be a Member and Chairman of the U. S. Merit Systems Protection Board, Statement for the Record (Oct. 20, 2009), attached as Appendix G (emphasis added).
[15] See 5 C.F.R. § 1204(a).
[16] October 13, 1978, Pub.L. 95-454, 92 Stat. 1111.
[17] Currently codified in 5 U.S.C. § 1204(a)(3).
[18] Also known as a “polar question.”
[19] The two studies included in MSPB’s determination are symptomatic of the problem giving rise to the FOIA request: MSPB comes close to saying “no, the public interest is not adequately protected,” but it has never done so.  Requester, and the public at large, are entitled to an answer to the specific question posed by Congress.

A review of these studies is instructive:

Prohibited Personnel Practices – A Study Retrospective (June 2010):

“MSPB has conducted extensive research to examine the occurrence of prohibited personnel practices in the Federal Government, as well as adherence to their complement, the merit system principles. . . . [T]he Federal Government still has work to do to ensure a workplace free of prohibited personnel practices.” (Cover letter page);
“One of the statutory missions of the U. S. Merit Systems Protection Board (MSPB) is to study Federal merit systems to determine if the Federal workforce is being managed in adherence with the merit system principles and is free from prohibited personnel practices (PPPs).” (Page 1);
“Over the past 30 years, MSPB has conducted extensive research to examine the occurrence of prohibited personnel practices in the Federal Government, as well as adherence to their complement, the merit system principles.” (Page 2);
“For fiscal year 2010, MSPB is launching a multi-pronged research effort to examine the prevalence of prohibited personnel practices in the Federal Government.” (Page 2);
“Nevertheless, the ideals of a fully representative workforce and fair treatment of all employees have not been wholly realized.  Although a statistical analysis of the Federal workforce confirms that diversity has increased, that analysis also shows that progress has been uneven.” (Page 6);
“[W]ork remains to be done in creating a workplace where employees can raise concerns about organizational priorities, work processes, and personnel policies and decisions without fear of retaliation, and where managers can respond to such concerns openly and constructively.” (Page 16);
“These trends are good news, though in that report we acknowledge that the Federal Government still has work to do to ensure a workplace free of prohibited personnel practices.  Employees continue to express concerns about how agencies fill jobs and distribute awards.  While the trust between employees and supervisors has improved over time, it remains an area to be strengthened.” (Page 25) (emphasis added).

Prohibited Personnel Practices: Employee Perceptions (Aug. 2011):

“The purpose of this report is to discuss the extent to which Federal employees perceive that PPPs are occurring and to educate readers on the meaning and importance of the PPPs.” (Page iii);
PPPs in the Federal Government are serious, but they also appear to be increasingly uncommon.” (Page iii);
“The primary purpose of this report is to provide Congress and the President with important information about the health of the Federal merit systems—in this case, the declining rate of perceptions that a PPP has been committed in the Federal service.” (Page 1) (emphasis added).

Appeal (with exhibits): MSPB FOIA Appeal No 2011-012-002

Background:

 

Four Nuclear Regulatory Commissioners blow whistles to the White House about NRC Chair’s abusive, “erratic” behavior

3:07 pm in Uncategorized by MSPB Watch

An excerpt from the New York Times:

Another chapter is out in the continuing and very public story of conflict within the Nuclear Regulatory Commission, which has now taken the form of a battle of snail mail.

A letter addressed to the White House chief of staff and signed by four of the five commission members was circulated Friday criticizing the fifth member, Gregory B. Jaczko, its chairman, and expressing “grave concerns” that his deficiencies as a leader could compromise nuclear safety. It was dated Oct. 13. A similar letter was sent directly to Dr. Jaczko.

And this week, a rebuttal letter from Dr. Jaczko, also addressed to William M. Daley, President Obama’s chief of staff, said the other four members were improperly trying to involve themselves in management affairs, which in a reorganization of the commission in 1980 became the chairman’s sole responsibility. Dated Dec. 7, the letter said that the rest of the commission had “taken an approach that is not as protective of public health and safety as I believe is necessary.”

For relevant context on how such breakdowns in the civil service occur, see this letter from Joe Carson, Nuclear Safety Engineer at the Department of Energy:

December 10, 2011

Chairman Jaczko
Commissioner Svinicki
Commissioner Apostolakis
Commissioner Magwood
Commissioner Ostendorff

Nuclear Regulatory Commission

Washington, DC 20555

Subject: The “broken covenant” of Civil Service Reform Act of 1978; significant and persistent deficiencies in scope and implementation of engineering ethics; and your mission and your disputes about your various authority in executing it

Dear NRC Commissioners,

I am writing because of a NY Times story, “New Discord at NRC,” today about your dispute, which links to your respective letters to the White House.1 I have already established that you cannot demonstrate objective compliance with your fundamental duty to NRC employees – to ensure they are adequately protected from reprisal, discrimination, personal favoritism, or other types of “prohibited personnel practices (PPPs),” so they can perform their duties in a trustworthy fashion, per the merit system principles. How else can you possibly claim to be complying with your duty to “prevent PPPs” at 5 U.S.C. section 2302(c), if you cannot do this?

But I do not blame you, because you cannot do this by yourself. Congress, per the Civil Service Reform Act of 1978, assigned the duty to “protect (NRC) employees from PPPs” to the Office of Special Counsel (OSC), per (what is now) 5 U.S.C. section 1214, and assigned the Merit Systems Protection Board (MSPB) the duty to conduct oversight of OSC and NRC in interpreting and applying their respective duties to determine whether NRC employees are adequately protected from PPPs, per 5 U.S.C. section 1204(a)(3). But OSC interpreted away, at its creation, its essential duty to “protect” by claiming it never has to tell anyone when it determines a PPP has occurred, and MSPB enabled OSC by claiming it never has to conduct oversight of OSC or NRC to determine whether NRC employees are adequately protected from PPPs. This is detailed, in boring, nuclear safety grade, detail at www.broken-covenant.org and http://mspbwatch.wordpress.com/.

So, maybe Chairman Jaczko took a page from OSC’s and MSPB’s playbooks in claiming he does not have to tell other NRC Commissioners what they believe they need to know to comply with their statutory duties for nuclear and public health and safety.

The NRC Inspector General report about Chairman Jaczko’s actions about terminating the NRC’s review of DOE’s license application for Yucca Mountain determined he did not break any laws.2 But it was silent to the most relevant question – did he abuse his authority? “Abuse of authority” is a legal phrase with defined meaning in federal civil service law – it is not just a subjective “eye of beholder” combination of sounds.3 Perhaps the NRC IG feared retribution to make such a finding, so he was silent to it.

As I understand rule of law in USA, the Office of Legal Counsel (OLC) of the Department of Justice should be the final referee in Executive Branch about your respective authorities. I also understand you have the authority to task OLC to issue its opinion on your concerns.4

I played a significant role in the American Nuclear Society (ANS) issuing a new code of ethics about 7 years ago.5 I regret it, it is nothing but worthless eyewash in practice – ANS has yet to ever investigate a member for violating it or taking any action to uphold it when an ANS member claims to have been so foolhardy to put it ahead of their economic self-interest and to be suffering employer retribution for it, even when legally established.

The NRC Inspector General found former NRC Commissioner Merrifield violated some conflict of interest requirements of the federal civil service. This was publicized in the Washington Post.6 In doing so, he also violated aspects of the ANS Code of Ethics. I brought this to the appropriate attention of ANS leadership, the 10 or so former NRC Commissioners who belong to ANS, and others. Everyone stuck their head in the sand and pointed me to someone else, demonstrating the “broken honor code” implementation basis of engineering ethics.7

Commissioner Ostendorff – you knew me in Navy Nuclear Power School. When Admiral Rickover interviewed me, he asked me why I wanted to be in his program and I told him I wanted to be a better engineer. Be careful what you ask for, I suppose, because my being a “better engineer” includes the unpopular assignment to call out my profession about the significant and persistent deficiencies in its code of ethics – which forms an essential part of the engineering, as any other, profession.

Commissioner Magwood – you have known me a bit via our common membership in ANS and common employment in DOE.

Chairman Jaczko – we met about my concerns as a Department of Energy whistleblower when you were on Senator Reid’s staff.

Everyone in nuclear profession would be better served by clarity about your respective roles – as applied in specific instances – not just in theory. Everyone in federal civil service would be better served by clarity about the respective responsibilities of agency heads, the Special Counsel of the Office of Special Counsel, and Members of the Merit Systems Protection Board for ensuring members of federal civil service are adequately protected from PPPs. Everyone on planet earth in 2011 would be better served if the members and leaders of engineering profession would find the moral courage to acknowledge and address the significant and persistent deficiencies in the scope and implementation of engineering ethics.

You have sworn duties for a reason – and not just to burnish your resumes for your next career move – and I am bringing serious, well evidenced, far-reaching concerns to your attention and they are certainly relevant to nuclear safety. Please act in accordance with the merit system principles, your oaths of allegiance, and standing as nuclear professionals, in considering them, because you do have the influence and/or authority to substantiate or dispel them.

Respectfully,

Joe Carson, PE

Copy: Relevant Stakeholders in Government, media, and elsewhere

1. www.nytimes.com/2011/12/10/us/new-discord-at-nuclear-regulatory-commission.html?scp=1&sq=nrc&st=cse

2. See http://republicans.energycommerce.house.gov/Media/file/Hearings/Environment/061411/IGREPORT.PDF

3. See 5 U.S.C. sections 1213(a)(1)(B), 2301(b)(9), and 2302(b)(8)

4. See 28 U.S.C. sections 510-512, 28 C.F.R. section 0.25, and www.justice.gov/olc

5. See www.new.ans.org/about/coe/

6. See www.pogo.org and perform a search on “merrifield” to locate the NRC IG report

7. See http://srhrl.aaas.org/newsletter/per/archives/per43.pdf for a short article on the broken state of engineering ethics

 

New FOIA litigation in progress, aimed at clarifying ethical issues at MSPB

6:16 pm in Uncategorized by MSPB Watch

Back in August, a suit was filed (with exhibits) by [8-time prevailing whistleblower and federal nuclear safety engineer] Joe Carson against MSPB in federal district court, over MSPB’s refusal to comply with a FOIA request. In his request, reprinted below, Carson raises worthy questions regarding the ethical duties of the MSPB chair, currently occupied by Susan Tsui Grundmann. Take a look.

*****

Freedom of Information Act (FOIA) REQUEST

May 28, 2011
Mr. Bernard Parker, FOIA Officer
U.S. Merit Systems Protection Board
1615 M Street NW
Washington, DC 20419

fax at (202) 653-7130 <FOIAHQ@mspb.gov> <www.mspb.gov>

Subject: New FOIA request based on Chairman Grundmann’s May 24, 2011 denial of my FOIA appeal in FOIA no. CB11-171

Dear Mr. Parker,

As MSPB leadership knows, I contend there is a 32 year-long “broken covenant” by Civil Service Reform Act of 1978 (CSRA). I contend that the government (i.e. Courts, Congress, the Government Accountability Office (GAO), the President, the Office of Special Counsel (OSC), the Merit Systems Protection Board (MSPB), and agency heads) have failed to ensure federal employees are adequately protected from reprisal and other types of prohibited personnel practices (PPPs) as they do their duties in a trustworthy fashion, per the merit system principles - the fundamental objective of the CSRA.

My contentions are detailed at <www.broken-covenant.org>. I contend that thousands of loyal patriotic federal employees, foolhardy enough to put duty to the Constitution and the common good before their personal economies were unlawfully betrayed for doing so since 1979. I contend America is much diminished and more threatened as a result. Furthermore, I contend that if my concerns are substantiated at the Office of Legal Counsel of the Department of Justice, it is GOOD NEWS for America in that: 1) a previously unidentified significant causal factor to much which has befallen and besets America has been exposed, and 2) it can readily be corrected.

If my contentions are substantiated, then the Merit Systems Protection Board – the 3 person Board – for past 32 years, its lawyer members and the lawyers in its Office of General Counsel and Office of Policy are, in my opinion, most responsible. Only MSPB has the positive, nondiscretionary, statutory duty to conduct oversight, via its special studies function at 5 U.S.C. section 1204(a)(3), of the Office of Special Counsel’s interpretation of and compliance with its nondiscretionary statutory duties to protect federal employees from PPPs, most specifically its duty to report its determinations of PPPs at 5 U.S.C. section 1214(e), and agency heads interpretation of and compliance with their nondiscretionary statutory duties to prevent PPPs, per 5 U.S.C. section 2302(c).

I am a licensed professional engineer (PE) employed in the Department of Energy as a nuclear safety engineer. I was so foolhardy as to put my positive legal and professional duty to be a “mandated reporter,” when necessary, to protect others related to my professional duties for their health and safety, regardless of possible job/career retribution. PE’s are “mandated reporters” in such circumstances, I acted consistent with that duty. My actions played a positive, perhaps significant, role in the passage of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) of 2000, by which over 65,000 diseased, disabled, or prematurely deceased Department of Energy contractor workers (or their survivors) have received over 7 billion dollars in compensation. So, as I now see it, I have done my positive legal and professional duty, as great personal and professional cost, as a licensed professional employed by a government agency because other licensed professionals employed by a government agency – attorneys who served on the 3 person Board during past 32 years – betrayed their duty to enforce the laws entrusted to them, particularly section 1204(a)(3).

Why has this gone on for 32 years? As I understand Chairman Grundmann’s reasoning in denying my FOIA appeal, she is really not the Chair of MSPB, with a positive legal duty to ensure MSPB is properly interpreting and complying with its non-adjudicatory statutory duties to protect the Merit Systems in the Executive Branch from PPPs – and to “blow whistles” as a “mandated reporter,” if it is not. Instead, she has an attorney-client relationship MSPB, her government employer. Because MSPB is her client, she must as a licensed attorney – what she was before becoming Chair of MSPB and what she will continue to be when her term at MSPB ends – hold paramount MSPB’s interests – not those of the federal civil service when the two come into conflict. Therefore she is a “mandated NON-reporter” about MSPB’s failures or possible failures to properly interpret and comply with its nondiscretionary duties regarding conducting special studies and oversight of Office of Personnel Management regulations.

Additionally, Ms. Grundmann has a background as a lawyer employed by federal employee unions, so she had an attorney-client relationship with them. In my opinion, federal employee unions have devolved to become low-level protection rackets, which use fear of PPPs to sell union memberships at about $400 -$500/year to federal employees. Federal employee unions, in my close observation and experience, benefit from the “broken covenant” of the Civil Service Reform Act of 1978 – they do NOT want federal employees to be adequately protected from PPPs by agency heads and OSC, because if they were, then they would be even less likely to voluntarily pay union dues. Federal employee unions want status quo – “OSC is the last place an employee alleging a PPP should go” – to continue because it helps sell union memberships.

In fact, federal employee unions were the chief advocate of a 1994 law that put severe restrictions on federal employees represented by federal employee unions (i.e. their members and prospective members, only about 20% of federal employees represented by federal employee unions actually pay their dues), seeking protection from PPPs at OSC, per 5 U.S.C. section 7121(g). They did this to make their remedy for PPPs – binding arbitration – more exclusive. Why? To help sell union memberships, to pay the exorbitant salaries of their officers and their employed attorneys.

So, federal employee unions and their lawyers want and benefit from a broken, lawbreaking fraud of federal law enforcement agency at OSC – one that is “the last place a federal employee alleging a PPP should go,” and lawbreaking enabler of OSC’s fraud at MSPB.

To clarify my understanding of Ms. Grundmann’s ethical obligations as a licensed attorney who is Chair of MSPB and who was previously employed by Federal employee unions, I submit a FOIA request for any responsive records for the following:

  1. -Any records relevant to Ms. Grundmann’s duties to be a “mandated reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years.
  2. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years.
  3. -Any records relevant to Ms. Grundmann’s duties to be a “mandated reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years.
  4. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years.
  5. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman MSPB if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years, because she was previously employed by federal employee unions, which possibly benefitted from the government lawbreaking, because fear of PPPs helps sell union memberships.
  6. -Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman MSPB if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years, because she was previously employed by federal employee unions, who benefitted from the government lawbreaking, because a broken, lawbreaking fraud of an OSC – “the last place a government employee alleging a PPP should go” – and a lawbreaking MSPB that enables it, helps sell federal employee union memberships.
  7. -Any records related to any evaluation MSPB has conducted of its interpretation of and compliance with its non-discretionary statutory duties at 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f).
  8. -Any records related to any consideration MSPB has made of telling the President, Congress or anyone else that its interpretations of and compliance with 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f) during past 32 years is suspect.
  9. -Any records related to any consideration MSPB has made of seeking interpretations from the Office of Legal Counsel of the Department of Justice of its interpretations of 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f) during past 32 years.
  10. -Any records related to MSPB’s compliance with its nondiscretionary statutory duty to conduct reviews of OPM rules and regulations for possible PPP’s, per 5 U.S.C. sections 1204(a)(4) and/or (f)(1)(A), on its own motion.
  11. -Any records of any written complaints received from the Office of Special Counsel (OSC), requesting such a review, per section 1204(f)(1)(c),
  12. -Any records of any “special studies” conducted by MSPB, per sections 1204(a)(3) and (e)(3), that considered MSPB’s and OSC’s compliance with their positive, nondiscretionary, statutory duties to proactively review any OPM rule or regulation for possible PPP’s.

I will pay up to $100 for the records I seek.

Respectfully,

Joseph Carson, PE

*****

This suit will be tracked at http://mspbwatch.wordpress.com/litigation/

For more information, see www.broken-covenant.org and please sign a related White House petition here.

How did Carson v. OSC arrive on the hallowed steps of the Supreme Court?

9:31 pm in Uncategorized by MSPB Watch

Act I

Joe Carson filed complaints for “prohibited activity” against his employer, the Department of Energy, with the Office of Special Counsel. OSC made a “jurisdictional investigation” of his complaints and determined that they were outside of its enforcement jurisdiction.

Given that:

  1. –OSC is both an investigator and a prosecutor (i.e. both cop and district attorney);
  2. –OSC has no Inspector General;
  3. –MSPB has no Inspector General;
  4. –MSPB and Federal Circuit can curb OSC’s prosecutorial excesses, but no one (except for Congress and MSPB) can oversee OSC’s dereliction of its investigatory duties;
  5. –OSC has not, in 30+ years, ever made formal report of a determination per 5 U.S.C. §1214(e) (generally, that “there is reasonable grounds/cause to believe” that a violation of law, rule or regulation has occurred”)–not in about 50,000 investigations into complaints alleging about 100,000 specific violations within its jurisdiction.
  6. –In 30+ years, OSC has only made about 250 formal determinations that: 1) a violation within its jurisdiction occurred, and 2) the violation required corrective action;
  7. –The U.S. Merit Systems Protection Board has also failed, for 30 years, to conduct, as required by 5 U.S.C. §1204(a)(3), any “special studies” of OSC’s compliance and performance of its nondiscretionary duties to protect federal employees from agency violations within its jurisdiction (note: Mr. Carson has sought judicial review of MSPB’s compliance with §1204(a)(3), but because MSPB’s reports go to Congress and the President, he does not have standing to obtain such a review);
  8. –Inadequate Congressional oversight of OSC’s compliance with §1214(e) and MSPB’s compliance with §1204(a)(3);
  9. –Dispositive judicial review of OSC’s compliance with §1214(e) and MSPB’s compliance with §1204(a)(3) has not occurred; and
  10. –Current “rules of professional conduct for attorneys” simply do not address whether attorneys employed at OSC and MSPB have any duty, as attorneys, to voice concerns about their agencys’ compliance with its nondiscretionary duties;

Therefore, the only remedy is the writ of mandamus.

Act II

Carson sued OSC in federal district court, alleging that OSC terminated its investigation based on the determination resulting from its screening investigation (a/k/a/ jurisdictional investigation) that it did not have jurisdiction to investigate the complaint.

Carson relied on Weber v. United States, a D.C. Circuit case that recognized the principle that a federal district court has jurisdiction to issue a writ of mandamus if it determines that OSC has failed to perform a non-discretionary statutory duty as an investigatory agency.

In Weber, Mr. Weber submitted a complaint to OSC, alleging violations of laws, rules, or regulations under its investigatory jurisdiction. OSC conducted a preliminary investigation (or inquiry) and determined it did not have jurisdiction to investigate and/or seek corrective action on his behalf (loss of security clearance). The Court reviewed OSC’s reasons for making its jurisdictional determination and agreed with them, it also made clear that if OSC’s jurisdictional determination had been incorrect, mandamus relief would be warranted to compel OSC to fully investigate his complaint.

OSC, through Loretta Harber, Assistant U.S. Attorney for the Easter District of Tennessee, motioned the court to dismiss the writ of mandamus with prejudice. OSC argued that although OSC is obligated to investigate any allegation of a PPP that it receives, the scope of its investigations of such allegations is committed to its discretion. Moreover, “when the OSC decides to terminate an investigation that it began pursuant to a complaint, the decision is not reviewable.”

OSC relied on DeLeonardis v. Weiseman, a Fifth Circuit case that stands for the proposition that “when the OSC decides to terminate an investigation that it began pursuant to a complaint, the decision is not reviewable.” However, OSC claimed Weber was somehow irrelevant, even though it described its jurisdictional investigation of his complaints and their outcome:

For example, in Weber, OSC took the position that security clearance decisions, as a class, were not reviewable, regardless of the particular facts and circumstances of the case, and as a result, declined to investigate allegations concerning security clearance decisions. OSC did not consider the facts specific to Weber’s security clearance revocation or reach a decision to close the case based on the application of those specific facts to relevant legal standards, but rather closed the case based on its determination that it would not (and indeed could not) review security clearance decisions.

The District Court sided with OSC, ruling that in no circumstance could it review any OSC negative determination, whether jurisdictional or substantive, when used to terminate an investigation.

Act III

Carson appealed to the U.S. Court of Appeals for the Sixth Circuit. In his appeal, Carson further elaborated his jurisdictional investigation argument.

In response, OSC significantly altered its argument, in ways contradicted by the undisputed facts in Weber. To the appellate court, OSC argued:

The D.C. Circuit’s analysis of the jurisdictional issue – i.e., whether OSC had jurisdiction to investigate allegations concerning security clearances – was undertaken for the purpose of determining whether OSC on a ministerial duty to the petitioner to investigate. Id. at 760. The D.C. Circuit concluded that OSC did not have a clearly established (i.e. “ministerial”) duty to act. ld. Further, because OSC had not, in fact, investigated (emphasis added), the appellate court had no occasion to address whether OSC’s decisions to terminate investigations would be subject to judicial review. Thus nothing about the Weber decision can be read to support the proposition that OSC’s decisions terminate investigations, if based on legal grounds, are subject to judicial review.

For whatever reason, OSC made this new, and factually erroneous, argument to the Sixth Court. As OSC’s “investigation termination letters” to Mr. Weber and Mr. Carson show, there is no difference in how OSC complied with its duties to “shall investigate the allegation” for Mr. Weber’s and Mr. Carson’s complaints – its CEU determined the complaints outside OSC’s enforcement jurisdiction and OSC terminated its investigations on that basis. As Carson stated in his reply brief,

To this Court, in its brief, OSC made the new and false claim of material fact and law that it had neither conducted an initial investigation of Mr. Weber’s complaints nor notified Mr. Weber, per 5 U.S.C. §1214(a)(2)(A), that it had terminated its investigation of his complaints and its reasons for doing so. Based on this false claim of material fact, OSC made the false claim of material law that Weber is not relevant to this case.

The Sixth Circuit recognized the D.C. Circuit’s holding but flatly disagreed with it, albeit without much support, stating:

We decline to rely on Weber to hold that district courts have authority to review the jurisdictional determinations of the Office of Special Counsel for a number of reasons.

However, the decision only mentions DeLeondaris as a reason. But DeLeonardis did not involve negative OSC jurisdictional determinations. In that case, OSC’s initial investigation determined OSC had jurisdiction over the alleged complaint, but the evidence for its occurrence was insufficient and OSC closed the complaint on that basis.

Act IV

Carson then appealed to the Supreme Court. The U.S. Solicitor General waived response without consulting with its client, OSC. Carson and amici now wait to see if the Solicitor General will allow amici to file an amicus brief, waive his response, request the Court to extend a looming disposition deadline, allow OSC to file a confession of error, or allow OSC to moot the case by establishing policy consistent with Weber. Failure to consent to the amicus brief will be contested by motion.

What’s really at stake in this litigation?

1) OSC’s 33-year-long interpretation and application of its reporting requirements by §1214(e) is clearly wrong, but stating this would expose OSC as a fraud of a federal law enforcement agency, one that interpreted away, 33 years ago, its most important tangible nondiscretionary statutory duty. This would also expose the MSPB as having failed to comply, also for 33 years, with its nondiscretionary statutory duty to conduct “special studies” of OSC’s interpretation and compliance with its nondiscretionary statutory duties to protect federal employees from PPPs.

2) There is no statute of limitations for OSC’s enforcement jurisdiction, therefore many thousands of federal employees, who did not obtain the protection OSC owed them, per §1214(e), could re-file their complaints – and OSC has destroyed all its investigation files for them.

3) Thousands of other current and former federal employees who sought OSC’s protection since 1989 for PPPs could refile their complaints, alleging “other prohibited activities” in violation of §1216(a)(4).

Apparently, the Sixth Circuit decided it was better to “keep the lid on it.”

Related posts:

See also: