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.

• Letter to Senate re Rudolph Contreras
• OPR complaint with appendices

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

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:

• MSPB’s special studies mandate: is it being met? (Nov. 13, 2011)
• MSPB issues study on barriers to blowing the whistle (Nov. 14, 2011)
• MSPB Chair Susan Tsui Grundmann’s pledge to issue report to the President and the Congress (Nov. 17, 2011)
• Odd legal argument by DOJ examined, possibly refuted by FOIA request (Dec. 6, 2011)
• Appeal of an MSPB FOIA determination (Dec. 18, 2011)

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
5^th 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)

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

Background:

• MSPB’s special studies mandate: is it being met? (Nov. 13, 2011)
• MSPB issues study on barriers to blowing the whistle (Nov. 14, 2011)
• MSPB Chair Susan Tsui Grundmann’s pledge to issue report to the President and the Congress (Nov. 17, 2011)
• Odd legal argument by DOJ examined, possibly refuted by FOIA request (Dec. 6, 2011)

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.

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:

• Forty six whistleblowers and supporters (including at least 5 lawyers) seek a response from the Office of Special Counsel (Dec. 3, 2011)
• DOJ Solicitor General waives response in Supreme Court whistleblower case without consulting its client, the Office of Special Counsel (Dec. 2, 2011)
• Anticipating the Solicitor General’s possible refusal to consent to the whistleblowers’ amicus in Carson v. OSC (Dec. 2, 2011)

See also:

• Carson’s final amended complaint (E.D. Tenn.)
• OSC’s motion to dismiss writ of mandamus (E.D. Tenn.)
• Carson’s opposition to OSC’s motion (E.D. Tenn.)
• OSC’s reply to Carson’s opposition (E.D. Tenn.)
• Judge’s Decision (E.D. Tenn.)

• 6th Carson’s appellate brief (6th Circuit)
• OSC’s response (6th Circuit)
• Carson’s reply brief (6th Circuit)
• Decision (6th Circuit)

• Carsons’ petition for writ of certiorari (Supreme Court
• Carsons’ supplemental petition (Supreme Court)
• Solicitor General’s waiver of response (Supreme Court)
• Draft Amicus Curiae brief in support of Carson’s petition (Supreme Court)

They are:

They are the signatories to an amicus brief in Carson v. OSC. Here’s a cover letter to the Solicitor General that summarizes amici’s position. In particular, it states that

[T]his case puts you in a unique position of having to ensure your representation of OSC is consistent with its mandate to “act in the interests” of Mr. Carson. I respectfully suggest that your waiving OSC’s right to respond, apparently without Special Counsel Lerner’s specific authorization, was not very consistent with OSC’s mandate to Mr. Carson.

In other words, though the Solicitor General is expected to exercise a great deal of independence, amici’s request that his actions be consistent with the “shall act in the interests” mandate of OSC paradoxically requires him to yield his independence to OSC to a significant degree in this case.

Key paragraph:

The amici want to trust Special Counsel Lerner to do her duty. They want to trust that she will act in the interests of federal employees who seek OSC’s protection from PPPs and other prohibited activities. They want to be able to tell concerned federal employees that, finally, that they have reason to believe a Special Counsel will comply with her duties to act in their interests and protect them. This case provides an unprecedented opportunity for her to do so. OSC has never been party to a case at the Supreme Court before, let alone one involving a split in the circuits about an important issue of law – whether federal district courts can review OSC’s negative jurisdictional determinations, when used to terminate its investigations.

The amicus brief is available here.

Related posts:

• DOJ Solicitor General waives response in Supreme Court whistleblower case without consulting its client, the Office of Special Counsel (Dec. 2, 2011)
• Anticipating the Solicitor General’s possible refusal to consent to the whistleblowers’ amicus in Carson v. OSC (Dec. 2, 2011)