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:
