Readers of my website, MSPB Watch, know that I have sued the Federal Aviation Administration earlier this year for withholding responsive documents required to be disclosed under the Freedom of Information Act.

My request asked for all documents pertaining to an assignment that I worked on while employed by the FAA. In that request, I suggested that responsive documents were “in the possession” of certain individuals, but I clarified that there might be others.

The FAA searched those individuals’ inboxes and one database, but nowhere else. The problem is that two of those individuals did not provide emails that are known to exist.

One individual, Richard Clarke, retired before I made my request, and so his account had been deleted. Another individual, Dale Roberts, suffered a computer malfunction; his inbox did not reveal anything; and, as was recently revealed in court documents, he chose not to enable his account’s archives feature.

During my administrative appeal, in October 2012, I reiterated my request for all documents related to the assignment and I said that “If such emails or other documents are not available, a reasonable search would involve any appropriate backup tapes or files.”

The FAA chose to ignore my appeal, so I sued, in January 2013.

In a motion for summary judgment dated March 11, the FAA raised the argument before the judge that its search was complete and that I am not entitled to a search of the backup tapes (or “disaster recovery tapes,” as it calls them) because…

And this is where it gets interesting.

In the March 11 filing, the FAA argued that I am not entitled to a search of the tapes because I did not “specifically” ask for it on request. It cited to the affidavit of Jeb Kreischer, a FOIA program analyst, who signed it under penalty of perjury. Mr. Kreischer did not support his assertion with any policies or documents.

In a response dated April 8, I pointed to a pair of Nov. 2011 letters sent by Victoria Wassmer, the Assistant Administrator for Finance and Management, to another requestor, in which she stated that “if a requestor believes that a search [of email accounts] is not sufficient, the requestor may request on appeal that a NEXTGEN [a/k/a disaster recovery tape] search for records be conducted.”

In other words, I caught Mr. Kreischer in an inconsistency.

In response to that, on April 22, via a supplemental declaration by Mr. Kreischer that was similarly unsubstantiated, the FAA doubled back on its previous assertion and stated that it doesn’t matter when a requestor asks for a tape search; rather, he needs to specifically reference “disaster recovery tapes” in his request.

Moreover, the FAA asserted that “[w]hen requesters state on appeal that they would like such a search, however, the FAA does not consider this statement part of the requesters’ original request.” This is important because if the FAA is late in responding to the “original request,” then it cannot assess search fees. But if the tape search is not part of the original request, then the FAA’s tardiness does not affect its ability to assess fees for the tapes (which can run into hundreds or thousands of dollars).

This is an end-run around the OPEN Government Act of 2007, in which Congress barred tardy agencies from assessing fees as an accountability measure.

That’s exactly what happened here – the FAA was late in responding to my request, but it tried to assess fees for the tapes anyway. I objected and requested it go ahead with its search. Now the issue is going to be decided by the court.

Here’s another red flag that should trouble any member of the public who is concerned about open government issues: the FAA’s assertions in court are actually an attempt to create ad hoc policy to govern when a tape search obligation is triggered. The problem, of course, is that it is attempting to dictate policy to a requestor in court, without giving him any advanced notice.

Does that trouble you? This kind of thing usually troubles the courts.

Next steps: I will be filing a response in court by May 6. Then the FAA and I will meet before the judge on May 17. And then he will render a decision.

By the way, the disaster recovery tapes (or “NEXTGEN”/”NEXGEN” search, as they were called not too long ago), were apparently implemented in May 2008, the same month the FAA received a request from the Office of Special Counsel to preserve all documents for key officials, including then-acting administrator Robert Sturgell. Weird, huh?

Review other litigation documents from Pardo v. FAA here.

Now this is tricky, because these groups helped him navigate the treacherous waters of the mainstream media, with mixed results, during his prosecution and through his send-off to prison. So for John Kiriakou to say the following about groups like the Project on Government Oversight (and implicitly the Government Accountability Project), when they expect loyalty in return (Washington being a transactional town and all), is nothing short of astounding:

This comes just a few days after this author sent Mr. Kiriakou a letter* urging him to consider who should speak on his behalf. Where it gets complicated is that GAP currently manages his legal defense fund, which is helping to support his family. That should continue unabated, regardless what insights Mr. Kiriakou shares with the world that prove uncomfortable for GAP and its cohorts.

*This author does not take any credit for this development. From his perspective, it is just a welcome coincidence.

Is it too soon to say things like:

With this remarkable record and the extraordinary leadership of Special Counsel Carolyn Lerner, we can expect that as disclosures continue to skyrocket and the caseload grows, [the Office of Special Counsel] will handle their investigations and litigation with utmost efficiency and integrity.

As the Project on Government Oversight did just this past week, or:

The track record under the helm of Special Counsel Carolyn Lerner, who assumed office in 2011, is equally as unprecedented as its increased caseload and having increased productivity by over 50% in the past few years[.]

As the Government Accountability Project did a few days ago?

Consider that there are a few grumbles that have arisen so far concerning OSC’s performance:

• Using personal email to conduct government business;
• Allegations of “breakdown in accountability” in investigating improper political activity;
• Employing a template letter to close complaints that shows cursory analysis and use of restrictive standards not warranted under the law;
• Prolonged delays in processing FOIA requests.

Let me be clear: OSC deserves credit for the evident turnaround since the Scott Bloch era. Persistent underfunding continues, in part because the groups mentioned above have not pushed for it before. But this post is not so much about OSC’s performance today, as it is about grounding laudatory statements (and the propensity to make them) with facts. The groups above have a history of jumping to award OSC leadership when, frankly, it did not deserve it. The pattern may be repeating itself here. Facts matter, and the jury is still out.

Could a contributing factor to the 28 percent rise in FOIA litigation during President Barack Obama’s first term in office be that a little-known provision in the Freedom of Information Act has not been utilized?

That provision, found at 5 U.S.C. 552(a)(4)(F), calls for three actors to hold FOIA abusers accountable:

the courts, which may issue a finding that the circumstances surrounding an improper withholding “raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding”;

the Special Counsel, which “shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding”; and

the Attorney General, which has the responsibility of notifying the Special Counsel each time a court makes the determination above.

The Attorney General also has the responsibility of submitting an annual report to Congress on the number of times this has happened in the past year (this is a new provision, added by the OPEN Government Act of 2007).

I recently made a FOIA request to the Justice Department for these reports. Here is its response:

Please be advised that the Department of Justice annually submits to Congress a FOIA Litigation and Compliance Report, in compliance with 5 U.S.C. § 552(a)(4)(F)(ii)(II). These reports are made available online at http://www.justice.gov/oip/reports.html#s3. For your information, once the calendar year 2012 report is submitted to Congress, it will be posted on this same website. Additionally, please note that information regarding notifications from the Attorney General to the Office of Special Counsel is provided on the final page of the report.

If you follow that link, and track the reports for 2008-2011, here’s what you will find:

2008: “During 2008, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification of the Special Counsel was necessary.”

2009: “During 2009, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification to the Special Counsel was necessary.”

2010: “During 2010, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification of the Special Counsel was necessary.”

2011: “During 2011, the United States courts made no written findings pursuant to 5 U.S.C. § 552(a)(4)(F)(i). Accordingly, no notification to the Special Counsel was necessary.”

So there you have it. No judicial findings since the OPEN Government Act was passed. No Special Counsel investigations. No discipline. And no deterrence. Is it any wonder we’re witnessing a 28% increase in FOIA lawsuits?

ALEXANDRIA, Virginia — MSPB Watch founder David Pardo filed a civil complaint in federal district court against the Federal Aviation Administration Jan. 4, alleging the aviation safety agency wrongfully withheld records that would “detail collusive practices by FAA officials to retaliate against a whistleblower, corrupt the legal process, and subvert the rule of law.”

Did the Federal Aviation Administration illegally suppress whistleblowers?

The complaint, filed in the U.S. District Court for the Eastern District of Virginia under the Freedom of Information Act (“FOIA”), seeks a permanent injunction from the court directing the FAA to disclose all wrongfully withheld records.

Pardo is an attorney who was employed by the FAA until he was terminated in September 2010 after disclosing wrongdoing by FAA officials. Pardo submitted a FOIA request to the FAA on July 27, 2012, seeking records related to an assignment he worked on as an agency attorney that he believes has been “manipulated by FAA officials in the Office of Chief Counsel (“AGC”) and Flight Standards Service (“AFS”) to create a pretext for Plaintiff’s termination.”

The FAA’s Flight Standards Service initially responded to Pardo’s request with a fee estimate of $200 for 6 hours of search time, then an additional $50 for another hour, all of which Pardo agreed to pay. Approximately 10 weeks after receiving Pardo’s request, and after apparently conducting a 7-hour, $250 search, AFS came back largely empty-handed, saying it was “unable to locate any email records” between individuals involved in overseeing the assignment.

However, as noted in Pardo’s administrative appeal, “there seem to be positive indications of overlooked materials. A simple search for [certain key terms] in the inboxes of [named] AFS employees . . . would have yielded any number of a dozen or more responsive emails and attachments. This is corroborated by FOIA documents I have already obtained from non-AFS offices,” Pardo wrote.

A copy of the complaint is available here [PDF].

Follow the litigation, Docket No. 1:13-cv-14, here.

Read the rest of this entry →

The Office of Special Counsel does not have an inspector general. In fact, it was only in 2008 (30 years after its founding) that OSC was given some measure of oversight, with an amendment to the IG Act of 1978 that allows complaints against the Special Counsel and Deputy Special Counsel to be brought before the Council of the Inspectors General on Integrity and Efficiency.

MSPB Watch has attempted to launch citizen oversight of OSC via a number of various FOIA requests. The earliest one, still pending, was made more than a year ago, on Dec. 15, 2011. After a number of rolling completion dates, this request is now scheduled for completion for the end of January 2013. It bears repeating that the Freedom of Information Act requires agencies to provide responsive documents within twenty days. An ambitious schedule, to be sure, but waiting a year or more for documents is problematic.

It’s even more problematic when one considers that OSC is tasked with investigating and prosecuting arbitrary and capricious withholding of FOIA documents. While no implication regarding motive is intended in the present case, OSC cannot credibly work to ensure transparency within other agencies if its own transparency and adherence to the FOIA are found lacking.

The counterargument, of course, is lack of resources, prioritization, caseloads, etc. But the case needs to be made that more resources are needed. Programs and policies need to be audited and evaluated, and recommendations need to be put into reports that are then taken into serious consideration by Congress. The basic fact is that citizen oversight, limited as it is, does not work if access to information is restricted by prolonged delays.

Update: An OSC official told MSPB Watch Dec. 20 that

OSC does not have an IG. At a time of diminished resources and a significant increase in work in all program areas, OSC is not able to create an IG position. That being said, OSC reviews program effectiveness and efficiency on an ongoing basis and issues various reports, including the recently issued Performance and Accountability report, which is posted at http://osc.gov/RR_PerformanceAndAccountabilityReports.htm. In the future, OSC might contract with other IGs to perform certain services.

Stonewalled, Sen. Chuck Grassley (R-IA)

Dissenters’ Digest takes a look back at news stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.dissentersdigest.com.

Contempt: A House committee voted to hold Attorney General Eric Holder in contempt for refusing to submit documents in connection with the Fast and Furious gunwalking scandal. President Obama invoked executive privilege, for the first time, to shield the documents from Congress. The measure may soon be presented to the House for a final vote. Meanwhile, Democrats are decrying the move as a political “witch hunt.”

Stonewalled: Senator Chuck Grassley is getting stonewalled by the Food and Drug Administration over an inquiry that it’s been spying on federal whistleblowers. The Senate and related House investigations were sparked by a lawsuit filed by six FDA whistleblowers who were allegedly targeted for surveillance. The National Whistleblowers Center is representing them in court. Relatedly, the Office of Special Counsel, which is also investigating the FDA over the same matter, released a memo this week to the federal government, urging agencies not to spy on whistleblowers. Doing so, the memo said, might lead OSC to conclude that retaliation is afoot.

Looking Backwards: President George W. Bush ignored a number of the CIA’s pre-9/11 warnings, according to new FOIA documents declassified and revealed this week.

Cover-Up: An Army Lt. General is accused of blocking a corruption probe in Afghanistan to help President Obama’s re-election.

Below the Fold:
Read the rest of this entry →

(photo: caribbeanfreephoto/flickr)

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.mspbwatch.net/digest .

Beyond Reproach: Efforts to pass the Whistleblower Protection Enhancement Act came under scrutiny this week after it was disclosed by the lead lobbyists that the bill will not contain any jury trial provisions, a long-sought reform. The admission came after the Make It Safe Campaign Steering Committee objected to an open letter to Congress which highlighted flaws in the current bill. However, grassroots efforts, led by this author, pointed out that the Steering Committee has failed to engage the whistleblower community and the public in its lobbying activities, as well as practice transparency and accountability, the values it publicly champions. It remains to be seen whether the Steering Committee will take heed of suggested reforms, the rejection of which may well cost it considerable influence and credibility with the lowest common denominator that truly matters: federal whistleblowers.

Below the Fold: Read the rest of this entry →

(photo: Steven DePaulo/flickr)

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every Saturday evening at www.mspbwatch.net/digest.

Torture is Back in the News: The Government Accountability Project calls for the prosecution of admitted CIA torturer Jose Rodriguez, who recently crowed about destroying 92 video tapes of torture footage in a new book. Separately, Rodriguez alleges in his book that Minority Leader Nancy Pelosi lied about tacitly approving waterboarding in 2002, according to the Washington Post. Further, UCLA law professor and torture memos author John Yoo is immune from liability in the United States for the torture of Jose Padilla, according to a recent opinion from the U.S. Court of Appeals for the Ninth Circuit.

Below the Fold:

–The Administrative Conference of the United States is teaming up with the U.S. Chamber of Commerce on regulatory reform. The Center for Progressive Reform objects.

–FBI whistleblower Sibel Edmonds overcomes FBI pre-approval for the publication of her book criticizing the FBI over 9/11 missteps.

–EPA whistleblower William Sanjour looks at why agencies fail to regulate properly, and offers prescriptive advice.

–The Department of Health and Human Services is in violation of the No FEAR Act of 2002, and has been since 2002, according to a recent Freedom of Information Act response.

–A federal court in New Orleans will preliminarily approve the $7.8 billion settlement with victims of the Deepwater Horizon Gulf oil spill.

–House Oversight Committee Chairman Darrell Issa is preparing a contempt of Congress charge against Attorney Eric Holder over the Fast and Furious gunwalking scandal.

–The Drug Enforcement Administration leaves a college student in a jail cell for five days without food or water.

–The Make It Safe Campaign, an umbrella group of whistleblower and government accountability advocates, is considering enfranchisement and open-process reforms following a general meeting last Tuesday.

Send tips to tips@mspbwatch.net.

Statement of the Problem

The Office of Special Counsel interprets 5 U.S.C. § 1214, the statute dealing with its investigation of prohibited personnel practices (PPPs), in a way that deprives employees of protection from PPPs, limits its administrative flexibility, engenders a culture of retaliation and lawbreaking in the federal government, violates reporting requirements, and denies the public the right to know the full extent and occurrence of retaliation and other PPPs in the civil service.

What the Law Requires

5 U.S.C. § 1214, together with 5 U.S.C. § 1212, are the statutes whereby OSC derives its authority to protect federal employees from prohibited personnel practices.

Section 1212 is the general mandate for OSC to protect employees from PPPs:

(a) The Office of Special Counsel shall—

(1) in accordance with section 1214(a) and other applicable provisions of this subchapter, protect employees, former employees, and applicants for employment from prohibited personnel practices;

(2) receive and investigate allegations of prohibited personnel practices, and, where appropriate—

(A) bring petitions for stays, and petitions for corrective action, under section 1214

Section 1214 is more detailed, and provides the duties OSC must abide by and the powers it may exercise, in its discretion. A table has been provided for ease of reference:

[Download here]

The key provisions are § 1214(a)(1)(A), §§ 1214(b)(2)(B)-(D), and § 1214(e).

Section 1214(a)(1)(A): OSC’s Duty to Investigate PPPs

5 U.S.C. § 1214(a)(1)(A) states as follows:

(a)(1)(A) The Special Counsel shall receive any allegation of a prohibited personnel practice and shall investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken. [Emphasis added.]

Note that this section involves two duties, using mandatory language – one to receive allegations and another to make a preliminary investigation as to whether reasonable grounds exist that a PPP took place. (Notably, OSC was sued at least twice for failing to make this preliminary investigation. In the D.C. Circuit, the federal appeals court held that OSC can be taken to court to enforce this duty. In the Sixth Circuit, the federal appeals court there reached the opposite conclusion.)

Section 1214(b)(2)(B)-(D): Reporting Occurrences of PPPs Which Require Corrective Action to MSPB

5 U.S.C. § 1214(b)(2)(B)-(D) states as follows:

(b)(2)(B) If, in connection with any investigation, the Special Counsel determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken which requires corrective action, the Special Counsel shall report the determination together with any findings or recommendations to the Board, the agency involved and to the Office of Personnel Management, and may report such determination, findings and recommendations to the President. The Special Counsel may include in the report recommendations for corrective action to be taken.

(C) If, after a reasonable period of time, the agency does not act to correct the prohibited personnel practice, the Special Counsel may petition the Board for corrective action.

(D) If the Special Counsel finds, in consultation with the individual subject to the prohibited personnel practice, that the agency has acted to correct the prohibited personnel practice, the Special Counsel shall file such finding with the Board, together with any written comments which the individual may provide. [Emphasis added].

Note that although section 1214(b)(2)(B) uses the word “shall,” it is only conditioned on OSC making the discretionary determination that there are reasonable grounds that a PPP has occurred which requires corrective action (see “If… the Special Counsel determines”). In addition, the “which requires corrective action” qualifier sets section 1214(b)(2)(B) apart from section 1214(a)(1)(A), as follows:

Section 1214(a)(1)(A) requires OSC, upon receiving allegations, to determine whether reasonable grounds exist that a PPP took place.

Section 1214(a)(2)(B) allows OSC to determine whether reasonable grounds exist that PPP took place which requires corrective action - in other words, to determine whether the PPP requires corrective action. If OSC makes this discretionary determination, it must then report it to the MSPB and other listed entities, after which prosecution may follow.

It’s important to mention at this point that only MPSB can provide required corrective action. An agency may provide corrective action, voluntarily, at any point. But Congress, when drafting the predecessor statute to 5 U.S.C. § 1214, was explicit in that only MSPB may provide corrective action of this sort, H.R. Conf. Rep. 95-1717, Oct. 5, 1978, page 134. The reason for this distinction is that corrective action may not be required if the agency can demonstrate that it would have taken the same personnel action in the absence of whistleblowing (in the context of reprisal for whistleblowing), or that no nexus exists between the agency’s personnel action and the protected employee activity (in the context of reprisal for exercising one’s rights). Only an MSPB hearing can afford the parties the opportunity to present evidence and render a judgment whether corrective action is required under the law.

So far, I’ve made a distinction between OSC’s duty to determine whether reasonable grounds exist that a PPP occurred and OSC’s discretionary power to determine whether a PPP requires corrective action by the MSPB. Under the second scenario, a record would exist at MSPB.

However, does the law require public reporting of PPPs where OSC did not determine that corrective action is required, for whatever reason – that is, where it had no occasion to go to MSPB?

Section 1214(e): Public Reporting of Civil Violations, Including PPPs Where OSC Did Not Determine Corrective Action Is Required

Section 1214(e) states as follows:

(e) If, in connection with any investigation under this subchapter, the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred other than one referred to in subsection (b) or (d), the Special Counsel shall report such violation to the head of the agency involved. The Special Counsel shall require, within 30 days after the receipt of the report by the agency, a certification by the head of the agency which states—

(1) that the head of the agency has personally reviewed the report; and

(2) what action has been or is to be taken, and when the action will be completed.

This provision is worth analyzing in detail, because OSC has interpreted it over the years in a way that is inconsistent with what the law seems to require (more on this below).

Section 1214(e) reads as follows:

“If, in connection with any investigation under this subchapter”: that is, subchapter II of Chapter 12 of Chapter II of Title 5, the subchapter that encompasses the statutes governing OSC’s operations;

“the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred”: so far, this is a very broad mandate – “any” violation of “any” law, rule, or regulation, except for…

“other than one referred to in subsection (b) or (d), the Special Counsel shall report such violation to the head of the agency involved.”: subsection (b) deals with PPPs “which require corrective action.” (Recall that PPPs are violations of law – 5 U.S.C. § 2302(b)). As discussed in much detail above, these are not any PPPs, but only those for which OSC has exercised the discretionary power to determine that corrective action from MSPB is required. This is where the distinction above becomes critical — unless OSC takes the additional step of determining that a PPP requires corrective action from MSPB, it falls under the reporting obligations of section 1214(e). Recall that PPPs which require corrective action will already be reported elsewhere – MSPB. Section 1214(e) is what ensures that other PPPs get reported to the public and are not buried.

In addition, subsection (b) does not include other prohibited activites that fall under OSC’s enforcement jurisdiction, such as ones that fall under 5 U.S.C. § 1216.

Subsection (d) deals with violations of law that implicate criminal activity – these violations get reported to the Attorney General, which ensures that the violations gets reported somewhere.

Finally, purely civil violations that do not fall within sections 1214 or 1216 are covered by section 1214(e).

All told, the only things that may not be reported to the head of an agency under section 1214(e) are criminal violations and PPPs which require corrective action.

This analysis is reflected in this flowchart and the Powers and Duties table above.

OSC Practice

Shortly after its founding, in 1978, the Office of Special Counsel reported to Congress the ways in which it handles whistleblower retaliation complaints. It included the following description, on pages 17-18:

In a much larger number of cases, agencies agreed to take corrective action recommended by the Special Counsel without submission of an investigative report and formal recommendations to the agency head. In some instances, simply bringing the allegation to the attention of appropriate agency officials resulted in corrective action for the complainant. In other cases, agency officials agreed to or initiated corrective action after being notified of the Special Counsel’s intent to file a petition for stay of personnel action with the Board.

…

In addition, avoidance of a public record of a personnel related problem is sometimes an incentive for an agency to resolve the matter to the satisfaction of the employee and the Special Counsel.

The Annual Reports for 1981 contains a similar description:

Although the office filed no new complaints requesting the Board to order agencies to take corrective action during 1981, agencies frequently corrected situations giving rise to employee complaints during the course of a Special Counsel inquiry. When a complaint is resolved informally, there is no need for the Special Counsel to submit formal recommendations to the agency head or to file complaints for corrective action with the Board.

Agency officials are normally agreeable to correcting a problem once it is brought to their attention by the Special Counsel, even where an investigation may not lead to a finding of a prohibited personnel practice. Where it appears that the facts will show that an agency official’s action resulted from a prohibited personnel practice, the agency usually will agree to correct the problem to avoid having it brought to the attention of the agency head or being made public by a Special Counsel complaint filed with the Board.

The Annual Reports for 1987-1996 contain the following description:

The Prosecution Division reviews completed full field investigations to determine whether the inquiry has established any violation of law, rule or regulation, and whether the matter warrants corrective or disciplinary action, or both. OSC may have discussions with an agency about a case at any point of the investigation or analysis in order to obtain a mutually agreeable resolution. Otherwise, the Special Counsel may refer the matter in writing to the agency head under 1214(b)(2)(A) with a recommendation for corrective action.

…

Finally, if an investigation discloses a violation of any law, rule or regulation not otherwise within the enforcement authority of OSC, the Special Counsel sends a report of OSC’s findings to the agency head concerned under 1214(e) for certification of any action to be taken on the matter.

The Annual Report for 1998, for instance, contains the following description:

Where an investigation discloses a violation of any law, rule or regulation not otherwise within the enforcement authority of the OSC, the Special Counsel sends a report of the OSC’s findings to the agency head concerned under 1214(e) for certification of any action to be taken on the matter. The OSC reports evidence of any possible criminal violations identified during an investigation to the Department of Justice pursuant to 1214(d).

How to Harmonize OSC Practice with the Law

OSC should reinterpret section 1214 as follows:

–OSC is required it to make a determination as to whether reasonable grounds exist that a PPP occurred.

–If so, it sends letter to the offending agency’s head and requires a certification within 30 days as to what will be done.

–If the agency refuses to take adequate steps, OSC may proceed to either terminate the case while publicizing online the letter and the agency certification, or refer the case for prosecution and seek corrective action at MSPB.

–Either way, the whistleblower benefits over the status quo: chances increase that the agency will correct the situation on its own, but if it does not, it will have to reveal its litigation strategy before a lengthy and costly legal case commences.

What are the Consequences of OSC’s Misinterpretation of 5 U.S.C. § 1214?

There is no legal basis for OSC’s reading that section 1214(e) exempts from its reporting requirement all violations of law “not otherwise within the enforcement authority of OSC” [i.e. sections 1214 and 1216]. Section 1214(e) is quite specific that the only items not required to be reported by OSC are criminal violations and those PPPs which require corrective action. There is no justification for OSC’s giving agencies an incentive to informally correct the personnel issue in exchange for foregoing a PPP determination report. In other words, secret negotiations that bury the facts of agency retaliation are not authorized by law. In fact, the opposite is true – the facts must be reported: by OSC or by MSPB.

Avoiding making these reports – and failing to maintain the public database of them as required under 5 U.S.C. § 1219(a)(3) – has led, in my experience and perspective, to a culture of retaliation and lawbreaking to take root and flourish in the federal civil service. Much money and public trust has been wasted because one of the watchdogs of the civil service has interpreted away a key duty.

What Can Be Done?

The issue of OSC’s interpretation of 5 U.S.C. § 1214 is the subject of a FOIA request I made in December 2011. I anticipate a response by August 2012. In the meantime, I will forward this information to OSC as a whistleblowing disclosure pursuant to 5 U.S.C. § 1213(g)(1). I will update once I receive OSC’s response.