Senator Patrick Leahy (photo: mcconnellcenter, flickr)

How else can one explain the following statement, meant to pressure Senate Republicans to confirm 19 nominees for federal courts, when Leahy is in receipt of allegations that one of them made false statements to a federal judge?

Leahy says the following:

But, month after month and year after year, Senate Republicans find new reasons and new tactics to delay confirmation of consensus judicial nominees for no good reason.

…

I wonder when I hear some Republican Senators claim credit for progress on nominations — and point to what they like to call “positive action” — how they can ignore the 19 judicial nominations being blocked for no reason.

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The Senate should fill these numerous, extended judicial vacancies, not delay final action for no good reason.

I submit to you that making allegedly false statements to a judge is good reason to take pause. While true obstruction may be taking place, the statements above cannot hold across the board. Let’s take our time lest we confirm the wrong person for the post.

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)