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De-Muddying the Waters: GAP’s Compromised Role as Lobbyists, Not Lawyers

5:54 pm in Uncategorized by MSPB Watch

It has become an entrenched trope, a go-to defense, for the Government Accountability Project and its defenders to claim that GAP “can’t help everybody,” or “they helped me for free,” when its performance as an accountability organization comes under questioning. This line of deflection–this conscious blurring of the line between its functions as lawyers and lobbyists–is so powerful that it survived two different radio shows unquestioned. Until now.

Recently, GAP’s Tom Devine was on the Peter B. Collins show with his client, TSA Whistleblower Robert MacLean, who won a victory in federal court (the same show where Devine and his client displayed poor judgment by adopting the tactics of bureaucratic bullies, and not the first time for Devine). Toward the end of the show, Collins asked Devine to respond to some critiques by DOE Whistleblower Joe Carson:

Peter B. Collins (38:13):

Tom, I’d also like you to react to some information and commentary that I’ve received from Joe Carson. And I- I can’t imagine that you’ve never heard of Joe Carson. He is a profilic writer and he has contacted many agencies and congressional committees and the White House over the years. He is- he describes himself as a successful whistleblower in the Department of Energy, where he is a nuclear engineer, in Tennessee, and he’s been very active on these issues. And his central focus is on the Office of Special Counsel, and the role that it has under the 1978 in protecting whistleblowers.

And he contends that there has been what he calls a “broken covenant” – this longtime failure to enforce these rules, and in particular for the OSC, to exercise its appropriate role in protecting whistleblowers. And he starts with the contention that most federal employees don’t even know about their rights under the Office of Special Counsel. Could you- I’m sure you heard from him, so could you tell me your viewpoint on the issues that he raises?

Here was Devine’s reply (39:29):

I hear from Joe all the time, relentless, and we actually represented him, in some of his earlier victories under whistleblower rights in the Department of Energy. So I’m very familiar with his perspective.

And there have been extensive periods of time where I’ve completely agreed with him about the Office of Special Counsel and in fact our organization tried to get the institution abolished, we thought it was a trojan horse for whistleblowers. I don’t think that he is really fair at giving credit where it was due. Some of the special counsels who really did stick their necks out and worked hard and get effective results protecting whistleblowers.

Probably the area where we’ve really agreed to disagree the most is- Joe has been attacking me for a few years- it used to be a big [unintelligible]- he’s been attacking because I disagree with him that we should sort of delegate the policies on whistleblower protection to the White House Office of Legal Counsel. He thinks that this would straighten things out for whistleblowers, and I’ve just been dubious because it’s the same office that was behind the memos on drones and on legalizing torture and everytime we’ve learned about an opinion they’ve had on whistleblowers it’s been to shrink or abolish whistleblowers rights. So we’ve agreed to disagree on that particular issue.

The Broken Covenant Dodge

Collins (41:00):

And do you share his characterization about what he calls the “broken covenant” that those who occupy the OSC have failed to operate within the law, and you, know, to properly report on cases of the PPP – what is that – the prohibited personnel practices?

Devine (41:22):

Yeah, that’s all the merit system violations. I think you just can’t generalize, Peter. There’s been some of the special counsels who not only broke the covenant, they tried to destroy it. There was a Special Counsel in the eighties named Alex Kozinski who actually taught courses to federal managers how to fire whistleblowers without getting caught by his own investigators. He would tutor them in his office, how to write up the terminations to fire whistleblowers.


Is that the Kozinski who’s now a federal judge?


He is the chief- the chief judge of the Ninth Circuit Court of Appeals, and if he hadn’t got caught by whistleblowers from the Office of Special Counsel, he’d be on the Supreme Court right now. There were 43 votes against his Ninth Circuit circuit confirmation, because of how he broke that covenant, betraying the trust that he had as a protector of whistleblowers.

Scott Bloch, the Special Counsel under the Bush Administration, his sentencing for whether or not he’d go to jail was postponed yesterday because the evidence had been doctored about why he shouldn’t go to jail, and he was such a horrible Special Counsel that he had to resign after the FBI raided his office, and he was covering up the evidence they were seeking. There have been some people who just- they were magnets for whistleblowers by their own staff at the whistleblower protection agency.

But it’s not fair to generalize. There are some other folks who really made a difference and Joe and other members of the community, they’re observers a lot of times of what happens. I have to deliver results for people whose professional lives are at stake. And I can tell you that, right now, the Office of Special Counsel is working their tails off, and they’re getting results for whistleblowers, and a lot of- their leadership is composed of former free speech activists and employee rights activists, their whole careers. It’s not fair to say that one institution is always good or always bad, that’s just not the way life operates. And right now, we’ve gone from warning whistleblowers not to sabotage themselves by filing complaints with the Office of Special Counsel. We’ve gone from that perspective five years ago to the Office of Special Counsel being the first option to help whistleblowers, and it’s completely just dependent on the results.

Cute. Notice, however, that Devine never really answered the specific question posed by Collins: “do you share his characterization about what he calls the ‘broken covenant’ that those who occupy the OSC have failed to operate within the law, and to properly report on cases of the PPP?”

Instead, Devine claims that “you just can’t generalize” and proceeds to distract with titillating tales of political intrigue (while attempting co-opt the broken covenant term, if not dismissing this author and others as mere observers who aren’t affected by OSC’s failures and who don’t need to deliver results. And hiding once again behind his role as a lawyer to defend his actions as a lobbyist.)

The focus on “results,” however, proves too much. What’s missing in Devine’s answer is any discussion of the law (as in “those who occupy the OSC have failed to operate within the law“).

Here are some hard facts regarding just one prong of Carson’s “broken covenant” theory:

  • Carson contends that federal employees do not have an effective way to bring forward concerns (i.e. ”protected disclosures”), particularly classified ones or ones that are otherwise prohibited from public disclosure, despite OSC being the primary mechanism for this, by virtue of the 1978 Civil Service Reform Act.
  • Since 1989, OSC has received 28 disclosures from whistleblowers within the FBI, CIA, NSA, DIA, and NGIA.
    • Of those, it referred none to the agency heads for internal investigations.
  • Since 1989, OSC has received 11,174 disclosures from other executive branch agencies, over which it has whistleblower protection jurisdiction.
    • Of those, 81 were disclosures that were prohibited by law to make publicly (i.e. to the media).
    • Of these 81 prohibited/classified disclosures, were referred to the relevant agencies for internal investigations.
    • Of these 81, only one involved foreign intelligence or counterintelligence information, requiring mandatory referral to the intelligence committees in Congress and the National Security Advisor.

Think about it: since 1989, of the thousands of disclosures OSC has received, only one merited confidential referral to the national security apparatus in Congress and the White House. This is so despite 9/11, the Iraq War lies, illegal torture, warrantless wiretapping, the drone strikes, and, of course, Sibel Edmonds’ explosive allegations. OSC’s failure to be a viable classified disclosure channel has cut across all tenures, all special counsels, and all administrations, including the special counsels over whom Devine weeps. So you can, in fact, generalize, contrary to Devine’s non-answer.


In the second half of the show, Collins asked Carson and me to come on and provide a reaction to Devine’s interview. You can hear how pervasive the GAP-as-lawyers-not-lobbyists defense is when Collins, acting as devil’s advocate, pushed back against our arguments that GAP has cornered the market as a watchdog organization, by arguing that GAP cannot provide representation to all who seek its help. This is true. However, the critique against GAP is not that they aren’t omnipresent as counselors, but that they fail to use their clout and power as lobbyists responsibly.

For example, when Tom Devine’s role as a lobbyist is criticized, his defenders often downplay his clout (if not invoke their gratitude for his legal assistance – see?). But on Collins’ show, Devine himself proclaimed (at 37:45, first half) that MacLean helped give the entire national security community rights by lobbying Devine, who then got the President to issue PPD 19 (which bizarrely omitted the Office of Special Counsel). Devine cannot be both that powerful and a shrinking violet.

In this interview, Devine both accurately trumpeted his prominent role in whistleblower issues as well as showed how easily he weaves between his roles as lawyer and lobbyist. The two are not the same, and at times may conflict with one another. A discerning whistleblower would be wise to tell the difference.

Former Special Counsel Scott Bloch Threatens to Sue a critic

11:24 am in Uncategorized by MSPB Watch

From Julia Davis’ LA Homeland Security Examiner:

My articles about disgraced former head of the Office of Special Counsel (OSC) Scott Bloch appear to be a thorn in his side. In an attempt to erase them from the Internet, Bloch is brazenly threatening to sue the webmasters featuring links to my reports. In February of 2013, Bloch pleaded guilty to a misdemeanor charge of injury to government property, related to his hiring of technicians with “Geeks On Call” to conduct the 7-level memory wipe of the computers at the OSC’s office, deleting whistleblower complaints and related computer files.

Bloch is currently attempting to use the said wit to eradicate my articles about him from online circulation by sending out threatening letters on his law firm’s letterhead. He is especially fond of the word “falsehoods,” stating in relevant part, “I direct your attention to the attached which contain falsehoods, cast me in defamatory light. They contain numerous falsehoods, intentional and gratuitous swipes at me and my tenure as Special Counsel that are false and defamatory, demonstrating actual malice. It continues to stand on the internet with its falsehoods. I write to demand that you remove these articles and blogs about me and my time as Special Counsel immediately. This is harmful to my professional reputation as a lawyer… Your demeaning personal attacks impute to me qualities that tend to injure me in my business… If you choose to ignore this and not remove the materials from your internet site and blogs and all caches, I will be forced to sue for an injunction and to seek damages… I will institute an action in Virginia and in Washington, D.C. against you for defamation and actual malice, together with damages and punitive damages. I will also seek damages for civil conspiracy to harm my business… If I determine through discovery that you have worked with others to do this, I will join them as well.”

Ms. Davis seems to have the support of Mark Zaid, “a prominent Washington, D.C. attorney who frequently represents whistleblowers in high profile cases.” Other whistleblowers and their supporters are sure to be interested in Bloch’s heavy-handed attempts to control speech. Here, for instance, are all my writings on Mr. Bloch. Like Ms. Davis, I stand by them and would be willing to defend them in court, even if Mr. Bloch fails to prosecute his conspiracy theories.

For now, I urge all whistleblowers to submit their victim impact statements in USA v. Scott Bloch by May 13 to:

Judge Robert L. Wilkins
333 Constitution Avenue N.W.
Washington D.C. 20001

Make sure to use the subject line: USA v. Scott Bloch, 1:13-cr-5, and abstain from giving out information (names, addresses) about third parties.

Whistleblowers Aggrieved by Scott Bloch Have Less than 2 Months to Organize Themselves and Demand Justice

10:10 am in Uncategorized by MSPB Watch

Ex-Special Counsel Scott Bloch* is due to be sentenced on May 13, 2013. The court can accept victim impact statements, but they must not contain information about third parties (this is likely what caused many statements to be taken off the docket two years ago). One statement is already on the docket. As you can see, it can take the form of a letter.

You have less than two months. If you don’t speak up now, you can’t complain if he walks away with a slap on the wrist. Tell the court how you feel, in your own voice. No NGO can do it for you.

*This wikipedia page details the many scandals plaguing Bloch’s tenure as the federal protector of whistleblowers. He pled guilty last December to destruction of government property by ordering three computers wiped clean. Previously, he pled guilty to contempt of Congress for essentially lying to Congress about ordering the computers wiped, but he since withdrew that guilty plea with the cooperation of the Justice Department. Emptywheel has more about the DOJ collusion angle.

Dissenters’ Digest for February 2013

1:58 pm in Uncategorized by MSPB Watch

Dissenters’ Digest takes a look at last month’s top stories covering whistleblowers, watchdogs, and government accountability.

Clear Conscience: U.S. Army whistleblower Bradley Manning pled guilty to 10 of 22 charges against him, offering a 35-page testimonial explaining why he released hundreds of thousands of diplomatic cables and other evidence of government misconduct to Wikileaks in January 2010.

Guilty of Purging Evidence: Former Special Counsel Scott Bloch pled guilty to erasing 3 government computers that may have contained whistleblower disclosures, retaliation complaints, and other sensitive memos. The charge may involve up to six months in jail.

30 Months in Prison: Ex-CIA spy John Kiriakou reported to prison to begin a 30-month sentence for disclosing the identity of an undercover CIA agent. Kiriakou came to prominence in 2007 for publicly reporting about the CIA’s torture program.

Below the Fold:

Justice Sought in Scott Bloch’s Prosecution

8:42 pm in Uncategorized by MSPB Watch

In the 1990′s, Douglas Kinan was an Equal Employment Specialist with the Department of Defense’s Defense Logistics Agency, out of Boston. While there, he blew the whistle on multi-million dollar pricepromotion fixing and rampant racial discrimination. He also refused to go along with the frame-up of an innocent employee. Even after leaving DoD, he reached out to every federal agency that could investigate, including the Office of Special Counsel, to no avail. Through these efforts, he came to know former Special Counsel Scott Bloch during Bloch’s lawless heyday.

Kinan retired in August 2012 after a 12 year run with the Massachusetts trial court system.

This is his letter [pdf] to U.S. District Judge Robert L. Wilkins, who is overseeing Bloch’s latest criminal prosecution. In it, Kinan writes:

Mr. Bloch’s conduct deserves to have a constant light on it until there has been a just resolve befitting his ‘alleged’ criminal activity, of which he pleaded guilty and later was allowed to withdraw his guilty plea. If it were a poor person, without connections, he/she would have gone straight to jail.

Accordingly, Mr. Bloch’s conduct, actions and behavior demand just consequences. Mr. Bloch’s conduct was incredibly destructive. He shattered dreams, destroyed lives and families and, using his position of public trust, turned hope into heartache. He didn’t care who he hurt. Your Honor now has the opportunity and privilege to apply the rule of law to make things right.

Thomas Drake and John Kiriakou: Martyrs for rule of law or avoidable casualties of a broken system?

8:40 pm in Uncategorized by MSPB Watch

What do Thomas Drake, John Kiriakou, and their representative in GAP, Jesselyn Radack, have in common?

None went to the Office of Special Counsel when they blew the whistle.

Does it matter? Would it have mattered?

If you were faced with a crisis of conscience at work – if your employer was torching the Constitution, what would you do? Exhaust all reasonable channels before going public? Rush to the nearest newspaper outlet? I’m all for the higher moral principle argument: breaking an unjust law to save the rule of law, especially when the arsonists suffer no consequences.

But there’s still an open question that remains. Why didn’t they go to the only place that is external to their agencies and can provide them with confidentiality and forward their disclosures directly to Congress and the National Security Advisor?

Whether OSC would have done so is a different matter: that’s the “Scott Bloch argument.”

But Bush and company started shredding the Constitution when Clinton-appointee Elaine Kaplan was still the Special Counsel.

Did they know OSC could have accepted their disclosures? Did they even know of OSC?

This is more than who was Special Counsel at the time. It’s about the role of OSC within the national security scheme and its treatment by the establishment (including the NGOs). If it’s ignored for decades and gets treated like the ugly stepchild of the federal bureaucracy that nobody talks about, it can’t help the country when a rogue element in the White House turns its sights on the Constitution.

Seen from this perspective, it’s no wonder Drake and Kiriakou never went to OSC, and it’s no wonder they trashed their careers.

But you won’t hear this argument from Radack, who did exactly what they did, and suffered for it, albeit without the threat of jail time.

Nor can she talk about it without making things uncomfortable for her colleagues, who helped stand up OSC and are responsible, in the veal pen sense, for what OSC is and is not.

Dissenters’ Digest for June 10-23

3:00 pm in Uncategorized by MSPB Watch

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

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 →

Dissenters’ Digest for March 25-31

3:00 pm in Uncategorized by MSPB Watch

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

Department of Justice’s Recent Actions Worry Accountability and Transparency Advocates: A number of actions taken by the Department of Justice have caught the attention of government accountability groups and civil libertarians this week.

First, Wired reports that the FBI advised its agents in training materials that they may “bend or suspend the law and impinge upon the freedom of others” under certain situations. That training material has since been changed.

Next, a Senate Judiciary Committee hearing focused on the misconduct of federal prosecutors in the trial of the late Alaska Senator Ted Stevens. A $1 million525-page court-appointed report found that these prosecutors withheld key evidence from Stevens’ defense counsel, in violation of ethical rules. The Stevens case was dropped by Attorney General Holder in April 2009. Following the publication of the report on May 15, Senator Lisa Murkowski introduced legislation to prevent the reoccurrence of the same prosecutorial misconduct, which was met with anonymous opposition by DOJ officials. Emptywheel and the Blog of Legal Times have coverage of that opposition.

Finally, a DOJ proposed rule has caught the attention of Senators and FOIA advocates, who noted that DOJ seemed to be usurping the role of the newly-created FOIA ombudsman, the Office of Government Information Service (OGIS). OGIS is an agency within the National Archives and Records Administration (NARA) and was created by the OPEN Government Act of 2007 to mediate disputes between requesters and federal agencies. Its station with NARA is not without purpose, as housing it within DOJ – which is responsible for defending federal agencies in FOIA lawsuits – would have created a conflict of interest. Senators Patrick Leahy and Jon Kyl sent a letter to Attorney General Holder, the Project on Government Oversight reports. DOJ’s Office of Public Affairs responded to POGO with a clarification that seems to put that particular matter to rest, but another FOIA matter is still under dispute.

Supreme Court Weakens Privacy Act: In a 5-3 decision, the Supreme Court held that the Privacy Act does not authorize damages for emotional distress, NPR reports. The suit was brought by a pilot who sued the Social Security Administration for disclosing information to the FAA relating to his HIV status, causing him to lose his license and suffer emotional distress. In a dissenting opinion joined by Justices Breyer and Ginsburg, Justice Sotomayor writes that the ruling “cripples the Act’s core purpose of redressing and deterring violations of privacy interests.” The Washington Post has additional coverage.

Congressmen Support Long-Suffering Whistleblower: Three House members recently submitted an amicus curiae brief to the Court of Appeals for the Federal Circuit in support of TSA Whistleblower Robert MacLean, according to the Orange County Register. In 2003, MacLean disclosed to the press a TSA plan to cut back on federal air marshals at a time of heightened security alerts. This prompted congressional outrage and the TSA plan was scrapped. MacLean’s case has been tied up in litigation since 2006, when he was terminated from the TSA. GovExec and GAP have additional coverage.

Obama Official Declares “Zero Tolerance” on Veterans’ Discrimination: John Berry, director of the U.S. Office of Personnel Management, declared “zero tolerance” for discrimination against uniformed service members returning to their civilian jobs. Berry’s comments follow a report last month by The Washington Post that the U.S. government is the top offender of USERRA, the Uniformed Service Employment and Reemployment Rights Act, which is designed to protect service members from discrimination in the workplace.

Below the Fold:

–The State Department moves to fire a prominent critic and whistleblower.

–GAO: Air Force has a disproportionate number of whistle-blower complaints within DOD.

–OccupyEPA takes to the streets, demands administrator’s resignation.

–A foreclosure fraud whistleblower reports being harassed by mortgage lender despite winning an $18 million award.

–A whistleblowers’ lawyer and a corporate lawyer mix it up on a whistleblower panel.

–Senator Daniel Akaka (D-HI) introduces a bill to reform the Senior Executive Service.

–The U.S. Merit Systems Protection Board took no action to study work conditions at the Office of Special Counsel following the controversial tenure of ex-Special Counsel Scott Bloch, according to a recent FOIA request.

–A House Subcommittee hearing on low morale at the Department of Homeland Security but fails to call any employees as witnesses.

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

5:08 pm in Uncategorized by MSPB Watch

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

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

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

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

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

9:31 pm in Uncategorized by MSPB Watch

Act I

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

Given that:

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

Therefore, the only remedy is the writ of mandamus.

Act II

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

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

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

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

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

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

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


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.”

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