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:
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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.

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 million, 525-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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Act I

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

Given that:

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

Therefore, the only remedy is the writ of mandamus.

Act II

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

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

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

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

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

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

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

Act III

Carson appealed to the U.S. Court of Appeals for the Sixth Circuit. In his appeal, Carson further elaborated his jurisdictional investigation argument.

In response, OSC significantly altered its argument, in ways contradicted by the undisputed facts in Weber. To the appellate court, OSC argued:

The D.C. Circuit’s analysis of the jurisdictional issue – i.e., whether OSC had jurisdiction to investigate allegations concerning security clearances – was undertaken for the purpose of determining whether OSC on a ministerial duty to the petitioner to investigate. Id. at 760. The D.C. Circuit concluded that OSC did not have a clearly established (i.e. “ministerial”) duty to act. ld. Further, because OSC had not, in fact, investigated (emphasis added), the appellate court had no occasion to address whether OSC’s decisions to terminate investigations would be subject to judicial review. Thus nothing about the Weber decision can be read to support the proposition that OSC’s decisions terminate investigations, if based on legal grounds, are subject to judicial review.

For whatever reason, OSC made this new, and factually erroneous, argument to the Sixth Court. As OSC’s “investigation termination letters” to Mr. Weber and Mr. Carson show, there is no difference in how OSC complied with its duties to “shall investigate the allegation” for Mr. Weber’s and Mr. Carson’s complaints – its CEU determined the complaints outside OSC’s enforcement jurisdiction and OSC terminated its investigations on that basis. As Carson stated in his reply brief,

To this Court, in its brief, OSC made the new and false claim of material fact and law that it had neither conducted an initial investigation of Mr. Weber’s complaints nor notified Mr. Weber, per 5 U.S.C. §1214(a)(2)(A), that it had terminated its investigation of his complaints and its reasons for doing so. Based on this false claim of material fact, OSC made the false claim of material law that Weber is not relevant to this case.

The Sixth Circuit recognized the D.C. Circuit’s holding but flatly disagreed with it, albeit without much support, stating:

We decline to rely on Weber to hold that district courts have authority to review the jurisdictional determinations of the Office of Special Counsel for a number of reasons.

However, the decision only mentions DeLeondaris as a reason. But DeLeonardis did not involve negative OSC jurisdictional determinations. In that case, OSC’s initial investigation determined OSC had jurisdiction over the alleged complaint, but the evidence for its occurrence was insufficient and OSC closed the complaint on that basis.

Act IV

Carson then appealed to the Supreme Court. The U.S. Solicitor General waived response without consulting with its client, OSC. Carson and amici now wait to see if the Solicitor General will allow amici to file an amicus brief, waive his response, request the Court to extend a looming disposition deadline, allow OSC to file a confession of error, or allow OSC to moot the case by establishing policy consistent with Weber. Failure to consent to the amicus brief will be contested by motion.

What’s really at stake in this litigation?

1) OSC’s 33-year-long interpretation and application of its reporting requirements by §1214(e) is clearly wrong, but stating this would expose OSC as a fraud of a federal law enforcement agency, one that interpreted away, 33 years ago, its most important tangible nondiscretionary statutory duty. This would also expose the MSPB as having failed to comply, also for 33 years, with its nondiscretionary statutory duty to conduct “special studies” of OSC’s interpretation and compliance with its nondiscretionary statutory duties to protect federal employees from PPPs.

2) There is no statute of limitations for OSC’s enforcement jurisdiction, therefore many thousands of federal employees, who did not obtain the protection OSC owed them, per §1214(e), could re-file their complaints – and OSC has destroyed all its investigation files for them.

3) Thousands of other current and former federal employees who sought OSC’s protection since 1989 for PPPs could refile their complaints, alleging “other prohibited activities” in violation of §1216(a)(4).

Apparently, the Sixth Circuit decided it was better to “keep the lid on it.”

Related posts:

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

See also:

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

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

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

They are:

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

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

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

Key paragraph:

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

The amicus brief is available here.

Related posts:

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