Attorney General and prohibited personnel practices (PPP's)

June 28, 2008

Honorable Michael Mukasey

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Subject: Is "the public interest in a civil service free of prohibited personnel practices (PPP’s) at Department of Justice adequately protected" if Office of Special Counsel (OSC) and/or Merit Systems Protection Board (MSPB) do not comply with relevant law?

Dear General Mukasey,

Given events of the past week, in which the Department of Justice Inspector General and Office of Professional Responsibility reported significant violations of laws, rules, or regulations under the investigatory and enforcement jurisdiction of the U.S. Office of Special Counsel (OSC), I suggest this request takes on added urgency - that you direct the Department of Justice Office of Legal Counsel (OLC) issue an interpretation of 5 U.S.C. §1204(a)(3) and §1214(e) on behalf of the Executive Branch.

As you know, in the past week it was revealed that widespread prohibited personnel practices (PPP’s), contrary to 5 U.S.C. §2302 and under OSC’s investigation and enforcement jurisdiction by 5 U.S.C. §§1212(a)(1) and 1214(a), as well as other "activities prohibited by any civil service law, rule, or regulation, including any activity related to political intrusion in personnel decision-making," under OSC’s jurisdiction by §§1212(a)(5) and 1216(a)(4), occurred in DOJ in 2002 and 2006.

Background

: Career employment in the federal civil service in governed by the "merit principles," detailed at 5 USC 2301, to create a non-political, ethical, and competent career civil service. Agency violations of the "merit principles" are called "prohibited personnel practices (PPP’s) and include the whistleblower reprisal type PPP. Of the 12 types of PPP listed at 5 USC 2302(b), U.S. Office of Special Counsel (OSC) has jurisdiction over 11 types with EEOC having it for the EEO type PPP.

By law at 5 U.S.C. §2302(c), you, as other Agency heads, are responsible to "prevent PPP’s" in your agency. By law at 5 U.S.C. §1212(a) and §1214(a), OSC is responsible to "protect employees from PPP’s."

1) Do the requirements of §1214(e) apply to the laws, rules, and regulations under OSC’s jurisdiction by §§1212(a), 1212(e), 1214(a) and 1216(a), or not? Must OSC report all its nondiscretionary determinations of "reasonable grounds to believe" these laws, rules, and regulations have been violated, unless it makes the additional discretionary determination that the violation "requires corrective action" and reports it per §1214(b)(2)(B)?

OSC’s Answer

: No

OSC’s reason

: Apparently, just because OSC says so (see docket items nos. 78 and 79 available via PACER from federal District Court for District of Columbia Website (D.D.C) in Carson v. OSC, docket no. 05-537, also available (for free) at <whsknox.blogs.com/osc_watch>. Also see page 76 of Senate Committee Report no. 110-275, "The Perils of Politics in Government: A Review of the Scope and Enforcement of the Hatch Act," where OSC makes the same claim, without much elaboration.

The right answer

:

Yes

Reason

: The multiple "any’s" in 5 USC 1214(e) - i.e. "Any" investigation, "any violation of "any" law, rule, or regulation," clearly include the laws, rules, and regulations under OSC’s jurisdiction, just as the legislative history states (1978 U.S.C.C.A.N. 2723, 2755, 2756), and just as a Federal Magistrate Judge and Federal Judge have determined in Carson v. OSC, slip copy 2006 WL 5085253 (October 30, 2006, D.D.C.), *1, *7, and *8. OSC must report "such determinations" per §1214(e) unless it makes the additional discretionary determination that the violation is one "which requires corrective action" and reports it per §1214(b)(2)(B) as part of establishing jurisdiction at the Merit Systems Protection Board to seek corrective action.

2) Is the U.S. Merit Systems Protection Board (MSPB), by 5 U.S.C. §1204(a)(3) and (e)(3), mandated to conduct "special studies" of OSC and other agencies - including ones outside its PPP jurisdiction by §2302(a)(2)(C)(ii) - necessary to report "as to whether the public interest in a civil service free of prohibited personnel practices (PPP’s) is being adequately protected?"

MSPB’s Answer

:

No

MSPB’s reason

: Apparently just because MSPB says so and because it has not such special studies in so long (at least 20 years) the law no longer applies (see docket items nos. 17, 18, 19, and 21) from PACER record of case, Carson v. MSPB, docket no. 07-0445, D.D.C.)

The Right Answer

:

Yes

Reasons

: Because the law clearly says so, because the legislative history for the law at 1978 U.S.C.C.A.N. 2723, 2751, and 2753 says so, and because 3 Courts have not agreed with MSPB’s position. See Carson v. MSPB, F.Supp.2d 2008 WL 441509 (Feb. 19, 2008, D.D.C.), unpublished May 1, 2008 decision of US Court of Appeals for Federal Circuit In Re Carson, docket no. 2008-M869, and the unpublished May 6, and June 11, 2008 decisions of US Court of Appeals for DC Circuit In Re Carson, docket no. 08-1108.

Relevance To Your Responsibilities To "Prevent PPP’s" in DOJ per §2302(c)

If, as OSC claims, 5 USC 1214(e) does not apply to laws, rules, and regulations under its investigatory and enforcement jurisdiction, then it has no nondiscretionary duty to formally report its determinations of "reasonable cause to believe" their violation occurred to the involved agency. Instead, OSC must only formally report such a determination if it makes the additional discretionary prosecutorial determination that the violation requires corrective action, something it generally does less than 10 times a year.

How can you (or other agency heads) "prevent PPP’s" in your agency when OSC has exclusive jurisdiction to investigate complaints of PPP’s and when it also claims it has no nondiscretionary duty to report its determination a PPP has occurred to the involved agency head, because §1214(e) "does not apply to laws under its jurisdiction"?

Additionally, how can you comply with your duty to "prevent PPP’s" at DOJ when MSPB has not conducted the "special studies" necessary to report "whether the public interest in a civil service free of prohibited personal practices (at DOJ) is being adequately protected?"

Neither MSPB nor OSC have IG’s. If they have misinterpreted these nondiscretionary duties, only the Office of Legal Counsel or the Courts can say so. Given the nature of these nondiscretionary duties, their interpretation of these laws impacts DOJ, as other Executive Branch agencies, which gives OLC jurisdiction to consider the matter.

No court decision has explicitly upheld their interpretations of these duties. Given that and your explicit responsibility to "prevent PPP’s" in DOJ, I I suggest this request takes on added urgency - that you direct the Department of Justice Office of Legal Counsel (OLC) issue an interpretation of 5 U.S.C. §1204(a)(3) and §1214(e) on behalf of the Executive Branch. hope you will exercise your authority to direct OLC to review OSC’s and MSPB’s interpretation of these key sections of law.

There should be no question that OSC and MSPB are scrupulously complying with their non-discretionary duties related to the protection of federal employee from PPP’s. Reasonable question now exists, your action can help resolve it.

Respectfully,

Joe Carson, PE

10953 Twin Harbour Drive

Knoxville, TN 37934 865-300-5831<jpcarson@tds.net>

"multiple-time prevailing" federal whistleblower <www.carsonversusdoe.com>; Chair, OSC Watch <www.oscwatch.org>; President, Affiliation of Christian Engineers <www.christianengineer.org>; and political spouse <www.carson08.com>

copy:

DOJ Office of Professional Responsibility

DOJ Office of Inspector General

Relevant Congressional Oversight Committees

U.S. MSPB and U.S. OSC