Petition Congress to Conduct Oversight of the U.S. Office of Special Counsel

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, this report received widespread publicity with its findings that widespread prohibited personnel practices (PPP’s), contrary to 5 U.S.C. §2302(a) and (b) 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)(1) and §1214(a)(1)(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)(1), 1212(a)(5), 1214(a)(1)(A) and 1216(a)(4), 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 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 8, 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

OSC apparently "dumps" 40 or more investigations of agency FOIA malfeasance

To Whom It May Concern:

Erin McDonnell has the function of General Counsel for OSC.  I suspect she directed or concurred with OSC's dumping its investigations of 40 or more findings of apparent agency malfeasance by Federal Judges in FOIA suits since 1989. 

For over a year, in her role as reviewing official for OSC's responses to FOIA requests, she has thrown up roadblock after roadblock, to my FOIA request for the reports OSC is required by law to provide the involved agency when OSC conducts such an investigation.  I suspect she has directed OSC's FOIA officer, Christopher Kurt, not to respond to my FOIA request.   I suspect she is abusing her position as FOIA reviewing official at OSC to cover-up her directing or concurring with OSC's unlawful dumping of the these investigations.

I hope Federal Judge Friedman chooses to get to the bottom of this in my pending FOIA suit about OSC's role in investigating findings (from other FOIA suits) of possible agency FOIA malfeasance in Carson v. OSC, docket no. 06-1834, in Federal District Court for DC.  Earlier this year, he granted OSC a 4 month extension, based on Ms. McDonnell's declaration that "extraordinary circumstances" prevented OSC from responding to the FOIA request in the statutory time limits.  At the end of 4 months, OSC still provided no records, but basically said that I had not made my request clear enough for it to respond.

The appropriate Congressional staffer could likely get to the bottom of this in an hour or less, doing so might help spur passage of the pending bill to reform FOIA, if my suspicions about OSC's unlawful dumping of FOIA investigations and Ms. McDonnell's role are substantiated.

The attached documents outline my concerns about OSC's unlawful dumping of these investigations and their basis in fact and law.   All the case filing in the FOIA suit are available via PACER.

Respectfully,

Joe Carson, PE
Knoxville, TN

The New Republic piece on "Whistleblower Week in Washington"

I appreciate the time/energy Eve Fairbanks gave me and other participants in the recent Whistleblower Week in Washington.  The reason "I'm not satisfied" is because, as many know, I think people like me are marks in a charade, in which the lawbreaking failure of government agencies Office of Special Counsel (OSC) and Merit Systems Protection Board (MSPB) (and the attorneys who were specifically hired by these agencies to implement laws to protect concerned federal employees) is given a "free pass" by so-called whistleblower advocacy groups at Government Accountability Project (GAP) and their attorneys, most specifically Tom Devine, the long-time legal director at GAP, because it creates a pool of vulnerable people whom they can exploit as they claim to "rescue." 

"Ambulance chasing attorneys" does not capture this scenario, in which attorneys as Tom Devine give a "free pass" to lawbreaking and professional misconduct of government attorneys in OSC and MSPB, even as it harms the lives and careers of their clients, because there would be no clients without the lawbreaking. 

Should doctors give a "free pass" to other doctors who use their position of trust to make people sick, because it creates patients?

Should firemen give a "free pass" to other firemen who moonlight as arsonists because it provides job security?

Should nuclear safety engineers give a "free pass" to unsafe practices at nuclear plants, because it could result in radioactive contamination in public areas they would get paid to clean it up?

Should whistleblower attorneys  give a "free pass" to lawbreaking in the gov't agencies created to protect gov't whistleblowers, because it creates clients?

or, as the Apostle Paul said, "Should sin abound, so grace can abound the more?"  Romans 6:1  (his answer:  "By no means!")

Joe Carson, PE
President, Affiliation of Christian Engineers http://www.christianengineer.org
"Dean" of current federal whistleblowers  http://www.carsonversusdoe.com
"champion" of the 10,000 or more federal employees directly harmed by OSC/MSPB lawbreaking since 1989, http://whsknox.blogs.com/osc
Knoxville, TN

**********************************************************************************************************************

The New Republic
http://www.tnr.com/doc.mhtml?i=20070604&s=fairbanks060407

ON THE HILL
Blowing in the Wind
by Eve Fairbanks
Post date: 05.30.07
Issue date: 06.04.07

  all me the dean of federal whistle-blowers," says Joe Carson, handing me his business card. prevailing whistle-blower, it reads, along with his job as a Department of Energy (DOE) nuclear safety engineer. Carson, a towering man whose shoulders slope forward as if he's pushing into a gale wind, hovers above the crowd at the Warehouse Theater bar in Washington detailing his bona fides: He first blew the whistle on safety violations at Tennessee's Oak Ridge lab in 1992; since then, he has blown it seven more times, all while still employed at DOE. "Anybody want to match that record?" he barks.

  Actually, there are plenty of people here at the kickoff reception for Whistleblower Week in Washington who can blow it away. It's the first whistle-blowers' convention in 15 years, and everybody who has ever told on anybody has come to town for it. There are old movement patriarchs like Jeffrey Wigand, who ratted out big tobacco in the '90s (the Russell Crowe movie he inspired--The Insider--will play later in a small theater behind the bar), and younger stars of the Bush era like FBI whistle-blower Coleen Rowley, who hobnobs with a clutch of admirers. There is a U.S. air marshal who estimates he has blown the whistle 20 or 30 times, in the beginning under the code name "Vegas," and an ob-gyn in plaid who hands everyone packets detailing his cases against several hospitals and the California Medical Board from a box he drags around on a little trolley.

Presiding over them all is a tiny, twinkly-eyed Government Accountability Project (GAP) lawyer named Tom Devine. "I think of Jesus as a whistle-blower," he muses, when asked to give a short history of whistle-blowing. "But, at this stage, with Bush's legitimacy falling apart, there are probably more whistle-blowers than at any other point in modern times."

This, the end of President Bush's reign, is the whistle-blower's moment. Squealing is sexy when your bosses are Brownie and Gonzo. House Democrats, hungry for more oversight, passed a whistle-blower protection bill in March that extends protections to government employees--the people who "knew that Iraq did not try to import uranium from Niger," as Henry Waxman put it. Whistle-blowers attending the convention were urged to lobby their senators on behalf of the now-stalled bill, and a "people's tribunal" was mounted in the Rayburn House Office Building to give whistle-blowers like Bunnatine Greenhouse (tattled on Halliburton) and Marsha Coleman- Adebayo (spilled the beans on the EPA) a chance to show legislators whistle-blowing's human face.

But, as the week goes on, it becomes clear that Whistleblower Week is more than a rally. It's a chance for people who have long been miserable lone gunmen to come together and rejoice in whistle-blowing's transformation into a full-fledged personal identity--a scene with its own specialized lawyers, therapists, 40-odd advocacy groups, a publishing imprint, swag, and even a timeless philosophy. We "believe in Kant and Mill and Aristotle," Wigand tells the whistle-blowers at the reception, "in the categorical imperative." But, the funny thing is, even all this solidarity can't make Joe Carson happy.



  wo days later, at the Willard Hotel, the conventioneers further their education with such colloquia as "The ABCs of a Successful Whistleblower Case" and "Whistleblowers and the Press." Inside the seminar rooms, sports-coach-like instructors scribble power-balance diagrams on whiteboards: In one, the whistle-blower is a tiny dot and the bureaucracy a circle around him; fat arrows of hostility shoot in from the circle toward the hapless speck. Guest speakers advise rapt audiences to keep money in mind ("sometimes, you're so worried about winning the case, you forget about damages!"), consider going anonymous ("we have Mr. Blue, we have Apples, we have P.J."), and maintain perspective ("know when it's time to move on").

This last point can be hard to learn, because whistle-blowing is addictive. "After it's over, you see people wandering, desiring that level of involvement," explains Jim Holzrichter, a soft-spoken former auditor whose epic struggle with Northrop Grumman put his family in a homeless shelter for months. Down the hall from the seminar rooms, in a prim beige-and-cinnamon lounge, Veterans Affairs Whistleblowers Coalition head Jeffrey Fudin perches patiently on a couch, waiting for his V.A. colleagues to come help put the finishing touches on their presentation. Fudin started blowing the whistle back in 1993, when he suspected that the Albany V.A. hospital where he worked was illegally experimenting on cancer patients. Most recently, he blew it in 2004, when the hospital refused him time off to give a lecture on, natch, whistle-blowing. "To you, it might not seem a big deal," he allows, smiling gently. "But, to me, it was just another twist of the knife."

Since that episode, though, times have been flush for V.A. Whistleblowers. After the Walter Reed scandal broke, Fudin started receiving several new membership inquiries every week. A national security whistle-blowers' group has had to turn away applicants, and staffers visiting Whistleblower Week's events exhibit special interest in people from the Department of Justice. This end of loneliness and newfound sense of community is the convention's grand theme, and the lower-profile whistle-blowers along with the stars emit the grateful sense of being inducted into a fellowship. "I was like, Oh, my God, they're me, and I'm them,'" gushes a Tennessee nurse.

But, after the seminars are done, when a handful of whistle-blowers retire to sip chardonnay at a Marriott hotel restaurant nearby, some tensions begin to peek through. Talk turns to the omnipresent plaid-coated doctor. "I'm not sure his whistle-blowing was all that important," someone whispers.



  t the beginning of the week, I was skeptical of the proposition that whistle-blowing is a personality type you are born with. But it never seemed more true than at the end of Whistleblower Week, during a $150-a-head wrap-up retreat to help whistle-blowers de-stress. Seated with the whistle-blowers in a darkened room, retreat leader Don Soeken--a psychotherapist who runs a mountain sanctuary for whistle-blowers in West Virginia--encouraged them to contemplate a healing career change. But conversation soon circled back to the whistle-blowing life, as one Naval whistle-blower recounted the story of a cryptographer whose valiant work at Pearl Harbor the Navy had rewarded with bitter demotions. "Oh--oh," an ex-Army Corps of Engineers manager cried out, as though the long-dead cryptographer's humiliation was her own. Later, Soeken showed a relaxation video, because "it's hard for whistle-blowers not to make noise," he explained. "It's like a group of unruly children." During the film, one whistle-blower threw spitballs.

Above all, "whistle-blower" is a personality type that thinks in absolutes. Isolated from professional peers, they long for a cozy community of like-minded souls, but they also instinctively distrust such coziness. That might explain what made all that whistle-blower fellowship less than satisfactory for Joe Carson. While he showed up to almost every Whistleblower Week event, all the while he was plotting. His targets were the whistle-blowing advocates themselves, whom he alleged turn a blind eye to dysfunctional government oversight because it feeds their business model. "GAP, Tom Devine--they exploit a lot of these people that need rescuers," says Carson.

The accusation does not go unanswered. "It makes me a little resentful," Devine says, adding that he no longer intends to spend time with Carson or represent him for free.

But Carson knows how to take his complaint to the next level. "We're on a crusade to embarrass and enlighten GAP," says a whistle-blower friend, detailing their plan to expose the group to its donors. After all, if you believe anything of Kant or Mill or Aristotle, you have a mandate to expose fraud unconditionally. Even if that means blowing the whistle on the whistle-blowers.
Eve Fairbanks is an assistant editor at The New Republic.

OSC's singular responsibilities for FOIA

Dear Advocate for ethics and transparency in federal government,

I suspect The U.S. Office of Special Counsel (OSC) has simply "trashed" about 40 referrals to it by federal courts from 1989 to 2002 (and, most likely, subsequently) to investigate apparent agency abuses of their freedom of information act (FOIA) responsibilities.   To substantiate this I note:

1)  no OSC annual report makes any mention of the results of any such court referral, not from 1989 to 2005 (reports from 1998 forward are on OSC's website, previous reports are on my blog.

2)  no OSC press release since 1998 (available at OSC's website) mentions any investigation result from any court FOIA referral.

3)  OSC has yet to make a single 5 USC 1214(e) referral to an agency, based on my personal review of its public records in late March 2006, maintained by 5 USC 1219, at OSC HQ - if OSC had made a report to an agency about violation of FOIA law or agency regulation, by law it would have made it per 1214(e).

OSC obtained a stay in my related FOIA suit, Carson v. OSC, docket no. 06-1834 for Federal District Court in DC until May 31, 2007 - that it when its response to my complaint is now due.  All the case filing are available via the Court's PACER system.

Now that the House Oversight and Gov't Reform Committee is in action under Cong. Waxman, I hope you can help me spur its oversight of OSC's compliance with law to 1) protect federal employees from prohibited personnel practices (PPPs), and 2) enforce FOIA in all agencies.

The attached file provides background on my FOIA request to OSC about its implementation of singular responsibilities to enforce FOIA in all agencies.

Joe Carson, P.E.
Knoxville, TN
865-300-5831

request of President Bush

November 18, 2006

President George Bush
The White House
1600 Pennsylvania Averue
Washington, DC 20500
<president@whitehouse.gov>

Re: Basis in law and fact to allege neglect of duty and/or malfeasance in office on part of U.S. Office of Special Counsel (OSC) Special Counsel Scott Bloch, U.S. Merit Systems Protection Board (MSPB) Chairman Neil McPhie, Vice Chair Mary Rose, and Member Barbara Sapin.

Dear President Bush,

I respectfully contend, based on an incontestable basis in law and fact, that neglect of duty and/or malfeasance in office on the part of the aforementioned individuals, places America at increased and unnecessary risk of a nuclear 9/11 or other catastrophic terrorist attack(s).

By the law at 5 USC 1211(b) and 1202(d), you have the power to remove these individuals from office on this basis, and I earnestly hope you will choose to do so.

The basis in law for this request includes 5 USC 1201 (appendix, citing the findings and purpose statement of the Federal Whistleblower Protection Act (WPA) of 1989) and 5 USC 1204(a)(3).

By these sections of the law:

o       "the protection of individuals who are the subject of prohibited personnel practices (PPP's) remains the paramount consideration,"
o       OSC shall "act in the interests" of those who seek its protection from PPP's,
o       MSPB and OSC are responsible for implementing the law's mandate "that employees should not suffer adverse consequences of a result of PPP's," and
o       MSPB shall "report to the President and Congress as to whether the public interest in a civil service free of PPP�s is being adequately protected."

As a result of his neglect of duty and/or malfeasance in office, OSC, under Special Counsel Bloch, continues to fail its statutory obligations to protect from PPP's those who seek its protection, thereby putting the merit system principles for the entire federal civil service at risk.

As a result of their neglect of duty and/or malfeasance in office, MSPB, under its current three person Board, continues to fail to identify and report to you and Congress that due to OSC's (and, to a lesser extent, its) failures, "the public interest in a civil service free of PPP's" is not being adequately protected.

The context of my making these allegations includes my having prevailed in no fewer than 8 separate whistleblower-related decisions at the MSPB since 1994, while OSC has failed to once determine and report, in over 20 related PPP complaints, that "there are reasonable grounds to believe a PPP has occurred, exists, or is to be taken." 

The Department of Energy (DOE) where I, a licensed professional engineer (P.E.), am employed as a nuclear safety engineer, singled me out for reprisal, to punish me and intimidate others into silence, for my doing my "doubly sworn duty" as a P.E. and federal employee to "blow whistles" when necessary to protect public health and safety.  OSC did not single me out in failing to comply with its statutory duties to protect me, its systemic and persistent lawbreaking failure to protect federal employees from PPP's contributed to 9/11, the failure of levees in New Orleans, the loss of space shuttle Columbia, as well as countless other instances of malfeasance or incompetence in federal governance since the 1989 enactment of the WPA.

Approximately 25,000 federal employees have alleged about 50,000 specific PPP's in PPP complaints to OSC since 1989, according to OSC's Annual Reports to Congress.  Even though the law is clear (it has also obtained explicit judicial review) that OSC is to investigate PPP's complaints to extent necessary to determine whether there is reasonable grounds to believe a PPP occurred and, if so, report it to MSPB, the involved agency, and OPM, this has not happened and is still not happening.   

Because of neglect of duty and/or malfeasance in office by the current Special Counsel, as his predecessors, OSC does not make and/or report its PPP determinations.  This prevents heads of agencies from complying with their statutory duty to "prevent PPP's" in their agencies (see 5 USC 2320(c)).  No one knows exactly how many positive (or negative) PPP determinations OSC has made - OSC does not properly report either.  That is the incontestable record since 1989.

Because of neglect of duty and/or malfeasance in office by the current Board members of the MSPB, as their predecessors, it has not identified and reported OSC's failure to protect federal employees from PPP's, by its not making and reporting its statutory required PPP determinations.  That is the incontestable record since 1989.

I, with my family, have risked, sacrificed, and suffered much to comply with my "doubly sworn duty" as a P.E. and federal employee to "blow whistles" when required by the rules of professional conduct of my licensing board.   Special Counsel Bloch, MSPB Chairman McPhie and MSPB Member Sapin are licensed attorneys - they each have a "doubly sworn duty" as licensed attorneys and federal employees to "blow whistles" when required by the rules of professional conduct of their licensing boards.   They, as their predecessors, have failed to do their "doubly sworn duty" to "blow whistles," as positively required about OSC's and MSPB's lawbreaking failure to comply with their responsibilities to protect federal employees from PPP's.  This has resulted in a "meltdown" in legal ethics at OSC, and, to a lesser degree, MSPB.

With America at war with terror, this meltdown of legal ethics imperils us all, because many federal employees who seek OSC's protection from PPP's are in the front lines of that war.   When they go down, professionally, after OSC fails to protect them, their colleagues in those front lines of the war on terror get the clear message - think of yourself first. 

As you know, governmental corruption is a major obstacle (if not the major obstacle) to a desirable outcome in the Iraq war.  As your Administration has recognized, governmental corruption is a major obstacle to the development of freedom and democracy in many regions of the world.   And here in America, neglect of duty or malfeasance in office by licensed attorneys in OSC and MSPB imperil civil servants on the front lines in the war on terror and enable significant governmental corruption. 

You do not have the power to get to the bottom of corruption in Iraq or in other Countries, but you do have the power to determine (including requesting Congressional oversight) that my allegations of a meltdown in legal ethics at OSC and MSPB are accurate and then take appropriate action by removing, for cause, the individuals at the top of those organizations. 

The attached documents outline the incontestable basis of my claims, provide internet and other citations to the largely public documents upon which they are based, and pose questions of the type MSPB should have starting asking of OSC in 1989.

Respectfully,


Joe Carson, P.E.
10953 Twin Harbour Drive
Knoxville, TN 37934
865-300-5831

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Conclusive proof of a "meltdown" in legal ethics at  U.S. Office of Special Counsel (OSC), implicating possibly hundreds of attorneys

OSC  was created as an independent executive branch agency by federal Whistleblower Protection Act (WPA) of 1989 (P.L. 101-12) for the primary purpose of protecting federal employees from prohibited personnel practices (PPP's), particularly whistleblower reprisal.  By the WPA, OSC is to "act in the interest" of those who seek its protection.   OSC has jurisdiction over almost all civilian federal employees in almost all federal agencies - including many of those in the front lines of the war on terror.

It has about 100 employees, about 30% of whom are licensed attorneys, according to a lawyer directory.  The law (5 U.S.C. 1214) detailing OSC and its attorneys duties to those who seek its and their protection was last amended in 1994 by P.L. 103-464.

There has been only one published court review of any aspects of OSC's statutory obligations to those who seek its protection since passage of the WPA in 1989.  In  Weber v. Department of Army, 209 F.3d 756 (D.C. Cir. 2000), the court specifically addressed OSC's responsibilities to formally report all its positive PPP determinations.

From Weber, page 758 (emphasis added):

An employee who believes he has been a victim of a prohibited personnel practice must first complaint to the OSC, which is required to investigate the complaint "to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred." 5 U.S.C. 1214.  If the OSC determines that a prohibited personnel practice has occurred, it must report its findings to the Merit Systems Protection Board (MSPB), and it may petition the Board to take action on behalf of the employee.

OSC and its licensed attorneys statutory obligations to those who seek its and their protection include:

1) To investigate PPP's complaints to extent necessary to determine if there are reasonable grounds to believe a PPP has occurred, exists, or is to be taken (see 5 USC 1214(a)(1)(A)).

2) To make a determination whether there are reasonable grounds to believe a PPP has occurred, exists, or is to be taken (1214(b)(2)(A)).

3) To formally report its negative PPP determinations to the complainant, with a detailed explanation of the basis in law and fact for its determination and inform the complainant who is available, by phone, to answer reasonable questions about its findings and determination (1214(a)(1)(D), (a)(2)(A), and "termination statement" of the appendix of 1214).   

4) To formally report its positive PPP determinations to the involved agency, the Merit System Protection Board (MSPB), and Office of Personnel Management (1214(b)(2)(B) and Weber, page 758).

According to OSC's Annual Reports to Congress for FY 2002-2004, OSC dispositioned 5529 PPP complaints and obtained "favorable action" in 255 of them, according to table 1 on page 7 and table 3 on page 11 .  (It should be noted that OSC's Annual Reports to Congress prior to 2003 also indicated the total number of specific PPP's alleged in the PPP complaints it received each year.  Based on earlier OSC Annual Reports to Congress, the average PPP complaint alleges between two and three specific PPP's (also see endnote 9 on page 30 of 2004 report).  Consistent with many PPP complaints alleging multiple specific PPP's, OSC claims to have obtained 321 specific "favorable actions" in the 255 cases in which it obtained favorable actions.)

However, according a September 25, 2006 letter of Neil McPhie, the Chairman of MSPB, its records for FY 2002 - 2004 indicate that OSC did not make a single positive PPP determination in that time.   Chairman McPhie's letter is consistent the public records maintained at OSC, per 5 USC 1219, which indicate that OSC has not made a single positive PPP determination report (or report of any other violation of law, rule or regulation) per 5 USC 1214(e) since being created in 1989.

OSC's claims in its annual reports about obtaining "favorable actions" are largely unverifiable, because of its failure to formally report all its positive PPP determinations, contrary to its statutory obligations.   It is entirely possible that OSC made hundreds or thousands of unreported  positive PPP determinations during FY 2002-2004 and then did nothing to protect the affected employee, including not even informing them of its positive PPP determination so they might have a better chance to obtain redress via an independent right of action (IRA) appeal to MSPB.   

Conclusion

Contrary to its statutory obligations, OSC does not usually report its statutory required PPP determinations to the complainant, instead it reports its discretionary determination not to seek relief on the complainant's behalf at MSPB, a determination it may make even when it makes a positive PPP determination as described in Weber.

Therefore, it is possible that OSC has made thousands of positive PPP determinations in the approximately 50,000 specific PPP allegations it has investigated since 1989 without informing  anyone - not the complainant, the agency, MSPB, or OPM - despite its statutory obligation to do so.  Additionally, because OSC does not include the statutory required "termination statement" in its PPP termination letters and does not provide additional information about its findings and determination if requested, it is possible that hundreds or thousands of federal employees were unable to make informed decisions about seeking additional redress, because OSC failed to protect them as required by law.

References on the internet


1.      Office of Special Counsel <http://www.osc.gov>

2.      "Findings and Purpose" statement of WPA, found at 5 USC 1201 appendix <http://whsknox.blogs.com/misconduct_exh/19.pdf>

3.      Martindale online lawyer director, advanced search: <http://www.martindale.com/xp/Martindale/Lawyer_Locator/search_advanced.xml>.  In "drop down list" for "search for" field, select "government" and put "Office of Special Counsel" in search field for agency.

4.      Weber v. Department of Army, 209 F.3d 756, 758  (D.C. Cir. 2000) <http://whsknox.blogs.com/misconduct_exh/03.pdf>.

5.      5 U.S.C. 1214 <http://whsknox.blogs.com/carson_v_osc/5_USC_1214.htm>.

6.      2004 OSC Annual Report to Congress <http://www.osc.gov/documents/reports/ar-2004.pdf>

7.      MSPB Chairman Neil McPhie letter of September 25, 2006 <http://whsknox.blogs.com/misconduct_exh/02.pdf>.

8.      Public record of "list of matters" reported by OSC to agencies, per 5 USC 1219 for 1989 through 2004, showing no 1214(e) reports were made <http://whsknox.blogs.com/carson_v_osc/OSC_1219_list_of_matters.pdf>.

9.      Page 12 of Senate Report 103-358 which describes the purpose of the "termination statement" in protecting those who seek OSC�s protection. <http://whsknox.blogs.com/misconduct_exh/11.pdf>

10.     Critique of OSC's Annual Reports to Congress, citing their systemic and persistent non-compliance with the relevant statute, 5 USC 1218.  OSC hides its lawbreaking failure to protect those who seek its protection by failing to report required (and incriminating) information in its Annual Reports to Congress.  <http://whsknox.blogs.com/carson_v_osc/5usc1218_July06.pdf>

******************************************************************

A suggested list of questions, intended to dispel or substantiate the "meltdown" in legal ethics at OSC, which, per 5 USC 1217, can be made by any Congressional Committee or Subcommittee includes:

1) How many specific PPP's allegations were contained in the 5529 PPP complaints OSC dispositioned in FY 2002 - 2004?

2) Of these, in how many were positive PPP determinations made?

3) Of these, in how many were negative PPP determinations made?

4) If the numbers do not add up, what is the explanation for the discrepancy?

5) How can OSC claim to have obtained 321 "favorable actions" in 255 cases without its making a single positive PPP determination during FY 2002-2004?

6) Do OSC PPP investigation termination letters contain the required "termination notice" of 5 USC 1214 (appendix)?  If not, why not?

7)   Does OSC provide the information described in the "termination statement," by phone, when requested by the complainant?  If not, why not?

8) Do OSC's PPP termination letters report OSC's statutory required PPP determination or only OSC's discretionary determination about seeking corrective action on behalf of the complainant at MSPB?

9) How can the heads of agencies comply with their statutory obligations to "prevent PPP's" in their agencies (see 5 USC 2302(c)), if OSC does not formally report all its positive PPP determinations?

10) How can the information required by the No FEAR act (see 5 USC 2301 appendix) be compiled if OSC does not formally report all its positive PPP determinations?

11) Do OSC's licensed attorneys, whose professional responsibilities include protecting, as required by law, those who seek OSC's protection, have a positive legal and professional responsibility as licensed attorneys and federal employees, to "blow whistles," about OSC and its attorneys failure to comply with those statutory obligations?

12) Approximately how licenced attorneys have been employed at OSC since 1989? 

13) Have any of OSC's attorneys formally reported concerns about OSC's compliance with its statutory duties to protect those who seek it and their protection?  If so, what resulted?

***********************************************************
A suggested list of questions for a Congressional request for information  of U.S. Merit Systems Protection Board (MSPB), made per 5 USC 1205


1.      When and how often since 1994 has MSPB complied with its statutory obligation, per 5 USC 1204(a)(3), to "report to the President and to the Congress as to whether the public interest in a civil service free of PPP�s is being adequately protected."

2.      Does MSPB know, for each year since 1994, how many PPP's occurred, of which type, and in which agencies, based on its or OSC's determination?  If not, why not and how can it make its statutory required reports about PPP's without such information?
.
3.       How many times has MSPB recommended or determined agency non-compliance with MSPB enforceable settlement agreements or MSPB Orders of Corrective Action since 1994?   Are these MSPB recommendations or determinations referred to OSC for investigation for possible disciplinary action?  If not, why not?

4.      If an agency fails to comply with an MSPB enforceable settlement agreement or an MSPB order of corrective action, does or can a 5 USC 2302(b)(9) type PPP - reprisal for engaging in protected activity - occur?  If so, has MSPB or OSC ever made such a determination?

5.      Does MSPB refer to OSC for investigation for possible disciplinary action  all its determinations that (b)(2) to (b)(12) PPP's occurred, or only (b)(8) ones?  If not, why not?

6.      Why is the evidentiary standard - "substantial likelihood" -  found in MSPB regulations at 5 CFR 1209 for whistleblower stays greater than the statutory established evidentiary standard  - "reasonable grounds to believe" - for OSC stay requests made per 5 USC 1214(b)(1)?   Does the law allow MSPB to use "reasonable grounds to believe" as its evidentiary standard for whistleblower stays?

7.      How many whistleblower stays have been sought and how many granted per 5 USC 1221 since 1994?  In how many cases, after MSPB denied the stay, did the employee obtain relief as a result of his whistleblower appeal?  In how many cases, after MSPB granted the stay, did the employee fail to obtain relief?

8.      Has MSPB conducted a special study about the 1994 amendment to the WPA, which added "any other significant change to duties, responsibilities, or working conditions" to the list of "personnel actions" to determine whether this significant change impacted "whether the public interest in a civil service free of PPP's is being adequately protected"?

MSPB Chairman McPhie and ending the culture of corruption at OSC

Attorney for attorney, year for year, and statutory obligation for statutory obligation, the attorneys at U.S. Office of Special Counsel are, in my opinion, the most lawbreaking collection of federal employees in history of civil service.  They have betrayed their "doubly sworn duty" as attorneys and federal employees to comply with the law and to "blow whistles" to expose the systemic and persistent lawbreaking of OSC and its attorneys.  There has been a "meltdown" of legal ethics at OSC, implicating hundreds of attorneys, including   many other attorneys who profited from the lawbreaking of OSC and its licensed attorneys.  Instead of doing their positive legal and professional duty of "blowing whistles" on OSC and its attorneys lawbreaking, they "looked the other way" and profited from it.

There has been no Congressional oversight of this primary OSC function - protecting federal employees from prohibited personnel practices - since the Republican takeover of Congress in 1994, shortly after a law amending the federal whistleblower protection act of 1989 was passed, which created additional specific statutory obligations on the part of OSC to protect those who sought its protection.

OSC's and its attorneys lawbreaking has been a significant enabler of the "culture of corruption" in the federal government.

The involved and/or knowledgeable attorneys have decide - they will do their positive legal and professional duty by "blowing whistles" on the lawbreaking at OSC and the associated lawbreaking and professional misconduct of past and present OSC attorneys - or risk being determined professionally blameworthy for their failure to do so.

Respectfully,

Joe Carson, P.E.
Knoxville, TN
jpcarson@tds.net
865-300-5831

*******************************************************************************************************

November 7, 2006

Mr. Neil McPhie
Chairman
U.S. Merit Systems Protection Board
1615 M St, NW
Washington, DC 20419-0002

Re: Application of Rules of Professional Conduct for Attorneys and/or Judges to Systemic and Persistent Lawbreaking by Attorneys at U.S. Office of Special Counsel?

Dear Chairman McPhie,

I contend, based on incontestable evidence, that there has been a "meltdown" in legal ethics, implicating possibly hundreds of attorneys, at U.S. Office of Special Counsel.   I am acting responsibly on my concerns as the attachments indicate (all of which are available online at <http://whsknox.blogs.com/osc/>).

Based on your letter to me of September 25, 2006, the law as stated in Weber v. Department of Army, 209 F.3d 756, 758 (D.C. Circuit 2000), and claims made in OSC's Annual Reports to Congress for 2002, 2003 and 2004, you cannot not know this too - that OSC attorneys are routinely making  positive prohibited personnel practice (PPP) determinations and then failing to report them to MSPB, the involved agency, and OPM, as Weber requires.

What, if any, positive legal and professional duties do you have as a knowledgeable licensed attorney and, possibly, also a  judge?  I think they are clear - to "blow whistles" to the appropriate government agencies and professional bodies on this "meltdown" of legal ethics in OSC.  I respectfully suggest if you fail to do this, you may be professional blameworthy as a licensed attorney and/or judge. 

In addition to this more generic claim of a "meltdown" in legal ethics at OSC, I make some additional claims specific to me:

1) OSC's notification of my individual right of action remedy, dated August 29, 2006, related to OSC file no. MA-06-2118, contains information prejudicial to my obtaining that remedy in my pending MSPB appeal docket no. AT-1221-06-1125-W-1.  Nothing in the relevant section of law at 5 USC 1214(a)(3)(A)(i) permits OSC to include such prejudicial information and its making such prejudicial statements is expressly prohibited at 5 USC 1212(g)(1) and 1214(b)(2)(E).  How is the OSC attorney responsible for these unlawful action "acting in my interest" in my good faith efforts to seek OSC and his protection?  (See 5 USC 1201 appendix citing the findings and purpose statement of the Federal Whistleblower Protection Act of 1989).

2) OSC's untimely response of October 30, 2006 in AT-1221-06-1125-W-1, to my motion to compel discovery from it, makes the outrageous claim that information to which I have a statutory right, per the "termination statement" of 5 USC 1214 (appendix) is "privileged" (see paragraph 9 on page 3.)

I respectfully request you direct the following actions:

1) Inform appropriate parts of the federal government, such as FBI, DOJ, PCIE, OPM, Congressional oversight committees, and the White House, of OSC's systemic and persistent lawbreaking failure to report its positive PPP determinations.

2) File misconduct complaints against the OSC attorneys responsible for the specific instances of unlawful behavior described - providing MSPB information it is prohibited from providing in one instance and claiming "privilege" to evade providing statutory required information in the other.

3) File misconduct complaints against the current and immediate former Special Counsel for their failure to ensure OSC complied with its statutory obligations to report all its positive PPP determinations to MSPB, as Weber requires.

As I understand 5 USC 2301(a)(4), the oath of allegiance for federal employees,  and your status as a licensed attorney and, possibly, a judge, I think you have a "doubly sworn" duty to "blow whistles" on the lawbreaking and professional misconduct - the meltdown of legal ethics - at OSC. 

Respectfully,

Joseph Carson, P.E.
10953 Twin Harbour Drive
Knoxville, TN 37934
865-300-5831
jpcarson@tds.net

Attachments:

1) Marked-up copy of OSC notification letter IRA remedy of August 29, 2006

2) Marked up copy of of OSC's objection to motion to compel discovery, dated October 30, 2006

3) My October 28, 2006  misconduct complaint to DC Bar against several attorneys who are current or former  senior OSC officials, with its 19 exhibits

Misconduct Complaint against OSC attorneys

Note:  December 5, 2006

Renn C. Fowler, who co-authored a book on OSC, worked as an attorney at another federal agency, which brought him into contact with OSC and federal whistleblower law.

******************************************************

October 28, 2006

Ms. Asma Naeem

Assistant Bar Counsel

Office of Bar Counsel

409 E. St, NW

Building B, Room 228

Washington, DC 20001

202-638-1501

Re: Carson v. Office of Special Counsel, undocketed No. 2006-U519

Dear Ms. Naeem,

Per your letter of October 20, 2006 and our recent phone conversation, I present a misconduct complaint against several attorneys who are current members of the DC Bar and who do or did work in supervisory positions in the U.S. Office of Special Counsel (OSC).

Essentially, my complaint is that they suborned their positive legal and professional duty  - their "doubly sworn duty" as licensed attorneys and federal employees - to ensure that I, along with many thousands of other federal employees who sought OSC's protection from prohibited personnel practices (PPP's) since 1989, obtained each and every statutory obligation OSC and its licensed attorneys had to me and them.

I realize that this complaint stands or falls on Judicial or other determination that OSC and its licensed attorneys have been systemic and persistent lawbreaking failures in complying with its and their positive duty to protect those who sought it protection.   I am pursuing my claims of OSC's systemic and persistent lawbreaking failure to protect me, as many thousands of others since 1989, in Federal District Court for the District of Columbia, in Carson v. Office of Special Counsel, docket no. 05-537.  (OSC, unlike my employing agency of the U.S. Department of Energy (DOE), did not single me out for retribution, it treated me as the many thousands of others since 1989 who sought its protection.)

In my email to your office of October 5, 2006 (exhibit 1), I detail the context of my alleging a "meltdown" in legal ethics, implicating possibly hundreds of licensed attorneys, at OSC.

In this letter, I provide corroborating detail, based on Court filings, public documents, public records, and FOIA responses, which incontestably substantiate my allegations of a "meltdown" in legal ethics at OSC.

Information requested by complaint form follows

Block A: My contact information

Mr. Joseph P. Carson, P.E.

10953 Twin Harbour Drive

Knoxville, TN 37934

jpcarson@tds.net; 865-300-5831 (work/cell) 865-966-1675 fax;

Block B: Contact information on the attorneys against whom this complaint is filed.

1)   Elaine D Kaplan, Special Counsel, 1998-2003

National Treasury Employees Union

1750 H Street NW

Washington DC 20006

Email: elaine.kaplan@nteu.org

Phone: 202-572-5592

Membership Status: Active

Disciplinary history: None

Date of admission: December 17, 1979

2)     Timothy B Hannapel, Deputy Special Counsel around 1998-2003

National Treasury Employees Union

1750 H Street NW

Washington DC 20006

Email: tim.hannapel@nteu.org

Phone: 202-572-5525

Fax: 202-572-5645

Membership Status: Active

Disciplinary history: Action taken

Date of admission: December 11, 1987

3)    Cary P Sklar, Deputy Associate Special Counsel around 1998-2003

US Court of Appeals

for Veterans Claims

625 Indiana Avenue NW

Suite 900

Washington DC 20004

Email: csklar@vetapp.gov

Phone: 202-501-5868

Fax: 202-501-5848

Membership Status: Active

Disciplinary history: Action taken

Date of admission: December 18, 1981

4)    William E Reukauf , Deputy Associate Special Counsel and top career OSC employee for many years, he is still an OSC employee

Office of the Special Counsel

1730 M Street NW

Washington DC 20036

Email: reukauf@comcast.net

Phone: 202-683-3354

Fax: 202-254-3600

Membership Status: Active

Disciplinary history: None

Date of admission: April 24, 1970

5)    Leonard M Dribinsky, long-time senior career OSC employee

Office of the Special Counsel

1730 M Street NW

Suite 300

Washington DC 20036

Email: ldribinsky@osc.gov

Phone: 202-653-8968

Fax: 202-653-5161

Membership Status: Active

Disciplinary history: None

Date of admission: November 25, 1975

6)    Kathleen D Koch, Special Counsel 1992-1997

US Department of Housing & Urban Dev

451 17th Street SW

Washington DC 20410

Email: kathleenkoch@verizon.net

Phone: 703-256-4285

Membership Status: Active

Disciplinary history: None

Date of admission: September 14, 1978

7)    Renn C Fowler, long-time senior OSC career employee, now retired from federal service.

Renn Fowler

1050 Vermont Avenue NW

Suite 500

Washington DC 20005

Email: rcfftf@att.net

Phone: 207-338-1474

Fax: 202-682-1905

Membership Status: Active

Disciplinary history: None

Date of admission: June 1, 1966

Block C: Is this complaint filed elsewhere?

As mentioned, I have a pending case in Federal District Court for District of Columbia, Carson v. Office of Special Counsel, Docket no. 05-537.

Block D: Written retainer agreement with attorneys?

Not applicable, but the statutory duties of OSC to protect me, which they, as licensed attorneys, had a positive legal and professional duty to ensure I received, are found at 5 USC 1214, including the "notes" section.  Also relevant is the "purpose and findings" sections of the 1989 Federal Whistleblower Protection Act, P.L. 101-12, found in the "notes" section of 5 USC 1201 and included as exhibit 19 to this complaint.

Block E:   State Court and docket no. of underlying case.

Not directly applicable, but there is a lengthy record of DOE lawbreaking against me, lawbreaking OSC and its licensed attorneys broke the law in not protecting me from.

Block F:   Other relevant documents?

Yes, see attached 19 exhibits.  The list of exhibits adds explanatory detail.

Block G: Details of Complaint

OSC's licensed attorneys, past and present, since 1989, are systemic and persistent lawbreaking failures in protecting federal employees from prohibited personnel practices (PPP's), particularly whistleblower reprisal, and their failure puts everyone at unnecessary additional risk of a nuclear 9/11.

OSC's licensed attorneys (about 40% of OSC approximately 110 employees are licensed attorneys, based on Martindale-Hubel), particularly the senior past and present ones subject to this complaint, betrayed their doubly sworn duty - as licensed attorneys and federal employees - to protect the loyal, patriotic Americans, employed by the federal government, who risk much to uphold and defend the "merit system principles" of the federal civil service, to protect America and public health and safety of Americans.  Their explicit duties include "to act in the interest" of those who sought/seek their and OSC's protection.  They betrayed and abandoned them, all too often, for nothing more than "a nice house and car."  Their ideology is greed and fear.   They shun accountability and do not care who pays how much for their betrayal of their duty.

But they do not suborn their sworn duty in a vacuum.  Congress has informally outsourced, particularly since the Republican takeover in the 1994 elections, its oversight of OSC's compliance with its statutory duties to protect those who seek its protection to so-called "whistleblower advocacy groups" and, in particular their licensed attorneys.  This created a "fox watching the chicken coop" situation, as lots of people, primarily licensed attorneys, benefit from  OSC's attorneys systemic and persistent lawbreaking failure to fulfill their sworn duty.

There has been a "meltdown" of legal ethics in OSC, implicating possibly hundreds of attorneys - those employed at OSC since 1989 (likely well over one hundred)  who did not comply with their "doubly-sworn" duty to ensure those who sought their protection obtained it and/or what the law required them to provide and/or "blow whistles" about OSC and OSC attorney lawbreaking.  Additionally, possibly hundreds of other attorneys, including the licensed attorneys in so-called "whistleblower advocacy groups," in federal employee unions, or in the private sector specializing in federal employment law  "looked the other way" at the systemic and persistent lawbreaking of OSC and its licensed attorneys, contrary to their positive legal and professional duty to be "zealous advocates" for their clients while they sought or after they failed to obtain OSC's statutory required protection, because they benefitted economically as a direct or indirect result of OSC and its attorneys lawbreaking failures.  These on-looking attorneys, who profited from the lawbreaking by OSC attorneys,  are "accomplices after the fact."  I hope the legal profession takes a stiff brush to them also.

The practice of law in the District of Columbia is governed by the D.C. Rules of Professional Conduct and the District of Columbia Court of Appeals Rules governing the Bar.  Rule XI, "Disciplinary Proceedings," section 2(b), "misconduct," states:

"Acts or omissions by an attorney, individually or in concert with any other person or persons, which violate the attorney's oath of office or the rules of professional conduct currently in effect in the District of Columbia shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship."

The "attorney's oath of office," makes similar, if fewer, demands than the "oath of office" of elected or appointed (career civil service or politically appointed) federal employees, found at 5 USC 3331.  But by each (and the attorneys subject to this misconduct complaint took both), the licensed attorney takes an oath requiring compliance with the rules of professional conduct of their profession, including "blowing whistles," when necessary, about their violation by other attorneys and "blowing whistles" when laws created to protect those who lawfully seek their protection are not being complied with, particularly by government agencies.

Rule of law is meaningless when licensed attorneys suborn their duty to uphold the law and "blow whistles," as necessary, to ensure those the law states they must protect receive that protection, particularly when those lawfully seeking their protection have taken tremendous risk to uphold their lawful duty to protect America and the health and safety of Americans.

Relevant parts of the Rules of Professional Conduct of the DC Bar, applicable to this complaint in my non-attorney opinion, include: 1.1, comments 1 and 5; 1.2(d); 1.3(a), comments 1, 2, and 5; 1.4(a) and (b); 1.13 (b), comment 7; 2.1; 2.3; 4.1; 5.1;5.2;  8.3; and 8.4.

For 15 years, I  have been "in the docket," risking, suffering, sacrificing to an extraordinary extent, with my family, to uphold and defend my positive legal and professional obligations - my "doubly sworn duty" as a licensed professional engineer (P.E.) employed as a nuclear safety engineer in Department of Energy, to "blow whistles," when necessary to protect public health and safety.   Most, if not almost all, of this suffering, risk, and sacrifice can be traced to the betrayal of the attorneys listed in this complaint and the likely hundreds of other implicated licensed attorneys.  It would only have taken one, acting with courage and conviction, to expose the others' lawbreaking.

I accept that the Office of Bar Counsel may need for the pending litigation in Carson v. Office of Special Counsel, docket no. 05-537, in Federal District Court for the District of Columbia to be concluded before concluding an investigation of this complaint and proceeding against these and other implicated licensed attorneys.

I have informed the presiding judge in that case, Honorable Paul Friedman, a former President of the DC Bar, of my expectation that he scrupulously comply with his positive legal and ethical duty to "blow whistles," on the meltdown of legal ethics at OSC and of my intention to file a judicial misconduct complaint against him, if I perceive I have grounds to do so and that doing so might help expose the meltdown of legal ethics at OSC.  The stakes are too enormously high, for the legal profession, for the federal civil service, for rule of law, for America,  and the health and safety of every American, to do otherwise.

The 19 exhibits to this complaint detail some, but far from all, my concerns about systemic and persistent lawbreaking by OSC and its licensed attorneys.  Basically, I claim that OSC and its licensed attorneys have failed to make and report the statutory required determination - to the complainant when negative and, when a positive PPP determination is made, to the complainant and the involved agency (at a minimum, when reported by 5 USC 1214(e), when reported per Weber, then to MSPB and OPM also) - whether there are (not) reasonable grounds to believe a prohibited personnel practice (PPP) has occurred, exists, or is to be taken.  This claim is relevant to almost all of the 25,000 PPP complaints OSC has investigated since 1989.  (See exhibits 2-10, 13 - 16, 18 and 19).

Additionally, at this point, OSC has destroyed the relevant evidence for most of these investigations, what remains is insufficient to document its compliance with its statutory obligations to make and report these determinations.  All that is now available, in most cases, is documentation that OSC make a discretionary determination not to petition MSPB for corrective action, a determination it can make independent of its statutory required determination.

Anyone can verify that the public record created by 5 USC 1219, available for public review at OSC HQ,  per 5 CFR 1800, demonstrates that as of March 2006, OSC had not make a single 5 USC 1214(e) report of it making any positive PPP determination (or its making a positive determination of any other non-criminal violation of any law, rule, or regulation) since 1989.  OSC has likely conducted about 25,000 PPP investigations involving about 50,000 specific PPP allegations, in that time, together with several thousand other, non-PPP, investigations.

Additionally, I claim that OSC has failed to notify the approximately 18,000 federal employees who have sought its protection since passage of P.L. 103-424 of their entitlement to obtain the information described in the "termination statement" of 5 USC 1214 or, in any case, provide it when requested.  (See exhibits 4, 11, 12, 14, 15, 16, and 18.)

Neil McPhie, Chairman of the U.S. Merit Systems Protection Board, recently informed me (exhibit 2) that based on MSPB records of the past five years, OSC did not report a single positive PPP determination to it from 2002 through 2004, per its statutory obligation as specifically cited in the one published decision since 1989 about OSC's statutory obligations to protect those who seek its protection, Weber v. Dept. of Army, 209 F.3d 756, 758 (D.C. Cir. 2000).  Weber states that OSC "must" report all its positive PPP determinations to MSPB, while it "may" petition MSPB for corrective action as a result of a positive PPP determination (exhibits 2 and 3).

OSC is a house of cards, and its licensed attorneys systemic and persistent lawbreaking is an indirect contributor to 9/11, the failure of levees in New Orleans, and loss of Columbia space shuttle (along with most other instances of malfeasance and/or incompetence in the agencies under its jurisdiction).

After 15 years of Carson v. Department of Energy, I now put the legal profession in the docket, and charge it and the involved attorneys (and judges) to do it and their positive legal and professional duty, consistent with the vital public trust the legal profession holds for its self-regulation, to get to the bottom of this meltdown in the scope and/or implementation of legal ethics in OSC.

The undersigned hereby certifies to the Office of Bar Counsel that the statements in the foregoing Complaint are true and correct to the best of my knowledge.

_______________________________

Joseph P. Carson, P.E.

______________________

Date

Exhibits to Joseph Carson's Misconduct Complaint to Office of Bar Counsel, DC Bar, Regarding Past and Present Supervisory Attorneys, Career and Appointed, at U.S. Office of Special Counsel

1.      Mr. Carson's October 5, 2006 email to Office of Bar Counsel alleging a "meltdown" of legal ethics at OSC, implicating possibly hundreds of licensed attorneys

2.      The September 25, 2006 response of Neil McPhie, Chairman of the U.S. Merit Systems Protection Board (MSPB) to Mr. Carson's FOIA appeal which states that OSC made neither any positive PPP determinations to MSPB from 2002-2004 nor reported any instances of  agencies adopting OSC recommendations to correct positive PPP determinations in past five years.

3.      Marked up page 758 of Weber v. Dept. of Army, 209 F.3d 756 (D.C. Cir. 2000), which states that OSC "must" report all its positive PPP determinations to MSPB, while it "may" petition MSPB for corrective action as a result of a positive PPP determination.

4.      Marked-up pages 3, 4, 7, and 8 of OSC's 2002 Annual Report to Congress, made per 5 USC 1218.  Despite OSC apparently making positive PPP determinations in 107 PPP investigations and achieving 126 "favorable actions" as a result, it did not once, per the law and the Court's determination in Weber, report them to MSPB.

Additionally, OSC fails to mention the statutory required "termination statement" in list the changes made to the Federal Whistleblower Protection law by P.L. 103-424

5.      Marked-up pages 4, 6, 7, and 10 of OSC's 2003 Annual Report to Congress, made per 5 USC 1218.  Despite OSC apparently making positive PPP determinations in 83 PPP investigations and achieving 115 "favorable actions" as a result, it did not once, per the law and the Court's determination in Weber, report them to MSPB.

6.      Marked-up pages 9 and 10 of OSC's 2004 Annual Report to Congress, made per 5 USC 1218.  Despite OSC apparently making positive PPP determinations in 57 PPP investigations and achieving 83 "favorable actions" as a result, it did not once, per the law and the Court's determination in Weber, report them to MSPB.  (Note:  Even though FY 2006 is now concluded, OSC has yet to issue its FY 2005 Annual Report to Congress.)

7.      Marked-up pages 2-4 of OSC's December 17, 2004 motion to dismiss Mr. Carson's petition for writ of mandamus in Carson v. Office of Special Counsel, docket no. 04-0315, D.D.C., docket report no. 29, which show OSC does not comply with law, as detailed in Weber, in reporting its positive PPP determinations to MSPB.   The statements contained in OSC's motion, while contrary to Weber, are consistent with the statements in its 2002-2004 Annual Reports to Congress.

Additionally, it is worth noting that OSC's brief does not mention use of "settlements" to resolve PPP complaints, even though this practice is frequently cited in its Annual Reports to Congress.  This is because OSC's practice of inducing agencies to settle by offering to forego formally reporting its positive PPP determinations is unlawful.   The law requires OSC to report each and every positive PPP determination it makes, not to "dangle" them in front of the agency to induce the agency to take corrective action.

If the agency take appropriate "favorable action" as a result, the law requires this to also be reported.  OSC apparently has not, since 1989 (and particularly after Weber in 2000), not in about 25,000 PPP complaints alleging about 50,000 specific PPP's it has investigated, properly done this.

8.      marked-up pages 2 and 3 of Opinion of March 27, 2006 in Carson v. Office of Special Counsel, Docket no. 04-315, D.D.C., docket report no. 43, which show the Court adopted OSC's unlawful reasoning (by Weber) in its decision.

9.      Marked-up pages 2-4 of OSC's May 25, 2005 motion to dismiss Mr. Carson's petition for writ of mandamus in Carson v. Office of Special Counsel, docket no. 05-0537, D.D.C. docket report no. 9.  The statements contained in OSC's brief is consistent with Weber, but inconsistent with OSC's annual reports to Congress.

Additionally, it is worth noting that OSC's brief does not mention use of "settlements" to resolve PPP complaints, even though this practice is frequently cited in its Annual Reports to Congress.  This is because OSC's practice of offering to not formally report its positive PPP determinations as an inducement to settle is unlawful.   The law requires OSC to report each and every positive PPP determination it makes, not to "dangle" them in front of the agency.  If the agency take appropriate "favorable action" as a result, the law requires this to also be reported.    OSC has not, since 1989 (and particularly after Weber in 2000), not in about 25,000 PPP complaints alleging about 50,000 specific PPP's it has investigated, properly done this.

10.     Marked-up OSC motion of June 5, 2006 in Carson v. Office of Special Counsel, Docket no. 05-537, docket report no. 34, in which OSC makes the astounding claim, particularly in light of Weber, that its compliance with 5 USC 1214 is beyond the Court's review.

11.     Marked-up page 12 of Senate Report 103-358, August 23, 1994, about purpose of "termination statement" in OSC's PPP investigation termination letters.  OSC apparently has never complied with the letter or intent of this law, to include "termination statements" and make the information described in them available to complainants.

12.     The statutory required "termination statement," from "notes" section of 5 USC 1214.

13.     Marked-up pages 6 and 7 of Senate Report 103-358, dated August 23, 1994, about OSC leaving investigations open for years, while pursuing settlement with agencies, instead of making a determination and reporting it to MSPB, the involved agency, and the complainant.   Despite the legislative history and the 1994 law, OSC and its attorneys have no changed their practice, instead they now claim this practice is immune from Court review.  Doubtless, the attorneys subject to this complaint will make the same claim - they are beyond the jurisdiction of the Office of Bar Counsel in their actions as licensed attorneys employed by OSC.

14.     OSC PPP termination letter to Mr. Carson for OSC file no. MA-04-1018, dated May 3, 2004.  The letter does not make the statutory required determination ("whether there are (not) reasonable grounds to believe a PPP has occurred, exists, or is to be taken"), instead it only reports OSC's discretional determination to close the complaint without seeking further corrective action by petitioning the MSPB.   Compare with Weber - OSC "must" report its positive PPP determinations, while it "may" petition MSPB for their correction.

Additionally, the letter does not include the statutory required "termination statement."  When Mr. Carson called Ms. Wheeler to seek the information described in the termination statement, she told him that she had no idea what he was talking about.   Mr. Carson has yet to receive a PPP investigation termination letter which made the statutory required determination and/or included the statutory required termination statement (since P.L. 103-424 became effective), not in over 20 he has received since 1992.  Neither will anyone at OSC provide him the information described in the "termination statement."

15.     Marked-up transcript of motion hearing of June 20, 2006 in Carson v. OSC, docket no. 05-537, exhibit 2 to docket report no. 65, pages 7, 8, 18, 19, 20, 28, and 29.   Page 7 and 8 address the "termination statement" without addressing the point of the termination statement is so the complainant can obtain information from OSC.  OSC will not provide Mr. Carson  the information described in the "termination statement," despite his numerous phone calls to obtain it.

The other transcript pages address OSC's compliance with 5 USC 1214(e).   Mr. Carson does fully not agree with the Court's reasoning in Weber, he contends that OSC must report its positive PPP determinations per 5 USC 1214(e), which allows the reports described in Weber to be used as an alternative it.   OSC, based on pages 28 and 29 of the transcript, now agrees with Mr. Carson.   But, per 5 USC 1219, all reports OSC makes per 5 USC 1214(e) and the agency responses are public records, maintained available for public inspection at OSC HQ, per 5 CFR 1800.   Mr. Carson has reviewed these records and verified that since 1989 (as of March 2006), OSC has not made a single 5 USC 1214(e) report of a positive PPP determination (or anything else).

Regardless of whether Mr. Carson fully agrees with it, Weber is now the law.  If OSC does not wish to comply with it, it should request a change in the law in its Annual Reports to Congress, as explicitly described in 5 USC 1218.   Mr. Carson has spoken at some length with Mr. Weber and also with Ms. Blue, the attorney who was assigned by the Court to assist him.   Neither was familiar with 5 USC 1214(e), which is apparently why neither side mentioned it in Weber, leading the Court not to mention its relevancy to OSC's positive PPP determinations.

16.     Marked-up pages 5, 6, and 7 of OSC's 1996 Annual Report to Congress, per 5 USC 1218, which demonstrate OSC's non-compliance, pre-Weber, with its statutory obligation to report each and every of its positive PPP determinations to MSPB.   The stress on informal settlements, achieved by OSC offering to violate its statutory obligations to protect federal employees by reporting its positive PPP determinations, goes unmentioned in the related OSC briefs in Carson v. OSC.  (Note that the OSC annual report to Congress for FY 1996, issued in mid-1997, did not reflect the numbering changes made in 5 USC 1214 - it still referred to what was then 1214(b)(2)(B) for over 2 years as 1214(b)(2)(A) and what was then 1214(b)(2)(C) for over two years still as 1214(b)(2)(B)).

Additionally, its treatment of 5 USC 1214(e) is incorrect, based on the admissions OSC made in open Court in Carson v. OSC.  The scope of 1214(e) includes any violation of any law, rule, or regulation, whether or not it is otherwise within OSC's jurisdiction.  If it is within OSC's jurisdiction, a report per 1214(b)(2)(B) can be made subsequent or as an alternative to a positive PPP report made per 1214(e).   The reports have different purposes - a report is made per 1214(e) to create a public record of the PPP and the actions the agency has or will take to correct it.  A report is made per 1214(b)(2)(B) when OSC is not satisfied with the agency's response to its 1214(e) report or when it otherwise decides to establish jurisdiction at MSPB to seek corrective action on behalf of the affected employee, if the involved agency does not take adequate action to correct the situation.

17.     Mr. Carson's motion of October 11, 2006, requesting information about the Court's possible referral of OSC's attorney malfeasance in Carson v. OSC, docket no. 05-537, docket report no. 61.

18.     Marked-up page 4 of OSC's reply brief of July 18, 2005, docket report no. 14, in Carson v. OSC, docket no. 05-0537, in which OSC makes the astounding claim, that despite Weber and despite the requirement to include the termination statement in its PPP investigation termination letters and provide the information described in it upon request, it does not have to tell the complainant its statutory required determination "whether there are (not) reasonable grounds to believe a PPP has occurred, exists, or is to be taken."

19.     Statement of Findings and Purpose of P.L. 101-12, "Federal Whistleblower Protection Act of 1989," taken from "notes" section of 5 USC 1201

NOTES:

1  The entire decision in Weber v. Department of Army, 209 F.3d 756 (D.C. Cir. 2000) is available here.

2.   All the filings, orders, opinions, etc for Carson v. U.S. Office of Special Counsel, docket nos. 04-0315 and 05-0537, Federal District Court for the District of Columbia, are available via the Court's ECF (electronic case filing) website.  To obtain a PACER password and establish a PACER account needed to obtain federal court documents via ECF, go to the PACER service website.

OSC destroys the evidence

The October 1993, OSC sent a PPP termination notice, for file MA-93-0151, that did not report OSC's statutory required investigatory determination - "whether there are reasonable grounds to believe a PPP occurred."

Instead, OSC made a report of its completely discretionary prosecutorial determination "there was insufficient evidence for OSC to seek further corrective action on my behalf." 

"Insufficient" by what standard?  The "we just do not like you standard?"  The "irrefragable proof" standard?  The "we're just too busy right now standard?"

Subsequently, OSC destroyed the PPP investigation files.  At this point, all it has is the computer record summarizing its processing of the PPP complaint, which does not demonstrate that OSC made, even internally, the statutory required determination, or reported it.

OSC destroys its PPP investigation files three years after closing them.  That is now about 20,000 PPP investigation files since 1989.  In almost all of those cases, OSC now is unable to prove it provided the statutory required protection - it made and reported its statutory required determination - "whether there are reasonable grounds to believe a PPP occurred," to the federal employees who sought its protection.

The document - OSC's PPP termination notice, the only record it now has of its PPP investigation, and a declaration by an OSC employee - demonstrate OSC cannot now show it complied with its lawful duty to protect about 20,000 federal employees who sought its protection since 1989.