September 11, 2018 entry:
Mr. Carson's detailed whistleblower disclosure to his supervisors, regarding the dozen civil service laws he claims OSC and MSPB are violating - and causing to be violated by the President and agency heads.
July 29, 2018 entry:
This website is a "work in progress," and has been updated to provide the background information for Joseph Carson, PE, handout at 2018 Whistleblower Summit for Civil & Human Rights, which is available here.
The complex, almost bewildering, statutory scheme to regulate the management culture in federal agencies so that their cultures "embody" the merit principles in which agency employees can effectively make whistleblower disclosures - they obtain a timely and objective resolution - while they are adequately protected from reprisal and other types of prohibited personnel practices (PPPs) is somewhat akin to a "3-legged stool" in which the "legs" are the head of the agency, the US Office of Special Counsel, and US Merit Systems Protection Board. The President is responsible to ensure this complex system, involving multiple agencies with complementary roles, is working.
Joseph Carson, PE ([email protected] 865-300-5831) says the "stool" in broken, with unconnected "legs." It is so broken, it is failing to alarm and inform agency heads, Congress and the President that is is broken. His in-depth analysis of the "broken-covenant" of merit-based federal agency employment is available here.
Essentially Joseph Carson, PE claims OSC is a decades-long, law-breaking fraud (a still draft whistleblower distclosure that lists the specific laws he claims it violates can be found here) because with 135 employees to police a federal work force of over 2 million, it cuts all kinds of legal corners. Engineering ethics are fundamentally different than legal ethics and the Special Counsel of OSC, now Henry Kerner, is not, by legal ethics, responsible to ensure OSC faithfully follows the law. Instead, when someone as Joseph Carson, PE, alleges OSC is not properly interpreting and applying its statutory duties to investigate whistleblower reprisal complaints - or other types of prohibited personnel practice (PPP) complaints and/or to report the results of its investigation, then the Special Counsel, as other OSC attorneys, invoke legal ethics to do everything they can to prevent any objective resolution of those claims. How? They claim that they are in an attorney-client relationship with OSC and must hold OSC's interests paramount, not the merit principles nor American health, safety, security and welfare.
Ditto for MSPB, its leaders and attorneys, with a twist (his still draft whistleblower disclosure about it can be found here). They appear to claim that MSPB has an inherent conflict of interest in complying with its statutory duty to conduct the requisite "special studies" of OSC and other agencies to determine and report to the President and Congress "as to whether the public interest in a civil service free of (reprisal and other types) of prohibited personnel practices is being adequately protected." So in 40 years they have not conducted any special study adequate to make such a determination - apparently because they know that if they were to do such a special study, it would find that federal agency employees are not adequately protected from reprisal and other types of prohibited personnel practices (PPPs), therefore implicating MSPB, their client in an attorney-client relationship, in not accomplishing its statutory function of "protecting" the "merit systems" of the Executive Branch.
Joseph Carson, PE, assures the public that no one in OSC, MSPB, Congress, White House, GAO, or whistleblower advocacy groups says he lacks "reasonable belief" in his claims that OSC and MSPB, for decades, have been violating about a dozen specific civil service statutes. Neither OSC nor MSPB have IGs, so that avenue is not available and it would likely run into the same "attorney-client" legal ethics quagmire - the attorneys at OSC and MSPB do not hold their primary duty to ensure OSC and MSPB are properly following the law - they hold their primary duty is to prevent any possibility of an objective determination that OSC and MSPB are not doing so.
Current legal ethics simply do not address the duties of a federal agency attorney, when they are the actual "doers" of specific laws - such as in OSC and MSPB - to ensure they are being properly interpreted and applied. Instead, they only address the duty of such an attorney to do whatever they can to prevent a determination that they are not being properly interpreted and applied, because their client's interests (in this case their employing agency OSC or MSPB) are their paramount concern.
And here we are, in a Country that seems to diminish almost by the day. What is it that Shakespeare said about the lawyers?
April 19, 2018 entry: (Note: The Supreme Court denied the petition for certiorari on June 11, 2018, so the part about asking Congress to express interest is moot)
Americans trust in their government is at an all-time low. Why? The public testimony of Joseph Carson, PE (professional engineer), a multiple-time prevailing federal agency whistleblower, is that the federal government too often fails its duties to protect American health, safety, security and welfare. Why? In Mr. Carson's opinion it is because President Trump, as his predecessors of past 40 years, is failing, refusing and/or unable to comply with his primary statutory duty to over 2 million federal agency employees - to take any action necessary to ensure their employment embodies the merit principles and is free of reprisal and other types of prohibited personnel practices (PPPs) - see 5 U.S.C. section 2301(c).
Mr. Carson has been making whistleblower disclosures for 15 years against the US Office of Special Counsel (OSC), the federal agency with the statutory duty to protect federal agency whistleblowers and the US Merit Systems Protection Board (MSPB), the federal agency with the statutory duty to report to the President and Congress whether federal agency whistleblowers are adequately protected from reprisal. No one, anywhere, is now claiming none of his disclosures (there are about a dozen specific laws involved) are at least reasonably evidenced. But they remain unresolved, year after year, because the leaders (who are also attorneys) at OSC and MSPB want them to remain unresolved, regardless of the impact on American health, safety, security and welfare, regardless of how it erodes trust in government. These government officials, in Mr. Carson's opinion, are acting in untrustworthy ways, regardless of the costs to America. Mr. Carson states this publicly, consistent with this legal and professional duties to protect public health and safety as a professional engineer (PE), regardless of risk to his PE license, his sensitive security clearance, or his federal employment.
To obtain an objective resolution of his whistleblower disclosures, Mr. Carson has now invested over $60,000 in attorney fees and costs to bring his unprecedented third federal whistleblower appeal to the US Supreme Court, Carson v. MSPB, docket no. 17-1434. Other than his duty - as a Christian, American, PE, and federal agency employee - to protect others' health and safety, there is nothing in it for him. He will not get a single cent (except, perhaps some of the attorney fees and costs involved) if he prevails.
In his petition for certiorari, Mr. Carson requests the Supreme Court to remand an unpublished, summary, appellate court decision involving a federal whistleblower law that has not, in 24 years, ever received a court review, back to the appellate court with instructions to issue a published, precedential, decision that applies Supreme Court precedent in a 2006 reprisal case, Burlington v. White. The Solicitor General, representing the government, waived its response to his petition. It takes a single Supreme Court judge to request a response from the Solicitor General. Unless this happens, the Supreme Court will certainly deny Mr. Carson's petition. Congress, the President, and other stakeholders to a trustworthy federal civil service, rely on appellate courts to perform their constitutional function of issuing precedential decisions when presented with new questions of federal whistleblower law. Without such precedential decisions, Congress is thwarted in its oversight and legislative functions. Tom Devine, the long-time Legal Director of the Government Accountability Project (GAP), the nation's leading whistleblower advocacy organization, filed an amicus curiae brief making these points.
Given its arguments, it is important that current or former members of Congress join it. Please contact the Senators and Congressman listed below. They lead the Committees that provide oversight of the Federal Civil Service or the Congressional Caucuses for Whistleblower Protection and request them to join an amicus curiae (friend of the court) brief.
A suggested email to Congress follows:
Dear Member of Congress,
On April 16, 2018 the Supreme Court docketed an unprecedented third federal whistlelower appeal, no. 17-1434 from Joseph Carson, PE. It is Carson v. Merit Systems Protection Board, docket no. 17-1434. I understand you are aware of this case and Mr. Carson's request that you join the amicus curiae of Tom Devine in arguing the ability of Congress to perform its constitutional functions of oversight and legislation is thwarted when an appellate court issues a nonprecedential, summary, decision when there has been no previous court review of the involved whistleblower law.
Please give every consideration to joining Mr. Devine's amicus curiae brief supporting Mr. Carson petition that the decision be vacated and remanded with instructions to issue a decision that allows Congress to perform its oversight and legislative functions. I understand the Solicitor General waived its response to Mr. Carson's petition. If you and others in Congress join the amicus curiae brief, then the Supreme Court may request a response from the Solicitor General - and the Solicitor General may possibly agree that a precedential decision is warranted in this matter. Thank you for your attention to this matter and your support of federal whistleblowers.
Respectfully,
Name
Key Members of Congress to contact:
Senator Ron Johnson (R-WI), Chairman, Homeland Security and Governmental Affairs Committee whist[email protected]
Senator Clair McCaskill (D-MO), Ranking Member, Homeland Security and Governmental Affairs Committee [email protected]enate.gov
Senator Chuck Grassly (R-IA), Co-Chairman, Senate Whistleblower Protection Caucus [email protected]
Senator Ron Wyden (D-OR), Co-Chairman, Senate Whistleblower Protection Caucus https://www.wyden.senate.gov/contact/email-ron
Congressman Trey Gowdy (R-SC), Chairman, Oversight and Government Reform Committee https://oversight.house.gov/whistle/
Congressman Elijah Cummings (D-MD), Ranking Member, Oversight and Government Reform Committee https://democrats-oversight.house.gov/contact/tip-line
Congressman Kathleen Rice (D-NY), Co-Chair, House Whistleblower Protection Caucus [email protected]
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