The lawyer-leaders of the Merit Systems Protection Board (MSPB) - a threat to American health, safety, security and welfare?

Update: February 12, 2023

President Biden (re) nominated Cathy Harris to be Chair of MSPB in early January.  Because she made highly partisan tweets and statements during the Presidential election of 2016 (when she was in private sector), Republican Senators would not confirm her as Chair in 2022, but only as a Member of MSPB.  President Biden then designated her as Vice Chair and Acting Chair.  With the new Congress and a Senate Majority, President Biden is trying again.

Joseph Carson, PE has informed Ms. Harris - and others -  that he is willing to spend up to 100K to obtain an objective resolution of his whistleblower disclosure against her.  He has also informed the Senate Committee - Homeland Security and Governmental Affairs - of his whistleblower disclosure against her and called for its resolution before considering her confirmation.

He also filed a professional misconduct against her with the DC Bar, her attorney licensing authority, based on his claims that her efforts to put the interests of her client, MSPB, her employing agency, above that of the mission of MSPB to protect trustworthy federal employees from unlawful reprisal and other unlawful agency employment practices is a violation of the rules of professional conduct  of the DC Bar and US Office of Government Ethics regulations.

A sign-on letter to President Biden, calling for him to direct the Attorney General to issue a determination on the validity of Mr. Carson's whistleblower disclosure against the current and past lawyer-leaders of MSPB, is being circulated for signatures.

Update:  November 7, 2022

MSPB's November 7, 2022 response to Doug Hartnett's letter it of October 7, 2022 takes no exception to Mr. Carson's whistleblower disclosure that it lawyer-leaders, since its creation in 1979, have failed or refused to comply with their single most important statutory duty for American health, safety, security and welfare - which is to "report to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected," per 5 U.S.C. section 1204(a)(3). 

Neither does it take exception to the recent determination of the National Legal Research Group that the current lawyer-leaders of MSPB have a positive legal duty - both as lawyers and employees of the Executive Branch - to obtain an objective resolution of Mr. Carson's whistleblower disclosure.   This legal duty flows from the regulations of the US Office of Government Ethics and from the rules of professional conduct of their lawyer licensing authorities, which are also regulations.  Their legal duty does not explicitly flow from any statute, so the MSPB General Counsel is technically correct to state that the lawyer-leaders of MSPB do not have a "statutory obligation" to obtain its resolution.  

November 2, 2022

Joseph (Joe) Carson, PE, as a condition of being a professional engineer (PE) licensed in Tennessee (license no. 106350), has a statutory duty to be "truthful and objective" in his public statements and testimony.   He also has a positive legal duty to "blow whistles" about government law-breaking  relevant to his legal duty to "hold paramount the public health, safety, and welfare in the performance of professional duty."  As a federal agency employee, he also has a positive legal duty to "blow whistles" about government agency law-breaking he witnesses. 

Consistent with the above duties and obligations, regardless of risk to his PE license and federal agency employment, Mr. Carson public states and testifies that the lawyer-leaders of the Merit Systems Protection Board (MSPB), since its creation in 1979, have refused or failed to comply with their most important statutory duty for protecting American health, safety, security and welfare.  This duty is to inform the President and Congress whether federal agency employees are adequately protected from reprisal and other unlawful federal agency employment practices - in short, whether federal agency employment practices are merit-based, as required by law, not corruption-based. 

No one, anywhere, disputes the lawyer-leaders of MSPB have failed or refused to make this statutory required report.  Instead, for 15 years now, the lawyer-leaders of MSPB have done their utmost to prevent any resolution of Mr. Carson's whistleblower disclosure against them.  Why?  They take no exception to Mr. Carson's claim that they twist legal ethics to justify it, by claiming that since MSPB is their client, their primary professional duty is to protect MSPB, regardless of resultant harm to American health, safety, security and welfare.  They take no exception to Mr. Carson's claim that they twist legal ethics to conclude that since it would not be in the interest of MSPB, their client, to report that federal agency employees are NOT adequately protected from unlawful agency employee practices, they will not make the report.  They take no exception to Mr. Carson's claim that they also twist legal ethics to justify their not explaining why they do not make the report.

Mr. Carson's lawyer, Doug Hartnett, recently requested the current lawyer-leaders of MSPB end MSPB's 15 years of stonewalling and obfuscation about Mr. Carson's undisputed, readily verified, whistleblower disclosure against them.   His letter relies on the independent, objective, review of the National Legal Research Group that the lawyer-leaders of MSPB violate their duties as licensed attorneys and principal officers of the U.S. Government if they put the interests of their client, MSPB, above that of American health, safety, security and welfare.  As part of their cover-up and Mark Harrison, a nationally recognized expert in judicial and legal ethics, has determined, in his 18 page independent report, that the Merit Systems Protection Board (MSPB) violated the Constitution, the law, Supreme Court precedent, and its own regulations when it refused to recuse from adjudicating Mr. Carson's whistleblower appeal - an appeal that included his undisputed whistleblower disclosure that MSPB has failed or refused, since its creation in 1979, to comply with its statutory duty "to report to the President and to the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected." (5 U.S.C. section 1204(a)(3)).

For approaching 20 years, Engineer (Engr.) Carson has been bringing forward this whistleblower disclosure, as detailed below.  

Selected records of Engr. Carson's approaching 20 years of futility in bringing this whistleblower disclosure forward - due  to the lawyer-leaders of MSPB twisting legal ethics to justify putting the interests of their client, MSPB, above American health, safety, security and welfare.  In Mr. Carson's opinion, the abuse of legal ethics by the lawyer-leaders of MSPB is  "but for" factor in much which has befallen America since 1979 and besets America today.   

1. Engr. Carson's November 19, 2006 whistleblower disclosure about MSPB  law-breaking  to Mr. Bungard
2. MSPB's November 28, 2006 "blow off" response, which fails to mention Engr. Carson's whistleblower disclosure about MSPB law-breaking.
3. Engr. Carson's FOIA Request of December 1, 2006, requesting information about MSPB's reports "to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected."
4. MSPB's FOIA response of December 4, 2006, which fails to cite any document that makes the required report, while describing its duty to do so as "central" to its mission.
5. Engr. Carson's FOIA appeal of December 9, 2006, based on MSPB's failure to respond to  the specifics of his FOIA request.
6. MSPB Chairman Neil McPhee's January 17, 2007 response to Engr. Carson's FOIA appeal, in which he admits MSPB has no records of making the required report since its creation in 1979.
7. Decision of a Federal Judge in Engr. Carson's subsequent FOIA lawsuit, Carson v. MSPB, docket no. 07-0261, Federal District Court for the District of Columbia, which makes clear that MSPB has no records of making the required report since its creation in 1979. 
8. Decision of a Federal Judge in Engr. Carson's suit to force MSPB to "report to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected."  Carson v. MSPB, docket no. 07-0445, Federal District Court for the District of Columbia.  Mr. Bungard apparently directed or allowed DOJ to make a false claim to a federal judge in this case. 
9.  Prepared Senate Testimony of Susan Tsui Grundmann at her confirmation hearing to become Chairman of MSPB, October 20, 2009, S. Hrg 111-452.  In her sworn testimony, she stated, "In particular, I pledge to report to the President and to the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected."  Ten years later, MSPB has yet to make this report.   
10. MSPB response of December 18, 2009 to Engr. Carson's FOIA request in which it admitted it has no records to demonstrate that in its then 30 years of existence, its three member board had complied with their statutory duty to "prevent prohibited personnel practices" in MSPB.  
11. Engr. Carson's May 6, 2010 Whistleblower Disclosure to the US Office of Special Counsel (OSC) about MSPB's failure or refusal to "report to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected."  OSC claimed it lacked jurisdiction to consider Engr. Carson's whistleblower disclosure. 
12. Engr. Carson's May 28, 2011 FOIA request regarding MSPB Chairman Susan Tsui Grundmann's responsibility to "report to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected." 
13. Independent Legal Analysis of Loring Justice, Esq., dated September 1, 2011, of MSPB's compliance with its duty to "report to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected."   He concluded there was no reasonable doubt MSPB was violating this duty, arguably its most important duty to the President, Congress, the federal civil service and American public. 
14. MSPB's response of October 28, 2011 to Engr. Carson's May 28, 2011 FOIA request, finding no responsive documents for everything related to MSPB's duty to "report to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected."
15. MSPB Initial Decision of November 6, 2014 in Mr. Carson's whistleblower appeal about 5 USC section 1204(a)(3) which took no exception to his having "reasonable belief" in the  disclosure.
16. MSPB's subsequent  Order of December 23, 2014 where its three members recused themselves from considering Engr. Carson's whistleblower disclosure that they were breaking the law in refusing or failing to "report to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected." 
17. MSPB's FOIA response of April 11, 2017 that it has no unpublished statements of policy regarding its statutory duty to "report to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected."
18. Dan Meyer, Engr. Carson's then attorney, June 14, 2019 email to the Senate Homeland Security and Governmental Affairs Committee (HSGAC) with his concerns about Mr. Bungard's apparent role in directing or concurring with DOJ making a false claim to a federal judge in litigation about MSPB's duty to "report to the President and the Cnogress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected."
19. Engr. Carson's July 24, 2019 letter to HSGAC, elaborating on concerns about Mr. Bungard's suitability and his 15 years-long effort to obtain a resolution of his whistleblower disclosure against MSPB
20. October 8, 2019: Engr. Carson made a whistleblower disclosure to the US Office of Special Counsel, per 5 U.S.C. section 1213(g)(1), about the Director of  Federal Bureau of Investigation (FBI), Christopher Wray, related to the whistleblower disclosure against MSPB.
21. September 30, 2019:  Engr. Carson made a whistleblower disclosure to the US Office of Special Counsel, per 5 U.S.C. section 1213(g)(1), about Acting Director of National Intelligence Joseph Maguire related to the whistleblower disclosure against MSPB.
22. September 22, 2019: Engr. Carson updated the Senator Whistleblower Caucus about his making a whistleblower disclosure to the US Office of Special Counsel per 5 U.S.C. section 1213(g)(1) about the failure or refusal of the MSPB to make its mandated report to Congress, per 5 U.S.C. section 1204(a)(3), in 40 years 
23. Mark Harrison's expert witness report of August 25, 2020 about MSPB's refusal to recuse from adjudicating Mr. Carson's whistleblower appeal - he determined it was a violation of Mr. Carson's constitutional right to due process.
24. The National Legal Research Group report from February 2022, that also concluded MSPB's refusal to recuse from adjudicating Mr. Carson's whistleblower appeal violated Mr. Carson's constitutional right to due process. 
25. The National Legal Research Group report from September 2022, that concluded the lawyer-leaders of MSPB have positive legal duties - both as federal agency employees and lawyers - should recuse from considering Mr. Carson's whistleblower disclosure against them and refer its resolution elsewhere.
26. Doug Hartnett's October 7, 2022 letter to the lawyer-leaders of MSPB, requesting they comply with their positive legal duty as federal agency employees and attorneys to recuse from considering Mr. Carson's whistleblower disclosure against them and request the President to direct the Attorney General to resolve it.
27. MSPB's response of November 11, 2022 to Mr. Hartnett's letter, which takes no exception to the validity and significance of Mr. Carson's whistleblower disclosure and no exception to the lawyer-leaders of MSPB having a positive legal duty - as federal agency employees and lawyers - to recuse from considering Mr. Carson's whistleblower disclosur9e