Dear Federal Whistleblower Community,
I have been a federal whistleblower for 20 years. I think I have finally gotten to the root of the rot in the federal civil service - 33 years of the Office of Special Counsel being a lawbreaking fraud of a federal law enforcement agency, despite its being created to protect federal employees from agency lawbreaking; enabled by 33 years of MSPB lawbreaking in not "regulating" OSC's performance as an investigatory agency, via its special studies function.
In addition to seeking redress via the Executive Branch by trying to persuade whomever needs to be persuaded to task the Office of Legal Counsel of the Department of Justice to issue opinions an the 3 contested civil service laws, I am pursuing justice at the Judicial Branch (while not forgetting the Legislative Branch, nor the "fourth branch" - the media), see www.broken-covenant.org.
My deadline to file a petition for writ of certiorari at Supreme Court in Carson v. OSC, from 6th Circuit in docket no. 09-5645 is 11/3. I am looking for an attorney in what could be a most, if not the most, civil service case at Supreme Court since CSRA. I am willing to take out a second mortgage, if necessary, to pay the attorney.
There is a “split in the circuits” about a narrow question of law – do federal district court have jurisdiction to review an OSC determination that it does not have jurisidiction to investigate a complaint? In 2000 the DC Circuit issued a precedential decision that federal district courts had such jurisdiction and the power to issue writs of mandamus to compel OSC to investigate a complaint on the merits. The case Weber v. Dept. of Army, 209 F.3d 756 (D.C. Cir. 2000).
In February of this year, the 6th Circuit issued a precedential decision in my case disagreeing with Weber and determining federal district courts did not have such jurisdiction.
I think Carolyn Lerner, the new Special Counsel, could be persuaded to ask the ;Solicitor General to file a response in acquiescence to my petition for writ of certiorari, if the Whistlebloer Community community gets behind it. That means the Solicitor General informs the Supreme Court that it thinks the case warrants a Supreme Court review - it does this a few times a year.
Why should the whistleblower community get behind an effort to have the Supreme Court consider this case? Several reasons, including: 1) If the Supreme Court determines federal courts have such jurisdiction, the case will be returned to 6th Circuit to determine whether agency personnel directives are “civil service rules” per 5 U.S.C. section 1216(a)(4). It will also be returned to the 6th Circuit to determine whether the reporting requirements of 5 U.S.C. section 1214(e) apply to violations within the enforcement jurisdiction of OSC.
So, if an agency regulation or directive for personnel security clearance prohibits revoking a clearance in reprisal, then 5 U.S.C. section 1216(a)(4) could provide OSC a reason to investigate complaints of such agency wrongdoing and to seek corrective action on behalf of impacted employee (as well as disciplinary action).
Otherwise the Supreme Court is tied up in knots about Egan v. Navy – it can’t be saying that agency violations of their rules and regulations are somehow beyond remedy because they involve security clearances. The Federal Circuit has made clear that agencies must follow their procedures for revoking security clearances. Well, if those regulations/directive specifically prohibit reprisal in security clearances (Egan did not argue that any specific Navy rules/regs were violated in removing his clearance for improper reasons, and none may have been – the 1996 Executive Order for Security Clearances does not explicitly prohibit revoking clearances in reprisal), then it is an untested question of law as to whether OSC can seek remedy.
Think of all the whistleblowers who got slammed at MSPB/Fed Ckt since 1989 – 1216(a)(4) could provide a way for OSC to go to bat for them, even now. And if we get a ruling that 1214(e) reporting requirements apply to violations within OSC’s enforcement jurisdiction, then everyone who filed a complaint with OSC since 1979 could, in theory, refile it – and OSC destroys its investigative files after 3 years, possibly in violation of the law (the National Archives was surprised to learn of OSC's practice is going to review it.)
If we get such a ruling, then MSPB’s failure to conduct “special studies” of OSC’s performance as an investigatory agency would be identified as the reason OSC failed to make required reports for 33 years in thousands of cases and, quite possibly, also unlawfully destroyed its investigative files. The combination of 33 years of OSC/MSPB lawbreaking could result in a groundswell of disgust at way concerned employees are treated in America, leading to viable whistleblower protection in federal civil service and elsewhere as well as some measure of justice, however delayed or limited, for the possibly ten thousand or more federal employees directly betrayed by 33 years of OSC/MSPB lawbreaking.