A rare whistleblower case is currently in front of the Supreme Court of the United States, at the petition for certiorari stage. The case has not yet been approved for hearing by the Court, but the Solicitor General waived his response. Doing so lessens the chances of the Court hearing the case.
The Solicitor General (a Senate-confirmed appointee at the Department of Justice who serves at the pleasure of the President), did so without consultation with the Office of Special Counsel. Why this poses a problem is described at the bottom of this post.
Also below is an explanation of an amicus curiae (“friend of the court”) brief that aims to get at least one Justice to seek a response from the Solicitor General and OSC. The amicus is joined by
a couple dozen 43 whistleblowers and supporters, including Lawrence Wilkerson, former Chief of Staff to Colin Powell, Coleen Rowley, Time’s Person of the Year for 2002, and Tom Devine, Legal Director of the Government Accountability Project (though not on behalf of GAP).
Pro se petitioner, Joe Carson, a Department of Energy Nuclear Safety Engineer and eight-time prevailing whistleblower, brought a prohibited personnel practice complaint against DOE to the Office of Special Counsel. OSC reviewed Carson’s complaint, determined that it did not fall within its enforcement jurisdiction, and closed the matter. Carson filed suit in federal district court in Tennessee, seeking a writ of mandamus to force OSC to investigate his complaint on the merits. In his pleadings, Carson relied on Weber v. United States, a D.C. Circuit decision that holds that a U.S. District Court has subject matter jurisdiction to issue a writ of mandamus if it determines that OSC violated a non-discretionary statutory duty to investigate an employee’s allegations. See Carson v. Office of Special Counsel, 633 F.3d 487, 492 (6th Cir. 2011).
Recognizing the validity of that holding, the Sixth Circuit on appeal nonetheless refused to apply it to Carson’s case; it flat out disagreed with it.
However, the procedural history in Weber is identical to that of Carson’s case: OSC refused to reach the merits of both whistleblowers’ complaints, disposing of them on jurisdictional grounds. Compare Weber v. United States, Civil Action No. 97-2260-LFO (D.D.C. 1999) (appendix 3a) with Carson v. Office of Special Counsel, No. 3:08-CV-330 (E.D. Tenn. 2009) (appendix 21)
In addition, the Sixth Circuit went further, likening OSC’s discretion in terminating investigations (which is not subject to judicial review per DeLeonardis v. Weiseman, 986 F.2d 725, (5th Cir. 1993)) to OSC’s jurisdictional determinations. The Sixth Circuit said,
Jurisdiction is a legal issue similar to the legal standard in dispute in DeLeonardis. Thus, we hold that a district court has subject matter jurisdiction to issue a writ of mandamus only if it determines that the Office of Special Counsel has declined to investigate a complaint at all; it has no subject matter jurisdiction to consider the Office of Special Counsel’s jurisdictional determinations or the merits of its investigations.
It did so without citation or any other support whatsoever. However, OSC’s “jurisdictional determinations” is what the Weber court holds to be within the province of judicial review.
Accordingly, the Sixth Circuit agrees with the Weber court insofar as “a district court has subject matter jurisdiction . . . if it determines that the Office of Special Counsel violated a non-discretionary statutory duty.” But it does not believe that a jurisdictional determination constitutes a “non-discretionary statutory duty.” In doing so, the Sixth Circuit decision is at odds with the Weber decision.
Nonetheless, the Solicitor General waived its response to Carson’s petition for certiorari, though it did so without any consultation with the Office of Special Counsel. Moreover, OSC has never appeared in front of the Supreme Court before.
Role of the Office of Special Counsel
Pursuant to the Whistleblower Protection Act of 1989, OSC is charged with “acting in the interests of” federal employees. Whistleblower Protection Act (WPA) of 1989 (Pub. L. 101-12). OSC has had a tumultuous history, culminating in the ouster of its last Special Counsel, Scott Bloch, on allegations of retaliating against his own employees, improperly closing whistleblower cases, and deleting his work computer when he was under investigation by the Federal Bureau of Investigation.
After two years without leadership, OSC is seeing new signs of fulfilling its stated mission. Its Senate-confirmed appointee, Carolyn Lerner, has taken several unprecedented acts to rebuild public confidence in her new office. Among these include demanding real accountability from the Air Force for mishandling troop remains in the Dover Air Base morgue, aggressively intervening in several cases at the Merit Systems Protection Board (MSPB) on behalf of whistleblowers, and preventing ongoing retaliation of several whistleblowers by requesting stays on their behalf.
In a community meeting in September 2011, Lerner stated her goals for OSC as
[Making] this public service agency as robust and vibrant as it can be. We will listen, we will be timely, and we will resolve cases with justice.
In the same speech, Lerner also stated,
I am determined to improve our outreach to federal employees and to make the agency more accessible and well-known.
For OSC to be robust, vibrant, and accessible, it ought to subject itself to judicial review when handling complaints erroneously, inappropriately, or without adherence to the law. At the very least, it ought to acknowledge, across all judicial circuits, what the Weber court already determined–that “a denial of review in the District Court will truly foreclose all judicial review.” Weber v. United States, 209 F.3d at 759.
OSC’s Unique Independence in the Executive Branch
Finally, OSC is arguably the most independent agency in the federal government; it is possessed with extraordinary powers to discipline or counter the Executive Branch. Congress recognized OSC’s independence by, for example, forbidding the removal of the Special Counsel absent “inefficiency, neglect of duty, or malfeasance in office”; allowing OSC to hire its own staff without review by the Office of Personnel Management; mandating an annual report only to Congress (contrast with the MSPB, which must provide its annual report to both Congress and the President); and submitting “whatever recommendations for legislation or other action by Congress the Special Counsel may consider appropriate,” (contrast with the MSPB, which “shall submit any legislative recommendations of the Board relating to any of its functions under this title.
Thus, this independence would be lessened if, on the rare times that OSC finds itself at the doorstep of the Supreme Court, its voice is silenced by the very branch of government it is tasked with overseeing.