To whom it may concern:On Thursday, July 12, the a House Subcommittee will conduct an oversight hearing of Office of Special Counsel and Merit Systems Protection Board. I will be at the hearing, distributing a one page document, calling for Congress to conduct targeted oversight of OSC and MSPB compliance with aspects of their respective statutory duties to protect federal employees from prohibited personnel practices (PPP's), particularly whistleblower reprisal. The document follows. If you wish to have your name listed at the bottom of the document, then email me back your name and organization (or past or present federal agency).Feel free to call or email with questions or comments. I need this finalized by tomorrow morning.
Thanks for your consideration.
Joe Carson, PE
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To Whom It May ConcernSince 1989, I contend OSC has unlawfully prejudiced hundreds of IRA appeals at MSPB, by unlawfully suspending its PPP investigations of whistleblower reprisal type PPP's when it became aware that the complainant had filed a related IRA appeal at the MSPB. Had OSC completed its PPP investigation, appropriately reported its PPP determination, and provided the employees the information about its investigation required by the PPP investigation "termination statement" found in the endnotes of 5 USC 1214, it would have aided the employees' cases at MSPB.MSPB's failure to do its lawfully required oversight of OSC is a contributing factor to persistent OSC's lawbreaking and the resultant prejudicing of these IRA appeals.
Additionally, I contend 5 USC 7703(c) requires the Federal Circuit to overturn any MSPB whistleblower decision in which OSC has failed to comply with its statutory duties to protect the whistleblower before (or while) the whistleblower sought remedy from MSPB.MSPB has the lawful power to re-open and reconsider any final decision it has made, for any reason at any time, even if the final decision has been left intact at the Federal Circuit.
I hope MSPB will take the initiative to investigate how OSC's failure to comply with aspects of its statutory obligations to protect feds who sought its protection, including its failure to act in their interests, has impacted MSPB's mandate that federal employees not experience adverse consequences from PPP's and harms the public interest in a civil service free of PPP's. I hope MSPB will then take the initiative to re-open and reconsider its final decisions in the affected cases. Congress has the Constitutional tools to get to the bottom of this mess and to provide some measure of justice for its victims, if it decides to do so.
I hope its deliberations about re-authorizing OSC and MSPB provide such an opportunity.I note that the 2006 OSC Annual Report to Congress < http://www.osc.gov/documents/reports/ar-2006.pdf> on page 12, claims the average processing time for a PPP complaint in OSC's Complaints Examining Unit (CEU) is 48 days. This PPP complaint has been in the CEU for slightly over 90 days and has yet to receive any screening, apparently.
Respectfully,Joe Carson
Dear Ms. Monahan,
Thank you for the update. As you know, by 5 USC 1214(a)(3)(B), if OSC has not notified me of its intent to seek corrective action on my behalf in this PPP complaint within 120 days of when it was filed on April 11, 2007 - on or about August 9, 2007 - I can file an IRA appeal with MSPB.In that case, OSC is still required to continue investigating the complaint in order to make and appropriately report its statutory required PPP determination, "whether there are reasonable grounds to believe a PPP has occurred, exists, or is to be taken." 5 USC 1214(a)(4) is consistent with the rest of 5 USC 1214(a), (b), and (e) in this regard.From my experience and what I understand of others' experience, OSC unlawfully suspends its PPP investigations, if an IRA appeal is filed, even though this is contrary to the interests of the employee who sought OSC's protection. I intend to file an IRA appeal in this matter, on or about August 9, 2007 and I insist OSC continue with its PPP investigation as it should result in OSC making a positive PPP determination, which will aid my case at MSPB.
If OSC suspends its investigation, I will file a petition for writ of mandamus with federal District Court and request the Board make a finding that OSC's failure to comply with its statutory obligations to protect me is prejudicing my case at the Board. Such a finding would, I contend, require the Federal Circuit to overturn any resultant Board decision, if against me, given its statutory review criteria for Board decisions found at 5 USC 7703(c).Respectfully,Joe Carson, PEMr. Roger Hipp, EsqUS Dept of JusticeRepresentative for Dept. of Energy, as an intervenorWashington, DCRe: Seeing forest for the trees in Carson v. MSPB, docket no. 2007-3134, US Court of Appeals for the Federal CircuitDear Mr. Hipp,I presume you and/or others at Commercial Branch of Civil Division of the Dept. of Justice are expected to alert appropriate parties in Dept. of Justice when they become involved with a case, which could result in very strong and significant financial claims against the government, if decided a certain way.
That certainly is the scenario here, as the government could face well-founded claims for hundreds of millions, if not a billion dollars or more, from the 10,000 or more direct victims of OSC's lawbreaking since 1989 - the federal employees who filed 25,000 or more PPP complaints alleging about 50,000 specific PPP's and who did not receive the protection OSC is statutory required to provide. OSC's lawbreaking was enabled by MSPB's lawbreaking failure to conduct oversight of OSC's compliance with these duties.
Those larger issues are "teed up" for the Federal Circuit to address in Carson v. MSPB, as you now (finally) seem to realize. You also seem to realize that you cannot, in representing the Department of Energy as an intervenor, effectively contest my arguments to the Court.OSC's and MSPB's lawbreaking evidences a meltdown in legal ethics, possibly implicating hundreds of involved or knowledgeable attorneys, many of whom claim to be "champions of whistleblowers," but who were derelict in their positive legal and/or professional duty, as attorneys, federal employees, or both, to "blow whistles" on it. This systemic and persistent lawbreaking at OSC, the enabling lawbreaking at MSPB, and the associated meltdown in legal ethics has significant explanatory power for national traumas as 9/11, failure of levees in New Orleans, loss of Columbia Space Shuttle, inept response to Katrina, etc.
Additionally, OSC and MSPB's lawbreaking, if not "outed" and stopped, puts us all at increased risk of a nuclear 9/11.We are in uncharted legal ground, as we ought to be, as government agencies are not expected to systematically violate the statutes they were created to discharge or, if they do, it's not supposed to take 18 years, during which they created thousands of victims of loyal, patriotic federal employees who were so foolhardy to put the "merit principles" of the federal civil service before their personal or professional interest, for someone like me to "come out of left field," and say, "but the prince has no clothes." But here we are and "it is what it is," Mr. Hipp.My objectives in this matter are to: 1) "out" the OSC and MSPB lawbreaking, 2) get it stopped, and 3) see the direct victims of the lawbreaking obtain some measure of justice.
If anyone at OSC, MSPB, DOE, DOJ, and/or other agencies is open to discussing how these objectives can be advanced in ways other than the pending litigation, I am certainly willing to talk about it. But if you give me no alternative but litigation to advance those objectives, then we will continue to litigate.
Respectfully,Joe Carson, PE
copy: various stakeholders to the 8 pending Carson v. OSC and/or Carson v. MSPB cases in 3 separate federal courts
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August 20, 2007
Special Counsel Scott Bloch
Office of Special Counsel
1730 M St., NW,Ste 218
Washington, DC 20036www.osc.gov
Via: Fax and Overnight delivery
Subject: Request that OSC Seek Intervenor Status in Carson v. MSPB, docket no. 2007-3134, US Court of Appeals for Federal Circuit
Dear Special Counsel Bloch,I respectfully request OSC seek intervenor status in the aforementioned case. The CD-ROM that accompanies this letter contains: 1) the parties’ briefs, 2) the amicus curiae brief of P. Jeffrey Black, et al, 3) the recent motion of the current intervenor, the Department of Energy (DOE), to file an “extraordinary - 7 weeks” out of time brief, its accompanying perjurious declaration of Roger Hipp, Esq, the DOJ attorney representing DOE, that attempts to explain the “extraordinary circumstances” (see Fed. Cir. Rule 26(b)(1)(B)) to justify the motion, and 4) my motion to the Court to discipline Mr. Hipp and/or other involved DOJ attorneys for the “serious crime” of perjury and possible obstruction of justice evidenced by the motion and accompanying declaration.
OSC’s review of the briefs, particularly my reply brief and the amicus curiae brief, should persuade it that, per FRAP 15(d) and the accompanying practice note of the Federal Circuit Rules, it should file an out of time motion requesting leave to intervene and file a brief. If the Court grants my request for oral argument and the participation of the amicus at oral argument, our primary objective will be to persuade the Court to set aside the MSPB decision, per the review criteria of 5 USC 7703( c), on the basis of OSC’s non-compliance with its statutory duties to protect me, per 5 USC 1214, in the underlying PPP complaint.
Such a Court ruling could have far-ranging impact on my three objectives vis-a-vis OSC and MSPB, which are: 1) to “out” their respective lawbreaking failure to protect federal employees from PPP’s, 2) get it stopped, and 3) obtain some measure of justice for the direct victims of OSC/MSPB lawbreaking - the 10,000 or more federal employee who filed PPP complaint with OSC since 1989 and who did not receive the required statutory protection, particularly the 3000 or so who then filed whistleblower appeals at MSPB.
Specifically, such a Federal Circuit decision could provide grounds for MSPB to re-open and reconsider its decisions in some or many of those whistleblower appeals, as MSPB has the power to re-open and reconsider, for any reason at any time, any final decision it has made, even if it has been left intact by the Federal Circuit. I was present at the July House hearing about re-authorizing OSC and MSPB at which you testified. I witnessed your challenge to Mr. Davis to “take it outside.” I also witnessed your evasions to direct questions put to you under oath by Mr. Davis about who at OSC leaked a draft OSC report to the Washington Post and with whose authorization.
This is my characterization of your evasions, under oath, to his questions:
1 Congressman Davis: “Mr. Bloch, do you know who at OSC authorized the leak of the draft OSC report to the Washington Post?”
2 Special Counsel Bloch: “I have no knowledge of anyone at OSC who leaked of the draft report to the Jerusalem Post.”
3 Congressman Davis: “Mr. Bloch, do you know who at OSC authorized the leak of the draft OSC report to the Washington Post?”
4 Special Counsel Bloch: “I have no knowledge of anyone at OSC who leaked of the draft report to the New York Post.”
5 Congressman Davis: “Mr. Bloch, do you know who at OSC authorized the leak of the draft OSC report to the Washington Post?”
6 Special Counsel Bloch: “I have no knowledge of anyone at OSC who leaked of the draft report to the Baghdad Post.” etc.
I’m surprised you were not cited for contempt to Congress for your failure to answer the direct questions of Mr. Davis. My 17 year old son, TJ, accompanied me at the hearing. After watching your cowardly evasions, he now has a much better idea of why he, as others in my family, have sacrificed and suffered so much for 15 years now - as a result of the moral cowardice of many OSC employees, reflected in OSC’s lawbreaking failure to protect 10,000 or more federal employees as required by law since 1989, including protecting me from DOE’s repeated reprisal for my doing my lawful duty, as a professional engineer (PE) employed by DOE as a nuclear safety engineer, to “blow whistles,” when necessary to protect others. OSC’s lawbreaking failure to protect federal employees from PPP’s, has been enabled by MSPB’s lawbreaking failure to do oversight of OSC’s compliance with those duties, and further enabled by so-called “whistleblower advocacy groups” giving it a “free pass” as it drove people like me to their doors, checkbooks in hand, ready to be rescued exploited for our “insider” information and fund-raising abilities as “poster children.”
Now this dismal situation possibly involving a conspiracy at the Department of Justice to obstruct justice - justice for the 10,000 or more federal employees OSC has failed to protect, as required by law, since 1989, including the 3000 or so who filed whistleblower appeals at MSPB after OSC failed to protect them, and the 1000 or more who filed appeals at the Federal Circuit of the resulting MSPB decisions that provided them no redress - as such justice might cost the government a billion dollars or more.
If only the stakes were not so high, Mr. Bloch. OSC’s lawbreaking has significant explanatory power for 9/11, failure of levees in New Orleans, loss of Space Shuttle Columbia, and countless other instances of federal malfeasance or incompetence since 1989. If it is not “outed” and stopped, it may contribute to a nuclear 9/11, Mr. Bloch.So, if you want to “take it outside” and discuss it - just tell me where and when, Mr. Bloch.
I suggest a more constructive path would be for you to direct Erin McDonnell, who functions as OSC’s General Counsel, to seek intervenor status in Carson v. MSPB at the Federal Circuit and to direct DOJ, in its representation of OSC in the 5 pending Carson v. OSC cases in 2 federal Courts, to stop trying to find technicalities to prevent the Courts from considering the contested issues of law.
I challenge OSC to make its case in open Court that it has records documenting its compliance with its legal obligations to protect the 10,000 or more who have sought its protection since 1989, instead of abusing the legal process to cover-up its lawbreaking failure to do so.
Respectfully,Joe Carson, PE
copy: various stakeholders and interested parties to the relevant litigation
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