November 9, 2008

From: Joe Carson, PE, “dean” of current federal whistleblowers, Chair OSC Watch Steering Committee <jpcarson@tds.net> 865-300-5831 www.oscwatch.org

To: Stakeholders to US Office of Special Counsel (OSC) and its mission to protect federal employees from agency violations of the merit system principles (i.e. prohibited personnel practices “PPP’s”) and agency activities prohibited by any civil service law, rule, or regulation (i.e. “other prohibited activities”), including its duty to “act in the interest” of those who seek its protection

Subject: 1) Exposing OSC’s 30-year long misinterpretations of its key duties, U.S. Merit Systems Protection Board (MSPB’s) enabling 30-year long misinterpretation of its duty to conduct oversight of OSC; 2) stopping OSC/MSPB 30 year long lawbreaking; and 3) obtaining some measure of justice for the thousands of direct victims of this 30 year-long OSC/MSPB lawbreaking – the loyal, patriotic federal employee who put professional duty before their self-interest and who were betrayed by OSC/MSPB.

OSC largely nullified itself at its creation in 1978 by it interpreting away its duties to protect those who seek its protection.  OSC decided then that there is no such thing as a “civil service rule” – so its duties, per what is now 5 U.S.C. §1216(a)(4), did not include protecting federal employees from the harm caused by agencies’ violating agency directives (i.e. “civil service rules”) as work force discipline, grievances, performance evaluations, etc. 

OSC also decided, at its creation in 1978, that the reporting requirements of what is now §1214(e) do not apply to the laws, rules, or regulations under its enforcement jurisdiction, meaning OSC never has to formally report its determinations that “there is reasonable grounds to believe” such violations occurred, except when it makes the additional, discretionary determination that the violation is one “which requires corrective action.”  OSC has yet to make a report per §1214(e).  These reports (and the agency-head certified responses) are permanent and publicly available records per §1219(a)(3).  I personally visited OSC HQ and verified that there are no records of any §1214(e) report.

MSPB enabled this OSC self-nullification by interpreting away its duty, also at its creation in 1978 (MSPB and OSC were both created by the Civil Service Reform Act of 1978), to conduct “special studies,” per what is now §1204(a)(3), of OSC and other Executive Branch entities (including, but not limited to, agencies for which it has adjudicatory jurisdiction)  necessary to determine and report whether federal employees were adequately protected from PPP’s. 

The results have been catastrophic to America.  OSC is the “immune system” of the federal civil service, so its failure to protect federal employees from agency violations of the laws, rules, or regulations under its jurisdiction is similar in impact to HIV AIDS – OSC’s 30-year long lawbreaking has enabled much other dysfunction and corruption to take root flourished in many federal workplaces and agencies, leading to violations of laws, rules, or regulations not under OSC’s jurisdiction.   Many, if not almost all, of the national catastrophes that have befallen America since 1978, are connected to OSC’s 30 year-long lawbreaking.  America is both much diminished and more threatened by it. 

This is because the impact of OSC’s lawbreaking cascades outward to the private sector – as a result of OSC’s 30-year long lawbreaking, federal regulators cannot do their jobs without fear or favor, meaning private sector employees which significant responsibilities for workplace or public health, safety, or welfare (i.e. private sector employees with responsibilities for corporate accounting, product safety, homeowner mortgage applications, rating of corporate debt, environmental compliance, etc) cannot rely on the federal regulators to protect them if they do their jobs ethically and competently, contrary to their employer’s wishes.

In summary, OSC is, relatively speaking, likely the most important agency for American health, safety, and welfare in American history and it is, relatively speaking, likely the most corrupt and corrupting one.

For the past 16 years I, with my family, have suffered, sacrificed, risked, lost much because of my tremendous exertions in defending and upholding my profession of engineering, its code of ethics, and the public health and safety as a licensed professional engineer (PE) employed as a nuclear safety engineer in the US Department of Energy.   During the past five years, I have confronted, via rule of law, OSC’s 30 year-long lawbreaking and MSPB enabling 30 year-long lawbreaking.  As a result, we are close to exposing and stopping OSC’s 30 year long lawbreaking. 

But I need your help to finish this task and to go on to expose and stop MSPB’s 30 year-long enabling lawbreaking and obtain some measure of justice for the many thousands of current and former federal employees directly impacted by it. 

Here is a list of specific ways to help:

1         If you are a current or former federal employee, join the amicus curiae brief represented by David Nolan in Carson v. OSC, docket no. 08-5219, Federal Appeals Court for District of Columbia.   There is no cost, but you need to email me your name, address, and phone no. with a statement that you authorize David Nolan to represent you as a party to the amicus curiae brief.

2         If you financially support “good government” groups that support stronger federal whistleblower laws, tell them to call for Congressional oversight of OSC’s 30 year long interpretations of what is now §1214(e) and §1216(a)(4) and MSPB’s 30 year-long interpretation of what is now §1204(a)(3).              

3         If you are an attorney who has represented federal employees who have had their security clearances revoked for improper reasons, tell them that there is good legal grounds to believe, regardless of the agency employing them (i.e. including FBI, CIA, NSA, etc), that OSC has jurisdiction to investigate their complaint of “other prohibited activity” per §1216(a)(4), which alleges agency directives or regulations were violated in the improper revocation of their clearance and seek “make whole” corrective action on their behalf as well as disciplinary action against responsible agency officials. If you question the legal basis of my claim, contact me and I will walk you through it.

4         If you are a federal employee who has ever sought OSC’s protection from a PPP or “other prohibited activity” let me know.  We are organizing a class-action suit, intended to spur legislation to provide some measure of restitution, restoration, and/or rehabiliation to the many thousands of current and former federal employees who sought OSC’s protection and who did not obtain the protection OSC was required to provide.

5         If you are an attorney who has represented federal employees who ever sought OSC’s protection, please let them know about the planned class action suit.  If you wish to become involved in representing members of the class-action suit, please let me know.

6         President-elect Obama is an agent of change for America, including its civil service.  He and his team need to become aware of our concerns about OSC’s 30 year-long lawbreaking, MSPB’s enabling 30 year-long lawbreaking, and how we are trying to responsibly expose it, stop it, and restore the many thousands directly harmed by it (every American has been indirectly harmed by it).  Contact him and your representatives in Congress and tell them federal employees must be able to do their duties without fear or favor for America to overcome the crises it now faces and OSC’s 30 year-long lawbreaking must be exposed and stopped for this to happen.

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