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Carson v. United States Office of Special Counsel

July 7, 2008


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This matter is before the Court following a remand from the court of appeals for "consideration of [petitioner's] claims concerning Case MA-05-280 asserted in the motion to supplement the relief requested filed on June 21, 2005[,]" ("Mot. Supp."), as a result of the Court and the Magistrate Judge's inadvertent failure to address it in the earlier decisions. See Order, No. 06-5264 (D.C. Cir. November 28, 2007).*fn1 In the same Order, the court of appeals summarily affirmed this Court's October 30, 2006 decision in all other respects, which approved and adopted the Report and Recommendation of Magistrate Judge Deborah A. Robinson, and dismissed the other claims presented in this case by petitioner against the United States Office of Special Counsel ("OSC"). See id. (affirming Carson v. U.S. Office of Special Counsel, Civil Action No. 05-0537, 2006 WL 5085253 (D.D.C. Oct. 30, 2006)). Now pending before the Court are respondent's motion to dismiss and petitioner's cross motion to issue a writ of mandamus.*fn2

As the Court has noted in several earlier cases brought by this petitioner, mandamus is a drastic remedy. Although the Mandamus Act provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff," 28 U.S.C. § 1361, the All Writs Act allows the Court to order a remedy only where subject matter jurisdiction already exists. See 28 U.S.C. § 1651(a) (providing that the "Supreme Court and all courts established by an Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions . . ."); see also Telecommunications Research and Action Center v. F.C.C., 750 F.2d 70, 76 (D.C. Cir. 1984) ("[I]t is firmly established that [Section] 1651 does not expand the jurisdiction of a court.").

In addition, the Civil Service Reform Act of 1978 ("CSRA"), Pub. L. No. 94-454, 92 Stat. 1111 (codified as amended in scattered sections of Title 5 of the United States Code), which governs non-constitutional claims brought by federal employees against the United States government or its agencies, does not provide for subject matter jurisdiction in the United States district courts for review of OSC decisions made pursuant to its authority under the statute. See Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir. 2005) (CSRA is comprehensive and exclusive remedial scheme); Carducci v. Regan, 714 F.2d 171, 174 (D.C. Cir. 1983) (CSRA is "exhaustive remedial scheme" that clearly evidences congressional intent not to permit alternative or pre-existing remedies); Borrel v. U.S. Int'l Communications Agency, 682 F.2d 981, 988 (D.C. Cir. 1982) ("[W]e are unable to conclude from the [CSRA] that Congress intended to provide an independent judicial remedy to employees."). Nor does the CSRA provide for jurisdiction over appeals of decisions rendered by the Merit Systems Protection Board ("MSPB") in this Court; only the United States Court of Appeals for the Federal Circuit may hear such petitions. See 5 U.S.C. §§ 1215(a)(4) and 1221(h)(2), incorporating 5 U.S.C. §7703(b)(1); see also United States v. Fausto, 484 U.S. 439, 449 (1988).

The United States Court of Appeals for the District of Columbia Circuit nevertheless has concluded that a United States District Court does have 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 Weber v. United States, 209 F.3d 756, 759 (D.C. Cir. 2000). The court reasoned that because the Federal Circuit reviews only MSPB decisions and not OSC actions or decisions, depriving the district courts of mandamus jurisdiction over claims that OSC has failed to perform a statutory duty would foreclose all relief for such a failure. See id.

As noted above, the remedy of mandamus "is a drastic one, to be invoked only in extraordinary circumstances." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). Mandamus is available only if: "(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff." In re Medicare Reimbursement Litigation, 414 F.3d 7, 10 (D.C. Cir. 2005) (quoting Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002)); see also Banks v. Office of Senate Sergeant-At-Arms and Doorkeeper of the United States Senate, 471 F.3d 1341, 1350 (D.C. Cir. 2006) (concluding that the extraordinary remedy of mandamus need not issue in a case arising under the Congressional Accountability Act where the issue could be addressed by an appeal from a final judgment). The party seeking mandamus "has the burden of showing that 'its right to issuance of the writ is clear and indisputable.'" Power v. Barnhart, 292 F.3d at 784 (quoting Northern States Power Co. v. U.S. Dep't of Energy, 128 F.3d 754, 758 (D.C. Cir. 1997)). Where the action petitioner seeks to compel is discretionary, petitioner has no clear right to relief and mandamus therefore is not an appropriate remedy. See, e.g., Heckler v. Ringer, 466 U.S. 602, 616 (1984); Weber v. United States, 209 F.3d at 760 ("[M]andamus is proper only when an agency has a clearly established duty to act.").

The Court previously has described the relevant statutory framework, see, e.g., Carson v. U.S. Office of Special Counsel, 514 F. Supp. 2d 54 (D.D.C. 2007), but will repeat relevant portions here. Under the Whistleblower Protection Act of 1989 ("WPA"), 5 U.S.C. § 1201 et seq., an agency is prohibited from taking any personnel action in reprisal for the disclosure of information by an applicant that the applicant reasonably believes evidences violation of any law, rule, or regulation by another agency employee. See 5 U.S.C. §§ 1221(a), 2302(b)(8)(A)(i); see also Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002); Weber v. United States, 209 F.3d at 757-58.*fn3 When an agency takes such an action, it is considered to be a prohibited personnel practice ("PPP").

An employee who believes he or she has been the victim of a PPP must first complain to the OSC, which "shall investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred." 5 U.S.C. § 1214(a); see also Weber v. United States, 209 F.3d at 758. The initial investigation is conducted by OSC's Complaints Examining Unit ("CEU"). See 5 C.F.R. § 1800.1(c)(4); PETER B. BROIDA, A GUIDE TO MERIT SYSTEMS PROTECTION BOARDLAW& PRACTICE, Ch. 13 § IV.B.1 (2004). If CEU determines that further investigation is needed, the complaint is referred to one of the agency's Investigation and Prosecution Divisions ("IPDs") for further investigation. See id. (describing the organizational structure of OSC). If OSC "determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken which requires corrective action," it "shall report the determination together with any findings or recommendations to the Board, the agency involved and to the Office of Personnel Management, and may report such determination, findings and recommendations to the President." 5 U.S.C. § 1214(b)(2)(B). OSC also may recommend to the agency involved that it take specific corrective actions. See 5 U.S.C. § 1214(b)(2)(B). If the agency refuses or fails to take action, OSC may petition the Merit Systems Protection Board ("MSPB") to order the appropriate corrective action. See 5 U.S.C. § 1214(b)(2)(C).

If, on the other hand, after investigation OSC finds no reasonable ground to believe that a PPP has occurred, it sends a written status report ("pre-determination letter") to the complainant informing him of the proposed findings and legal conclusions. See 5 U.S.C. § 1214(a)(1)(D). OSC must provide this pre-determination letter at least ten days before terminating an investigation. See id. If OSC's investigation does not uncover support for the complaint, the employee still may seek corrective action from an alleged PPP before the MSPB. See 5 U.S.C. §§ 1214(a)(3), 1221. But "an employee alleging a [PPP] must give the OSC a chance to investigate before going to the MSPB." Weber v. United States, 209 F.3d at 759. Any decision of the MSPB is appealable to the United States Court of Appeals for the Federal Circuit. See 5 U.S.C. § 7703.

In this case, the "relief sought" by petitioner in the June 21, 2005 motion to supplement is:

That the Court order OSC to reopen OSC file no. MA-05-0820, and make a determination, based on the evidence petitioner provided OSC about the defamation he suffered, in violation of specific agency rule. This defamation is related to the agency's non-compliance with an MSPB-enforceable 1994 settlement agreement and/or petitioners [sic] other protected disclosures and activities, per 5 USC 1214(e). The relief requested is largely ministerial in nature.

Mot. Supp. at 1-2. Although the parties have briefed a wide array of topics, there is only a narrow issue before the Court: whether or not the petitioner is entitled to have this Court issue a writ of mandamus to the Office of Special Counsel ordering it to reopen OSC file number MA-05-0820 in order to make a determination under 5 U.S.C. § 1214(e) with respect to petitioner's allegation of defamation.

The factual background, as respondent explains, is as follows: OSC opened MA-05-0820 in January 2005, in response to a complaint filed by petitioner alleging that his employer, the Department of Energy ("DOE"), failed to comply with an order from the Merit Systems Protection Board ("MSPB"), a possible prohibited personnel practice under title 5. On January 21, 2005, OSC notified petitioner that it was opening a case based on petitioner's allegation that DOE knowingly and willfully failed to comply with the MSPB order. On April 11, 2005, Petitioner requested, in conjunction with MA-05-0820, that OSC make a referral under 5 U.S.C. § 1214(e) based on a second allegation (i.e., that he had been defamed by DOE employees/officials). OSC closed MA-05-0820 on June 14, 2005, concluding that petitioner had previously raised DOE's noncompliance with an MSPB order in MA-03-1288, and stating that a referral of his defamation allegations to DOE under 5 U.S.C. § 1214(e) had not been required because the Special Counsel had made no determination that DOE violated Tennessee common law regarding slander and defamation.

Resp. Mot. Dism. at 3 (emphasis added). Petitioner clarifies that he was not asserting a violation of the common law of slander and defamation, but rather a violation ...

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