merit systems protection board...merit systems protection board name and address of appellant:...

Please type or print legibly. OMB No. 1.

2.

3.

4.

5.

6. 7.

8. 9.

10. 11.

MSPB Form 185-1, ( )

MERIT SYSTEMS PROTECTION BOARD

Please type or print legibly.

MSPB Form 185-1, ( )


Please type or print legibly. OMB No.

DESIGNATION: The individual or organization named below is hereby designated to represent:

Please send this form with your appeal if you are designating a representative. If you do so after you have filed your appeal,send this form to the Board office where your appeal is pending, and provide a copy to the other party. Board regulationsrequire that all copies of your communications with the Board after an appeal has been filed be served on the other party.

"I hereby designate ____________________________________ to serve as my representative during the course ofthis appeal. I understand that my representative is authorized to act on my behalf. In addition, I specifically delegate tomy representative the authority to settle this appeal on my behalf. I understand that any limitation on thissettlement authority must be filed in writing with the Board."

A representative helps and counsels a party in the preparation,presentation, or defense of the case. The representative appearswith, or for, the party at hearings, settlement discussions,teleconferences, or other proceedings before the Board. Therepresentative does not have to be an attorney. You mayproceed without a representative and represent yourself. Youmay use this form to designate an organization or a person whohas agreed to represent you in your case before the Board. Ifyou are representing yourself, you do not need to fill out thisform. (The Board’s regulations on representatives are found at 5CFR 1201.31.) By designating a representative, you agree toallow the Board to give your representative all informationconcerning the appeal.

The address and telephone number of the representative mustbe correct so that all communications are received on time bythe representative. Any changes of this designation mustbe sent in writing to the MSPB office handling the caseand to the other party.

If you file this designation WITH your appeal, the Boardwill send a copy of the designation, along with a copy ofyour appeal, to the other party. If you file this designationAFTER you have filed your appeal, you MUST send a copyto the other party and you MUST send proof to the Boardthat you have sent a copy to the other party.


NAME AND ADDRESS OF APPELLANT:

Service Method for Representative :

MSPB Form 185-4 ( )

e-Appeal Attachment Transmittal

Appeal Number: 201902371

Appellant Name: Mr. Joseph P. Carson

Agency Name: Department of Energy

Please check the box for each document included with this transmittal.

Name of Attachment Attachment

Processing Status File Name/Delivery Method

Designation of Representative Form

Upload with e-Appeal

03_2019_0602_Form_185_IRA_Appeal_Carson_Designation_Rep.pdf

Drafted Appeal File Upload with e-

Appeal 03_2019_0602_Form_185_IRA_Appeal_Carson_Uploaded_as_Filed.pdf

2 copies must be submitted of all documents submitted in hardcopy. Send documents to be submitted in paper form to:

Atlanta Regional Office 401 W. Peachtree Street, NW. Suite 1050

Atlanta, Georgia 30308 United States of America

Phone: (404) 730-2751

Fax: (404) 730-2767

Attachment Transmittal SheetAppeal Number:Submission Date:

Confirmation Number:

2019023716/2/2019 8:15:48 PM204018

Page 1

PART 4 - pesignation of Refl'tesentaUve

26. Has an individual or organization agreed to represent you in this proceeding before the Board? (You may designate a representative at any time. However, it is unlikely that the appeals process will be delayed for reasons related to obtaining or maintaining representation. Moreover, you must promptly notify the Board in writing of any change in representation.)

[ZI Yes (Complete the information below and sign)

DESIGNATION:

pheri Cannon and Dan Meyer I "I hereby designate'---~~--~~-~-~--~~~-~ to serve as my representative during the course of this appeal. I understand that my representative 1s authorized to act on my behalf. In addition, I specifically delegate to my representative the authority to settle this appeal on my behalf. I understand that any limftatfon on this settlement authority must be filed in writing with the Board."

Representative's address (number and street, city, State and Zip code)

Address. Tully Rinckey, PLLC 815 Connecticut Ave NW Suite 720

City: lwashmgton

State: DC L.'-_____ _J Zip Code:120006

Representative's telephone numbers (include area code) and e-mail address

Office: ..__•_10 (c20c20 )03_7=5-=2=22=2-~

Fax: L--------~ Other: ..__•_100(20002)070807_-109=0=0~

~~~i~s:[email protected]

AKE YOUR DESIGNATION OF REPRESENTATIVE EFFECTIVE

dfl/J YYY)

MSPB Form 185, Page 6 {5/13) 5 C.F.R. Parts 1201, 1208, and 1209

~JL : PART 1 -Appellant and Agem;y lnf9rmjJion

i Eve,xone must comple~art 1 ·

. .VJ?sfJ:'.··" I •:;,'/:-'

Please type or print legibly

1. Name (last, first, middle) Please list your first name as it appears m your official personnel records. For example, if your first name is

Last Jcarson I First jJoseph / M. lnitialEJ "William" on your official personnel records, please list it that way on the appeal form, not "Bill" or "Willy."

2. Present address (number and street, city, State, and Zip code)

You must promptly notify the Board in writing of any change in your mailing address while your appeal is pending.

Add,ess r0953 Twia Hart>o,r Delee

I City: jKnoxville I State: ITN I Zip Code:I37934 I

3. Telephone Numbers (include area code) and E-Mail Address

You must promptly notify the Board in writing of any change in your telephone number(s) or e-mail address while your appeal is pending.

Home I +1 (865) 675-0236 I wo~ I +1 (865) 300-5831 I Fax: I +1 (865) 675-0236 ] Cell: I +1 {865) 300-5831

e-Mail Address: [email protected] I 4 Name and address of the agency that took the action or made the decision you are appealing (include bureau or division, street address, city,

State and Zip code)

Agency Name: loepartment of Energy I Bureau: !Oak Ridge Office of Environmental Management I Address: !200 Administration Road I Phone Number: City: loak Ridge I State: ITN I Zip Code: 137830 I I +1 (865) 576-1200

5. Your Federal employment status at the time of the action or 6. Type of appointment (if applicable): decision you are appealing: 181 Competitive D Excepted

181 Permanent D Temporary □ Term D Postal Service oses D Seasonal D Applicant D Retired D Other {descn'be):

D None I 7. Your position, title, grade, and duty station at the time of the action or decision you are 8 Are you entitled to veteran's preference?

appealing (if applicable): See 5 U.S.C, § 2108.

Occupational Series IGS-801 or Cluster I Position Tille: !facility representative I 181 Yes 0No

Grade or Pay Band: 11• I Duty Station: !oak Ridge I 9. Length of Federal service (if applicable): 10. Were you serving a probationary, trial, or initial service period at the time of the action

~ Years Li Months or decision you are appealing? D Yes 181 No

11. HEARING: You may have a right to a hearing before an administrative judge. If you elect notto have a hearing, the administrative judge will make a decision on the basis of the submissions of the parties.

181 Yes 0 No

Do you want a hearing?

MSPB Form 185. Page 2 (5113) 5 C.F.R. Parts 1201. 1208, and 1209

I

I

PART 2 - Agency Personnel Action or~gision (n<;>n-retirement)

Complete this part it,xou are appealing a Federal a/Jfi:'~)' persob~~I action or dec;l~_Qn other than a decision directly addreS_Sing yo~r retirement rights or b1mefits. Thii,.)ncludes certail) .a_cti6ns that might not otherwise be appealable to ·the Board: individual rigQt of actiOn (IRA) apPe81s under the Whlstleblower Protection Act (WPA); appeals under the Uniformed Services ·Jtrhployment artd R_eemploYi'nent Rights Act (USERRA); or -appeals under the Veterans Employment Opport1,.1,r:1[ties Act (VEOA). '.An exPi'anation of these three_ types of appeals is provided in Appendix A.

.J" . ::;> • .. · .

12. Check the box that best describes the agency personnel action or decision you are appealing. action or decision, check each box that applies.)

(If you are appealing more than one

D VA SES Removal from civil service D VA SES Transfer to general schedule

D Removal (termination after completion of D Involuntary resignation probationary or initial service period)

D Involuntary retirement D Termination during probationary or initial service period D Denial of within-grade increase

D Reduction in grade, pay, or band D Furlough of 30 days or less

D Suspension for more than 14 days D Separation, demotion or furlough for more than 30 days by reduction in force (RIF)

D Failure to restore/reemploy/reinstate or improper [81 Other action (describe): restoration/reemploymenUreinstatement

D Negative suitability determination I Individual right of action.

I 13. Date you received the agency's final decision letter (if any) 14. Effective date {if any) of the agency action or decision

(MMIDDIYYYY): (MM/OO/YYYY)·

109/11/2018 I 109/11/2018 I 15. Prior to filing this appeal, did you and the agency mutually agree in writing to try to resolve the matter through an alternative dispute

resolution {ADR) process?

D Yes (attach a copy of the agreement) ~No

16. Explain briefly why you think the agency was wrong in taking this action, including whether you believe the agency engaged in harmful procedural error, committed a prohibited personnel practice, or engaged in one of the other claims listed in App~nd_lx A: Attach the agency's proposal letter, decision letter, and SF-50, if available. Attach additional sheets if necessary (bearing m mmd that there will be later opportunities to supplement your filings}.

See attached Continuation page.

MSPB Form 185, Page 3 (5113) 5 C.F.R. Parts 1201, 1208, and 1209

PART 2 • Agency Personnel Action or Decision (non,retirell)ent)(<ioijtinued) . . -~~-. ·-

17. With respect to the agency personnel action or decision you are appealing, have you, or has anyone on your behalf, filed a grievance under a negotiated grievance procedure provided by a collective bargaining agreement?

□ Yes ~ No

lf"Yes,' attach a copy of the grievance, enter the date ii was filed, and enter the place where it was filed if different from your answer to question 4 in Part 1

Agency Name: Date Filed (MM/DOIYYYY): I I

Bureau: I Address:

City: I I State: I I Zip Code: I I

If a decision on the grievance has been issued, attach a copy of the decision and enter the date it was issued (MMIOOIYYYY).

Date Issued (MM/DO/YYYY): I I

Answer Questioll ·1s ONLY if you are filing an IRA appeal.

18. If you filed a whistleblowing complaint with the Office of Special Counsel (DSC), provide the date on which you did so and the date on which DSC made a decision or terminated its investigation, if applicable. Attach copies of your complaint and OSC's termination of investigation letter, notifying you of your right to seek corrective action from the Board

Date Filed (MMIDD/YYYY): i12t06/2018 I Date of OSC decision or termination of investigation (MM/00/YYYY): 103/29/2019 I

A.nswer Question 19·0NLY if you are filing a USERRA orVEOA appeal. .

19. If you filed a complaint with the Department of Labor (DOL), list the date on which you did so, and attach a copy of your complaint. If DOL has made a decision on your complaint, list the date of this decision, and attach a copy of it. If DOL has not made a decision on your complaint within 60 days from the date you filed it, state whether you have notified DOL of your intent to file an appeal with the Board, and attach a copy of such notification.

Date Filed (MMIDDIYYYY):] I Has DOL made a decision on your complaint?

□ Yes 0 No

If "Yes," enter the date it was made. If "No", state whether you have notified DOL of your intent to file an appeal with the Board, and attach a copy of such notification.

Date of DOL decision {MMIDDIYYYY):l I D Notified DOL of your intent to file an appeal with the Board?

MSPB Form 185. Page 4 (5/13) 5 C.F.R. Parts 1201, 1208. and 1209

. ':/? ~-PART 3 - QPM or Agency ,~~lire'.!tent De~~ion .. ··

Complete this pa~ if you a!e aprealing a de~isiq~ of ~he Offfoe 0!1.+11;onne/ !Vlanag!_me·rit (OPM) or other

Federal agency directly adc:lressmg your retIre,11i-ent rights or benefits. ~ · .. ,; .. 20. In which retirement system are you enrolled? 21 Are you a:

OcsRS 0 CSRS Offset 0FERS D Current Employee

D Other, describe: D Surviving Spouse

D Other, descn·be:

I 22. If retired, date of retirement, or if unknown, approximate date:

Date Retired {MMIDDIYYYY):\ I

23. Describe the retirement decision you are appealing.

24. Have you received a final or reconsideration decision from OPM or another Federal agency?

D Yes (attach a copy) 0 No

If "Yes," on what date did you receive the dec1s1on?

Date Received (MMIDDIYYYY): I I Provide the OPM processing (CSA or CSF) number in your appeal:

OPM Claim Number: [ I

25. Explain briefly why you think OPM or another Federal agency was wrong in making this decision.

D Annuitant

MSPB Form 185, Page 5 (5/13) 5C.F.R. Parts 1201, 1208, and 1209

PART 4 - pesignation of Refl'tesentaUve

26. Has an individual or organization agreed to represent you in this proceeding before the Board? (You may designate a representative at any time. However, it is unlikely that the appeals process will be delayed for reasons related to obtaining or maintaining representation. Moreover, you must promptly notify the Board in writing of any change in representation.)

[ZI Yes (Complete the information below and sign)

DESIGNATION:

pheri Cannon and Dan Meyer I "I hereby designate'---~~--~~-~-~--~~~-~ to serve as my representative during the course of this appeal. I understand that my representative 1s authorized to act on my behalf. In addition, I specifically delegate to my representative the authority to settle this appeal on my behalf. I understand that any limftatfon on this settlement authority must be filed in writing with the Board."

Representative's address (number and street, city, State and Zip code)

Address. Tully Rinckey, PLLC 815 Connecticut Ave NW Suite 720

City: lwashmgton

State: DC L.'-_____ _J Zip Code:120006

Representative's telephone numbers (include area code) and e-mail address

Office: ..__•_10 (c20c20 )03_7=5-=2=22=2-~

Fax: L--------~ Other: ..__•_100(20002)070807_-109=0=0~

~~~i~s:[email protected]

AKE YOUR DESIGNATION OF REPRESENTATIVE EFFECTIVE

dfl/J YYY)

MSPB Form 185, Page 6 {5/13) 5 C.F.R. Parts 1201, 1208, and 1209

PART 5 - Certification . ;:,f!f}'::"

27. I certify that all of the state n made In this form and any attachments are true, complete, and correct to the best of my knowl e and bel f.

Si

This form requests personal information that is relevant and necessary to ie~~!J0 ~·decision in your appeal. The Merit Systems Protection Board ~ol/ects (his information in orde,:7tJ}i:i#rocess ap~'i,Js under its statutory,;,Shd regul~tory aut~ority. Because yo~r apjjeg,JJs _a i.tolunta~ actio_nt~f_.<1re not requ~ f? provide _an½,R,J!QiOnit,~ inform?tion to !he Mer,t Systems Protection Board m connection with your appeal. Conce,vably, failure to provide all.1,nformat1oq. essential to reaching a decision in yow case c6l!td result in the di!fUJ;:sal or denl!J1 of your appeal .

. l. , ..

Decisions of the Merit SyStems Protection Board,are available to the ,,,,ub~L~ under the provisi,omj/iil ihe Freed9m of Information Act and are posted to' the Merit SystemS>e,:,pt~ction Boarc1·sf,t1blic web,site. Some information aboiJt the appeal also is used in depersonalized form for statisticSJ"//Urposes. Finally, inforfP'iitJOn from your appeal file may be disclosed as required by law under the provisions of the Freedom of lnform;Jt~QIJJ~~t and the Privacy Act.

j ''' "' See 5 U.S.C. §§ 552, 552a. ,i,::;1:-,, ;/;";

Public Reporting Burde~

The public repo'!ing burdekfor, t~[s ,~ol/ect~on o_f informa_ti?_n ~s, estimatf!iJJ~-Vaty ~rom ~O '!'inf!{f!,!f,JQ,_!#:hours, with _an average of 60 mmutes per respof!se, mcludmg time for rev,ewmg the forg,, ,5earchl'Ml,iUJ§!f!1g4dat1Jlsqurces, ga_thenng the data necessary, and completing and reviewing the collection of information:'YSeffcf'1:0mments regardmg the, burden estimate or any other aspect of the collection of infor,ng1l,[!!JJ_4 {tJ,cludi_ng s_uggestions for reducing (his burdef!, to Office of the Clerk of the,Board, Merit Systems Protection.fl,g_ard, 1615 M'S(fe8't; N.W., Washington, DC 20419 or by e-mail to [email protected]. , , '

MSPB Form 185, Page 7 (S/13) s C.F.R. Parts 1201.1208. and 1209

—1—

MSPB Complaint i.c.o. Carson/DOE Appeal Block 16 - Continuation Page

This IRA appeal apparently poses a novel question of law. Can federal supervisors and managers

ignore a subordinate’s whistleblower disclosures with impunity — without creating “any other

significant change in the working conditions” — of the subordinate him or herself? See 5 U.S.C. §

2302(a)(2)(A)(xii).

The question of law on appeal is whether an Agency’s failure to respond constructively and/or take

responsible actions to resolve a subordinate employee’s whistleblower disclosures constitutes a

significant change in working conditions (and therefore a personnel action) under title 5, Sections

2302 and 4302 sufficient to state a claim for whistleblower reprisal. At a minimum, Mr. Carson has

met two of the three elements of the prima facie case for reprisal. He made a whistleblower

disclosure on September 11, 2018 and there was knowledge of that disclosure by Mr. Carson’s

supervisory chain. His supervisors have ignored his disclosures, but their stated rationale for doing

so takes no exception to his having reasonable belief. See e.g., pages 37-42 of Appellant’s complaint

to OSC (Dec. 6, 2018).

Applicable to this appeal is the National Defense Authorization Act for Fiscal Year 2018, Pub. L.

115-91 (2018 NDAA). That statute reauthorized OSC through section 1097. Section 1097(d),

“Protection of Whistleblowers as Criteria in Performance Appraisals,” explicitly requires Agencies to

do other than merely bystand in response to employee whistleblower disclosures. Such disclosures

include those contained in Appellant’s September 11, 2018 protected disclosure. See e.g., pages 24 to

34 of Appellant’s complaint to OSC (Dec. 6, 2018). The Department of Energy nonetheless

continues to bystand, contrary to the new, critical, element in current performance plans, required by

5 U.S.C. section 4302(b). See e.g., pages 16 and 17 of Mr. Carson’s OSC complaint. The Agency has

accordingly significantly changed Appellant’s working conditions by its failure to abide by the 2018

NDAA requirements and by ignoring his disclosures.

Congress passed the 2018 NDAA in response to the November 2011 MSPB Special Study, “Blowing

the Whistle: Barriers to Federal Employees Making Disclosures,” and subsequent Congressional testimony

by leaders of MSPB and OSC. These studies and the testimony revealed the primary reason

concerned federal employees themselves bystand instead of making whistleblower disclosures

required by Executive Order 12674 is fear of being ignored when they step forward to be a

whistleblower. See pp. 16-17 and 45-46, Appellant’s OSC complaint. The study and testimony

underscored how significant - how critical – is the change in working conditions of an employee

whose whistleblower disclosures are ignored – which is now contrary to the duties expressed by 5

U.S.C. Section 4302(b) – required of their supervisors and managers.

March 29, 2019

BY ELECTRONIC MAIL Mr. Joseph Carson c/o Dan Meyer Partner Tully Rinckey, PLLC 815 Connecticut Ave., NW, Suite 720 Washington, DC 20006 [email protected] Re: OSC File No. MA-19-1256 Dear Mr. Carson:

The U.S. Office of Special Counsel (OSC) terminated its inquiry into your allegations of prohibited personnel practices under 5 U.S.C. § 2302(b)(8) or (b)(9) on March 29, 2019. The purpose of this letter is to notify you that you may file an “individual right of action” (IRA) appeal seeking corrective action from the Merit Systems Protection Board (Board).

In your complaint against the Department of Energy (DOE), you alleged that DOE retaliated against you for making a disclosure to your management and the Secretary of DOE on September 11, 2018 that OSC and the Board have allegedly violated the law; DOE attorneys allegedly colluded to engage in reprisal against you; and DOE attorneys allegedly abused attorney-client privilege. You alleged that DOE retaliated against you by failing to respond to, or take any action in connection with, your disclosure.

In your IRA appeal, you may seek corrective action from the Board under 5 U.S.C.

§§ 1214(a)(3) and 1221 for any personnel action taken or proposed to be taken against you because of a protected disclosure or activity that was the subject of your OSC complaint. You may file the IRA appeal with the Board within 65 days after the date of this letter. The regulations concerning rights to file an IRA appeal with the Board can be found at 5 C.F.R. Part 1209. If you choose to file an IRA appeal with the Board, you should include this letter as part of your submission.

Although an individual bringing an IRA appeal to the Board must show that he or she has

exhausted OSC procedures, our decision to end the investigation may not be considered in an IRA appeal. See 5 U.S.C. § 1221(f)(2); Bloom v. Dep’t of the Army, 101 M.S.P.R. 79, 84 (2006). The Board may order an individual to submit a copy of OSC’s determination letter, but the order

U.S. OFFICE OF SPECIAL COUNSEL 1730 M Street, N.W., Suite 218 Washington, D.C. 20036-4505

202-804-7000

mailto:[email protected]

U.S. Office of Special Counsel Mr. Joseph Carson Page 2 must contain an explanation of why the letter is necessary and give the individual the opportunity to consent. See 5 U.S.C. § 1214(a)(2)(B); Bloom, 101 M.S.P.R. at 84.

Sincerely,

Sheri S. Shilling Attorney

Retaliation and Disclosure Unit

U.S OFFICE OF SPECIAL COUNSEL Form OSC-11 (2/28114)

,;,,. ,,•

IMPORTANT

(202) 254-3600 / (202)254-3670 I (800) 872-9855 0MB Control No. 3255-0002

Before filling out this Office of Special Counsel (OSC) form, please read the following information about:(1) the required complaint format; (2) the scope of OSC's jurisdiction; and (3) certain OSC policies. OSC cannot investigate a complaint if it lacks jurisdiction over the subject matter. Further, filing a complaint with OSC will not extend any time limits that may exist under any other complaint procedures that may be available. It is important, therefore, that you consider whether OSC may lack jurisdiction over your complaint.

If you plan to file a complaint alleging reprisal for whistleblowing, important information about the elements required by law to establish such a violation is provided in Part 2 of this form (at page 4).

INFORMATION ABOUT FILING A COMPLAINT WITH OSC

Required Complaint Form. Complaints alleging a prohibited personnel practice, or a prohibited activity other than a Hatch Act violation, must be submitted on this form. OSC will not process complaints (except a complaint alleging only a Hatch Act violation) that are not submitted on this form. OSC will return the material received, with a blank complaint form to complete and return to OSC. The complaint will be considered to be filed on the date on which OSC receives the completed form. 5 C.F.R. § 1800.1, as amended.

No OSC Jurisdiction. OSC has no jurisdiction over complaints filed by employees of -

• the Central Intelligence Agency, Defense Intelligence Agency, National Security Agency, or other intelligence agency excluded from coverage by the President;

• the armed forces of the United States (i.e., uniformed military employees); • the General Accounting Office; • the Postal Rate Commission; and

the Federal Bureau of Investigation.

Limited OSC Jurisdiction. OSC has jurisdiction over certain types of complaints filed by employees of some agencies, as follows -

• Federal Aviation Administration employees alleging reprisal for whistleblowing; • employees of government corporations listed at 31 U.S.C. § 9101 alleging reprisal for whistleblowing; U.S. • Postal Service employees alleging nepotism; and • Transportation Security Administration (TSA) employees alleging reprisal for whistleblowing: TSA non

screener employees may file complaints alleging retaliation for protected whistleblowing under 5 U.S.C. § 2302(b)(8). OSC will process these complaints under its regular procedures, including filing petitions with the Merit Systems Protection Board, if warranted. TSA security screeners may also file complaints alleging retaliation for protected whistlebtowing under 5 U.S.C. § 2302(b)(8) pursuant to a Memorandum of Understanding (MOU) between OSC and TSA executed on May 28, 2002. The MOU and TSA Directive HRM Letter No. 1800-01 provide OSC with authority to investigate whistleblower retaliation complaints from screeners and recommend that TSA take corrective and/or disciplinary action when warranted. Additional information on OSC procedures for reviewing security screener whistleblower complaints under the MOU is available at http://www.osc.gov/tsa-info.htm.

COMPLAINT OF POSSIBLE PROHIBITED PERSONNEL PRACTICE OR OTHER PROHIBITED ACTIVITY Page ii

INFORMATION ABOUT FILING A COMPLAINT WITH OSC (cont'd)

Election of Remedies for Employees Covered By a Collective Bargaining Agreement Pursuant to 5 U.S.C. § 7121(g), if you are covered by a collective bargaining a9reement, you must choose one of three possible avenues to pursue your prohibited personnel practice complaint: (a) a complaint to OSC; (b) an appeal to the Merit Systems Protection Board (MSPB) (if the action is appealable under law or regulation), or (c) a grievance under the collective bargaining agreement. If you have already filed an appeal about your prohibited personnel practice allegations with the MSPB, or a grievance about those allegations under the collective bargaining agreement, OSC lacks jurisdiction over your complaint and cannot investigate it.

Deferral of Certain Complaints Involving Discrimination. Although OSC is authorized to investigate discrimination based upon race, color, religion, sex, national origin, age, or handicapping condition, as well as reprisal for filing an EEO complaint, OSC generally defers such allegations to agency procedures established under regulations issued by the Equal Employment Opportunity Commission (EEOC). 5 C.F .R. § 1810.1. If you wish to report allegations of discrimination based upon race, color, religion, sex, national origin, age, or handicapping condition, or reprisal for filing an EEO complaint, you should contact your agency's EEO office immediately. There are specific time limits for filing such complaints. Filing a complaint with OSC will not relieve you of the obligation to file a complaint with the agency's EEO office within the time prescribed by EEOC regulations (at 29 C.F.R. Part 1614).

Note: This deferral policy does not apply to discrimination claims outside the jurisdiction of the EEOC, such as complaints alleging discrimination based upon marital status or political affiliation.

Complaints Involving Veterans Rights. By law, complaints alleging denial of veterans' preference requirements must be filed with the Veterans Employment and Training Service (VETS) at the Department of Labor. 38 U.S.C. § 4301, et seq., and 5 U.S.C. § 3330a(a). Certain allegations of discrimination based on the past, current, or future performance of military service (e.g., discrimination based on veteran or reservist status) may be filed with OSC. Thus, you are encouraged to contact OSC's Uniformed Services Employment and Reemployment Rights Act (USERRA) Unit by e-mail at [email protected] or by telephone at 202-254-3600.

By Mail:

By Fax: Electronically:

SEND COMPLETED COMPLAINT FORMS TO OSC -

Complaints Examining Unit Office of Special Counsel 1730 M Street, N.W. (Suite 218) Washington, DC 20036-4505 (202)254-3711 WWW.OSC.GOV (AT "FILE COMPLAINTS ONLINE")

eLEASE KEEP A COPY DE YOUR COMPLAINT, ANY Sl/PPORTING DDClJMENTIDN AND ANY ADDITIONAL ALLEGA T/ONS SENT IN WRITING TO OSC NOW, OR AT ANY TIME WHILE YOUR COMPLAINT IS PENDING

REPRODUCTION CHARGES UNDER THE FREEDOM OF INFORMATION ACT MAY APPLY TO ANY REQUEST YOU MAKE FOR COPIES OF MATERIALS THAT YOU PROVIDED TO OSC.

IF YOU ARE FILING AN ALLEGATION OF REPRISAL FOR WHISTLEBLOWING, PLEASE SEE PART 2 OF THE COMPLAINT FROM, AT PAGES 4-5, FOR OTHER RECORDKEEPING

CONSIDERATIONS.

U.S. OFFICE OF SPECIAL COUNSEL (202) 254-3600 / (202) 254-3670 / (800) 872-9855

COMPLAINT OF POSSIBLE PROHIBITED PERSONNEL PRACTICE OR

OTHER PROHIBITED ACTIVITY

(Please print legibly or type and complete all pertinent items. Enter "NIA" (Nol Applicable) or "Unknown" where appropriate. (If more space is needed, use Continuation Sheet at page 12.)

1. Name of person seekin plainant"):

rsc,J s.(0) Mrs.(O) Miss(O)

For USERRA complaints only • please provide the last digit only of your Soci%I S curity Number (SSN): (needed to determine jurisdiction un?:'§ pQ4(c)~~ of Public Law No~~4. / / R _/ /.

2. Position, title, series, and grade: (;z_.)., ;Y- vv I -rv1c I "/ 1? ~1/)l'N -µ-71tf c.l

{Home)

ffi1 (7t- /'/78' (Office) Ext.

Fax number: &;{'1 & ) Y 0?3-o, ,_..j, E-maHaddcess I t)Cq('So;v i? f;i'j, Fn--

7. If you are filing this complaint as a legal or oth'J/representative of the Complainant, please supply the following information:

Name and title oM ;q Mr.( 0) Ms.{ G) M,s.( 0 I Miss{ C)

Address:

Telephone number(s): (Home) ------------(Office) Ext.

Fax number:

E-mail address:

8. Are you (or is the Complainant, if you are filing as a representative) covered by a collective bargaining agreement? (Check one.)

(81 )Yes (0) No

9. How did you first become aware that you could file a complaint with OSC?

( 0) OSC Web site

( 0) NewsStory

( O) Other (please describe):

( 0) OSC Speaker

( O) AgencyPersonnel Office

( 0) I don'tknow

( C) OSC Brochure

( 0) Union

( C ) OSC Poster

( 0 ) Co-worker

-D-a-le-(a-p-p,-ox_;_m-al_e_)c __ z--r'7:;c-:,Y;c:~:;;c:-------------------------{-, --'----'-''-------------------

COMPLAINT Of POSSIBLE PROHIBITED PERSONNEL PRACTICE OR OTHER PROHIBITED ACTIVITY Page 2 of 12

10. What is the employment status of the person affected by the suspected prohibited personnel practice or other prohibited activity? {Check all a,a.olicable ilems - more than one item may apply.)

a. ) Applicant for Federal employment

b. 9\'l Competitive Service

( '/.) career or career-conditional appointment

( ) probationary employee

( ) temporary appointment

{ ) term appointment

c. ) Excepted Service

) Schedule A ) Schedule B ) Schedule C

I I I I I

) PostalService ) Tennessee\/alley Authority ) VA Dept. of Medicine and Surgery ) Veterans Readjustment Act (VRA) ) Other (Specify)

d.

e

) National Guard Technician ) Non-appropriated Fund

) SeniorExecutive Service (SES), Supergrade, or Executive Level

( ) career SES ( ) noncareer SES

I I

) career GS-16, 17, or18 ) noncareerGS-16, 17, or18

) Other

) civilservice annuitant

) formercivil service employee ) competitive service ) excepted service

) Executive Level V or above (career) fund ) Executive Level V or above (noncareer) ) Presidentialappointee (Senate-confirmed)

) militaryofficer or enlisted person ) contract employee ) other(specify): ---------------

) unknown

11. What other action(s), if any, have you taken to appeal, grieve, or report this matter under any other procedure?(Check all that apply.)

( ) None, or not applicable

(X) Appeal filed with Merit Systems Protection Board (MSPB) Date:-~----------Date4(t-t/lf,,, tlv!S

( ) Petition for reconsideration of initial decision filed with MSPB Date: -----------Initial Decision No. -------------------USER RA claim filed with VETS (Department of Labor) Date: __________ _

(Form VETSIUSERRANP-1010) ( Grievance filed under agency grievance procedure Date: ___________ _ ( Grievance filed under negotiated grievance procedure Date: ___________ _ ( Matter heard by arbitrator under grievance procedure Date: ___________ _ ( Matter is pending in arbitration Date: ___________ _

( Discrimination complaint filed with agency Date: ___________ _

( Agency or Administrative Judge (AJ) decision on discrimination complaint appealed to Equal Employment Opportunity Commission

Appeal filed with Office of Personnel Management Unfair labor practice (ULP) complaint filed with Federal Labor Relations Authority

General Counsel Lawsuit filed in Federal Court

Court name: Reported matter to ag·'e"o"c"y'l,0 s0p0e0c0to","G"e"o"e0,=,r1 ------------Reported matter to member of Congress

Date: -----------Date: --------Date: DateM~~~---/1/,-v_/j_t?._/j'=s----

Date A{?ffe/o4'J Date: 4,/Cr Ok"/tfft)

Name of Senator or Representative:_;;,,;,f---;;"7#--,:---;"-,--:7-cc,;-/ Othe, (spedfyi w,:; , '.5. c 13

COMPLAINT OF POSSIBLE PROHIBITED PERSONNEL PRACTICE OR OTHER PROHIBITED ACTIVITY Page 3 of 12

12. What official is responsible for the violation(s) that you are reporting, and what is his/her employment status? (See question 10 for appropriate description of employment status. If space is need d to identify more than ::::flicial, Conti uation She at ;, 12.) g✓,

Position/Title: ~ d, Employment Status:

----------------------------13. What are the actions or events that you are reporting to OSC? (To the extent known, specifically list: (a) any

suspected prohibited personnel practices or other prohibited activity, other than reprisal for whistleblowinq; and {b) any personnel actions involved. (IF YOU ARE ALLEGING REPRISAL FOR WHISTLEBLOWING, SKIP TO PART 2 ON THE NEXT PAGE.

14. Provide details of the actions or events shown in your response to question 13. (Be as specific as possible about dates, locations, and the identities and positions of afl persons mentioned. In particular, identify actual and potential witnesses, giving work locations and telephone numbers when possible. Also, attach any pertinent documents that you may have. Please provide, if possible, a copy of the notification of the agency's proposal and/or decision about the personnel action(s) covered by your request for OSC action. If more space is needed, use Continuation S tat page 12.)

15. ake in this matter (that is, what remedy are you asking for?)

i


This part of the form is solely for use by persons alleging reprisal for whistleblowing {that is, persons who believe that personnel actions were taken, not taken, or threatened because of a whistleblower disclosure). Please read the introductory material before answering the questions that follow. If more space is needed, use the continuation sheet at page 12.

Complainants DJJ1 alleging reprisal for whistleblowing should proceed to Part 3 ("Consent to Certain Disclosures of Information"), at page 9.

Reprisal for Whistlebiawing Allegations

As a general rule, it is a prohibited personnel practice to take or fail to take, or threaten to take or fail to take, a personnel action because of a protected disclosure of certain types of information by a Federal employee, former employee, or applicant for Federal employment. 5 U.S.C. § 2302(b)(8).

Legal Elements of a Violation

By law, certain elements must be present before OSC can establish that a legal violation of law has occurred. Two of the required elements that must be established are: (1) that a whistleblower disclosure was made; and (2) that an agency took, failed to take, or threatened to take or fail to take a personnel action because of the whistleblower disclosure. Your description of these elements will help OSC's investigation of your allegation(s).

Protected Disclosures

A disclosure of information is a protected whistleblower disclosure if a Federal employee, former employee, or applicant for Federal employment discloses information which he or she reasonably believes evidences: (a) a violation of any law, rule, or regulation; (b) gross mismanagement; (c) a gross waste of funds; (d) abuse of authority; or (e) a substantial and specific danger to public health or safety.

Covered Personnel Actions

The law prohibiting reprisal for whistleblowing requires proof that one or more of the following personnel actions

occurred, or failed to occur, because of a protected disclosure:

(1) an appointment; (2) a promotion; (3) an action under 5 U.S.C. chapter 75 or other disciplinary or corrective action;

COMPLAINT OF POSSIBLE PROHIBITED PERSONNEL PRACTICE OR OTHER PROHIBITED ACTIVITY Page5of12

(4) a detail, transfer, or reassignment; (5) a reinstatement; (6) a restoration; (7) a reemployment;

(8) a decision about pay, benefits, or awards, concerning education or training if the education

or training may reasonably be expected to lead to an appointment, promotion,

performance evaluation, or other action described in 5 U.S.C. § 2302(a)(2); (9) a performance evaluation under 5 U.S.C. chapter 43; (10) a decision to order psychiatric testing or examination; or

(11) any other significant change in duties, responsibilities, or working conditions.

Reporting Your Allegatian(s)

In the section that starts below (pages 6MB), provide the information requested about all disclosures that you

believe led to reprisal by the agency involved. If more space is needed, use extra copies of page 6MB, or the Continuation Sheet at page 12. If any of the disclosures were in writing, please provide a copy of the disclosure with your complaint

IT IS IMPORTANT THAT YOU UST All DISCLOSURES AND PERSONNEL ACTIONS INVOLVED IN YOUR COMPLAINT- This is because: (1) failure to list any disclosure or personnel action may delay the processing of your complaint by OSC; and (2) a comprehensive listing will avoid disputes in any later Individual Right of Action

(IRA) appeal that you may file with the Merit Systems Protection Board (MSPB) about its jurisdiction to hear case.

Additional allegations of reprisal for whistleblowing may be added to this complaint while it is pending at OSC. Submission of any such additional allegations to OSC in writing will help you if you decide to file any later IRA appeal with the MSPB. Form OSCM11a is available for that purpose at OSC's web site, under "Forms."

Appeal to the Merit Systems Protection Board (MSPBI

If OSC fails to complete its review of your whistleblower reprisal allegation within 120 days after it receives your complaint, or if it closes your complaint at any time without seeking corrective action on your behalf, you have the right to file IRA appeal with the MSPB. 5 U.S.C. § 1214(a)(3).

Recordkeeping

To establish its jurisdiction over any later IRA appeal that you may file, the MSPB will require you to show that the appeal relates to the same whistleblower disclosure(s) and personnel action(s) involved in your complaint to OSC.

A copy of the whistleblower reprisal allegations in yrn1r complaint any supporting doc1,mentation abrn,t those allegations that you sent with the complaint, and any additional allegation of reprisal that you submitted in writing to OSC while the complaint was pending, will serve as proof in any IRA of the disclosure(s) and personnel action(s) involved in your OSC complaint. IT IS IMPORTANT, THEREFORE, THAT YOU MAKE AND KEEP COPIES OF ALL THESE DOCUMENT FOR YOUR RECORDS.


Mi:iSr"aE COMPLETED FOR ALL'rilscLOSURES REPORTED tN iH,s COMPLAINT

A. WHAT INFORMATION WAS DISCLOSED? (DESCRIBE WHISTLEBLOWER DISCLOSURE).

B. WHAT INFORMATION WAS DISCLOSED? (DESCRIBE NEXT WHISTLEBLOWER DISCLOSURE .

jllq

ADE? (MO/DA/YR)

HE DISCLOSURE

3. DISCLOSURE OF INFORMATION EVIDENCED (check all that apply):

1V1) VIOLATION OF LAW, RULE, OR REGULATION

( \ GROSS MISMANAGEMENT

( ) GROSS WASTE OF FUNDS

( ) ABUSE OF AUTHORITY

( ) SUBSTANTIAL AND SPECIFIC DANGER TO

PUBLICHEAL TH OR SAFETY

) NONE OF THE ABOVE

S) OR THREAT(S)

2. TO WHOM (NAME AND TITLE) WAS THE DISCLOSURE MADE?


( ) VIOLATION OF LAW, RULE, OR REGULATION

( ) GROSS MISMANAGEMENT


( ) ABUSE OF AUTHORITY ( ) SUBSTANTIAL AND SPECIFIC DANGER TO

PUBLICHEAL TH OR SAFETY

NONE OF THE ABOVE

4. WHAT PERSONNEL ACTION{S) OCCURRED, FAILED TO OCCUR, OR WAS THREATENED BECAUSE OF THE DISCLOSURE? (Lisi all applicable personnel action numbers from pages 4-5).

5. WHEN DID PERSONNEL ACTION{S) OR THREAT(S) OCCUR?

(MO/OANR)


. C. WHAT INFORMATION WAS DISCLOSED? DESCRIBE NEXT WHISTLEBLOWER DISCLOSURE .

D?


3. DISCLOSURE OF INFORMATION EVIDENCED (check all that apply): ( ) VIOLATION OF LAW, RULE, OR REGULATION ( ) GROSS MISMANAGEMENT ( ) GROSS WASTE OF FUNDS ( ) ABUSE OF AUTHORITY ( ) SUBSTANTIAL AND SPECIFIC DANGER TO

PUBUCHEAL TH OR SAFETY

NONE OF THE ABOVE

4. WHAT PERSONNEL ACTION(S) OCCURRED, FAILED TO OCCUR, OR WAS THREATENED BECAUSE OF THE DISCLOSURE?

5. WHEN DID PERSONNEL ACTION(S) OR THREAT($) OCCUR? (MOIDANR)

1. WHEN WAS THE DISCLOSURE MADE? (MO/DANR)



( ) VIOLATION OF LAW, RULE, OR REGULATION

( ) GROSS MISMANAGEMENT


( ) ABUSE OF AUTHORITY ( ) SUBSTANTIAL AND SPECIFIC DANGER TO

PUBLICHEALTH OR SAFETY

NONE OF THE ABOVE

4. WHAT PERSONNEL ACTION(S) OCCURRED, FAILED TO OCCUR, OR WAS THREATENED BECAUSE OF THE DISCLOSURE? (Lisi a/I applicable personnel action numbers from pages 4-5).

5. WHEN DID PERSONNEL ACTION($) OR THREAT(S) OCCUR?


I~ -. --------- -- -_MU5_! BE COMPLETED FOR ALL DISCLOSURES INCLUDED IN THIS COMPLAIN_! _I

3. If you are not the person who actually made a disclosure described in boxes A, B, C, D above, please check below to specify the disclosure involved, and provide the name, address, and telephone number of the person who made the disclosure, if known. (If space is needed to identify more than one person, use Continuation Sheet at page 12.)

Disclosure: , /,, ( \ )

Name 4/4 Address:

B ( (' ) C ( ' ) D ( C)

Telephone number: ) _______ _ Ext.

4. Explain why you believe that the personnel action(s) listed above occurred because of the disclosure(s) that you described. (Be as specific as possible about any dates, locations, names, and positions of all persons mentioned in your explanation. In particular, identify actual and potential witnesses, giving work locations and telephone numbers, if known. Attach a copy of any documents that support your statements. Please

rovide if ossible a co of the notification of the a enc 's ro osal and/or decision about the ersonnel actions covered b I ·nt. I more space is needed, continue on page 12.)

5. ke in this matter (that is, what remedy are you asking for)?

COMPLAINT OF POSSIBLE PROHIBITED PERSONNEL PRACTICE OR OTHER PROHIBITED ACTIVITY Page 9 ol 12

TO CERTAIN DISCLOSURES OF INFORMAl_lCJN -·~ ____j

DSC asks everyone who files a camplainl alleging a possible prohibited personnel practice or other prohibited activity lo select one of three Consent Statements shown below. lF VOU OQ NOT SELECT ONF OE THE TUREE CONSENT STATEMENTS BFl OW, QSC WILL ASSl/MEIHAT YDU HAYE SFl fCTEQ CONSENT STATEMENT 1 Please: (a) select and sign {or check, if filing electronically) one of the Consent Statements below; and (b) keep a copy of the Consent Statement you select (as well as a copy of all documents that you send to DSC) for your own records. If you initially select a Consent Statement that restricts DSC's use of information, you may later select a less restrictive Consent Statement. If your seleclion of Consent Statement 2 or 3 prevents OSC from being able to conduct an investigation, an OSC representative will contact you, explain the c'lrcumstances, and provide you with an oppbrtunity to select a less restrictive Consent Statement You should be aware that the Privacy Act allows information in OSC case files lo be used or disclosed for certain purposes, regardless of which Consent Slatement you sign. See 5 U.S.C. § 552a(b). Information about certain clrcumslances under which DSC can use or disclose information under the Privacy Act app·ears on the next page.

(Please sign one)

Conse~t statement 1

mmuni lion with the agency involved in my complaiiit. t agree to allow DSC to disclose my identity as d infer ti n from or about me, to the agency If OSC decides that such disclosure is needed to ation( in y complaint (for example, to request information from the agency, or seek a possible edla on r corrective action). I understand that regardless of the Consent Statement I ch ose, OSC may

complaint file f ,miHed by the Privacy Act (including circums;nc~~'"f n Part 5,

e for Consent Statement 1 Date Signed

I consent to OSC's communication with the agency involved In my complaint, but I do not agree to allow DSC to disclose my identity as the complainant to !hat agency. I agree to allow OSC to disclose only information from or about me, without disclosing my name or other identifying information, If QSC decides that such disclosure is needed to investigate the allegation(s) in my complaint {for example, lo request information from the agency, or seek a possible resolution through mediation or corrective action). 1 understand that in some circumstances (for example, if I am complaining about my failure to receive a promotion), OSC could not maintain my anonymity while communicating with the agency involved about a specific personnel action. In such. cases, I understand that this request for confidentiality mighl prevent OSC from taking further action on my complaint. I also understand that regardless of the Consetlt Statement I choose, OSC may disclose information from my complaint flle when permitted by the Privacy Act (including circumstances summarized in Part 5, below).

Complainant's Signature for Consent Slatemenl 2 Date Signed

Consent stiltement 3

I do nm consent to OSC's communication with the agency involved in my complaint. I understand that if OSC decides that it cannot investigate the allegalion(s) in my complaint without communicating with that agency, my lack of consent wHl probably prevent OSC from taking further action on the complaint. I understand that regardless of the Consent Statement I choose, DSC may disclose information from my complaint file when permitted by the Privacy Act (Including circumstances summarized In Part 5, below).

Complainant's Signature for Consent Statement 3 Date Signed

COMPLAINT OF POSSIBLE. PROHIBITED PERSONNEL PRACTICE OR OTHER PROHIBITEO ACTMTY Page10of12

•\ND SICNAT1JRI~

I certify that all f the statements made in this complaint(including any continuation pages) are true, c mplete nd cor to the best of my knowledge and belief. I understand that a false state ntor nceal e of a material fact is a criminal offense punishable by; a fine of up to $250, 0, im rison e for up to five•.~~J&, or both.18 U.S.C. § 1001.

/;J,;;, !!

Routine Uses. Limited disclosure of information from OSC files is needed to fulfill OSC's investigative, prosecutorial, and related responsibilities. OSC has described 18 routine uses for information in its files in the Federal Register (F.R.), at 66 F.R. 36611 (July 12. 2001 ). and 66 F .R. 51095 (October 5, 2001 ). A copy of the routine uses is available from OSC upon request. A summary of the routine uses appears below. OSCmay disclose informatiofrom its files in the followingcircumstances:

~ 1. to disclose that an allegation of prohibited personnel practices or other prohibited activity has been filed;

2. lo disclose information to the Office of Personnel Management (OPM) as needed for inquiries

involving civil service laws, rules or regulations, or to obtain an advisory opinion; 3. to disclose information about allegations or complaints of discrimination to entities

concerned with enforcement of antidiscrimination laws; 4. to the MSPB or the President. when seeking disciplinary action;

5. to the involved agency, MSPB, OPM, or the President when OSC has reason to

believe that a prohibited personnel practice has occurred, exists, or is to be taken; 6. to disclose information to Congress in OSC's annual report;

7. to disclose information to third parties as needed to conduct an investigation; obtain an

agency investigation and report on information disclosed to OSC's whistleblower disclosure

channel; or to give notice of the status or outcome of an investigation;

B. to disclose information as needed to obtain information about hiring or retention of an employee;

issuance of a security clearance; conduct of a security or suitability investigation; award of a

contract; or issuance of a license, grant, or other benefit;

9. to the Office of Management and Budget (0MB) for certain legislative coordination and clearance purposes;

COMPLAINT OF POSSIBLE PROHIBITED PERSU:'JEL PRACTICE OR OTHER PROHIBITED ACTIVITY Page 11 of 12

1 O. to provide information from an individual's record to a congressional office acting pursuant to the individual's request;

11. to furnish information to the National Archives and Records Administration for records management purposes;

12. to produce summary statistics and work force or other studies;

13. to provide information to the Department of Justice as needed for certain litigation purposes;

14. to provide information to courts or adjudicative bodies as needed for certain litigation purposes;

15. to disclose information to the MSPB as needed in special studies authorized by law;

16. for coordination with an agency's Office of Inspector General or comparable entity, to facilitate the coordination and conduct of investigations and review of allegations;

17. to news media or the public in certain circumstances (except when the Special Counsel

determines that disclosure in a particular case would be an unwarranted invasion of personal privacy); and

18. to the Department of Labor and others as needed to implement the Uniformed Services

Employment and Reemployment Rights Act of 1994, and the Veterans' Employment Opportunities Act of 1998.

If OSC officials believe that disclosure may be appropriate in a situation not covered by one of OSC's routine uses, or-one of the 11 other exceptions to the Privacy Act's general prohibition on disclosure, OSC will seek written authorization from the complainant permitting the disclosure.

Purposes Burdens and Other Information An agency may not conduct or sponsor a collection of information, and persons may not be required to respond to a collection of information, unless it: (a) has

been approved by 0MB, and (b) displays a currently valid 0MB control number. The information in this form is collected pursuant to OSC's legal responsibility to investigate: (a) allegations of prohibited

personnel practices, to the extent necessary to determine whether there are reasonable grounds to

believe that a prohibited personnel practice has occurred, exists, or is to be taken (5 U.S.C. § 1214); and

(b) other allegations of prohibited activity (5 U.S.C. § 1216). The information will be reviewed by OSC to determine whether the facts establish its jurisdiction over the subject of the complaint, and whether

further investigation and corrective or disciplinary action is warranted. The reporting burden for this collection of information is estimated to be an average of one hour and 15 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering the data needed,

and completing and reviewing the form. Please send any comments about this burden estimate, and

suggestions for reducing the burden, to the Office of Special Counsel, Legal Counsel and Policy Division, 1730 M Street, N.W. (Suite 218), Washington, DC 20036-4505. Use of this form to file a complaint

alleging a prohibited personnel practice or other prohibited activity is required; use of this to file a

complaint alleging only a Hatch Act violation is not required. 5 C.F.R. § 1800.1(d), as amended. As stated

in Part 3 of this form, complainants may request that OSC maintain their name, and information provided by them, in confidence.

COMPLAINT OF PROHIBITED PERSONNEL PRACTICE I OTHER PROHIBITED ACTMTY Page 12 of 12

Part No ftem!Ouestion No Resoonse Continuation •

Attachment to Whistleblower Reprisal Complaint to OSC (Form OSC-11) of Joseph Carson, PE

Part 2 (A) What information was disclosed?

Engineer Carson’s 17 page-long whistleblower disclosure to his chain of command in theDepartment of Energy of September 11, 2018 details “what information was disclosed.” Engineer Carson incorporates his September 11, 2018 whistleblower disclosure into thiscomplaint, which contains a restatement and elaboration on his many years-long public claims ofdecades-long, compounded, continuing, civilization-threatening law-breaking in the US Office ofSpecial Counsel (OSC) and US Merit Systems Protection Board (MSPB).

Engineer Carson’s whistleblower disclosure cites about dozen specific laws he claims OSC andMSPB are violating. It claims that this combined, compounded, continuing law-breaking on thepart of OSC and MSPB preclude the Secretary of Energy from compliance with his primarystatutory duty to DOE employees - to “prevent prohibited personnel practices” - meaning he isVIOLATING his primary statutory duty to DOE employees, thereby putting civilization atunnecessary increased risk of a nuclear 9/11, given DOE singular duties for nuclear weaponsmaterials, in America and around the world.

Mr. Carson make a similar claim for President Trump - that the combined, compounded,continuing law-breaking at OSC and MSPB preclude him from compliance with this primarystatutory duty to over 2 million federal agency employees - to “take any action necessary” toensure federal agency employment “embodies” the merit principles (which, as MSPB hasexplicitly acknowledged, requires federal employees to be adequately protected from reprisal andother types of prohibited personnel practices).

The law does not allow an agency employee to make a whistleblower reprisal complaint againstthe President, while it does allow them to make one against their agency head. In this complaint,Engineer Carson claims whistleblower reprisal against him by his chain of command in theDepartment of Energy, up to the Secretary of Energy.

Additionally, Engineer Carson claimed, in his September 11, 2018 memo (pages 3-4), that DOEattorneys had colluded/conspired to engage in reprisal against him in the 1999-2003 time periodand then betrayed their oaths to their profession and federal civil service by doing somethingattorneys representing heads of drug cartels cannot or will not do - hide their law-breaking behindattorney-client privilege.

Engineer Carson realizes that Congress did not anticipate such extraordinary agency malfeasancein creating the statutory scheme to protect federal employees from reprisal - not in the PendletonAct of 1883, not in the Civil Service Reform Act of 1977, nor the Federal WhistleblowerProtection Act of 1989. However, OSC has the legal tools of subpoena, recently reinforced bylaw, to pierce this veil of attorney-client privilege and determine whether agency attorneyswillfully conspired or colluded with agency managers and personal specialists to engage in

1

reprisal against an agency employee and then used attorney-client privilege to prevent exposureof their law-breaking. If OSC makes such a determination, it will be the first time in the historyof the federal civil service, since its creation by the Pendleton Act of 1883, that suchextraordinary agency corruption has been uncovered.

(A)(1) - When was the disclosure made:

Engineer Carson has been making these whistleblower disclosures for many years, as detailed inhis whistleblower disclosure of September 11, 2018. To his knowledge, no one, anywhere, nowclaims he “lacks reasonable belief”in them. Instead, it seems to Engineer Carson that everyone,everywhere, who has a responsibility to do other than bystand to his whistleblower disclosures,lacks the moral courage to do other than bystand.

(A)(2) - To Whom Was the Disclosure Made:

Engineer Carson made this disclosure to his chain of command, up to Secretary Perry. Thisincludes: his Branch Director, Chelsea Hubbard, his Division Director, Larry Perkins; his OfficeManager, Jay Mullis; the Assistant Secretary for Environmental Management, Ann Marie White;and the Secretary of Energy, Rick Perry.

(A)(4) - What personnel actions occurred, failed to occur, or was threatened because of thedisclosure.

The “catch-all” personnel action of “any other significant change in working conditions - 5U.S.C. §2302(a)(2)(A)(xii).

Engineer Carson’s chain of command, to this point, is ignoring his whistleblower disclosures -they will not, to this point, even talk to him about them, despite his requests. 1

The National Defense Authorization Act for Fiscal Year 2018, Pub. L. 115-91 also re-authorizesOSC, in section 1097. Section 1097(d), “Protection of Whistleblowers as Criteria inPerformance Appraisals,” explicitly requires Engineer Carson’s supervisors to do other thanbystand to his whistleblower disclosures, but bystand they continue to do. 2

This new law, requiring federal agency supervisors to do other than bystand to the whistleblowerdisclosures of their subordinates, resulted from November 2011 MSPB “Special Study” on

1 See the two attached related email strings between Engineer Carson and the Manager ofOak Ridge Office of Environmental Management, Jay Mullis as part of this complaint.

2 Engineer Carson’s supervisors in Oak Ridge have yet to tell him, despite his repeatedasking, whether their FY 19 performance plans: 1) are implemented and/or 2) contain this new,critical, performance element, as now required by 5 U.S.C. §4302(b).

2

“Barriers to Whistleblowing,” which identified a top barrier to making whistleblower disclosuresin federal agencies was the fear that the employee’s supervisors would bystand to them. 3

Additionally, testimony from leaders of MSPB and OSC in subsequent Congressional hearingunderscored the importance of federal agency supervisors doing other than bystand to thewhistleblower disclosures of their subordinates.

There is no precedent at MSPB as to whether the bystanding of supervisors to the whistleblowerdisclosures of their subordinates can, in any circumstances, create the personnel action of “anyother significant change in their working conditions.” However, by this new law, it seems clearthat it can - why else would a critical element be placed in their performance plan, requiring themto do other than bystand to the whistleblower disclosures of their subordinates, if their bystandingwould not be a barrier to their subordinates making whistleblower disclosures, thereby creating,by definition, “any other significant change to their working conditions?” 4

A(5) When did the personnel action occur?

It is ongoing.

Part II (4) - Explain why you believe that the personnel action listed above occurred becauseof the disclosure that you described:

Engineer Carson made the whistleblower disclosures, his supervisors, to this point, bystand to it,contrary to law and their professional duty, creating a barrier to whistleblowing - by definition, a“significant change to (his) working conditions.”

Part II (5) - What action would you like OSC to take in this matter (that is, what remedy areyou asking for)?

OSC can do a number of things, but it would take a moral courage Engineer Carson has yet to seeof anyone at OSC, in his over quarter-century of interacting with it.

3 the associated press release from MSPB is attached as an exhibit to this complaint and isavailable athttps://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=662550&version=664522&application=ACROBAT

4 By applying the reasoning of a Supreme Court decision in a private sector EEOretaliation case, Burlington North. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006), anythingthat would dissuade an employee from making a protected disclosure or engaging in protectedactivity - such as the bystanding of supervisors to the whistleblower disclosures of a subordinate,is a significant change in working conditions.

3

1) Find the moral courage to stop bystanding to Engineer Carson’s whistleblower disclosures ofOSC and MSPB law-breaking - formally determine as part of your investigation of this complaintthat he has at least “reasonable belief” in them.

2) Find the moral courage to stop bystanding to Engineer Carson’s whistleblower disclosures ofOSC and MSPB law-breaking - formally REQUEST the Attorney General to issue an opinionregarding the interpretation of the involved civil service statutes.

3) Find the moral courage to stop bystanding to Engineer Carson’s whistleblower disclosures ofOSC and MSPB law-breaking - comply with your statutory duties to him and explicitlydetermine whether or not there is “reasonable grounds to believe” that the bystanding of hissupervisors to his whistleblower disclosures is a “significant change in my working conditions”and, therefore, unlawful whistleblower reprisal.

4) Find the moral courage to determine whether Engineer Carson’s supervisors are violating theircritical performance element requiring them to do other than bystand to his whistleblowerdisclosures.

5) Find the moral courage to investigate, using OSC’s recently strengthened subpoena power topierce the “attorney-client privilege” veil, Engineer Carson’s whistleblower disclosure that DOEattorneys used “attorney-client privilege” to evade exposure of their colluding/conspiring withDOE managers and personnel specialists to engage in reprisal against him in the 1999-2003 timeperiod.

6) Find the moral courage to advocate to Department of Energy Secretary Rick Perry, just as havea number of other stakeholders to a trustworthy federal civil service, that he DIRECT theAttorney General to issue opinions on the interpretation of the involved civil service statutes. 5

5 Their letter of November 7, 2018 is attached as part of this complaint.

4

Exhibits to Whistleblower Reprisal Complaint of Joseph Carson, PE, which he incorporates into his complaint

1. His whistleblower disclosure of September 11, 2108 2. Two email strings with Jay Mullis about meeting to discuss his whistleblower disclosures 3. Letter of November 7, 2018 from stakeholder Groups to Secretary of Energy Rick Perry

about Engineer Carson's whistleblower disclosures 4. MSPB press release of November 14,2011 about its "Special Study" on "Barriers to

Whistleblowing." 5. Email from Joseph Carson, PE, to Larry Perkins, his second level supervisor of

12/03/2018 (Mr. Perkins was acting for Chelsea Hubbard, his first level supervisor). As of COB on 12/06/2018, Mr. Carson received no response from Mr. Perkins. However, Virginia Grebasch, the Department of Energy Whistle blower Protection Coordinator, informed Mr. Carson that she understood all supervisors in the Department of Energy would have the new performance element in their FYI 9 performance plans.

5

September 11, 2018 - 17th anniversary of the catastrophic, law-breaking, failure of the Civil Service Reform Act of 1978, when the American Government abjectly failed to protect America

To: Department of Energy (DOE) Oak Ridge Office of Environmental Management (OREM), Oversight Management Division (OMD) Supervisors Brian DeMonia, Chelsea Hubbard and Larry Perkins

From: Joseph Patrick Carson, PE (Note: The original of this whistleblower disclosure is stamped and sealed with Engineer (Engr.) Carson's professional engineer (PE) stamp. He is licensed as a PE in Tennessee, no. 106350. By the legally binding rules of professional conduct of his PE licensing authority - as well as the professionally binding the code of engineering ethics of several engineering professsional societies to which he is a long-time member - Engr. Carson has a positive duty to make whistleblower disclosures as these - as well as to be "truthful and objective" in such public statements. Engr. Carson will refer to himself in the third person in this whistleblower disclosure. Finally, Engr. Carson's related website, www.meritprinciples.org has links to related documents, such as MSPB or other adjudicatory decisions, Congressional testimony, FOlA responses, etc.) ,\\111111111,1111 ,,,, ,,,,

Engr.Carson's PE stamp and seal in origina

\\\ \\ p, C°A, A •It✓, $'❖ ~i>~ ..... :.~i-~ ¾

f° s::, /<~~D 8.\ii},•, ()__. ~ f? :::;; -:, • ,t:•. ·r ~

I (~""""'' ~\ f ii • ... f:it;l ....

. • .. w, \l~\\ •• • ~$ ~ :;...:.••,'Jl,,l.Qf,,~~•~~'!'""~~ , ..,.o ~~"":. ~,

"/"''' ,, flt"' ,,,,, ... I I I II II \111 U.I I\\\\:

Subject: Whistleblower Disclosure implic tin President Dona a trump and his Presidential predecessors since 1978, Secretary of Ene gy ick Perry and his predecessors since 1978, Mark Robbins, Acting Chair of the U.S. Merit S terns Protection Board (MSPB) and all preceding Chairs, Vice-Chairs and Members of the MSPB since 1978, and Special Counsel Henry Kerner of the US Office of Special Counsel (OSC) and his predecessors as Special Counsel ofOSC since 1978.

Summary ofEngr. Carson's whistleblower disclosure and reasons he risks his federal employment and PE license in making it.

Engr. Carson is a deeply concerned PE, federal agency employee, American, Christian and crewmember of planet earth. He is not optimistic those born in 2018 will get to die natural deaths, not given the deep-rooted corruption and dysfunction in the federal agencies, the resultant failure of the American government to protect American health, safety, security and welfare, and the attendant loss of trust of Americans in their government. Like it or not, our unprecedented global civilization faces unprecedented collective challenges and is UTTERLY dependent, now and forevermore, as long as it sustains on its engineered underpinnings. So engineering ethics is

relevant and important to each and every of planet earth’s 7.5 billion crew and it future crewstoo.

Engr. Carson still considers America to be our civilization’s indispensable Country. Atrustworthy federal civil service is, in Engr. Carson’s opinion, necessary for the 7.5 crewmembers of planet earth to make and executive the collective decisions humanity must make tosustain planet earth’s life support systems, natural and manmade, so that posterity can “livewell” - just as Engr. Carson and his family are, by any objective measure, “living well.”

Engr. Carson publicly claims, whatever the risk to his federal employment and PE license, thatthe US Office of Special Counsel (OSC) is a decades-long, law-breaking, fraud of a federal lawenforcement agency, the US Merit Systems Protection Board (MSPB) is its decades-long, law-breaking enabler, and that this continuing, compounded, federal agency law-breaking is anessential cause of the deep-rooted corruption and dysfunction present in many federal agenciesand workplaces, that has been, in turn, a “but for” factor or proximate cause for much which hasbefallen and besets America in past 40 years, particularly including 9/11, and the illnesses andpremature deaths of thousands of 9/11 recovery workers.

Engr. Carson is named for a NYC fireman, his grandfather, and grew up in Brooklyn, NY. Hewatched the erection of the WTC when walking to the subway to go to HS in late 1960s. He wasin the WTC numerous times prior to 9/11. His strongest initial and lasting reaction to 9/11 isRELIEF - At Least It Was Not NUCLEAR - knowing firsthand how deeply corrupt anddysfunctional the Department of Energy is - while also being the custodian of America’s nucleararsenal and the lead federal agency for securing nuclear weapons material around the world.

This whistleblower disclosure, just as Engr. Carson’s related litigation, now including three tripsto US Supreme Court, evidence Engr. Carson’s personal, post-9/11 mission, dedicated to thememory of Fireman Peter A. Bielfeld, the only 9/11 casualty from Ladder Co. 42 in the Bronx,where Engr. Carson’s grandfather spent his career. Fireman Bielfeld voluntarily self-reported tothe WTC on 9/11 while on medical leave. Many of the 343 NYC fireman who perished at theWTC on 9/11 voluntarily self-reported when off-duty.

Engr. Carson’s public claims about the personal and professional honor of DOE SecretaryRick Perry:

Secretary Perry wrote a book about honor and is open about his Christian faith and worldview. Consistent with the law, the redemption of the world (presuming that includes civilizationavoiding a large-scale, if not near- total civilizational collapse in coming decades, with billionsof attendant unnatural deaths) and personal and professional honor, Engr. Carson publiclychallenges Sec. Perry to either:

1) Use his unquestioned legal authority to direct the Attorney General to issue opinionsas to how the disputed civil service laws (excepting 5 U.S.C. §§1213(b) and (c) as theirdisputed interpretation for wholly owned government corporations does not involve

2

DOE) are to be interpreted and applied - or if he listens to the advise of DOE attorneys,citing their sociopathic legal ethics, in not doing so, then

2) Direct a disciplinary action be taking against Mr. Carson for his then publicly statingSec. Perry lacks the professional honor - his oath office taken “in name of God” - beingjust many empty words - to hold his position of great trust and responsibility forAmerican health, safety, security and welfare.

The reason is that if a disciplinary action is taken against Mr. Carson, then DOE attorneys willnot be able to get the resulting whistleblower appeal dismissed on jurisdictional grounds andMSPB will have to make a determination as to whether Mr. Carson has “reasonable belief” in hiswhistleblower disclosures about OSC and MSPB law-breaking - something DOE attorneys (asOSC and MSPB attorneys), citing sociopathic legal ethics, have successfully prevented for manyyears now.

Engr. Carson’s whistleblower disclosures and why he publicly claims they are protected(i.e. why he publicly claims to have “reasonable belief” in them).

Starting after 9/11 and up to the present, Mr. Carson has repeatedly disclosed information relatedto violations of law at the Office of Special Counsel (OSC) and US Merit Systems ProtectionBoard (MSPB), regarding their respective, complementary, non-discretionary statutory duties to:

1) protect federal employees from reprisal and other types of prohibited personnelpractices (PPPs) as well as it effectively perform its non-discretionary statutory duties asa confidential, secure disclosure channel (OSC),

2) determine and report to the President and Congress whether the President and heads ofFBI and the nineteen intelligence community (IC) agencies or agency components were -or needed to - “take any action necessary” to ensure agency employees could effectivelymake whistleblower disclosures (they received a timely and objective resolution) whilebeing adequately protected from reprisal and other types of PPPs (MSPB),

3) determine and report to the President and Congress whether OSC, in objective fact,was complying with its duties to protect federal agency employees from PPPs as well aseffectively serving as a whistleblower disclosure channel for them (MSPB), and

4) determine whether there was an objective basis for other agency heads to claim theywere complying with their duty to “prevent PPPs” in their agencies (OSC and MSPB).

Additionally, Engr. Carson alleges that senior Department of Energy (DOE) attorneys conspiredwith DOE line management and human resources to engage in reprisal against him for his“prevailing” multiple times in whistleblower reprisal litigation against DOE - and thenunlawfully cited and abused “attorney-client” privilege in refusing to turn over incriminatingevidence about their unlawful, retaliatory, conspiracy against him in response to his lawful and

3

proper discovery requests. This happened in the 1999-2003 time period. What could be moretreacherous on the part of these attorneys, if Engr. Carson’s allegations are correct, to theirsworn oaths as attorneys and federal agency employees, to American health, safety, security andwelfare - and with Rule of Law in America?

Engr. Carson’s whistleblower disclosures about these above items include numerous letters toCongress, whistleblower disclosures to OSC, whistleblower reprisal complaints to OSC, lettersto OSC, letters to Department of Energy officials (including Secretary Perry and hispredecessors for past 10 or more years), letters to the President Obama and Candidate Trump,letters to MSPB, meetings with Department of Energy Officials, emails to Department of EnergyOfficials, whistleblower litigation at MSPB, and federal law suits.

Related litigation includes:

Carson v. Department of Energy, 77 MSPR 453 (1998)Carson v. Dept. of Energy, 85 MSPR 171 (2000)Carson v. Dept. of Energy, 88 MSPR 260 (2001)Carson v. Dept. of Energy, 398 F.3d 1369 (Fed. Cir. 2005)Carson v. Office of Special Counsel, docket no. 04-0315, Not Reported in F. Supp.2d, 2006 WL 785292 (D.D.C., March 27, 2006) Carson v. Office of Special Counsel, 2006 WL 5085253 (D.D.C., Oct. 30, 2006) anddecision on remand, Carson v. U.S. Office of Special Counsel, 2008 WL 2640283(D.D.C., July 7, 2008) Carson v. Merit Systems Protection Board, 257 Fed. Appx. 268, 2007 WL 3333475(C.A. Fed.)Carson v. Merit Systems Protection Board, docket no. 09-1207, U.S. Supreme CourtCarson v. Office of Special Counsel, 514 F. Supp. 2d (D.D.C. 2007) Carson v. Office of Special Counsel, 2008 WL 441532 (D.D.C., Feb. 19, 2008) Carson v. Office of Special Counsel, 2008 WL 474251 (D.D.C., Feb. 19, 2008) Carson v. Office of Special Counsel, 2009 WL 1346052 (E.D. Tenn., May 11, 2009) Carson v. Office of Special Counsel, 633 F.3d 487 (6th Cir. 2011)Carson v. Office of Special Counsel, docket no. 11-575, U.S. Supreme CourtCarson v. Merit Systems Protection Board, docket no. 14-1306, U.S. Court of Appeals for D.C.Circuit.Carson v. Merit Systems Protection Board, docket no. 15-1286, U.S. Court of Appeals for D.C.Circuit (still pending).Carson v. Merit Systems Protection Board, docket no. 15-3135; -3211, U.S. Court of Appeals forthe Federal CircuitCarson v. Merit Systems Protection Board, docket no. 17-1434, U.S. Supreme Court

Despite all the litigation listed above, the fundamental determination - does Engr. Carson have“reasonable belief” in his claims of decades-long, compounded, continuing, civilization-threatening, law-breaking, detailed below - remains open. Why? Because federal agencyattorneys in DOE, OSC, and MSPB have done everything they can - in the name of their

4

sociopathic legal ethics - certainly not in the name of American health, safety, security andwelfare - to prevent any such determination, because such a determination, even if it couldprevent a nuclear 9/11, might not be in the interests of their clients - their employing agencies!

The sections of law Engr. Carson alleges OSC is violating, in whole or part, include:

5 U.S.C. §§ 1213(g)(1) and (g)(2)5 U.S.C. §§ 1213(b) and (c) for employees of Tennessee Valley Authority (TVA) and otherwholly-owned government corporations5 U.S.C. §§ 1214(a)(1)(A), (a)(1)(C), (a)(1)(D), (a)(2)(A), (a)(4), (b)(2)(A)(i) and (ii), (b)(2)(D),(e), and requirements of the “termination statement” found in endnotes of § 1214, citing Pub. L.103-424 §12(b).

Engr. Carson alleges MSPB is violating 5 U.S.C. §1204(a)(3)

Engr. Carson alleges the President is unable, refusing and/or failing to comply with 5 U.S.C. §2301(c).

Engr. Carson alleges the heads of the FBI and intelligence community agencies are unable,refusing and/or failing to comply with 5 U.S.C. § 2301(c).

Engr. Carson alleges the law-breaking by OSC, MSPB and/or the President precludes DOESecretary Perry (as other agency heads) from being able to comply, in any objective way, withtheir duty at 5 U.S.C. § 2302(c)(2)(A) in “preventing prohibited personnel practices (PPPs)” intheir agencies.

The specifics of the violations of these law and evidence of Engr. Carson’s “reasonablebelief” in his whistleblower disclosures:

The law:

5 U.S.C. § 1213(g)(1):

If the Special Counsel receives information of a type described in subsection (a) from anindividual other than an individual described in subparagraph (A) or (B) of subsection(c)(2), the Special Counsel may transmit the information to the head of the agency whichthe information concerns. The head of such agency shall, within a reasonable time afterthe information is transmitted, inform the Special Counsel in writing of what action hasbeen or is being taken and when such action shall be completed. The Special Counselshall inform the individual of the report of the agency head.

How Engr. Carson believes it is being violated and the basis of that belief:

OSC interprets the “individual” in subparagraph (A) or (B) in ways inconsistent with USConstitution and common sense by claiming only current federal agency employee, former

5

federal agency employees, or current or past applicants for federal employment can makewhistleblower disclosures to it by this law. For instance, if a contractor employee of theDepartment of Energy at the Waste Isolation Pilot Plant (WIPP) or Los Alamos National Labwere aware that a drum being sent to WIPP or stored at WIPP was improperly packaged andcould, as a result, undergo an exothermic reaction, spreading contamination and costing over abillion dollars to remediate; or that trucks used at WIPP were not being inspected as required,causing a risk of a deadly (or nearly deadly) underground fire, they can disclose it to OSC, byOSC’s interpretation of the law, only if they were ever an applicant for employment at a federalagency, at any point in their lives, or an employee of any federal agency, even if only for a shortperiod of time (even if a seasonal or part-time worker). Otherwise, they cannot, according toOSC attorneys. There is no logical reason for this interpretation and it is contrary to “equaltreatment under law,” a fundamental concept of US Constitution.

The basis for Engr. Carson’s contentions include correspondence with OSC, discussions withOSC, and MSPB initial and final decisions that explicitly stated that OSC can receive suchcontractor whistleblower disclosures and has complete discretion to refer them to the head of theinvolved agency.

The Department of Energy’s workforce is 90% contractor - no other agency even comes close. Secretary Perry, if he would only swat down DOE attorneys when they cite their sociopathiccode of ethics focused solely on “the good of DOE,” could request OSC to make liberal use ofits MSPB-affirmed discretion to refer any whistleblower disclosure it receives from DOEcontractor employee regarding environment, safety, health, security or contract fraud. ThenDOE contractor employees could make statutory mandated confidential disclosures to an entityoutside of DOE and its contractors and, if referred to DOE, DOE would have a statutoryobligation to respond in a publicly available record, by 5 U.S.C. section 1219. No otheremployee concern disclosure channel available to DOE contractor employees has such features - or anything approaching them.

This, by itself, could well prevent a nuclear 9/11, if only DOE attorneys would stop citing theirsociopathic code of ethics in arguing against it.

Law:

5 U.S.C. § 1213(g)(2):

If the Special Counsel receives information of a type described in subsection (a) from anindividual described in subparagraph (A) or (B) of subsection (c)(2), but does not make apositive determination under subsection (b), the Special Counsel may transmit theinformation to the head of the agency which the information concerns, except that theinformation may not be transmitted to the head of the agency without the consent of theindividual. The head of such agency shall, within a reasonable time after the informationis transmitted, inform the Special Counsel in writing of what action has been or is beingtaken and when such action will be completed. The Special Counsel shall inform theindividual of the report of the agency head.

6

How Engr. Carson believes it was violated for many years and the basis of that belief:

From OSC’s creation to 2013, OSC did not comply with this law. Instead of making thereferrals of such disclosures as the law describes, OSC would make informal referrals to theagency inspector general and not require a response. Apparently because of Engr. Carson’swhistleblower disclosures to OSC about its long-standing violations of this law, OSC came intocompliance with this law in 2013.

A number of OSC’s annual reports to Congress prior to 2013 openly detailed OSC’s practice ofmaking such informal referrals of some disclosures it received to the agency IG. A letter OSCwrote Engr. Carson’s Congressman, John Duncan, also described how OSC changed its practicein 2013 to comply with this section of law.

The law:

5 U.S.C. section 1213(b) and (c) (for employees of Tennessee Valley Authority (TVA) andother wholly-owned government corporations listed at 31 U.S.C. §9101)

(b) Whenever the Special Counsel receives information of a type described in subsection (a) ofthis section, the Special Counsel shall review such information and, within 45 days afterreceiving the information, determine whether there is a substantial likelihood that theinformation discloses a violation of any law, rule, or regulation, or gross mismanagement, grosswaste of funds, abuse of authority, or substantial and specific danger to public health and safety.

(c)(1) Subject to paragraph (2), if the Special Counsel makes a positive determination undersubsection (b) of this section, the Special Counsel shall promptly transmit theinformation with respect to which the determination was made to the appropriate agencyhead and require that the agency head—

(A) conduct an investigation with respect to the information and any relatedmatters transmitted by the Special Counsel to the agency head; and(B) submit a written report setting forth the findings of the agency head within 60days after the date on which the information is transmitted to the agency head orwithin any longer period of time agreed to in writing by the Special Counsel.

(2) The Special Counsel may require an agency head to conduct an investigation andsubmit a written report under paragraph (1) only if the information was transmitted tothe Special Counsel by—

(A) an employee, former employee, or applicant for employment in the agencywhich the information concerns; or(B) an employee who obtained the information in connection with theperformance of the employee’s duties and responsibilities.

How Engr. Carson believes this law is being violated and the basis of that belief:

7

OSC claims that employees, former employees, or applicants for employment of wholly-ownedgovernment corporations are outside this law’s purview. OSC’s position is directly contradictedby 5 U.S.C. §§ 2302(a)(2)(C)(i) and (b)(8) which, together, explicitly state that employees,former employees and applicants for employment in government corporations (including whollyowned ones) can make whistleblower disclosures to OSC.

Engr. Carson has discussed this situation with the TVA and TVA agrees that OSC apparentlydoes not allow its employees to make whistleblower disclosures to it and that OSC has notdiscussed its interpretation with TVA. Engr. Carson has discussed this matter with OSC and itdoes not dispute that it does not allow employees of wholly owned government corporations asTVA to make whistleblower disclosures to it.

Right now, there is a TVA contractor employee workplace health and safety disaster at a TVAsite - the clean-up of the 2008 fly ash spill at its Kingston plant. Engr. Carson’s public testimonyis that this disaster, now impacting hundreds, would possibly have been prevented if OSCcomplied with the law, as interpreted by MSPB, in allowing these contractor employees to makewhistleblower disclosures to it and if TVA exorbitantly paid executive put the heath and safetyof their and their contractors employee ahead of their greed - it they directed TVA attorneys tostop citing their sociopathic code of ethics as a reason for them to “take their money and run” atthe expense of innocent life in East Tennessee.

Engr. Carson’s public testimony is that he brought this issue to the TVA Board in a publicmeeting and was blown off, because TVA attorneys, citing their sociopathic code of ethics, didnot contest OSC’s absurd position - which, in turn, is driven by OSC’s attorneys citingsociopathic legal ethics - that TVA, as employees of other wholly-owned governmentcorporations, cannot make whistleblower disclosures to it.

The law:

5 U.S.C. § 1214(a)(1)(A):

The Special Counsel shall receive any allegation of a prohibited personnel practice andshall investigate the allegation to the extent necessary to determine whether there arereasonable grounds to believe that a prohibited personnel practice has occurred, exists,or is to be taken.


OSC fails or refuses to investigate many, if not most or almost all, PPP complaints it receives “toextent necessary to determine whether there are reasonable grounds to believe (the allegation ofthe PPP).”

Instead, based on 25 years of his dealing with OSC and his independent study of OSC, it uses theterm “insufficient evidence” in closing an investigation without stating the evidentiary standardby which it was “insufficient.” The law is explicit about the evidentiary standard for OSC

8

investigation determinations “reasonable grounds to believe.” When OSC closes aninvestigation by merely citing, “insufficient evidence,” it could well mean that OSC hasdetermined there is “insufficient evidence” by the “incontrovertible” evidentiary standard orsome other evidentiary standard above, if not far above, the “reasonable grounds to believe”evidentiary standard.

Mr. Carson has litigated this point with OSC, written to OSC, spoken to OSC and no one at OSCdisagrees with his claims. A review of OSC annual reports to Congress will also show that OSCdoes not state it uses “reasonable grounds to believe” as its evidentiary standard to make apositive PPP determination, unlike how it stresses is uses the “substantial likelihood” evidentiarystandard to refer a whistleblower disclosure to the agency head.

When Engr. Carson litigated this point with OSC, OSC failed to take any exception to his claimit was violating the law. Instead, its lawyers, consistent with their sociopathic code of ethics, gotthe case dismissed by claiming that OSC failure or refusal to comply with each or every of itsnon-discretionary statutory duties to protect a federal agency employee from a PPP would notdeter any reasonable federal employee from making a whistleblower disclosure or seekingOSC’s protection from workplace reprisal.

The law:

5 U.S.C. § 1214(a)(1)(C):

Unless an investigation is terminated under paragraph (2), the Special Counsel shall—(i) within 90 days after notice is provided under subparagraph (B), notify theperson who made the allegation of the status of the investigation and any actiontaken by the Office of the Special Counsel since the filing of the allegation;(ii) notify such person of the status of the investigation and any action taken bythe Office of the Special Counsel since the last notice, at least every 60 days afternotice is given under clause (i); and(iii) notify such person of the status of the investigation and any action taken bythe Special Counsel at such time as determined appropriate by the SpecialCounsel.


Engr. Carson has received many of these letters - they simply do not inform the complainant of“any action” taken by OSC since the previous letter, instead they, as a rule, only state theinvestigation is ongoing.

When Engr. Carson litigated this point with OSC, OSC failed to take any exception to his claimof its law-breaking. Instead, its lawyers, consistent with their sociopathic code of ethics, got thecase dismissed by claiming that OSC failure or refusal to comply with each or every of itsnon-discretionary statutory duties to protect a federal agency employee from a PPP would not

9

deter any reasonable federal employee from making a whistleblower disclosure or seeking OSC'sprotection from workplace reprisal.

The Law:

5 U.S.C. § 1214(a)(1)(D):

No later than 10 days before the Special Counsel terminates any investigation of aprohibited personnel practice, the Special Counsel shall provide a written status reportto the person who made the allegation of the proposed findings of fact and legalconclusions. The person may submit written comments about the report to the SpecialCounsel. The Special Counsel shall not be required to provide a subsequent writtenstatus report under this subparagraph after the submission of such written comments.

How Engr. Carson believes this law is being violated and the basis of that belief: Engr. Carson has received many of these letters. They do not report the required proposedfindings of fact and legal conclusions. They do not report “OSC has determined there is (or“there is not”) reasonable grounds to believe the alleged PPP occurred.” Instead, they almostalways report “OSC has determined there is insufficient evidence for OSC to seek correctiveaction.” Given that OSC’s determination to seek corrective action is always discretionary, thestatement is irrelevant to OSC’s non-discretionary statutory duties to protect the federalemployees who file PPP complaints with it - to perform investigation adequate to makes therequired determination and to report that determination to the complainant (and, if positive, tothe head of the agency too, so they can use it to take the necessary action to comply with theirduty in “preventing PPPs”).

Nothing in any of OSC’s annual reports to Congress is inconsistent with this claim. When Engr.Carson litigated this point with OSC, OSC failed to take any exception to his claim of its law-breaking. Instead, its lawyers, consistent with their sociopathic code of ethics, got the casedismissed by claiming that OSC failure or refusal to comply with each or every of itsnon-discretionary statutory duties to protect a federal agency employee from a PPP would notdeter any reasonable federal employee from making a whistleblower disclosure or seeking OSC'sprotection from workplace reprisal.

The Law:

5 U.S.C. § 1214(a)(2)(A):

If the Special Counsel terminates any investigation under paragraph (1), the SpecialCounsel shall prepare and transmit to any person on whose allegation the investigationwas initiated a written statement notifying the person of—

(i) the termination of the investigation;

10

(ii) a summary of relevant facts ascertained by the Special Counsel, including thefacts that support, and the facts that do not support, the allegations of suchperson;(iii) the reasons for terminating the investigation; and(iv) a response to any comments submitted under paragraph (1)(D).

How Engr. Carson believes this law is being violated and the basis of that belief: Engr. Carson has received many such letters from OSC. OSC’s investigation closure letters donot provide a summary of facts ascertained by OSC, particularly including the facts that supportthe complainant. There is only one allowable reason for OSC to terminate an investigation - ithas investigated the complainant to the extent necessary to determine whether there arereasonable grounds to believe the alleged PPP occurred and its reporting that determination andhow and why it reached it to the complainant.

Nothing in OSC’s annual reports to Congress is inconsistent with this claim. When Engr.Carson litigated this point with OSC, OSC failed to take any exception to his claim of its law-breaking. Instead, its lawyers, consistent with their sociopathic code of ethics, got the casedismissed by claiming that OSC failure or refusal to comply with each or every of itsnon-discretionary statutory duties to protect a federal agency employee from a PPP would notdeter any reasonable federal employee from making a whistleblower disclosure or seeking OSC'sprotection from workplace reprisal.

The law:

5 U.S.C. § 1214(a)(4):

If an employee, former employee, or applicant seeks a corrective action from the Boardunder section 1221, pursuant to the provisions of paragraph (3)(B), the Special Counselmay continue to seek corrective action personal to such employee, former employee, orapplicant only with the consent of such employee, former employee, or applicant.


OSC is open it stating that it routinely ends investigations of PPPs if the employee files an IRA. Nothing in the law allows OSC to end its investigation for this reason - its continuinginvestigation may uncover evidence helpful to the employee and OSC should share it with theemployee.

Not only that, if the employee files an IRA and seeks discovery from OSC about itsinvestigation, OSC will not provide it and MSPB will take no exception to OSC’s refusal. Bylaw, OSC has a mandate to “act in the interest” of federal agency employees who seek itsprotection from PPPs. OSC attorneys, consistent with their sociopathic legal ethics, blow thatoff too as not being “in the interests” of their client - OSC. Catastrophes as 9/11, notunexpectedly, result from OSC attorneys citing sociopathic legal ethics in putting the interests of

11

law-breaking federal agencies ahead of foolhardy federal agency employee who actually takerisks to defend American health, safety, security and welfare.

Nothing in any OSC annual reports to Congress is inconsistent with this claim. When Engr.Carson litigated this point with OSC, OSC failed to take any exception to his claim of its law-breaking. Instead, its lawyers, consistent with their sociopathic code of ethics, got the casedismissed by claiming that OSC failure or refusal to comply with each or every of itsnon-discretionary statutory duties to protect a federal agency employee from a PPP would notdeter any reasonable federal employee from making a whistleblower disclosure or seeking OSC'sprotection from workplace reprisal.

The Law:

5 U.S.C. § 1214(b)(2)(A)(i) and (ii):

(i) Except as provided under clause (ii), no later than 240 days after the date ofreceiving an allegation of a prohibited personnel practice under paragraph (1), theSpecial Counsel shall make a determination whether there are reasonable grounds tobelieve that a prohibited personnel practice has occurred, exists, or is to be taken.(ii) If the Special Counsel is unable to make the required determination within the 240-day period specified under clause (i) and the person submitting the allegation of aprohibited personnel practice agrees to an extension of time, the determination shall bemade within such additional period of time as shall be agreed upon between the SpecialCounsel and the person submitting the allegation.


Engr. Carson has filed many PPP complaints with OSC. Never has it informed him of its“determination whether there are reasonable grounds to believe that a PPP has occurred.” Instead, it has always reported “there is insufficient evidence for OSC to seek corrective actionfor the complaint,” a statement it could make even if the evidence for the PPP wasincontrovertible, because OSC has complete discretion, regardless of its required determination,about seeking corrective action.

OSC Annual Reports to Congress are consistent with this claim. When Engr. Carson litigatedthis point with OSC, OSC failed to take any exception to his claim of its law-breaking. Instead,its lawyers, consistent with their sociopathic code of ethics, got the case dismissed by claimingthat OSC failure or refusal to comply with each or every of its non-discretionary statutory dutiesto protect a federal agency employee from a PPP would not deter any reasonable federalemployee from making a whistleblower disclosure or seeking OSC's protection from workplacereprisal.

The law:

5 U.S.C. §1214(b)(2)(D):

12

If the Special Counsel finds, in consultation with the individual subject to the prohibitedpersonnel practice, that the agency has acted to correct the prohibited personnelpractice, the Special Counsel shall file such finding with the Board, together with anywritten comments which the individual may provide.


Based on FOIA responses, conversations with OSC personnel, MSPB responses to FOIA,conversations with MSPB personnel, this just doesn’t happen - OSC makes no such report. There is no OSC nor MSPB regulation that mentions it.

OSC and MSPB annual reports to Congress are consistent with this claim of OSC law-breakingtoo.

The Law:

5 U.S.C. §1214(e):

If, in connection with any investigation under this subchapter, the Special Counseldetermines that there is reasonable cause to believe that any violation of any law, rule,or regulation has occurred other than one referred to in subsection (b) or (d), the SpecialCounsel shall report such violation to the head of the agency involved. The SpecialCounsel shall require, within 30 days after the receipt of the report by the agency, acertification by the head of the agency which states—

(1) that the head of the agency has personally reviewed the report; and(2) what action has been or is to be taken, and when the action will be completed.


OSC violates this statute by claiming it has total discretion, contrary to the explicit wording ofthis (and other laws that require it to report, to the complainant and head of involved agency,when its statutory required determination of every PPP complaint it receives is positive) to:

1) whether to investigate a PPP complaint to “extent necessary to determine whetherthere are reasonable grounds to believe a PPP occurred.”2) whether to report its determination, if the instances in which it deigns to make it, to thecomplainant3) whether to report its determination to anyone else, in particular the head of thecomplainant’s agency.

Instead, OSC, with no basis in law and contrary to law, will approach agencies, in some PPPcomplaints and offer to “make it all go away,” if the agency will toss the employee some bone.

Then OSC destroys all the investigative files a short time later - unique and unlawful for a lawenforcemnet agency, but OSC is a fraud of a law enforcement agency.

13

Nothing in the law allows OSC to be such a “black box” - instead the law requires OSC to be atransparent agency - so that federal agency employees have objective basis to think it will (orwill not) protect them - or other federal agency employees - from PPPs.

When Engr. Carson litigated this point with OSC, OSC failed to take any exception to his claimof its law-breaking. Instead, its lawyers, consistent with their sociopathic code of ethics, got thecase dismissed by claiming that OSC failure or refusal to comply with each or every of itsnon-discretionary statutory duties to protect a federal agency employee from a PPP would notdeter any reasonable federal employee from making a whistleblower disclosure or seeking OSC'sprotection from workplace reprisal.

The requirements of the “termination statement” found in endnotes of §1214, citing Pub.L. 103-424 § 12(b).

The Special Counsel shall include in any letter terminating an investigation undersection 1214(a)(2) of title 5, United States Code, the name and telephone number of anemployee of the Special Counsel who is available to respond to reasonable questionsfrom the person regarding the investigation or review conducted by the Special Counsel,the relevant facts ascertained by the Special Counsel, and the law applicable to theperson's allegations.


Engr. Carson has repeatedly cited this law to OSC attorneys in efforts to obtain information fromOSC about its investigations and their findings of his PPP complaints. Even when a federaljudge took exception to OSC’s failure to comply with this law, OSC continued to violate it.

When Engr. Carson litigated this point with OSC, OSC failed to take any exception to his claimof its law-breaking. Instead, its lawyers, consistent with their sociopathic code of ethics, got thecase dismissed by claiming that OSC failure or refusal to comply with each or every of itsnon-discretionary statutory duties to protect a federal agency employee from a PPP would notdeter any reasonable federal employee from making a whistleblower disclosure or seeking OSC'sprotection from workplace reprisal.

The Law:

5 U.S.C. §1204(a)(3):

The Merit Systems Protection Board shall conduct, from time to time, special studiesrelating to the civil service and to other merit systems in the executive branch, and reportto the President and to the Congress as to whether the public interest in a civil servicefree of prohibited personnel practices is being adequately protected


14

A review of every MSPB Annual Report to Congress and every of MSPB’s “special studies”will show MSPB has not - in 40 years - conducted the “special studies” necessary to make andreport this determination. Instead, MSPB attorneys, based on sociopathic legal ethics, haveapparently determined that it is not in MSPB’s interest to conduct a special study that couldmake such a determination, because a negative determination would implicate MSPB’seffectiveness, which would not be in their client’s - MSPB - interests. And national catastrophesas 9/11 follow.

Engr. Carson’s public testimony is that President Trump (as his predecessors since 1978),because of the law-breaking at OSC and MSPB, is unable, refusing and/or failing tocomply with his primary statutory duty to the 2 million members of the federal civil serviceat 5 U.S.C. § 2301(c).

The Law:

In administering the provisions of this chapter-(1) with respect to any agency (as defined in section 2302(a)(2)(C) of this title),the President shall, pursuant to the authority otherwise available under this title,take any action, including the issuance of rules, regulations, or directives; and(2) with respect to any entity in the executive branch which is not such an agency

or part of such an agency, the head of such entity shall, pursuantto authority otherwise available, take any action, including theissuance of rules, regulations, or directives;

which is consistent with the provisions of this title and which the President or the head,as the case may be, determines is necessary to ensure that personnel management isbased on and embodies the merit system principles.

Engr. Carson publicly claims all this law-breaking precludes the Secretary of Energy (asother agency heads) from being able to comply with their primary statutory duty to theiremployees - to “preventing prohibited personnel practices” - per 5 U.S.C. § 2302(c)(2)(A)and (B):

The Law:

"The head of each agency shall be responsible for preventing prohibited personnelpractices; complying with and enforcing applicable civil service laws, rules, andregulations, and other aspects of personnel management;”


Based on FOIA responses from DOE, communications with many DOE officials, 25 years ofcontinual litigation, “prevailing” in no fewer than eight separate whistleblower related decisionsat MSPB, filing employee concerns, differing professional opinions, etc., Mr. Carson knows thatno one in DOE will represent there is any objective basis for Secretary Rick Perry (as hispredecessors for past 40 years) to claim he is, in a meaningful sense, discharging his duty to be

15

“responsible for preventing PPPs” because there is no objective basis for him to claim that DOEemployees are adequately protected from them.

Engr. Carson litigated this point with DOE at MSPB. DOE failed to take any exception to hisclaims that the Secretary of Energy cannot demonstrate meaningful compliance with thisprimary statutory duty to DOE employees or that responsible DOE official simply ignored orfailed to respond to all the above whistleblower disclosures. Instead, its lawyers, consistent withtheir sociopathic code of ethics, got the case dismissed at MSPB by claiming it could ignore each and every whistleblower disclosure any DOE employee might make to their supervisorswithout deterring any reasonable DOE employee from making a whistleblower disclosure. Thiscase is now pending at the US Court of Appeals for the DC Circuit, Carson v. MSPB, docket no.15-1286.

Additionally, in December 2017, the law at 5 U.S.C. §4302(b) was changed to requiresupervisors in DOE (as other agencies) to do other than bystand to the whistleblower disclosuresof their subordinates. Engr. Carson has repeatedly brought this new law to the attention of hissupervisors, but, to this point, they continue to bystand to his whistleblower disclosures.

Other empirical facts about OSC, consistent with Engr. Carson’s public claims that it is a40 year-long, law-breaking, fraud of a federal law enforcement agency, the most corruptand corrupting federal agency (at least relative to size) in America’s history.

Based on a review of every OSC Annual Report to Congress, FOIA responses, examination ofOSC’s permanent, publicly available, records per section 1219, and communication with OSCofficials, OSC has apparently never (or fewer than a handful of times) during its 40 year history:

• Reviewed OPM rules and regulations issued by OPM and filed a complaint about themwith MSPB per section 1212(a)(4).

• Issued subpoenas per section 1212(b)(2).• Enforce its subpoena per section 1212(b)(3)(A).• Referred a whistleblower disclosure per section 1213(g)(1).• Referred a classified whistleblower disclosure involving foreign intelligence or counter-

intelligence (such as about American torture, warrantless wiretapping, “black sites,” etc. )to Congress per section 1213(j).

• Sought disciplinary action related to an agency failing or refusing to comply with anorder of the MSPB per section 1215(a)(1)(C).

• Investigated or sought disciplinary action related to agency violations of FOIA, persection 1216(a)(3).

• Used a finding by any court or administrative authority of prohibited discrimination onthe part of a federal manager as a basis to seek disciplinary action against them persection 1216(a)(5) and 1216(c).

Copy:

President Donald Trump

16

Secretary of Energy Rick PerryAssistant Secretary for Environment Management Anne WhiteOREM Manager Jay MullisOSCMSPBCongressional Committees with oversight of DOE and federal civil serviceDOE Inspector General (IG)US Defense Nuclear Facilities Safety Board (DNFSB)

17

Carson, Joseph P.

,.,...---...,From: Mullis, Jay Sent: To: Cc: Subject:

Joe,

Friday, November 09, 2018 8:38 AM Carson, Joseph P. Hubbard, Chelsea D; Perkins, Larry D; Mullis, Jay RE: request meeting per open-door scwe policy

As f stated in my previous reply to your request to meet on this particular topic, I do not believe there is any reason for us to meet. Again, I appreciate you bringing your concerns to my attention; however, the matter that you wish to meet with me about does not relate to or identify a particular person, place, or thing that demonstrates a specific danger to health, safety, or the environment that is within my authority as OREM manager to potentially resolve. Accordingly, I am declining your request to meet to discuss this particular concern.

Jay

Jay Mullis Manager Oak Ridge Office of Environmental Management United States Department of Energy 865-241-3706 (o)

~865-201-3952 (c)

~

..., ~r OREM --·-·•·----

From: Carson, Joseph P. Sent: Wednesday, November 07, 2018 3:25 PM To: Mullis, Jay <[email protected]> Cc: Hubbard, Chelsea D <[email protected]>; Perkins, Larry D <[email protected]> Subject: request meeting per open-door scwe policy

Dear Mr. Mullis,

Per my understanding of the OREM open door policy, I request a meeting to discuss my plans to obtain a "reasonable belief" determination of my years-long, public claims, of decades-long, compounded, continuing, law-breaking in US Office of Special Counsel and US Merit Systems Protection Board.

As you know, I suspect {I think with at least reasonable evidence) that DOE attorneys, likely including Don Thress and Eric Fygi, conspired/colluded to engage in reprisal against me in 1999-2001 period and then used "attorney-client privilege" to protect themselves. If my suspicions are correct (and no DOE attorney has taken exception to them to my knowledge), then they betrayed everything they claim to stand for as lawyers, federal agency employees and Americans.

I hope to finalize the attached group letter to DOE Secretary Perry in next few days. After it goes out, based on the results (or lack thereof) in obtaining an objective resolution of my whistleblower disclosures, I may file a related

1

whistleblower reprisal complaint with OSC, based on my 9/11/18 whistleblower disclosure (also attached) which DOE has apparently ignored. If OSC refuses to make a "reasonable belief'' determination about my underlying whistleblower disclosures (or request that the attorney general review the contested laws), I will possibly send out a mass email to my colleagues in DOE, calling out my chain of command for its lack of moral courage and integrity in protecting the public health, safety, and security. Basically, I'll be prodding DOE to take a dearly defined personnel action against me, so I can appeal it and, hopefully, finally get a "reasonable belief" determination about my claims of OSC/MSPB lawbreaking. In my opinion, the system is broken when such extreme actions are necessary to get a resolution to good-faith whistleblower disclosures of such wide-reaching import.

I'll be 65 in a few months, I have been and am enjoying a privileged and pleasant life by any objective measure. However, I'm not optimistic those born in 2018 will get to die natural deaths, not given the unprecedented collective challenges facing our unprecedented global civilization. So on f trudge, trying to improve the odds civilization sustains, more or less intact, to year 2100 and beyond. So ifit costs me my job to pursue a peaceful and lawful resolution of my whistleblower disclosures, so be it. I am composed to paying a high price to do my duty- as a PE,

federal agency employee, American, Christian, and crew member of planet earth - to expose and end what I now consider to normalized institutional evil - or obtain a determination that my claims are not at least reasonably evidenced.

Respectfully,

Joseph Carson, PE Facility Oversight Branch, EM-931 Oak Ridge Office of Environmental Management (OREM) Office: 865-576-1478 Cell/Text: 865-300-5831 E-mail: [email protected]

2

----

Carson, Joseph P.

,,---..,.,From: Carson, Joseph P.

~

Sent: To: Cc:

Wednesday, September 26, 2018 5:01 PM Mullis, Jay Thress, Don Frederick; Skubel, Stephen (HQ); Perkins, Larry D; DeMonia, Brian Craig; Hubbard, Chelsea D; [email protected]; [email protected]; ' Kenneth. [email protected]'

Subject: RE: Joseph Carson, PE, whistleblower disclosures of violations of OREM/UCORjoint SCWE policy

Attachments: SCWEpolicy.pdf

Hi Jay,

I appreciate your consideration of my request. Thank you.

However, I hope you will reconsider your decision or direct me elsewhere to get an objective resolution of my whistleblower disclosure/concern. MSPB determined that OSCs position that it tacked statutory authority to receive, evaluate and refer whistleblower disclosures from DOE contractor employees, per 5 USC section 1213(g)(1), is legally incorrect - it has that authority, even as it still apparently denies having it. I did not propose that Secretary Perry or others in DOE/DOE contractors "demand" OSC refer whistle blower disclosures it receives from DOE contractor employees. I proposed that Secretary Perry request OSC make liberal use of its statutory discretion to do so.

From the joint OREM/UCOR policy statement on SCWE (it is attached):

Afl members of the OREM and UCOR leadership team, up to and including the OREM Manager and the UCOR President and Project Manager, have an open door policy, especiafly pertaining to safety.

Employees have, and are encouraged and expected to use, multiple venues to express safety concerns. These include, but are not limited to, their management chain and Employee Concerns .

.... The OREM/UCOR leadership team will address and resolve issues and concerns in a timely manner while exhibiting behaviors that foster employee confidence to raise concerns.

To my knowledge, the 1213(g)(1) whistleblower disclosure venue offers a concerned DOE contractor employee a singular combination of attributes, including:

1. No other disclosure mechanism provides a statutory mandated confidentially to the whistleblower on the part of party (OSC) that is a separate federal agency. (S USC section 1213(h))

2. OSC can receive classified whistle blower disclosures of the highest classification (compartmentalized) and involving foreign intelligence and counter-intelligence (5 USC section 1213(a)(2) and Ull

3. If DSC refers such a whistleblower disclosure to DOE, then the Sec. of Energy must respond and the response becomes a permanent, publicly available record. (S USC section 1219(a)(4), and

4. If OSC does not refer the whistleblower disclosure, it will tell the whistleblower, who can then try another ,,,,......._,disclosure mechanism.

1

I realize that you are the manager of OREM, but if Secretary Perry were to request OSC to make "liberal" use of its statutory discretion to receive, evaluate and refer whistleblower disclosures from DOE contractor employees, it could have implications for public health, safety, security and welfare far beyond OREM.

DOE is singular in federal agencies in its dependence on contractors, including for the security of America's nuclear stockpile, its role as lead federal agency for securing nuclear weapons materials around the world, its role in nuclear

non-proliferation and counter-proliferation. DOE's environmental remediation program is the largest, by far, of any and all other federal agencies, which is the third largest financial liability of the US Government. DO E's environmental

restoration program is also, according to GAO, "high risk" - and has been for many years now. DOE's challenges with environment, safety, health and security still manifest regularly with sick, contaminated, or injured workers.

Secretary Perry made a video about SCWE for the complex, it is available at: https:/jwww.energy.gov/safetyculture/doe-safety-culture, I think his requesting OSC make "liberal" use of its statutory discretion to refer DOE contractor whistleblower disclosure is consistent with his message about SCWE. OSC is essentially a conduit in this role, so such a request would not make much work for It DSC, if requested, would possibly allow Secretary Perry to delegate the responsibility to respond to such disclosures too.

Finally, if Secretary Perry made such a request, it might encourage heads of other agencies to do so too. Could the unfolding TVA contractor employee health and safety disaster at the fly ash spill clean-up been prevented if one of the safety professionals or technicians there were able to use this mechanism? I certainly think so.

Thank you again for your attention to my concern.

Respectfully,

Joseph Carson, PE Facility Oversight Branch, EM-931 Oak Ridge Office of Environmental Management {OREM) Office; 865-576-1478 Cell/Text: 865-300-5831

E-mail: [email protected]

From: Mullis, Jay Sent: Monday, September 24, 2018 7:49 AM To: Carson, Joseph P.<[email protected]> Cc: Thress, Don Frederick <[email protected]>; Skube1, Stephen (HQ) <[email protected]>; Perkins, Larry D <[email protected]>; OeMonia, Brian Craig <[email protected]>; Hubbard, Chelsea D <[email protected]>; [email protected]; [email protected]; '[email protected]"ov' <[email protected]>; Mullis, Jay <Jay. M [email protected]> Subject: RE: Joseph Carson, PE, whistleblower disclosures of violations of OREM/LICOR joint SCWE policy

Joe,

Allow me to make it very clear that as the OREM Manager I remain steadfast in my commitment to ensuring that all activities undertaken by OREM employees are done so in a compliant and safe manner. ! encourage ~II OREM . . employees to meet with me or any member of the management staff in order to promptly report all instances m which they perceive a specific and tangible threat to health, safety, and/or the environment, including to one's fe.llow co-. workers, contractor employees, or the public at large. This includes behavior or activities that may potentially be illegal,

fraudulent, or an abuse of position/authority. Likewise, employees of DOE contractors are encouraged to come forward with information that they in good faith believe evidences unsafe, unlawful, fraudulent, or wasteful practices at DOE

2

facilities. Employees providing such information are entitled to protection by 10 CFR Part 708 from consequent discrimination by their employers with respect to compensation, terms, conditions, or privileges of employment.

,..-,,_I appreciate you bringing your concerns to my attention; however, the matter that you wish to meet with me about, i.e., demanding the Office of Special Counsel exercise its lawful discretion to accept disclosures from contractor and subcontractor employees, does not relate to or identify a particular person, place, or thing that demonstrates a specific danger to health, safety, or the environment that is within my authority as OREM manager to potentially resolve. Accordingly, there does not appear to be any reason for us to meet regarding this particular concern.

Jay

Jay Mullis Manager Oak Ridge Office of Environmental Management United States Department of Energy 865-241-3706 (o) 865-201-3952 (c)

'y~

OREM

From: Carson, Joseph P. Sent: Friday, September 14, 2018 11:21 AM To: '[email protected]' <[email protected]>; Mullis, Jay <Jay.M [email protected]>

,,,.--.._,cc: Thress, Don Frederick <[email protected]>; Skubel, Stephen (HQ) <[email protected]>; Perkins, Larry D <[email protected]>; DeMonia, Brian Craig <[email protected]>; Hubbard, Chelsea D <[email protected]>; [email protected]; [email protected] Subject: Joseph Carson, PE, whistle blower disclosures of violations of OREM/UCOR joint SCWE policy

Dear Mr. Rueter and Mr. Mullis,

I am making a whistleblower disclosure that you are both in violation of the OREM/UCOR joint Safety Conscious Work Environment Policy Statement of January 2018, which you both signed and which is widely posted at ETTP.

The attached, final, decision of the US Merit Systems Protection Board at paragraphs 2, 4, 8, 9, 10, 11 and footnotes 5 and 6, make clear that the US Office of Special Counsel (OSC), without question, HAS the statutory discretion to receive, evaluate, and refer to the Secretary of Energy - thereby requiring him to respond with a permanent, publicly, available record (see 5 USC 1219(a)(S)), whistleblower disclosures from UCOR employees (and UCOR subcontractor employees), per 5 U.5.C. section 1213(g)(l).

Despite this, if you call Catherine McMullen, Chief of OSC whistleblower disclosure unit at (202) 804-7000 or (800) 872-9855 or email her at [email protected] (I am copying her with this email), she will tell you that OSC is prohibited by law (as OSC still interprets the law) from receiving, evaluating, or referring such disclosures. If this is not the case, then why has UCOR and DOE not requested OSC to make liberal use of its statutory discretion to receive, evaluate, and refer such concerns from UCOR employees and subcontractor employees, given the words of your SCWE policy?

I have been bringing this concern forward for many years now. My reward? An August 2013 reprimand based on the r----. false, unfounded, and baseless claims of the UCOR employee concerns manager Sandra Dalton alleging misconduct on

my part in an unwitnessed meeting between us. My counter-claim remains unevaluated -her misconduct against me

3

was her response to my telling her, just as I am telling you, that you have a duty to do other than bystand to this concern (unlike her, I am letting her know about my claims of her misconduct directly, by copying her with this.)

I respectfully request a meeting with each of you, per the "open door" pledge of the your SCWE policy, to discuss this whistleblower disclosure.

Respectfully,

Joseph Carson, PE Facility Oversight Branch, EM-931 Oak Ridge Office of Environmental Management (OREM) Office: 865-576-1478

Cell/Text: 865-300-5831 E-mail: [email protected]

4

November 7, 2018

Honorable Rick PerrySecretary of Energy1000 Independence Avenue, SWWashington, DC [email protected]

Subject: Request for Your Direct Involvement in Resolving the Whistleblower Disclosures ofJoseph P. Carson, PE

Dear Secretary Perry,

We understand you are an advocate for a “safety conscious work environment (SCWE)” in theDepartment of Energy (DOE). 1 We understand you have a positive statutory duty for“preventing (reprisal and other types of) prohibited personnel practices (PPPs)” in DOE. 2 Weunderstand that as of October 1, 2018, the annual performance plan of supervisors in DOE includes a new critical element about their advocacy for resolution for their subordinates’whistleblower disclosures. 3

We also understand that a long-time DOE employee, Joseph P. Carson, PE, has been makingwhistleblower disclosures for over 15 years that, contrary to law, rule or regulation, DOE doesnot have an adequate SCWE; you, as your predecessors, have no objective basis to claim you are“preventing PPPs” because DOE employees are adequately protected from them; and hissupervisors have been bystanders to his concerns and engaged in reprisal against him for makingthem. 4

We understand this is now undisputed: 1) Mr. Carson’s whistleblower disclosures involve theinterpretation of approximately a dozen civil service statutes, there are no disputed facts, and 2)no one is now apparently claiming Mr. Carson lacks reasonable belief in his whistleblowerdisclosures.

We understand you have the undisputed legal authority, as the head of an Executive Department,to direct the Attorney General to issue, on behalf of the Executive Branch, binding opinions onthe interpretation of these disputed civil service laws. 5

We understand if you fail or refuse to do this, Mr. Carson intends to force the matter, by publiclyclaiming his supervisors are violating their duties and lack the commitment and/or moral courageto protect the public and workplace health and safety as their positions require. He will take this

1 Your two minute long video address about "safety culture" in DOE is available athttps://www.energy.gov/safety-culture/doe-safety-culture.

2 5 U.S.C. §2302(c)(2)(A)3 5 U.S.C. §4302(b)4 See www.merit-principles.org and, in particular, Mr. Carson whistleblower disclosure

of 9/11/18.5 28 U.S.C. §512

1

action in order to spur a disciplinary action against him, so he will have an opportunity todemonstrate, in a resultant whistleblower reprisal appeal, that he has at least “reasonable belief”in his whistleblower disclosures.

For all the above reasons, we, stakeholders to a trustworthy federal civil service and DOE,respectfully call upon you to take the necessary actions to obtain an objective resolution of Mr.Carson’s whistleblower disclosures. 6

Respectfully,

Tom Devine, Legal DirectorGovernment Accountability Projectwww.whistleblower.org

Steve Kohn, Executive DirectorNational Whistleblower Centerwww.whistleblowers.org

Tom Carpenter, Executive DirectorHanford Challengewww.hanfordchallenge.org

Dr. Zena Crenshaw, Executive DirectorNational Judicial Conduct Disability LawProgram, Inc.www.njcdlp.org

David Williams, PresidentTaxpayers Protection Alliancewww.protectingtaxpayers.org/

Police Chief Gordon L. Wiborg, Jr. (ret),AdministratorGolden Badge (Law EnforcementWhistleblower Support)http://goldenbadge.tumblr.com/

Dr. Sandra Nunn, Acting DirectorDrum Majors for Truthwww.dm4t.org

Sarah Roche, Creative DirectorTheatre for Justicewww.t4j.co

Gerald Rose, Founder & CEONew Order National Human RightsOrganizationwww.nonhro.org

Dr. Andrew D. Jackson, Co-AdministratorThe Third Degree featuring Opt IN USAwww.thethirddegree.net

6 Samantha Feinstein at the Government Accountability [email protected] can be contacted about this letter.

2

Contact: Annette Butler (202) 254-4496 V/TDD 1-800-877-8339 (Federal Relay Service)

FOR IMMEDIATE RELEASE November 14, 2011

MSPB Reports Progress for Whistleblowers, but More Can be Done

There are laws in place to protect Federal whistleblowers from retaliatory personnel

actions. However, according to a recent report issued by the U.S. Merit Systems

Protection Board ("MSPB''), titled Blowing the Whistle: Barriers to Federal Employees

Making Disclosures, a fear of retaliation may not be the biggest barrier to employees

blowing the whistle. The report contains the results of a recent survey of Federal

employees conducted by the MSPB.

The survey data indicate that the most important factor for employees when deciding

whether to report wrongdoing is not the personal consequences for the employee.

Saving lives was more important to survey respondents than whether they would

experience punishment or a reward, and whether the agency would act on a report of

wrongdoing mattered more than any fear of an unpleasant consequence for the

employee making the report.

"This is an important finding," explains Chairman Susan Tsui Grundmann, "because it

means that agencies have the power to make a difference. If an agency creates a culture

where its employees believe that management wants to be told about wrongdoing and

will address issues raised by the employees, then the employees are more likely to

report it." The MSPB report notes that it is better for both the agency and the public if

wrongdoing is addressed early, and the agency's culture is a critical factor in achieving

this.

MSPD based its survey questions, in part, on a survey that it conducted in 1992 and the

report offers a look at the environment for Federal whistleblowers now and then.

U.S. Merit Systems Protection Board, 1615 M Street, NW, Washington, DC 20419

MSPB's data indicate that since 1992, the percentage of employees who perceive any

wrongdoing has decreased; and for those who perceive wrongdoing, the frequency with

which they observe the wrongdoing has also decreased. However, among those

individuals who indicated that they reported wrongdoing and were identified as the

source of the report, perceptions of retaliation remained a serious problem with

approximately one-third of such respondents in both 1992 and 2010 perceiving either

threats or acts of reprisal, or both.

According to Chairman Grundmann, "this report shows that there has been progress in

reducing fraud, waste, and abuse in the Government, but it also shows that more needs

to be done to create a safe environment for employees to report wrongdoing. This

includes making certain that employees receive training about how they can disclose

wrongdoing and how they can exercise their rights if they perceive that they have

experienced or been threatened with retaliation for making a protected disclosure.

This report is one in a series of reports that MSPB is undertaking under its studies

authority to draw attention to the prohibited personnel practices (PPPs) and merit

systems principles. In addition to this new report, MSPB recently released reports on

whistleblower rights and prohibited personnel practices. MSPB is currently working on

a study of employee perceptions related to the merit system principles. MSPB studies

are available at no cost on its website at www.mspb.gov/studies.

MSPB is an independent, quasi-judicial agency that protects Federal merit systems and

the rights of individuals within those systems. MSPB also conducts studies of the civil

service and other merit systems in the Executive Branch. To request a printed copy of

this report, e-mail [email protected]; call (202) 254-4802, extension 4802 or write to:

Merit Systems Protection Board, Office of Policy and Evaluation, 1615 M Street NW,

Washington, DC 20419. MSPB studies are also available on the web at

www.mspb.gov/studies.

Carson, Joseph P.

,,,----..,_From: Sent: To: Cc: Subject: Attachments:

Larry,

Carson, Joseph P. Monday, December 03, 2018 11:14 AM Perkins, Larry D Hubbard, Chelsea D; Mullis, Jay; Grebasch, Virginia (HQ) still draft Joe Carson whistleblower reprisal complaint to OSC osc-co mp lai nt-perry-1202.pdf

This is still draft as I would like to know before I submit it whether the performance element now required by law for DOE supervisors has been implemented for you and/or Chelsea. Please let me know. Otherwise, I will edit a bit and submit to OSC later this week.

Also, if you are aware of any factual accuracy issues with the complaint, I would prefer to resolve them before I submit

it.

My objective is to obtain a "reasonable belief' determination about my whistle blower disclosures as a result of this complaint to OSC and/or their objective resolution because the Attorney General issues opinions on the interpretation of the disputed civil service laws

If OSC determines that the bystanding of my supervisory chain to my whistleblower disclosure is not a personnel action and, using that as a pretext, refuses to make a "reasonable belief' determination about my whistleblower disclosures -

.,,,,.----.. and the Attorney General does not issue opinions on the interpretation of the laws, then I will likely make a whistleblower disclosure to everyone in OREM, taking open issue with the competency and fidelity of my supervisory chain in DOE, openly challenging them to take a disciplinary action against me so that OSC cannot use that pretext to evade making a "reasonable belief' determination about my whistleblower disclosure.

l hope it does not have to come to that- but I really, truly, do think America/civilization are now at unnecessarily increased risk of a nuclear 9/11 or other catastrophe because of the OSC/MSPB law-breaking I allege. Please

understand.

Respectfully,

Joseph Carson, PE Facility Oversight Branch, EM-931 Oak Ridge Office of Environmental Management (OREM) Office: 865-576-1478 Cell[fext: 865-300-5831 E-mail: [email protected]

1

merit systems protection board...merit systems protection board name and address of appellant:...

Documents