[00:00:00] Speaker 01:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:12] Speaker 01:
God save the United States and this honorable quarter.

[00:00:15] Speaker 02:
Thank you.

[00:00:16] Speaker 02:
Be seated.

[00:00:23] Speaker 02:
Okay, first argued case this morning is number 15-3135, Carson, against the Merit Systems Protection Board.

[00:00:31] Speaker 02:
Mr. Justice.

[00:00:38] Speaker 00:
May it please the Honorable Court, there is one question at the guts of this appeal.

[00:00:43] Speaker 00:
That question simply is, is the Office of Special Counsel ignoring and refusing to perform certain minor

[00:00:50] Speaker 00:
but important non-discretionary statutory duties with retaliatory animus because Mr. Carson has reported to it and reported about it a significant change in his working conditions.

[00:01:03] Speaker 00:
That's really it.

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And it is a significant change in his working conditions for a number of reasons.

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But one of the most important of which is that because the 1994 amendment to the Whistleblower Protection Act

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and the 2012 Whistleblower Protection Enhancement Act both reflect an intent of Congress that that catch-all provision came into our law with the intent, and this is a quote, to catch any quote, any action that was retaliatory in nature, and again quote, regardless of form, close quote.

[00:01:41] Speaker 00:
So it's sort of implicit in our honorable opponent's brief that working conditions should not be interpreted that broadly and should be something in the nature of perhaps, you know, if someone were required to sit by asbestos or another dangerous substance.

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But it's clear Congress wanted that to be interpreted.

[00:01:57] Speaker 03:
I guess I'm still not understanding what you're saying.

[00:02:00] Speaker 03:
I mean, as I understand your argument, you're saying that others will be chilled.

[00:02:05] Speaker 03:
He obviously hasn't been chilled, right?

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He keeps making these reports.

[00:02:09] Speaker 03:
whether they get acted on or not, he hasn't been chilled in his willingness to make the reports, right?

[00:02:15] Speaker 00:
Well, yes, but when he referenced other people below, he was referencing that as a test.

[00:02:21] Speaker 00:
What you're saying is correct, and my client may be unchillable, but that's not really the test in our view, respectfully.

[00:02:29] Speaker 00:
that could be used that he was positing blows, possibly maybe you should use things like Burlington or Shivey and think about whether or not it would deter a reasonably situated employee when they are ignored in this way.

[00:02:44] Speaker 00:
And he was just positing that.

[00:02:46] Speaker 03:
Is there any other procedural vehicle by which you could try to force, essentially, the OSCE to do its job?

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I am not.

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aware, there have been suggestions of mandamus.

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However, I am not sure that that's applicable.

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We do think here, respectfully, it is a genuine case in controversy because it has an effect on him in terms of his working conditions if they're not processing it because of him.

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But I mean, couldn't, if, generally, if an agency completely fails to take action or do its job,

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then under the APA, there's the ability to make a challenge or to seek mandamus in the district court, right?

[00:03:30] Speaker 00:
There is.

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That is a remedy.

[00:03:33] Speaker 00:
We don't believe it forecloses this remedy, but what you're saying is absolutely correct.

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But we do not believe that it forecloses this remedy because of the following reasons.

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That ignoring Mr. Carson's complaints, because he is Mr. Carson and he's made disclosures about OSC, puts him in a state

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disparate and different than a lot of other employees in that because of the retaliatory animus against him, he doesn't have a functioning OSC to go to.

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So even if it might be a better way to go to make that mandamus action in the United States District Court, certainly here he fits within this statute as well.

[00:04:12] Speaker 03:
Do you have any evidence that OSC acts more quickly on complaints by other complainants?

[00:04:20] Speaker 00:
As far as more quickly, we don't have direct evidence of that, of course, because of, so the answer is no, but because of the quick nature and the circular reasoning and saying there's no personnel action and there's no jurisdiction, of course, we'll never be in a position to get to that unless we stop OSCE, respectfully, from defining downward to the catch-all category and defining downward personnel action and contravention of Congress.

[00:04:46] Speaker 03:
But isn't it, you know, with all due respect to OSCE,

[00:04:49] Speaker 03:
OSCE, isn't there a report from the Inspector General that says that they're notoriously bad about doing this job?

[00:04:59] Speaker 00:
They are notoriously bad about doing this job, but remember the record law.

[00:05:04] Speaker 03:
In other words, they're, you know, non-discriminatory in terms of their failure to make these decisions.

[00:05:11] Speaker 00:
They're non-discriminatory bad to everyone is an argument.

[00:05:14] Speaker 00:
Let me tell you why that I don't believe that that works here to destroy Mr. Carson's claim, but I certainly see the point.

[00:05:21] Speaker 00:
The reason that doesn't work to destroy Mr. Carson's claim here, Judge O'Malley, is because that, viewed in the light most favorable to him, given that they only disputed on personnel action below, right now in this record for essentially, we're here on a motion to dismiss essentially, it's how we got up here, the equivalent thereof,

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For the purposes of this record right now, they did act with retaliatory animus toward him, and they were having particular retaliatory animus against him.

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So they're really bad, in essence, if you believe that report, for everyone, and they're super really bad on my client.

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And that is an issue.

[00:05:58] Speaker 03:
And where do we infer that they're particularly bad on your client?

[00:06:02] Speaker 00:
Well, that's the record below and that's not disputed yet.

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If OFC had wanted to fight that battle out with Mr. Carson, it had to fight it out below.

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It did not fight that battle below.

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So that's the record it exists and what I believe Mr. Carson and myself hopefully intend to prove if we get a chance to go back below.

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But essentially, viewing the evidence in the light most favorable to Mr. Carson,

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He brought that claim of that nature, and OSCE didn't challenge on that basis.

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They could have said, hey, we do this to everybody, and you were nondiscriminatorially not functioning very well, and this is not a problem for you.

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They didn't say that.

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On the record right now, Mr. Carson's allegations have to be accepted as true, and that's why, and I respect for you, he needs to go back.

[00:06:52] Speaker 03:
So let me give you an analogy.

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What if he had made a complaint to OSHA or

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putting aside the split case issue to the EEOC and those entities failed to respond.

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Could you bring all of them before the Merit System Protection Board?

[00:07:10] Speaker 00:
It would depend on whether he had credible, in essence, in this case here it's circumstantial and other evidence, a good faith basis to opine that they're singling him out.

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And so there'd be one little caveat to that hypothetical and it would be would he have any basis or any thought

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or any reasoning to say that they were singling him out because of his history of raising concerns and things like this.

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It would all be whether you could infer that.

[00:07:34] Speaker 03:
Your theory on why the OSC is singling him out is that he's had multiple claims or because one of his complaints has been about OSC.

[00:07:46] Speaker 00:
Both.

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Both.

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He has multiple complaints.

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He's made them about OSCE specifically, and it's a failure to perform in accord with the intent of Congress.

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And so that's the theory, is that the complaints are about OSCE, and then they're just tired of this guy with multiple complaints.

[00:08:03] Speaker 00:
So there's more than one theory on that, and you've encapsulated exactly the two principal ones with your question.

[00:08:12] Speaker 03:
Can you give me any example of a case where a third party

[00:08:19] Speaker 03:
agency where a report or a complaint has been made, like OSHA, like OSCE, anything else, where we have authorized the actions to go before the MSPB.

[00:08:31] Speaker 00:
The closest is WEED, where it was determined in WEED that you don't have to be in a direct relationship.

[00:08:38] Speaker 00:
That is, your employing agency doesn't have to be the one discriminating against you.

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It is possible that another agency that is not your

[00:08:45] Speaker 03:
Right, but that's a very different, because that was actually an employing agency and there were categories of exceptions that were laid out.

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This doesn't fall into any of those categories.

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It doesn't follow directly into any of the categories that were referenced in WEED.

[00:09:01] Speaker 00:
That is undoubtedly true in the narrow sense.

[00:09:05] Speaker 00:
But by logic and reason, it fits within the any other significant change in working environment or workplace conditions of

[00:09:15] Speaker 00:
the Whistleblower Protection Act as amended in 1994.

[00:09:19] Speaker 00:
So our argument is not necessarily that this is a simple skip from the precedent of weed, or this is to hop from the precedent of weed.

[00:09:30] Speaker 00:
It's close to weed, but you're right.

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There's some differences.

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But we say logic and reason.

[00:09:34] Speaker 03:
So weed opens a door for you.

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The question is whether it opens a garage door.

[00:09:39] Speaker 00:
Basically, yes.

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And it does for this reason.

[00:09:41] Speaker 00:
Here's why you should construe it that way, to open the garage door.

[00:09:45] Speaker 00:
The reason you should is because of the intent of Congress in the Reform Act of 1994 with the amendment in the 2012 Enhancement Act, when they said they want to catch any action that has a retaliatory animus to protect the merit system, and they want to catch it regardless of form.

[00:10:06] Speaker 00:
And both those were quotes of Congress.

[00:10:08] Speaker 00:
So that's why the weed precedent

[00:10:12] Speaker 00:
that has cracked the door should open it up.

[00:10:14] Speaker 00:
And we're only asking for minor perfunctory duties out of OSC.

[00:10:18] Speaker 00:
We're not asking for anything that will shatter the federal budget or will be earthshaking.

[00:10:23] Speaker 00:
We're simply asking for those minor non-discretionary statutory processing type duties.

[00:10:30] Speaker 00:
And so that's why we believe it's a reasonable ask.

[00:10:34] Speaker 00:
And it has to mean something.

[00:10:37] Speaker 00:
If you look at our honorable colleagues brief, they do cite a lot of pre-catch-all case law.

[00:10:42] Speaker 00:
And it does seem as though from time to time that OSC and MSPB are, I don't want to say pretending, but acting as if the 1994 amendments mean nothing.

[00:10:54] Speaker 00:
And that catch-all category isn't there.

[00:10:57] Speaker 03:
Well, I agree.

[00:10:58] Speaker 03:
The catch-all category is important.

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And there's all kinds of things you can envision.

[00:11:02] Speaker 03:
But I guess what I'm still trying to understand

[00:11:04] Speaker 03:
It would be one thing if you could argue that he was chilled in making complaints because he was so afraid that they would not be listened to.

[00:11:14] Speaker 03:
But you're not making that argument because, as you say, he appears to be unchillable.

[00:11:20] Speaker 00:
Yes, that's right.

[00:11:20] Speaker 00:
But the important factor is that a reasonable person would be chilled, a reasonable employee would be chilled, and that's the test.

[00:11:26] Speaker 00:
And if there's retaliatory animus,

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Remember, the non-discretionary duties in processing his complaints, they didn't do it under our theory of the cases, has to be accepted right now.

[00:11:35] Speaker 00:
So he gets that.

[00:11:37] Speaker 00:
He has been harmed.

[00:11:39] Speaker 00:
Now, does the fact that he is so persistent and chillable because he loves this statute and cares about it, is that in some way relevant?

[00:11:49] Speaker 00:
Well, you might speak about it as you are in terms of, well, it didn't chill him.

[00:11:53] Speaker 00:
And I get that point.

[00:11:54] Speaker 00:
But because it would chill a reasonable employee, if you want to pull down from that case law that talks about the chilling effect on a reasonable employee, you could.

[00:12:02] Speaker 00:
And we were just offering that as an option to get the panorama of the case law before this honorable court.

[00:12:07] Speaker 00:
But at the end of the day, the facts of the record right now are they didn't do those non-discretionary duties because he's Joe Carson and because he's done what he's done in terms of complaining about their performance.

[00:12:19] Speaker 00:
And so while the question, while the undoubted answer to your question is correct, he was not chilled.

[00:12:24] Speaker 00:
We don't think that is fatal in any way, respectfully.

[00:12:28] Speaker 00:
I would like, if there are no questions, to reserve for rebuttal, or was there a question?

[00:12:31] Speaker 02:
No.

[00:12:32] Speaker 02:
You will save your rebuttal time.

[00:12:33] Speaker 02:
Let's hear from the board.

[00:12:35] Speaker 00:
Thank you.

[00:12:41] Speaker 01:
Mr. Gallagher.

[00:12:42] Speaker 01:
Good morning, and may it please the court.

[00:12:45] Speaker 01:
This really is a petition for mandamus that's been cloaked as an MSPB appeal.

[00:12:50] Speaker 01:
But of course, the MSPB doesn't have mandamus authority.

[00:12:53] Speaker 01:
It's an administrative agency.

[00:12:55] Speaker 01:
The MSPB does not have general oversight over the Office of Special Counsel.

[00:12:59] Speaker 03:
Could a petition for mandamus be filed?

[00:13:02] Speaker 03:
I mean, that's a question I have, because Office of Special Counsel isn't really an agency per se.

[00:13:08] Speaker 03:
So could he file a petition for mandamus to force them to do their job?

[00:13:14] Speaker 01:
I'm uncertain whether a district court would accept that or not.

[00:13:18] Speaker 01:
I know Mr. Carson has previously filed for writs of mandamus in district court, but I don't know if it was against the Office of Special Counsel.

[00:13:26] Speaker 03:
So when you say it's a petition for mandamus, would it be possible?

[00:13:33] Speaker 01:
In district court?

[00:13:34] Speaker 01:
Yeah.

[00:13:35] Speaker 01:
In district court?

[00:13:35] Speaker 01:
I mean, I can't say for sure what a district court would do.

[00:13:38] Speaker 03:
Because you haven't researched that question?

[00:13:41] Speaker 01:
I haven't found a writ of mandamus against the Office of Special Counsel.

[00:13:46] Speaker 01:
I believe he's gone to district courts.

[00:13:49] Speaker 03:
But has anyone ever filed a writ of mandamus against Office of Special Counsel, or do you think, in your professional opinion, that anyone could?

[00:13:57] Speaker 01:
Well, it's an extraordinary writ, so I think the likelihood of its success is very poor.

[00:14:03] Speaker 03:
Putting that aside.

[00:14:04] Speaker 01:
Putting that aside, sure, they could file a petition for mandamus against the Office of Special Counsel.

[00:14:09] Speaker 01:
They could do that against

[00:14:10] Speaker 02:
So what is the authority of the board if they feel that they aren't getting from the OSC what the statute says the OSC should do?

[00:14:23] Speaker 01:
In 1989, prior to 1989, there was nothing.

[00:14:28] Speaker 01:
If you filed a complaint with the special counsel and you didn't get the result that you wanted,

[00:14:35] Speaker 01:
There was really nothing you could do.

[00:14:36] Speaker 01:
You might.

[00:14:37] Speaker 01:
And there's a DC Circuit case called Wren that the board decides on its decision that said you might be able to go to district court.

[00:14:43] Speaker 01:
But even that case didn't say you could.

[00:14:44] Speaker 01:
It said you might be able to go to district court and seek man Davis.

[00:14:47] Speaker 01:
So in 1989, Congress created this IRA appeal.

[00:14:52] Speaker 01:
And it gives the complainant who went to special counsel and did not get a favorable result the opportunity to come to the MSPB and prove their case at the MSPB.

[00:15:03] Speaker 03:
But only if they got a result.

[00:15:05] Speaker 03:
So if they sit on it for 10 years, which is what the OIG report says often happens, and they get no result, they can't appeal it, right?

[00:15:14] Speaker 01:
Well, that would be a different scenario.

[00:15:16] Speaker 03:
I mean, isn't that the scenario he says he has here, that he's filed four complaints and they have taken no action on them?

[00:15:23] Speaker 01:
That's not my understanding.

[00:15:24] Speaker 01:
My understanding is that they close his complaints and he believes that they should be investigated.

[00:15:31] Speaker 02:
They closed without taking action.

[00:15:33] Speaker 01:
Closed without taking action.

[00:15:35] Speaker 01:
So under the Whistleblower Protection Act, he has the right to come to the MSPB and prove his case.

[00:15:40] Speaker 02:
So that's even worse, is it not?

[00:15:42] Speaker 02:
When they're required to take action?

[00:15:45] Speaker 02:
Or unless it's totally meritless?

[00:15:48] Speaker 02:
Or they're required to investigate?

[00:15:50] Speaker 01:
Well, first my point is the MSPB doesn't have the authority to... The right to go to the MSPB and file an eye repeal should not be equated with

[00:16:00] Speaker 01:
the MSPB having some sort of power to tell the OSC what to do.

[00:16:05] Speaker 01:
It doesn't have that power.

[00:16:06] Speaker 02:
Do they have independent investigatory authority?

[00:16:10] Speaker 02:
Suppose they feel that this has been inadequately investigated and what they've been told, let's say prima facie, makes the case and there's been no investigation.

[00:16:22] Speaker 02:
What is the authority of the MSPB?

[00:16:26] Speaker 01:
The MSPB can hear an appeal

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from that individual.

[00:16:30] Speaker 01:
They can come and prove their own case.

[00:16:32] Speaker 01:
Since the special counsel is not pursuing it, they can come to the MSPB and prove it themselves.

[00:16:37] Speaker 01:
They will have the burden to bring evidence and prove their case.

[00:16:41] Speaker 01:
There is this threshold requirement of making non-frivolous allegations that this court set out in the Eunice case for the MSPB to have jurisdiction over these cyber appeals.

[00:16:52] Speaker 01:
And that's where this fails because, like I said, this is really a mandamus petition.

[00:16:57] Speaker 04:
So for any one of the

[00:17:00] Speaker 04:
complaints that he lodged with OSC that he was unhappy that they closed for any one of them.

[00:17:05] Speaker 04:
He could have just automatically gone to the MSPB and filed an IRA and you all would have evaluated the sufficiency of his evidence alleging whatever violations he was alleging.

[00:17:16] Speaker 04:
So he had a full opportunity to have each one of those individual complaints that he made reviewed by the MSPB.

[00:17:24] Speaker 04:
He just chose not to avail himself of that particular cause of action.

[00:17:27] Speaker 01:
That's absolutely correct.

[00:17:28] Speaker 01:
So instead of coming to the MSPB, he filed another complaint with OSC naming the special counsel as the person that took a personnel action against him.

[00:17:40] Speaker 01:
Now, the whistleblower protection act.

[00:17:42] Speaker 03:
Let me understand, because I thought that the only right for an individual right of action appeal was where an actual decision had been rendered by the OSC, but that a refusal to even investigate did not give rise to a right to appeal.

[00:17:58] Speaker 03:
Am I wrong?

[00:17:59] Speaker 01:
What the OSCE does is it closes out its investigation, and this is regarding prizal complaints, they close their investigation and they give that individual appeal rights describing their right to come to the MSPB and prove their claim.

[00:18:17] Speaker 01:
That's the case when the OSCE decides not to prosecute the individual who's accused of

[00:18:23] Speaker 01:
being a retaliatory official.

[00:18:24] Speaker 03:
But isn't there a difference between refusing to even investigate and refusing not to prosecute?

[00:18:32] Speaker 01:
Here, Carson is saying that OSCE won't do either.

[00:18:36] Speaker 01:
I don't know that there's a difference in terms of the right to come to file an IRA appeal.

[00:18:41] Speaker 01:
As soon as that investigation is closed, they can come and go to the MSPB and have that individual right of action, which Congress provided in 89.

[00:18:50] Speaker 01:
So that is his remedy.

[00:18:51] Speaker 01:
His remedy is not to file another complaint with OSCE, naming the special counsel herself as the wrongdoer.

[00:18:59] Speaker 01:
Of course, the special counsel doesn't have authority to take a personnel action against Mr. Carson.

[00:19:03] Speaker 01:
Mr. Carson's not an OSCE employee.

[00:19:06] Speaker 01:
He's not OSCE personnel.

[00:19:09] Speaker 01:
And the Whistleblower Protection Act in 2302B specifically says it has to be an employee with personnel authority.

[00:19:17] Speaker 03:
Well, the board refused to

[00:19:19] Speaker 03:
basis decision on that theory, right?

[00:19:22] Speaker 03:
They rejected that expressly.

[00:19:25] Speaker 03:
They were only basing its decision on the absence of any kind of adverse personnel action.

[00:19:35] Speaker 01:
Well, that's true.

[00:19:36] Speaker 03:
I mean, you argued to the board that he wasn't their employee, so he shouldn't be allowed to go forward.

[00:19:43] Speaker 03:
And the board said, no, we're not going to rely on that theory.

[00:19:46] Speaker 01:
Well, what the board said is it's not going to categorically say that you have to be an employee of the agency you're complaining about.

[00:19:53] Speaker 03:
Well, it's freshly refused to base its decision on that theory, so you can't argue that theory to us because we can't rely on a theory that the board didn't rely on.

[00:20:01] Speaker 01:
No, I think it's still the case that there's two things that have to be there.

[00:20:05] Speaker 01:
It has to be a personnel action, and it has to be an individual who has authority to take that personnel action.

[00:20:10] Speaker 01:
That remains true.

[00:20:12] Speaker 01:
The employee doesn't have to be employed by that agency.

[00:20:15] Speaker 01:
They could be an applicant, as was the case in Ruggieri and Weed, the case that counsel was talking about.

[00:20:23] Speaker 01:
In both cases, those were individuals who were attempting to obtain employment with an agency.

[00:20:29] Speaker 03:
I'm not disagreeing with you that you had a valid argument to make to the board.

[00:20:33] Speaker 03:
And I don't necessarily think if I were on the board, I would have made the decision to say categorically, I'm not basing

[00:20:39] Speaker 03:
I'm not going to decide that question, but they absolutely didn't decide that question, right?

[00:20:43] Speaker 03:
So we can't.

[00:20:45] Speaker 01:
Well, I believe the board did say that this special counsel doesn't have personnel authority.

[00:20:50] Speaker 01:
I think that's in the decision.

[00:20:52] Speaker 03:
No, they quoted you by saying that, but they did not rely on that.

[00:20:55] Speaker 01:
Well, I'm representing the MSPB, not OSC.

[00:20:59] Speaker 03:
Right.

[00:20:59] Speaker 03:
But I'm saying the board did not say that.

[00:21:01] Speaker 03:
The board said,

[00:21:02] Speaker 03:
We're not going to address that.

[00:21:05] Speaker 03:
We're not going to rely on that argument.

[00:21:06] Speaker 01:
I think what the board said is there's no categorical rule saying that you have to be an employee of the agency that you're complaining about.

[00:21:14] Speaker 01:
But that's different, again, from saying that, I mean, it's right in the statute.

[00:21:19] Speaker 01:
There has to be personnel authority.

[00:21:21] Speaker 01:
The person taking the action has to have personnel authority.

[00:21:23] Speaker 01:
2302B actually begins by saying any employee who has authority to take, it goes on.

[00:21:32] Speaker 01:
to say personnel action, which is defined in 2302A.

[00:21:35] Speaker 01:
So that person has to have authority.

[00:21:39] Speaker 01:
So that's different than saying that this individual has to be an employee of the agency they're complaining about.

[00:21:48] Speaker 01:
So there's no personnel action.

[00:21:50] Speaker 01:
Special counsel doesn't have authority to take a personnel action against Mr. Carson because his employer is not in his chain of command.

[00:21:58] Speaker 01:
She's not deciding whether he should

[00:22:02] Speaker 01:
hired none of those things.

[00:22:07] Speaker 01:
And further, I think there was a question about whether there's any precedent supporting this argument that Mr. Carson's making, and there isn't.

[00:22:14] Speaker 01:
There's nothing that says that you can file a complaint against the special counsel if the special counsel has an unfavorable disposition of your complaint.

[00:22:26] Speaker 01:
And finally, I think another way of looking at this is the fact that there's no remedy.

[00:22:30] Speaker 01:
What is the remedy that Mr. Carson asked for?

[00:22:32] Speaker 01:
Well, in his complaint to OSCE, he said the remedy he wanted was for OSCE to, quote, stop breaking the law.

[00:22:40] Speaker 01:
Well, that's very much like mandamus.

[00:22:44] Speaker 01:
And that's not something that the MSPB has authority to order OSCE to do anything like that.

[00:22:49] Speaker 01:
It has authority to hear IRA appeals.

[00:22:52] Speaker 01:
And that's it.

[00:22:53] Speaker 02:
So what does the MSPB do if so often we see a perfunctory, the OSCE just

[00:23:00] Speaker 02:
It doesn't say anything except that they're not going to investigate or whatever the answer is.

[00:23:07] Speaker 02:
Whatever you're asking me, the answer is no.

[00:23:10] Speaker 02:
And so if the MSPB feels that further investigation is needed, what is their recourse?

[00:23:18] Speaker 01:
So Congress did not give the MSPB authority to look into OSC investigation?

[00:23:23] Speaker 02:
Because they thought the OSC would do it.

[00:23:25] Speaker 02:
They thought that they had a fool.

[00:23:28] Speaker 02:
If you just look at that,

[00:23:29] Speaker 02:
the face of the statute, but let's say that the OIC doesn't do what may have been contemplated.

[00:23:37] Speaker 02:
Now what?

[00:23:39] Speaker 01:
Well, again, the remedy that Congress provided is that individual can come to the MSPB and prove their case.

[00:23:45] Speaker 01:
Since the special counsel is not taking it any further, they can take it further by coming to the MSPB.

[00:23:52] Speaker 01:
If they meet the threshold requirements, they can have a hearing and they can put on evidence and prove their case.

[00:23:58] Speaker 01:
That's what Congress provided.

[00:24:01] Speaker 02:
But there, too, there's a gap, isn't there?

[00:24:03] Speaker 02:
Because the appellant, the petitioner, the employee presents the case.

[00:24:09] Speaker 02:
Who's to present the other side?

[00:24:14] Speaker 01:
At the board?

[00:24:15] Speaker 02:
Well, wherever the decision is being made.

[00:24:18] Speaker 02:
That's what this entire elaborate structure with the OSC is supposed to be, is it not?

[00:24:25] Speaker 02:
An even-handed investigation.

[00:24:27] Speaker 02:
to bring out the facts on all sides.

[00:24:30] Speaker 02:
And so we don't have that.

[00:24:32] Speaker 02:
We see it, I think, perhaps too often that the investigation is closed without explanation.

[00:24:41] Speaker 01:
I don't know if that's true or false, but if it is true, then it would be Congress that would do something about that.

[00:24:47] Speaker 01:
Obviously not the MSPB, since the MSPB doesn't oversee the special counsel.

[00:24:52] Speaker 01:
So it would be Congress.

[00:24:53] Speaker 01:
And ultimately, the special counsel is a presidential appointee.

[00:24:57] Speaker 01:
It could be removed by the president.

[00:24:59] Speaker 02:
So you say the MSPB is powerless to somehow obtain the information that it needs in order to exercise its charge of reviewing and deciding whether this person was inappropriately treated.

[00:25:15] Speaker 01:
I'm saying that the MSPB does not have authority to oversee OSCE investigations.

[00:25:23] Speaker 01:
All it has is the authority to hear IRA appeals.

[00:25:26] Speaker 01:
And that's it.

[00:25:27] Speaker 01:
It doesn't have authority.

[00:25:28] Speaker 02:
Why can't the MSPB hire an investigator?

[00:25:31] Speaker 01:
If Congress gave the MSPB authority to hire an investigator, it could do that.

[00:25:35] Speaker 01:
But Congress has not given MSPB that authority.

[00:25:39] Speaker 01:
So the only authority that the MSPB has, again, is to hear IRA appeals.

[00:25:45] Speaker 02:
But the powerful intent of Congress entrusted to the MSPB is to assure that whistleblowers

[00:25:52] Speaker 02:
get a fair hearing.

[00:25:54] Speaker 02:
And you're saying you can't do it unless you go back and get another act of Congress?

[00:26:00] Speaker 01:
If I think that the authority that you were mentioning was to investigate the claims as it, you know, investigate how OSCE is handling claims, then it doesn't have that authority.

[00:26:10] Speaker 02:
They provided for the IRA so that there is a recourse explicitly provided.

[00:26:17] Speaker 01:
The recourse provided is not the MSPB doing its own investigation.

[00:26:22] Speaker 01:
The recourse provided is that it can hear these claims as an administrative tribunal.

[00:26:27] Speaker 01:
And, of course, as this Court said over and over again, the MSPB only has the statutory authority that it has.

[00:26:33] Speaker 01:
Nothing further.

[00:26:35] Speaker 01:
It's not a court.

[00:26:35] Speaker 01:
It doesn't have any equitable powers.

[00:26:38] Speaker 01:
All it can do is do what is in the statute, what authority Congress gave it.

[00:26:44] Speaker 01:
And Congress gave it this iron appeal authority.

[00:26:47] Speaker 01:
And Mr. Carson, of course, could have availed himself of that instead of filing yet another complaint with the special counsel against the special counsel herself, which is not a process that Congress created.

[00:27:00] Speaker 01:
There's nothing in the Whistleblower Protection Act that gives someone the right to file a complaint against the special counsel if they don't like the fact that the special counsel closed a complaint.

[00:27:09] Speaker 02:
So it doesn't fulfill the legislative intent, and you say everybody is helpless to remedy that?

[00:27:17] Speaker 01:
I didn't say that everybody's helpless to remedy that.

[00:27:19] Speaker 01:
I think that the remedy is ultimately is Congress and the president.

[00:27:24] Speaker 01:
As with any other agency or any other presidential appointee, ultimately the presidential, in the case of special counsel, the special counsel can be removed for neglect of duty by the president.

[00:27:36] Speaker 04:
Or in an individual case, mandamus could potentially be filed in district court.

[00:27:41] Speaker 01:
Potentially.

[00:27:43] Speaker 01:
Right.

[00:27:44] Speaker 01:
And again, the MSPB doesn't have my name as authority, as I started with.

[00:27:48] Speaker 01:
And I see that my time is expired.

[00:27:50] Speaker 01:
So unless there's any further questions, I'd ask the court to affirm the MSPB's decision dismissing for lack of jurisdiction.

[00:27:58] Speaker 02:
Anything else for Mr. Gallagher?

[00:28:00] Speaker 02:
Any more questions?

[00:28:01] Speaker 02:
Thank you, Mr. Gallagher.

[00:28:06] Speaker 03:
Thank you.

[00:28:07] Speaker 03:
Mr. Justice.

[00:28:07] Speaker 03:
How do you deal with the remedy question?

[00:28:13] Speaker 00:
Well, the remedy question here is simply, and I think there's a couple remedy questions.

[00:28:19] Speaker 00:
One is, what is the possibility of mandamus?

[00:28:21] Speaker 00:
And then the other is, what is the remedy that Mr. Carson seeks?

[00:28:25] Speaker 00:
Remember, he's just asking for the performance of those certain non-discretionary duties in 1213 that he's entitled to.

[00:28:35] Speaker 00:
Just the mere investigation to the extent necessary to determine if a prohibited personnel practice has been taken.

[00:28:41] Speaker 00:
So I thought that was one of the things in hearing the Pelley's argument that I thought I could quickly distinguish is that Mr. Carson, or at least I, realized that Mr. Carson is not the attorney general of the United States, is not necessarily a private attorney general here.

[00:28:56] Speaker 00:
But remember, he's just asking for some little leave.

[00:28:59] Speaker 03:
Are you sure he doesn't think he is, given all the filings?

[00:29:03] Speaker 00:
Well, some have, but at least on this point he's got it right because

[00:29:07] Speaker 00:
He has this right.

[00:29:08] Speaker 00:
He has a personal right to those non-discretionary duties, the substantial likelihood determination, certain very procedural rights in the termination.

[00:29:17] Speaker 00:
No, no, no.

[00:29:17] Speaker 04:
It doesn't have anything to do with his working conditions, his personal right to have those things done.

[00:29:22] Speaker 04:
You file a mandamus.

[00:29:23] Speaker 04:
Do you know how many times we get mandamuses because one court or another or a board or another isn't acting on something swiftly enough to someone's liking?

[00:29:31] Speaker 04:
Sometimes we grant them because we say, yeah, it's taking too long.

[00:29:34] Speaker 04:
Sometimes we don't.

[00:29:35] Speaker 04:
We don't happen to be the proper forum for your mandamus in this case, but there is one you can at least try, the district courts.

[00:29:42] Speaker 04:
If you're not happy with the actions of OSC, you can try, because they're not acting swiftly enough, not acting at all, refusing to act, you can try to pursue that through mandamus like so many people do with us on the areas over which we oversee.

[00:29:55] Speaker 00:
And here's what I would say to that.

[00:29:57] Speaker 00:
Number one, I'm not saying that he can't file a mandamus.

[00:30:01] Speaker 00:
I do respectfully think it's notable that the appellee, the MSPB that should know, you know, in essence, there was no clear unequivocal answer on whether a mandamus would be followed.

[00:30:10] Speaker 04:
Wait, why should they know?

[00:30:11] Speaker 04:
They wouldn't be the body to decide the mandamus.

[00:30:13] Speaker 04:
They wouldn't even be a party in a suit revolving the mandamus.

[00:30:16] Speaker 04:
So you expect this government council to know whether you should be able to file a mandamus in an unrelated suit where they wouldn't be a party, would have no say, wouldn't participate.

[00:30:26] Speaker 04:
But nonetheless, you expect him to stand up here.

[00:30:28] Speaker 04:
And none of that is in your brief.

[00:30:30] Speaker 04:
So you expect him to stand up here and know the answer to a complex legal question that a different branch of government would have to decide.

[00:30:36] Speaker 04:
And that's your complaint?

[00:30:38] Speaker 00:
No, but only if that that would operate in lieu of Mr. Carson being entitled to the remedy that he's entitled to under 5 USC.

[00:30:48] Speaker 00:
And so we have to think of it like this in Mr. Carson's respectful view, and that is,

[00:30:54] Speaker 00:
Is the importance of OSC so critical that if the OSC ignores an employee because that employee has done protected things, that that doesn't change the working conditions?

[00:31:03] Speaker 00:
The default state of the merit system in United States federal employment should be a functioning OSC.

[00:31:10] Speaker 00:
If an OSC is not protecting a particular employee, one point I want to make before I run out of time, is he got to reprimand.

[00:31:16] Speaker 00:
And he's saying they did not act on his complaint about his reprimand that he got at DOE because he's Joe Carson and he has this relationship where they have animus toward him.

[00:31:26] Speaker 00:
So that is very, very different.

[00:31:28] Speaker 00:
He may have a right to mandamus, but he's not limited to mandamus because his working conditions have been changed given how Congress defined working conditions.

[00:31:38] Speaker 02:
Thank you.

[00:31:38] Speaker 02:
Any more questions for Mr. Jess?

[00:31:41] Speaker 02:
Thank you.

[00:31:41] Speaker 02:
Thank you both.

[00:31:42] Speaker 02:
The case is taken under submission.