Carson v. United States Office Of Special Counsel
| Decision Date | 24 February 2011 |
| Docket Number | No. 09-5645,09-5645 |
| Parties | Joseph P. Carson, Plaintiff-Appellant, v. United States Office of Special Counsel, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 08-00330—Thomas W. Phillips, District Judge.
Before: MARTIN, BOGGS, and COOK, Circuit Judges.
ON BRIEF: Loretta S. Harber, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee.
Joseph P. Carson, Knoxville, Tennessee, pro se.
David B. Nolan, Alexandria, Virginia, for Amici Curiae.
Pro se litigant Joseph P. Carson sought a writ of mandamus to compel the Office of Special Counsel to investigate complaints that he filed and to make reports to the Department of Energy. The district court dismissed his action and denied his motion to amend his complaint. We AFFIRM the decision of the district court.
Carson is employed as a nuclear safety engineer at the Department of Energy. Since 1992, he has filed twenty-five complaints with the Office of Special Counsel, an independent investigatory and prosecutorial agency that is charged with, among other things, investigating complaints under the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (). Carson also has filed six mandamus actions against the Office of Special Counsel, five of which have been filed in and dismissed by the United States District Court for the District of Columbia. He filed the instant lawsuit in August 2008, seeking an order compelling the Office of Special Counsel to investigate complaints that he filed and to make reports to the Department of Energy.
The Office of Special Counsel investigates two kinds of complaints filed by federal employees that are relevant to this case. First, it "shall receive any allegation of a prohibited personnel practice and shall investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred." 5 U.S.C. § 1214(a)(1)(A) (1994). Under the Act, it is a "prohibited personnel practice" for a government agency to take a "personnel action" against an employee because of his disclosure of illegal activity or of "gross mismanagement, a gross waste of funds,... or a substantial and specific danger to public health or safety." Id. § 2302(b)(8). Second, the Office of Special Counsel "shall... conduct an investigation of any allegation concerning... activities prohibited by any civil service law, rule, or regulation." Id. § 1216(a)(4).
An employee who wishes to report a prohibited personnel practice or prohibited activity must first complain to the Office of Special Counsel. See 5 C.F.R. § 1800.1(c)(1) (2010). The initial investigation into both these types of complaints is conducted by the Office of Special Counsel's Complaints Examining Unit. See id. § 1800.1(c)(4). After an initial investigation, the Unit either refers the complaint to the Investigation and Prosecution Division or closes the complaint.
Section 1214 provides additional procedures governing the investigation of prohibited personnel practices. While an investigation is pending, the Office of Special Counsel must provide written status updates to the complainant. See 5 U.S.C. § 1214(a)(1)(C). If the Office of Special Counsel determines that a prohibited personnel practice has occurred, it must report its findings to the Merit Systems Protection Board, and it may petition the Board to take action on behalf of the employee. See id. § 1214(b)(2)(B)-(C). Even if the Office of Special Counsel's investigation does not support the employee's complaint, the employee still may bring an individual action before the Merit Systems Protection Board. See id. § 1221. In either case, the decision of the Merit Systems Protection Board—but not that of the Office of Special Counsel—is appealable to the Court of Appeals for the Federal Circuit. See id. § 7703.
Unlike the mandatory procedures governing prohibited personnel practice complaints, section 1216, which governs prohibited activity complaints, provides that "[i]f the Special Counsel receives an allegation concerning any matter under [section 1216(a)(4)], the Special Counsel may investigate and seek corrective action under section 1214 and disciplinary action under section 1215 in the same way as if a prohibited personnel practice were involved." Id. § 1216(c) (emphasis added).
This appeal involves five complaints made by Carson: four prohibited activity complaints, and one prohibited personnel practice complaint.
Complaints MA-08-1842, MA-08-1843, and MA-08-2553 allege various prohibited activities. MA-08-1842 alleges that the Department of Energy materially breached a settlement agreement. MA-08-1843 alleges that the Department of Energy violated its grievance policy and procedures in failing to process several grievances that Carson presented. MA-08-2553 alleges that Carson's managers and colleagues violated a Department of Energy Order in making false statements about him. The Complaints Examining Unit investigated each of these complaints by reviewing the information that Carson provided and conducting legal research. The Office of Special Counsel terminated the investigations because it found that there was insufficient evidence of any activities prohibited by civil service law, rule, or regulation to warrant further action.
Complaint MA 08-1844, a prohibited activity complaint, and complaint MA-07-1668, a prohibited personnel practice complaint, both allege that the Department of Energy delayed nine months in providing Carson corrective action ordered by the Merit Systems Protection Board. The Office of Special Counsel investigated these complaints jointly and later terminated its investigation.
After Carson filed a petition for a writ of mandamus regarding two complaints and moved to supplement it several times, the district court ordered him to file a single, definitive, amended petition. Carson filed an Amended Petition on November 20, 2008. The Office of Special Counsel moved to dismiss his Amended Petition on January 23, 2009. On February 9, Carson moved to amend his Amended Petition, seeking to add new claims about complaints MA-07-1668 and MA-08-1844. The district court granted the Office of Special Counsel's motion to dismiss and denied Carson leave to amend on May 11. Carson appeals.
A court of appeals "must determine its own jurisdiction and is bound to do so in every instance." Dickerson v. McClellan, 37 F.3d 251, 252 (6th Cir. 1994). We have jurisdiction over this appeal if the district court had jurisdiction over this action. See Weber v. United States, 209 F.3d 756, 759 (D.C. Cir. 2000). The district court effectively concluded that it had subject matter jurisdiction to issue a writ of mandamus if it determined that the Office of Special Counsel violated a non-discretionary duty to investigate Carson's allegations. We review a district court's findings as to whether it had subject matter jurisdiction de novo. Willis v. Sullivan, 931 F.2d 390, 395 (6th Cir. 1991).
Mandamus jurisdiction in federal courts is codified at 28 U.S.C. § 1361, which provides that "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." "The existence of jurisdiction undersection 1361 is inextricably bound with the merits of whether a writ of mandamus should issue; in order to establish either jurisdiction or entitlement to the writ, a court must find that a duty is owed to the plaintiff." Maczko v. Joyce, 814 F.2d 308, 310 (6th Cir. 1987). "[T]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). Mandamus is available only if: "(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff." In re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (internal quotation marks and citation omitted). Mandamus is not an appropriate remedy if the action that the petitioner seeks to compel is discretionary. See, e.g., Heckler v. Ringer, 466 U.S. 602, 616 (1984).
We have never decided whether a district court may issue a writ of mandamus against the Office of Special Counsel for failure to investigate a claim. See Ryon v. O'Neill, 894 F.2d 199, 205 n.3 (6th Cir. 1990) (). However, the District of Columbia Circuit has concluded that a district court does have subject matter jurisdiction to issue a writ of mandamus if it determines that the Office of Special Counsel violated a non-discretionary statutory duty to investigate an employee's allegations. See Weber, 209 F.3d at 759. The District of Columbia Circuit reasoned that because the Federal Circuit has authority to review only Merit Systems Protection Board decisions and not Office of Special Counsel decisions, "if district courts lacked power to issue the writ, judicial review of [Office of Special Counsel] actions would not be available." Id. Similarly, the Fifth Circuit has held that federal courts have authority to ensure that the Office of Special Counsel complies with its statutory obligations. See DeLeonardis v. Weiseman, 986 F.2d 725, 727 (5th Cir. 1993) (...
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