Weber v. USA., 99-5087

• Decision Date: 28 April 2000
• Docket Number: No. 99-5087,99-5087
• Citation: 209 F.3d 756
• Parties: (D.C. Cir. 2000) Calvin J. Weber, Appellant v. United States of America and United States Office of Special Counsel, Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 756

209 F.3d 756 (D.C. Cir. 2000)

Calvin J. Weber, Appellant v. United States of America and United States Office of Special Counsel, Appellees

No. 99-5087

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 2000

Decided April 28, 2000

Appeal from the United States District Court for the District of Columbia(No. 97cv02260)

Elizabeth E. Appel Blue, appointed by the court, argued the cause as amicus curiae on the side of appellant. With her on the briefs were David W. DeBruin and Nory Miller.

Calvin J. Weber, appearing pro se, was on the briefs for appellant.

Jane M. Lyons, Assistant United States Attorney, argued the cause for appellees. With her on the brief were Wilma A. Lewis, U.S. Attorney, R. Craig Lawrence and Sally M. Rider, Assistant U.S. Attorneys.

Before: Silberman, Randolph, and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge:

Calvin Weber sought a writ of mandamus to compel the U.S. Office of Special Counsel (OSC) to investigate his charge that he had been stripped of a security clearance in retaliation for whistleblowing. The district court granted summary judgment against Weber, and he appealed. We affirm.

I.

Weber worked for the Army as a civilian engineer at what was then the Aviation Systems Command in St. Louis, Missiouri. He specialized in infrared suppressor systems, which are used to help aircraft evade heat-seeking missiles. In October 1990, he publicly alleged that many of the Army's helicopters being sent to the Persian Gulf for Operation Desert Storm did not carry infrared suppressor systems, making them vulnerable to attack by enemy missiles. The Army revoked Weber's security clearance in February 1993.Because his position required a security clearance, Weber was fired a few months later.

Weber complained to the U.S. Office of Special Counsel (OSC) that the Army's revocation of his security clearance was in retaliation for whistleblowing. 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." 5 U.S.C. S 2302(b)(8). An employee who believes he has been the victim of a prohibited personnel practice must first complain to the OSC, which is required to investigate the complaint "to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred." 5 U.S.C. S 1214. If the OSC determines that a prohibited personnel practice has occurred, it must report its findings to the Merit Systems Protection Board (MSPB), and it may petition the Board to take action on behalf of the employee. But even if the OSC's investigation does not support the complaint, the employee still may bring an individual action before the MSPB. See 5 U.S.C. § 1221. In either case, the MSPB's decision is appealable to the Federal Circuit. See 5 U.S.C. S 7703.

The OSC declined to investigate Weber's complaint. Its letter explained:

In [Department of the Navy v. Egan, 484 U.S. 518(1988)], the Supreme Court found that the Merit Systems Protection Board does not have the authority to review the substance of the underlying reasons for revoking or denying a security clearance. Consequently, the Merit Systems Protection Board also does not have authority to review an adverse personnel action, either appealed directly or presented in an Office of Special Counsel prosecution case, which is taken against an employee as a result of an agency decision to withdraw or revoke a security clearance which is necessary for continuing employment in a specific job. Thus, we have no basis for further inquiry into your complaint....

Weber filed an individual action with the MSPB, which consistent with the OSC's view concluded that it lacked jurisdiction. See Weber v. Department of the Army, 59 M.S.P.R. 293 (1993). The Federal Circuit affirmed. See Weber v. Merit Sys. Protection Bd., 26 F.3d 140 (Fed. Cir. 1994).

He then brought this action against the OSC, advancing both statutory and constitutional claims. Giving a liberal construction to Weber's pro se complaint, cf. Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999), the district court construed it as requesting a writ of mandamus to compel the OSC to investigate Weber's allegations. It concluded, however, that the OSC had no duty to conduct an investigation because the denial of a security clearance was not a "personnel action." It further held that the OSC had not deprived Weber of liberty or property in violation of the Due Process Clause. It therefore granted summary judgment to the government, and Weber appealed.

II.

Appointing an amicus to take appellant's position, we directed the parties to address inter alia the district court's jurisdiction to issue a writ of mandamus to the Office of Special Counsel, a question that had been left open in Barnhart v. Devine, 771 F.2d 1515, 1524 n.15 (D.C. Cir. 1985).The government now argues that the district court lacked jurisdiction. It relies on Telecommunications Research and Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) ("TRAC"), for the proposition that when a Court of Appeals has jurisdiction to review the actions of an agency, then the district courts lack power to issue writs of mandamus to that agency. In TRAC, we explained that by "lodging review of agency action in the Court of Appeals, Congress manifest[s] an intent that the appellate court exercise sole jurisdiction over the class of claims covered by the statutory grant of review power." Id. at 77. According to the government, allowing district courts to issue writs of mandamus to the OSC would interfere with the Federal Circuit's exclusive jurisdiction to review the decisions of the MSPB.

The difficulty with the government's position is that the Federal Circuit reviews the actions only of the MSPB and not of the OSC, which is a separate and independent agency. See 5 U.S.C. § 1211. To be sure, an employee alleging a prohibited personnel practice must give the OSC a chance to investigate before going to the MSPB. But the MSPB does not review the OSC's decision of whether to investigate; it simply makes its own assessment of the validity of the complaint.When the Federal Circuit reviews the MSPB's action, it is not even indirectly reviewing the OSC, so allowing district courts to issue writs of mandamus to the OSC would not affect the Federal Circuit's jurisdiction.

Indeed, if district courts lacked power to issue the writ, judicial review of OSC actions would not be available. TRAC had recognized that mandamus might be available when "a denial of review in the District Court will truly foreclose all judicial review." TRAC, 750 F.2d at 78. (The government does not argue that the actions of the OSC should be entirely immune from judicial review.¹) Here, Weber claims that the OSC violated a statutory duty to investigate his allegations. This is a claim that he could not make before the MSPB or the Federal Circuit, so if the district court lacked jurisdiction, Weber would have no way to vindicate the statutory right he asserts.

We conclude that the district court had jurisdiction over this action, and we therefore have jurisdiction over this appeal.

III.

Turning to the merits, the amicus argues that even though the Supreme Court's decision in Egan stripped the MSPB of authority to take action on behalf of an employee whose security clearance has been revoked, the OSC nevertheless has a duty to undertake an investigation of Weber's complaint. Such an investigation would not be...