Weber, Calvin J. v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 2000 Decided April 28, 2000

No. 99-5087

Calvin J. Weber,

Appellant

v.

United States of America and

United States Office of Special Counsel,

Appellees

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 dis-

trict 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, Mis-

siouri. 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 "per-

sonnel 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 deter-

mine 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. s 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 di-

rectly or presented in an Office of Special Counsel prose-

cution 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 em-

ployment in a specific job. Thus, we have no basis for

further inquiry into your complaint....

Weber filed an individual action with the MSPB, which con-

sistent with the OSC's view concluded that it lacked jurisdic-

tion. 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. 1997).

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 con-

cluded, 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 judg-

ment to the government, and Weber appealed.

II.

Appointing an amicus to take appellant's position, we di-

rected 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 Barn-

hart 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 jurisdic-

tion 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. s 1211. To be sure, an employee alleging a prohibit-

ed personnel practice must give the OSC a chance to investi-

gate 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 com-

plaint. Such an investigation would not be futile it is argued

because under the statute the OSC is not limited to prosecut-

ing before the Board: if it determines that a prohibited

personnel practice has occurred, it must report its findings or

recommendations to "the agency involved and to the Office of

Personnel Management, and [it] may report such determina-

tion, findings, and recommendations to the President." 5

U.S.C. s 1214(b)(2)(B). Still, we believe that this grant of

authority to the OSC does not justify the issuance of a writ of

mandamus, for two reasons.

__________

1 Such an argument would not be very plausible in light of

Leedom v. Kyne, 358 U.S. 184 (1958). In Leedom, the Supreme

Court held that although NLRB orders in certification proceedings

had been understood not to be final orders subject to judicial

review, a district court had jurisdiction over a suit to "strike down"

an order made in excess of the Board's authority, because a plaintiff

otherwise would have no means of enforcing an express statutory

mandate.

First, the OSC may act--whether by proceeding before the

MSPB or by making a recommendation to the agency or the

President--only with respect to a "prohibited personnel prac-

tice." As we have noted a "prohibited personnel practice" is

a "personnel action" taken for an impermissible reason. But

"personnel action" is defined in terms of a list of actions such

as appointment, promotion, and reassignment, that does not

include the granting or denial of a security clearance. See 5

U.S.C. s 2302(a)(2). It might be thought that a security

clearance revocation could fall within the statute's catch-all

provision, which at the time of Weber's dismissal referred to

"any other significant change in duties or responsibilities that

is inconsistent with the employee's salary or grade." See 5

U.S.C. s 2302(a)(2)(x) (1993). But this reading is foreclosed

by Egan.

Admittedly, Egan did not directly address the meaning of

"personnel practice" in s 2302. It concluded that the revoca-

tion of a security clearance is not an "adverse action" that can

be reviewed by the MSPB under 5 U.S.C. s 7513. Yet it did

not reach this conclusion by parsing the language of that

statutory provision. Instead, it made the judgment that "the

protection of classified information must be committed to the

broad discretion of the agency responsible, and this must

include broad discretion to determine who may have access to

it. Certainly, it is not reasonably possible for an outside

nonexpert body to review the substance of such a judg-

ment...." Egan, 484 U.S. at 529. In other words, the

general presumption of reviewability of agency action does

not apply to security clearance decisions. The Egan rationale

obviously applies here as well and therefore a "personnel

practice," like "adverse action," does not include a decision

about a security clearance. Amicus suggests that the OSC

did not rely on this interpretation of the statute in its letter to

Weber and so we cannot base our opinion on it.2 But the

__________

2 Indeed, in another case the OSC has explicitly rejected this

reading, perhaps reflecting an understandable desire to interpret its

enforcement authority broadly. See Roach v. Department of the

OSC's view of its authority is not relevant because mandamus

is proper only when an agency has a clearly established duty

to act, and here the OSC does not.3

Mandamus is inappropriate, moreover, for a second reason.

Amicus argues that the OSC has a duty to undertake an

investigation, but because she concedes that it would be futile

for the OSC to bring Weber's case before the MSPB, the

purpose of its investigation would be limited to writing a

letter to the Army, to the Office of Personnel Management, or

to the President. The act of reporting recommendations,

however, is highly discretionary and therefore far removed

from the paradigm case for mandamus--a ministerial act that

an agency has a clear duty to perform. See Council of and

for the Blind of Delaware County Valley, Inc. v. Regan, 709

F.2d 1521, 1533 (D.C. Cir. 1983) (en banc). And there is no

reason to believe that even a favorable OSC recommenda-

tion--which would not be binding on anyone--would actually

help Weber. Mandamus is an extraordinary remedy whose

issuance is guided by equitable principles. See 13th Regional

Corp. v. United States Dep't of Interior, 654 F.2d 758, 760

(D.C. Cir. 1980). It is not to be granted in order to command

a gesture. We think it would be inappropriate to issue a writ

of mandamus to compel the OSC to make what would amount

to a purely hortatory statement.

* * * *

The judgment of the district court is

Affirmed.

__________

Army, 82 M.S.P.R. 464 (1999) (pending review in the Federal

Circuit).

3 This conclusion also disposes of Weber's constitutional claims.

Amicus contends that Weber has been deprived of liberty without

due process because he has lost his job and has been "stigmatized."

Since the OSC had no duty--and indeed no authority--to conduct

an investigation, its failure to do so could not have deprived Weber

of any legal right.