Carson v. United States Office of Special Counsel

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0060p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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JOSEPH P. CARSON,

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Plaintiff-Appellant,

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No. 09-5645

v.

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UNITED STATES OFFICE OF SPECIAL

Defendant-Appellee. -

COUNSEL,

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Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

No. 08-00330—Thomas W. Phillips, District Judge.

Decided and Filed: February 24, 2011

Before: MARTIN, BOGGS, and COOK, Circuit Judges.

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COUNSEL

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.

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OPINION

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BOYCE F. MARTIN, JR., Circuit Judge. 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.

1

No. 09-5645 Carson v. United States Office of Special Counsel Page 2

I. BACKGROUND

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 (codified in scattered sections of 5 U.S.C.). 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.

No. 09-5645 Carson v. United States Office of Special Counsel Page 3

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.

No. 09-5645 Carson v. United States Office of Special Counsel Page 4

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.

II. CARSON’S PETITION FOR A WRIT OF MANDAMUS

A. Subject Matter Jurisdiction in General

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 under

No. 09-5645 Carson v. United States Office of Special Counsel Page 5

section 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) (stating that whether mandamus is

available to enforce the Office of Special Counsel’s investigatory duty is an “open

question” in the Sixth Circuit). 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) (“[A]n employee’s right to obtain judicial review of the [Office of

Special Counsel’s] decision not to pursue a complaint is limited to [the question of]

whether the [Office of Special Counsel] discharged its duty to investigate the

complaint.”) (second alteration in original) (internal quotation marks and citation

omitted); accord Nowick v. Strickland, Nos. 98-1206, 98-1207, 98-1212, 1999 WL

No. 09-5645 Carson v. United States Office of Special Counsel Page 6

282389, at *3 (10th Cir. Apr. 30, 1999) (noting its authority to ensure that the Office of

Special Counsel complied with its statutory obligations); Hyde v. Office of Special

Counsel, No. 94-1406, 1995 WL 238340, at *1 (10th Cir. Apr. 21, 1995) (same). We

find the reasoning of our sister circuits persuasive and thus hold that a district court has

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.

However, this holding does not imply that district courts have jurisdiction to

review all Office of Special Counsel determinations. Various courts have held that

district courts have no jurisdiction to review the Office of Special Counsel’s decision to

terminate an investigation or not to petition the Merit Systems Protection Board. See

DeLeonardis, 986 F.2d at 727 (“We agree with our colleagues of the D.C. Circuit that

when the [Office of Special Counsel] decides to terminate an investigation that it began

pursuant to a complaint, the decision is not reviewable.”); Wren v. Merit Sys. Prot. Bd.,

681 F.2d 867, 876 n.9 (D.C. Cir. 1982) (“It is also quite clear from the statutory

language and corresponding legislative history that Congress did not mean to make the

[Office of Special Counsel’s] decisions to terminate or conduct an investigation or bring

a proceeding before the Board reviewable on the merits.”). In addition, several

unpublished opinions have followed this approach. See Hyde, 1995 WL 238340, at *1

(holding that district courts have no authority to require the Office of Special Counsel

to reconsider a complaint and resolve it a certain way); DeLeonardis v. Koch, Civ. A.

No. H-90-3768, 1992 WL 465474, at *3 (S.D. Tex. July 1, 1992) (“[A] district court may

not review [Office of Special Counsel’s] decision to terminate its investigation, or

[Office of Special Counsel’s] decision not to petition the [Merit Systems Protection

Board].”) (citation omitted).

Carson contends that this case is controlled by Weber, 209 F.3d at 759. In

Weber, the plaintiff, a former Army employee, complained to the Office of Special

Counsel that he had been stripped of a security clearance in retaliation for

whistleblowing. Id. at 757. The Office of Special Counsel “declined to investigate” the

No. 09-5645 Carson v. United States Office of Special Counsel Page 7

plaintiff’s complaint because it concluded that it lacked jurisdiction to investigate the

complaint. Id. at 758. The plaintiff then sought a writ of mandamus to compel the

Office of Special Counsel to investigate his accusation. Id. Thus, in both Weber and the

present case, the Office of Special Counsel concluded that it lacked jurisdiction to

investigate a complaint, and the plaintiff sought a writ of mandamus to compel it to

investigate. In Weber, the district court held that “there is no judicial review of the

merits of the [Office of Special Counsel’s] decision to dispense with an investigation.”

Weber v. Office of Special Counsel, No. 97-2260-LFO, slip op. at 6. (D.D.C. Feb. 10,

1999). Then, the District of Columbia Circuit held that a district court has 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. Weber, 209 F.3d at 759. Because the Office of Special Counsel declined

to investigate because it believed that it lacked jurisdiction, the District of Columbia

Circuit appears to have held that the Office of Special Counsel’s determinations of its

own jurisdiction are subject to judicial review. See id.

We decline to rely on Weber to hold that district courts have authority to review

the jurisdictional determinations of the Office of Special Counsel for a number of

reasons. In this case the record indicates that the Office of Special Counsel conducted

a preliminary investigation into Carson’s claims. But it is unclear from the Weber

decision whether the Office of Special Counsel initiated any investigation at all into the

plaintiff’s claim in that case.1

Additionally, to the extent that Weber holds that district courts have authority to

review the jurisdictional determinations of the Office of Special Counsel, we find the

Fifth Circuit’s reasoning to the contrary to be more persuasive. In DeLeonardis, 986

F.2d at 727, the plaintiff argued that “courts are allowed to look behind the agency’s

1

The District of Columbia Circuit opinion states that the Office of Special Counsel had “declined

to investigate” the complaint. Weber, 209 F.3d at 758. The district court’s opinion initially states that the

Office of Special Counsel “decided not to pursue the complaint.” But it later states that the Office of

Special Counsel “considered the plaintiff’s complaint,” and decided to “dispense with an investigation.”

Weber v. Office of Special Counsel, No. 97-2260-LFO, slip op. at 2, 4, and 6. (D.D.C. Feb. 10, 1999).

Thus, it is somewhat unclear whether the Office of Special Counsel declined to investigate the plaintiff’s

complaint at all or merely declined to continue its initial investigation.

No. 09-5645 Carson v. United States Office of Special Counsel Page 8

decision to terminate an investigation when . . . the agency applies the incorrect legal

standard in deciding to terminate the investigation.” The Fifth Circuit rejected this claim

and stated that the plaintiff failed “to recognize, or at least to admit, that to allow him to

succeed on this argument we would have to vitiate the clearly established rule that we

do not look behind substantive [Office of Special Counsel] determinations to terminate

investigations.” Id. Jurisdiction is a legal issue similar to the legal standard in dispute

in DeLeonardis. Thus, we hold that a district court has subject matter jurisdiction to

issue a writ of mandamus only if it determines that the Office of Special Counsel has

declined to investigate a complaint at all; it has no subject matter jurisdiction to consider

the Office of Special Counsel’s jurisdictional determinations or the merits of its

investigations. Now that we have established this main point, Carson’s individual claims

are easily resolved.

B. Complaints MA-08-1842, MA-08-1843, and MA-08-2553

The district court correctly concluded that it had no subject matter jurisdiction

to issue a writ of mandamus regarding these three prohibited activity complaints. The

Office of Special Counsel satisfies its statutory obligation when the Complaints

Examining Unit conducts an initial investigation sufficient for it to determine whether

a more thorough investigation is required. Cf. Wren, 681 F.2d at 874 (discussing

statutory language governing prohibited personnel practice complaints). Here, the

Office of Special Counsel conducted a preliminary investigation of Carson’s allegations

and concluded that further inquiry was unnecessary because he did not allege violations

of civil service laws, rules, or regulations. Carson does not contend that the Office of

Special Counsel failed to investigate his complaint; he contends that the investigation

was inadequate. District courts may not review the Office of Special Counsel’s

substantive decision to discontinue an investigation for lack of cause. Thus, the district

court could not order the Office of Special Counsel to conduct an additional

investigation into Carson’s claims after the Office of Special Counsel conducted

preliminary investigations and decided to close them. Because the Office of Special

Counsel discharged its statutory obligations by investigating these three complaints,

No. 09-5645 Carson v. United States Office of Special Counsel Page 9

Carson is not entitled to a writ of mandamus. Thus, we AFFIRM the decision of the

district court.

C. Section 1214(e) Reporting Requirement

5 U.S.C. § 1214(e) provides that:

If, in connection with any investigation under this subchapter, the Special

Counsel determines 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 Special Counsel shall report such

violation to the head of the agency involved.

Carson seeks a writ ordering the Office of Special Counsel to report the

allegations that he raised in his complaints to the Secretary of Energy pursuant to section

1214(e). However, the district court correctly concluded that the Office of Special

Counsel had no duty to report violations of law, rule, or regulation because the Office

of Special Counsel never found that such violations had occurred.

Carson asks us to resolve his disagreement with the Office of Special Counsel

about the meaning of the phrase “any law, rule, or regulation” in section 1214(e).

Carson suggests that the phrase applies to violations of law, rule, or regulation under the

jurisdiction of the Office of Special Counsel. The Office of Special Counsel, on the

other hand, asserts that the phrase applies to violations of law, rule, or regulation that it

discovers during an investigation but over which it lacks jurisdiction under section 1214

or 1216. However, it is unnecessary for us to resolve this dispute because the Office of

Special Counsel never found reasonable cause to believe that any violations of law, rule,

or regulation occurred. Therefore, we have no authority to issue a purely advisory

opinion on this debate. See, e.g., North Carolina v. Rice, 404 U.S. 244, 246 (1971)

(“[F]ederal courts are without power to decide questions that cannot affect the rights of

litigants in the case before them.”). Thus, we AFFIRM the decision of the district court.

No. 09-5645 Carson v. United States Office of Special Counsel Page 10

III. CARSON’S MOTION TO AMEND

Carson does not contest the merits of the district court’s decisions regarding

complaints MA-08-1844 and MA-07-1668.2 Rather, he claims that the district court

erred in denying his motion to amend the petition in light of the Office of Special

Counsel’s decision regarding these two complaints. Carson moved to amend his petition

to add allegations that, in closing these two complaints, the Office of Special Counsel

failed to comply with the requirements set out in a statutory note following section 1214.

The district court found that Carson’s additional allegations would be futile because the

Office of Special Counsel had already performed the non-discretionary duties it owed

Carson. Because the district court based its decision to deny leave to amend on the legal

conclusion that amendment would be futile, we review this decision de novo. Yuhasz

v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th Cir. 2003).

Leave to amend must be freely given when justice so requires. Fed. R. Civ. P.

15(a). Nevertheless, leave to amend “should be denied if the amendment is brought in

bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party,

or would be futile.” Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995).

The statutory note following section 1214 provides that:

The Special Counsel shall include in any letter terminating an

investigation under section 1214(a)(2) of title 5, United States Code . . .

the name and telephone number of an employee of the Special Counsel

who is available to respond to reasonable questions from 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 the person’s allegations.

2

The district court correctly dismissed Carson’s claim that the Office of Special Counsel was

required to provide him status reports regarding complaint MA-08-1844, a prohibited activity complaint,

because the Office of Special Counsel is not required to provide status reports regarding prohibited activity

complaints under section 1214. The district court correctly dismissed Carson’s claim regarding

MA-07-1668, a prohibited personnel practice complaint, because the Office of Special Counsel performed

its duty to make a “reasonable basis” determination under section 1214 by explaining its basis for

proposing to close his complaint, reviewing Carson’s written comments to this proposal, and later

terminating its investigation and closing the complaint.

No. 09-5645 Carson v. United States Office of Special Counsel Page 11

United States Office of Special Counsel, Merit Systems Protection Board: Authorization,

Pub. L. 103-424 § 12(b), 108 Stat. 4361, 4367 (1994). Carson contends that the person

whose name and number he was given did not respond to his “reasonable questions.”

For a writ of mandamus to be warranted, “there must be a mandatory or

ministerial obligation. If the alleged duty is discretionary or directory, the duty is not

owed.” Maczko, 814 F.2d at 310 (internal quotation marks and citation omitted). “A

duty is not owed unless the obligation is plainly defined and peremptory.” Id. (internal

quotation marks and citation omitted). Although the Office of Special Counsel had a

duty to comply with the statutory note following section 1214, the terms of that note are

not readily ascertainable. “[W]hen a duty is disputed or subject to various

interpretations, . . . the duty is not ‘owed’ in that the obligation to do a particular act

cannot be said to be clear, peremptory, defined or ministerial within the meaning of

section 1361.” Id. There is clearly discretion involved in responding “to reasonable

questions from 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 the person’s allegations.” United States Office of Special Counsel, Merit Systems

Protection Board: Authorization, Pub. L. 103-424 § 12(b), 108 Stat. 4361, 4367. Carson

sought leave to amend his petition to request a writ of mandamus to enforce a statutory

note that is subject to differing interpretations. This amendment would be futile because

the district court would have no authority to issue the requested writ under section 1361.

Furthermore, we note that because MA-08-1844 is a prohibited activity

complaint, the procedural requirements of section 1214 do not apply to it in any case.

Section 1216, which governs prohibited activity complaints, provides that “[i]f the

Special Counsel receives an allegation concerning [activities prohibited by any civil

service law, rule, or regulation], 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.” 5 U.S.C. § 1216(c) (emphasis

added). The plain text of the statute suggests that the Office of Special Counsel is not

required to provide status reports regarding prohibited activity allegations, but rather has

No. 09-5645 Carson v. United States Office of Special Counsel Page 12

this discretionary power. See also Perkins v. Office of Special Counsel, 522 F.3d 1373,

1376 (Fed. Cir. 2008) (“[S]ubsection (c) of section 1216 specifies that [Office of Special

Counsel] may seek corrective action under section 1214 . . . for activities described in

[section 1216(a)(4)] in the same way as if a prohibited personnel practice were

involved.” (internal quotation marks omitted) (emphasis added)). Thus, the district court

correctly found that under section 1216, the Office of Special Counsel’s decision

whether to follow section 1214’s procedural requirements was discretionary, and thus

permitting Carson to amend his petition regarding a section 1216(a) investigation would

be futile. Therefore, we AFFIRM the district court’s denial of Carson’s motion for

leave to amend.

IV. CONCLUSION

We hold that a district court has subject matter jurisdiction to issue a writ of

mandamus only if it determines that the Office of Special Counsel has declined to

investigate a complaint at all; it has no subject matter jurisdiction to consider the Office

of Special Counsel’s jurisdictional determinations or the merits of its investigations. The

district court had no subject matter jurisdiction to issue a writ of mandamus regarding

complaints MA-08-1842, MA-08-1843, and MA-08-2553 because the Office of Special

Counsel had fulfilled its statutory duty to investigate these complaints. The district court

had no subject matter jurisdiction to issue a writ of mandamus to order the Office of

Special Counsel to report allegations pursuant to section 1214(e) because the Office of

Special Counsel never found that any violation of law, rule, or regulation occurred.

Thus, we AFFIRM the district court’s dismissal of Carson’s claims.

We find that because the section 1214 statutory note regarding responding to

“reasonable questions” is subject to differing interpretations, the district court correctly

found that permitting Carson to amend his petition would be futile. Thus, we AFFIRM

the district court’s dismissal of Carson’s motion to amend.