Four Federal Workforce Agencies Linked To International Human Rights Violations

WASHINGTON - April 28, 2016 - PRLog -- "We have transformed the briefing in a consolidated appeal of two (2) U.S. Merit Systems Protection Board (MSPB) decisions into a referendum on that quasi-judicial agency, the U.S. Office of Special Counsel (OSC), America's Equal Employment Opportunity Commission (EEOC), as well as the Occupational Safety and Health Administration (OSHA)," says Dr. Andrew D. Jackson of the nonprofit organization known as The Law Project. He explains, "Opt IN USA is an initiative of ours challenging the effectiveness of domestic legal and political systems in protecting the First Amendment rights of average Americans, and these federal agencies have proven woefully inadequate in that regard." Jackson's colleague, attorney Zena Crenshaw-Logal*, adds that related federal workforce issues are part of a "constitutional and human rights crisis being addressed by Opt IN USA which is a grassroots U.S. foreign policy reform, judicial accountability, and international human rights campaign."

The referenced appeal before the Federal Circuit Court of Appeals is Carson v. MSPB, appeal nos. 2015-3135 and 2015-3211. The petitioner, professional engineer (PE) Joseph P. Carson, is a longtime U.S. Department of Energy (DOE) employee and a high profile nuclear safety whistleblower. He has contended for nearly three (3) decades that the "OSC is a law-breaking fraud of a federal agency and the MSPB is its enabler."

According to the OSC's website, it is charged with "(p)rotecting federal employees from improper personnel actions, including retaliation for whistleblowing." The MSPB's website describes it as "an independent, quasi-judicial . . . guardian of Federal merit systems." The MSPB "carries out its statutory responsibilities and authorities primarily by adjudicating individual employee appeals and by conducting merit systems studies."

Mr. Carson is undoubtedly America's leading OSC and MSPB reform advocate. Carson's reported commitment to high engineering ethics fuels his persistent challenge of the OSC and MSPB. He interjects, "Does a PE, employed by a federal agency, have a right to do his positive legal and professional duty to protect public health and safety from government agency law-breaking? The U.S. Government through federal agencies OSC and MSPB says loud and clear: No - neither OSC nor MSPB has any positive duty to protect any PE in any federal agency who is so foolhardy to put his or her positive duty to protect public health and safety before his or her professional standing and economic security."

Carson v. MSPB focuses on whether the OSC's deceptively simple act of ignoring Carson's complaints about or disclosures of its own alleged unlawfulness (and that of the DOE as well as the MSPB) constitutes a personnel action. Carson is represented in the federal appeal by the Tennessee law firm of Loring Justice, PLLC. The firm's 30-page brief applauds the MSPB determination that Carson does not have to be an OSC employee to experience a personnel action by the agency. Chadwick Rickman, Carson's attorney of record, painstakingly tracks the history of relevant law and concludes that in ignoring Carson, the OSC made a "significant change" in his working conditions.

Rickman asserts: "The (OSC) has not argued and cannot argue Mr. Carson made irrational or absurd disclosures to it. The Agency never found Mr. Carson acted in less than good faith in making protected disclosures. The Agency must review protected disclosures in good faith. It could reject them, but it cannot ignore them. The Agency is neglecting its statutory function and basic duties in ensuring the integrity of the federal civil service; it has imposed an adverse 'significant change' in Mr. Carson's 'working conditions'."

Three individuals have sought leave to file separate briefs supporting Carson and reversal of the MSPB decisions against him. The proposed "friend of the court" briefs, each considered a brief of an amicus curiae, highlight concerns relevant to, but different from Carson's opening brief. Dr. Jackson and Crenshaw-Logal, mentioned above, filed their own proposed brief -- Jackson as an Opt IN USA Coordinator and Crenshaw-Logal as a judicial accountability specialist. A third brief was proposed by OSHA reform advocate Brenda McCracken.

Jackson cites the International Covenant on Civil and Political Rights (ICCPR) and its requirement that each State Party to it "undertakes: (a) To ensure that any person whose rights or freedoms . . . are violated shall have an effective remedy." After noting that the U.S. signed the ICCPR in 1977 and ratified or acceded to it in 1992, he submits that "the OSC, and the MSPB through rulings such as those precipitating the consolidated appeal at hand, are major parts of the 'shell game' decried by Opt IN USA in its debut report, 'Americans In Jeopardy: When Human Rights Protection Becomes America's Executive, Legislative, and Judicial Branch Shell Game.'" Jackson concludes that "(a)t least for . . . Carson, the OSC and MSPB have transformed seeking whistleblower and merit system protection into a task suitable for Sisyphus of Greek mythology, which unconstitutional action may constitute persecution or even psychological torture prohibited by key U.S. human rights treaties."

Crenshaw-Logal contends that "(t)hrough apparent judicial activism suborned by the OSC, the MSPB honed an ominous gap in federal whistleblower and merit system protection." She submits that with regard to Carson's current appeal, "the MSPB is unduly deferential to the OSC and hamstrung by the conflict inherent in addressing the propriety or impropriety of its own actions."

McCracken notes that "(a)n ineffective whistleblower protection program for federal employees creates an ineffective role model and allows bias and conflict of interest in the OSHA whistleblower protection program." She explains, "I was not a federal employee, so the OSC did not have jurisdiction over my case, but the OSHA employees who did have jurisdiction over my case are protected by the OSC; therefore, OSHA is not in a position to provide better whistleblower protection than its employees receive from the OSC." McCracken adds, "My own complaint was dumped into the EEOC mitigation process where the DOE and their contractors avoided an investigation into the safety concerns that I reported." Jackson cited sources deeming the EEOC largely ineffective.

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