Jurisdiction of the Office of Special Counsel, Merit Systems Protection Board, Under 5 U.S.C. §§ 1206(b)(2) and (7) ( 1981 )

Jurisdiction of the Office of Special Counsel, Merit Systems
Protection Board, Under 5 U.S.C. §§ 1206(b)(2) and (7)
T h e Office o f Special Counsel, M erit System s Protection Board, has no authority under 5
U.S.C. §§ 1206(b)(2) and (7), to require another agency to subm it a report concerning
allegations o f m isconduct not m ade by a federal em ployee o r an applicant for federal
em ploym ent.
March 13, 1981
M EM ORANDUM OPIN IO N FO R T H E G E N E R A L COUNSEL,
N U C LEA R R EG U LA TO RY COMMISSION
This responds to your request for an opinion concerning the author­
ity of the Office of Special Counsel (OSC), M erit Systems Protection
Board, under 5 U.S.C. §§ 1206(b)(2) and (7). In particular, you ask
whether the Office of Special Counsel is empowered under those provi­
sions to require the Nuclear Regulatory Commission (NRC) to submit a
report to it on a joint complaint by a private organization and a private
individual alleging NRC mismanagement and gross waste at a nuclear
power facility in Ohio.
It will be helpful to mention, as background, certain statutory respon­
sibilities of OSC before we turn to 5 U.S.C. §§ 1206(b)(2) and (7).
Section 1206(a)(1) authorizes it to receive and investigate allegations of
the occurrence of any of the prohibited personnel practices listed
in 5 U.S.C. § 2302(b), one of which is a superior’s taking or failing to
take a personnel action against a subordinate employee or an applicant
for employment as a reprisal for “whistleblowing.” See 5 U.S.C.
§ 2302(b)(8).
Section 1206(b)(1) places a restraint on OSC for the benefit of
whistleblowers. It provides as follows in pertinent part:
(b)(1) In any case involving—
* * * * *
(B) a disclosure by an employee or applicant for em­
ployment to the Special Counsel of the Merit Systems
Protection Board . . . of information which the employee
or applicant reasonably believes evidences—
(i) a violation of any law, rule, or regulation; or
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(ii) mismanagement, a gross waste of funds, an abuse
of authority, o r a substantial and specific danger to
public health or safety;
the identity of the employee or applicant may not be disclosed
w ithout the consent of the employee or applicant during
[certain investigations] unless the Special Counsel determines
that the disclosure . . . is necessary . . .
Section 1206(b)(2) and the pertinent part of § 1206(b)(7) read as
follows:
(2) W henever the Special Counsel receives information of
the type described in paragraph (1) of this subsection, the
Special Counsel shall promptly transmit such information
to the appropriate agency head.
(7) W henever the Special Counsel transmits any informa­
tion to the head o f the agency under paragraph (2) of this
subsection . . . the head of the agency shall, within a
reasonable time after the information was transmitted,
inform the Special Counsel, in writing, of what action has
been or is to be taken and when such action will be
completed . . . .
It appears that the occurrence which gave rise to your request for an
opinion was O SC’s transmittal to NRC “pursuant to the provi­
sions o f 5 U.S.C. § 1206(b)(2)” o f a letter stating that a private citizen
and a private organization had charged certain NRC employees with
m isconduct of a kind specified in § 1206(b)(l)(B)(ii) at a certain nuclear
pow er facility. The letter requested NRC to submit a report “pur­
suant to 5 U.S.C. § 1206(b)(7).” OSC made the request in accordance
w ith its understanding th at the words of § 1206(b)(2), “information of
the type described in paragraph (1) o f this subsection” (emphasis added),
require only its antecedent receipt o f evidence of an offense listed in
§ 1206(b)(1) and do not require also that the evidence come from a
federal source. In your letter to this Office, you take the position that
O SC does not have authority to obtain the report from N RC because
the antecedent allegations of misconduct were not made by a federal
employee o r applicant for federal employment. For the following rea­
sons, w e concur in your position.
A n examination of the legislative history o f the Civil Service Reform
A ct o f 1978, which created OSC, has revealed nothing to suggest that
Congress had in mind the construction of § 1206(b)(2) that OSC fol­
lows. T o the contrary, Senator Patrick J. Leahy, the sponsor of an
amendm ent on the floor o f the Senate that, among other things, intro­
duced the provisions of what are now §§ 1206(b)(2) and (7) into the
A ct, placed a contrary intent on record. Upon introducing the amend­
ment, which the Senate approved without objection, he submitted a
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supporting statement signed by him and 16 colleagues that contained
the following:
When the Senate considers S. 2640, the Civil Service
Reform Act, we intend to offer an amendment to
strengthen the whistleblower protections. This proposal
will assure that the charges raised by whistleblowers—
those federal employees who disclose illegality, waste,
abuse, or dangers to public health or safety—are fully
investigated. We ask you to join with us in establishing a
mechanism for the handling of whistleblower complaints
which will result in the systematic weeding out of
wronged [sic] from the federal service.
* * * * *
Although employees are free, under the committee’s bill,
to publicly disclose impropriety, no dissent channel is
established so that employees can seek internal resolution
of allegations. O ur amendment seeks to assure that em ­
ployees have a safe place to go outside their agency where
their allegations will be taken seriously. We hope to en­
courage employees to give the government the first crack
at cleaning its own house before igniting the glare of
publicity to force correction. We do not want to limit the
employees' rights to speak out when they see wrongdoing;
we do want to assure them that the government has a
commitment to eliminating the wrongdoing.
124 Cong. Rec. 27,570-71 (1978) (emphasis added).
It is fair to say that these passages, which were not challenged at the
time or later, manifested a clear understanding on the part o f Congress
that it was legislating only in relation to employees o f the government.
The passages therefore effectively dispose of OSC’s claim o f jurisdic­
tion under §§ 1206(b)(2) and (7) in its letter to your agency.
A close reading of § 1206(b)(2) also militates against OSC’s asserted
authority. That paragraph must by its terms be read together with the
language of § 1206(b)(1)(B) that describes a type of “information.” T he
language is as follows: “information which the employee or applicant
resonably believes evidences [a specified offense].” (emphasis added)
Thus there is actually no give in § 1206(b)(2) to accommodate the
interpretation that it permits OSC to transmit information to an agency
head that has not been assessed by a federal whistleblower.
In sum, we are of the opinion that N R C is not required to furnish
OSC the report it seeks.
L arry L . S im m s
Acting Assistant Attorney General
Office o f Legal Counsel
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