ML20064E419

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Responds to 810302 Request Re Authority of Ofc of Special Counsel,Merit Sys Protection Board,Under 5 U.S.C. 1206(b)(2) & (7).NRC Not Required to Furnish Counsel Rept on Complaint Alleging Govt Mismanagement & Gross Waste at Facility
ML20064E419
Person / Time
Site: 05000000, Zimmer
Issue date: 03/13/1981
From: Simms L
JUSTICE, DEPT. OF, ATTORNEY GENERAL, OFFICE OF
To: Bickwit L
NRC OFFICE OF THE GENERAL COUNSEL (OGC)
Shared Package
ML20064E073 List:
References
FOIA-82-206 NUDOCS 8301050454
Download: ML20064E419 (4)
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Text

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1 3 !:.la EE1 MEMORANDUM FOR LEONARD BICKWIT, JR.

General Counsel, Nuclear Regulatory Commission Re: Jurisdiction of Office of Special Counsel, MSPB, urider 5 U.S.C. 1206(b)(2) and (7)

This responds to your request of March 2, 1981, for an opinion concerning the authority of the Office of Special Counsel, Merit Systems Protection Board, under 5 U.S.C. 1206(b)(2) and (7) . In particular, you ask whether the Office of Special Counse; (OSC) is empowered under those provisions 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 responsibilities 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) .

l l Section 1206(b)(1) places a restraint on OSC for the i

benefit of whistleblowers. It provides as follows in pertinent part:

(b) (1) In any case involving --

(B) a disclosure by an employee or appli- >

cant for employment to the Special Counsel of the Merit Systems Protection Board . . . of information l

which the employee or applicant reasonably believes evidences -- '

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, C301050454 821116 I

PDR FOIA DEVINEB2-206 PDR -- -

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(1) a violation of any law, rule or regulation; or (ii) mismanagement, a gross waste of funds, an abuse of authority, or a sub- '

stantial and specific danger to public health or safety, i

the identity of the employee or applicant may not i be disclosed without 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) Whenever 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) Whenever the Special Counsel transmits any information to the head of the agency under paragraph (2) of this subsection . . .

the head of the agency shall, within a 1

reasonable time after the information was transmitted, inform the Special Counsel, in writing, of what action has been or is to be i

taken and when such action will be completed . . .

It appears that the occurrence which gave rise to your request for an opinion was OSC's transmittal to NRC

" pursuant to the provisions of 5 U.S.C. 1206(b)(2)" of a

, letter stating that Thomas W. Applegate, a private citizen, l and the Government Accountability Project, a private organization, had charged certain NRC employees with mis-i conduct of a kind specified in 5 1206(b)(1)(B)(ii) at a l nuclear power facility in Ohio. The letter requested NRC -

l to submit a report " pursuant to 5 U.S.C. 1206 (b) (7) . " OSC made the request in accordance with its understanding that i

the words of f 1206(b)(2), " information of the Ate described in paragraph (1) of this subsection" (underscoring added),

i require only its antecedent receipt of evidence of an offense ,

listed in 5 1206(b)(1) and do not require also that the l evidence come from a federal source. In your letter to this l

Office, you take the position that OSC does not have authority to obtain the report from NRC because the antecedent allega-  ;

tions of misconduct were not made by a federal employee or i r

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applicant for federal employment. For the following reasons, we concur in your position.

An examination of the legislative history of the Civil Service Reform Act of 1978, which created OSC, has revealed nothing to suggest that Congress had in mind the construction of 5 1206(b)(2) that OSC follows. On the other hand, Senator Patrick J. Leahy, the sponsor of an amendment on the floor of the Senate that, among other things, put the previsions of what are now $ 1206(b)(2) and (7) into the Act, placed a contrary intent on record.

Upon introducing the amendment, which the Senate approved without obj ection, he submitted a supporting statement signed by him and sixteen colleagues that contained the following (124 Cong. Rec. S 14303 (daily ed.), Aug. 24, 1978:

When the Senate considers S. 2640, the Civil Service Reform Act, we inland 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. Our amendment seeks to assure that em31oyees have a safe place to go outside their agency where their allegctions will be taken seriously. We hope to encourage 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.

(underscoring added.)

i

  • 1 It is fair to say that these passages, which were not challenged at the time or later, manifested a clear understanding on the part of Congress that it was legislating only in relation to employees of the Govern-ment. The passages therefore effectively dispose of OSC's claim of jurisdiction under S 1206(b)(2) and (7) in its letter to your agency.

A close reading of S 1206(b)(2) also militates against OSC's asserted authority. That paragraph must by its terms be read together describes with a type of the languag"e of S 1206(b)(1)(B) that "information. The language is as follows: "information which the employee or applicant reasonably believes evidences [a specified offense]."

(underscorin Thus there is actually no give in 5 1206(b)(2)g to added.)

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 NRC is not required to furnish OSC the report it seeks.*

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Larry . Simms .

Acting Assistant Attorney General Office of Legal Counsel cc: Mary Eastwood Acting Special Counsel, MSPB i

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  • It should be noted that we informally invited OSC to submit comments on your letter to us and that the invitation was declined. ,

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