ML20070T632

Responds to Re Authority of Ofc of Special Counsel,Merit Sys Protection Board to Require NRC to Furnish Rept Re T Applegate Allegation of Mismanagement & Gross Waste at Facility

ML20070T632
Person / Time
Site:	Zimmer
Issue date:	03/13/1981
From:	Simms L JUSTICE, DEPT. OF
To:	Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC)
Shared Package
ML20070T605	List: ML20070T610 ML20070T632
References
FOIA-81-488 NUDOCS 8302090137
Download: ML20070T632 (4)

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MEMORANDUM FOR LEONARD BICKWIT, JR.

General Counsel, Nuclear Regulatory Commission Re: Jurisdiction of Office of Special Counsel,

, MSPB, under 5 U.S.C. 1206(b)(2) and (7) ..

This responds to your request of 1: arch 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 Counsel (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 individur.1 alleging NRC mismenagement 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 's-it to receive and investigate allegations of the occurrence of any of the prohibited personnel practices list 9d in 5 U.S.C. 2302(b), one of which is a superior's taking or failing to take a personn.el action against a subordinate employee or an agplicant 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 appli-cant for employrnent to the Special Counsel of the Merit Systems Protecti'on Scard . . . of information which the employee or spplicant reasonably believe's evidences --

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c (i) a violation of any. law, rule or regulation; or (ii) mismanagement, a gross waste of funds, en abuse of authority, or a sub-stantial and specific danger to public' health -

or safety, l the identity of the employee or applicant 'may not t- be disclosed without the consent of the employee

or applicant during [certain investigations) .unless

the Special Counsel determines that the disclosure

! .. . is necessary . . .

I Section 1206(b)(2) and the pertinent part of 51206 (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 h'ead 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 OSC's transmittal to NRC

" pursuant to.the provisions of 5 U.S.C. 1206(b)(2)" of a j letter stating that Thomas W. Applegate, a private citizen, and the Government Accountability Proj ect, a' private organization, had charged certain "RC employees with~ mis-conduct of a kind specified in 51206(b)'(1)(B)(ii) at a.

nuclear power facility in Ohio. The 1c;ter requested NRC to submit a report " pursuant to 5 U.S.C. 1206(b)(7)." OSC made the recuest in accordance with its understanding ~that the words of 5 1206(b)(2), "information of the type described in paragraph (1) of this subsection" (underscoring added),

require only its antecedent receipt of evidence of an offense listed in f 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 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

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

An examination of the legislative history of thi -

t Civil Service Reform Act of -1978, which created OSC, has -

reveale3 nothing to suggest that Congress had in mind the construction of. f 1206(b)(2) that OSO 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 provisions of what are now 5.1206(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 intend to offer an amendment to strengthen .the whistl'e blower protections. This .

, proposal will assure that the charges

. raised by whistleblowers--those federal employees who disclose illegality, waste, aouse, 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.

Alchough 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 employees have a safe place to go outside tneir agency.

where their allegations will be taken seriously. We hope to encourage emolcyees to give the government the first crack at cleaning its own hcuse before igniting the glare of publicity to force correction. Ue do not want to limit the emoloyees' rights to speak out when they see wrongcoing; we do' want to assure them that the government has .

. a commitment to eliminating the wrongdoing.

(underscoring added.)

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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 war.

legislating only in relation ~to emplo ees~of the. Govern-. _ . . . .

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ment. The passages chartfore effectively dispose of OSC's claim of jurisdiction under- 5 1206(b)(2) and (7) in its letter to your agency.

A close reading of 5 1206(b)(2) also militates against OSC's asserted authority. That paragraph must by -its terms be read together with the language of f 1206(b)(1)(B) that describes a type of "information." The~ language is as follows: "information which the employee or applicant "

reasonably believes evidences [a specified offensej."~

(underscorin Thus there is actually no give in 5 1206(b) (2)gto 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.* ,

Larry . Simms

..cting 1.ssistant Attorney General Office of Legal Counsel 1 cc: Mary Eastwood Acting Special Counsel, MSPB l

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It shpuld be noted that we infermally invited OSC to submit comments on your letter to us and that the invitation was decle.ned.

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