United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 13, 2000 Decided April 28, 2000
No. 99-5087
Calvin J. Weber,
Appellant
v.
United States of America and
United States Office of Special Counsel,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 97cv02260)
Elizabeth E. Appel Blue, appointed by the court, argued
the cause as amicus curiae on the side of appellant. With
her on the briefs were David W. DeBruin and Nory Miller.
Calvin J. Weber, appearing pro se, was on the briefs for
appellant.
Jane M. Lyons, Assistant United States Attorney, argued
the cause for appellees. With her on the brief were Wilma
A. Lewis, U.S. Attorney, R. Craig Lawrence and Sally M.
Rider, Assistant U.S. Attorneys.
Before: Silberman, Randolph, and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: Calvin Weber sought a writ of
mandamus to compel the U.S. Office of Special Counsel (OSC)
to investigate his charge that he had been stripped of a
security clearance in retaliation for whistleblowing. The dis-
trict court granted summary judgment against Weber, and he
appealed. We affirm.
I.
Weber worked for the Army as a civilian engineer at what
was then the Aviation Systems Command in St. Louis, Mis-
siouri. He specialized in infrared suppressor systems, which
are used to help aircraft evade heat-seeking missiles. In
October 1990, he publicly alleged that many of the Army's
helicopters being sent to the Persian Gulf for Operation
Desert Storm did not carry infrared suppressor systems,
making them vulnerable to attack by enemy missiles. The
Army revoked Weber's security clearance in February 1993.
Because his position required a security clearance, Weber
was fired a few months later.
Weber complained to the U.S. Office of Special Counsel
(OSC) that the Army's revocation of his security clearance
was in retaliation for whistleblowing. It is a "prohibited
personnel practice" for a government agency to take a "per-
sonnel 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." 5 U.S.C. s 2302(b)(8). An employee who
believes he has been the victim of a prohibited personnel
practice must first complain to the OSC, which is required to
investigate the complaint "to the extent necessary to deter-
mine whether there are reasonable grounds to believe that a
prohibited personnel practice has occurred." 5 U.S.C.
s 1214. If the OSC determines that a prohibited personnel
practice has occurred, it must report its findings to the Merit
Systems Protection Board (MSPB), and it may petition the
Board to take action on behalf of the employee. But even if
the OSC's investigation does not support the complaint, the
employee still may bring an individual action before the
MSPB. See 5 U.S.C. s 1221. In either case, the MSPB's
decision is appealable to the Federal Circuit. See 5 U.S.C.
s 7703.
The OSC declined to investigate Weber's complaint. Its
letter explained:
In [Department of the Navy v. Egan, 484 U.S. 518
(1988)], the Supreme Court found that the Merit Systems
Protection Board does not have the authority to review
the substance of the underlying reasons for revoking or
denying a security clearance. Consequently, the Merit
Systems Protection Board also does not have authority to
review an adverse personnel action, either appealed di-
rectly or presented in an Office of Special Counsel prose-
cution case, which is taken against an employee as a
result of an agency decision to withdraw or revoke a
security clearance which is necessary for continuing em-
ployment in a specific job. Thus, we have no basis for
further inquiry into your complaint....
Weber filed an individual action with the MSPB, which con-
sistent with the OSC's view concluded that it lacked jurisdic-
tion. See Weber v. Department of the Army, 59 M.S.P.R. 293
(1993). The Federal Circuit affirmed. See Weber v. Merit
Sys. Protection Bd., 26 F.3d 140 (Fed. Cir. 1997).
He then brought this action against the OSC, advancing
both statutory and constitutional claims. Giving a liberal
construction to Weber's pro se complaint, cf. Richardson v.
United States, 193 F.3d 545, 548 (D.C. Cir. 1999), the district
court construed it as requesting a writ of mandamus to
compel the OSC to investigate Weber's allegations. It con-
cluded, however, that the OSC had no duty to conduct an
investigation because the denial of a security clearance was
not a "personnel action." It further held that the OSC had
not deprived Weber of liberty or property in violation of the
Due Process Clause. It therefore granted summary judg-
ment to the government, and Weber appealed.
II.
Appointing an amicus to take appellant's position, we di-
rected the parties to address inter alia the district court's
jurisdiction to issue a writ of mandamus to the Office of
Special Counsel, a question that had been left open in Barn-
hart v. Devine, 771 F.2d 1515, 1524 n.15 (D.C. Cir. 1985).
The government now argues that the district court lacked
jurisdiction. It relies on Telecommunications Research and
Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) ("TRAC"),
for the proposition that when a Court of Appeals has jurisdic-
tion to review the actions of an agency, then the district
courts lack power to issue writs of mandamus to that agency.
In TRAC, we explained that by "lodging review of agency
action in the Court of Appeals, Congress manifest[s] an intent
that the appellate court exercise sole jurisdiction over the
class of claims covered by the statutory grant of review
power." Id. at 77. According to the government, allowing
district courts to issue writs of mandamus to the OSC would
interfere with the Federal Circuit's exclusive jurisdiction to
review the decisions of the MSPB.
The difficulty with the government's position is that the
Federal Circuit reviews the actions only of the MSPB and not
of the OSC, which is a separate and independent agency. See
5 U.S.C. s 1211. To be sure, an employee alleging a prohibit-
ed personnel practice must give the OSC a chance to investi-
gate before going to the MSPB. But the MSPB does not
review the OSC's decision of whether to investigate; it simply
makes its own assessment of the validity of the complaint.
When the Federal Circuit reviews the MSPB's action, it is not
even indirectly reviewing the OSC, so allowing district courts
to issue writs of mandamus to the OSC would not affect the
Federal Circuit's jurisdiction.
Indeed, if district courts lacked power to issue the writ,
judicial review of OSC actions would not be available. TRAC
had recognized that mandamus might be available when "a
denial of review in the District Court will truly foreclose all
judicial review." TRAC, 750 F.2d at 78. (The government
does not argue that the actions of the OSC should be entirely
immune from judicial review.1) Here, Weber claims that the
OSC violated a statutory duty to investigate his allegations.
This is a claim that he could not make before the MSPB or
the Federal Circuit, so if the district court lacked jurisdiction,
Weber would have no way to vindicate the statutory right he
asserts.
We conclude that the district court had jurisdiction over
this action, and we therefore have jurisdiction over this
appeal.
III.
Turning to the merits, the amicus argues that even though
the Supreme Court's decision in Egan stripped the MSPB of
authority to take action on behalf of an employee whose
security clearance has been revoked, the OSC nevertheless
has a duty to undertake an investigation of Weber's com-
plaint. Such an investigation would not be futile it is argued
because under the statute the OSC is not limited to prosecut-
ing before the Board: if it determines that a prohibited
personnel practice has occurred, it must report its findings or
recommendations to "the agency involved and to the Office of
Personnel Management, and [it] may report such determina-
tion, findings, and recommendations to the President." 5
U.S.C. s 1214(b)(2)(B). Still, we believe that this grant of
authority to the OSC does not justify the issuance of a writ of
mandamus, for two reasons.
__________
1 Such an argument would not be very plausible in light of
Leedom v. Kyne, 358 U.S. 184 (1958). In Leedom, the Supreme
Court held that although NLRB orders in certification proceedings
had been understood not to be final orders subject to judicial
review, a district court had jurisdiction over a suit to "strike down"
an order made in excess of the Board's authority, because a plaintiff
otherwise would have no means of enforcing an express statutory
mandate.
First, the OSC may act--whether by proceeding before the
MSPB or by making a recommendation to the agency or the
President--only with respect to a "prohibited personnel prac-
tice." As we have noted a "prohibited personnel practice" is
a "personnel action" taken for an impermissible reason. But
"personnel action" is defined in terms of a list of actions such
as appointment, promotion, and reassignment, that does not
include the granting or denial of a security clearance. See 5
U.S.C. s 2302(a)(2). It might be thought that a security
clearance revocation could fall within the statute's catch-all
provision, which at the time of Weber's dismissal referred to
"any other significant change in duties or responsibilities that
is inconsistent with the employee's salary or grade." See 5
U.S.C. s 2302(a)(2)(x) (1993). But this reading is foreclosed
by Egan.
Admittedly, Egan did not directly address the meaning of
"personnel practice" in s 2302. It concluded that the revoca-
tion of a security clearance is not an "adverse action" that can
be reviewed by the MSPB under 5 U.S.C. s 7513. Yet it did
not reach this conclusion by parsing the language of that
statutory provision. Instead, it made the judgment that "the
protection of classified information must be committed to the
broad discretion of the agency responsible, and this must
include broad discretion to determine who may have access to
it. Certainly, it is not reasonably possible for an outside
nonexpert body to review the substance of such a judg-
ment...." Egan, 484 U.S. at 529. In other words, the
general presumption of reviewability of agency action does
not apply to security clearance decisions. The Egan rationale
obviously applies here as well and therefore a "personnel
practice," like "adverse action," does not include a decision
about a security clearance. Amicus suggests that the OSC
did not rely on this interpretation of the statute in its letter to
Weber and so we cannot base our opinion on it.2 But the
__________
2 Indeed, in another case the OSC has explicitly rejected this
reading, perhaps reflecting an understandable desire to interpret its
enforcement authority broadly. See Roach v. Department of the
OSC's view of its authority is not relevant because mandamus
is proper only when an agency has a clearly established duty
to act, and here the OSC does not.3
Mandamus is inappropriate, moreover, for a second reason.
Amicus argues that the OSC has a duty to undertake an
investigation, but because she concedes that it would be futile
for the OSC to bring Weber's case before the MSPB, the
purpose of its investigation would be limited to writing a
letter to the Army, to the Office of Personnel Management, or
to the President. The act of reporting recommendations,
however, is highly discretionary and therefore far removed
from the paradigm case for mandamus--a ministerial act that
an agency has a clear duty to perform. See Council of and
for the Blind of Delaware County Valley, Inc. v. Regan, 709
F.2d 1521, 1533 (D.C. Cir. 1983) (en banc). And there is no
reason to believe that even a favorable OSC recommenda-
tion--which would not be binding on anyone--would actually
help Weber. Mandamus is an extraordinary remedy whose
issuance is guided by equitable principles. See 13th Regional
Corp. v. United States Dep't of Interior, 654 F.2d 758, 760
(D.C. Cir. 1980). It is not to be granted in order to command
a gesture. We think it would be inappropriate to issue a writ
of mandamus to compel the OSC to make what would amount
to a purely hortatory statement.
* * * *
The judgment of the district court is
Affirmed.
__________
Army, 82 M.S.P.R. 464 (1999) (pending review in the Federal
Circuit).
3 This conclusion also disposes of Weber's constitutional claims.
Amicus contends that Weber has been deprived of liberty without
due process because he has lost his job and has been "stigmatized."
Since the OSC had no duty--and indeed no authority--to conduct
an investigation, its failure to do so could not have deprived Weber
of any legal right.