The Whistleblower Who Won’t Go Away

One person’s whistleblower can be another’s pest.

Testing that proposition for the past quarter-century has been Joe Carson, an Energy Department nuclear safety engineer whose complaints about workplace health risks over the years morphed into complaints about management reprisals against him and, more broadly, charges that the government’s entire whistleblower adjudication infrastructure has fallen down on the job.

Carson, a GS-14 who works at Energy’s Oak Ridge, Tenn., facility with a high security clearance, has worked mostly without a lawyer to prevail—in relief and attorney’s fees, if not always on the merits—in no fewer than eight decisions by the Merit Systems Protection Board.

He has written thousands of letters delving into the nooks and crannies of government operations, copies of which sit in rows of banker’s boxes in his garage in Knoxville.

The White House has been the recipient of 10 of his letters of complaint since 2009, including an unsuccessful Freedom of Information Act request with the Office of Special Counsel seeking to learn why the agency wasn’t taking his case on prohibited personnel practices. And his whistleblower reprisal case against what he regards as the MSPB’s inaction to protect whistleblowers began in 2007, ballooned to five appeals in three different courts, and is still pending in the Federal Circuit Court of Appeals.

“I do credible work, have a spotless record and get paid bonuses, but I am concerned about safety at the Energy Department,” Carson told Government Executive. “There are many would-be whistleblowers who can’t get an answer. Maybe I’m wrong, but if I can’t get an answer, it becomes an issue.”

Carson’s initiation into whistleblowing began in 1991 after a supervisor threw his safety inspection reports on dangerous materials and procedures in the trash. He began to see the Energy Department as a “corrupt” entity that “won’t give me a chance to make my case.” Thousands of people have been sick on the job, he says.

 The Energy Department confirmed Carson’s employment but declined further comment.

Carson keeps making what he acknowledges is a “novel” legal argument using the Whistleblower Protection Act. He maintains that the government’s position regarding his disclosures is one of omission rather than commission. He has three basic complaints: 1) that his department is “clueless” about whether whistleblowers are protected against reprisal; 2) that the Office of Special Counsel won’t act as a prosecutor and bring cases on his type of prohibited personnel practices; and 3) that the Merit Systems Protection Board allows this by not performing reactive special studies. Regarding the latter point, for example, if there is a major accident involving an agency, Carson contends MSPB should conduct a study to determine whether whistleblowers who might have given advance warning of the danger declined to come forward for fear of reprisal.

In Carson’s Nov. 18 letter to White House Counsel Neil Eggleston, he wrote, “The president has the power—and I argue the responsibility—to direct MSPB and OSC to acquiesce in seeking a judicial review of these important, untested, questions of civil service law. I do not seek a single cent in this matter—only the ability to do my duties as [an engineer] to protect others’ health and safety in DOE and to tell other [engineers] in the federal civil service they can do their positive legal duty to protect public (including workplace) health and safety in their professional duty without experiencing what I have for too many years.”

Carson recently broadened his tactics to seek allies in the national security whistleblower apparatus even though his own work at Energy is not related. He did this in part by demanding that Special Counsel Carolyn Lerner refer his whistleblower disclosure to the Office of the Director of National Intelligence.

“I put it all on the line—my [professional engineer] license, my federal job and benefits, my professional reputation—in making the following public claims,” Carson wrote to Dan Meyer, the executive director for intelligence community whistleblowing, while submitting disclosures on the office hotline. Carson called the Office of Special Counsel “a decades-long, law-breaking, fraud” and the MSPB the “OSC’s decades-long, law-breaking enabler.”

Warning of a collapse of “civilization,” he then blasted his onetime allies in the “so-called good government/watchdog groups,” mentioning the Government Accountability Project, the Project on Government Oversight, the National Whistleblower Center, and Public Employees for Environmental Responsibility. Such groups “cast a blind eye at this law-breaking, because it advances their business models when foolhardy federal employees such as I put our honor and duty before our self-interest and this OSC/MSPB law-breaking ensures a steady stream of such individuals,” he wrote.

The intelligence community inspector general’s office this month told Carson it would take no action, other than to refer his complaint to the Council of the Inspectors General on Integrity and Efficiency.

No Comment

Not surprisingly, most agencies attacked by Carson—they know him well—decline comment except indirectly or generally. The White House did not respond to Government Executive’s query. The Office of Special Counsel would say nothing for publication. MSBP spokesman William Spencer said, “This involves an individual with pending litigation involving MSPB, and it is MSPB policy to not comment on any litigation matters.”

Andrea Williams, public affairs officer for the intelligence community inspector general, said, “While we can’t comment about any specific inquiries at this time, I can say that we encourage individuals who want to disclose wrongdoing—classified or unclassified and touching upon the National Intelligence Program—to make those protected disclosures through the IC IG.”

At the Project on Government Oversight, whistleblower specialist Elizabeth Hempowicz also declined to address Carson’s case specifically.

Jeff Ruch, executive director of PEER, said his group “at one time represented Mr. Carson but had to withdraw after a very short period for reasons that I am not at liberty to discuss.” Carson’s notion that PEER’s business model prevented it from working with him makes no sense, he added, because PEER agreed to take him on.

The one legal group that warmed up to Carson is the Government Accountability Project. “I know Joe very well,” said GAP legal director Tom Devine. “GAP has represented him without charge, and is responsible for some of his early legal success. I also have advocated some of his proposals, and declined on others. He personifies Eric Hoffer's "True Believer," portraying me as divine when I agree with him and the devil when I don't.”

But Devine finds Carson’s criticisms of GAP “hard to swallow” given that Carson earns far more money than the nonprofit’s staff. “At this point, he has burned his bridges with almost all institutions, coalitions and [nongovernmental organizations] in the whistleblower rights community,” Devine said, “because he attacks as evil anyone who disagrees with him.”

Carson told Government Executive, “I don't need to hire an attorney to protect me because OSC actually follows the law in doing so, on the government's nickel.”

‘A Professional Duty’

Joe Carson, 61, grew up in Brooklyn and earned a mechanical engineering degree at the University of Rochester. Through an ROTC scholarship, he spent six years in the Navy on nuclear submarines, having been selected by the legendary Adm. Hyman Rickover. Beginning in 1982, he worked in the private sector at several nuclear energy plants, joining (and remaining active) in several professional societies. He joined the Energy Department in 1990.

“My saga as a concerned DOE employee stared in late 1991, when I voiced concerned about my DOE program's heavy use of highly paid consultants as "staff augmentation,” he said. “I perceived my supervisor was treating agency employees as second-class citizens and that his agenda was to maximize the amount of money he could spend on his clique of consultants.”

In reprisal, according to Carson, his performance ratings immediately dropped from outstanding to unacceptable: “Because I am a safety inspector, he threw all my safety reports into a garbage can.” Carson said his reports outlined a variety of serious workplace safety deficiencies in DOE's Oak Ridge facilities. “I think [the supervisor’s] actions contributed to one or more subsequent workplace fatalities in DOE,” he added, noting that Energy opted to self-regulate for workplace safety rather than use the Occupational Safety and Health Administration’s regime.

Carson is careful to stress that the safety culture at Energy has improved since the 1990s and is now probably safer than the private sector. “The culture changed, but it is dark and dangerous, and the process is odd,” he said, citing statements and publicity campaigns for safety from Energy Secretary Ernest Moniz. “They lie and promise things in memos that they have no authority to [implement],” he said.

So the father of three said he takes time away from his wife and children because “I have a professional duty to blow the whistle regardless of possible workplace retribution.” Like a medical doctor or a police officer, he sees his license as coming with an obligation act in the face of danger. 

“All the OSC and MSPB have to do is request that the Office of Legal Counsel of the Department of Justice review the contested civil service laws and issue its opinion as to how they are to be interpreted,” he said. “If OLC opines that how OSC and MSPB are interpreting the laws is acceptable, then I'll accept it and move on.”

But when he loses a round to the agencies, he claims it’s not because of the merits, but due to “some other reason they find to dismiss my evidence.”

Does he feel any guilt about the amount of time government officials have spent on his multiple complaints? Carson said, “It would be wrong to abuse the courts if you don’t have a case. I wouldn’t be doing this if there were not something there. “