OSC questions agencies’ findings from a pair of whistleblower investigations

Special Counsel Hampton Dellinger on Tuesday notified the president that he did not consider findings by federal agencies in two separate whistleblower-initiated investigations to be reasonable, prompting greater scrutiny of Customs and Border Protection’s air rescue operations along the southern border and the Federal Aviation Administration’s oversight of plane landings at Detroit's airport.  

CBP  

The Office of Special Counsel in 2020 referred to the Homeland Security Department a whistleblower disclosure from an agent who alleged CBP officials who oversee an air unit in Deming, N.M., in at least five instances prevented the unit from responding to emergency calls — contributing to four deaths, including of one CBP agent. 

While a 2021 CBP investigation did substantiate the whistleblower’s accusations that an agent flew a helicopter into restricted airspace during an unapproved change of mission and the agent’s subordinate was assigned to conduct an inquiry into the incident, it did not find evidence to support the allegation regarding officials blocking the air unit from responding to emergencies. 

Even though CBP completed two supplemental reports, the most recent of which was submitted on Aug. 1, 2024, OSC is asking the agency to explain documents and statements that it says contradict its finding that senior officials never ordered command duty officers to deny the air unit’s requests to provide support. 

“I am concerned with the agency’s findings. Despite evidence to the contrary, the agency’s findings maintain that each denial of [the air unit’s] requests to launch was a decision by the assigned CDO alone,” Dellinger said in a statement. “I do not think the agency’s conclusion is reasonable.”

FAA 

A now-retired air traffic controller alleged that officials at Detroit Metropolitan Airport continue to use an air traffic procedure that has previously been paused due to safety concerns but that can maximize flight capacity. 

While FAA’s ensuing investigation of the matter didn’t substantiate the accusation, partly because of a safety review of the procedure and education campaign for controllers and pilots about it, OSC on Dec. 3 said agency reports show officials are still using the procedure at the airport and that they aren’t performing mitigations to reduce safety risks. 

Similarly, OSC in 2020 disagreed with FAA’s determination — in response to a similar complaint from the same whistleblower — that safeguards were in place concerning the procedure. 

“The [procedure] at issue may create a danger for landing aircraft and the flying public. I have determined that the agency’s findings once again do not appear reasonable,” Dellinger said in a statement. “I urge the FAA to further review the safety issues associated with this [procedure]...and take steps necessary to resolve them.”

In addition to the president, Delligner sent his findings and related information regarding the FAA investigation to the chairs and ranking members of the Senate Commerce, Science and Transportation and House Transportation and Infrastructure committees. For the CBP investigation, reports were also sent to the top Democrats and Republicans on the Senate Homeland Security and Governmental Affairs and House Homeland Security committees. 

As both matters are now closed, congressional leaders could decide to pursue additional investigations or take other oversight actions.