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S.Hrg. 102-748 (Subcommittee on Federal Services, Post Office, and Civil Service) (May 13, 1992)

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p. 7 p. 10 pp. 36-37 pp. 148-49

Id. at p. 7 (T. Devine):

The nonexistent working relationships explain why the Office misses the most obvious evidence to an embarrassing extent. For example, the Special Counsel ruled that an agency official had no knowledge of a whistleblowing disclosure by an employee at a Congressional hearing where the agency manager was sitting next to the whistleblower. Hopefully, he wasn't deaf.
There is the problem of settlements, where the OSC has only helped to settle 4 out of 38 cases, or attempted to. Settlements could save scarce investigative resources. Close-out letters are so incomplete they not only skip most of the evidence, they skip most of the issues in the complaint. There is no comparison of positive and negative evidence, as required by the Act, and only 1 out of 38 respondents felt the Special Counsel had obeyed this portion of the statute.

Id. at p. 10 (Senators Pryor and Levin):

SENATOR PRYOR: I was astounded at some of Senator Levin's figures he was quoting in his findings about what the Merit Systems Protection Board-how many cases were actually reversed. I believe, Carl, it was one case in fiscal year 1991 out of 170-some-odd. That is not really a message out there to whistleblowers to come forward and blow the whistle, is it?
MR. DEVINE: No, it is not. Both whistleblowers and the private bar that represents them consistently tell us that the Act is not working. It is a beautiful law on paper, but the administrative agencies charged with implementing it haven't yet accepted its premises.
SENATOR PRYOR: for the record, let me keep this in sequence. Senator Levin has just handed me this statement and I am going to repeat it so it will be at this place in the record. "Out of 196 individual right of action cases brought by whistleblowers in fiscal year 1991, the MSPB found in favor of the whistleblower and reversed the agency action only once. That was down from four reversals in fiscal year 1990." That is the end of that statement.

Id. at pp. 36-37:

SENATOR LEVIN: This is a question to Mr. Levinson, but it refers to the Office of Special Counsel's close-out letters. The Office of Special Counsel is required to send a close-out letter whenever it terminates an investigation, notifying the whistleblower of the termination of the investigation, summarizing the relevant facts, ascertaining the course of the investigation, and stating the reasons for terminating the investigation.

The Act says that the close-out letter may not be admissible as evidence in any judicial or administrative proceeding without the consent of the whistleblower. Nonetheless, it appears that a number of close-out letters are finding their way into the decisions of the Board's administrative judges. We have even been informed of one case in which the administrative judge ordered an attorney to turn over a copy of that close-out letter for inclusion in the record.

In another case, Maxwell v. Department of the Army, the complainant did a study of the dredging--well, this is a complicated case, but nonetheless, without getting into the facts of that case, the judge relied extensively on a close-out letter in concluding that a certain disclosure did not constitute whistleblowing.

Putting aside the substance now of any case, the question is--I don't want to talk about the merits of any case; I only want to talk to you about the use of [the] close-out letter. Do you agree that under the Whistleblower Protection Act it is not appropriate for the Board or its administrative judges to order the production of a close-out letter?

Mr. LEVINSON: it is not an issue that I have had occasion, so far as I know, to rule on, and in light of the prohibition on advisory opinions in our own statute, I hesitate to give opinions off the cuff on hypotheticals.
SENATOR LEVIN: Can you find out for us whether or not close-out letters have been used-and I will give you the specific case, Maxwell v. Department of the Army, and there may be other cases my staff can supply you. But I want to know, is there any doubt in the Board's mind-and can you supply us this for the record-that close-out letters are not admissible as evidence-and here I am quoting from Section 1214, "not admissible as evidence in any judicial or administrative proceeding without the consent of the person who receives such statement." I am reading from the law. Can you just tell us whether or not that is the way this has been implemented? If so, have close-out letters been used in a way inconsistent with that, and I gave you a specific case? And if so-if the law is clear in your mind and in the Board's mind, and there appears to have been a problem, would you be so kind as to address the issue in your training of your administrative judges or in your manual or in a letter, or somehow or other? Will you do that?
MR. LEVINSON: We will respond to these questions, yes. [response at p. 148 follows]
SENATOR LEVIN: OK. That will be fine.
SENATOR LEVIN: Now, Ms. Koch, do you alert whistleblowers of their procedural rights with regard to close-out letters? Do you know?
MS. KOCH: I know we are very aware of the restriction in the statute, and because of that, whistleblowers receive two letters when we close a matter. They receive the letter with the details. They receive another letter which indicates that they were at the Office of Special Counsel, had a matter looked at, and the matter is no longer under investigation. It does not give any details as to evaluation of the case at all, and that letter is intended to be something that the whistleblower can use with a greater degree of comfort to indicate that they have exercised their administrative remedy to the fullest degree.
SENATOR LEVIN: Do you think it might be helpful for you to add some boilerplate to a letter which states that the letter is not admissible in any court or administrative proceeding without the consent of the whistleblower?
MS. KOCH: We could look at that and see if that would help communicate.

Id. at pp. 148-49 (Chairman Levinson's written response):

Second, in response to Senator Levin's inquiry as to the use of the Office of Special Counsel close out letters and the Maxwell case-as indicated, the initial decision in the Maxwell case refers to the close out letter of the Office of Special Counsel. We have reviewed that case, and, although the administrative judge has no independent recollection of how the OSC letter was received, from the record, it appears that the OSC letter may have been voluntarily submitted to the Board by Mr. Maxwell as part of his appeal. In those circumstances, reference to the OSC close out letter would be permissible. Moreover, the Maxwell decision, while referring to the OSC letter, also presents an independent analysis of the whistleblowing claim.

[149] The Board and the OSC took steps early on to prevent unconsenting disclosure of OSC close out statements while, at the same time, allowing the Board to establish that an individual had exhausted OSC procedures before bringing an individual right of action claim to the Board. To this end, since implementation of the Whistleblower Protection Act, OSC has provided two separate closure letters to whistleblower claimants.

In one closure letter, OSC provides the individual with notice of the termination of the OSC investigation, information about the right to file an individual right of action appeal with the Board, and a statement of the reasons for termination of the investigation. In the other--briefer--closure letter, OSC simply notes the date the OSC terminated its investigation and provides notice of the right to file an individual right of action appeal with the Board. The OSC has recently added to the briefer letter the specific notice: "If you chose to file such an appeal, you should submit this letter to the Board as part of your appeal."

To avoid possible confusion on the use of OSC close out letters, we are calling your concern to the attention of all Board offices involved in adjudication so that everyone involved in adjudication of cases will be aware of the statutory requirements.