UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


WEBER, CALVIN J.

v.

UNITED STATES


99-5087a

D.C. Cir. 2000


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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




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n 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 




__________

n 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


* * * *


The judgment of the district court is


Affirmed.




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n 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.