Authority to Investigate Federal Aviation Administration Employee Complaints Alleging Reprisal for Whistleblowing ( 1997 )

Authority to Investigate Federal Aviation Administration
Employee Complaints Alleging Reprisal for Whistleblowing
The O ffice o f S pecial C ounsel lacks authority to investigate com plaints brought by Federal Aviation
A d m inistration em ployees alleging reprisals against them in response to w histleblow ing activity.
September 23, 1997
M e m o r a n d u m O p in io n f o r t h e S p e c ia l C o u n s e l
U.S. O ffic e o f S p e c ia l C o u n s e l
This responds to the Deputy Special Counsel’s letter of May 20, 1997,
requesting our legal opinion on the authority of the O ffice.of Special Counsel
(“ OSC” ) to investigate complaints brought by employees of the Federal Aviation
Administration (“ FAA” ) alleging reprisals for whistleblowing.1 For the reasons
set forth below, we conclude that OSC lacks authority to investigate such com­
plaints.
I. BACKGROUND
In the 1996 Department of Transportation and Related Agencies Appropriations
Act, Congress directed the FAA to establish a “ personnel management system
to address the unique demands o f the agency’s work force.” Department of
Transportation and Related Agencies Appropriations Act for Fiscal Year 1996,
Pub. L. No. 104—50, §347, 109 Stat. 436, 460 (1995), as amended by Pub. L.
No. 104-122, 110 Stat. 876 (1996), reprinted in 49 U.S.C.A. § L06 note (West
1997) ( “ DOT Appropriations A ct” or “ Act” ).2 Section 347(b) of the Act pro­
vides that title 5 of the United States Code is inapplicable to FAA personnel mat­
ters, with certain enumerated exceptions:
(b) The provisions of title 5, United States Code, shall not apply
to the new personnel management system developed and imple­
mented pursuant to subsection (a), with the exception o f —
1 Letter for Dawn E. Johnseti, Acting Assistant Attorney General, Office of Legal Counsel, from James A. Kahl,
Deputy Special Counsel, U S. O ffice of Special Counsel (May 20, 1997) ( “ OSC Letter” ). This letter enclosed an
undated memorandum from the FAA, together with supporting documentation, setting forth the FAA’s position on
the issue.
2 Section 347 o f the Act provides in part
(a) In consultation with the employees o f the Federal Aviation Administration and such non-governmental
experts in personnel management systems as he may employ, and notwithstanding the provisions o f title
5, United States Code, and other Federal personnel laws, the Administrator of the Federal Aviation
Administration shall develop and implement, not later than January I, 1996, a personnel management
system for the Federal Aviation Administration that addresses the unique demands on the agency’s
w orkforce
109 Stat at 460 (emphasis added)
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(1) section 2302(b), relating to whistleblower protection',
(2) sections 3308-3320, relating to veterans’ preference;
(3) chapter 71, relating to labor-management relations;
(4) section 7204, relating to antidiscrimination;
(5) chapter 73, relating to suitability, security, and conduct;
(6) chapter 81, relating to compensation for work injury; and
(7) chapters 83-85, 87, and 89, relating to retirement,
unemployment compensation, and insurance coverage.
109 Stat. at 460 (emphasis added).
Section 2302(b) of title 5 lists eleven prohibited personnel practices, but section
347(b) of the DOT Appropriations Act adopts for the FAA personnel management
system only those “ relating to whistleblower protection,” which are found in sub­
section (8) of § 2302(b). That subsection prohibits federal government supervisors
from taking retaliatory personnel actions against employees who disclose agency
legal violations, gross mismanagement or waste of funds, abuses of authority, or
substantial and specific dangers to public health or safety. 5 U.S.C. § 2302(b)(8)
(1994).3 Disclosures covered under this provision include not only public disclo­
sures, but also disclosures “ to the Special Counsel, or to the Inspector General
of an agency or another employee designated by the head of the agency to receive
such disclosures.” Id. § 2302(b)(8)(B).
Normally, when federal employees allege that they have been subject to a
prohibited personnel practice, including violations of the whistleblower provisions
of § 2302(b)(8), OSC has authority to receive and investigate such allegations.
See 5 U.S.C. § 1214 (1994). If the Special Counsel finds reasonable grounds to
believe that a violation has occurred and corrective action is required, the Special
Counsel must report the determination to the Merit Systems Protection Board
(“ MSPB” ), the affected agency, and the Office of Personnel Management. Id.§ 1214(b)(2)(B). If the agency fails to act to correct the prohibited personnel prac­
tice, the Special Counsel may petition the MSPB for corrective action. Id.
§ 1214(b)(2)(C). Because these procedures are set forth in parts of title 5 other
than the provisions specifically adopted for the FAA in section 347(b) of the DOT
Appropriations Act, the question posed by OSC is whether these procedures are
3 Specifically, subsection 2302(b)(8) provides (hat federal govemmeni supervisors shall not, with respect to their
authonty over personnel actions,
(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee
or applicant for employment because o f—
(A) any disclosure o f information by an employee or applicant which the employee or applicant
reasonably believes evidences — (1) a violation of any law, rule, or regulation, or ( 11) gross mis­
management, a gross waste o f funds, an abuse o f authority, or a substantial and specific danger
to public health or safety, — if such disclosure is not specifically prohibited by law and if such
information is not specifically required by Executive order to be kept secret in the interest of national
defense or the conduct of foreign affairs, .
5 U S C. § 2302(b)(8) The subsection also prohibits the same forms o f retaliation in response to the same kinds
of disclosures “ to the Special Counsel, or to the Inspector General of an agency or another employee designated
by the head o f the agency to receive such disclosures.” Id. § 2302(b)(8)(B)
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nonetheless included in the Act’s application of the § 2302(b) whistleblower
protections to FAA employees.
OSC contends that “ the ‘whistleblower protection’ that Congress mandated be
preserved for FAA employees is, and always has been, inseparable from OSC’s
investigatory and enforcement functions,” OSC Letter at 5, and therefore that sec­
tion 347(b)’s incorporation of the whistleblower-protection provisions of 5 U.S.C.
§ 2302(b) should be construed to include OSC’s investigative and enforcement
provisions. The FAA, in contrast, asserts that the Act makes applicable to the
FAA the substantive protection from whistleblower reprisals, but does not incor­
porate OSC enforcement procedures or MSPB review. Therefore, the FAA claims,
complaints based on alleged reprisal for whistleblowing, like other personnel dis­
putes raised by FAA employees, should be handled under the mechanisms of the
newly authorized FAA personnel management system.
II. ANALYSIS
A.
Congress specified in the DOT Appropriations Act that the FAA should develop
a new personnel management system “ notwithstanding the provisions of title 5,
United States Code, and other Federal personnel laws.” DOT Appropriations Act
§ 347(a). It repeated that “ [t]he provisions of title 5, United States Code, shall
not apply to the new personnel management system” when it listed seven specific
exceptions from the withdrawal of title 5 coverage. Id. § 347(b). Thus, Congress
was clear that title 5 would not apply to the FAA unless it provided otherwise.
We have proceeded to consider, therefore, whether Congress provided for applica­
tion to the FAA of the title 5 OSC procedures normally followed in whistleblower
cases, by addressing two possibilities: (1) that the text of 5 U.S.C. § 2302(b)(8)
itself sufficiently incorporates the OSC procedures; or (2) that the OSC procedures
are such an essential element of the whistleblower protections of § 2302(b) that
Congress must have implicitly included them in the provision extending sub­
stantive whistleblower protections to FAA employees.
B.
There is only one explicit reference to OSC in the provisions that are made
applicable to the FAA under 5 U.S.C. § 2302(b). Generally, § 2302(b) defines
prohibited personnel practices but does not prescribe the mechanisms for inves­
tigation and enforcement, which, for whistleblower protections, are provided in
chapter 12 of title 5. See 5 U.S.C. §§1201-1222 (1994 & West Supp. 1997).
Subsection 2302(b)(8), however, defines protected “ whistleblowing” to include
disclosures made “ to the Special Counsel” as well as to agency Inspectors Gen­
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eral or to other agency employees authorized to receive such disclosures. Id.§ 2302(b)(8)(B). Although OSC does not rely on this reference in its submission,
we have nonetheless considered whether it somehow incorporates the OSC proce­
dures as part of the substantive protection extended to FAA employees by section
347(b).
The reference to disclosures to the Special Counsel, as well as to Inspectors
General and to authorized agency officials, merely reflects Congress’s efforts to
define expansively the universe of persons to whom protected disclosures may
be made without fear of retaliation. It does not independently authorize the inves­
tigative and enforcement powers that the referenced officials possess. Instead,
those powers are authorized separately in chapter 12 of title 5. Thus, we do not
believe that § 2302(b)(8)(B)’s reference to disclosures to the Special Counsel can,
by itself, be construed to mean that Congress applied to the FAA the panoply
of OSC investigative and enforcement provisions authorized under separate provi­
sions of title 5 when it retained § 2302(b)(8) as part of the FAA personnel manage­
ment system.
C.
OSC does contend, however, that § 2302(b)(8) is not self-executing and that
the whistleblower protections extended by the Act to FAA employees necessarily
include the OSC procedures. This contention is based on OSC’s view that Con­
gress gave it a special role in the protection of whistleblowers, so that those
protections are rendered ineffectual unless OSC has jurisdiction over their claims
of reprisal.
In making this argument, OSC invokes the legislative histories of both the Civil
Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (“ CSRA” ) and
the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16(“ WPA” ).4 The CSRA established whistleblower reprisals as one of the eleven
prohibited personnel practices of § 2302(b), and authorized the MSPB and its Spe­
cial Counsel (the Special Counsel was attached to the MSPB under the original
CSRA) to enforce that protection. See S. Rep. No. 95-969, at 8 (1978), reprinted
in 1978 U.S.C.C.A.N. at 2730. The Senate Report explained the role originally
contemplated for the Special Counsel in whistleblowing cases:
For the first time, and by statute, the Federal Government is given
the mandate — through the Special Counsel of the Merit Systems
d With respcct to the DOT Appropriations Act itself. OSC has not identified (and we have not found) legislative
history providing evidence that Congress intended the OSC investigative and enforcement authonty aulhonzed under
chapter 12 of title 5 to apply to claims o f whistleblower retaliation by FAA employees The Conference Report
on Pub L No 104—50. tor example, is not instructive on the issue See H R Conf Rep No 104-286. at 76
(1995) (descnbing the Conference amendment to the FAA personnel management provision of section 347 by merely
stating that it “ [rjctainfed], with amendment, language in the Senate bill requinng development of a new personnel
management system for the Federal Aviation Administration.” ).
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Protection Board — to protect whistle blowers from improper
reprisals. The Special Counsel may petition the Merit Board to sus­
pend retaliatory actions against whistle blowers. Disciplinary action
against violators of whistle blowers’ rights also may be initiated
by the Special Counsel.
Id.
The WPA was subsequently enacted in response to perceived conflicts between
the Special Counsel’s duty to protect the rights of employees and its role in pro­
tecting the civil service merit system. See 135 Cong. Rec. 5034 (1989) (Joint
Explanatory Statement on S. 508). In resolving this conflict, the WPA established
the Office of Special Counsel “ as a separate, distinct, and independent entity.”
Id. at 5032 (statement of Rep. Sikorski). The WPA also established that “ the
primary role of the Office of Special Counsel is to protect employees, especially
whistleblowers, from prohibited personnel practices,” and that “ the protection of
individuals who are the subject of prohibited personnel practices remains the
[OSC’s] paramount consideration.” WPA § 2(b)(2)(A)-(C), 135 Cong. Rec. at
5026. As further explained in a Joint Explanatory Statement inserted in the record
of the House debate on the WPA:
Simply put, the Special Counsel must never act to the detriment
of employees who seek the help of the Special Counsel. Unless
employees have the assurance that the Office of Special Counsel
is a safe haven, the Office can never be effective in protecting vic­
tims of prohibited personnel practices.
135 Cong. Rec. at 5034 (Joint Explanatory Statement on S. 508).
This legislative history, OSC contends, establishes that the protection and the
procedures incorporated in the CSRA and the WPA must go hand in hand. OSC
further emphasizes that, when Congress passed the WPA, it limited OSC’s
authority to release information about whistleblowers to their employing agencies,
and thus “ reaffirmed that a key element of whistleblower protection for federal
employees is an independent agency that ensures that information discovered
during an investigation is not put to use by the agency against the employee.”
OSC Letter at 3—4.
We do not dispute the validity of OSC’s assertions that Congress generally
believed that the whistleblower protections provided under title 5 should be
enforced by OSC. We are not persuaded, however, that the legislative history
on which OSC relies demonstrates, as OSC contends, that Congress believed that
whistleblower protections are inherently meaningless unless an independent entity
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such as OSC enforces them.5 Although the passages reveal a congressional pref­
erence for independent enforcement as a general matter, and concern about agency
retaliation, those preferences and concerns must be considered in light of the later
enacted provisions of section 347 of the DOT Appropriations Act. Congressional
intent in passing that statute, rather than in passing the CSRA or the WPA, is
most critical in resolving the issue presented here.
The predominant congressional purpose of section 347 of the DOT Appropria­
tions Act was to address the unique personnel needs of the FAA with a suitably
modified personnel management system, outside the purview o f title 5. Pub. L.
No. 104—50, § 347, 109 Stat. at 460. Notwithstanding the significance of the role
OSC plays in enforcing the whistleblower-protection provisions and other govern­
ment personnel laws, OSC’s investigative and enforcement authority is part and
parcel of the government personnel regulatory structure embodied in title 5, which
Congress rejected for the FAA. Considering the objectives of the 1996 FAA per­
sonnel management reform legislation, it does not seem anomalous that Congress
would allow the FAA to deal with alleged prohibited personnel practices,
including whistleblower-reprisal matters, under the FAA’s new internal grievance
or administrative procedures.
D.
Our approach to this question is guided by basic canons of statutory construc­
tion. Although the interpretive canon “ expressio unius est exclusio alterius ”
should be applied with caution, we believe it applies here with some force. As
the Supreme Court has observed, “ [wjhere Congress explicitly enumerates certain
exceptions to a general prohibition, additional exceptions are not to be implied,
in the absence of evidence of a contrary legislative intent.” Andrus v. G lover
Constr. Co., 446 U.S. 608, 616-17 (1980).
In section 347(b), Congress “ enumerate[d] certain exceptions” to its general
mandate that the provisions of title 5 would not apply to FAA personnel matters.
In the case of whistleblower reprisal, Congress listed only the substantive prohibi­
tion among the excepted provisions, but did not list the separate provisions of
title 5 providing for OSC and MSPB enforcement jurisdiction over such matters.
This selective incorporation of only the substantive whistleblower provisions
appears to be the very kind of explicit enumeration that forecloses the inference
that additional exceptions were intended under the expressio unius canon applied
in G lover Construction and similar authorities.
Nor does it appear that the limited incorporation of only the substantive whistle­
blower protection provision was merely inadvertent. In contrast to the whistle­
blower provision, other provisions of title 5 retained for the new FAA system
5 As we note below, for example, Congress has enacted numerous whistleblower protection laws for the employees
of federally regulated or quasi-govemmental financial institutions and those laws do not involve enforcement by
an independent investigative agency such as OSC See note 9, infra
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under section 347(b) were broadly drawn to incorporate not only discrete sub­
stantive measures but entire regulatory and enforcement schemes.6 Thus, close
examination of section 347(b) reveals that Congress listed the portions of title
5 that were to apply to the FAA’s personnel management system with deliberate
selectivity. Congress could have readily incorporated OSC’s whistleblower
enforcement procedures as part o f the new FAA system in the same manner that
it incorporated other enforcement and regulatory schemes in the explicit language
of section 347(b). Its failure to do so is difficult to reconcile with the view that
Congress intended to apply those procedures to the FAA.
Generally, when Congress incorporates a specific statutory subsection by ref­
erence in subsequent legislation, it intends to have accomplished no more than
what is afforded by that subsection. See, e.g., Sperling v. Hoffmann-La Roche,
Inc., 24 F.3d 463, 469-70 (3d Cir. 1994) (where Congress was precise in selecting
the portions of other acts “ selectively incorporated]” into the Age Discrimination
in Employment Act, only the subsections specifically named in the statute were
incorporated).7
Moreover, when Congress intends to exempt entities generally from title 5 but
to apply not only the substantive whistleblower protections but also all the
ancillary enforcement procedures set forth in chapter 12 (see 5 U.S.C. §§ 1201—
1219), it has demonstrated that it knows how to do so unambiguously. Thus, when
Congress applied only selected provisions of title 5 to the Panama Canal Commis­
sion, it provided for application o f the whistleblower protection provisions as fol­
lows: “ Section 2302(b)(8) (relating to whistleblower protection) and all provisions
o f Title 5 relating to the administration o r enforcement or any other aspect
thereof, as identified in regulations prescribed by the Commission in consultation
with the Office of Personnel Management.” 22 U.S.C.A. §3664(3) (West Supp.
1997) (emphasis added). Similarly, when Congress excluded the Federal Bureau
of Investigation from the general regulation of federal agency personnel practices,
see 5 U.S.C.A. § 2302(a)(2)(C)(ii) (West Supp. 1997), it prohibited whistleblower
reprisals and specified that “ [t]he President shall provide for the enforcement of
this section in a manner consistent with applicable provisions of sections 1214
6 Among the provisions explicitly applied to the FAA under section 347(b), for example, chapter 73 of title 5
incorporates an entire program o f penalties and procedures governing employee “ suitability, security, and conduct “
It includes specific procedures and rulemaking authonty for dealing with employee violations of the illegal gift
rules, 5 U S C § 7 3 5 l(b )-(c ) (1994), and provtsion for the MSPB to impose or mitigate penalties for illegal political
activities by federal employees, id. §7326 Similarly, chapter 81 o f title 5 encompasses the comprehensive regulatory
and procedural scheme for w orker’s compensation in federal employment, including the procedures for asserting,
evaluating, and resolving a claim See 5 U S C. §§8119-8128 (1994) Chapter 84 of title 5 incorporates not only
the substance o f the Federal Em ployees’ Retirement System, but also the provisions for the presentation and adjudica­
tion o f claims ansing under that system See 5 U S C A. §§8461-8467 (West 1996) The broad incorporation of
these provisions stands in conspicuous contrast to section 347(b)’s narrow reference to the whisleblower protection
provision o f § 2302(b) only, with no reference to the enforcement provisions of chapter 12.
7 Conversely, when Congress cites to a general provision o f a statute, it is error to presume that the reach of
the reference is confined to a specific subsection See E.I. du Pont de Nemours & Co v Train, 430 U S 112,
136 (1977) ( “ [l]n other portions o f §509 [of the Federal W ater Pollution Control ActJ, Congress referred to specific
subsections o f the Act and presumably would have specifically mentioned § 301(c) if only action pursuant to that
subscction were intended to be reviewable m the court of appeals ” )
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and 1221 of this title [i.e., the OSC and MSPB enforcement provisions].” 5 U.S.C.
§ 2303(c) (1994).
The absence of any similar reference to the whistleblower protection enforce­
ment provisions of title 5 in section 347(b)(1) of the DOT Appropriations Act
supports our conclusion that Congress did not intend those provisions to apply
to the FAA. Cf. Badaracco v. Commissioner, 464 U.S. 386, 395 (1984) (when
Congress intends to accomplish a precise statutory end, “ it knows how unambig­
uously to accomplish that result” ); Middlesex County Sewerage Auth. v. National
Sea Clammers A ss’n, 453 U.S. 1, 15 (1981) (“ [i]n the absence of strong indicia
of a contrary congressional intent, we are compelled to conclude that Congress
provided precisely the remedies it considered appropriate” ); Lannom Mfg. Co.
v. United States Int'l Trade Com m ’n, 799 F.2d 1572, 1580 (Fed. Cir. 1986)
( “ when Congress intends to grant a right of action, it does so clearly and unambig­
uously” ).8
E.
Finally, we do not find that FAA employees are deprived of meaningful protec­
tion against whistleblower reprisals under the FAA’s new personnel management
system. That system fully incorporates the provisions of 5 U.S.C. § 2302(b)(8)
as a prohibited personnel practice. See Federal Aviation Administration Personnel
Management System, Para. VIII((a)(vi) p. v (1996) (“ FAAPMS” ). An FAA
employee who suffers a significant adverse personnel action (e.g., a suspension
of over 14 days, reductions in pay or grade, and removal or reduction-in-force
actions) that he or she believes is motivated by whistleblower reprisal can there­
fore invoke the provisions of section 2302(b)(8) under the FAA Appeals Proce­
dure.
That procedure guarantees the aggrieved employee an evidentiary hearing before
a panel of three arbitrators. FAAPMS Ch. III.5.9 If the employee fails to obtain
satisfactory relief under these procedures, judicial review is available. The FAA
8 A number of other federal statutes apply various forms o f whistleblower protection to the employees of govern­
ment contractors and the employees of federally established or regulated financial institutions See 10 U S C § 2409
(1994) (Department o f Defense contractors’ employees), 12 U S C § I441a(q) (1994) (Resolution Trust Corporation
employees), 12 U S .C § 1790b (1994) (federally-insured credit union employees), 12 U S C § 18 3 lj(a) (1994)
(employees o f federal banking agencies), 31 U .S C §5328 (1994) (non-depository financial institutions); and 41
U S C § 265(b) (1994) (government contractors’ employees) These statutes all specify a particular mode of enforce­
ment, i . e , investigations by agency Inspectors General followed by agency- or court-ordered remedies in the case
o f government contractor employees, see, e.g., 10 U S C § 2409(c), and direct enforcement by employee civil actions
in U S district court in the case o f the financial institution employees, see, e g , 12 U S C § 1790b(b) These statutes
further reinforce our view that Congress specifies the whistleblower enforcement remedies it intends to enact, rather
than implying them
9 The arbitration panels for the FAA Appeals Procedure are composed of one neutral arbitrator, one “ partisan”
selected by the appellant-employee from within the FAA, and one “ partisan” selected by an FAA official from
(he area within the FAA where the appeal was generated FAAPMS Ch. 1115(e) A “ partisan” means an FAA
employee who is knowledgeable o f the working condiuons, environment, and practices of the work area where
the appeal was filed, the partisan selected by management cannot be the proposing official or the deciding official
Id Ch 111 5(c)(u).
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Appeals Procedure expressly provides that decisions of the panel shall be issued
as final orders of the FAA Administrator under 49 U.S.C. §46110 (1994), which
are subject to judicial review upon petition to the U.S. Court of Appeals. FAAPMS
Ch. III.5(m). Additionally, when alleged whistleblower reprisal does not involve
a significant adverse action that is subject to the FAA Appeals Procedure, the
aggrieved FAA employee may pursue his charges under the FAA Grievance
Procedure. Id. Ch. III.4.
We acknowledge, as OSC points out, that these procedures are not coextensive
with those provided by OSC under title 5 — particularly in the absence of a neutral
enforcement body like OSC to investigate alleged violations — but they nonethe­
less provide a reasonable mechanism to enforce the provisions of the whistle­
blower reprisal statute on behalf o f FAA employees.10 For example, OSC empha­
sizes that, unlike the specific standards o f proof governing employee claims of
whistleblower reprisal governed by the provisions of 5 U.S.C. §1214, the
applicable FAA appeals and grievance procedures provide no guidance for estab­
lishing the burden of proof that must be satisfied when such claims are asserted
by FAA employees. OSC Letter at 5. Although specific rules governing the
standard o f proof may be desirable, the absence of such rules does not render
the FAA procedures incapable of providing a reasonable means for enforcement
of the whistleblower protection statute.11 Rather, the more flexible hearing proce­
dures adopted by the FAA are consistent with Congress’s intent to allow it to
develop a personnel management system outside the purview of title 5 “ that
addresses the unique demands on the agency’s workforce.” DOT Appropriations
Act § 347(a).
Whatever shortcomings may be discerned in the FAA’s current procedures for
implementing the whistleblower protection law, they do not demonstrate that OSC
enforcement under the procedures of title 5 is so indispensable to the whistle­
blower protection law that Congress could not have intended any other mechanism
to apply under the FAA personnel management system. Rather, while section 347
of the Act provides the FAA with sufficient authority to implement the
whisteblower protection law effectively, it does not guarantee perfect implementa­
1(1W e also acknowledge O SC ’s point that FAA probationary employees apparently do not have access to the
current FAA Appeals and Grievance Procedures because they are not covered “ employees” under those procedures
See FAAPMS Chs. Ill 4(d)(ii) and Iff 5(c)(m) Probationary employees aggrieved by unlawful reprisal action, how­
ever, could still make use o f whatever formal o r informal mechanisms are provided by the FAA for complaints
by probationary employees, or lodge charges against the responsible supervisors with DOT’s Inspector General
In any event, this gap in the coverage of FA A ’s grievance and appeals procedures does not establish that OSC
enforcement procedures arc so essential to whistleblower protection that Congress must have intended for them
to apply to the FAA when it enacted section 347 o f the DOT Appropriations Act, it merely demonstrates a possible
deficiency in the FA A ’s implementation of the whistleblower protection provisions made applicable to it by that
Act
11 We do not understand OSC to contend, nor do we believe, that the absence of specific provisions for allocating
the burden o f proof in the FA A ’s internal appeal and grievance procedures is a matter of constitutional concern
The Supreme Court has repeatedly stated that “ |o|utside the criminal law area, where special concerns attend, the
locus o f the burden of persuasion is normally not an issue o f federal constitutional moment ” Concrete Pipe and
Prods, o f Cat.. Inc v. Construction Laborers Pension Trust fo r Southern C a l, 508 U S 602, 626 (1993) (quoting
Lav m e v M ilne, 424 U S 577, 585 (1976)).
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tion by the agency. Although the alleged deficiencies in the FAA’s procedures
raised by OSC may provide grounds for further assessment of those procedures,
they do not provide persuasive evidence that Congress intended OSC enforcement
procedures to apply to the FAA in whisteblower reprisal cases.
Conclusion
A reasonable argument can be made that FAA employees would benefit from
the protections of various provisions of title 5 that, like the OSC/MSPB enforce­
ment provisions of 5 U.S.C. § 1214, were not incorporated in the new FAA per­
sonnel management system through section 347(b) of the Act. That choice, how­
ever, was for Congress to make in enacting the law, not for those who are required
to interpret and apply what Congress enacted. Congress incorporated only selected
provisions of title 5 into the FAA personnel management system, and the inves­
tigative and enforcement authorities of OSC were not among them.12 Accordingly,
we conclude that OSC is without statutory authority to investigate or otherwise
pursue alleged violations of 5 U.S.C. § 2302(b)(8) asserted by FAA employees.
RICHARD L. SHIFFRIN
Deputy Assistant Attorney General
Office o f Legal Counsel
12 O ur conclusion is consistent with a decision issued by an Administrative Law Judge “ (A U )” o f the MSPB
regarding another provision o f title 5 — MSPB’s jurisdiction over employee appeals under subchapter II o f ch. 75 —
invoked by an FAA employee challenging his removal from his position o f employment. Allen v. D epartment o f
Transp.t No. C H -0 7 5 2 -9 7 -0 0 2 6 -1 -1 (MSPB Central Regional Field Office, 1996) ( “ Initial Decision” ), petition fo r
review pending, No. 97-3163 (Fed. Cir. 1997). The A U ruled that, under the new FAA personnel management
system enacted by Pub. L. No. 104-50, the MSPB no longer had jurisdiction over such appeals. As the A U observed:
Chapter 75 o f Title 5, which provides for a right o f appeal to the Board from adverse actions to those
w ho meet the definition o f employee, is not listed as one o f the provisions of Title 5 which remain
applicable to the FAA personnel management system.
Initial Decision at 2.
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