Joseph P. Carson v. Merit Systems Protection Board

Preface Joseph Carson, PE, a long-time career employee of the U.S. Department of Energy (DOE) has been bringing forward a whistleblower disclosure against the Senate-Confirmed members of the U.S. Merit Systems Protection Board (MSPB or Board) for over 15 years. Specifically, his whistleblower disclosure is that they have failed or refused, since the creation of MSPB in 1979, to “report to the President and to the Congress as to whether the public interest in a civil service free of prohibited personnel practices (PPPs) is being adequately protected,” per an independent clause of 5 U.S.C. §1204(a)(3). This whistleblower disclosure is undisputed, but still unresolved. Questions Whether the U.S. Merit Systems Protection Board (MSPB or Board) violated Mr. Carson’s due process rights under the Fifth and Fourteen Amendments to the U.S. Constitution by adjudicating his whistleblower reprisal appeal involving allegations against its members, rather than assigning it to a judicially independent Administrative Law Judge (ALJ), consistent with the intent of its regulation at 5 C.F.R. §1201.13 to avoid being in apparent and/or actual conflict. Whether the U.S. Court of Appeals for the Sixth Circuit, in affirming MSPB’s failure to recuse, has QUESTIONS PRESENTED – Continued properly decided an important constitutional question – what is the constitutional floor for recusal in agency adjudications? – that has not been, but should be, settled by this Court. Whether the U.S. Court of Appeals for the Sixth Circuit, in affirming MSPB’s failure to recuse, issued a decision that conflicts with this Court’s decisions in several cases, including Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437 (1927); In re Murchison, 349 U.S. 133, 75 S.Ct. 623 (1955), and others where judicial disqualification did rise to a constitutional level.