Whistleblower Carson awarded consequential damages

April 1, 2001 From: Joe Carson, P.E., "seven-time prevailing" whistleblower and safety engineer in the Department of Energy (DOE) Subject: Statement about Judge Miller's Initial Decision for my "consequential damages" and DOE's continuing bad-faith representations about "zero tolerance for reprisal." Over a year ago, DOE line management and I agreed on a tentative settlement to resolve me and my family's long ordeal - equitably, comprehensively, and in a way that would contribute to DOE's being characterized by a safety-conscious work environment and trustworthy - ethical, competent and accountable - safety professionals. During the past year, DOE attorneys have repeatedly stymied (and now deny) our efforts. DOE has now paid over $400,000.00 in my legal fees and costs, they have probably paid well over a million for their own costs. I have prevailed an unbelievable seven-times and the end of this legal morass, absent an equitable settlement, is nowhere in sight - I fully expect to "prevail" three more times before the end of the year, if an equitable settlement doesn't happen. As I see it, DOE attorneys want me and my family ruined for my "offense" of putting my professional duty to workplace and public health and safety ahead of my self-interest. To DOE attorneys, Carson v. DOE provides employment justification - it's a profit center. They have no reason to settle, and create pretext after pretext to prevent a meaningful settlement. There is no other explanation for this matter not being resolved over a year ago. As it is now, DOE attorneys have created a catch-22 preventing a settlement - they argue that since the U.S. Merit Systems Protection Board (MSPB) has yet determined whether "consequential damages" can include "future pecuniary losses," they can't make a meaningful settlement proposal, even though two federal mediators think MSPB would rule it lawful, if given the opportunity. A positive result of me and my family's suffering would be the term "consequential damages" being changed to "compensatory damages" in the anticipated legistlation to reform and strengthen the Whistleblower Protection Act. In my opinion, nine years of "Carson v. DOE" later, nothing has changed - DOE's evasions and deceptions continue - as brazen and unaccountable as they have ever been. On March 21 the Director of DOE's overall employee concerns program represented "in strongest possible terms" the agency's commitment to "zero tolerance" (although DOE has yet to say anything like "DOE broke the law against Carson, this how "zero tolerance" was applied, and this is what we've done to restore and provide restitution to Carson.") and that the agency "is hopeful a satisfactory result" can be reached with me, while a DOE attorney, Isiah Smith, near simultaneously denied the lengthy efforts DOE line management and I made last year to reach such a result and says, in as many words, "there is nothing to talk about." At this point, I don't blame my management for much of the agency's lawbreaking against me during the past six years - I now realize that it was concurred with, if not suggested and/or recommended, by agency attorneys, most specifically, Isiah Smith. DOE attorneys are even trying to turn "client-attorney privilege" on its head to cloak their leading role in the reprisal I've experience. While the purpose of "client-attorney privilege" is to protect the client from having a former attorney testify against him, DOE attorneys invoke it to protect themselves from revealing that they advised DOE managers to break the law against me. Maybe MSPB and/or Federal Court will disallow the cloak of "attorney-client" privilege in my case, somehow I suspect that if they ever do, DOE attorneys will offer a satisfactory settlement the next day. I must say that I was warned though. In 1992, I was clearly told how DOE personnel specialists and attorneys look at the law - "if we get away with it, it's legal." I suggest the DOE attorney credo of "if we get away with it, it's legal," explains much of what is so wrong in DOE, both now and previously. Why are the DOE sick workers sick (if not deceased or disabled?) - while there is more than one reason, the biggest one, in my opinion, is that DOE attorneys, consistent with there credo "if we get away with it, it's legal," created a coercive, repressive, greed and fear-filled culture in DOE, from which they have profited, unaccountably, despite (actually because of) the billions of dollars in tax dollars now needing to be spent to clean up the mess they are so much responsible for. I'm grateful that MSPB Judge Miller acknowledges, in his ruling, the suffering I and my family have endured at the hands of DOE. I respectully disagree about his finding that I did not provide timely and sufficient evidence about my additional tax and accounting costs, I plan to appeal that part of his decision. I think his decision makes clear that the Whisteblower Protection Act does not, at present, permit proper compensation to faithful and competent federal employees who have been victimized and traumatized, as DOE attorneys have tried to harm me and my family, by agency reprisal. When Congress wrote the the Whistleblower Protection Act, it simply didn't anticipate agency attorneys would betray their duty as lawyers, citizens, and federal employees to collude in reprisal against a federal employee. The law isn't strong enough to protect federal employees from such an attorney-led collusion. While lots of things are very disturbing about "Carson v. DOE," - that government attorneys would counsel senior federal managers to break the law, because "if we get away with it, it's legal" and then spend millions of dollars in legal expenses, and try to ruin a man and his family, to evade accountability for their law-breaking, has to be near the top. *************************************************** UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ATLANTA REGIONAL OFFICE PETITION FOR CONSEQUENTIAL DAMAGES JOSEPH P. CARSON, Appellant versus DEPARTMENT OF ENERGY, Agency DOCKET NUMBERS AT-1221-98-0250-P-3 AT-1221-98-0623-P-3 DATE: March 28, 2001 . ATTORNEYS: Gary Howard Simpson, Esquire, Bethesda, Maryland, for the appellant. lsiah Smith. Jr., Esquire, and Gustav Goldberger, Esquire, Washington, D.C., for the agency. BEFORE Stuart A. Miller Administrative Judge INITIAL DECISION INTRODUCTION On June 28, 2000, the appellant timely refiled a motion for consequential damages resulting from his successful individual right of action (IRA) appeals in Carson v. Department of. Energy, Docket Numbers AT-1221-96-0948-W-3, AT-1221-98-0250-W-1 and AT-1221-98-0623-W-1 . The motion was previously dismissed without prejudice because it had been filed prematurely before the Board's decision on his IRA appeals had become final, and again dismissed without prejudice to allow the appellant additional rime to gather his proofs. The Board has authority to award consequential damages. See 5 U.S.C. 1221(g)(1)(A); Roman v. Department of the Army, 72 M.S.P.R. 409, 413 (1996), aff'd, 129 F.3d 134 (Fed. Cir. 1997) (Table) (No. 97-3109), petition for cert. filed. Nos. 97-3109, 97-7847 (U.S. Feb. 6, 1998). For the reasons set forth below, the appellant's motion for consequential damages is GRANTED in part and DENIED in part. ANALYSIS The appellant seeks damages under 5 U.S.C. 1221(g)(l)(A)(ii), which authorizes the Board in specified cases to award "back pay and related benefits, medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential [damages.]" [1] The amount the appellant seeks is $244,700.00 in pecuniary (or out-of- pocket) losses plus restoration of all annual leave and sick leave taken since 1997 and payment for leave without pay taken. In addition, the appellant sought additional sums for other non-pecuniary damages. 1. Non-Pecuniary damages cannot be paid. Much of the litigation in this case concerned the appellant's claim for non-pecuniary damages. This claim cannot be granted, however, and warrants no further discussion because the U.S. Court of Appeals for the Federal Circuit has recently held that the term "consequential damages" in 5 U.S.C. 1221(g) is limited to reimbursement of pecuniary losses and does not include non-pecuniary damages. Bohac v. Department of Agriculture, No. 99-3306 (Fed. Cir. Feb. 14, 2001). 2.Certain of the appellant's pecuniary losses are recoverable The appellant seeks the following consequential damages based upon his pecuniary losses: $135,000 Personal time 70,000 Value of spouse's time 5,000 Newspaper advertisements and Web Site 30,000 Additional taxes and accounting fees 4,700 Legal research for amicus brief In addition, the appellant seeks restoration of his annual and sick leave taken since 1997 and reimbursement for leave without pay taken since 1997. a. the appellant's personal time and the value of his wife's time. As for personal time lost, i.e., the appellant's personal time spent in working on his appeal, this is not a cognizable consequential damage. The appellant suffered no pecuniary loss because of it. The loss of free time is more appropriately treated as a non-pecuniary loss which is not recoverable under the Federal Circuit's decision in Bohac. [2] The same is true for the value of the appellant's wife's time. It is sheer speculation that, but for the appellant's IRA appeals, his wife would have been employed and had outside income. The appellant was assisted by counsel in connection with his IRA's and, indeed, the appellant filed a motion for and received attorney fees in connection with this litigation. b. the appellant's web site and newspaper advertisements. I also reject the appellant's claim for costs related to his developing his internet website and taking out newspaper advertisements to "alert" the world as to the agency's misdeeds. While understandable, perhaps, there was no necessity for the appellant to incur these expenses nor do they result as a consequence of the agency's actions. Therefore, I find that these expenses were not any other "reasonable and foreseeable consequential [damages]". 5 U.S.C. 1221(g)(l)(A)(ii). c additional taxes and accounting fees. During a telephonic status conference, I advised the appellant that, with regard to his claim for taxes and accountant fees, it was necessary for him to prove these damages and show how they resulted frore this litigation. During a later conference call, I advised the appellant to submit bills for his claimed damages. See Third Damages File, Tab 15. Although the appellant filed a final submission to support his motion for consequential damages, that submission was substantially devoted to the appellant's argument that non-pecuniary losses should be considered consequential damages. Inexplicably, the appellant failed to present any bills or other evidence to substantiate his bare assertion that, as a result of the agency's retaliation against him for whistleblowing, he incurred any increased tax liability or accounting fees. [3] The appellant has failed to prove this claim. d. the amicus brief. The appellant seeks $4,788.03 for the cost of preparation of an amicus brief to be filed with the Board by the American Engineering Alliance (AEA). The AEA is a private organization with the goal of advancing the professional, economic and social interests of all engineers regardless of field of practice or employment status, while at the same time defending the safety and interests of the public (http://www.aeaworld.org/purpose.htm). An amicus brief can be a highly effective tool of appellate advocacy. See generally, D. Knibb, A Manual on Practice in the United States Court of Appeals, section 32.5 (4th ed. 2000). This is particularly true in a case involving the WPA where conflicting public policy issues predominate. Therefore, I believe that the cost of obtaining amicus briefs in litigation are a reasonable and foreseeable consequence of retaliation for whistleblowing. Because the voice of the AEA in the public policy considerations of protecting professional engineers from retaliation for whistleblowing might well have advanced the appellant's appeal [4], the appellant's $4,788.03 expense for procuring the brief, which he has substantiated with a bill, is compensable. e. annual leave, sick leave, and leave without pay. Lastly, the appellant seeks restoration of the annual leave and sick leave he took from January 1, 1997, to October 2000, as well as payment for the leave without pay he took. As a threshold matter, the appellant does not explain why he sets October 2000 as the end-date for his claim for lost leave. The Initial Decision finding that the appellant was retaliated against for whistleblowing became final on February 3, 2000, and, accordingly, that is the appropriate end date for the appellant's claim. The appellant states in a declaration made under penalty of perjury that he was required to take huge amounts of leave, as well as personal time, due to the stress, fatigue, and resultant illness caused by the retaliation he suffered at the hands of the agency. The appellant explains that he cannot recount each of the hours spent and that, requiring such a detailed record (if it could be done at all), would take many more hours to prepare and further exacerbate his damages. I agree. The agency retaliated against the appellant because of his whistleblowing by taking away critical duties from his job assignments (surveillances), issuing a letter of admonishment, and by reassigning him from his home in Tennessee to Maryland. This retaliation--not unsurprisingly-- resulted in illness and stress, as well as necessitated the appellant to take a large amount of time from work to consult with his attorneys and other advisors. Although the law does not permit me to award non-pecuniary damages to the appellant for his suffering, I can and will award him pecuniary damages for all of the time he was required to spend away from work during this time frame. And, while I acknowledge that the appellant has not and, by his own admission, cannot document each and every hour that he was on leave during the relevant time frame, I believe it appropriate to award the appellant the leave restoration and payment for leave without pay he seeks without reduction [5]. To do otherwise "verges on nit-picking," cf. Freeman v. Department of Veterans Affairs, 66 M.S.P.R. 125, 131 (1995) (attacking an attorney fee petition which appears reasonable on its face with a line-by-line challenge is nit-picking and does not provide a basis for setting aside a fee award), in light of the hundreds of off-duty hours which the appellant lost due the agency's retaliation which cannot be compensated because they constitute non-pecuniary damages. DECISION The appellant's motion for consequential damages is GRANTED in part and DENIED in part. ORDER I ORDER the agency to pay to the appellant by check or through electronic funds transfer $4,788.03 in consequential damages. In addition, the agency is ORDERED to restore to the appellant all annual leave and sick leave taken during the period from January 1, 1997, to February 3, 2000. Lastly, the agency is ORDERED to pay the appellant by check or through electronic funds transfer for all leave without pay taken by him from January 1, 1997, to February 3, 2000, with interest and to adjust benefits with appropriate credits and deductions in accordance with the Office of Personnel Management's regulations. Compliance with this Order must be no later than 60 calendar days after the date this initial decision becomes final. If there is a dispute about the amount of back pay due, I ORDER the agency to pay appellant by check or through electronic funds transfer for the undisputed amount no later than 60 calendar days after the date this initial decision becomes final. Appellant may then file a petition for enforcement with this office to resolve the disputed amount. I ORDER the agency to inform appellant in writing of all actions taken to comply with the Board's Order and the date on which it believes it has fully complied. If not notified, appellant must ask the agency about its efforts to comply before filing a petition for enforcement with this office. FOR THE BOARD: Stuart A. Miller Administrative Judge ENDNOTES: 1. As the Board noted in Hoever v. Department of the Navy, 70 M.S.P.R. 386, 388 n.2 (1996), although the statute refers to "consequential changes," it is apparent from the context that consequential "damages" were intended. The law as set out in the Statutes at large provides for "consequential damages." 108 Stat. 365. 2. My ruling on this issue would be different if the lost time caused a pecuniary loss. For example, if the appellant had previously had a part-time job and, as a result of the time spent on his appeals, had to leave that job, the lost earnings would constitute a consequential damage. The appellant has submitted no proof of such a loss. 3. The appellant did attempt to file such evidence after the close of record. However, the appellant failed to show good cause for the untimely filing and his submission was rejected. See Nixon v. Department of the Navy, 5 1 M.S.P.R. 624, 626 (1991), aff'd, 972 F.2d 1354 (Fed.Cir.1992) (Table) (additional submissions received after the close of record will be considered only if a showing is made that the submissions consist of new and material evidence that was not available before the record closed). 4. The amicus brief was filed with the Board only a few days before the Board ruled in the appellant's favor by short-form order. Because neither the appellant nor the AEA could have known that a short-form order was about to issue, I find the filing of the brief to have been reasonable and foreseeable. 5.. The appellant requested restoration of 400 hours sick leave, 700 hours annual leave, and payment for approximately 200 hours LWOP. And, his estimates are generally supported by his leave and earnings records. However, as noted above, the end date for the period of time in question should be reduced from October 2000 to February 3, 2000. Joseph P. Carson, P.E. Safety Engineer and "Seven-Time Prevailing" Whistleblower in the Department of Energy (DOE) 865-675-0236 H; 865-966-1675 home fax jpcarson@mindspring.com "A Call for Accountability, Competency, and Ethics in DOE" http://www.carsonversusdoe.com