`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 1 of 27
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`NOT YET SCHEDULED FOR ORAL ARGUMENT
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`United States Court of Appeals
`
`for the District of Columbia Circuit
`
`
`
`No. 25-5052
`
`
`HAMPTON DELLINGER, in his personal capacity and in his official capacity as
`Special Counsel of the Office of Special Counsel,
`
`
`
`Plaintiff-Appellee,
`v.
`SCOTT BESSENT, in his official capacity as Secretary of the Treasury; et al.,
`
`
`
`Defendants-Appellants.
`––––––––––––––––––––––––––––––
`On Appeal from the United States District Court
`for the District of Columbia in No. 1:25-cv-00385-ABJ,
`Honorable Amy Berman Jackson, U.S. Senior District Judge.
`
`BRIEF OF AMICI CURIAE THE GOVERNMENT ACCOUNTABILITY
`PROJECT, NATIONAL SECURITY COUNSELORS, NATIONAL
`WHISTLEBLOWER CENTER, PUBLIC EMPLOYEES FOR
`ENVIRONMENTAL RESPONSIBILITY, PROJECT ON GOVERNMENT
`OVERSIGHT, AND WHISTLEBLOWERS OF AMERICA IN SUPPORT
`OF PLAINTIFF-APPELLEE
`
`
`STEPHEN M. KOHN
`KAYLA SVIHOVEC
`KOHN, KOHN & COLAPINTO, LLP
`1710 N Street NW
`Washington, DC 20036
`(202) 342-6980
`sk@kkc.com
`kayla.svihovec@kkc.com
`
`
`THOMAS M. DEVINE
`GOVERNMENT ACCOUNTABILITY PROJECT
`1612 K Street NW, Suite 808
`Washington, DC 20006
`(202) 457-0034
`tdevine@whistleblower.org
`
`
`Counsel for Amici Curiae
`
`March 5, 2025
`
`(800) 4-APPEAL • (378772)
`
`
`
`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 2 of 27
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`CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
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`Except for Amici Curiae, all parties, intervenors, and amici appearing before
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`the District Court and in this Court are listed in the Brief for Appellee.
`
`References to the ruling at issue appear in the Brief for Appellee.
`
`Amici are unaware of any related cases pending before this Court or any
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`other court.
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`i
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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 3 of 27
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`CORPORATE DISCLOSURE STATEMENT
`
`Pursuant to Federal Rule of Appellate Procedure 26.1 and 29, and D.C.
`
`Circuit Rule 26.1, six Amici, Government Accountability Project, National Security
`
`Counsellors, National Whistleblower Center, Public Employees for Environmental
`
`Responsibility, Project on Government Oversight, and Whistleblowers of America
`
`submit their corporate disclosure statement.
`
`Each amicus is a nonpartisan, nonprofit corporations organized under
`
`section 501(c)(3) of the Internal Revenue Code. They have a special interest in
`
`promoting corporate and government accountability by protecting whistleblowers
`
`and advancing free speech in the civilian and governmental workforce. No
`
`publicly held corporation has any form of ownership interest in these entities,
`
`which have no parent corporations and do not issue stock.
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`ii
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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 4 of 27
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`TABLE OF CONTENTS
`
`Page
`
`CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............. i
`CORPORATE DISCLOSURE STATEMENT ........................................................ ii
`TABLE OF AUTHORITIES .................................................................................... iv
`GLOSSARY OF ABREVIATIONS ....................................................................... vii
`STATEMENTS OF INTEREST................................................................................ 1
`SUMMARY OF ARGUMENT ................................................................................. 5
`ARGUMENT ............................................................................................................. 6
`I.
`A CORNERSTONE OF THE MERIT SYSTEM, THE
`OFFICE OF SPECIAL COUNSEL WAS SPECIFICALLY
`CREATED TO SERVE THE PUBLIC INTEREST ............................ 7
`THE OFFICE OF SPECIAL COUNSEL ACTS AS A
`CONFIDENTIAL, INDEPENDENT CHANNEL TO
`INITIATE REVIEWS OF GOVERNMENT MISCONDUCT .......... 10
`III. WHISTLEBLOWERS WORKING THROUGH THE
`INDEPENDENT OFFICE OF SPECIAL COUNSEL HAVE
`MADE SIGNIFICANT CONTRIBUTIONS TO THE
`PUBLIC INTEREST ........................................................................... 14
`CONCLUSION ........................................................................................................ 17
`
`II.
`
`iii
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 5 of 27
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases:
`Day v. Homeland Security,
`DC-1221-12-0528-W-1 (MSPB 2013) ............................................................... 2-3
`Department of Homeland Security v. Maclean,
`574 U.S. 383 (2015) .............................................................................................15
`Dr. Kiki Ikossi v. Department of the Navy,
`516 F.3d 1037 (D.C. Cir. 2008) .............................................................................. 2
`Dr. Tommie Savage v. Army,
`2015 MSPB 51 (2016) ............................................................................................ 2
`English v. G.E.,
`496 U.S. 72 (1990) ................................................................................................. 2
`Lawson v. FMR LLC,
`571 U.S. 429 (2014) ............................................................................................... 2
`Linda Tripp v. Department of Defense,
`219 F. Supp. 2d 85 (D.D.C. 2002) ......................................................................... 2
`Murray v. UBS Sec., LLC,
`601 U.S. 23 (2024) .................................................................................................. 2
`Parkinson v. Department of Justice,
`815 F.3d 757 (Fed. Cir. 2016) ................................................................................. 3
`Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens,
`529 U.S. 765 (2000) ............................................................................................... 2
`William Sanjour v. EPA,
`56 F.3d 85 (D.C. Cir. 1995) .................................................................................... 2
`
`Statutes & Other Authorities:
`5 U.S.C. § 1121(b) ..................................................................................................... 7
`5 U.S.C. § 1206 .......................................................................................................... 7
`5 U.S.C. § 1212(a) ................................................................................................... 11
`
`iv
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 6 of 27
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`5 U.S.C. § 1213 .................................................................................................. 10, 11
`5 U.S.C. § 1221(e) ..................................................................................................... 8
`A Report to Congress from the U.S. Office Of Special Counsel
`for Fiscal Year 2001 ..............................................................................................16
`Circuit Rule 8 ............................................................................................................. 6
`Draft OSC Strategic Plan (2022-2026) (Dec. 10, 2021) .......................................... 11
`Federal Rule of Appellate Procedure 29(a)(4)(E) ...................................................... 1
`Government Accountability Project Press Release, U.S. Special Counsel
`Findings Vindicate Government Accountability Project Client Kevin
`Chmielewski, Whose Whistleblowing Exposed Scott Pruitt’s Corruption
`(May 22, 2022) ............................................................................................... 14-15
`Government Accountability Project Press Release, Whistleblowers’
`Complaints of Gross Mismanagement at Fort Bliss Immigrant Children’s
`Site Ignored (July 7, 2021) ................................................................................... 15
`Government Accountability Project Press Releases,
`Resolution of White House Whistleblower Complaint (May 30, 2024) ...............14
`Hearings on the Whistleblower Protection Provisions of the Civil Service
`Reform Act of 1978 before the House Post Office and Civil Service
`Subcommittee on Civil Service, 96th Cong., 2d Sess.193 (1980) ........................... 8
`Markup Session on S. 2640 before the Senate Comm. on Govt. Affairs,
`95th Cong. 2d. Sess. 91-2 (1978)............................................................................. 8
`NPR, Federal Inquiry Details Abuses of Power by Trump's CEO
`Over Voice of America (May 21, 2023) ................................................................ 15
`OSC Handout, Your Rights as a Federal Employee ................................................ 11
`Pub. L. 95–454, Findings and Statement of Purpose § 3(2) ...................................... 7
`Pub. L. No. 95–454, 92 Stat. 1112 (Oct. 13, 1978),
`5 U.S.C. § 1206 et seq. ........................................................................................... 7
`Pub. L. No. 101–12, 103 Stat. 16 ,5 U.S.C. § 1221(e), (Apr. 10, 1989).................... 8
`S. Rep. No. 95–969, at 8 (July 10, 1978) ................................................................. 10
`Statement on Actions Taken Against Waste, Fraud,
`and Abuse in the Federal Government (April 16, 1981) ......................................12
`
`v
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 7 of 27
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`The Whistleblowers: A Report on Federal Employees who Disclose Acts of
`Governmental Waste, Abuse and Corruption Prepared for the Senate
`Committee on Governmental Affairs, 95th Cong., 2d Sess. (Feb. 1978) ............... 8
`Tom Devine, The Whistleblower’s Survival Guide:
`Courage Without Martyrdom ................................................................................16
`USA Today, Study: Lack of MRAPs Cost Marine Lives (Feb. 15, 2008) ................ 15
`Whistleblowers’ Complaints Reveal Further Abuse of Authority,
`Violations of Law and Ethics Rules at the White House Office of Science
`and Technology Policy (March 11, 2022) .............................................................14
`Wikipedia, William H. Zimmer Power Station ....................................................... 16
`
`vi
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 8 of 27
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`GLOSSARY OF ABREVIATIONS
`
`Civil Service Reform Act
`
`Government Accountability Project
`
`US Merit Systems Protection Board
`
`National Security Counselors
`
`National Whistleblower Center
`
`US Office of Special Counsel
`
`Public Employees for Environmental Responsibility
`
`Project on Government Oversight
`
`Whistleblowers of America
`
`Whistleblower Protection Act
`
`CSRA
`
`GAP
`
`MSPB
`
`NSC
`
`NWC
`
`OSC
`
`PEER
`
`POGO
`
`WOA
`
`WPA
`
`vii
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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 9 of 27
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`STATEMENTS OF INTEREST1
`
`Government Accountability Project (“GAP”) is an independent,
`
`nonpartisan, nonprofit, public interest organization that promotes corporate and
`
`government accountability by protecting whistleblowers and advancing free speech
`
`in the civilian and governmental workforce. GAP advocates for effective
`
`implementation of whistleblower protections throughout industry, international
`
`institutions, and the federal government, focusing on issues including government
`
`and corporate accountability, environment, nuclear, protection, transportation
`
`safety, national security, immigration, public health, and food safety.
`
`Founded in 1977, GAP is the nation's oldest whistleblower protection and
`
`advocacy organization. In addition to focusing on supporting and providing legal
`
`counsel to whistleblowers, GAP leads campaigns to promote accountability in
`
`government and corporate America, and to enact whistleblower protection laws
`
`both domestically and internationally.
`
`National Security Counselors (“NSC”) is a non-profit public interest law
`
`firm which specializes, in pertinent part, in national security employment law,
`
`1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), GAP affirms that no
`counsel for a party authored this brief in whole or in part, no party or counsel for a
`party contributed money that was intended to fund preparing or submitting this
`brief, and no person other than GAP or its counsel contributed money that was
`intended to fund the preparation or submission of this brief.
`
`1
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 10 of 27
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`including whistleblower protection. NSC regularly represents whistleblowers in
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`all stages of the administrative process, including before the Office of Special
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`Counsel and in federal court. NSC maintains that the independence of the Special
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`Counsel is critical to the effective functioning of the whistleblower protection
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`regime for the federal government.
`
`National Whistleblower Center (“NWC”) is a nonprofit, non-partisan,
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`tax-exempt, charitable organization dedicated to the protection of
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`whistleblowers. Founded in 1988, the NWC is keenly aware of the issues facing
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`government employees who report waste, fraud, or abuse. Over the years, the
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`NWC has worked aggressively to ensure that laws protecting federal employees
`
`achieve Congress’ goals. On a non-partisan basis the NWC, its officers and
`
`directors have represented or assisted numerous federal employees basis,
`
`including William Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995) (en banc); Dr.
`
`Kiki Ikossi v. Department of the Navy, 516 F.3d 1037 (D.C. Cir. 2008); Dr.
`
`Tommie Savage v. Army, 2015 MSPB 51 (2016); and Linda Tripp v. Department
`
`of Defense, 219 F. Supp. 2d 85 (D.D.C. 2002). Additionally, the NWC has
`
`participated as amicus curiae in numerous cases directly affecting
`
`whistleblowers, including Murray v. UBS Sec., LLC, 601 U.S. 23 (2024);
`
`Lawson v. FMR LLC, 571 U.S. 429 (2014); English v. G.E., 496 U.S. 72 (1990);
`
`Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765 (2000); Day v.
`
`2
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 11 of 27
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`Homeland Security, DC-1221-12-0528-W-1 (MSPB 2013); and Parkinson v.
`
`Department of Justice, 815 F.3d 757 (Fed. Cir. 2016).
`
`Public Employees for Environmental Responsibility (“PEER”) is a
`
`national nonprofit, non-partisan organization, incorporated in the District of
`
`Columbia. PEER provides direct services to environmental and public health
`
`professionals, land managers, scientists, enforcement officers, and other civil
`
`servants dedicated to upholding environmental laws and values. PEER provides
`
`pro bono legal services to current and former public employees who hold
`
`government accountable to environmental ethics, compliance with environmental
`
`laws, and scientific integrity standards. PEER represents and defends federal
`
`whistleblowers, investigates and exposes improper or illegal government actions,
`
`and works to improve laws and regulations impacting PEER’s clients. On behalf of
`
`its clients, PEER has filed numerous complaints and disclosures with the OSC. It
`
`relies on OSC as an important tool for exposing and remedying government
`
`violations of law, waste, fraud and abuse and for protecting whistleblowers.
`
`Project On Government Oversight (“POGO”) is a nonpartisan
`
`independent watchdog that investigates and exposes waste, corruption, abuse of
`
`power. POGO champions reforms to achieve a more effective, ethical, and
`
`accountable federal government that safeguards constitutional principles. Working
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`with whistleblowers for such purposes is an integral part of POGO’s mission, and
`
`3
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 12 of 27
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`ensuring strong whistleblower protections is one of POGO’s core policy priorities.
`
`Founded in 1981, POGO helped to lead efforts to pass and strengthen the
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`Whistleblower Protection Enhancement Act of 2012, including testifying about the
`
`legislation before Congress, advocating for the strongest possible whistleblower
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`provisions, urging the public to take action, and organizing critical support.
`
`Whistleblowers Of America (“WOA”) is a voluntary peer support network.
`
`WOA concentrates on whistleblower mental health through a trauma-informed
`
`approach and assists employees suffering the psychosocial impacts of
`
`whistleblower retaliation. Founded in 2017, WoA provides support, advocacy,
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`resources and referrals to a global network of employees and advocates, and has
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`provided support to over 1,050 individuals in over 30 countries.
`
`4
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 13 of 27
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`SUMMARY OF ARGUMENT
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`The Court should deny Defendant-Appellant’s stay motion because it is not
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`in the public interest. Were the stay to be granted, Special Counsel Hampton
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`Dellinger will likely be immediately and summarily removed from office. Such
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`removal is contrary to the will of Congress, as expressed in several statutes, and
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`will irreparably harm the independence of the Office of Special Counsel
`
`(“OSC”). Congress specifically empowered the OSC to protect federal employees
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`from retaliation who report illegality, gross mismanagement, gross waste, abuse of
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`authority, and serious dangers to public health and safety—reports that protect the
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`public interest.
`
`Amici Curiae submit this brief to show how, by design, the OSC is an
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`independent agency, how that independence has provided a safe space for
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`whistleblower to report, and how those reports have exposed, for decades,
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`wrongdoing, waste, fraud and abuse throughout the federal government.
`
`5
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 14 of 27
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`ARGUMENT
`
`Per Circuit Rule 8, a stay motion:
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`[M]ust state the reasons for granting the stay or other emergency relief
`sought and discuss, with specificity, each of the following factors: (i)
`the likelihood that the moving party will prevail on the merits; (ii) the
`prospect of irreparable injury to the moving party if relief is withheld;
`(iii) the possibility of harm to other parties if relief is granted; and (iv)
`the public interest.
`
`In this brief, Amici focus exclusively on the fourth factor – why granting a stay is
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`not in the public interest.
`
`Severe public policy consequences are at stake. An independent Special
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`Counsel is a unique and invaluable resource promoting transparency in
`
`government and against fraud, waste, or abuses of power, regardless of which
`
`political party betrays the public. The immediate, summary removal of Special
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`Counsel Dellinger in the circumstances here will irreparably destroy the
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`independence of his office.
`
`Eliminating the Special Counsel’s independence would cancel the public
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`service mandate repeatedly affirmed unanimously by Congress and by past
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`Presidents. Whistleblowers working with an independent OSC have changed the
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`course of history. They have turned to the OSC precisely because of its reputation
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`for independence. Undermining that independence will deter whistleblowers from
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`reporting wrongdoing and will create an accountability vacuum.
`
`6
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 15 of 27
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`I.
`
`A CORNERSTONE OF THE MERIT SYSTEM, THE OFFICE OF
`SPECIAL COUNSEL WAS SPECIFICALLY CREATED TO SERVE
`THE PUBLIC INTEREST
`
`In the aftermath of the Watergate scandals, President Carter proposed and
`
`Congress passed the Civil Service Reform Act of 1978 (“CSRA”),2 creating the
`
`OSC led by a Special Counsel whom the President can only fire for cause. 5
`
`U.S.C. § 1121(b) provides that “[t]he Special Counsel may be removed by the
`
`President only for inefficiency, neglect of duty, or malfeasance in office.” The
`
`CSRA’s Findings and Statement of Purpose are clear: “prohibited personnel
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`practices should be statutorily defined to enable Federal employees states to avoid
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`conduct which undermines the merit system principles and the integrity of the
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`merit system.”3 The goal was to create a final, nonpartisan backstop for federal
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`employees’ disclosures of fraud, waste and abuse, which might otherwise be
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`quashed or ignored due to partisan loyalties of existing federal office-holders, and,
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`further, to preclude reprisal by the latter against the complaining employees.
`
`From the beginning, OSC has been a unique, hybrid agency whose task is to
`
`screen allegations of misconduct for further review, investigate merit system
`
`2 Pub. L. No. 95-454, 92 Stat. 1112 (Oct. 13, 1978), 5 U.S.C. § 1206 et seq.,
`3 Pub. L. 95–454, Findings and Statement of Purpose § 3(2), available at
`https://www.dol.gov/sites/dolgov/files/OASAM/legacy/files/Civil-Service-Reform-
`Act-1978.pdf.
`
`7
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 16 of 27
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`violations, and recommend relief for those whose rights are violated.4 Congress
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`has consistently considered impartial independence from politics to be
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`indispensable. After the Carter administration attempted to use the US Merit
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`Systems Protection Board (“MSPB”) to punish politically disfavored
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`whistleblowers, Congress chose to make the OSC an independent agency through
`
`enactment of the Whistleblower Protection Act of 1989 (“WPA”).5
`
`The Special Counsel’s most prominent mission is serving as a safe resource
`
`for whistleblowers. This reflects Congress’s long-standing, deep-rooted, and,
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`critically, its ceaselessly bipartisan commitment to whistleblowers as essential
`
`mechanisms for oversight and accountability. The congressional mandate to make
`
`whistleblower protection a CSRA cornerstone began in 1978 with a massive study
`
`and report by the Senate Governmental Affairs Committee, commonly known as
`
`the Leahy Report.6 The Report explained:
`
`Whistleblowers have exposed problems with defense cost overruns,
`unsafe nuclear power plant conditions, unproven or questionable
`
`4 Hearings on the Whistleblower Protection Provisions of the Civil Service Reform
`Act of 1978 before the House Post Office and Civil Service Subcommittee on Civil
`Service, 96th Cong., 2d Sess.193 (1980); Markup Session on S. 2640 before the
`Senate Comm. on Govt. Affairs, 95th Cong. 2d. Sess. 91-2 (1978).
`5 Pub. L. No. 101–12, 103 Stat. 16 , 5 U. S. C. § 1221(e), (Apr. 10, 1989).
`6 The Whistleblowers: A Report on Federal Employees who Disclose Acts of
`Governmental Waste, Abuse and Corruption Prepared for the Senate Committee on
`Governmental Affairs, 95th Cong., 2d Sess. (Feb. 1978).
`
`8
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`

`

`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 17 of 27
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`drugs approved for marketing by the FDA, contract illegalities and
`improprieties, conflicts of interest, Merit System abuse and regulatory
`corruption.7
`
`The Leahy Report acknowledged, however, that would-be whistleblowers
`
`had to choose between the official Code of Ethics for Government Service and the
`
`unwritten “Code of Silence” – a powerful impediment to whistleblower
`
`disclosures. It wrote: “[a]agency loyalty, pressure from supervisors, and the desire
`
`to remain employed are better served with silence.”8
`
`The Leahy Report summarized the disastrous impact from the latter
`outcome: The code of silence thwarts top management’s ability to
`effectively manage and actually removes the burden of accountability
`from their shoulders. Fear of reprisal renders intra-agency
`communications a sham and compromises not only the employee,
`management and the code of Ethics, but also the Constitutional
`function of congressional oversight itself.9
`
`When Congress passed the CSRA later in 1978, the Senate committee report
`
`emphasized that whistleblowers needed to be protected from retaliation.
`
`Often, the whistleblower's reward for dedication to the highest moral
`principles is harassment and abuse. Whistleblowers frequently
`encounter severe damage to their careers and substantial economic
`loss.
`
`Protecting employees who disclose government illegality, waste, and
`corruption is a major step toward a more effective civil service. In the
`vast federal bureaucracy it is not difficult to conceal wrongdoing
`
`7 Id., at 1.
`8 Id., at 2.
`9 Id., at 49.
`
`9
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 18 of 27
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`provided that no one summons the courage to disclose the truth. . . .
`What is needed is a means to assure them that they will not suffer if
`they help uncover and correct administrative abuses.10
`
`As shown below, whistleblowers have relied on those protections for over
`
`four decades to expose massive wrongdoing. This case will determine whether
`
`they can continue to rely on these safeguards.
`
`II.
`
`THE OFFICE OF SPECIAL COUNSEL ACTS AS A
`CONFIDENTIAL, INDEPENDENT CHANNEL TO INITIATE
`REVIEWS OF GOVERNMENT MISCONDUCT
`
`The OSC was created to authorize and encourage federal employees to
`
`confidentially disclose to OSC allegations protected under the WPA, namely,
`
`violations of law, gross waste or mismanagement, abuse of authority, and
`
`significant threats to the public health and safety. 5 U.S.C. § 1213. OSC is
`
`empowered to investigate and may make recommendations to the President, the
`
`Attorney General, and the relevant Office of Inspector General. Id. Significantly,
`
`the OSC’s only power is to recommend action to other agencies. It does not
`
`make or enforce executive decisions. But that does not diminish its importance:
`
`Congress created the independent agency as a safe space for employees to make
`
`10 S. Rep. No. 95-969, at 8 (July 10, 1978), available at
`https://www.flra.gov/system/files/webfm/Authority/Archival%20Decisions%20&
`%20Leg%20Hist/LEG%20HIST%20OF%20THE%20CSRA%20OF%201978%20
`Mar%2027%201979%20VOL%202.pdf.
`
`10
`
`

`

`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 19 of 27
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`disclosures of wrongdoing. To combat the “Code of Silence” and to overcome
`
`fears of retaliation, Congress mandated that the OSC, by design, function as a
`
`neutral party, one without political bias. For these reasons, whistleblowers can
`
`file OSC Complaints confidentially,11 and the OSC staff responsible for
`
`whistleblower complaints are attorneys, independently bound by rules of
`
`professional ethics.12
`
`Congress carefully balanced the need to encourage reporting with the
`
`ultimate authority of the executive to manage the federal government. Thus, the
`
`OSC’s authority is limited to making only recommendations based on the
`
`confidential disclosures he or she receives, not imposing or enforcing decisions.
`
`The executive retains the exclusive authority and discretion to take any
`
`enforcement actions (or to take no enforcement action) based on the OSC’s
`
`recommendations. 5 U.S.C. §§ 1212(a) and 1213.
`
`11 OSC Handout, Your Rights as a Federal Employee, available at
`https://osc.gov/Documents/Outreach%20and%20Training/Handouts/Your%20Righ
`ts%20as%20a%20Federal%20Employee%20(v2024).pdf
`12 Draft OSC Strategic Plan (2022-2026), at 3 (Dec. 10, 2021)(“a single attorney
`generally handles each prohibited personnel practice (PPP) case from the start of
`the investigation through closure of the case”), available at
`https://osc.gov/Documents/Resources/Statutory%20Reports%20and%20Notices/Fe
`deral%20Register%20Publications/OSC%20Draft%20Strategic%20Plan.pdf.
`
`11
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`

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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 20 of 27
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`President Ronald Reagan recognized the critical importance of protecting
`
`the ability of whistleblowers to submit confidential disclosures to an office that is
`
`required by law to accept those complaints, and whose manager has the
`
`independence to guarantee that confidentiality will be maintained.13 He
`
`emphasized that “guaranteed confidentiality,” along with protection against
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`reprisals, were essential to facilitating the effectiveness of the Nation’s civil
`
`service laws.14 President Reagan explained just how important these civil service
`
`law provisions were to protect the government from fraud:
`
`A study released yesterday reveals startling statistics that
`confirm much of what this administration has said about the
`"national scandal” of waste, fraud, and abuse in government.
`
`Forty-five percent of Federal employees who responded to the
`survey said that in the last 12 months they had observed or had
`evidence of waste or illegality . . . .
`
`The study, conducted by the Merit Systems Protection Board and
`the Inspectors General, also found that much of the wasteful or
`illegal activities have gone unreported because “nothing could be
`done.” …
`
`13 Statement on Actions Taken Against Waste, Fraud, and Abuse in the Federal
`Government (April 16, 1981), available at
`https://www.reaganlibrary.gov/archives/speech/statement-actions-taken-against-
`waste-fraud-and-abuse-federal-government.
`14 Id.
`
`12
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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 21 of 27
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` Federal employees or private citizens who wish to report
`incidents of illegal or wasteful activities are not only encouraged
`to do so but will be guaranteed confidentiality and protected
`against reprisals. . . .
`
`The vital element in any program designed to fight fraud and
`waste is the willingness of employees to come forward when they
`see this sort of activity. They must be assured that when they
`“blow the whistle'' they will be protected and their information
`properly investigated.15
`
`President Reagan rightly focused on the OSC’s two main functions --
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`offering “assurance” that those who blow the whistle “will be protected and their
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`information properly investigated.”16 Granting the stay to allow for the summary
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`firing of Special Counsel Dellinger would allow the Executive to undermine
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`assurance regarding those two vital protections, and will chill the willingness of
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`any federal employee to report wrongdoing.
`
`Amici’s years of working with numerous federal employees in a non-
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`partisan manner confirms that whistleblowers’ willingness to come forward with
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`information the public needs is easily discouraged without protection against
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`retaliation. Amici conservatively have represented hundreds of federal employees
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`who have taken advantage of their right to file confidential complaints and who
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`15 Id.
`16 Id.
`
`13
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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 22 of 27
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`would not have done so if they doubted the OSC’s independence. Eliminating the
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`independence of the Special Counsel will have a massive chilling effect. The
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`public interest will be harmed.
`
`III. WHISTLEBLOWERS WORKING THROUGH THE INDEPENDENT
`OFFICE OF SPECIAL COUNSEL HAVE MADE SIGNIFICANT
`CONTRIBUTIONS TO THE PUBLIC INTEREST
`
`The public interest has been substantially aided when whistleblowers –
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`working through the independent OSC – have assisted in detecting and preventing
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`waste, fraud and abuses of authority. For example, working with OSC
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`whistleblowers have:
`
`• Exposed abuses of authority in 2021 by the then-head of the White
`House Office of Science and Technology Policy;17
`
`• Exposed misuse of taxpayer funds and excessive spending by a former
`EPA Administrator;18
`
`17 Government Accountability Project Press Releases, Resolution of White House
`Whistleblower Complaint (May 30, 2024), available at
`https://whistleblower.org/press-release/resolution-of-white-house-whistleblower-
`complaint/; Whistleblowers’ Complaints Reveal Further Abuse of Authority,
`Violations of Law and Ethics Rules at the White House Office of Science and
`Technology Policy (March 11, 2022), available at https://whistleblower.org/press-
`release/press-release-whistleblowers-complaints-reveal-further-abuse-of-authority-
`violations-of-law-and-ethics-rules-at-the-white-house-office-of-science-and-
`technology-policy/.
`18 Government Accountability Project Press Release, U.S. Special Counsel
`Findings Vindicate Government Accountability Project Client Kevin Chmielewski,
`
`14
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`USCA Case #25-5052 Document #2104097 Filed: 03/05/2025 Page 23 of 27
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`• Exposed abuses of authority, gross mismanagement and gross waste
`of funds at the U.S. Agency for Global Media;19
`
`• Exposed gross mismanagement by the Department of Health and
`Human Services at a site holding thousands of undocumented
`children;20
`
`• Exposed failure by US Marine Corps officials to deliver mine-
`resistant vehicles and other equipment that caused Iraqi civilian and
`one-third of American combat deaths and injuries;21
`
`• Exposed Transportation Security Administration orders to cancel
`Federal Air Mars