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MSPB FOIA documents cast doubt on veracity of legal argument by Justice Department lawyers and current judicial nominee

On January 18, Chairman Grundmann of the Merit Systems Protection Board granted my appeal in a FOIA request that asked for interpretations pertaining to 5 U.S.C. 1204(a)(3). That statute governs the MSPB’s duty to report to Congress and the President “whether the public interest in a civil service free of prohibited personnel practices is adequately protected.” The FOIA request asked for any interpretations or other documents interpreting that phrase.

I made that request because Justice Department attorneys referred to such an interpretation in a 2007 FOIA lawsuit brought against MSPB by a third party (Joe Carson, a fellow whistleblower).

Now, we find out, there was no such interpretation, at least not one that can be made public.

Here’s the FOIA appeal grant:

This raises the question: why are DOJ lawyers making legal arguments based on documents that either don’t exist or are secret?

It should be noted that one of the lawyers who signed off on the brief in question has been nominated for a federal judgeship by President Obama in July, 2011.

P.S. the 1980 MSPB annual report can be found here:



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