OFFICE OF SPECIAL COUNSEL
It was with keen interest that we read “Out of Air: Whistleblower agency struggles in wake of scandal” [NLJ, Sept. 14]. As the article correctly notes, for the past year, the Office of Special Counsel has been settling cases and, I might add, obtaining meaningful corrective action for complainants. And we would also agree that, from a media standpoint, our office has been “quiet.”
What we disagree with is the notion that a low number of cases filed with the Merit Systems Protection Board is somehow equivalent to a failure to perform our mission of protecting the merit system in federal employment. For years, our critics have focused on the number of cases filed with the board as evidence that our office is, as your headline states, “out of air.” This criticism is misguided and ignores some fundamental aspects of our role as an independent law enforcement agency. In particular, it mistakenly assumes that the most effective means of obtaining corrective action for complainants in prohibited personnel practice cases is always to litigate. However, this view is not reflected in our statute, which requires the special counsel to send a letter making recommendations to the head of the department or agency involved, prior to filing a corrective action case with the board. In a high percentage of cases, these recommendations are accepted and implemented. The board stresses the importance of settlement as a means to resolve issues without incurring the high costs and delays associated with litigation. The increasing prevalence of settlements, rather than litigation, as a way to contain costs and reach effective resolutions, is a trend reflected throughout the legal profession. In essence, litigation has become a means of last resort, and it is no different for the Office of Special Counsel.
While some of our critics may be dissatisfied that they “don’t hear much” from our office, we prefer to focus on the employees, who range from wage-grade to senior executives, and who come from all over the world, for whom we have obtained meaningful and effective resolutions of their cases.
William E. Reukauf
The writer is associate special counsel at the U.S. Office of Special Counsel.
Scores of public officials doubtless breathed a collective sigh of relief when the U.S. Supreme Court issued its June decision in Horne v. Flores. In Horne, Justice Samuel Alito Jr., writing for a 5-4 majority, held that courts must take a much broader view of what constitutes a “change of circumstances” that would warrant lifting federal court decrees that have long governed troubled public welfare systems.
Ross Sandler and David Schoenbrod recently lauded Horne. “Free from court decrees” [NLJ, Aug. 3]. A critical problem with the Court’s analysis — as well as that of Sandler and Schoenbrod — is the failure to recognize that not all decrees in public impact cases are equal. Justice Alito reasoned that “institutional reform cases” such as Horne overstepped their bounds if they were “not limited to reasonable and necessary implementations of federal law.” Unless so limited, decisions in these cases improperly deprive “future officials [of] their designated legislative and executive powers.”
This concern has merit. In many cases, scholars have observed that “command and control” decrees have been both frustrating and disappointing for all involved. They can intrude seriously into the day-to-day operations of large public systems, freeze practice and fail to prioritize outcomes.
But in recent years, states and litigants have moved toward a new model to resolve disputes over system compliance with federal law. The new approach gives states far greater flexibility, permits states to exit decrees short of full technical compliance and, in general, tends to downplay judicial intervention in the workings of state and local bureaucracies.
Unfortunately, neither Horne nor Sandler and Schoenbrod recognize these developments. At best, Horne will stifle this innovation. At worst, it will invite costly and needless litigation over the applicability of the Court’s holding to other consent decrees. In either case, neither states nor the public they are supposed to serve will benefit.
The old “command-and-control” style of decree that Horne and Sandler and Schoenbrod presuppose can still be found in many cases, but the newer, more flexible style has made substantial headway in cases involving child welfare, prisons, schools and mental health.
What will result post-Horne depends on the parties involved in these types of cases around the country. Will they join the pile-on motion battles related to “changed circumstances” or will they work collaboratively (perhaps with some nudging by their judges) to negotiate settlement agreements and exit plans based on successful cases and innovative methods?
Kathleen G. Noonan
Charles F. Sabel and William H. Simon
The writers are, respectively, managing director, PolicyLab, Children’s Hospital of Philadelphia; Maurice T. Moore Professor of Law, Columbia University; and Arthur Levitt Professor of Law, Columbia University. They are co-authors of a study in the current issue of Law and Social Inquiry of successful institutional reform litigation in child welfare systems.