Special Counsel ex rel. Carmine A. Tarantino v. Smithsonian Institution
Background
- OSC obtained an initial 45-day stay (granted Sept. 23, 2016) halting the Smithsonian’s change to Carmine Tarantino’s work schedule and duty station pending investigation into alleged retaliation.
- OSC alleges Tarantino, a union steward, engaged in protected activity (filings with DOL, OSHA, OSHEM, EEO, and an OIG complaint) in Nov–Dec 2015, after which his supervisor notified him of a Dec. 13, 2015 schedule/location change.
- OSC sought a 90-day extension of the stay on Oct. 21, 2016; the Smithsonian opposed and submitted an OIG report and exhibits finding no retaliation.
- The Smithsonian argued the Board lacked authority because the Smithsonian is not an “agency” under 5 U.S.C. § 2302; OSC relied on prior Board precedent holding it is an agency.
- The Board reviewed the record deferentially to OSC, concluded OSC’s retaliatory-change claim was not clearly unreasonable, denied overruling precedent, and granted a reduced 72-day extension of the stay through Jan. 18, 2017.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Board authority to issue/extend stay (is Smithsonian an “agency”) | OSC: Board precedent treats Smithsonian as an agency; thus Board has authority. | Smithsonian: Pessa was wrongly decided; Smithsonian is not an "agency" under §2302(a)(2)(C). | Board declined to overrule Pessa and found it lacked an appropriate record to revisit precedent in a stay proceeding; authority stands. |
| Whether OSC’s retaliatory-change claim is reasonable (warranting stay extension) | OSC: Timing and sequence (protected activity then schedule change) support reasonable belief of retaliation; investigation needs more time. | Smithsonian: OIG report and exhibits show changes were planned before supervisor learned of protected activity, undermining OSC’s claim. | Viewing facts most favorably to OSC, the claim is not clearly unreasonable; stay extension justified. |
| Significance of OIG report/new evidence | OSC: OIG produced a synopsis/report but not all supporting evidence; OSC needs time to reinterview witnesses and obtain records. | Smithsonian: OIG report and exhibits materially change the record and negate retaliation inference. | Board found much of the OIG material not directly dispositive of motive and did not render OSC’s claim clearly unreasonable. |
| Motion to seal record and exhibits | Smithsonian: documents are sensitive/confidential; OIG investigation open; requests sealing. | OSC: opposes sealing attachments; many exhibits already in Tarantino’s possession; public access favored. | Motion to seal denied: FOIA exemptions narrowly construed and Smithsonian did not meet burden to justify sealing. |
Key Cases Cited
- Pessa v. Smithsonian Institution, 60 M.S.P.R. 421 (1994) (Board precedent treating Smithsonian as an "agency" under §2302)
- Special Counsel v. Internal Revenue Service, 65 M.S.P.R. 146 (1994) (limits Board stay authority to personnel actions)
- Special Counsel v. Department of Transportation, 74 M.S.P.R. 155 (1997) (stay evaluated deference to OSC; review in light most favorable to OSC)
- Special Counsel ex rel. Waddell v. Department of Justice, 105 M.S.P.R. 208 (2007) (Board may set extension length and press OSC for timeliness)
- Special Counsel ex rel. Tines v. Department of Veterans Affairs, 98 M.S.P.R. 510 (2005) (stay is not substitute for merits hearing; OSC need only show claim within range of rationality)