Former IG Goes to Court to Try to Save His Job

An agency Inspector General, appointed by President George W. Bush and fired by President Obama, was recently handed a defeat in his attempt to overturn his firing.

An agency Inspector General, appointed by President George W. Bush in 2007 and fired by President Obama a few months after he took office, was recently handed a defeat in his lawsuit in which he attempted to overturn his firing. (Walpin v. Corporation for National and Community Services et al. (C.A.D.C. No. 10-5221), 1/4/2011)

Gerald Walpin had served as the Inspector General of the Corporation for National and Community Services (CNCS) for a little more than two years when he received a call from Norman Eisen, the President’s special counsel, ordering Walpin to resign or be fired, and giving him one hour to decide. (Opinion p. 2) Walpin “declined” to decide, so Eisen told him he was being removed as IG. That same day, the White House “ordered that [Walpin] be immediately denied all attributes of his post, including access to his office, continued access to his staff, and access to email communications,” and be put on paid administrative leave. (p. 2)

The next day letters signed by the President were sent to the Senate and House advising that Walpin was being removed as IG effective in thirty days, indicating that the President no longer had confidence in this IG.

The White House stood firm, even in the face of political pressure brought by Senators Charles Grassley, Claire McCaskill, Joseph Lieberman and Susan Collins. (p. 3) In response to inquiries by those Senators, the White House informed them that the removal resulted from a review “unanimously requested by the bi-partisan Board of [CNCS]…precipitated by a … Board meeting at which Mr. Walpin was confused, disoriented, unable to answer questions and exhibited other behavior that led the Board to question his capacity to serve.” (p. 3)

Following his actual removal, Walpin went to federal court, seeking a mandamus order to require the agency to comply with the statutory requirement that Congress be given a thirty-day written notice before taking action to remove an IG. (p. 4)

The district court threw out Walpin’s case, so he appealed. Now the appeals court has concluded that Walpin had no case. He “lacks the clear right to relief based on a clear duty to act that is necessary to obtain mandamus relief.” (p. 7) The appeals court turned aside Walpin’s argument that the White House had not complied with the thirty-day congressional notice requirement by issuing a perfunctory letter to the Senate and the House.

Since the President stated in his congressional letter that he “no longer” had “the fullest confidence” in Walpin, then the notice requirements had been met. This was enough to satisfy the “minimal statutory mandate” that the President notify the Congress. The court goes on to point out that the whole idea for the notice requirement was to “provide an opportunity for a more expansive discussion of the president’s reasons for removing an inspector general…” to “allow for an appropriate dialogue with Congress….” And, such a dialogue is “precisely what occurred here…” according to the court. (p. 7)

In short, former IG Walpin is out of options unless he can overcome the long odds of persuading the Supreme Court to take his case, should he decide to go for the next step.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.