Whistleblower Updates

An Open Letter (& PETITION) from Community of #Whistleblowers to Atty Gen Holder http://t.co/JFPsARJ | http://goo.gl/7R7xf

An Open Letter from the Community of Whistleblowers to Attorney General Eric Holder

Dear Attorney General Holder:

            We, the undersigned, wish to bring to your attention an important issue: the effective and ethical prosecution by the Department of Justice of Scott J. Bloch, a man who has gravely damaged the federal civil service.

As you undoubtedly know, Mr. Bloch began his tenure as head of the U.S. Office of Special Counsel, in 2003.  The Office of Special Counsel’s primary purpose is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.  However, until his abrupt resignation in 2008, Mr. Bloch eroded workplace discrimination protection on the basis of sexual orientation, conducted a political purge of his own employees, attempted to intimidate subordinates from cooperating with outside investigators, deleted computer files and destroyed whistleblower cases, and made false and misleading statements under oath to Congress.  After arrest by the Federal Bureau of Investigation and arraignment by the Department of Justice (DOJ) in 2008, Mr. Bloch pled guilty to criminal contempt of Congress in exchange for probation in sentencing.  The prosecuting attorney, Glenn S. Leon, Assistant U.S. Attorney for the District of Columbia, supported the defendant’s request in United States v. Scott J. Bloch through several court hearings and pleadings.  Recently, however, the presiding federal magistrate judge, Deborah A. Robinson, raised legal concerns with the sentencing provision, and determined that a mandatory minimum jail sentence is in order.  The defendant shortly thereafter revoked his guilty plea.  DOJ has not mentioned whether it will retain Mr. Leon for any trial.

We are concerned, however, that Mr. Leon’s official conduct up to now has rendered him unfit to prosecute the defendant.  Rule 1.3 of the Model Rules of Professional Responsibility, Comment 1, states that “[a] lawyer must . . . act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”  (Emphasis supplied).  In the instant case, Mr. Leon would have to contradict almost a year’s worth of arguments in support of the defendant, and state the exact opposite in front of a judge or jury.  This would erode his credibility and impartiality in the public light, as one would not reasonably expect that he would be able to zealously advocate the government’s position given his track record.  The government runs the risk of getting something less than his full effort, which warrants recusal.

Nor is mere substitution of one U.S. Attorney or Department of Justice prosecutor for another proper.  Rule 1.13(a) of the Model Rules of Professional Conduct states that “[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.”  Mr. Leon is an employee of the U.S. Attorney for the District of Columbia, which is currently occupied by Ronald C. Machen, Jr.  Both Mr. Leon and Mr. Machen represent the DOJ, which you lead.  Both of these subordinates must abide by any prosecutorial decisions made by your office.  Further, United States v. Scott J. Bloch is a high-profile, politically charged case.  The Office of Special Counsel deals with some of the most politically sensitive issues in government. It is therefore unlikely that any prosecutorial decision in this case, such as advocating for probation, would not come directly from your office.  Thus, Mr. Leon’s conduct and conflicts of interest are imputed to the entire Department of Justice.  Consequently, Mr. Leon’s urging for probation is imputed to the entire Department of Justice.

In addition, given the significant harm the defendant has caused to countless whistleblowers, the U.S. government, and the American people, the public interest requires that a credible, impartial, non-partisan prosecutor be tasked to lead this prosecution.

 DOJ regulations provide for such a situation:
28 C.F.R. 600.1 provides that,

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and–

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

We believe that both criteria are met.  Given the imputation by Mr. Leon to the DOJ, and the public interest in seeing the defendant held accountable, application of this regulation seems warranted.  Indeed, an important precedent exists for invoking this regulation: the 2003 investigation of the Valerie Plame CIA leak by U.S. Attorney Patrick Fitzgerald.  In that case, high-level DOJ officials, including Attorney General John Ashcroft and Deputy Attorney General James Comey, recused themselves from the case and appointed Mr. Fitzgerald as special prosecutor per the above regulation.  According to the Boston Globe in an article dated December 31, 2003, the case “provoked widespread speculation in Washington that senior administration officials were involved, thereby giving Ashcroft a conflict of interest in overseeing the case.”  Notably, the Globe reported that

Comey did not explain why Ashcroft chose to step aside now after absorbing criticism for months for his refusal to do so.  He said only that the attorney general decided it was ‘the appropriate point in this investigation’ based on the evidence gathered to date.

The issue surrounding the attorney general’s recusal is not one of actual conflict of interest that arises normally when someone has a financial interest or something,’ Comey said. ‘The issue that he was concerned about was one of appearance.  And I can’t go beyond that.  That’s the reason he decided, really in an abundance of caution, that he ought to step aside and leave me as acting attorney general for those matters.’

We are not of the belief that there is improper involvement by current DOJ officials in the defendant’s case, however, the concern about the appearance of impropriety is equally pressing.

Attorney General Holder, we have long waited for Mr. Bloch to be held accountable in a court of law.  For too many of us, the erosion of the rule of law and ethical conduct in government came with a heavy price.  With our whistleblowing activities, we sought, and continue to seek, a government of laws, not of men.  Please help us restore this noble and long-standing principle by appointing a special prosecutor to lead United States v. Scott J. Bloch.

 Sincerely,

 The Community of Whistleblowers and Their Supporters:

Ray Adams
Air Traffic Controller
Newark Airport
Department of Transportation / Federal Aviation Administration 

Bradley Birkenfeld
The UBS Whistleblower

Gabe Bruno
Retired Manager, Flight Standards
Department of Transportation / Federal Aviation Administration
Orlando, Florida

Joe Carson, PE
Safety Engineer
Department of Energy
Knoxville, Tennessee 

Mark Danielson
Federal Police Officer
Former Special Response Team Member
Department of Energy / Lawrence Livermore National Laboratory
Barstow, California

Julia Davis
Former Customs and Border Protection Officer
Department of Homeland Security / U.S. Customs and Border Protection
Beverly Hills, California

Tom Devine
Legal Director
Government Accountability Project
Washington, D.C.

Newton R. Dickson
Former First Officer
Continental Airlines

Michael Driscoll
Former Airline Pilot
Spirit Airlines
East Dennis, Massachusetts 

Bogdan Dzakovic  
Entry-level staff employee
Department of Homeland Security / Transportation Security Administration
Former Federal Air Marshal Team Leader
Former Red Team Leader
Department of Transportation / Federal Aviation Administration
Washington, D.C. 

Kenny Edwards
Former Regional Airline Captain
Gulfstream International Airlines
Phoenix, Arizona 

Kim A. Farrington
Former Aviation Safety Inspector – Cabin Safety
Department of Transportation / Federal Aviation Administration
Flight Standards Southern Region – Orlando, Florida

Franz J. Gayl
Science and Technology Advisor
Department of Defense / United States Marine Corps
Pentagon

Gordon Hamel
Former Director of Executive Placement
The President’s Commission on Executive Exchange
The White House

Daniel Hanley
Former B-777 Airline Captain
United Airlines

Edward Jeszka
Retired Aviation Safety Inspector
Department of Transportation / Federal Aviation Administration / Alabama, North Florida Flight Standards District Office
Birmingham, Alabama

Douglas Kinan
Former Equal Employment Opportunity Specialist
Department of Defense / Defense Contract Management Agency East
Boston, Massachusetts

Robert J. MacLean
Former Federal Air Marshal
Department of Homeland Security / Transportation Security Administration / Federal Air Marshal Service
Orange County, California

Shawn Malekpour
Aerospace Engineer
Chicago Aircraft Certification Office
Department of Transportation / Federal Aviation Administration

David Pardo
Former Attorney/Advisor
Department of Transportation / Federal Aviation Administration
Alexandria, Virginia

Dr. Janet Parker M.S., DVM 
Executive Director, Medical Whistleblower 
Medical Whistleblower Advocacy Network – Human Rights Defenders
Lawrence, Kansas

Spencer Pickard
Former Federal Air Marshal
Department of Homeland Security / Transportation Security Administration / Federal Air Marshal Service
Dallas, Texas

Nada Prouty
Former CIA Covert Operations Officer
Former FBI Special Agent
Central Intelligence Agency
Department of Justice / Federal Bureau of Investigation
Vienna, Virginia

Denise A. Romano
Corporate Governance Expert, Author
Columbia University Whistleblower
New York City, New York

Coleen Rowley
Retired FBI Agent
Department of Justice / Federal Bureau of Investigation

George Sarris
RC-135 Aircraft Mechanic
Offutt Air Force Base, Nebraska

Craig Sawyer
Former ATSAC (Manager)
Department of Homeland Security / Transportation Security Administration / Federal Air Marshal Service
Las Vegas, Nevada

Tony Shaffer
LtCol, US Army Reserve
Former Senior Intelligence Officer (Operations)
Department of Defense / Defense Intelligence Agency

Rachelle Halliburton, on behalf of the late Sharon E. Simmons
Former Team Leader, Annual Review Team, Washington District Office
Small Business Administration

Don Soeken, Ph.D
United States Public Health Service 06 Officer (retired)
Whistleblower Support Fund and International Whistleblower Archive

Robert Spahr
Aviation Safety Inspector
Department of Transportation / Federal Aviation Administration

R.W. Van Boven, M.D., D.D.S.
Physician-Scientist and Former Director
Department of Veterans Affairs / The Brain Imaging and (TBI) Recovery Laboratory

Glenn A. Walp, Ph.D
Former Office Leader of the Office of Security Inquiries
Department of Energy / Los Alamos National Laboratory
Criminal Justice Consultant and Adjunct Professor, Penn State University
Phoenix, Arizona

Mark Whitacre
Chief Operating Officer/President
Cypress Systems, Inc.
Former Executive
Archer Daniels Midland

Richard Wyeroski
Former Aviation Safety Inspector
Department of Transportation / Federal Aviation Administration
Bayport, New York

Charlotte Yee
Former San Francisco Regional Economist
Department of Labor / Bureau of Labor Statistics

 A Victim Impact Statement: http://february22foundation.wordpress.com/2011/03/03/doug-kinans-victim-impact-statements/

Check out our latest episode of Whistle Where You Work on the future of the Whistleblower bill, & our food conference http://bit.ly/bnU6gc

8 thoughts on “Whistleblower Updates

  1. I was asked to post this additional Victim Impact Statement:

    UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    UNITED STATES OF AMERICA ))) ) Criminal No: 10-MJ-0215-01(DAR)
    v. )
    SCOTT BLOCH ))
    DEFENDANT ))
    __________________________________________)
    VICTIM IMPACT STATEMENT OF JOSEPH CARSON, PE
    I am one of the initial signatories in the amicus curiae brief accepted by the
    Court on July 23, 2010. While Mr. Bloch has pled guilty of lying to Congress
    with respect to his actions about his and agency computers, he has lied to
    Congress in other, more substantive, ways too.
    Specifically, his cover letters for the Office of Special Counsel (OSC)
    Annual Reports to Congress for the years 2004, 2005, 2006, and 2007 (exhibits 1-
    4) claim the reports were submitted in accordance with 5 U.S.C. §1218. In fact,
    these reports did not contain much, if not most, the information required by 5
    U.S.C. § 1218, a point I raised in litigation to this Court in Carson v. Office of
    Special Counsel, no. 07-0443, decided February 19, 2008, 534 F.Supp.2d 103.
    While the Court did not find in my favor, I can claim a (small) “moral
    victory” in that OSC no longer claims its Annual Reports to Congress are in
    2
    accordance with 5 U.S.C. §1218 (exhibit 5 is the cover letter for OSC’s 2009
    report).
    This is not just a fine point – it gets to the heart of the long-standing
    corruption in OSC – corruption Scott Bloch found, but did not end. Had OSC’s
    Annual Reports to Congress contained the information described in 5 U.S.C.
    §1218, its failure to enforce the laws under its jurisdiction as the law requires
    would be clearly evident.
    For 18 years, I and my family have suffered much as a result of my putting
    my duty to my profession of engineering and its code of ethics as well as to the
    “merit system principles” – the bedrock values of the federal civil service – ahead
    of my self-interest. I complied with my positive legal and professional duty, as a
    professional engineer (PE), employed by the Department of Energy as a nuclear
    safety engineer, by telling the truth about unsafe working conditions in the
    Department of Energy. And when I was unlawfully punished for it, I defended my
    “right” to do my duty to protect others, via rule of law. During this process, OSC
    has been AWOL, thereby enabling the agency lawbreaking, thereby enabling the
    unsafe working conditions.
    Scott Bloch will stand before you for sentencing, in contrast, for betraying
    his positive legal and professional duty, as a federal employee and licensed
    3
    attorney, to tell the truth to Congress.
    I have been repeatedly betrayed by the Office of Special Counsel, its
    attorneys, and its leaders, including Scott Bloch, in the past 18 years, by its failure
    to enforce the civil service laws, rules, and regulations under its enforcement
    jurisdiction as the law requires. But OSC did not single me out, it has betrayed
    many thousands of loyal, patriotic federal employees – who were as foolhardy as I
    in putting professional duty to the common good before their self-interest – since
    its creation in 1979. As a result, the civil service is battered, corruption and
    dysfunction have taken root and flourish in many federal workplaces and America
    is much diminished and more threatened.
    I doubt anyone in the history of the federal civil service, since its creation in
    1883, has “prevailed” in more whistleblower related litigation than I. Had OSC
    enforced the laws under its jurisdiction as the law requires, I doubt I would ever
    had needed to blow whistles – nor would my agency even have seriously
    considered reprisal.
    At this point, in large part because of OSC’s lawbreaking, I would have to
    give any concerned engineer or federal employee the counsel of despair – “look the
    other way, if you can live with yourself.” Your Honor, I just cannot “live with
    myself” having to give such awful counsel, so I keep trudging on, at high personal
    4
    and professional cost, hoping to contribute to positive change in my profession of
    engineering and the federal civil service – and if my ongoing efforts to expose and
    end OSC’s 32 years of lawbreaking are successful, I will have done so (exhibit 6 is
    my letter to Carolyn Lerner, nominee for Special Counsel, and its attachment,
    exhibit 7, is my letter to retiring Congressman Bart Gordon who was Chairman of
    the House Science Committee).
    Sentencing Scott Bloch to incarceration would send one clear message
    while not doing so would send another. If he is sentenced to incarceration, it
    would, in my opinion, positively impact OSC, including the current Senate
    confirmation process of Carolyn Lerner, whom President Obama has nominated to
    the position of Special Counsel. This Court would be sending a clear message to
    Ms. Lerner, to OSC employees, to Congress, and the federal civil service – the
    Special Counsel must scrupulously comply with the law in discharging her duty,
    which includes communicating with Congress. This Court would also be sending
    a clear and vitally important message all Americans – when you state something to
    Congress – it better be true.
    Scott Bloch could, if he decides, help in having my concerns substantiated
    or dispelled. He could go on record that the Office of Legal Counsel of the
    Department of Justice should review OSC’s interpretations of its nondiscretionary
    5
    statutory duties to enforce the laws within its jurisdiction, particularly 5 U.S.C.
    §1214(e), as well as how the Merit Systems Protection Board (MSPB) has
    interpreted its nondiscretionary statutory duty to conduct special studies to
    determine whether federal employees are adequately protected from reprisal and
    other prohibited personnel practices (PPP’s), per 5 U.S.C. §1204(a)(3), and how
    agency heads have interpreted their nondiscretionary statutory duty to “prevent
    PPPs,” per 5 U.S.C. §2302(c).
    If he does so prior to sentencing, I hope the Court will consider it favorably
    regarding the range of time he could be incarcerated.
    Respectfully Submitted,
    ___________________________
    Joseph P. Carson, P.E.
    10953 Twin Harbor Dr
    Knoxville, TN 37934
    865-300-5831
    6
    Certificate of Service
    I certify that the following documents for United States v. Scott Bloch, docket no. 10-0215:
    1. Victim Impact Statement of Joseph Carson, PE and its exhibits
    was served by first class mail on:
    Representative for Scott Bloch
    William Sullivan
    Winston and Strawn
    1700 K St, NW
    Washington, DC 20006
    US DOJ
    Glenn Leon
    Special Proceeding Section
    555 Fourth St, NW
    Washington, DC 20530
    __________________________________
    Joseph P. Carson
    January 10, 2011

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