COMPLAINT OF PROHIBITED PERSONNEL PRACTICES AGAINST
SPECIAL COUNSEL SCOTT BLOCH

Submitted by:

Debra S. Katz, Esqu re
Rashida Adams, Esquire
Bernabei and Katz, PLLC
1773 T Street, NW
Washington, D.C. 20009
(202) 745-1942
Counsel for:
Anonymous Career Employees of the
U.S. Office of Special Counsel
The Government Accountability Project
The Human Rights Campaign
Public Employees for Environmental
Responsibility
The Project on Government Oversight

March 3, 2005

 STATEMENT IN SUPPORT OF
COMPLAINT OF PROHIBITED PERSONNEL PRACTICES
AGAINST U.S. SPECIAL COUNSEL SCOTT J. BLOCH
I.

INTRODUCTION

This statement is filed pursuant to 5 U.S.C. § 1214 in support of the attached
complaints alleging the commission of a series of prohibited personnel practices as well
as violations of civil service laws, and other acts of malfeasance by U.S. Special Counsel
Scott J. Bloch. l

A. The Complainants
There are two groups of complainants:

1. An alliance of public interest organizations that have a strong and direct
interest in assuring that OSC impartially and effectively performs its mission of
promoting the merit system and protecting whistleblowers against retaliation. These
organizations are the Government Accountability Project, the Project on Government
Oversight, Public Employees for Environmental Responsibility, and the Human Rights
Campaign.
OSC has jurisdiction over the complaints of these organizations pursuant to 5
U.S.C. § 1214(a)(l)(A), which provides that "the Special Counsel shall receive any
allegation of a prohibited personnel practice and shall investigate the allegation to the
extent necessary to determine whether there are reasonable grounds to believe that a
prohibited personnel practice has occurred, exists, or is to be taken." As OSC has long
recognized, this provision permits any individual or organization to invoke OSC's
jurisdiction by filing a complaint with the agency, alleging the commission of prohibited
personnel practices, or the violation of civil service laws, rules and regulations, whether
or not the complainants have themselves been the victims of the illegal actions. This long
held interpretation is based on the clear statutory language as well as the broad interest
the public possesses in protecting whistleblowers against retaliation and ensuring
compliance with the laws that promote the merit-based civil service.
2. The second set of complainants consists of a group of OSC career employees
who were subject to the illegal and retaliatory involuntary geographic reassignments
described below and/or the hostile work environment arising out of the culture of fear and

lAttached hereto is an executed copy ofOSC's Complaint Form, which incorporates this
Statement by reference.

 retaliation that Mr. Bloch has fostered at OSC, as well as an illegal gag order that Mr.
Bloch issued in April 2004. Because they fear retaliation by Mr. Bloch, they are filing
their complaint anonymously, through their counsel, Debra Katz, of the law firm of
Bernabei & Katz, PLLC.
B.

Summary of Prohibited Personnel Practices and Violations of Civil
Service Law

The prohibited personnel practices and violations of civil service law that Special
Counsel Bloch has committed include:
Creation of a hostile work environment arising out of an escalating series of
retaliatory acts against career OSC staff, culminating in the involuntary
geographic reassignment of twelve career employees because of protected
whistleblowing and/or perceived whistleblowing, and the subsequent proposal
to remove those employees who declined the involuntary reassignments.
Threatening to retaliate against employees by hastening their termination
dates and bringing further unspecified charges against them because they
refused to enter an agreement waiving their rights to challenge the illegal
reassignments and proposed removals.
Violation of the First Amendment rights ofOSC career employees by the
issuance of an illegal gag order, which prohibits them from communicating
with the press, Congress, or any outside party regarding so-called
"confidential or sensitive internal agency matters", without the permission of
Mr. Bloch or a member of his political staff.
Violation of the Anti-Gag statute by imposing a non-disclosure policy on
career staff that fails to include required guarantees regarding employees'
statutory free speech rights.
Violation of the Lloyd LaFollette Act,S U.S.C. § 7211, which guarantees all
federal employees the right to communicate with Congress, through a nondisclosure policy which precludes employees from engaging in such
communications without the permission ofMr. Bloch or a member of his
political staff.

C.

Summary of Other Acts of Malfeasance and Failure to Perform
Statutory Duties

As detailed below, the complainants' allegations involve not only the commission
of prohibited personnel practices and violations of civil service laws, but also numerous
acts of malfeasance by Mr. Bloch and failures to perform statutory duties. These include
the abandonment of merit-based competitive hiring for career positions in the agency, the

2

 purging of existing career staff to make way for Mr. Bloch's personal picks, the misuse
of special hiring authorities, the refusal to enforce existing statutory prohibitions against
sexual orientation discrimination in the federal workforce, the summary closure of
hundreds of whistleblower disclosures submitted to the agency, and the politicization of
Hatch Act enforcement. In many instances, Mr. Bloch has made misleading statements
to the public and Congress about these actions.
Indeed, Mr. Bloch's obsession with secrecy and his aversion to transparency have
manifested themselves yet again in connection with the most recent of his illegal
personnel actions-the forced geographic reassignments and proposed removals of
experienced OSC career staff. As is widely known at the agency, Mr. Bloch offered
employees who are being removed for refusing to accept involuntary geographic
reassignments several additional weeks of pay, but only if they agreed to waive their
legal rights, and submit to a gag order. The waiver of rights included, not only a waiver
of employees' rights to file complaints with the Office of Special Counsel or the Merit
Systems Protection Board, but also an agreement not to file complaints about Mr. Bloch
with the President's Council on Integrity and Efficiency. Further, Mr. Bloch conditioned
the additional weeks of pay upon an agreement by the employees not to discuss his illegal
actions with anyone at all, unless compelled to do so by subpoena.
To their credit, the employees rejected this offer, whose terms are antithetical to
the very mission that OSC was established to promote -- transparency and accountability
in government. Thereafter, as detailed below, Mr. Bloch threatened to take further action
against the affected employees, by hastening their departure and bringing additional
charges against them, for refusing to waive their legal rights.

D.

Summary of Relief Requested

The complainants' allegations against Special Counsel Bloch are serious ones,
which go to the heart of the OSC's credibility and effectiveness as a watchdog of the
merit system. Complainants are entitled by law to an independent investigation of their
complaints and to an opportunity for those complaints to be prosecuted on their behalf by
the Office of Special Counsel. As is readily apparent, however, Mr. Bloch cannot
credibly oversee the investigation of the complaints because he is their subject. Nor can
any of his political staff or any members ofOSC career staff, who all serve as his
subordinates, take part in the investigation or be involved in any decisions related to it.
Indeed, the OSC's complainants' ability to remain anonymous would be jeopardized if
any OSC staff were assigned to work on this complaint because if the matter was
assigned to one of the complainants, they would have to recuse themselves, thereby
revealing their identities.
To avoid further injury, complainants request that OSC immediately stay the
reassignments and/or removals of affected OSC employees and stay further
implementation of the gag order pending an investigation. Further, in light of the fact
that OSC cannot investigate these complaints itself, complainants request that they be

3

 referred for an investigation and recommendation of corrective and/or disciplinary action
by an impartial Office of Inspector General, chosen by the Chairman of the President's
Council on Integrity and Efficiency.

II. STATEMENT OF FACTS AND CHRONOLOGY OF EVENTS
A.

Background: Public Controversy Erupts During the Special Counsel's
Second Month in Office When He Removes References to Sexual
Orientation Discrimination from OSC Website, Resulting in a Rebuke
by the White House

Special Counsel Bloch took office on January 5, 2004. One month later, in one of
his first official acts, Mr. Bloch ordered that all references to OSC's jurisdiction over
complaints by federal workers alleging sexual orientation discrimination be "scrubbed"
from OSC's website, and its official publications. The items scrubbed included, among
others, references to sexual orientation discrimination contained in OSC's mandatory
complaint form and informational flyer. The scrubbed items also included a June 2003
OSC press release announcing the settlement of a sexual orientation discrimination
complaint filed by an applicant for a position with the Internal Revenue Service, which
resulted in the imposition of disciplinary action against an IRS supervisor. See June 2003
press release, attached and incorporated herein as Exhibit 1.
Almost immediately after Mr. Bloch took these actions, they became publicly
known, when the National Treasury Employees Union issued a press release on February
12,2004, along with a letter from its President, protesting the action. See February 12,
2004, press release attached and incorporated herein as Exhibit 2. A heated public
controversy erupted. The controversy triggered significant national media attention and
bipartisan expressions of concern by members of Congress. 2

2Among the Congressional inquiries was a February 19, 2004 letter from the Senate
Committee on Governmental Affairs, signed by both Chairman Susan Collins (R-Maine)
and ranking minority member Joseph Lieberman (D-Connecticut), among others; a
March 4, 2004 letter from Rep. Shays (R-Connecticut), Rep. Greenwood (RPennsylvania), and Rep. Simmons (R-Connecticut); and a separate March 4, 2004 letter
signed by 70 other Members of the House on the Democratic side. See Congressional
Letters attached and incorporated herein as Exhibit 3. The letter from Senators Collins
and Leiberman expressed concern that Mr. Bloch's decision to remove all references to
jurisdiction over sexual orientation discrimination complaints "appears inconsistent with .
. .assurances" that Mr. Bloch had given to committee staff in written submissions and
conversations during consideration of his nomination two months before, that he would
continue OSC's policy of protecting federal employees against sexual orientation
discrimination.

4

 Notwithstanding negative media and Congressional reaction, and against the
counsel of members of his career staff, Mr. Bloch resisted initial calls to restore the
information he had ordered removed from OSC's web site and publications. Instead, he
announced that he was conducting a "full legal review'" of a question that had already
been settled for over 20 years within the rest of the Executive Branch: whether it is a
prohibited personnel practice within the meaning of 5 U.S.c. § 2302(b)(1 0) to
discriminate against federal employees on the basis of their sexual orientation. See
February 27, 2004 OSC Press Release, attached and incorporated herein as Exhibit 4.
The controversy continued over the next month, until it reached its zenith on
March 31, 2004, when several Members of the House and Senate held a joint press
conference to condemn Mr. Bloch's rollback of rights, and to call on the White House to
assist in the resolution of the matter. The same day, the White House responded, issuing
a strongly-worded statement, which was widely interpreted as a rebuke ofMr. Bloch.
The White House confirmed that "[l]ong-standing federal policy prohibits discrimination
against federal employees based on sexual orientation. President Bush expects federal
agencies to enforce this policy and to ensure that all federal employees are protected from
unfair discrimination at work." See Statement attached and incorporated herein as
Exhibit 5 ("Employees are protected from bias for sexual orientation, White House says,"
April 1, 2004 Federal Times).

B.

The Special Counsel Feigns Compliance With the White House
Directive, But Never Restores the Deleted Information to OSC's
Website and Continues to Apply His Discredited Interpretation of the
Law

Shortly after the White House rebuke, on April 8, 2004, Mr. Bloch issued an OSC
press release acknowledging the White House statement, and purporting to announce the
results of his "legal review." The press statement was vague and confusing. Rather than
simply acknowledging that discrimination based on sexual orientation is a prohibited
personnel practice, the statement asserted that OSC would enforce protections against
sexual orientation discrimination, where such discrimination was based on "imputed
private conduct." See April 8, 2004 statement attached and incorporated herein as
Exhibit 6.
It is now clear that Mr. Bloch issued this opaque statement only in order to deflect
the criticism being directed against him and to feign compliance with the President's
clear statement that he expected federal agencies (presumably including OSC) to enforce
prohibitions against sexual orientation discrimination. In fact, Mr. Bloch never shifted
his course on this issue; on the contrary, he refuses to this day to enforce the statutory
prohibition against sexual orientation discrimination that flows from 5 U.S.C. §
2302(b)(10).
Thus, OSC's practice under Mr. Bloch's direction has been to close complaints by
federal employees alleging discrimination based on sexual orientation, even in the most

5

 egregious of circumstances. This is demonstrated in a very recent case involving Michael
Levine, a 32 year veteran ofthe Forest Service, who had an unblemished record until he
blew the whistle on another agency manager's misconduct. Mr. Levine, who is gay, was
suspended for 14 days on trumped up charges after he made protected disclosures to the
agency inspector general alleging that a fellow manager was running a sporting goods
business from the worksite, that he was absent from the worksite without authorization,
that he had sold equipment to the Forest Service for his own profit, and that he had
improperly rented a trailer owned by his parents, on behalf of the Forest Service.
Mr. Levine filed a complaint with OSC in November 2003, alleging that he was
suspended in retaliation for whistleblowing and because of his sexual orientation. On
January 27,2005, after sitting on Mr. Levine's complaint for over a year, and refusing to
return Mr. Levine's many telephone calls, OSC closed both the whistleblower retaliation
and sexual orientation discrimination allegations in his case, without investigation.
OSC declined to investigate Mr. Levine's allegations of whistleblower retaliation
despite the fact that the suspension he suffered occurred almost immediately after Mr.
Levine made his protected disclosures, and despite the fact that the subsequent charges
leveled against Mr. Levine were patently pretexual. OSC declined to investigate the
allegations of sexual orientation discrimination despite the fact that the trumped up
charges against Mr. Levine were crafted by a personnel officer who remarked to a
witness, in reference to Mr. Levine, "don't you just hate these fucking faggots?" Indeed,
OSC closed the case without investigation, despite the fact that Mr. Levine provided a
written statement from this witness, attesting to the fact that the personnel officer had
made this despicable statement of animus. OSC closed the case on the grounds that while
the hateful statement was "offensive" and "insensitive," Mr. Levine had apparently not
satisfied Mr. Bloch's bizarre legal test, which holds that discrimination based on off duty
sexual conduct is illegal, but that discrimination based on sexual orientation is not.
The handling of Mr. Levine's complaint, which is detailed in the attached letter
from the Human Rights Campaign, including Mr. Levine's correspondence with OSC
was disgraceful. See Letter from Human Rights Campaign to S. Bloch (March 2, 2005),
attached and incorporated herein as Exhibit 7. As far as we know, however, it is only the
tip of the iceberg. To date, Mr. Bloch has never restored the disputed materials to OSC's
website or other publications and he has continually stonewalled Congressional requests
that he provide a clear explanation of his policy regarding sexual orientation
discrimination. 3

3It

bears noting that Mr. Levine's case was handled through the special procedure
Mr. Bloch instituted, requiring that all sexual orientation claims be processed under the
supervision of one of his political appointees, James McVay. The OSC employee who
wrote the letter under Mr. McVay's supervision (Thomas Forrest) is one of the
employees Mr. Bloch personally brought on board in the last year, as described infra,
through a non-competitive secret hiring procedure. Mr. Forrest appears to have secured

6

 c.

Mr. Bloch's Open Expressions of Animus Toward Staff Suspected of
"Leaking" to the Press, His Public Statements Denouncing OSC "Leakers,"
and His Issuance of a Gag Order to OSC Staff

During the course ofthe controversy described above, Mr. Bloch made known his
belief--and his anger--that OSC staff had "leaked" word to the media of his actions on the
sexual orientation issue. Mr. Bloch raised this issue both internally and publicly.
Internally, Mr. Bloch complained to career staff that members of the press were calling
and telling him that career OSC employees were "agitated" over his actions. He also
expressed to members of the career staff his belief that he could not "trust" any of them
in light of the public airing of the controversy.
Further, Mr. Bloch expressed his hostility and suspicions of the career staff
publicly. In an interview with the Federal Times, which occurred in the midst of the
controversy, Mr. Bloch is quoted as stating that "[i]t's unfortunate that we have a leaker
or leakers in our office who went to the press rather than coming to me...." See Federal
Times (Mar. 22,2004), attached and incorporated herein as Exhibit 9 ("New counsel
reviews whistleblower, bias laws.")
The full text of what Mr. Bloch told the reporter is even more revealing. It is as
follows:
Federal Times: Any regrets over how you kind of entered this office under a
bit of controversy? Anything you wish you would have done differently?
Bloch: No I'm proud of the decision I made to follow the law and do a full
legal review. It's unfortunate that we have a leaker or leakers in our office
who went to the press rather than coming to me and complaining and saying
we need to do this differently or I need to have my voice heard or I don't think
you're doing the right thing. No one came and said that. I talked to my senior
staff and they made suggestions about what to take down from the website.
That's all I heard. And the next thing I know the press was calling me and
telling me I have people in my office agitated. I think that's unfortunate,
because we need to focus on our mission as an agency and pull together to do
what's right for the workers and right for the merit system."

his position because he is in the same Army reserve unit as Deputy Special Counsel
James Renne. Mr. Renne himself is on the public record vehemently opposing the civil
rights of gay and lesbian citizens. See http://www.priestsforlife.org/governmentlsg.htm
attached and incorporated herein as Exhibit 8.

7

 In fact, Mr. Bloch's claim that "no one" had raised questions internally about his
decision to "scrub" the website, was false. Members of the career staff raised concerns
with him about this action, as well as raising concerns about his new "interpretation" of
the law. The senior staff did not "make suggestions" to him about what to take off the
website; they simply identified for him the parts of the website that referred to OSC's
role in enforcing the prohibition on sexual orientation in the federal worksite. Mr. Bloch
did not invite the career staff to participate in his "legal review." Indeed, they never
received any further information about how that "review" was conducted, much less any
notification of how the legal issue was resolved (other than the confusing press release
described above).4
To forestall further leaks to the media, at the same time he announced the results
of his "legal review" on the sexual orientation issue, Mr. Bloch imposed a patently illegal
gag order on OSC career staff. Shortly after the April 8 press release referred to above,
the staff was sent an e-mail that reads, in its entirety, as follows:
The Special Counsel has requested that we convey to you that he and his
staff have completed their legal review of OSC's jurisdiction to process
claims under title 5, section 2302(b)( I0), alleging sexual orientation
discrimination. Their conclusions can be found in a recently posted press
release on OSC' s website. If, in the performance of your case-processing
duties, current or potential complainants, their representatives, or agency
representatives ask about OSC's policy on (b)(lO) complaints, you should
simply refer them to the press release on our web site as a complete and
definitive statement of OSC's policy.
Please also note that the Special Counsel has directed that any official
comment on or discussion of confidential or sensitive internal agency
matters with anyone outside OSC must be approved in advance by an
IOSC official. 5
See E-Mail to OSC staff, attached and incorporated herein as Exhibit 10.
Mr. Bloch's gag order triggered another round of negative media attention,
including coverage in the Washington Post and other media outlets. In remarks to the
Washington Post, Mr. Bloch made further disingenuous representations, claiming that
neither he nor his staff had approved the final language of this e-mail. In fact, although
Mr. Bloch's statement was technically accurate, he and/or his staff definitely did approve
4Mr. Bloch has never produced a copy of the "legal review" he claimed to have
conducted, notwithstanding the request of several Members of Congress that he do so.
5 "IOSC" stands for "Immediate Office of the Special Counsel"-i.e. Mr. Bloch or a
member of his political staff.

8

 an earlier version of the e-mail that was identical to the final version in all material
respects. Moreover, it was he who directed that a gag order be issued in the first place.
Further, while Mr. Bloch claims he never reviewed the final language of the gag
order, he has never rescinded it notwithstanding that it is directly violative of the
Whistleblower Protection Act, the "Anti-Gag" Statute, the First Amendment, and the
Lloyd LaFollette Act. OSC staff, including the anonymous complainants, have
reasonably concluded that the gag order is still in effect and that Mr. Bloch will punish
OSC employees who violate the gag order6

D.

Mr. Bloch's Ensuing Pattern of Non-Competitive Hiring, Including the
Hiring of Unqualified Cronies, and Marginalization of Career Staff

In the months after the controversy over the sexual orientation issue and gag order
occurred, Mr. Bloch began to increasingly exclude career OSC staff from any
participation in key agency management and policy decisions. He also doubled the
number of Schedule C (i.e. political) employees at the agency, and dramatically increased
the size of his immediate staff. In doing so, he used positions budgeted for program staff
to assemble a palace guard.
In addition, during this period, Mr. Bloch stripped senior executives and mid-level
career managers of their longstanding authority to hire their subordinate employees, and
began a pattern of personally hiring employees for career positions on a non-competitive
basis. Consistent with this new policy, all career hires have been hand-picked by either
Mr. Bloch or his political staff. In every case, the career supervisors of these new hires
were completely excluded from the hiring process and did not meet the new hires until
their first day of work. 7

6 Mr. Bloch's displeasure with the negative press attention he received in the wake of
these controversies continued over succeeding months. Indeed, six months later, in an
interview with the hometown newspaper where he had attended college, Mr. Bloch
characterized the entire controversy over his actions as resulting in what he called "a
huge, unnecessary hullabaloo." See Lawrence Journal-World (Oct. 1,2004), attached
and incorporated herein as Exhibit 11.

In his recent letter to Congressman Waxman, Mr. Bloch asserted that "our hires since
coming to OSC have been with the input of senior personnel in the career service...."
See Letter to Congressman H. Waxman from S. Bloch, attached and incorporated herein
as Exhibit 12. To the extent that Mr. Bloch is asserting that senior personnel in the career
service at OSC have had input into his hiring decisions, that claim is inconsistent with the
truth. The sole exception to complainants knowledge is Mr. Bloch's agreement to hire
one ofOSC's incumbent law clerks into an attorney position in the Hatch Act Unit, at the
recommendation of the Unit's supervisor. If Mr. Bloch is asserting that senior personnel
in the career service at some other agency have had input into the hiring decisions,
7

9

 In most, if not all cases, the new hires brought on board by Mr. Bloch also had no
background in employment or labor law. Worse still, a number of them are known to
have a personal connection or affiliation to Mr. Bloch or his Deputy, James Renne. For
example, Mr. Bloch hired two attorneys at Mr. Renne's recommendation, one of whom
(as noted earlier) serves with Mr. Renne in his Army reserve unit and another who is the
brother of an officer in that unit. Neither one has relevant experience in labor or
employment law.
Mr. Bloch also hired Alan Hicks, the former headmaster of a Pennsylvania
boarding school attended by one or more of his children (St. Gregory's Academy).
According to a recent letter that Mr. Bloch sent to Congressman Henry Waxman, he hired
Mr. Hicks non-competitively to serve as a "consultant" or "expert" on a "intermittent"
basis, purportedly pursuant to 5 U.S.C. § 3109 and 5 CFR § 304.103. See Letter from S.
Bloch to H. Waxman, attached and incorporated herein as Exhibit 12.
Mr. Hicks' hiring cannot be justified under these provisions. Under the
regulations, a "consultant" is "a person who can provide valuable and pertinent advice
generally drawn from a high degree of broad administrative, professional or technical
knowledge or experience." 5 CFR § 304.102(b). An "expert" is a person who is
"specially qualified by education and experience to perform difficult and challenging
tasks in a particular field beyond the usual range of achievement of competent persons in
that field." The regulations further provide that "an expert is regarded by other persons in
the field as an authority or practitioner of unusual competence and skill in a professional,
scientific, technical or other activity." 5 CFR § 304.102(d).
Mr. Hicks is a former school master, who apparently also had some experience
teaching logic and philosophy at the University of Kansas (where Mr. Bloch also served
on the adjunct faculty). In his letter to Representative Waxman, Mr. Bloch asserted,
without further explanation, that he hired Mr. Hicks to "improve [OSC's] procedural
operations and advice [sic] on training initiatives." It is unclear exactly what this means.
Mr. Bloch has not revealed how Mr. Hicks is being compensated or precisely what it is
he has done for the agency in the past, or is expected to do in the future. So far as the
career staff is aware, at this point, Mr. Hicks' work has included giving a dry speech at
the OSC off-site conference last Spring about the "philosophy of work" and playing some
undefined role concerning the processing of cases in OSC's Disclosure Unit. On the
basis of the latter, he was provided with copies of confidential OSC disclosure files for
his review. So far as anyone at OSC can determine, Mr. Hicks has no experience

complainants are unaware of whether that assertion is true or false, but it is clearly beside
the point.

10

 relevant to OSC's work, and appears to have been given a federal job only because of his
prior personal connection with Mr. Bloch. 8
In addition to invoking extraordinary statutory authority to give Mr. Hicks a
federal job on a non-competitive basis, Mr. Bloch has also personally recruited and hired
several inexperienced recent graduates of the Ave Maria School of Law, a law school that
9
is religiously oriented and only provisionally accredited.
Mr. Bloch has engaged in a cover up of his hiring practices by refusing to provide
documents concerning his non-competitive hiring and no-bid contracts, which were the
subject of a Freedom of Information Act Request made by Public Employees for
Environmental Responsibility in June 2004. PEER publicized Mr. Bloch's refusal to
comply with FOIA as well as his crony hiring in a press release it issued November 17,
2004. See Press Release from PEER, attached and incorporated herein as Exhibit 16.
Mr. Bloch was deeply angered by PEER's press release. It is entirely reasonable
to infer that Mr. Bloch suspected the career staff of "leaking" again, this time by
providing information to PEER about his non-competitive hiring practices and the
potentially embarrassing hiring arrangement he entered on behalf of OSC with Mr. Hicks.
Finally, during this time period, in October, 2004, Marie Glover, the GS-15
Director of OSC's Human and Administrative Resource Management Branch, resigned
abruptly and unexpectedly, giving only a few days notice. At the same time, her senior
personnel specialist, Joanne O'Quinn, also retired on very short notice. Ms. Glover's
duties included ultimate responsibility for all OSC personnel actions and procurement
decisions. She had served at OSC in similar functions since OSC was created in 1979,
through the terms of every Special Counsel, and had developed a reputation for very high

8As

noted, Mr. Hicks is the former headmaster of a Catholic boarding school in
Pennsylvania (St. Gregory's Academy). Mr. Hicks apparently left that position in the
wake of a scandal concerning, among other things, allegations of priests sleeping with
young male students at the Academy. See "Scranton Scandal" and "Scranton Scandal-A
Follow Up" by Rod Dreher in National Review On Line (February 7 and February 15,
2002) at http://www.nationalreview.com/dreher/dreher020702.shtml and
http://www.nationalreview.com/dreher/dreher021502.shtml attached and incorporated
herein as Exhibits 13 and 14, respectively. See also, "The Seduction ofthe Society ofSt.
John" by Michael Chapman, at http://www.rcf.org/docs/seductionssjp1.htm attached and
incorporated herein as Exhibit 15.
The mission statement of the Ave Maria School of Law, located in Ann Arbor,
Michigan, asserts that the school is "dedicated to educating lawyers with the finest
professional skills characterized by the harmony of faith and reason in fidelity to the
teachings of the Catholic Church."

9

11

 integrity and strict compliance with law and regulation in all personnel and procurement
actions that she approved. 10
Ms. Glover's sudden and unexplained departure resulted in a serious loss to OSC
of decades of institutional knowledge and experience. To OSC staff, Ms. Glover's abrupt
and unexplained resignation was an additional signal of severe management dysfunction,
and possible improprieties in the personnel and procurement functions.
E.

Mr. Bloch's Purge of Experienced Career Staffthrough Involuntary
Reassignments

On January 6, 2005, Mr. Bloch escalated his attack on the career staff by directing
the involuntary geographic reassignment of twelve career OSC employees
(approximately 20 percent of the legal and investigative team at headquarters, including
two of the four career senior executives at OSC). This reassignment was announced with
no notice whatsoever to the staff, except for the two career executives, who had been told
of their reassignments only the previous day.1I
Seven employees, including one of the two career senior executives, as well as the
Director ofOSC's Alternative Dispute Resolution (ADR) program, were directed to
report to a newly created field office in Detroit, Michigan. These seven employees were
senior executive Cary P. Sklar (Associate Special Counsel for Investigation and
Prosecution Division ("IPD") III), and six members of his staff: Linda Myers (OSC's
ADR Director), Ron Engler (Attorney Team Leader, IPD III), Travis Elliott (Senior
Attorney, IPD III), Brian Uryga (Attorney, IPD III), David Brooks (Attorney IPD III) and
Sharon Lee (Investigator, IPD III). Three other members ofMr. Sklar's staff, along with
an attorney in the OSC complaints examining unit, were told that they would be
involuntarily transferred to fill vacancies in OSC's existing Dallas field office. 12

10Ms. Glover has indicated to several individuals that although she is not willing to
discuss the circumstances of her departure, or her tenure under Mr. Bloch with the press,
she would be willing to cooperate fully in any official investigation.
IIApparently, the only reason these senior executives were given any notice at all, was to
feign compliance with 5 C.F.R. § 317.901(b), which requires an agency to consult with
senior executives before giving them the required 60 day notice of their geographic
reassignment. The "consultation" with Mr. Sklar and Mr. Reukauf was, of course, a
farce, as Mr. Bloch was already planning to announce his reorganization to the staff, and
give them their 60 day notices, the next day.
The employees reassigned to the Dallas Field Office are Alberto Rivera-Fournier
(Senior Attorney, IPD III), Caprice Andrews (Investigator, IPD III), Joan Howell
(Investigator, IPD III) and Michael Lupinski (Attorney, Complaints Examining Unit).
12

12

 Two of the employees subject to the transfer to the Detroit and/or Dallas field
offices are openly gay. In addition, Mr. Sklar, Mr. Elliot and Ms. Myers had all
previously been employed by the National Treasury Employees Union, the organization
that first brought the sexual orientation discrimination controversy to light through a
February 12, 2004 press release. Mr. Engler is the staff attorney who had handled the
IRS sexual orientation discrimination case that was the subject of the press release
deleted from the OSC website by Mr. Bloch, and never restored.
The twelfth employee reassigned was William Reukauf, a career senior executive
who has been with OSC since 1983, and has served for extended periods oftime as
Acting Special Counsel. Mr. Reukaufhas been in charge ofOSC's Hatch Act
enforcement for many years, and is widely perceived by the staff as an individual of high
integrity and impeccable impartiality. We understand that Mr. Reukauf has angered Mr.
Bloch and been accused of "disloyalty" for raising concerns internally concerning certain
· and management deClSlons.
..
13
po 1ICY
Mr. Reukauf was reassigned to head the existing Oakland field office. The
Oakland field office has a staff often employees. Further, like the Dallas field office, the
Oakland field office has been headed successfully for many years by an experienced
grade 15 manager.
Mr. Bloch initially advised the affected employees that they must report to their
new assignments within 60 days. He also advised them that they would be fired if they
did not agree to relocate. Eight of the twelve employees subject to the geographic
reassignment have declined them. 14 At least three ofthe four employees who initially
indicated their acceptance of their reassignment did so under duress. 15 Seven of the eight
employees who declined the transfer have been given notices of removal. One of the
transferred employees who had initially expressed acceptance of the transfer under duress
has resigned in the face ofthe involuntary reassignment, and found another position.
The management justifications for the reassignment of the twelve career
employees to the field as part of a "reorganization" are patently pretextual. In a January
In addition, Mr. Reukaufmay well have been in disfavor because of his role in the
Hatch Act prosecution of Alan White, which was undertaken during the term of the prior
Special Counsel. Mr. Bloch's political Deputy, James Renne, and Mr. Bloch's Senior
Advisor, Brendan McGrath, had previously worked with Mr. White at the Office of the
Inspector General, Department of Defense. They held him in high regard and
disapproved of his prosecution by OSc.
13

14These employees are Mr. Sklar, Mr. Rivera-Fournier, Mr. Brooks, Mr. Elliot, Ms.
Andrews, Ms. Myers, Ms. Lee, Mr. Engler, and Ms. Howell.
15

Mr. Uryga, Mr. Engler, and Mr. Reukauf.

13

 7th press release, which Mr. Bloch issued as the media and others began making
inquiries, he asserted that the new Detroit field office was created "after extensive
discussions with staff and an outside assessment team's review of the Agency's
structure." See Press Release, attached and incorporated herein as Exhibit 17. In reality,
however, none of the affected staff, including the affected senior executives, was notified
in advance, let alone a party to "discussions" about the move. Indeed, notwithstanding
that he met privately with OSC's senior staff at the end of November and during the
month of December, to discuss the possibility of making organizational changes, he never
hinted that he intended to open a new field office, much less that two of OSC' s career
senior executives would be geographically relocated. Further, when Mr. Bloch
announced the reassignments, he told the staff that office space had already been leased
in Detroit, thus demonstrating that this move had been contemplated for at least a number
of weeks, and likely a number of months, before it was announced to anyone outside Mr.
Bloch's circle of political appointees.
Similarly, contrary to the insinuation in the press release, the "outside assessment
team" did not recommend the creation of a new field office in Detroit or anywhere else.
In fact, the team effusively praised the work of the Oakland field office, which, as noted
above, has been successfully run for over 20 years by a grade 15 employee who reported
to the same senior executive in Washington, D.C. (Mr. Reukauf) who is now being
directed to relocate to Oakland. The assessment team also suggested reducing the layers
of management in OSC's investigation and prosecution divisions; under Mr. Bloch's
reorganization, the layers of management have been increased. Field offices headed by
grade 15 supervisors will now report to senior executives in those same field offices who
will themselves be reporting to yet another senior executive in headquarters.
There are still more reasons to question the bona fides of the management
justification offered for this "reorganization." Under the new structure, if both senior
executives had accepted the forced geographic reassignments to Detroit and Oakland,
then the two career senior executives with the most litigation experience (Messrs.
Reukauf and Sklar) would have been be reporting to Leonard Dribinsky, the career senior
executive at headquarters with virtually no litigation experience. 16

16 Mr. Dribinsky also has very little, if any, experience overseeing OSC investigations.
Until the reorganization he had been in charge of the Complaints Examining Unit and the
Disclosure Unit for many years. Neither ofthose units conducts investigations or
engages in litigation. Because of his relative lack of relevant experience, it is widely
believed by career staff that Mr. Dribinsky emerged as the new leader of these functions
because he willingly cooperated in Mr. Bloch's recent and mysterious mass closures of
whistleblower disclosures and because he was the only member ofOSC's career staff
who voiced approval and supported Mr. Bloch's decision to revisit OSC's policy on
sexual orientation discrimination.

14

 In addition, under the reorganization, OSC's Hatch Act Unit will, for the first time
in OSC's history, report directly to a political deputy. This arrangement strongly
suggests an intent to politicize that Unit. This is especially true in light of the otherwise
inexplicable reassignment to the Oakland field office of Mr. Reukauf, who had overseen
the Act's impartial enforcement for over for 20 years. The staff has reasonably inferred
that Mr. Reukauf is being moved out of the way to allow the agency's political leadership
to exert unfettered control over Hatch Act enforcement decisions.
Further, under the reorganization, OSC's highly successful ADR program will
inexplicably be run out of a field office in Detroit. This odd result continues to obtain
notwithstanding that the career executive to whom Linda Myers, the Director of ADR,
had been reporting (Mr. Sklar) has declined his reassignment to Detroit and has been
given a notice of removal. Mr. Bloch previously justified the ADR Director's transfer to
Detroit as a move to keep her under the supervision of Mr. Sklar. He has now taken to
justifying her transfer on the grounds that housing her in the "centralized" location of
Detroit, rather than at headquarters in Washington, is consistent with his intent that the
Director conduct more mediations in person, rather than over the phone. This
explanation is absurd on its face, given the fact that most complaints arise in the
Washington, D.C. area, and/or require the presence of agency personnel who work in
Washington.
In fact, the way that the "reorganization" is being implemented leads to the
inescapable conclusion that existing career staff are being purged and that it was designed
to ensure that remaining staff would be thoroughly intimidated into silence, and driven to
leave. Mr. Bloch did not ask for volunteers to transfer to the new Detroit field office, or
to the existing Oakland and Dallas field offices. Employees who were ordered to relocate
were told that they were not permitted to switch assignments with others who might be
willing to take their places. None ofMr. Bloch's personal picks was subjected to the
involuntary reassignments. Further, there were at least eleven vacancies at OSC
headquarters when Mr. Bloch announced his "reorganization." It is unclear why at least
some portion of the staffing-up ofthe new and existing field offices could not be
accomplished by moving those vacancies to the field and filling them there.
Finally, Mr. Bloch gave affected employees virtually no time to decide whether to
accept the reassignments; nor has he given those employees who agreed to take the
reassignments, under duress, sufficient time to relocate. I7 Many of the affected
employees have homes, spouses and family in the Washington, D.C. area. It is
completely unreasonable, punitive, and inconsistent with the practice at other agencies, to
conduct a geographic reassignment in this absurdly short time frame.
Notwithstanding all of the above, Mr. Bloch has attempted to justify the directed
reassignments by citing the need to reduce the "backlog" of cases at OSC. This is a non17 A

single exception to the otherwise applicable deadline for relocation has been provided
to Mr. Reukauf. Mr. Bloch has apparently given him a brief extension oftime.

15

 sequitur. Mr. Bloch has never satisfactorily explained how ordering experienced
employees to transfer against their will from Washington, D.C. to a new field office in
Detroit, where OSC has virtually no case load, and where the Merit Systems Protection
Board has no regional field office, will help reduce the agency backlog.
Indeed, the proof is in the pudding: as a result of Mr. Bloch's actions, OSC has
already lost eight of its most experienced attorneys and investigators, including the
Director of its ADR program. The team that it is losing is one that has historically shown
the greatest efficiency in processing its cases (in terms of numbers of cases handled),
while at the same time securing relief for whistleblowers and other victims of prohibited
18
personnel practices in a number of OSC's most high profile cases.
Although Mr. Bloch has claimed that he transferred these employees for purposes
of keeping this highly successful team intact, his actions were clearly designed for
precisely the opposite purpose. The team is destroyed. The agency will have to replace
all of its members with new and inexperienced staffers (presumably hand-picked by Mr.
Bloch). In addition, until those individuals are trained, all of the cases that the eight
departing employees have been handling will have to be reassigned to other members of
the staff, often in the middle of an on-going investigation, at considerable cost in terms of
efficiency and continuity. It is inconceivable that Mr. Bloch will be able to clear the
"backlog" in the Investigatory and Prosecution Divisions after having so decimated the
career staff there, at least ifhe intends to fully and fairly investigate those cases.
Moreover, the current backlog of cases in the Investigatory and Prosecution
Divisions is ofMr. Bloch's own making. As a result of his decisions not to fill vacant
career positions in the IPDs and to reallocate staff in the IPDs to work on cases in OSC's
intake unit, the caseload in the IPDs, which had been substantially reduced over the last
several years, has doubled on his watch.
Further, while publicly congratulating himself for reducing the caseload in OSC's
Complaints Examining and Disclosure Units, Mr. Bloch has failed to explain just what
happened to all of the cases he closed. Indeed, it is our understanding that under Mr.
Bloch, OSC has adopted a policy under which career staff in the Disclosure Unit are not
permitted to contact whistleblowers, but are required to close their cases unless their
18 In addition to handling the sexual orientation case that was the subject of the press
release Mr. Bloch ordered removed from OSC's web site, the IPD headed by Mr. Sklar
was responsible for, among other things: 1) securing relief for two Border Patrol agents
who suffered retaliation for making disclosures related to security risks on the northern
border in a highly publicized case in 2002; 2) obtaining a stay and then a reversal of the
removal of an FAA employee who was fired after making disclosures in the wake of the
September 11 th terrorist attacks; and 3) securing relief for an employee in the Department
of Energy who was disciplined for providing information to the press about security risks
at DOE's nuclear facilities.

16

 written filings are sufficient on their faces to establish a basis for investigation. As a
result of this new policy, the Disclosure Unit appears to have closed over 600 cases in
only a few months, without referring any of them for investigation. 19
Similarly, Mr. Bloch has claimed to have reduced the number of prohibited
personnel practice cases in the Complaints Examining Unit from over 500 down to 30.
The backlogged case figure, however, is grossly inflated. When Mr. Bloch arrived at
OSC he directed the Complaints Examining Unit not to send out closure letters in cases
that had already been completed, in order to build up the backlog, so that he could take
credit himself for its reduction through his "special projects unit." Although the exact
number of cases that were held in this manner is not known by the complainants, they
believe that it was quite substantial.
Moreover, the Complaints Examining Unit has abandoned its former policy under
which complainants alleging retaliation were given an opportunity to speak with the
examiner reviewing their cases, before they were closed. In an effort to show progress on
the backlog in that unit, CEU has not only closed cases at breakneck speed, it also
dumped into the IPDs an increasing number of cases without giving them adequate
review, which Mr. Bloch has boasted represents a doubling of the historical rates of
referral out of that unit. Since the backlog in the IPDs has doubled, and since the cases
referred for investigation require significantly more time and attention that those being
considered in CEU, the result of these machinations on the overall backlog at the agency
is the equivalent of moving the deck chairs around on the Titanic.
OSC was not created to receive and close cases. As demonstrated by the
wholesale dismissal of over 600 whistleblower disclosures, by the apparent paucity of
relief achieved on behalf of whistleblowers and other victims of prohibited personnel
practices during Mr. Bloch's tenure, and by the appalling disposition of Michael Levine's
complaint, the new case handling policies are apparently being implemented at the
expense of OSC' s core mission of assisting whistleblowers and promoting the merit
system.
Finally, the method Mr. Bloch has chosen to staffthe new field office and fill
vacancies in the Dallas field office is fiscally imprudent, if not an act of gross waste and
mismanagement. Relocating a single employee can be quite expensive, much less moving
a dozen ofthem. It would have been far less expensive to hire new staffto fill the
vacancies in Dallas and to staffthe new office in Detroit, than to move twelve incumbent
employees halfway across the country for that purpose. Now that Mr. Bloch's efforts
In recent statements to the press, OSC's Director of Public Affairs, Cathy Deeds, has
characterized all 600 of these disclosures as either involving "minor" matters or having
already been investigated. See OSC press statements, attached and incorporated herein as
Exhibit 18. This statement is inherently incredible. Further, the agency cannot possibly
make a reliable determination about the merits of 600 disclosures without speaking to the
whistleblowers.
19

17

 have forced the departure of nine experienced career employees, OSC will be required to
bear the costs of providing severance pay to departing employees, as well as a lump sum
that represents their accrued annual leave.

III.

PROHIBITED PERSONNEL PRACTICES AND VIOLATIONS OF CIVIL
SERVICE LAWS COMMITTED BY SPECIAL COUNSEL BLOCH

A.

Forced Geographic Reassignments and Creation of Hostile Work
Environment in Retaliation for Whistleblowing (5 U.S.c. § 2302(b)(8))

Under the Whistleblower Protection Act (WPA), it is a prohibited personnel
practice for an agency to take a personnel action against an employee because the
employee has disclosed information which he or she reasonably believes evidences a
violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public health or safety. 5
U.S.C. § 2302(b)(8). This provision protects both persons who have made protected
disclosures, and those who are perceived to have done so.
The perceived or actual disclosures in this matter, which were made to the press
and outside interest groups, included disclosures concerning Mr. Bloch's decisions: 1) to
"scrub" OSC's website of references to sexual orientation discrimination; 2) to change
the agency's interpretation of its authority to enforce a prohibition on such
discrimination; 3) to issue an illegal gag order; 4) to use no-bid contracts or other
improper hiring authorities; and 5) to engage in a practice of non-competitive hiring
including the selection of friends and cronies for career federal jobs. All of these
disclosures would be protected under § 2302(b)(8) because they concern actions by Mr.
Bloch that would constitute abuses of authority, gross mismanagement, and violations of
law, rule or regulation.
Further, Mr. Bloch was aware that these matters had been publicly disclosed, and
openly expressed his suspicion that a "leaker" or "leakers" within OSC was responsible
for what he later called the "unnecessary hullabaloo" surrounding his actions. He has
also expressed explosive anger toward employees who question his policies and
initiatives, even internally, dubbing such individuals "disloyal." Over the last year, he
has engaged in a pattern of hiring designed to ensure that new employees are
appropriately "loyal" to him, and has attempted to cripple the authority of career
managers. He also ordered forced geographic assignments of a large percentage of the
headquarters staff, in an effort to instill terror in the remaining career staff.
Moreover, there is ample basis to believe that, in implementing his
"reorganization", Mr. Bloch targeted particular employees for reassignment because he
believed that they either were the "leakers" or because of their association with persons
believed to be "leakers." It is significant that the brunt of the impact of the geographic
reassignments fell on the division headed by Mr. Sklar, and included Mr. Elliot, Mr.
Engler and Ms. Myers, anyone of whom might have been a target ofMr. Bloch's

18

 suspicions due either to their previous employment by the National Treasury Employees
Union, their sexual orientation, their involvement in the investigation and pursuit of the
prior case involving sexual orientation discrimination, or their questioning of some of Mr.
Bloch's policy and management decisions.
Mr. Reukauf, who also expressed internal dissent about some ofMr. Bloch's
policies, and was in disfavor for his role in the prosecution of Alan White, was reassigned
to head a fully functioning field office in Oakland, where there is no apparent need for his
services. Even ifthere were a justification for sending a career executive out to head the
Oakland office, Mr. Bloch's decision to send Mr. Reukauf, rather than Mr. Dribinsky,
makes no business sense whatsoever.
Further, as described above, the reorganization was implemented in a way that
was guaranteed to drive out these employees, and permit them to be replaced with Mr.
Bloch's own "loyal" picks. This is consistent with Mr. Bloch's pattern over the last year
of hiring new employees himself on a non-competitive basis, without the involvement of
their career supervisors.
Indeed, both the surprise reassignments and the bizarre method chosen by Mr.
Bloch to inform the twelve employees who were affected seems calculated to have
instilled the maximum level of fear among the entire OSC career staff. Thus, Mr. Bloch
held a five-minute meeting for all OSC staff the afternoon when he announced the
reorganization. During the meeting, at which no questions were solicited or asked, Mr.
Bloch stated that certain unidentified career staffers would be reassigned to the Dallas
and Oakland offices, and the newly-created Detroit office. To learn whether one's name
was on the list for reassignment, Mr. Bloch stated, employees should return to their
offices and log onto the OSC Intranet. When employees did so, however, the information
had not yet been posted, and considerable anxiety ensued over the next 30 minutes,
before the names were finally posted, and employees learned their fates.
As a result of this pattern of conduct, OSC staff is thoroughly demoralized and
lives in a culture of fear. Substantial numbers of career staff at headquarters are actively
seeking new jobs because of the intolerable and hostile work environment Mr. Bloch has
created. Some OSC employees have indicated privately that they would welcome an
independent investigation of Mr. Bloch's actions, so that they could share their
knowledge of his improper actions. The OSC complainants in this case are so fearful of
Mr. Bloch's retaliation, that they have decided to file their complaint on an anonymous
basis, through their attorney, Debra Katz.
In short, Mr. Bloch has created a hostile environment, in violation of the WPA,
and has ordered geographic reassignments of OSC employees because they have either
made protected disclosures, or are perceived to have done so. The creation of a hostile
work environment, the involuntary geographic reassignments, and the resulting removal
of employees who decline the illegal reassignments constitute prohibited personnel
practices, within the meaning of5 U.S.c. § 2302(b)(8).

19

 B.

Threats to Retaliate Against Employees Who Decline to Waive their
Legal Rights to Challenge the Illegal Involuntary Reassignments and
Removals

Pursuant to 5 u.s.e. § 2302(b)(9)(A) it is a prohibited personnel practice to take
or threaten to take a personnel action against an employee because of "the exercise of any
appeal, complaint, or grievance right granted by any law, rule, or regulation." On March
I, 2005, Mr. Bloch himself called an attorney who has been representing some of the
employees who were given proposed letters of removal after they declined the
involuntary reassignments. Mr. Bloch made the call in an effort to secure a settlement of
all potential legal claims that the employees might pursue against him. When the
attorney representing the employees advised Mr. Bloch that his clients were no longer
interested in settling their complaints, Mr. Bloch declared that--in light of that fact--it was
his intention, not only to hasten their departures but also to bring additional "charges"
against them.
In threatening to hasten the removal of the employees who declined to waive their
legal rights, and to bring unspecified additional "charges" against them, Mr. Bloch
committed a prohibited personnel practice, in violation of 5 u.s.e. § 2302(b)(9).
C.

Violations of Civil Service Laws, Rules and Regulations, Including
Regulations Implementing Merit Systems Principles, Arising Out of
Issuance of Gag Order

As described above, in the wake of the negative press attention Mr. Bloch
received last February and March, he issued an email articulating a new agency policy
which directs that "any official comment on or discussion of confidential or sensitive
internal agency matters with anyone outside ose must be approved in advance by an
lose official." The issuance of this policy, which has resulted in a significant change in
ose employees' conditions of employment, contributed to the creation of the hostile
work environment, and violates the "Anti-Gag" Statute, § 622, P.L. 106-554, the LloydLafollette Act, 5 u.s.e. § 7211, and the First Amendment. All three of these provisions
are laws, rules or regulations implementing merit systems principles. 5 u.s.e. §
2302(b)(l2). Further, the Anti Gag Statute and the Lloyd LaFollette Act are also "civil
service laws, rules or regulations within the meaning of5 u.s.e. § 1216(a)(4).
1.

Violation of Anti-Gag Statute

The Anti-Gag Statute states that "[n]o funds appropriated in this or any other Act
may be used to implement or enforce the agreements in Standard Form 312 and 4414 of
the Government or any other nondisclosure policy, form or agreement if such policy,

20

 form or agreement does not contain the following provisions [citing laws protecting
disclosures made to members of Congress, the WPA, and other similar laws]."
OSC's nondisclosure policy, expressed in the e-mail gag order, violates this law.
First, the language in the e-mail is a nondisclosure policy because it prevents OSC
employees from disclosing any kind of information "on confidential internal agency
matters" without approval from agency political staff. Second, the nondisclosure policy
does not contain the required statutory language, ensuring employees' rights to make
protected disclosures under applicable laws. Third, Mr. Bloch has used agency funds to
implement the gag order by using salaried employees to distribute it through the agency's
e-mail system. Inaddition,Mr. Bloch has enforced the illegal gag order by
geographically reassigning employees he believes spoke to the media without permission
from his immediate office. Thus, the nondisclosure policy violates the Anti-Gag Statute.
2. Violation of the First Amendment

The gag order also violates the First Amendment. While the government may
impose some restraints on the job-related speech of public employees that would be
impermissible if applied to the citizenry at large, it is well settled that public employees
retain important rights to free expression under the First Amendment. U.S. v. NTEU,
513 U.S. 454, 465 (1995); Pickering v. Bd. ofEduc., 391 U.S. 563, 568 (1968). In
evaluating the validity of a restraint on government employee speech, courts must
balance the interests of the employee as a citizen commenting upon matters of public
concern and the interest of the government, as an employer, in promoting the efficiency
of the public service. Pickering, 391 U.S. at 568.
OSC employees have a strong interest as citizens in commenting on matters of
public concern, including the Special Counsel's policies and acts of misconduct or
malfeasance. The gag order contained in the e-mail established a prior restraint on
speech. To defend a prior restriction on employee expression the government must
demonstrate that:
the interests of both potential audiences and a vast group of present and
future employees in a broad range of present and future expression are
outweighed by that expressions' "necessary impact on the actual operation
of the Government."
NTEU, 513 U.S. at 465, quoting Pickering v. Bd. OfEduc., 391 U.S. at 571.
Mr. Bloch could not possibly meet his burden ofjustifying his prior restraint on
the speech of OSC employees because the prohibition in the gag order is patently
overbroad. The range of information that could fall within the category of "sensitive or
confidential internal agency matters" is unlimited.

21

 Courts have routinely struck down as unconstitutional similar prior restraints on
the speech of government employees. See Harman v. City of New York, 140 F.3d 111
(2 nd Cir. 1998) (striking down press policy forbidding employees from speaking with
media regarding any policies or activities of the agency without first obtaining permission
from agency's media relations department); International Assoc. of Firefighters Local
3233 v. Frenchtown Charter Township, 246 F.Supp. 2d 734 (E.D. MI 2003) (fire
department restricted employees' communications with the media and public); Kessler v.
City of Providence, 167 F.Supp. 2d 482 (D.R.I. 2001) (same); Fire Fighters Assoc. v.
Barry, 742 F.Supp. 1182 (D.D.C. 1990) (same). Mr. Bloch's gag order is constitutionally
invalid on the basis of the reasoning of these and other decisions.

3. Violation of Lloyd-Lafollette Act
Finally, the gag order violates the Lloyd-Lafollette Act. That Act provides that
"the right of employees, individually or collectively, to petition Congress or a Member of
Congress, or to furnish information to either House of Congress, or a committee or
Member thereof, may not be interfered with or denied." 5 U.S.C. § 7211. Special
Counsel Bloch's gag order cannot be reconciled with this law, as it encompasses
disclosures to members of Congress as well as Congressional committees.

IV.

DEMAND FOR STAY OF INVOLUNTARY REASSIGNMENTS
AND REMOVALS, WITHDRAWL OF GAG ORDER, AND
REFERRAL OF COMPLAINT FOR INDEPENDENT
INVESTIGATION

The foregoing statement outlines the multiple prohibited personnel practices,
violations of civil service laws, and other acts of malfeasance Mr. Bloch has committed.
As relief, the complainants demand that the following steps be taken immediately:
Special Counsel Bloch must order an immediate stay of the directed
reassignments, and resulting removals, as well as the gag order;
After granting the stay, Special Counsel Bloch and all members of his
immediate staff must recuse themselves from making any further
decisions in this case;
Special Counsel Bloch must refer these complaints to the Chairman of
the President's Council on Integrity and Efficiency for an independent
investigation, including a recommendation for corrective and or
disciplinary action, as appropriate; and
Provide all other appropriate equitable relief.
The complainants request that the Special Counsel rule on their stay request
expeditiously and that he refer their cases for independent investigation immediately.

22