DEPARTMENT OF STATE
OFFICE OF INSPECTOR GENERAL
&
U.S. OFFICE OF SPECIAL COUNSEL

In the Matter of
SHAWN POWERS
CHIEF STRATEGY OFFICER

Whistleblower Reprisal Complaints

MARIE LENNON
DIRECTOR OF MANAGEMENT SERVICES

September 29, 2020

GRANT TURNER
CHIEF FINANCIAL OFFICER
MATTHEW WALSH
DEPUTY DIRECTOR FOR OPERATIONS
DAVID KLIGERMAN
GENERAL COUNSEL
HOANG-OANH TRAN
EXECUTIVE DIRECTOR
Complainants.
Table of Contents
Table of Authorities......................................................................................................................... ii
Introduction ......................................................................................................................................1
Jurisdiction .......................................................................................................................................1
Elements and Standard of Proof ......................................................................................................2
The Complainants ............................................................................................................................2
Facts of the Individual Cases ...........................................................................................................4
Reprisal Analyses ...........................................................................................................................16
Relief Requested ............................................................................................................................20
i

 Verifications ...................................................................................................................................22

[Remainder of page left intentionally blank]

ii

 Introduction
This complaint concerns retaliatory actions taken against six members of the Senior
Executive Service at the U.S. Agency for Global Media (“USAGM”): Shawn Powers, Marie
Lennon, Grant Turner, Matthew Walsh, David Kligerman and Hoang-Oanh Tran (hereinafter
referred to collectively as the “Complainants”). Although submitted as one consolidated filing
given the similar nucleus of facts and identical retaliatory actions at issue, and in order to avoid
unnecessary duplication of paperwork, we understand that the Department of State’s (“State”)
Office of Inspector General (“OIG”) and the Office of Special Counsel (“OSC”) will conduct
independent and separate investigations into each of the respective allegations of retaliation
alleged by the individual Complainants, to the extent those allegations fall within each office’s
jurisdiction.
The facts that will be outlined in this submission with respect to each of the individual
Complainants are largely similar. Each of the Complainants made protected disclosures –
whether in the form of OIG complaints, communications with USAGM leadership, and/or
communications with appropriate Congressional committees – regarding their concerns about
official actions primarily taken by Michael Pack, who has been serving as the Chief Executive
Officer for USAGM since June 4, 2020. The Complainants’ concerns involve allegations that Mr.
Pack has engaged in conduct that violates federal law and/or USAGM regulations, and that
constitutes an abuse of authority and gross mismanagement. Moreover, each of the Complainants
was targeted for retaliatory action by Mr. Pack because of his belief that they held political views
opposed to his, which is a violation of the Hatch Act. To the extent other officials engaged in
similar retaliatory activities unilaterally or in concert with Mr. Pack they will be duly identified.

 The retaliatory actions by Mr. Pack (or his authorized designee) that will be outlined in this
submission are virtually (if not actually) identical. Each of the Complainants was informed by
letter, dated August 12, 2020, that their respective accesses to classified information had been
suspended pending further investigation. Moreover, they were all concurrently placed on
administrative leave. In each of the letters to the Complainants, USAGM claimed that the
Complainants had been improperly granted security clearances, and that the Complainants failed
to take remedial actions to address personnel and security concerns prior to permitting other
USAGM employees to receive security clearances. In addition, many or all of the Complainants
were earlier subject to retaliatory adverse personnel actions in the form of substantial limitations
on their ability to carry out their work responsibilities (i.e. a significant change in duties and
responsibilities), which limitations were imposed without following appropriate personnel
procedures.
Investigation will establish that the actions taken against the Complainants were in reprisal
for their respective protected disclosures and/or for their political beliefs, whether actual or
perceived. Therefore, we respectfully request that State OIG and OSC promptly institute the
required investigation. The relief requested is set forth below.
Inspector General Jurisdiction
Each of the Complainants is a USAGM employee: Mr. Powers is the Chief Strategy Officer,
Ms. Lennon is the Director of Management Services, Mr. Turner is the Chief Financial Officer,
Mr. Walsh is the Deputy Director for Operations, Mr. Kligerman is the General Counsel and
Ms. Tran is the Executive Director. Each of the Complainants is protected by the implementing
regulations of PPD-19, as codified at 5 U.S.C. § 2302. State OIG possesses clear jurisdiction
over USAGM matters, as delineated in 1 FAM § 51.2.

2

 U.S. Office of Special Counsel Jurisdiction
Each of the Complainants is a Title 5 employee. OSC has jurisdiction over whistleblower
reprisal complaints and complaints of prohibited personnel practices including political
retaliation brought by Executive Branch employees, former employees, and applicants for
employment. 5 U.S.C. § 1214.
Elements and Standard of Proof
Security Clearance Actions
In 2012, President Obama signed PPD-19,1 formally protecting whistleblowers with access to
classified information. PPD-19 applies government-wide and explicitly establishes that
employees who are eligible for access to classified information may report fraud, waste, and
abuse and are protected from being retaliated against for doing so.
Pursuant to PPD-19, Part B, investigations into allegations of retaliation affecting Eligibility
for Access to Classified Information are to be investigated by the agency Inspector General.
PPD-19, Part B, Para. 3 (“. . . the agency Inspector General shall conduct a review to determine
whether an action affecting Eligibility for Access to Classified Information violated this directive
and may recommend that the agency reconsider the employee’s Eligibility for Access to
Classified Information consistent with the national security and with Executive Order 12968 and
recommend that the agency take other corrective action to return the employee, as nearly as
practicable and reasonable, to the position such employee would have held had the reprisal not
occurred.”).
Subsequently in 2014, Congress passed legislation, and the President signed into law, those
same protections.2

1

PPD-19, Protecting Whistleblowers with Access to Classified Information.

2

See Public Law No: 113-126, Title VI of the Intelligence Community Authorization Act of 2014.
3

 PPD-19 further states:
The review process shall provide for the protection of classified national security
information and intelligence sources and methods. As part of the review process,
the agency Inspector General shall conduct a review to determine whether an
action affecting Eligibility for Access to Classified Information violated this
directive and may recommend that the agency reconsider the employee’s
Eligibility for Access to Classified Information consistent with the national
security and with Executive Order 12968 and recommend that the agency take
other corrective action to return the employee, as nearly as practicable and
reasonable, to the position such employee would have held had the reprisal not
occurred. An agency head shall carefully consider the findings of and actions
recommended by the agency Inspector General.3
ICD-120, implementing PPD-19, states:
“Eligibility for Access to Classified Information” is defined in PPD-19, Section
F.(2) as the result of the determination whether an employee (a) is eligible for
access to classified information in accordance with Executive Order 12968,
Access to Classified Information, or any successor thereto, and Executive Order
10865, as amended, Safeguarding Classified Information Within Industry, or any
successor thereto, and (b) possesses a need to know under such orders.4

3

PPD-19, Protecting Whistleblowers with Access to Classified Information, § B (emphasis
supplied).

4

ICD-120, Intelligence Community Whistleblower Protection, § F(1)(b)(emphasis supplied).
4

 The elements of reprisal are the following: (1) the information at issue is that which the
individual reasonably believes is evidence of a violation of law, rule or regulation, or of an abuse
of authority; (2) the individual made a protected disclosure regarding this information; (3) an
action affecting eligibility for access to classified information is taken, threatened or withheld in
reprisal for the protected disclosure; and (4) a causal connection exists between the protected
communication and the action affecting eligibility for access to classified information. The
elements must be established by a preponderance of the evidence for a complaint to be deemed
substantiated. The individual Complainants can each satisfy all four elements.
The burden then falls on USAGM officials to prove that the same actions affecting eligibility
for access to classified information (whether taken or threatened to be taken) would have
occurred even if there had been no protected communications. See, e.g., Whitmore v. Dep’t of
Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012); Figueroa v. Nielsen, 423 F. Supp. 3d 21 (S.D.N.Y.
2019); Miller v. Dep’t of Justice, 842 F.3d 1252 (Fed. Cir. 2016)(once complainant establishes
prima facie case, burden of proof shifts to U.S. Government to establish personnel actions taken,
threatened, or withheld would have occurred absent protected communication).
Personnel Actions
5 U.S.C. § 2302 (a)(2)(A)(i) through (xii) lists personnel actions which, if taken, withheld, or
threatened in reprisal for a protected disclosure, constitute “prohibited personnel practices.”
These personnel actions include disciplinary or corrective action, a detail, transfer or
reassignment; a performance evaluation, a decision to order psychiatric testing or examination, a
decision concerning pay, benefits, or award, or any other significant change in duties,
responsibilities, or working conditions.

5

 The seminal question in a reprisal investigation is the following: was the protected
communication a contributing factor in responsible management officials taking the action?
Reprisal investigations require a two-stage process. The first stage focuses on the protected
communications, the personnel actions, and the acting official’s knowledge of the disclosure(s).
The second stage focuses on whether or not the Agency would have taken, withheld, or
threatened the actions absent the protected disclosure. The first stage of whistleblower reprisal
analysis is held to a preponderance of the evidence. 5 C.F.R. § 1209.7. “Preponderance” of the
evidence is that degree of relevant evidence that a reasonable person, considering the record as a
whole, would accept as sufficient to find that a contested fact is more likely than not true than
untrue. 5 C.F.R. § 1201.56(c)(2). Thus, in order to progress to the second stage of the
investigative process, there must be sufficient evidence based on proof by a preponderance of the
evidence to make three findings:
1. The complainant made a protected disclosure;
2. The complainant was the subject of a personnel or security clearance action; and
3. The protected disclosure was a contributing factor in the personnel/security clearance
action.5

This third finding may be established where the acting official had knowledge, actual or
imputed, of the complainant’s disclosure and the personnel action took place within a period of
time subsequent to the disclosure, such that a reasonable person could conclude that the
disclosure was a contributing factor in the decision to take the action. Redschlag v. Department
of the Army, 89 M.S.P.R. 589, 635 (2001), review dismissed, 32 Fed. App’x 543 (Fed. Cir. 2002).
In deciding whether a personnel action occurred within a period of time sufficient to conclude
the disclosure was a contributing factor, the probative value of the evidence may be affected by
the passage of time. Weak but substantiating evidence may be sufficient to prove reprisal after a
short time frame while stronger evidence may be required to prove reprisal over relatively longer
time frames.

5

6

 By law, the contributing factor is established through the knowledge/timing test, where the
individual taking the action had knowledge of the complainant’s protected disclosure prior to
taking the action, and where the action took place subsequent to the disclosure within a period of
time that reasonable finder of fact would conclude that the proximity of the events would
establish that the protected disclosure was a contributing factor. Shriver v. Dep’t of Veterans
Affairs, 89 M.S.P.R. 239, 245-46 (2001)(appellant made non-frivolous allegation that nonselection for promotion was retaliatory where selecting official knew of disclosure and denied
promotion within eight months).
If a preponderance of the evidence supports the three findings above, the investigation will
proceed to the second stage of the analysis. At that point, the Agency is afforded the opportunity
to provide evidence regarding the allegations and, specifically, evidence that would establish that
the Agency would have taken, withheld, or threatened the personnel actions against the
complainant absent the protected disclosure.
For personnel actions under Title 5, the Agency must establish that it would have taken the
action anyway by clear and convincing evidence. “Clear and convincing” evidence is that
measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the
allegations sought to be established. It is a higher standard than preponderance of the evidence
but a lower standard than beyond a reasonable doubt. 5 C.F.R. § 1209.4(d).
Notwithstanding the standard applied, to address the fourth element the following three
factors must be present for the Agency to prevail. Carr v. Social Security Admin., 185 F.3d 1318,
1323 (Fed. Cir. 1999)(appropriate to consider strength of Agency’s evidence in support of
personnel action when determining whether Agency has shown by clear and convincing evidence
it would have taken action in absence of employee’s protected disclosure). Note: This is a

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 factoral analysis to assist the trier of fact in determining whether the Agency or responsible
management officials can establish that absent the protected communication the actions would
have occurred:
1. The strength of the Agency’s evidence in support of its personnel action;
2. The existence and strength of any motive to retaliate on the part of the Agency
officials who were involved in the decision; and
3. Any evidence that the Agency takes similar actions against employees who are not
whistleblowers or did not make a protected communication but who are otherwise
similarly situated.
The Complainants
Each of the Complainants is a dedicated public servant who has had a notable career (some
spanning multiple decades across the U.S. Government) prior to the recent retaliatory actions
taken against them by Mr. Pack and/or his designees.
Shawn Powers
Mr. Powers has worked at USAGM since July 23, 2018, and currently serves as the Chief
Strategy Officer (“CSO”). He has held that position since October 22, 2018, first in an acting
capacity and then, effective November 11, 2019, on a permanent basis. The CSO position meets
the definition for “Career Reserved,” which includes “highly technical or professional positions
in which the duties and responsibilities of the specific position are such that it must be filled by a
career appointee to ensure impartiality or the public’s confidence in impartiality as determined
by the Director in light of the mission of Broadcasting.”
In his position as the CSO, Mr. Powers oversees USAGM’s engagement in the interagency,
strategic planning, strategic initiatives, and positioning within the broader U.S. government and

8

 with key stakeholders. Mr. Powers is responsible for formalizing—and serving as the chief
representative of—the inter-network coordination of USAGM’s strategic-planning processes,
including strategic development, consensus-building across the five networks and the USAGM
offices, instituting change toward new synergies across the USAGM, and establishing greater
transparency and accountability for those people carrying out USAGM’s mission.
Mr. Powers was placed on administrative leave on August 12, 2020, the same day he was
notified of the suspension of his access to classified information.
Marie Lennon
Ms. Lennon has worked for the U.S. Government for nearly 50 years and has worked for
USAGM and its predecessors since 1982. Her current position is Director of Management
Services, in which she has served since late 2015.
In her role at USAGM, Ms. Lennon has direct oversight of several offices within USAGM,
namely Human Resources, Contracts, Security, Civil Rights, Administration, and Workforce
Support and Development.
Ms. Lennon was placed on administrative leave on August 12, 2020, the same day she was
notified of the suspension of her access to classified information.
Grant Turner
Mr. Turner is the Chief Financial Officer (“CFO”) for USAGM and has nearly two decade’s
worth of federal public service. In his role as CFO, Mr. Turner oversees the agency’s budgeting,
finance, and grants management functions. He served as Acting Chief Executive Officer from
September 26, 2019 to June 4, 2020.
Mr. Turner was placed on administrative leave on August 12, 2020, the same day he was
notified of the suspension of his access to classified information.

9

 Matthew Walsh
Mr. Walsh is the Deputy Director for Operations at USAGM and has worked for the U.S.
Government for almost twelve years. In September 2017, he joined USAGM as the Chief of
Staff to then CEO John Lansing, who left the agency in October 2019. In February 2019,
Mr. Walsh became the Deputy Director of Operations, a position that had been created as a way
to improve USAGM’s internal operations. The Deputy Director for Operations position is a
Career Reserved SES position.
In the Deputy Director for Operations role, Mr. Walsh has five direct reports, most of whom
also are career SES members, and about 250 government employees under him, as well as
hundreds of other contractors and locally employed staff at USAGM facilities outside of the
United States. In this role, Mr. Walsh oversees most of the Agency’s operations, including teams
in charge of information technology, broadcast transmissions and operations, facilities, business
development/marketing, human resources, contracting, training, security, and risk management.
He also leads various cross-cutting initiatives, including chairing the agency’s Emergency Action
Committee, which was the body that coordinated USAGM’s COVID-19 (coronavirus) response.
Mr. Walsh has received multiple distinguished service awards during his government career,
including from USAGM and the Department of State, where he worked prior to joining
USAGM. Mr. Walsh’s most recent SES performance review gave him the highest possible score.
Mr. Walsh was placed on administrative leave on August 12, 2020, the same day he was
notified of the suspension of his access to classified information.
David Kligerman
Mr. Kligerman is the General Counsel for USAGM and has over a decades’ worth of federal
public service under his belt. In his role as General Counsel, Mr. Kligerman’s job is to oversee

10

 and manage the Office of General Counsel, which provides end-to-end legal advice for the
agency. Mr. Kligerman also provides legal counsel directly to senior leadership and participated
in all significant policy decisions. In his last formal review, Mr. Kligerman received the highest
possible rating. He held the position first in an acting capacity, and then, effective in or about
June 2017, on a permanent basis. He served as Acting Deputy Director (Deputy Chief Executive
Officer), named by the Board, from approximately November 2019 and continuing through Mr.
Pack’s appointment in the summer of 2020.
Mr. Kligerman was placed on administrative leave on August 12, 2020, the same day he was
notified of the suspension of his access to classified information.
Hoang-Oanh Tran
Ms. Tran is the Executive Director of USAGM and has worked for the U.S. Government for
more than two decades. She has been at USAGM since 1992, serving in a number of key roles.
As a core member of the CEO’s senior management team, Ms. Tran supports the CEO in
managing the decision-making processes or policy directives, communications, and personnelrelated work, which entails resource planning and performance management of the senior staff
that supports the CEO and facilitating the transition or appointment of USAGM’s leadership. Ms.
Tran is also responsible for coordinating the workflow of the agency internally, serving as the
liaison between the Agency’s offices and networks and the CEO Office, as well as handling the
Agency’s relations with the White House, National Security Council, and other national security
agencies through their respective Executive Secretaries and/or related officials. She also
supervises the USAGM Executive Secretariat staff.
Ms. Tran was placed on administrative leave on August 12, 2020, the same day she was
notified of the suspension of her access to classified information.

11

 Facts of the Individual Cases
Shawn Powers
Mr. Powers’ protected disclosures concerned violations of federal law, violations of USAGM
regulations, and abuses of authority. The disclosures pertained to the unlawful actions of Mr.
Pack, the primary Responsible Management Official (“RMO”) subject to this retaliation
complaint. Mr. Powers’ disclosures resulted in a clear and explicit retaliatory action, namely the
suspension of Mr. Powers’ access to classified information.
A. Protected Disclosure About the Impact of Mr. Pack’s Spending Freeze
In a meeting on June 19, 2020 with Deputy Chief of Staff Diane Cullo, along with others
present, Mr. Powers made a protected disclosure within his USAGM leadership chain. Mr.
Powers raised urgent concerns regarding the impact that Mr. Pack’s spending freeze was having
on USAGM’s ability to support internet freedom tools in Hong Kong amidst the ongoing
Chinese crackdown and takeover of local governing authorities. Mr. Powers specifically pointed
out that the spending freeze was placing USAGM’s journalists at grave risk, and that the funds
needed to be released to ensure that both USAGM’s journalists and its audience were safe from
surveillance and persecution. Mr. Pack’s failure to support the internet freedom tools created a
specific physical danger to USAGM journalists.
Mr. Powers further noted that Mr. Pack’s actions had forced the suspension of all hiring
actions, and that this was undermining a commitment USAGM had made to relevant
Congressional oversight committees that the Office of Cuba Broadcasting (“OCB”) would
urgently hire a new, external editorial standards to help ensure that OCB’s content meet the
highest professional standards of journalism, as is required by statute (22 U.S.C. § 6202). This
was of particular relevance given that an individual had already been selected for, and offered the

12

 position of, standards editor at OCB and that the individual had accepted the offer. However, due
to Mr. Pack’s spending and hiring freeze, this individual could not join USAGM due to lack of
funding.
Additional details will be provided during the intake and/or investigation phases.
B. Protected Disclosure Regarding Mr. Pack’s Reorganization Actions
On or about June 24, 2020, Mr. Powers submitted an OIG hotline complaint to State. The
substance of the OIG complaint concerned Mr. Pack’s decision to reorganize USAGM’s core
functions and reporting chains, including moving the Office of Policy and the Office of Internet
Freedom out from under the CSO without legally mandated notifications to Congress or the
Office of Management and Budget. In his OIG complaint, Mr. Powers specifically noted that he
feared retaliation from Mr. Pack given Mr. Pack’s stated intention in a press release issued on
June 18, 2020, to “eradicate” what he claimed were decades of “mismanagement”.
Additional details will be provided during the intake and/or investigation phases.
C. Protected Disclosures Regarding Ban on External Communications
In late June 2020, Mr. Powers had several discussions with a Senior USAGM employee –
both via e-mail and telephone – in which Mr. Powers raised concerns that Mr. Pack’s agencywide ban on external communications was making it impossible to perform his work.
Additional details will be provided during the intake and/or investigation phases.
D. Protected Disclosures Regarding Mr. Pack’s Mismanagement
On June 30, 2020, Mr. Powers made a protected disclosure to a staffer for Senator Menendez
working on the Senate Foreign Relations Committee, regarding Mr. Pack’s mismanagement of
USAGM. Specifically, Mr. Powers noted that Mr. Pack’s reorganization of USAGM had imposed
a substantial reduction in Mr. Powers’ duties without first providing the mandatory

13

 Congressional notification. Mr. Powers further noted his concerns that Mr. Pack would need to
circumvent a Congressional hold on $7 million in appropriations in order to cover OCB
expenses. Mr. Powers noted his fear of reprisal for making this protected disclosure.
That same day, Mr. Powers made a similar protected disclosure regarding Mr. Pack’s
mismanagement to a staffer for Congressman McCaul, Ranking Member of the House Foreign
Affairs Committee. In addition to the concerns Mr. Powers had separately raised with
Senator Menendez’s staffer, he also noted that Mr. Pack’s spending freeze was jeopardizing
USAGM’s Internet Freedom Portfolio, as well as the viability of USAGM’s capacity to monitor
and evaluate the effectiveness of its broadcast operations (which is mandated by federal law).
Mr. Powers noted his concern about reprisal for making this protected disclosure.
Additional details will be provided during the intake and/or investigation phases.
E. Protected Disclosure Regarding Appropriations
On August 5, 2020, Mr. Powers e-mailed Andre Mendes, the Chief Operations Officer, and a
member of his senior management, regarding substantial reductions in the budget for USAGM’s
Office of Policy and Research (“OPR”) regarding which Mr. Pack had not notified Congress,
despite being mandated by law to do so. Mr. Powers noted that the reduction in budget
(approximately $1.4 million) jeopardized USAGM’s ability to meaningfully conduct research,
the results of which were a top priority for OMB and Congressional stakeholders. Specifically,
without that research OPR’s ability to assess the performance of USAGM’s networks would be
undermined.
Additional details will be provided during the intake and/or investigation phases.

14

 Marie Lennon
Ms. Lennon made protected disclosures to USAGM leadership on numerous occasions
beginning in late June 2020. Ms. Lennon’s disclosures specifically concerned the issue of J1
visas needed for USAGM staff who were foreign nationals. Ms. Lennon provided responses to
multiple requests for information from Diane Cullo and Emily Newman, USAGM’s Chief of
Staff, about the J1 visa program and hiring practices. She conveyed her view that requesting
extensions of those J1 visas was in the best interests of USAGM given the individual and
collective contributions of the relevant staffers, and noted the risk and potential harm that could
befall these employees if their visa extensions were not granted and they were forced to return to
their countries of origin. The issuance of visas had been put at risk, however, due to Ms. Cullo’s
and Ms. Newman’s apparent advice to Mr. Pack to ignore the requests and do nothing, resulting
in expired visas and the requirement that employees return to their home countries. Ms. Lennon
also raised the J1 visa issues to Andre Mendes (Mr. Pack’s COO) on more than one occasion
during this period, pleading with him to intervene and “do the right thing” for USAGM
programming and to honor the previous commitments made to these individuals.
In late July or early August, Ms. Cullo and Ms. Newman asked Ms. Lennon to take care of
bringing on-board four new staff members to serve in Temporary Schedule C positions. On
August 6, 2020, Ms. Lennon notified both officials that while processing these individuals
through OPM, OPM noted that USAGM had exceeded its authority for this type of appointment.
The OPM staffer noted that a waiver had been requested but he was unable to complete the
processing in their system until he checked with his management. Ms. Newman said she had
asked for an increase and had received approval on July 22, 2020, but did not share any further
details with Ms. Lennon. Other paperwork needed to complete processing of at least two other

15

 Schedule C employees was brought to Ms. Cullo’s and Ms. Newman’s attention repeatedly
during this period with no response. Based on her many years of experience with USAGAM, it
appeared to Ms. Lennon that Mr. Pack was improperly hiring individuals in order to politicize
USAGM. These individuals were ultimately hired and joined USAGM.
On August 4, 2020, in the daily reminder sent to Ms. Cullo and Ms. Newman detailing the
actions they needed to take to approve critical contract and hiring priorities, Ms. Lennon also
noted her serious concerns over Mr. Pack’s public release on that same date of OPM’s follow-up
report regarding review of USAGM’s suitability program. Ms. Lennon indicated that details of
the agency’s program should have been protected and released only to those with a “need to
know.” She also noted that to “provide details about deficiencies in our program to the public
increases the likelihood that sensitive information may fall into the hands of “bad actors,” or
those that may have an interest in using our vulnerabilities for their own interests.”
Ms. Lennon’s disclosures resulted in a clear and explicit retaliatory action, namely the
suspension of her access to classified information.
Additional details will be provided during the intake and/or investigation phases.
Grant Turner
A. Protected Disclosures to State OIG
On June 17, 2020, Mr. Turner started making protected disclosures to State OIG regarding
his concerns that Mr. Pack and Morvared Namdarkhan, a/k/a Mora Namdar, USAGM’s Acting
Vice President for Legal, were engaging in conduct that constituted an abuse of authority, gross
mismanagement and violations of law.

16

 Mr. Turner informed State OIG that Ms. Namdar was pressuring his office to withhold
already appropriated funding from USAGM’s Office of Cuba Broadcasting in violation of the
Anti-Deficiency Act.
In a follow-up meeting on June 21, 2020, Mr. Turner made additional protected disclosures to
State OIG. In addition to repeating the concern previously raised regarding Ms. Namdar’s
actions, Mr. Turner also outlined the following issues that constituted an abuse of authority,
violations of law and regulations, and gross mismanagement by Mr. Pack.
•

Mr. Turner expressed concern that Mr. Pack was abusing his authority and violating the
firewall with his intervention into certain USAGM matters. For example, Mr. Pack
“crossed the firewall” established to protect the journalistic independence of USAGM’s
news networks from interference or influence by political officials. One example is what
Mr. Turner understands to be the removal of an Urdu journalist working for USAGM,
based upon Mr. Pack’s disagreement with the political viewpoint of a piece on former
Vice President Biden. Mr. Pack also removed Steve Springer, the standards editor for
Voice of America, and Bay Fang, the Executive Editor of Radio Free Asia. Mr. Turner
viewed Mr. Pack’s actions as a firewall violation and demonstrated his abuse of authority.
Mr. Pack had also refused to sign J-1 visa extensions for USAGM foreign national
journalists, which Mr. Turner viewed as a politically motivated attack by Mr. Pack based
not on performance but rather viewpoint discrimination and as beyond Mr. Pack’s
authority.

•

Mr. Turner explained that Mr. Pack’s spending freeze was undermining the ability of
USAGM to accomplish its statutory mission. Specifically, the freeze was impacting
staffing, contracting, and technical/IT migrations. The spending freeze was especially
harmful and significantly reduced the number of tools supported by the Open Technology
Fund (“OTF”), which allow reporters to operate in high-risk areas, like Russia and China,
and particularly intended for audiences in key countries to access agency content, such as
in Iran. Taking such steps to remove electronic protections is perceived as endangering
journalists as it can further expose them to hostile government officials.

•

Mr. Turner also outlined for State OIG his view that Mr. Pack’s spending freeze and
related reorganizational efforts at USAGM constituted gross mismanagement, in that Mr.
Pack was engaging in punitive action against particular components of USAGM with
which he disagreed by depriving them of Congressionally appropriated funding. Mr.
Turner also expressed his concern that Mr. Pack was selecting unqualified individuals,
such as Emily Newman, USAGM’s Chief of Staff, and other political appointees who had
no background in journalism) to serve as board members for USAGM’s grantee
organizations.
17

 Mr. Turner addressed these same concerns in separate protected communication on July 21,
2020, he had with the Senate Appropriations Subcommittee for State, Foreign Operations and
Related Programs. The information was similarly disclosed that day to the Government
Accountability Office.
Additional details will be provided during the intake and/or investigation phases.
B. Protected Disclosures to USAGM Leadership
Mr. Turner repeated the concerns he had outlined for State OIG in separate protected
disclosures he made within USAGM to senior leadership officials.
•

On July 13, 2020, Mr. Turner e-mailed Mr. Mendes and identified several concerns he
had regarding Mr. Pack’s actions, including mass firing of network heads, the impact
Mr. Pack’s spending freeze on USAGM’s ability to continue functioning properly, and
violations of the firewall, including the targeting of J-1 visa holders.

•

On July 16, 2020, Mr. Turner e-mailed Ms. Cullo and raised the same concerns he had
raised to Mr. Mendes, and additionally raised concerns about impoundment of funding,
and health and safety issues related to COVID-19

•

On July 16, 2020, Mr. Turner e-mailed Ms. Namdar and raised the same concerns he had
raised to Mr. Mendes, and additionally raised concerns about impoundment of funding,
and health and safety issues related to COVID-19.

•

On July 17, 2020, Mr. Turner e-mailed Mr. Mendes, Ms. Namdar, Ms. Cullo and
Ms. Newman, stating that continued withholding of funding would negatively impact the
ability of USAGM to perform its statutory mission.

•

On July 21, 2020, Mr. Turner e-mailed Ms. Namdar and expressed his concern that she
lacked sufficient training to serve as the sole interlocutor with OTF, as Mr. Pack had
designated her, and that this action would jeopardize important financial controls for the
agency

•

Mr. Turner expressed concern to Mr. Mendes, Ms. Namdar, and Ms. Newman that
continued delay in the transfer of funding to the Office of Cuba Broadcasting would
constitute a violation of the Anti-Deficiency Act.

•

Mr. Turner notified Mr. Mendes and Ms. Namdar that they could not lawfully transfer
approximately $3.5 million in funding from federal grantees to an alternate purpose
without first notifying Congress and OMB.
18

 •

In a meeting on August 12, 2020, with several members of USAGM leadership and
shortly before being placed on administrative leave, Mr. Turner conveyed his concerns
regarding the spending freeze’s impact on USAGM operations, as well as Mr. Turner’s
view that USAGM had misled a federal court regarding the USAGM’s intention to
promptly fund the OTF grantee.

Additional details will be provided during the intake and/or investigation phases.
Matthew Walsh
A. Protected Disclosures
Mr. Walsh made several protected disclosures between June 17, 2020, and August 12, 2020.
On different occasions within that timeframe, Mr. Walsh made verbal disclosures to State OIG
and to a Minority staffer at the Senate Foreign Relations Committee. Mr. Walsh’s protected
disclosures concerned Mr. Pack’s mismanagement of USAGM, particularly his failure to approve
the hiring of or visa requests for foreign national USAGM staffers. Moreover, Mr. Walsh stated
that Mr. Pack’s conduct placed some of those individuals at risk of physical harm.
Additional details will be provided during the intake and/or investigation phases.
B. Hatch Act Violations
Mr. Walsh is also prepared to provide to investigators information regarding Mr. Pack’s
violations of the Hatch Act, 5 U.S.C. § 7321. Mr. Walsh was informed by two separate senior
USAGM officials who were part of the CEO’s Office that Mr. Pack’s attention on him – as well
as the other individual Complainants – and Mr. Pack’s apparent desire to force out Mr. Walsh
was due to Mr. Pack’s belief he and the other Complainants were part of the “Deep State” and
that they had played a role in the delay in Mr. Pack’s confirmation to his position at USAGM.
Another senior USAGM official told Mr. Walsh that Mr. Pack or one of Mr. Pack’s close aides
had ordered him to conduct research on the voting history of USAGM employees, including Mr.

19

 Walsh, and that the research was to be utilized in evaluating career civil servants’ abilities to
carry out the duties of their positions.
Additional details will be provided during the intake and/or investigation phases.
David Kligerman
A. Protected Disclosures to State OIG
Mr. Kligerman made a telephonic protected disclosure to State OIG on July 28, 2020. In that
discussion, Mr. Kligerman outlined concerns about gross mismanagement, abuse of authority,
and violation of law (including breach of the “firewall”) by Mr. Pack and/or his authorized
designees. This included:
•

Breaches of the firewall by Mr. Pack, including with respect to the conduct of internal
investigations into VOA journalists.

•

Abuse of authority and violation of law related to denial of J-1 visas to journalists.

•

Abuse of authority and violation of law related to plans to invent pretextual charges
against Mr. Kligerman for the purpose of terminating him. (related items: Retaliation by
Mr. Pack against Mr. Kligerman for protected disclosures that he had made to the
Congres and threats by Mr. Pack prior to his confirmation with respect to Mr. Kligerman
and other senior staff).

•

On Mr. Pack’s first day at USAGM, June 17, 2020, Mr. Kligerman was notified via email that all delegated authorities previously assigned to him were rescinded. This
rescission – which included Mr. Kligerman’s authority as the Designated Agency Ethics
Official – effectively eliminated Mr. Kligerman’s ability to perform most (if not all) of his
duties as the General Counsel, which relied extensively upon delegated authorities.
Mr. Kligerman’s role as the General Counsel at that point was largely supplanted by Ms.
Namdar, who began providing taskers and instructions to USAGM lawyers without
consulting with Mr. Kligerman.

•

Mr. Kligerman disclosed that Ms. Namdar had abused her authority by imposing a ban on
any external communications by Mr. Kligerman (without approval from Ms. Namdar)
after he had raised concerns with DOJ about alleged ex parte communications by Ms.
Namdar and filming of a party opponent in litigation. Mr. Kligerman made a further
disclosure to State (including State’s Legal Advisor) regarding Ms. Namdar’s
politicization of the J1 visa sponsorship process.

Additional details will be provided during the intake and/or investigation phases.
20

 B. Protected Disclosures Within USAGM
Mr. Kligerman made separate protected disclosures within USAGM leadership regarding
abuses of authority by Mr. Pack. These include, but are not necessarily limited to, the following:
In June 2020, Mr. Kligerman provided Mr. Pack with an ethics briefing, and informed him
that he needed to resign from his outside positions as part of his Ethics Agreement with
USAGM. Mr. Pack indicated he had not yet resigned from his for-profit company, Manifold
Productions, LLC, and that his “team” would handle the relevant paperwork. Mr. Kligerman
flagged this issue on more than one occasion for USAGM leadership as an unresolved ethics
issue but never received a response.
On or about July 10, 2020, Mr. Kligerman also made a protected disclosure with respect to
his concerns about the denials of J1 visas. Mr. Kligerman was told by a former front office
official, who has left the agency, that Ms. Newman was angered upon seeing Mr. Kligerman’s
disclosures about the J1 visas and his recommendations that all visas be issued to mitigate the
issues.
On or about July 23, 2020, Mr. Kligerman reported an abuse of authority by Ms. Namdar to
Ms. Namdar and Ms. Newman. That abuse of authority related to actions that occurred while Ms.
Namdar entered OTF headquarters, and concerns that these actions violated legal ethics rules.
On July 29, 2020, Mr. Kligerman made a protected disclosure to a senior USAGM official
regarding Mr. Pack’s office intervening in an inquiry into an Urdu journalist working for
USAGM. Mr. Kligerman reported this as a breach of the firewall by Mr. Pack’s office, and he
separately informed the Office of Contracts that it would be inappropriate to simply terminate the
Urdu contract without due process.
Additional details will be provided during the intake and/or investigation phases.

21

 C. Protected Disclosures to Congress
Mr. Kligerman addressed many of these same concerns in separate protected communications
in June, July, and August 2020, with the staff of Republican and Democratic members of the
relevant committees of jurisdiction. His outreach included the Senate Appropriations
Subcommittee for State, Foreign Operations, and Related Programs; the House Appropriations
Committee; the House Foreign Affairs Committee; and the Senate Foreign Relations Committee.
He also raised issues of potential Anti-Deficiency Act violations. His outreach also included
concerns that Mr. Pack and his team were politicizing and misrepresenting a July 2020 report
from OPM to pretextually justify crackdowns on employees, including to justify denials of visas
to journalists which Mr. Kligerman believed (based on information from a former Pack CEOoffice official with direct knowledge) was instead based on a desire to remove non-citizen staff
for political reasons relating to immigration policy and alienage.
Additional details will be provided during the intake and/or investigation phases.
D. Hatch Act Violations
Mr. Kligerman is prepared to outline for investigators Hatch Act issues regarding Mr. Pack
that he has observed and regarding which he has knowledge or information.
To be clear, Mr. Pack’s improper actions began before he was confirmed as the CEO of
USAGM. In February and March 2019, when Mr. Pack was the nominee for the position, he
engaged in more than one lengthy discussion with Mr. Kligerman in which Mr. Pack indicated he
did not view USAGM leadership as sufficiently loyal to the White House, as they were instead
“holdovers” from the previous administration. After Mr. Pack was confirmed and took his
position at USAGM, Mr. Kligerman was informed by a senior USAGM official that that official

22

 had been asked by Mr. Pack’s office to create a pretextual dossier on Mr. Kligerman with the
intention of forcing him to depart (if not outright firing him).
Additional details will be provided during the intake and/or investigation phases.
Hoang-Oanh Tran
Since Mr. Pack’s arrival, Ms. Tran’s responsibilities were limited to front office processing
tasks, such as day-to-day functions like Agency reporting requirements and document clearance
process, tracking, records management, and other secretariat services. She was no longer
permitted to support the CEO in other, more substantive tasks she had previously performed,
including, but not limited to, supporting the CEO in managing the decision-making processes or
policy directives, communications, and personnel-related work, which entails resource planning
and performance management of the senior staff that supports the CEO and facilitating the
transition or appointment of USAGM’s leadership
Mr. Pack’s team largely ignored Ms. Tran’s efforts to provide information on the Agency’s
policies and procedures with respect to Time and Attendance, the need to approve critical
Interagency Acquisition Agreements, the importance of processing routine requests by the Voice
of America regarding employment without time limitation for its foreign journalists, J-1 visas
and Permanent Resident sponsorship for current employees/contractors, and the essential
communications regarding the Agency’s response and protective measures to the Coronavirus.
Mr. Pack’s team also perceived Ms. Tran’s effort to remind staff about the importance of the
document clearance process as a way to prevent staff from having direct contact with Mr. Pack’s
team, in other words, creating a perception that Mr. Pack’s team is inaccessible.
Additional details will be provided during the intake and/or investigation phases.

23

 Reprisal Analysis
A. Each of the Individual Complainant’s Protected Disclosures Suffice as a Matter of
Law
ICD-120 and PPD-19 define a protected disclosure, in pertinent part, as:
A disclosure of information by the employee to a supervisor in the employee’s
direct chain of command up to and including the head of the employing agency . .
. or to an employee designated by any of the above officials for the purpose of
receiving such disclosures, that the employee reasonably evidences (i) a violation
of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health
or safety.6
A belief is reasonable if a disinterested observer with knowledge of the essential facts known
to and readily ascertainable by the employee could reasonably conclude that the disclosed
information implicates one of the statutory categories of wrongdoing. It is critical to understand
that as long as his or her belief is reasonable, the employee need not be right about the
underlying allegation. Here, the allegations and concerns raised by each of the individual
Complainants were reasonable and more than likely correct.
Each of the disclosures outlined above were protected for purposes of § 2302(b)(8).

6

•

Shawn Powers: The submission of an OIG complaint on June 22, 2020, as well
as the communications within USAGM leadership and to Congressional
committees, clearly qualify as protected disclosures as a matter of law made
within covered disclosure channels. The disclosures themselves concerned
Mr. Powers’ reasonable belief that Mr. Pack had engaged in abuses of authority,
gross mismanagement and violations of law.

•

Marie Lennon: The communications made by Ms. Lennon within USAGM
leadership qualify as protected disclosures as a matter of law made within covered
disclosure channels. The communications concerned what Ms. Lennon reasonably
perceived as abuses of authority and gross mismanagement by Mr. Pack and
others.

•

Grant Turner: The communications Mr. Turner had with USAGM leadership –
including RMOs such as Mr. Pack – and with State OIG all qualify as protected

PPD-19 § F(5)(a); ICD-120 § D(2)(a).
24

 disclosures as a matter of law that were made within covered disclosure channels.
The communications themselves concerned Mr. Turner’s reasonable belief that
Mr. Pack and Ms. Namdar were engaging in a pattern of abuse of authority, gross
mismanagement and violations of law.
•

Matthew Walsh: The communications Mr. Walsh had with State OIG and
Congressional committee staff qualify as protected disclosures as a matter of law
that were made within covered disclosure channels. The communications
involved Mr. Walsh’s reasonable belief that Mr. Pack’s actions constituted an
abuse of authority and violations of law.

•

David Kligerman: The communications Mr. Kligerman had with State OIG,
Congress, and USAGM leadership all qualify as protected disclosures as a matter
of law that were made within covered disclosure channels. The communications
themselves concerned Mr. Kligerman’s reasonable belief that Mr. Pack and others
around him were engaging in a pattern of abuse of authority, violation of law, and
gross mismanagement.

•

Oanh Tran: The communications made by Ms. Tran within USAGM leadership
qualify as protected disclosures as a matter of law made within covered disclosure
channels.

The individual Complainants have more than sufficiently demonstrated that their disclosures
satisfy the first two criteria of the legal analysis.
B. Each of the Individual Complainants Has Been Subjected to an action impacting
their Eligibility for Access to Classified Information and an Unfavorable Personnel
Actions by Mr. Pack, Who Knew or Was Reasonably Likely to Know about the
Protected Disclosures by the Complainants
ICD-120 and PPD-19 state that an action affecting access to classified information is
reviewable for evidence of whistleblower reprisal. Specifically, both regulations define
Eligibility for Access to Classified Information as:
. . . the result of the determination whether an employee (a) is eligible for access
to classified information in accordance with Executive Order 12968 (relating to
access to classified information), or any successor thereto, and Executive Order
10865 of February 20, 1960 as amended (relating to safeguarding classified

25

 information with industry), or any successor thereto; and (b) possess a need to
know under such orders.7
PPD-19 prohibits taking or threatening to take an adverse, or failing to take a, personnel
action in reprisal for a protected disclosure. Finally, 5 U.S.C. § 2302 (b)(9)(D) prohibits taking or
failing to take, or threatening to take or fail to take, any personnel action against an employee or
applicant for employment for refusing to obey an order that would require the individual to
violate a law.
The factual record makes clear that as a result of their protected disclosures retaliatory
personnel actions were taken against each of the individual Complainants by Mr. Pack, who
either knew or was reasonably likely to know of their respective protected disclosures.
Specifically, Mr. Pack issued letters on August 12, 2020, suspending each of the individual
Complainants’ access to classified information, and concurrently placing them all on
administrative leave. Each of the letters from Mr. Pack contained (among other things) a set of
identical, and often false or irrelevant, allegations stating the Complainants had been granted
access to classified information despite USAGM allegedly lacking the proper authority to
investigate and perform background checks8, as well as that the Complainants had authorized
other USAGM employees to receive security clearances notwithstanding the alleged lack of
authority held by USAGM. Although the allegation that the Complainants were improperly
granted security clearances due to USAGM lacking authority would, if applied uniformly across

7

PPD-19 § F(2); ICD-120 § F(1)(b).

8

The investigations and security clearance adjudications referenced in the access suspension
letters pre-date that action, as well as the temporary cessation of USAGM background
investigations on November 1, 2018. Furthermore, OPM has stated that USAGM actually
lacked proper authority to conduct investigations and adjudications dating back to 2012,
raising questions about an even wider pool of USAGM officials other than the Complainants
who theoretically should have been impacted.
26

 the agency, require the suspension and possible revocation of a significant portion of USAGM’s
cleared workforce, the Complainants are six of only seven employees – as far as they know –
who have had their access suspended pending further investigation.
These actions by Mr. Pack qualify as reviewable personnel actions within the meaning of
5 U.S.C. § 2302.
C. The Actions Affecting their Eligibility for Access to Classified Information and
Unfavorable Personnel Actions Would Not Have Been Taken Absent the Protected
Disclosures by the Complainants and their Perceived Political Views
To determine the answer to the “causation” question, the investigation must analyze what
bearing, if any, the protected communications had on the decisions to take, threaten, or withhold
the personnel actions. For each personnel action, the investigation must analyze the following
factors and then weigh them together to determine whether the personnel action would have been
taken absent the protected communication:
•
•
•
•

Reason stated by responsible management officials for taking, withholding, or
threatening the personnel action;
Timing between the protected communications and personnel actions;
Motive on the part of the responsible management officials to reprise; and,
Disparate treatment of the complainant as compared to other similarly situated
individuals who did not make protected communications.

The burden of proof, during this phase of the investigation, shifts to the U.S. Government.
See e.g., Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012); Figueroa v. Nielsen,
423 F. Supp. 3d 21 (S.D.N.Y. 2019); Miller v. Dep’t of Justice, 842 F.3d 1252 (Fed. Cir. 2016)
(once the complainant establishes a prima facia case, the burden of proof shifts to the U.S.
Government to establish that the personnel actions taken, threatened, or withheld would have
occurred absent the protected communication).
There is no reasonable basis for the actions taken against Complainants other than their
respective protected activities. The arbitrary action taken against the Complainants in a manner
27

 distinct than virtually the entirety of the rest of USAGM’s cleared workforce – notwithstanding
the fact that USAGM’s purported lack of authority would have applied to all cleared USAGM
employees – exemplifies the very concept of retaliation. Had the Complainants not made
repeated protected disclosures within USAGM leadership (including to Mr. Pack himself), to the
State OIG, and to relevant Congressional committees, it is more than likely that no adverse
action would have been taken against the Complainants. Moreover, in some instances the facts
allegedly relied upon by the Agency are simply false – e.g. Mr. Walsh’s security clearance was
not based on an investigation by USAGM at all.
The burden is on USAGM and Mr. Pack in particular to come forward with evidence
demonstrating that the suspension of Complainants’ access to classified information would have
occurred regardless of their respective protected disclosures. If Mr. Pack has any such evidence,
the Complainants intend to refute it. If Mr. Pack fails or refuses to cooperate in the investigation,
an adverse inference should be drawn.
Relief Requested
For the foregoing reasons, the OIG and OSC should recommend the following relief:
(a) Each of the individual Complainants should be immediately reinstated to their
respective positions;
(b) The suspension of the individual Complainants’ respective access to classified
information should be rescinded;
(c) Each existing officer or employee of the government who retaliated or threatened to
retaliate against the Complainants for their protected activities should be reprimanded
in writing, such writing to be made a part of his or her permanent official personnel
record, or otherwise subjected to appropriate corrective or disciplinary action;

28

 (d) Payment of reasonable attorney’s fees; and,
(e) Such other and further relief as may in the circumstances be just and proper.
Respectfully submitted,
/s/ Mark S. Zaid
/s/ Andrew P. Bakaj
/s/ Bradley P. Moss
Mark S. Zaid
Andrew P. Bakaj
Bradley P. Moss
Mark S. Zaid, P.C.
1250 Connecticut Ave., N.W.
Suite 700
Washington, D.C. 20036
(202) 498-0011
Mark@MarkZaid.com
Andrew@MarkZaid.com
Brad@MarkZaid.com
/s/ Robert S. Litt
Robert S. Litt
Alex Iftimie
Janie Schulman
Robin A. Smith
Ani Oganesian
Katherina Aurelian
Morrison & Foerster LLP
2000 Pennsylvania Ave NW, Suite 6000
Washington, D.C. 20006
rlitt@mofo.com
aiftimie@mofo.com
jschulman@mofo.com
rsmith@mofo.com
aoganesian@mofo.com
kaurelian@mofo.com
Attorneys for Complainants

29

 I declare under penalty of perjury that the facts stated in the foregoing Whistleblower

Reprisal Complaint are true and correct.

(66 

Shawn Powers

 

?mmu

Marie Lennon

 

?mk 2M

Grant Turner

 

WM

Matthew Walsh

?Ida:

i?avid Kligerman

 



Hoang?Oanh Tran

32