4KATZ, MARSHALL & BANKS,
By Hand-Delivery July 15, 2010
The Honorable Deborah A. Robinson U.S. District Court for the District of Columbia 333 Constitution Avenue, N.W. Washington, DC 20001
Re: United States of America v. Scott J. Bloch, No. 1:10-mj-00215-DAR
Dear Magistrate Judge Robinson:
As attorneys for the individuals and groups harmed by Scott Bloch’s unlawful conduct in the above-captioned 1case we are writing to offer a victim impact statement for your consideration in Mr. ,Bloch’s upcoming sentencing on July 23, 2010. As detailed in a federal complaint filed in March 2005, which is still under investigation by the Inspector General at the federal Office of Personnel Management (OPM IG), Mr. Bloch engaged in serious abuses of power in his role as Special Counsel, retaliated against federal employees who sought to prevent or expose his abuses, and then obstructed the ongoing investigation by deleting information from his computer. While Mr. Bloch has now pled guilty to his final act of unlawful conduct — willfully withholding pertinent information from a congressional investigation into the matter — this charge understates the true scope and impact of Mr. Bloch’s unlawful conduct.
We understand the U.S. Attorney’s Office intends to support a request by Mr. Bloch that he receive a sentence of only probation. On behalf of the victims of Mr. Bloch’s unlawful conduct, we would oppose such a light sentence. We believe such a sentence would not appropriately reflect the severity of Mr. Bloch’s admitted actions and would represent a miscarriage of justice in this case.
Subject of the Federal Investigation
Upon taking office as head of the U.S. Office of Special Counsel (OSC) on January 5, 2004, one of Mr. Bloch’s first official acts was to order that all references to OSC’s jurisdiction
Our clients include the national public interest groups the Government Accountability Project (GAP), which seeks to protect the rights of government whistleblowers; Public Employees for Environmental Responsibility (PEER), which seeks to protect the rights of public employees who blow the whistle on environmental abuses; the Human Rights Campaign (HRC), which promotes equal rights for gay, lesbian, bisexual, and transgendered individuals, including those in the federal workforce; and the Project on Government Oversight (POGO), which investigates corruption and other misconduct in order to ensure a more accountable and ethical federal government. Our clients also include several former employees of the Office of Special Counsel, the federal agency charged by Congress and the President with upholding the rights of federal whistleblowers and other federal employees, previously headed by Mr. Bloch.
1718 CoNNEcTIcuT AvENuE. NW SIXTH Fcooa WASHINGTON. DC 20009 • WWW.KMBLEGAL.COM • (T) 202 299.1140• ‘F) 202299.1 148 KATZ, MARSHALL & BANKS, Magistrate Judge Deborah A. Robinson July 15, 2010 Page 2
over complaints of sexual orientation discrimination against federal employees be removed from OSC’s website and its official publications. This action — which was contrary to longstanding federal policy and Mr. Bloch’s own assurances during his Senate confirmation process — immediately brought tremendous concern both from the public and from Congress. Even the White House issued a public statement that Mr. Bloch’s action appeared contrary2 to “[l]ong standing federal policy [which] 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 Exhibit 2. Indeed, federal employees had been protected from sexual orientation discrimination dating back to 1980, but Mr. Bloch’s unauthorized action effectively removed that longstanding protection. In addition, Mr. Bloch permitted the complaints of several hundred federal whistleblowers to be dismissed without any investigation, effectively leaving those federal employees without any remedy for the retaliation they had experienced.
When Mr. Bloch then suspected that members of his staff were speaking to the media about his unlawful policies, he reacted by imposing a “gag order” for all USC employees, announcing a new OSC policy that “any official comment on or discussion of confidential or sensitive internal agency matters with anyone outside USC must be approved in advance by an IOSC official [i.e. Mr. Bloch or a member of his political staff].” See Exhibit 3. This restriction on government employees’ speech not only violated their First Amendment rights, but also violated the Anti-Gag statute and the Lloyd LaFollette Act, which prohibit non-disclosure requirements which bar federal employees from speaking with Congress or from disclosing potential legal violations with authorized federal 3agencies.
Among the Congressional inquiries was a February 19, 2004, letter from theSenateCommitteeon Governmental2 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 (R-Pennsylvania), and Rep. Simmons (R-Coimecticut); and a separate March 4, 2004, letter signed by 70 other Members of the House of Representatives. S. Exhibit 1. The letter from Senators Collins and Lieberman 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 during his Senate confirmation process that he would continue federal government policy of protecting federal employees from sexual orientation discrimination.
The Lloyd LaFollette Act provides that “[t]he right of [federal] employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a
committee or Member thereof may not be interfered with or denied.” 5 U.S.C. §7211. Similarly, the Anti-Gag statute requires that most federal agency actions not “prohibit[] or prevent[], or attempt[] or threaten[] to prohibit or prevent, any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress in connection with any matter pertaining to the employment of such other officer or employee or pertaining to the department or agency of such other officer or employee in any way.. .or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law.” Pub.L. No. 109-115, §820, 119 Stat. 2396, 2500-2501 (2005). KATZ, MARSHALL & BANKS, Magistrate Judge Deborah A. Robinson July 15, 2010 Page 3
In January 2005, in an effort to purge the OSC of employees who he believed may have been responsible for exposing his violations of law, Mr. Bloch then announced the involuntary geographical reassignment of 12 career OSC employees from the D.C. office, most of them to a newly-planned office in Detroit. He further announced that employees who did not report to their newly assigned offices within 60 days would be summarily terminated. Of the 12 employees involuntarily reassigned, two of them were openly gay; three of them had worked previously at the National Treasury Employees Union, the organization that first brought the sexual orientation discrimination controversy to light through a February 12, 2004, press release. Of the seven employees involuntarily reassigned to Detroit, none of them accepted such a reassignment, leaving all of them to either find new jobs outside the agency or be terminated. (Mr. Bloch subsequently offered two of the reassigned employees the opportunity to return to the D.C. office; not coincidentally, these were the only two employees who had not hired an attorney to challenge their reassignments as unlawful). Ironically, it appeared that the nation’s top whistleblower rights enforcer had retaliated against his own employees based on his suspicion that they had blown the whistle on him.
Interference With the Federal Investigation
The above issues were referred to the OPM IG, which began to conduct an intensive investigation, including document review and numerous witness interviews. From nearly the very beginning, Mr. Bloch engaged in various efforts to thwart the investigation. First, he refused to cooperate with the investigation under the bogus claim of “attorney-client privilege”. Next, one of Mr. Bloch’s political deputies instructed all OSC employees that if they 4were contacted by OPM IG directly for an interview, they were required to “notify [her] immediately.” This attempt to control all witness interviews was contrary to OSC’s own published policy, which provides that “OSC reserves the right to contact witnesses directly when appropriate” rather than through an agency liaison. See www.osc.gov/documents/pubs/dr-memo.htm. After negative publicity over this issue, OSC was forced to revoke this command. Mr. Bloch’s deputy also publicly identified one of the individual complainants by name in a blast email to the entire agency — even though the identities of OSC complainants are required to be kept confidential. Mr. Bloch and/or his political deputies then told OSC employees — the potential witnesses in the federal investigation — that an OSC political appointee would ultimately review the investigation findings and decide whether corrective action was warranted, which was false. Other witnesses reported that Mr. Bloch had discussed with senior staff his desire to compel employees who had been interviewed by the IG to complete affidavits describing what they had been asked and what they had told investigators; although he was ultimately dissuaded from implementing this plan, Mr. Bloch’s desires were widely known among OSC staff. All of these actions served to
‘ “Federal officials have no attorney-client privilege that canbeassertedagainstfederal investigators with respect to consultations with government lawyers.” Simon, William, Propter Honoris Respectum: The Professional Responsibilities of the Public Official’s Lawyer: A Case Study from the Clinton Era, 77 Notre Dame L. Rev. 999, 1012 (1998), citing In re Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998) In re Grand Jury Subpoena, 112 F.3d 910, 921 (8th Cir. 1997), cert. denied, 525 U.S. 1105 (1997). KATZ, MARSHALL & BANKS, Magistrate Judge Deborah A. Robinson July 15, 2010 Page 4
intimidate witnesses and make them feel that they were putting their careers on the line by cooperating in the investigation.
In April 2007, Mr. Bloch made the rounds of the media announcing that he was launching investigations into alleged violations of law in connection with the highly-publicized termination of a former U.S. Attorney, David Iglesias, despite the fact that the matter was already being investigated by the Department of Justice, as well as a separate investigation of President Bush’s then political advisor, Karl Rove. Mr. Bloch then publicly used these investigations to try to insulate himself from potential discipline from President Bush by claiming that any discipline of him would be politically motivated — even though Mr. Bloch had launched these inquiries more than two years after the complaint against him had been filed.
On November 28, 2007, the WallStreet Journal then reported the shocking revelation that in December 2006 Mr. Bloch had hired an outside IT company, “Geeks On Call,” which performed a “seven-level wipe” of his OSC computer, as well as the computers of his two top deputies. See Exhibit 4. This computer wipe — the most thorough deletion possible — destroyed all of the documents, files, and emails on his computer and that of his deputies, who had recently left OSC. In so doing, Mr. Bloch rendered thousands of documents potentially critical to the federal investigation not only unavailable to investigators, but making it nearly impossible for forensics experts to restore the deleted data. While Mr. Bloch claimed that only personal files on his computer were affected, he paid for the work using over $1,000 in government funds; he then refused to permit investigators to review the portable flash drive to which he had copied his computer’s files. See id. These events prompted the FBI to raid Mr. Bloch’s OSC and home offices on May 7, 2008. Ultimately, the White House removed Mr. Bloch from his position in October 2008.
Not only did Mr. Bloch destroy or permit to be destroyed potentially relevant evidence in the midst of a federal investigation into his wrongdoing, he then — as is well documented in the Statement of Offense (Apr. 27, 2010) in this case, which Mr. Bloch has accepted as true — willfully withheld information about this matter from Congress. For example, on December 7, 2007, a spokesperson for Mr. Bloch reported that Mr. Bloch “also had the computers of former aides who had departed the agency wiped because the computer technicians arrived at the office
While Mr. Bloch has claimed that he sought out Geeks on Call due to a problem with his computer — at the time, he claimed that he was trying to eradicate a virus that had seized control of his computer — this assertion appears highly pretextual. OSC has its own, highly capable IT department to perform such IT functions, and OSC does not bring in “Geeks On Call” if a computer is not working, and certainly not for a fairly routine issue like a virus. Indeed, this would likely represent a violation of OSC policy, as this outside access to an OSC computer would represent a potential security risk. Moreover, as detailed in the Statement of Offense (Apr. 27, 2010), at 6-7, Mr. Bloch disingenuously informed Congress that he never discussed the supposed problem with his computer with the Geeks On Call specialist before that person performed a seven-level wipe — as if IT professionals routinely delete all files on a computer, rending all information on the computer completely and permanently irretrievable, before ascertaining what the problem is or whether such a drastic approach is remotely necessary. To the contrary, as the manager of”Geeks On Call” confirmed to the WallStreet Journal at the time: “We don’t do a seven-level wipe for a virus.” See Exhibit 4. KATZ, MARSHALL & BANKS, Magistrate Judge Deborah A. Robinson July 15, 2010 Page 5 while Bloch was not present and were billing the agency for their time.” $ Government Executive, Dec 7, 2007, attached as Exhibit 5. Mr. Bloch concedes that he later contradictorily told congressional investigators, however, that he had no knowledge of technicians working on any computers other than his own. See Statement of Offense, at 7 (Excerpt No. 4).
Victim Impact of Mr. Bloch’s Misconduct
Mr. Bloch’s misconduct had a tremendous negative impact on a variety of different parties. First, his retaliatory actions caused a considerable toll on the lives and careers of the OSC employees who he terminated or forced into involuntarily transferring. One of these employees, for example — who had previously been in the federal service for more than 20 years — was unable to find another position and was forced into involuntary retirement. Other longtime federal employees had to scramble to accept positions at other agencies that either offered less pay or represented a significant step backwards in their careers. Mr. Bloch’s retaliatory actions created tremendous anxiety, emotional distress, financial losses, and career damage to these loyal federal employees, which continues to this day. As a result of Mr. Bloch’s criminal wrongdoing and the resulting criminal investigation — which has resulted in the OPM IG investigation being tabled for the past two years — Mr. Bloch’s victims have now had to wait more than five years, and counting, to obtain relief in their whistleblowing complaints.
Second, Mr. Bloch’s misconduct has had a very negative impact on hundreds of whistleblowers and on the entire federal workforce. As noted above, Mr. Bloch authorized the dismissal of hundreds of whistleblower complaints without investigation — leaving hundreds of dedicated federal employees potentially subjected to unlawful retaliatory conduct with no remedy. Mr. Bloch also refused to enforce longstanding federal policy regarding discrimination of federal employees on the basis of their sexual orientation, leaving numerous federal employees discriminated against on this basis, who previously would have been protected by the OSC, with no remedy.
Finally, Mr. Bloch’s destruction of documents in the midst of a federal investigation and subsequent deliberate withholding of information from Congress have damaged the entire federal investigatory system. Were Mr. Bloch to be given a “slap on the wrist” sentence, it would signal not only to Mr. Bloch, but to every federal official that their best way out of a serious federal investigation is to destroy documents in order to cover up evidence of their misconduct. It would further suggest to such federal officials that there are little consequences to then deliberately withholding information or providing misleading information to the investigators seeking to uncover that misconduct — even to Congress. This message would be conveyed especially to those officials, like Mr. Bloch, at the very top of the government hierarchy, leading entire federal agencies, who, after being formally nominated by the President and confirmed by the Senate to protect the public trust, have then repeatedly violated that trust. KATZ, MARSHALL & BANKS, Magistrate Judge Deborah A. Robinson July 15, 2010 Page 6
Conclusion
On behalf of the victims of Mr. Bloch’s unlawful conduct, we urge the Court to award a sentence that appropriately reflects the severe, long-lasting, and broad impact of his actions. Sincerely,/1 Debra S. Katz
Avi Kumin
Enclosures
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HOME Information Technology :OflK c&eerhudder Management Issues March 31, 2004 Homeland Security Employees are protected from bias for sexual Procurement orientation, White House says Postal News Business Report By TIMKAUFFMAN
Career Info Employeesare protected from discriminationbasedon their sexual orientation,the White Personal Finance House says.
Spotlight The White House position,made in a March31 statementto Federal Times,appearsto Commentary contradictrecent statementsby PresidentBush’sappointeeto the office that handlessuch discriminationclaims. Weekly Poll “Longstandingfederal policyprohibitsdiscriminationagainst federal employeesbased on sexual orientation,”WhiteHouse spokeswomanMaria Tamburri said. “President Bush expects federal agenciesto enforcethispolicyand to ensure that all federal employees are protected from unfairdiscriminationat work.”
The governmenthas advisedemployeessince 1980that discriminationbased on sexual orientationis covered as a prohibitedpersonnelpracticeunder the 1978Civil Service ReformAct and shouldbe appealedto the Officeof SpecialCounsel. The act coversall conduct“which does not adverselyaffect”performance,although it doesn’tspecically list sexualorientation.
Special Counsel Scott Bloch, whoseoffice is responsiblefor ensuringemployeesare not discriminatedagainstbased on mattersunrelatedto theirwork, has questionedpublicly whether the law actually protectsfederalemployeesfrom discriminationbased solelyon their sexual orientation.He removedall materialsreferencingsexualorientation discriminationfrom OSC’sWeb site shortlyafterbeginning a 5-year termin Januaryand said he is reviewing his agency’sobligationto enforce such cases.
in a March 10interviewwith Federal Times,Bloch said his initial reading of the law is A.bes that gays, lesbians and bisexuals are protectedonly if the discriminationis based on conductunrelated to theirjobs, suchas attendinga gay pride rally.
Tamburri did not make a distinctionbetweensexualorientation and conduct.She said Mailines she was unable to commenton whethertheWhiteHouse statement conflictswith Bloch’s views and whether the WhiteHousehed discussed its reading of the law with Bloch. OSC did not have an immediateresponseto the WhiteHouse statement,
A group of Democratic lawmakerschallengedBloch’sinterpretationat a March 31 news conference and said they will be sendinga letter to Bush asking him to issue a statement affirmingthat scxual orientationdiscriminationisillegal.Theletterwasbeingcirculated to House and Senate members for theirsignaturesat press time.
http://federaltimes.com/index.php?S=23 3091 2/1/05 FederalTimes Online Page 2 of 2 ‘.
“The law is clear:Federalemployeescannotbe discriminatedagainst in employment — matters for fctors that do not affecttheirjob performance,”Rep.TammyBaldwin,D Wis., said. “Thismay comeas a surpriseto Mr. Bloch,but being a gay or lesbian American doesnot affecta person’sjob performance.”
Several lawmakersat the newsconferencesaid Bushshould demandBloch’sresignation TI if Bloch does not retreatfromhis statedposition.
Nearly 80 lawmakersfromboth chambersandparties,but mostlyHouseDemocrats, have sent lettersto Blochin recentweeksaskinghim to reversehis positionand D acknowledgethat discriminationbased on sexual orientationis against federalpolicy. Rep. Eliot Engel, D..N.Y.,said HouseDemocraticleadersdecidedto writeto Bush ( because they have receivedno responsefrom Bloch, Zr
Copyright2000 Federal Times. Use of this site signifies your agreement to the Terms of Service (updated April 4, 2003).
http://federaltimes.com/index.php?S=233091 2/1/05 Exhibit 3 From: Sent: Friday April09, 2004
To: I Subject: From the Special Counsel
Please read the message below.
From:. Sent: Friday,April09, 2004 10:53 AM To: .. Subject: Updated language forIssuanceto staff
The Special Counel has requested that we convey to you that he and his staff have completed their legal reviewof OSC’s jurisdictionto process claims under title 5, section 2302(b)(10),allegingsexual orientationdiscrimination.Their conclusions can be found in a recently posted press release on OSC’swebsite. If,inthe performance ofyourcase- processing duties, current or potential complainants, their representatives, or agency representatives ask about OSC’s policyon (b)(10)complaints, you should simplyrefer them to the press release on our web site as a complete and definitivestatement of OSC’s polIcy.
Please also note that the Special Counsel has directed that any officialcomment on or discussion of confidentialor sensitive internalagency matters with anyone outside OSC must be approved in advance by an IOSC official. Exhibit 4
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The spokesmansaid Bloch also had the computersof formeraideswho had departed the agencywiped becausethe computertechniciansarrivedat the officewhileBlochwas not present and werebillingthe agencyfortheirtime.
The spokesmancould not explainwhyBloch,whohas saidall the deleted files were personal, used agencyfundsto pay for the work, whichcost $1,149.
Bloch has saidhe backed up all the files on a portablethumbdrive.
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(C) 2007 BY NATIONAL JOURNAL GROUP,INC. ALLRIGHTSRESERVED..
2 of2 4/28/20087:04 PM