P.O. Box 11615, Eugene, OR Tel: (541) Fax: (541)

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1 P.O. Box 11615, Eugene, OR Tel: (541) Fax: (541) October 6, 2010 Liz Brown, Attorney U.S. Office of Special Counsel 1301 Clay Street, Suite 1220N Oakland, CA Dear Ms. Brown: This letter responds to your August 30, 2010, preliminary determination to not file a complaint or make recommendations to the MSPB for disciplinary action in regard to prohibited personnel practices committed or recommended by federal employees against Glen Ith for his whistleblowing disclosures. Introduction OSC shall... where appropriate... file a complaint or make recommendations to the Merit System Protection Board for disciplinary action... against any employee for having committed a prohibited personnel practice. 5 USC 1212 and 1215 (emphasis added). Thus, if the facts demonstrate that an employee committed a prohibited personnel practice, OSC must file a complaint or make recommendations to the MSPB OSC lacks discretion to do otherwise. OSC cannot refuse to file a complaint or make recommendations to MSPB on the basis of improper legal conclusions where the facts demonstrate an employee committed a prohibited personnel practice. Upon OSC s filing of a complaint or recommendations, it is up to MSPB to decide the appropriate remedy or sanctions. When OSC fails to bring to MSPB s attention facts that merit MSPB s review, OSC prevents MSPB from carrying out its own statutory mandate. It is not for OSC to determine the merits of a case; that function is reserved to MSPB. OSC s role is limited to making an investigation and, where the facts warrant, bringing the matter to MSPB s attention. The Forest Service reassigned Glen Ith because he blew the whistle on illegal Forest Service roadbuilding. The facts of this case are plain. The Forest Service reassigned Ith because he alleged to a federal judge that the Forest Service had violated the National Environmental Policy Act. Exhibit A. Reassignment in response to whistleblowing is a prohibited personnel practice. These facts alone compel OSC to file a complaint with MSPB.

2 OSC excuses it failure to file with MSPB by focusing on the Forest Service s claim that Ith s reassignment was justified because Ith was a plaintiff in a lawsuit against the government and, thus, potentially privy to the agency s attorney-client deliberative communications. OSC also suggests that the Forest Service was justified in its reassignment because the Forest Service consulted with counsel. The proposition that reassignment can be used to protect an agency s attorney/client deliberations during adversarial proceedings simply ignores the plain language of the Whistleblower Protection Act, which protects from retaliation any disclosure of information by an employee... which the employee... reasonably believes evidences... a violation of any law, rule, or regulation. 5 U.S.C. 2302(b)(8) (emphasis added). Any disclosure includes disclosures made by filing a complaint in federal court alleging violation of a law. Ith s federal court complaint was a disclosure of information evidencing violations of the National Environmental Policy Act. The Forest Service admits that it reassigned Ith because he was a plaintiff in a lawsuit against the Forest Service. Exhibit A. Thus, on its face, the Forest Service admits Ith s reassignment resulted directly from his complaint disclosing a violation of law. OSC s position that protecting an agency s deliberative communications can justify reassignment ignores the Whistleblower Protection Act s plain language. Federal employees and their agency employers regularly engage in adversarial proceedings, including lawsuits and administrative adjudicatory proceedings. No court, nor any other tribunal, has ever suggested that protecting an agency s deliberations while defending itself in an adversarial proceeding can justify reassigning the complaining employee. Federal employees often sue their agency employers. They sue to remedy discriminatory hiring and promotion practices. Laber v. Harvey, 438 F.3d 404 (4th Cir. Va. 2006). They sue to vindicate their rights under the Civil Service Reform Act. They sue for money damages under the several Tucker Acts. Hall v. United States, 2010 U.S. App. LEXIS (Fed. Cir. Aug. 27, 2010). They sue for equitable and injunctive relief under the Administrative Procedures Act. Matsuo v. United States, 416 F. Supp. 2d 982 (D. Haw. 2006). They sue to vindicate Constitutionally-protected rights. Van Ee v. EPA, 202 F.3d 296 (D.C. Cir. 2000). All such lawsuits pit a federal agency defendant against the federal employee plaintiff. In no such case has any court ever found that the federal agency can take a personnel action against the employee to protect the agency s deliberations as it defends against the court action. Numerous statutes in addition to the Whistleblower Protection Act, including the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Equal Pay Act prohibit retaliation (including reassignment) in response to an employee filing a complaint in court or in front of any other adjudicatory tribunal that receives complaints. In no case, under any statute, has a federal agency s interests in protecting its attorney-client deliberations been found to justify an adverse personnel action.

3 By OSC s reasoning, an agency could justify an employee s reassignment whenever an adversarial legal proceeding exists between the employee and agency employer. Instead of the protections from adverse personnel actions guaranteed by law, employees who file suit (or bring an appeal before the MSPB or EEOC) should expect reassignment to be the minimum price paid for seeking justice. Surely, that is not what Congress intended. OSC suggests that an employee can be reassigned if the reassignment is made on the advice of counsel. First, no advice of counsel exception justifying a reassignment or any other adverse personnel action exists in law. Second, government lawyers can be as culpable of improper motives or retaliatory actions as can any other federal employee. 1 Third, as discussed below, the key government lawyer involved in Ith s case demonstrated improper motive in seeking to have Ith reassigned. Tim Obst (former USDA Office of General Counsel attorney) was the lead government lawyer defending against Ith s NEPA lawsuit. On April 3, 2006, six days before the Forest Service reassigned Ith, Obst wrote a memo to Forrest Cole (and other key Forest Service employees) in which he stated Our case [referring to Ith] is the converse, where the employee took an outside action that created a conflict of interest and/or the appearance of a conflict of interest, and thus the agency is changing his job assignment to remove that conflict of interest. Exhibit B. The conflict of interest to which Obst refers is Ith s federal court complaint alleging illegal Forest Service road construction. Thus Obst s motive behind Ith s reassignment was not to protect government deliberations, but to cure a purported conflict of interest. A day later, on April 4, 2006, Joy Thomas (acting Human Resources Director for the Forest Service s Alaska Region) reiterated OGC s motive for reassigning Ith:... the OGC attorneys feel that this is a serious breach of ethics for an employee to file a lawsuit. Exhibit C. Thomas continues: Id. Attorneys (sic) discussed moving employee from the duties of his position on the District to different duties in an office 6 miles down the road. Currently, the employee is working on a project similar to project he appealed. Individuals working with him do not trust him; their morale is low; and he has access to files for which he is the litigant. They would like to remove him from the district and remove his access to the server. Thomas memo never mentions protecting attorney-client deliberations. Instead, the attorneys motives for seeking Ith s reassignment were 1) to prevent Ith from gaining access to files regarding similar projects (referring to other timber sales); and, 2) to 1 OSC, itself, has no small amount of experience in this regard, U.S. v. Bloch, 10-Cr.-215-M-01.

4 remove Ith from the workplace because his whistlebowing made other employees uncomfortable. 2 The conflict-of-interest motive underlying Ith s reassignment is explained in more detail by Forrest Cole in a June 27, 2006, memorandum: Exhibit D. My read is that he [Ith] has created a conflict of interest in filing a lawsuit against the FS related to work he has been hired to do.... I intend to place him on leave (admin or otherwise) to preserve the Forest s ability to continue working. In sum, the evidence shows that the Forest Service and its attorneys believed that Ith created a conflict-of-interest by blowing the whistle over logging he had been hired to assess and justify. Correcting the improper belief that following the law conflicts with an agency s day-to-day business is precisely what the Whistleblowing Protection Act is all about. Ith s suspension was retaliatory and based upon improper motive. OSC asserts that the Forest Service had a reasonable basis, independent of Ith s whistleblowing, to suspend him on July 20, The record simply does not support this conclusion. The misconduct investigation was launched on June 28, But, the day before, on June 27, 2006, Cole wrote: Id. I intend to place him [Ith] on leave (admin or otherwise) to preserve the Forest s ability to continue working. Thus, Cole had already decided to suspend Ith for reasons not related to any alleged misconduct, but instead to preserve the Forest s ability to continue working. This is the same rationale eliminating the conflict-of-interest between a whistleblower seeking environmental law compliance and a Forest Service s work selling timber that motivated Cole to reassign Ith in the first instance. On June 28, 2006, on the day the misconduct investigator was assigned to the case (and, thus, well before evidence of misconduct had been collected), Deputy Regional Forester Mary Anne Young wrote: Regarding the pending administrative leave decision, Melvin stated that the WO does not prefer it as a step to take in such a situation, but the 2 It s reasonable to suppose that the employees responsible for the Forest Service s illegal road building were likely to not trust Ith.

5 Exhibit E. circumstances and timing make it a necessary step; they are supportive of it being the only option available right now to protect the interests and integrity of the Forest Service position at this time. When time and money for Mr. Ith s current detail runs (sic) out, administrative leave is the next logical step in protecting the Forest Service. Thus, the underlying motive for Ith s administrative leave was not premised on any alleged misconduct, but on protecting the Forest Service in its litigation position. The allegations of misconduct, which were never substantiated, were a post hoc pretext for an administrative leave decision that had already been made. A decision that was based upon the improper motive of protecting the Forest Service s litigation position (a position that was without legal merit and that the agency abandoned at summary judgment) in the on-going environmental case. Reorganization and elimination of Ith s position. Ith did not file a whistleblower retaliation complaint with OSC regarding the Tongass reorganization and elimination of his position. At this time, we have no position on OSC s determination on this subject. Conclusion The Whistleblower Protection Act compels OSC to file a complaint or make recommendations to MSPB where, as here, the facts show that federal employees committed prohibited personnel practices in response to whistleblower disclosures. FSEEE s members continue to be exposed to the threat of retaliation from the federal employees who retaliated, or recommended retaliation, against Glen Ith. Sincerely, Andy Stahl Executive Director