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21–821 PDF 2005

S. Hrg. 109–68

SAFEGUARDING THE MERIT SYSTEM: A REVIEW

OF THE U.S. OFFICE OF SPECIAL COUNSEL

HEARING

BEFORE THE

OVERSIGHT OF GOVERNMENT MANAGEMENT, 

THE FEDERAL WORKFORCE, AND THE DISTRICT 

OF COLUMBIA SUBCOMMITTEE

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

MAY 24, 2005

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs

(

(II)

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

LINCOLN D. CHAFEE, Rhode Island 

ROBERT F. BENNETT, Utah 

PETE V. DOMENICI, New Mexico 

JOHN W. WARNER, Virginia 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

MICHAEL D. BOPP, Staff Director and Chief Counsel 

JOYCE A. RECHTSCHAFFEN, Minority Staff Director and Counsel 

TRINA D. TYRER, Chief Clerk 

OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL 

WORKFORCE, AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE 

GEORGE V. VOINOVICH, Ohio, Chairman 

TED STEVENS, Alaska 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

LINCOLN D. CHAFEE, Rhode Island 

ROBERT F. BENNETT, Utah 

PETE V. DOMENICI, New Mexico 

JOHN W. WARNER, Virginia 

DANIEL K. AKAKA, Hawaii 

CARL LEVIN, Michigan 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

ANDREW RICHARDSON, Staff Director 

RICHARD J. KESSLER, Minority Staff Director 

NANCI E. LANGLEY, Minority Deputy Staff Director 

TARA E. BAIRD, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Voinovich ............................................................................................. 1

Senator Akaka .................................................................................................. 2

Senator Lautenberg .......................................................................................... 5

Senator Levin .................................................................................................... 16

Senator Carper ................................................................................................. 27

WITNESS 

TUESDAY, MAY 24, 2005

Hon. Scott J. Bloch, Special Counsel, Office of Special Counsel: 

Testimony .......................................................................................................... 7

Prepared statement .......................................................................................... 33

APPENDIX

Letter from Scott J. Bloch, Special Counsel, dated May 31, 2005, to Senator 

Voinovich, with attachments ............................................................................... 40

Letter from Tom Devine, Legal Director, Government Accountability Project, 

and Jeff Ruch, Executive Director, Public Employees for Environmental 

Responsibility (PEER), dated May 23, 2005, to Senators Voinovich and 

Collins ................................................................................................................... 67

OSC Response to the GAP/PEER Letter ............................................................... 72

Prepared statements from: 

Project On Government Oversight, Danielle Brian, Executive Director, 

with an attachment ...................................................................................... 95

The National Treasury Employees Union (NTEU), Colleen M. Kelley, 

National President ........................................................................................ 97

Linda Myers, former OSC Alternative Dispute Resolution (ADR) Specialist, with an attachment .......................................................................... 99

Joe Solmonese, President, Human Rights Campaign, and Len Hirsch, 

President, Federal GLOBE, with attachments ........................................... 102

Letter from Cary P. Sklar, dated May 31, 2005, to Senators Voinovich 

and Akaka ..................................................................................................... 118

Letter from Debra S. Katz, Bernabei & Katz, PLLC, dated May 31, 

2005, to Senators Voinovich and Akaka with attachments ....................... 120

Questions for the record from Senator Lieberman ............................................... 162

Responses from Mr. Bloch ............................................................................... 164 

Questions for the record from Senator Akaka ....................................................... 165

Responses from Mr. Bloch with attachments ................................................. 191 

(1)

SAFEGUARDING THE MERIT SYSTEM: 

A REVIEW OF THE U.S. OFFICE OF 

SPECIAL COUNSEL 

TUESDAY, MAY 24, 2005

U.S. SENATE, 

OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL

WORKFORCE, AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE, 

OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS,

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:06 a.m., in 

room SD–562, Dirksen Senate Office Building, Hon. George V. 

Voinovich, Chairman of the Subcommittee, presiding. 

Present: Senators Voinovich, Akaka, Levin, Carper, and Lautenberg. 

OPENING STATEMENT OF CHAIRMAN VOINOVICH 

Senator VOINOVICH. The meeting will please come to order. 

Today’s Subcommittee hearing entitled Safeguarding the Merit 

System: A Review of the U.S. Office of Special Counsel is going to 

provide an in-depth examination of the mission, roles, and responsibilities of a small yet important Federal agency. I would like to 

thank Senator Akaka for requesting today’s hearing on this important human capital topic. 

I would also extend a warm welcome to our witness, the Hon. 

Scott Bloch. Mr. Bloch began his 5-year term as Special Counsel on 

January 5, 2004, after being confirmed by voice vote on December 

9, 2003. As an independent investigative and prosecutorial agency, 

OSC protects current and former Federal employees and applicants 

for Federal employment from Prohibited Personnel Practices (PPP). 

The Agency also promotes and enforces compliance with the Hatch 

Act. Finally, the Agency facilitates disclosures by Federal whistleblowers about potential government wrongdoing. 

Since the foundation of OSC’s mission is rooted in the merit system principles, the Agency will play a vital role in the transformation of the 21st Century Federal workforce. Therefore, with 

OSC in the middle of a 5-year reauthorization, it is appropriate for 

this Subcommittee to ensure that the Agency is meeting its mission 

during the most dramatic changes in the civil service system in 

more than a quarter of a century. 

During his short tenure as Special Counsel Mr. Bloch has implemented a number of ambitious steps to transform the mission, culture, and structure of OSC. Some of Mr. Bloch’s decisions are perVerDate 0ct 09 2002 11:31 Jul 26, 2005 Jkt 021821 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\21821.TXT SAFFAIRS PsN: PHOGAN
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1The letter referred to appears in the Appendix as Appendix A on page 210. 

ceived as controversial. Although I will go into further detail in my 

line of questioning, I would like to mention one area specifically in 

my opening statement. 

On January 7, 2005, Mr. Bloch announced several performance 

improvements and organizational changes to OSC, including his vision for decentralizing some of OSC’s Washington-based operations. 

Mr. Bloch’s authority to reorganize OSC is not in question. In fact, 

the President’s Management Agenda required agencies to create a 

more citizen-centered, results-oriented, market-based Federal Government. 

For example, OMB guidelines issued in May 2001 required each 

agency to develop a strategic workforce plan that redirects employees to service delivery positions in order to improve customer service, and take care of internal and external customers. Even though 

I believe OSC’s restructuring efforts conform to the intent of the 

President’s agenda, I question the urgency of opening a new field 

office 3 months after the Agency’s reorganization plan was announced. As the Agency that protects the merit system, OSC 

should set a sterling example of how to manage and treat Federal 

employees. 

In this instance, I feel that OSC could have done a better job 

during this initial phase of the restructuring. Guidance issued by 

OSC required affected employees to initially accept or decline a 

transfer within 10 days. OSC extended the deadline by an additional 10 days after receiving a request from numerous congressional offices, including mine. Mr. Bloch, I hope you understand 

that asking employees to make life-altering decisions in just 10 

days may be construed as very insensitive. Even though OSC followed the letter of the law, I believe employees should have been 

provided a lot more time to make this decision. 

Fortunately, Mr. Bloch, this hearing will afford you the chance 

to provide a detailed explanation of the reasoning behind your actions and I hope you seize this opportunity to do so. To this end, 

last week Mr. Bloch submitted a comprehensive letter to GAO outlining the organizational improvements at OSC and I ask unanimous consent that Mr. Bloch’s May 17, 2005, letter be added to the 

hearing record.1

There being no objection, it is included. 

Senator VOINOVICH. Before I yield to my good friend Senator 

Akaka, I would like to recognize his steadfast commitment to provide Federal whistleblowers with a safe disclosure process which is 

central to OSC’s mission. I do not think there is anybody in the 

Congress that is a better friend of whistleblowers than Senator 

Akaka, and that has been part of his whole career here in the Senate. As many of you know, Senator Akaka is the chief sponsor of 

legislation to strengthen the protections of Federal whistleblowers 

and I am pleased to be one of its co-sponsors. 

I now yield to Senator Akaka for his opening statement. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. Thank you very much, Mr. Chairman. I cannot 

say enough about your leadership in the U.S. Senate and what you 

3

have done for the Federal workers of our country. I want to commend you for your commitment to Federal workers and for listening to their concerns. By holding today’s oversight hearing on the 

Office of Special Counsel you have once again demonstrated your 

leadership in protecting employee rights. I do not have to tell you 

this, but I am right by your side. 

OSC has a special role in the Federal Government. It is charged 

with making sure that Federal employees are free from discriminatory, retaliatory, and arbitrary actions. These protections are essential so that employees can perform their duties in the best interest 

of the American public. By enforcing the merit system principles 

and serving as an advocate for Federal employees, OSC helps ensure that the Federal Government is an employer of choice. As we 

look at the future, this becomes very important when the baby 

boomers retire. 

As the Departments of Defense and Homeland Security embark 

on new personnel systems that, in my opinion, severely diminish 

the rights and protections of Federal employees, the importance of 

OSC in protecting the merit system principles will increase. Today’s hearing examines how well OSC is meeting this extremely 

important mission. 

The role of OSC has evolved. Created by the Civil Service Reform 

Act of 1978, OSC was established as an independent investigative 

and prosecutorial agency working on behalf of employees, particularly whistleblowers. But it did not live up to this role. The Whistleblower Protection Act was passed in 1989 in large part because 

OSC at the time was perceived as ineffectual. At that time, OSC 

had not brought a single corrective action case since 1979 to the 

Merit Systems Protection Board on behalf of a whistleblower. A 

former Special Counsel advised the whistleblowers, ‘‘do not put 

your head up because it will get blown off.’’

Whistleblowers told Congress that they thought of OSC as an adversary rather than an ally, and urged this Committee to abolish 

the office altogether. Instead, Congress strengthened rather than 

abolished the office, and the Whistleblower Protection Act gave 

OSC a new charter: To protect employees, especially whistleblowers, from Prohibited Personnel Practices and to, again, act in 

the interest of employees who seek its assistance. 

Despite significant changes in OSC after the 1989 Act, employee 

satisfaction with the office remained surprisingly low. According to 

the Government Accountability Office in 1993, 81 percent of employees with cases before OSC gave the office a generally low to 

very low rating for overall effectiveness. Even employees with successful cases before OSC gave the Agency low marks for poor customer service and effectiveness. 

Congress passed amendments to the WPA to strengthen protections for whistleblowers and improve OSC’s effectiveness in 1994, 

and we had been encouraged about the direction OSC was headed. 

For example, in 2001 the Government Accountability Project, one 

of OSC’s stakeholders, said that OSC had won over even the most 

disillusioned critics by opening channels of communication with 

stakeholders and developing a genuine docket of ongoing litigation. 

I was very pleased to see that even though changes are needed to 

strengthen the WPA, those filing whistleblower cases generally beVerDate 0ct 09 2002 11:31 Jul 26, 2005 Jkt 021821 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\DOCS\21821.TXT SAFFAIRS PsN: PHOGAN
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lieved that their cases had a fair evaluation and that OSC was actively pursuing its mission. 

Sadly, it appears that this trend is reversing and that OSC may 

be reverting to the anti-employee practices of the past. For example, employees, good government groups, and employee unions have 

publicly expressed their concerns over the activities of OSC regarding the backlog of cases. While I appreciate the efforts by Special 

Counsel Bloch and his staff to reduce the backlog, there are 

charges that the manner in which the reduction was accomplished 

is suspect. Very serious allegations have been raised that complaints are not being adequately reviewed, cases have simply been 

shifted from one office to another, or cases were dumped. If true, 

these practices are directly counter to OSC’s legal responsibility to 

be the protector of civil service employees. 

Moreover, the allegations about the adverse treatment of OSC 

employees are deeply troubling. Earlier this year, without notice to 

congressional authorizers or appropriators, OSC initiated a reorganization which resulted in the opening of a new field office in Detroit and the loss of approximately 10 percent of the Agency’s workforce. The reorganization announcement came on the heels of a 

$140,000 external review of OSC which did not recommend such a 

change. 

In addition, the reorganization proposed moving the Alternative 

Dispute Resolution office, which has been highly successful in resolving disputes, from the Washington, DC headquarters where a 

majority of the cases are handled, to the new Detroit field office. 

In my opinion, the business case for a new field office has not been 

made, and I am alarmed by the way employees were forced to relocate or lose their jobs. Volunteers were not solicited and those selected to relocate were not consulted before the decision was made. 

In fact, the unilateral action was the impetus for some remaining 

OSC staff, who have asked to remain anonymous, to write this 

Subcommittee in support of the fired employees who have joined in 

filing a complaint against Special Counsel Bloch with the President’s Council on Integrity and Efficiency. 

Equally troubling, shortly after taking office in 2004, Special 

Counsel Bloch removed all information relating to sexual orientation discrimination from OSC’s web site. This action was taken in 

spite of repeated questioning by myself and other Members of this 

Committee during Mr. Bloch’s confirmation process as to his views 

on this subject. He repeatedly assured, under oath before this Committee, that discrimination based on one’s sexual orientation is prohibited and is under OSC’s jurisdiction. 

Only after Senators Collins, Lieberman, Levin, and I questioned 

this action in a letter to Mr. Bloch, dated February 19, 2004, and 

after both the Office of Personnel Management and the White 

House reaffirmed that the long-standing position that sexual orientation discrimination was prohibited, did OSC reverse itself. 

However, employees are still unsure of the degree of their protection and related subject matter information that was on the OSC 

web site prior to the legal review of this issue still has not been 

returned to the site. 

Last, Mr. Chairman, some OSC employees claim they have faced 

retaliation for being ‘‘leakers’’ after alerting Congress and the press 

5

1The letter referred to dated May 23, 2005, appears in the Appendix on page 67. 

that OSC’s policy on sexual orientation discrimination was under 

review and for filing complaints against Mr. Bloch. These charges, 

if proven true, could result in Mr. Bloch’s dismissal from Federal 

service. Let me be clear, if the lead agency charged with protecting 

Federal employees is seen as the most egregious offender of the 

merit principles, the best and brightest now serving in the Federal 

Government will want to leave and it will be hard, if not impossible, to recruit young men and women to serve. 

With fears over retaliatory and arbitrary action against employees under the new personnel systems at the Departments of Defense and Homeland Security, it is imperative that OSC be a safe 

haven and a place of hope for employees. As such, OSC must be 

held to a higher standard. The activities of OSC must be above reproach. To the detriment of employees and the merit principles, it 

appears that OSC is not meeting this goal. 

Mr. Chairman, I hope that today’s hearing will allow us to get 

to the bottom of these concerns and allegations, and ensure that 

OSC is a safe haven for Federal employees and a staunch advocate 

for the merit system principles. I want to thank you again, Senator 

Voinovich, as well as Senator Lautenberg, for supporting my whistleblower legislation. We have received, Mr. Chairman, a letter of 

support for this hearing from the Government Accountability 

Project and Public Employees for Environmental Responsibility, 

and I ask that the letter be included in the record.1

Thank you very much, Mr. Chairman. 

Senator VOINOVICH. Without objection. 

Everyone should understand that Senator Akaka’s opening statement was a little longer than what we ordinarily allow in this Subcommittee, but I know he feels strongly about this issue that I 

thought that he ought to be able to articulate his position before 

the Subcommittee. Thank you, Senator Akaka. 

Senator Lautenberg. 

OPENING STATEMENT OF SENATOR LAUTENBERG 

Senator LAUTENBERG. Thanks, Mr. Chairman. I listened to Senator Akaka’s statement very carefully and I thought that he 

touched a lot of very important bases, and I congratulate him for 

the thoughtfulness and the direction that he has taken this hearing 

into. And also to you, Mr. Chairman. 

The one thing that happens is when you get a group of Senators 

to focus on a particular subject, especially something to do with the 

innards of government, then it begins to get a lot easier to make 

the statements with a degree of conviction and knowledge. Mr. 

Bloch, it does not augur well for your management of this office, 

at least the reports of your management. 

The Office of Special Counsel’s central purpose is to safeguard 

Federal employees from reprisal from whistleblowing. However, the 

way the office is being managed, it appears that its primary function is to protect arbitrary actions and to inhibit employee criticism 

or complaint. Now this places the Special Counsel in the position 

of representing Federal employees while ensuring that the laws 

and the policies of the United States are upheld. Those are the reVerDate 0ct 09 2002 11:31 Jul 26, 2005 Jkt 021821 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 C:\DOCS\21821.TXT SAFFAIRS PsN: PHOGAN
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quirements. It is a challenging balancing act and I appreciate the 

difficulty of achieving the correct balance. 

However, I am really concerned that the office has tilted too far 

in one direction, Mr. Bloch, since you have taken over in 2004. 

During Mr. Bloch’s confirmation a year-and-a-half ago I noted that 

you had substantial experience in the private sector handling complex whistleblowing cases on behalf of both plaintiffs and defendants, and I had hoped that such experience would serve well in the 

new post. Since then, however, a number of concerns have been 

raised by public watchdog groups, and as Senator Akaka mentioned, labor unions that represent public employees. These concerns include inadequate protection against discrimination on the 

basis of sexual orientation. Again, I may repeat some of the things 

said by colleagues but I think they are worth repetition, questionable hiring and contracting practices, allegations of dumping valid 

cases simply to reduce the backlog. 

Mr. Chairman, when I was in private business I ran a company 

when I came here with almost 20,000 employees, now over 40,000 

employees, and we always felt that those employees were the company’s greatest asset and strength. We always encouraged employee contributions of thought and ideas as well as listening carefully to legitimate criticisms. 

I learned something in now over 20 years about government employees as well. I spent 30 years in business—I am really a relic 

if you look at the time spent—but I learned something about government employees as well. Loyal, hard-working, easily as qualified 

as any of those that I met in the private sector. But the loyalty and 

the skill that they bring to the job is always pleasing, but almost 

surprising because, and I say this, with relatively modest compensation. It was mentioned that employees can find lots of things 

to do outside of here, and we are having some difficulties. Those 

who come to government come for special reason. It is not simply 

to look at a pension but it is to make a contribution to the wellbeing of our country. 

I learned something about employee transfers, Mr. Chairman. 

When we first started in business I was always interested to hear 

that our salesmen who sold us from IBM or other computer companies would come in and they would talk about the transfer they got 

to Paducah—that is not a name—I am not criticizing Paducah, 

Kentucky—and they would gladly take these promotions. Years 

later as we grew, as our company grew outside of its New Jersey 

presence, if I wanted to transfer someone, a promotion, they would 

say, I have to talk to my wife and my kids. I thought that is a legitimate thing. The dialogue between management and employee 

made our company incredibly successful. If anyone wants to look 

up ADP’s history, it is pretty spectacular, in modesty I say. 

So I cannot understand the attitude that the Administration repeatedly has taken toward public employees. The Office of Special 

Counsel is supposed to protect the rights of public employees. It is 

an important mission, not just for the sake of the employees themselves. Public employees who come forward as whistleblowers serve 

an important function in our democracy. They provide a check on 

the bureaucracy by warning the public when there is waste, fraud, 

or abuse at a government agency. And this Subcommittee, in parVerDate 0ct 09 2002 11:31 Jul 26, 2005 Jkt 021821 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 C:\DOCS\21821.TXT SAFFAIRS PsN: PHOGAN
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1The prepared statement of Mr. Bloch appears in the Appendix on page 33. 

ticular, has the assignment to review these things as carefully as 

we can and as diligently. Many times the only people who are 

aware of such wrongdoing are those who work inside the agency. 

If we fail to protect those who come forward and do the right thing, 

we do a disservice to every taxpayer in the country and every citizen who relies on the government to provide quality services. 

Again, Mr. Chairman, many thanks for calling this hearing. 

Senator VOINOVICH. Thank you, Senator. 

Mr. Bloch, it is tradition here on this Subcommittee that we 

swear in our witnesses. If you will stand and I will administer the 

oath. 

[Witness sworn.] 

Mr. Bloch, I would like to remind you to please keep your oral 

statement to 7 minutes and also remind you that your entire written statement will be made a part of the record. Thank you for 

being here today. 

TESTIMONY OF HON. SCOTT J. BLOCH,1 SPECIAL COUNSEL, 

OFFICE OF SPECIAL COUNSEL 

Mr. BLOCH. Thank you, Mr. Chairman, Senator Akaka, Senator 

Lautenberg, and distinguished Members of the Subcommittee. In 

Shakespeare’s immortal drama of political treachery and leadership, Julius Caesar, he states, ‘‘There is a tide in the affairs of men 

which, taken at the flood, leads on to fortune. Omitted, all the voyage of their life is bound in shallows and in miseries. On such a 

full sea are we now afloat, and must take the current when it 

serves or lose our ventures.’’

Senators our country is at a high tide of homeland security and 

national security affairs, and what we do and how we meet the 

public trust will determine in some part the success of the American venture of limited self-government. At OSC, our ventures into 

reform and innovation in the Federal workforce have set us on a 

course toward greater efficiency, greater accountability, and I am 

proud to be a part of the solutions with you. 

Kristin Shott certainly understood the high tide of safety to the 

public and our state of war when she reported to us the nonconforming welds on the USS Kitty Hawk aircraft carrier, which averted a potential loss of life and destruction of jet fighters. As a result, 

Ms. Shott has suffered greatly for carrying on in her role of whistleblower. 

It was the same for an FAA controller who courageously reported 

to us that her superiors failed to properly investigate and report 

near misses at a major international airport. In layman’s terms, 

these planes were almost running into each other about every other 

week. 

Another conscientious whistleblower took on the U.S. Air Force 

to protect the integrity of the Air Force’s C–5A Galaxy transport 

aircraft. The same goes for the TSA employee who was subjected 

to a retaliatory investigation, placed on paid administrative leave, 

and ultimately proposed for termination because she reported to 

TSA’s Office of Inspector General that her supervisor illegally 

brought his privately owned AK–47 to the office. We have pursued 

8

protections for these whistleblowers who have been reprised 

against for their brave reporting. 

Or take Judithe Hanover Kaplan, former colonel, U.S. Air Force, 

who was a nurse in Federal employment with a Ph.D. and an unblemished record who was fired when she was called away on military duty. One of my first acts upon taking office was to take swift 

action on that case. We filed it as the first ever USERRA case before the Merit Systems Protection Board (MSPB) in the history of 

OSC, and we got more money for her than was proposed originally 

in the case that was filed. 

OSC is aware of taking the current when it serves to protect 

whistleblowers, to step up prosecutions for returning service members, and to vigorously prosecute illegal partisanship and illegal 

personnel practices to bring greater integrity to our Federal Government. The problem of good government is not divided by party 

but by commitment to principle. 

During my confirmation hearing and after I became the Special 

Counsel, it was apparent that two major problems confronted OSC, 

a serious backlog of cases and a cumbersome organizational structure. My publicly-stated pledge to this body and to the public has 

been to give all full, fair and expeditious resolution to all cases, especially the unacceptably high number in backlog. 

My recent reorganization is dedicated to the above-stated goals. 

Indeed, given the widespread press about these historic backlogs 

and the GAO report issued shortly after I assumed office, it is indeed ironic that we are now being subjected to such scrutiny for 

having addressed the backlog, studied the source of the problems, 

and embodied a creative and long-lasting strategic solution to the 

problem that will benefit the Federal workforce for years to come. 

I have kept my pledge to Congress and Federal employees and am 

pleased to report that we have made tremendous progress in our 

first year. 

One of my first priorities in office was to address and eliminate 

backlogs in the Intake Unit, Complaint Examining Unit (CEU), 

Disclosure Unit and Hatch Act Unit, within 1 year. At the same 

time, I made it clear that ultimately the Agency would reorganize 

into a leaner, better organizational unit. The Agency seemed to 

lack a vision and needed performance goals and standards. Personnel did not seem strategically placed to solve Agency challenges. 

Agency structure was process-oriented, not results driven. 

I created a Special Projects Unit (SPU), which was new to the 

Agency, in April 2004, and it managed the Agency’s resources and 

directed the backlog resolution efforts. The SPU became, so to 

speak, the ‘‘fireman’’ of the Agency. SPU is now the Agency’s official watchdog on case backlogs and will ensure that OSC staff will 

resolve any large inventory of cases before they become backlogged. 

In addition to the SPU, we hired an independent assessment team 

to study the Agency and make strategic recommendations. The results of the past year were unprecedented. As we announced on 

May 17, 2005, in a detailed response to GAO’s report in the record 

here, I am pleased to report that we reduced the overall Agency 

backlog by 82 percent, from 1,121 to 201 cases in the Intake and 

Disclosure units, all by the end of calendar year 2004, and all without sacrificing quality. 

9

We gave a full and fair resolution to all claims, such as the TSA 

whistleblower, the Air Force employee, and Ms. Hanover Kaplan. 

In fact, we were able to provide even more justice to complainants. 

During this backlog resolution project we doubled the historic percentages of internal referrals for Prohibited Personnel Practices. 

This meant an even higher percentage of claims were investigated 

and are being investigated. 

For whistleblower disclosures, we have nearly doubled the number of cases that were referred back to agencies or their Inspectors 

General for further investigation. The credit for this Herculean effort goes to my career staff that has worked long and hard to meet 

our goal. Our Hatch Act unit has reduced backlogs of older cases 

to a very manageable level, provided a record number of advisory 

opinions—some 600 more than the prior year, done extensive outreach during an election year, and been a model of non-partisan 

enforcement. Truly amazing results. 

In January, I announced an Agency reorganization plan to ensure no future case backlogs would occur and to create internally 

consistent procedures. I consulted with all senior management as 

well as my immediate staff throughout the past year in preparation 

for this. The independent assessment report was not the only 

source of information that I utilized to reorganize the Agency. It 

was only one among several tools. 

The overall paradigm was to delayer the current OSC organizational structure; we had a ‘‘SES’’ sandwich at OSC, if you will. All 

SES and several GS–15 level supervisors were in Washington and 

took turns reviewing what had already been reviewed. I wanted to 

‘‘power down’’ decisionmaking to the lowest levels of competence 

versus having repeated reviews, endless written memoranda, and 

needless meetings. OSC was a D.C.-centric organization that some 

saw as ‘‘cherry picking’’ all of the good cases away from the existing 

field offices, and often the field offices felt as if they were mere appendages of our Agency and I wanted to change that. 

The restructuring will also include a new field office in the upper 

Midwest, in Detroit, for geographic representation throughout the 

United States. With the various States assigned to this office under 

the new plan, this office will handle the same number of cases as 

the other field offices. The management director reassignment was 

based on the precepts of strategic management of human capital, 

placing the right people in the right positions to have a winning 

team. 

At the same time, we have implemented a vigorous new training 

unit that will cross-train personnel to work in other areas of law. 

The lack of cross-trained personnel was a major impediment to attacking backlogs. Our new customer service unit will better serve 

the public and Federal employees. 

Last, we have stepped up enforcement of Uniformed Services 

Employment and Reemployment Rights Act (USERRA) cases within the Federal Government. This is the law that guarantees job 

protections to those service members who go on active duty and 

want to return to their job when their service ends. With the historic mobilization and demobilization some have faced illegal employment practices after their active service. Although cases have 

been in the Agency for years, I am the first Special Counsel to take 

10

MSPB actions against agencies that were not in compliance with 

this important law. As the father of a U.S. Marine who has served 

in two combat tours in Iraq, the last along the Syrian border from 

which he recently returned, I do not take these USERRA responsibilities lightly. 

Last year, a law was passed giving us additional responsibilities 

under this law and we have now set up a new USERRA unit within OSC. This new arrangement marries up OSC’s investigative and 

prosecutorial roles, which do not work as effectively when separated. 

As Shakespeare said, we must take the current when it serves, 

and thanks to our excellent career staff we have taken it at OSC, 

with proud results that have improved the merit system and our 

government’s overall efficiency and safety. 

I welcome any questions you have. Thank you, Senators. 

Senator VOINOVICH. Thank you, Mr. Bloch. We are going to have 

5-minute rounds of questions. 

Mr. Bloch, I would like you to provide more details regarding 

your decision to open the office in Detroit. From what I understand, 10 of the 12 affected employees that were asked to transfer 

to the field offices have left your Agency entirely. Since you have 

only about 110 employees, losing nearly 10 percent of your workforce in less than 3 months could negatively impact the progress 

you have made on this case backlog. Now you must recruit, hire, 

and train new staff to replace those that left. Your Agency has a 

specialized mission and I suspect it is not easy to find potential employees to help you accomplish your goals. What steps are you taking to ensure that the new employees have the tools that they need 

to get the job done? This gives you an opportunity to talk about 

that office, that decision and the whole issue of the short notice to 

have folks leave, because there were some allegations that the reason they were asked to move within the 10-day period was that you 

were unhappy with them and that was one way that you could 

show your displeasure. We might as well just get that out on the 

table and give you a chance to respond to it. 

Mr. BLOCH. Thank you, Senator. I appreciate your leadership, 

the leadership of Senator Akaka and Senator Lautenberg and this 

Subcommittee. I share with you 100 percent commitment to the 

principles you have expressed and I want to assure this Subcommittee that we are not doing anything contrary to what you 

have expressed in terms of the vision and the goals for the Federal 

workforce. 

I will take the last part of your question first, Senator, if I might, 

to simply dispel any notion that there was any attempt to do away 

with, or retaliate, or hurt any employees. We understand at OSC, 

and we have discussed this at length, not only with my immediate 

staff but with the SES and other career staff who are in leadership 

in OSC, that it was our sincere, and is our sincere desire that each 

and every one of the employees affected by this reorganization plan 

would come along with us and be a part of this new team, which 

was going to be a great success and is still going to be a great success. We were very mindful, and still are mindful, of the human 

dimension, how this affects people. 

11

We realize the 10 days seemed rather harsh and we immediately 

gave in, in fact, on the recommendation of our human resource 

manager who told us originally 10 days was what the case law said 

was permissible and that is what we understood. We also felt, and 

I want to make sure that everyone understands this on the Subcommittee, that we were not going to just give them 10 days. They 

also had all kinds of time to make a decision, even if they decided 

to initially determine they might want to go, and most of them did 

say they probably did, that they could always change their mind 

without any harm to them or any effect, and we were going to work 

with them at all levels to try to facilitate a good result for them. 

Indeed, I want to clarify for the record that each of these employees we were very concerned about and we made recommendations 

to them for other Federal employment. When we had the opportunity we gave them very high recommendations. We had nothing 

but good will towards them. They were excellent people who had 

excellent records and we simply had a difference of opinion about 

management style perhaps, but it was nothing more than that. I 

want to assure this Subcommittee that there is no truth whatsoever to that aspect of the question. 

With regard to why we opened the Detroit office, we did not seize 

on Detroit as a city that we were looking for, but rather we talked 

to employees——

Senator VOINOVICH. What I would like to know is why did you 

not choose Cleveland. 

Mr. BLOCH. We tried, Senator, and your wonderful State of Ohio. 

We actually have people from Ohio who came into our Agency after 

I came aboard and they were wanting Cleveland or Columbus. Unfortunately, GSA was in the driver’s seat for us on this issue. We 

wanted to go to Chicago because employees had recommended Chicago to us. They had recommended Ohio, Indianapolis, and Kansas 

City. GSA was unable to accommodate us and told us, you are not 

going to be able to get those cities for a year. Chicago was our top 

pick. That is an MSPB based city and employees that are in our 

Agency from there, and in fact the head of ADR was from there 

originally. So that was our first choice. 

But GSA said, you can get space now, we have space available 

in a Federal building in Detroit, with no build out costs. We were 

quite surprised by that. My immediate staff went and visited, 

looked at it and it seemed appropriate. 

Senator VOINOVICH. So the issue is the GSA basically controlled 

that decisionmaking that you went to Detroit. 

Mr. BLOCH. That is correct. 

Senator VOINOVICH. It has been said that the employees who 

were asked to transfer but decided to leave OSC is because they 

had a difference of opinion with you in terms of whether that is a 

good idea or not, or what was it? 

Mr. BLOCH. Senator, I do not pretend to say that about them. I 

am not trying to put words in their mouth. I am saying, at worst 

it was a difference of management style. But I think what they 

really expressed to us was, we have human issues in our lives. We 

have family. We have other issues and we really would prefer to 

stay here, and was, I think, the basis of much of the decisionmaking. We had a couple of employees who immediately said they 

12

1The letter referred to dated May 31, 2005, appears in the Appendix on page 40. 

would go and were on board and were getting ready, and in fact, 

made trips out there to Detroit, two of whom were, I think, from 

Detroit originally, so the hardship issue was not as great for them. 

They had family they could stay with. 

Senator VOINOVICH. So basically the eight that did not go, or 

whatever it is, they did not want to go out to Detroit because of 

family reasons and so on. But they did leave the Agency; is that 

correct? 

Mr. BLOCH. Some of them left the Agency. 

Senator VOINOVICH. Of the ones you asked to leave, how many 

stayed in the Agency? 

Mr. BLOCH. We did not ask anyone to leave. We asked them to 

stay with us. Those who were caught up in the reorganization plan 

that would have to be reassigned geographically——

Senator VOINOVICH. How many of them stayed with the Agency? 

Mr. BLOCH. I believe it is three or four. 

Senator VOINOVICH. Then the others left and went somewhere 

else? 

Mr. BLOCH. Right. One retired. Most of the others got other jobs 

in the Federal Government, thankfully in the whistleblower area, 

so I think it is a net plus for the Federal sector for the merit system. But in any event, yes. And we made recommendations to 

those employers, giving them very high marks. 

Senator VOINOVICH. Just for the record, why don’t you just send 

as part of this hearing, send me a letter about what happened to 

these people so it is very clear in the record? Who went out, who 

did not go out and what happened to them, so the record is clear 

about what happened there.1 I will ask one question—my time is 

up—but two did go out there and how are you doing in terms of 

recruiting people for that office? 

Mr. BLOCH. Thank you, Senator. That was another part of your 

question I neglected to get to. We had two that went out there, but 

ultimately they got other jobs in the whistleblower area in Washington, but we had two other volunteers that went out there and 

they are doing a wonderful job. They have opened the office. One 

Senior Executive Service has been overseeing that, traveling to various field offices including Detroit, to make sure that is opened correctly. 

We have hired, unbelievably, through the tireless efforts of the 

career staff on the hiring committee, been able to hire all those positions back. I think essentially all the positions that we lost. We 

have, I think, four investigators and five attorneys we have hired 

recently through a competitive process. We are very grateful that 

we got very high quality employees, people who could step right in, 

who have experience and knowledge and background and a commitment to this area. So we are very hopeful about the future. The 

Detroit office is looking very promising. We are doing really well 

with cases, some of which I have cited here. We think the future 

looks very bright and we are very sorry that some of the employees 

were aggrieved, and we really hope the best for them. 

Senator VOINOVICH. Senator Akaka. 

Senator AKAKA. Thank you very much, Mr. Chairman. 

13

Mr. Bloch, I am glad to hear about the tremendous progress you 

feel you have made with the office and the results, as you mentioned, have been unprecedented. You have worked on the backlog 

and consulted with the employees. I am glad to hear all of that. 

I have some questions that will help clarify some of the concerns 

I have. Just to follow up on Senator Voinovich’s question on the reorganization. You did not extend the time for employees to make 

a decision on the reassignment until Members of Congress protested. How was the ‘‘all kind of time to make a decision’’ relayed 

to the affected employees? 

Mr. BLOCH. Thank you, Senator Akaka. 

Senator AKAKA. How was it relayed to them? 

Mr. BLOCH. Thank you, I appreciate the question and the concern. We shared the concern. Again, we originally set forth all of 

the procedures that were going to be used for the reorganization, 

and giving people notice of their rights and so on, and we relied 

on our human resource director, the manager of the human resources division, to come up with all of the CFR portions and the 

various timelines and so on. We did not make this up. It was recommended to us. 

After the fact, and indeed thanks to your staffs and yourselves, 

we were made aware of some of the concerns and the problems 

with the timeline. We were quite cognizant of the difficulty this 

posed for some people. Our human resource director came up to us 

and said, let us give them 10 additional days. Let us do it. And we 

said, we have no problem with that whatsoever. He went around 

to each office, for those who were present, related to them immediately orally. We also gave them in writing an additional 10 days. 

Plus he mailed it to those who were not present on that particular 

day. We also had him—I think he would have done this any way 

on his own—but we asked him to make sure they understood, we 

will work with you. 

Senator AKAKA. I am also concerned, Mr. Bloch, by your statements in the press regarding OSC employees, particularly where 

you said ‘‘it is unfortunate that we have a leaker or leakers in our 

office who went to the press rather than coming to me.’’ Given the 

specific role that Congress gave to OSC to protect employees from 

adverse action by Federal agencies, especially whistleblower retaliation, I am deeply concerned about the message this sends to Federal workers. 

My question to you is, why did you refer to OSC employees who 

believed they were disclosing violations of law as leakers? 

Mr. BLOCH. Thank you, Senator. That certainly is an unfortunate 

term and I think that harkens back to an article that appeared in 

the Federal Times some year-and-a-half ago, or at least over a year 

ago, I think. As I am sure Members of this Subcommittee may have 

had experience with, sometimes remarks get taken out of context 

or emphasized in a way that makes them appear far worse than 

they were. We had a lengthy hour-and-a-half interview or hour or 

something and the tape recorder and the discussion and the notes 

do not often reflect things like quote marks being put around something by your fingers and things of that nature. 

I certainly did not mean anything inappropriate or derogatory. 

We were talking about the general issue of the tendency of new 

14

Special Counsel to have people who might disagree with him, and 

that I was trying to express our willingness to work with anybody 

on any issue, and it would be better if they came to us. In fact, the 

reporter may have even used the term ‘‘leaker’’ with quote marks 

around it and we had that discussion going. I cannot honestly recall the circumstances but that is not how I look at my employees. 

I look at my employees as valued individuals who are part of a 

team and who have given me great advice and even greater efforts. 

So I reject the notion that people should not be permitted to express their opinions, either to me or to the public or wherever they 

want. We have made it very clear to everyone in the Agency that 

we appreciate their rights and they should be able to express themselves. 

Senator AKAKA. Do you deny you used the word leaker? 

Mr. BLOCH. No, I do not deny that occurred during the interview. 

All I am expressing to you, Senator, is that in the context I am not 

sure that it was intended in the way that it has been used. 

Senator AKAKA. Mr. Chairman, my time has expired. 

Senator VOINOVICH. Senator Lautenberg. 

Senator LAUTENBERG. Mr. Bloch, you expressed your concern for 

the employees and how sensitive you want to be. On the other 

hand, your actions do not comport with your words, I have got to 

tell you that. I listened in stark amazement at times at the things 

you say you care about and you are sorry for and it was misunderstood. We ought to get this straight here. We are going to judge you 

based not so much on what you say today but on the actions you 

have taken thus far. 

One of the decisions you made earlier this year was that the Department of Treasury officials did not violate the Hatch Act by presenting John Kerry’s tax plan and posting the results on the Treasury web site in support or defense of administration tax policy. Do 

you think that is an appropriate place to be spending taxpayer 

money, because it was obviously a tactic in a political campaign? 

But that was your decision. 

Mr. BLOCH. Senator, I appreciate your question. As we stated to 

you in a letter, we took that claim very seriously. The Hatch Act 

unit, which is in charge of these matters, thoroughly investigated 

that using an investigator and an attorney. They thoroughly looked 

through documents and interviewed witnesses at the Department 

of Treasury and it was their determination, not mine, that the use 

of the web site and that the defense of administration policy which 

had been long-standing across all different partisan divides, different administrations had done this, that this was acceptable as 

long——

Senator LAUTENBERG. You saw no problem with that? I mean, 

you are the boss. 

Mr. BLOCH. No, I disagree with that, Senator. We did see a problem with it. It is just that the Hatch Act Unit, SES and GS–15 career staff are highly capable and know a lot more about Hatch Act 

than I do, and said it did not cross the line. However, we had concerns, and those concerns were expressed in a letter to the Department of Treasury general counsel’s office, do not get into this sticky 

wicket anymore, to make it clear to employees they are not going 

to be coerced into doing anything partisan during an election year, 

15

and that they have Hatch Act rights, and that the only thing they 

are required to do is their job and the defense of administration 

policy and not crossing over the line. 

I mean to tell you, Senator, that we did not get a warm fuzzy 

from the Department of Treasury when we did that. But we did express difficulties and problems with that. 

Senator LAUTENBERG. Thank you. You said before that you tried 

to be considerate of the employee needs and so forth when you declared that you had 10 days to make a decision as to whether you 

would move you, your family, your grandmother, whoever else was 

in your family unit, to Detroit, but you had this mad dash to reduce the staff and the backlog. It seems to me that you had determined that heads would roll if they did not agree. 

Now how many employees do you have in the Detroit office? 

Mr. BLOCH. Currently we have two full-time equivalents with 

three new hires which should be joining us shortly. 

Senator LAUTENBERG. This decision was made in January; am 

my right? 

Mr. BLOCH. The decision was announced in January. I believe it 

was made in December, late December. 

Senator LAUTENBERG. So obviously this did not meet with thunderous applause from the employee group that was asked to make 

this move. It is terrible to say to an employee who may have lived 

in the area here for 20 years or whatever, and has established their 

family roots, and you say, OK, you have got 10 days, put up or do 

whatever you want to do. These employees that you now bemoan 

having lost, I do not think got particularly human treatment. 

You said that there was case law to substantiate it, but at what 

point does soul creep into case law? Is there any point in time, is 

there anything that says, these are human beings? They have lives 

to conduct. But case file; you are out of here. How does that strike 

you? You obviously are proud of your son serving in the Marine 

Corps. You are proud of your family thusly. But aren’t other people 

entitled to some family pride, some family balance when a decision 

is made that affects their life, her life, or their lives? 

Mr. BLOCH. Yes, Senator, I agree with you, they are entitled to 

consideration and we never intended to try to hurt anyone, and we 

did not intend for them to have to move in 10 days. All we were 

asking them was for their initial decision, will they go along, because we had a lot of planning to do to open the office in 60 to 90 

days. I want to take a clear stand here for the record that we had 

three different offices we were sending 12 different employees to, 

not just Detroit but also Dallas and San Francisco, to be consistent 

with our overall plan to have smaller modular units that were 

more agile, had power down from D.C. and had a lot of innovation 

and leadership within their own offices. 

Now in response to your question, I did discuss with my immediate staff as well as with career staff the very thing that you have 

raised, which is the human problem here. We have real people that 

we care about who have real lives, who have real histories with 

commitment to the workforce and we were having to do a balancing 

act. This was a management-directed reassignment, which according to the Government Executive that did an article on this, happens about 22,000 times a year in the Federal Government. So 

16

each one of those people are affected. Each person is affected by a 

decision I make, and I am quite well aware of that, and it is something that weighs heavily on my decisionmaking. 

However, we thought this was for the best of the Agency. I want 

to hasten to add that the SES employee who was affected by the 

Detroit reassignment said to us in the first discussion about whether he would go or not, I think this is a creative solution. I want 

to go along with this. This might actually work really well. So we 

were very confident and hopeful that all employees would see their 

way clear to helping us achieve the results. But yes, Senator, the 

human dimension really meant something to me then. It means 

something to me today. 

Senator LAUTENBERG. But eight people did not agree with you. 

Mr. BLOCH. Thankfully, they have other jobs, most of them, and 

I am very thankful for that. 

Senator LAUTENBERG. That is very thoughtful. Thank you. 

Senator VOINOVICH. Senator Levin. Thank you for being here. 

OPENING STATEMENT OF SENATOR LEVIN 

Senator LEVIN. Thank you, Mr. Chairman. Thank you for holding 

this hearing. 

First on the question of sexual orientation discrimination. What 

is the current policy as to whether or not claims of adverse action 

against an employee based purely on orientation is recognizable 

and within your jurisdiction? 

Mr. BLOCH. Thank you, Senator Levin. Thank you for being here 

and giving me the opportunity to respond to these questions and 

set the record straight on these issues. I want to say what I said 

in my confirmation to you personally, as well as in the hearing, my 

one hundred percent commitment to those employees who come to 

us who have complaints, that a complaint of sexual orientation discrimination or any other kind of discrimination based on sexual activity, or any other activity, conduct of any kind, we have enforced 

the statute that we have that governs this. We enforced it through 

the process of our legal review, and we enforce it today and we 

never stopped enforcing it. So they do have protections. 

Senator LEVIN. I just want to ask my question, which is, put 

aside conduct, just about sexual orientation. Somebody says, I am 

gay; that is it. That is my orientation. And there is some adverse 

action against that person purely because that person says, that is 

my orientation. No showing of conduct. Is that within your protection? 

Mr. BLOCH. Senator, thank you. The answer to your question is, 

when you say the term sexual orientation or gay, you are saying 

something that equates to status or class protection. So the question I would say is, do we give status protection to any employees? 

The answer is, yes, we do. That is found in Section 2302 (b)(1) of 

our statutes. The status protections that we have based on just 

who you are, not on what you have done, are to be found there and 

are enumerated and they are typically understood as Title VII 

types of protections, but they also add—we have race, sex, religion, 

and all those, but they also add marital status, and political affiliation. 

17

Senator LEVIN. I understand those protections under Title VII. I 

am talking about in your jurisdiction. Will you protect in your jurisdiction an employee against whom adverse action is taken purely because that person is gay, without any information relative to 

activity? You always use the word activity and I want to drop that 

word out of there and ask you the direct question, because we keep 

floating back and forth on this issue. 

Mr. BLOCH. Thank you, Senator. The answer is that under (b)(1) 

sexual orientation does not appear as a class status protection. The 

only other section of the statute that we have——

Senator LEVIN. Is it within your jurisdiction to protect or is it 

not? Can you give me——

Mr. BLOCH. Yes, it is within our jurisdiction to protect employees 

who claim sexual orientation discrimination. When they file a Form 

11 with our office the first question we ask them is why do you 

think you have been discriminated against. If they tell us because 

of sexual orientation we say, OK, we want to investigate this. The 

next question is, did you engage in any conduct for which you were 

terminated or in any other way discriminated against. 

Senator LEVIN. The answer is no. 

Mr. BLOCH. That does not adversely affect your employment. 

Senator LEVIN. Let us assume the answer is no conduct. I just 

made a statement that I am gay, action was taken against me. 

Drop the word conduct. This thing has gone back and forth and 

back and forth for years. Give us a clear answer, yes or no. There 

is no showing of conduct, no allegation of conduct relative to activities, homosexual activities. It is just, I am gay. Yes or no, is that 

protected by you or not? 

Mr. BLOCH. We are limited by our enforcement statute given to 

us——

Senator LEVIN. Is it protected or not? 

Mr. BLOCH. If given the opportunity to answer I will answer it 

this way. We are limited by our enforcement statutes as Congress 

gives them. The courts have specifically rejected sexual orientation 

as a status protection under our statutes in Morales v. Department 

of Justice in 1993. It is not a part of our—it appears nowhere in 

our statutes. It is not in the legislative history. The case law has 

rejected it. Far be it from me to exceed my authority and make law 

when I do not have that authority. 

Senator LEVIN. Why did it take me 5 minutes to get that answer 

out of you? 

Mr. BLOCH. I believe it is more than 5 minutes we have been 

talking, Senator. 

Senator LEVIN. Why did it take me 6 minutes? I do not want to 

underestimate the amount of time that I have been trying to get 

a direct answer out of you. Why does it take so long for you to say 

you do not have that jurisdiction? I disagree with you, by the way, 

and the White House does, too, but why does it take you so long? 

Mr. BLOCH. I think, Senator, in this area we have what I would 

refer to as ships passing in the night. Some people refer to sexual 

orientation and they mean conduct. Some people refer to it and 

they mean class protection and status. So we have to be clear about 

our terms, and when we are talking about legal protections that 

could debar a Federal employee, a manager let us say from employVerDate 0ct 09 2002 11:31 Jul 26, 2005 Jkt 021821 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 C:\DOCS\21821.TXT SAFFAIRS PsN: PHOGAN
18

ment, we have to know we have statutory authority in that area. 

We do not see sexual orientation as a term for class status anywhere in the statute or in the legislative history or the case law. 

In fact, quite contrary to it. 

Senator LEVIN. The American Spectator a few weeks ago published a letter from you saying that you have been conducting a responsible, common sense, and full review of this issue. Is that 

under review again? 

Mr. BLOCH. I am sorry, no, the original policy that we put out 

is still in effect and it is on our web site which sets forth not only 

the original administration position but our enforcement statute. 

And not only the conduct requirement but our extension of that to 

implied conduct. 

Senator LEVIN. So do you imply conduct with nothing more from 

a statement that somebody is gay? 

Mr. BLOCH. I do not imply anything. But that if there is evidence 

that it established that there is imputed personal conduct, an inference can be drawn. Yes, Senator, it goes beyond witnessing somebody doing something. 

Senator LEVIN. But you have to impute conduct? 

Mr. BLOCH. Yes. 

Senator LEVIN. It is not enough that somebody says they are gay, 

adverse action is taken against them, you do not consider that 

within your jurisdiction because of the word conduct in the statute. 

The White House has made very strong statements about not allowing discrimination against Federal employees based on sexual 

orientation. It does not talk about activity, it says sexual orientation. President Bush expects Federal agencies to enforce this policy 

to ensure that all Federal employees are protected from unfair discrimination at work. That is not something that you believe is 

binding on you? 

Mr. BLOCH. I believe that is binding on me. 

Senator LEVIN. If there is conduct. 

Mr. BLOCH. No, it is binding on me without conduct. But it is not 

something I can prosecute on the basis of. It is binding on my 

Agency. It is binding on the Department of Justice. It is binding 

on each agency. 

Senator LEVIN. It is binding on you but you cannot do anything 

about it. 

Mr. BLOCH. If you look at the Executive Order in question, that 

you are referring to, it states specifically, no right or remedy is conferred upon a Federal employee against the Government of the 

United States by virtue of this Executive Order. 

I am limited by the enforcement statutes that you give me, Senator. 

Senator LEVIN. My time is up. Thank you. 

Senator VOINOVICH. I would like to just explain for the record 

that we talked about the moving of employees and it was brought 

to my attention that the requirement for moving Federal employees 

is very common. Military personnel move usually every 2 to 3 

years. Federal law enforcement like the FBI special agent—I know 

one of our agents came to see me, the new head of the Cleveland 

office—and they are required to move quite frequently, and about 

22,000 non-military employees a year are moved around in the 

19

Federal Government. That does not mean that we ought not to be 

as sensitive as we should in terms of giving them notice, and working with them, and understand their family conditions and so forth. 

I hope that because of this incident you have learned something in 

terms of consideration, and that int he future you will allow a little 

mroe time for this process. 

Mr. BLOCH. Yes, Senator, I am learning new things every day. 

Senator VOINOVICH. You mentioned the issue of the backlog of 

cases in your opening statement, but there are some allegations out 

there that you went through this backlog and arbitraily closed 

whistleblower cases in a cursory fashion. And the reason for it is 

because in the prior 3 years, you closed more cases in 1 year than 

they did in 3 years, so the implication is that perhaps your employees really didn’t look at these cases as thoroughly as they should 

before they were closed. I would like you to just share with us 

again what process you went through in examining those cases. 

Also please share the steps you took to ensure your employees had 

a way to provide feedback in order to improve case processing. So 

often, we don’t ask them. 

Mr. BLOCH. Thank you, Senator. Indeed, when I first got there, 

I met with all of the employees and I said I want your creativity. 

Like Socrates said, real wisdom is knowing you don’t know anything. And I knew I didn’t know a lot, but I knew they knew a lot, 

and I wanted to mine that material, I wanted to mine that talent 

and get them to tell me how we should look at the world differently. I even said to them, if you have to stand on your desk to 

look at your files in a different light, let’s do that. Let’s do it together!. Let’s try to come up with solutions. And you know what? 

They did. We put together this Special Projects Unit and it was 

like a bull pen. And they would sit together, very talented employees like Pernell Caple, who’s one of the leaders of our intake unit, 

who knows more about personnel law—he’s forgotten more than I’ll 

ever know. And people like that were in the bull pen, with ideas 

going back and forth, and then experienced people from the Investigation and Prosecution Division were coming through and they 

were interacting with new ideas. And out of that process arose new 

procedures and new solutions to the backlog that made it possible 

for us to give full and fair resolution, never sacrificing quality. In 

fact, we doubled the number of claims that were successful over the 

rate that had been done in the prior years. I think that speaks very 

highly for the process. 

Senator VOINOVICH. The impression that I originally had, when 

we talked about the process, is you closed cases just to eliminate 

the backlog. What you are telling me is that wasn’t the case, that 

you went through them and there were many that were moved on 

to agencies to be investigated or other action that you took. It 

didn’t mean that because you eliminated the backlog it meant that 

they were dumped into the circular file. 

Mr. BLOCH. That’s correct, Senator. What we did is we released 

the bottleneck in the Agency and we took care of business. But 

most of all, we took care of employees who were complaining. I said 

to my staff when I first arrived, also, we do not exist to get rid of 

cases; we exist to find the good ones that are there. And I want 

you to change your mentality from one of ‘‘they’re coming down the 

20

1The letter, dated May 17, 2005, appears in the Appendix on page 210. 

assembly line,’’ kind of like the Lucille Ball episode where all the 

chocolate keeps coming down, you’ve got to find a place for it because you can’t wrap it all. And I said, ‘‘We’ve got to change our 

mentality to one of finding the good that is there.’’

And they’ve done that, they’ve done everything I asked them. It’s 

not my doing, Senator. All I did was point to the hill. They took 

the hill. And if you told my career employees that they threw cases 

out and didn’t do their job and put their bar licenses on the line 

because of me—it isn’t going to come out of their mouths. They 

didn’t do that. In fact, a bipartisan group of staffers from the 

House side—our oversight committees, Congressman Porter and 

Congressman Davis—last month came through and spent days 

with my career staff asking them questions about what we’d done. 

And they looked through hundreds of files randomly to determine 

if we’d done a proper job. And they concluded that we had, and 

they sent us a letter to that effect on May 17, 2005, which, if it 

isn’t already, I’d like to make a part of the record.1

Senator VOINOVICH. I would like to make it part of the record, 

so without objection, it will be. 

Senator Akaka. 

Senator AKAKA. Thank you, Mr. Chairman. 

I want to follow up on the line of questioning of Senator Levin. 

During your legal review of the scope of protection for employees 

and role of OSC in protecting employees from sexual orientation 

discrimination, you removed all information on this topic from 

OSC’s web site, including a training slide and press release. As a 

result of your legal review, why are these documents not back on 

OSC’s web site? Do you believe they are in any way inconsistent 

with the results of your legal review? If so, why? 

Mr. BLOCH. Thank you, Senator Akaka. 

The answer is yes. I think some of the materials are inconsistent 

with our legal review. There was confusion between Section 2302 

(b)(1) status protections and the use of the term ‘‘sexual orientation’’ in our training materials as well as slide presentations as 

well as press releases. And it doesn’t appear anywhere in our enforcement statute, case history, or in the legislative history. In fact, 

to the contrary, it’s been rejected. So we couldn’t feel that we were 

doing the right thing in educating people properly about the law 

unless we used the proper terminology. 

What we put back up on the web site, Senator, was the handout 

called ‘‘Your Rights as a Federal Employee.’’ And in that handout, 

it sets forth the same protections that were there before under the 

conduct-based discrimination and it expands the list of categories. 

But it starts with what was originally on there, which was Jack’s 

employment is terminated because he attended a Gay Pride march. 

We also expanded it out to include all other categories so we didn’t 

give a mis-impression that we were singling out someone. And that 

would be, attended a pro-life event, attended an animal rights 

rally, or attended a gun owners’ rights meeting. So any kind of conduct that occurs that people are doing things in their off-hours 

should have nothing to do with their performance in the Federal 

21

workforce. We are fully committed to that and we continue to enforce that and never have stopped. 

And we think the materials that are on there currently also include our policy statement that in the Federal Government, the 

President has stated the policy of the Administration, and then we 

set forth our enforcement statute and we explain how we enforce 

it. 

Senator AKAKA. Will you please provide a copy of the legal review for the record? 

Mr. BLOCH. Yes, we will, Senator. 

Senator AKAKA. Thank you. 

The press reports, Mr. Bloch, that all cases involving sexual orientation discrimination are reviewed and investigated under a special procedure under the supervision of James McVay, your principal legal advisor, who is a political appointee. Please describe the 

process for reviewing and investigating allegations of discrimination based on one’s sexual orientation at OSC and explain how it 

is different from the process used for reviewing other Prohibited 

Personnel Practices, such as nepotism, political coercion, or other 

Section 2302 (b)(10) cases. 

Mr. BLOCH. Thank you, Senator. The answer to that is that we 

have a Special Projects Unit which was created, which is doing a 

lot of different tasks, including the new USERRA unit, as well as 

continuing to work on the backlog issues to make sure they don’t 

crop up again, and any other major projects that the Agency has 

undertaken that are new in nature. One of the undertakings is the 

new policy that we put out in April of last year concerning sexual 

orientation discrimination. And we were concerned that cases 

might not be given the attention that they should be, that they 

would too quickly work their way through the process because of 

the new mandates for backlog reduction. And so what we said was 

let’s make sure that they get extra attention, and that is exactly 

what’s happened. Mr. McVay has faithfully carried out the needs 

of the unit. 

But all of these sexual orientation claims receive a higher level 

of review from an SES and they are worked by a career employee. 

So there’s a misnomer that they’ve somehow been funneled through 

a political appointee. As all of you know, agencies throughout the 

Federal Government always have politicals at various levels of 

leadership who are the assigned leadership of that particular administration. But that does not in any way express any kind of 

change of the notion of career staff working these cases and then 

being reviewed by higher-level employees. 

Senator AKAKA. Chairman Voinovich, I wish to note for the 

record that staff from our Subcommittee asked twice to visit OSC 

and were told no. However, the request was accepted just a few 

days before this hearing. Mr. Bloch, can you comment on that? 

Mr. BLOCH. Yes, Senator Akaka. My understanding was that my 

congressional affairs person, Cathy Deeds, had a conversation with 

staffers in the Senate who heard about the people that were already at our Agency from the House, who had requested to be able 

to come over, a bipartisan group, to look through our files and talk 

to our career staff. And they asked, well, can we come over too, and 

we said yes. I was requested, and I said absolutely, but we want 

22

to make sure they don’t come in midstream and not hear the 

speeches of the career staff and have to reinvent the wheel in the 

middle of things, so let’s make sure they have their own time to 

come over—we were talking early May—and that’s the last I heard. 

There were two conversations, and I never said no. Absolutely 

never said no, and was happy to have them over any time they 

want to come over. We certainly welcome them. We had nothing to 

hide with the House, and we have nothing to hide with the Senate. 

Senator AKAKA. Thank you. Mr. Chairman, my time has expired. 

Senator VOINOVICH. Senator Levin. 

Senator LEVIN. Thank you, Mr. Chairman. 

Just to summarize our previous discussion, basically it seems to 

me you have acknowledged that it is the policy of the Federal Government that adverse action not be allowed to be taken against employees based on their sexual orientation. 

Mr. BLOCH. That is correct, Senator. 

Senator LEVIN. But that there is nothing you will do to enforce 

that. 

Mr. BLOCH. No, that’s not correct. We will enforce that, and the 

first thing we’ll ask the employee is—sometimes employees don’t 

even know what they have in the way of evidence. And so we ask 

them—and this happens routinely; I’ve heard a number of cases 

where we’re able to find out there may be some evidence that we’re 

able to support under Section 2302 (b)(10). 

Senator LEVIN. Evidence of conduct. 

Mr. BLOCH. Evidence of conduct, actual or imputed. 

Senator LEVIN. I understand. But in the absence of conduct actual or imputed, there is nothing you feel that you can do about 

it even though it is the policy of the government not to allow adverse action against employees based on sexual orientation alone. 

Is that just a fair summary of where we are? 

Mr. BLOCH. Yes, because of the limitations of my authority. 

Senator LEVIN. I understand. Now, would you recommend that 

we clarify the statute, since that is the way you read it, so that we 

can permit you to protect those employees against adverse action 

even in the absence of a showing of actual or imputed conduct? 

Mr. BLOCH. Far be it from me, Senator Levin, to tell you how to 

do your job. 

Senator LEVIN. I am just asking would you support that? 

Mr. BLOCH. If you provide such a statute——

Senator LEVIN. No, I am sure you would——

Mr. BLOCH [continuing]. We will enforce it vigorously. 

Senator LEVIN. I am sure you would. But would you recommend 

that change? 

Mr. BLOCH. Well, that’s a change that has to come at the level 

of those who are elected to make those decisions. I will not step in 

and try to make a comment about whether you should do that or 

shouldn’t do that. My understanding is that it came before this 

body a couple of times, and it has not passed. But I certainly will 

enforce it vigorously if it passes, with regard to the Federal workforce. 

Senator LEVIN. Given all the confusion about this, how you impute conduct in this area and all the rest, you are not willing even 

23

to say yes or no that you would recommend a clarification of the 

statute in this area. You say it is just not your job. 

Mr. BLOCH. I think we did clarify it as to the statute as it exists 

now. So I don’t think there’s a lot to——

Senator LEVIN. In terms of responding to my question as to 

whether or not, in the absence of direct or imputed evidence of sexual orientation conduct, you are not willing to give us your opinion 

as to whether or not we should clarify the statute to make it clear 

that, since it is the policy of the government that sexual orientation 

per se not be used to discriminate against people or be the basis 

of adverse conduct, you are not willing to say that you would recommend a clarification of the statute. Is that correct? 

Mr. BLOCH. I am going to say that I support the Administration’s 

position. I have told you——

Senator LEVIN. Well, what is the Administration’s position on my 

question? 

Mr. BLOCH. The Administration’s position——

Senator LEVIN. On my question. 

Mr. BLOCH. On your question, I do not know the answer to that. 

Senator LEVIN. Thank you. 

Mr. BLOCH. So I won’t purport to speak for the Administration. 

And since I am, even though we’re an investigative and prosecutorial Agency that’s independent, I’m still part of the Administration. I think the Administration should speak for itself on these 

issues. 

Senator LEVIN. Would you find out and let us know for the 

record? 

Mr. BLOCH. I certainly will, if I find out. 

Senator LEVIN. Thank you. The next question has to do with the 

issue which was raised about the transfer, the geographical relocation or reassignment of the OSC employees. I understand that Mr. 

McVay negotiated a draft settlement with the employees. Is that 

correct? 

Mr. BLOCH. My understanding is that he was running with that 

most of the time, but I’m not sure if it was all the time. 

Senator LEVIN. Was somebody else involved? 

Mr. BLOCH. I think my deputy, Jim Renne, also was involved in 

that at one point. And then at the very end, I was involved in a 

very small period of time. 

Senator LEVIN. All right, well, Section 9 of the draft agreement 

by whoever worked on it—whether it was one of you, Mr. McVay, 

or all three of you, Section 9 reads the following: That the employees agree to waive any and all rights, interest, and claims to file 

any complaints, actions, appeals, requests, or other attempts to obtain relief against the Agency, any entity of the Agency, any individual employed by the Agency itself, including any grievance or 

complaints process, the Equal Employment Opportunity Commission, any State or Federal court, public official’s office, or administrative forum whatsoever. 

So you were proposing that they waive any grievance or complaint that they would file with a public official’s office. Are you familiar with that language? 

Mr. BLOCH. Generally, yes. 

24

Senator LEVIN. Now, there was an e-mail that was sent out saying that there was no intent that the First Amendment rights, 

WPA, or other statutory rights of employees be curtailed. Well, 

what was the intent of that language other than to curtail the right 

of those employees to file complaints with elected officials? 

Mr. BLOCH. Senator, my understanding is that those employees 

were represented by counsel at a very able law firm, by Mr. Bransford, and this was language that had been used in a prior agreement he had with the Pentagon. This is very typical release language, that if you want to get extra things and come to a resolution, a give-and-take occurs. Everybody waives the rights and nobody admits to any liability. It’s very typical. 

Senator LEVIN. You know, waiving rights and liabilities, however, is something very different than not complaining to Congress. 

Mr. BLOCH. Well, they already had complained to Congress. 

Senator LEVIN. Are you familiar with the law about this subject? 

Are you familiar with Section 620, which is put into almost—or a 

similar provision, which is put into every appropriations law by 

Senator Grassley and all the, I think, a lot of other supporters 

around here of whistleblowers? Are you familiar with the language 

which says that no funds may be used to enforce an agreement, 

policy, or form if such policy, form, or agreement does not contain 

the following provisions: These conditions are consistent with and 

do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by—and then they list a number of provisions of the code, including disclosures to Congress. Are 

you familiar with the annual language in the appropriations bill 

prohibiting you from enforcing, implementing any agreement which 

contains the waiver of the type that you had in this draft agreement? 

Mr. BLOCH. Senator, if you’re referring to the no-gag statute or 

rule, I am familiar with that. I believe that there is serious question as to whether it applies to agreements to terminate employment or the relationship between employer and employee, and 

there’s significant dispute as to whether it applies at all to the situation at hand. However, we certainly did not run afoul of that because this is a negotiated agreement. If they want to propose language—which they did, and this came from one of Mr. Bransford’s 

agreements with the Pentagon; we were not trying to do anything 

illegal, we were simply trying to, as amicably as possible, resolve 

any differences. 

Senator LEVIN. So they proposed this language? This didn’t come 

from you folks, it came from the employees? 

Mr. BLOCH. Senator, I cannot honestly tell you at what stage 

what draft came from whom. I know that there was drafting going 

back and forth. All I do know is that the original language came 

from an agreement Mr. Bransford had signed off on on behalf of 

a client with the Pentagon settlement. 

Senator LEVIN. Thank you. My time is up, Mr. Chairman. 

Senator VOINOVICH. Mr. Bloch, I have no further questions for 

you. I will defer to Senator Akaka or Senator Levin to maybe have 

another round of 5 minutes. 

Senator AKAKA. Thank you, Mr. Chairman. 

25

Mr. Bloch, following up on the issue of sexual orientation discrimination, how many complaints have been filed by employees 

claiming sexual orientation discrimination since January 2004? 

And, what were the results of OSC’s review and investigation of 

those complaints? 

Mr. BLOCH. Senator, we get about a handful of these a year, 10 

to 20. They are about 13 percent of the Section 2302 (b)(10) claims 

we get, conduct discrimination claims. They are less than a tenth 

of a percentage point of the overall allegations we get. We handle 

each one carefully. We’ve received approximately 20 to 25 since I 

have arrived. We have investigated those. Some are still in the investigation phase that are either in the Investigation and Prosecution Division going for full prosecution or they are still being investigated in the Special Projects Unit and have not made it to the 

Investigation and Prosecution Division. So there are cases that are 

in the Agency that have gone forward since my arrival in this area 

of sexual orientation discrimination allegations. 

Senator AKAKA. Concerning your efforts to reduce the backlog, I 

believe the overall referral rate of complaints remains at about 10 

percent, plus the number of disclosure cases referred has not doubled. What is the backlog of Prohibited Personnel Practices as defined by Congress? 

Mr. BLOCH. Well, we have statutes with deadlines—for instance, 

under Prohibited Personnel Practices, we have to make a reasonable grounds determination that a prohibited practice occurred 

within 240 days of the filing. Under the disclosure, whistleblower 

disclosure statute, we have 15 days to make a substantial likelihood determination that the illegality or waste, fraud, and abuse 

occurred. We don’t have any deadline under Hatch Act, but we impose our own, if you will. 

Our concern about backlogs goes much further than statutory 

deadlines. We feel that if a case gets over the age of 60 to 90 days 

in the intake unit, it’s going to get stale. Witnesses may leave the 

government, people may not have memories of things, so we want 

to act quickly on claims. We indeed doubled the number of whistleblower disclosures that went to agencies in my first year. It went 

from 14 in 2003 to 26 in 2004, and my desire is to increase that 

even above that. 

And the way we were able to do this was we got more efficient 

and we also lowered the bar by changing the internal legal definition of what substantial likelihood is. It used to be this really high 

standard that almost came to the level of reasonable doubt, like 

they have in criminal trials, and we said that doesn’t make common sense since we don’t have authority to actually do the investigation that the inspectors general do within the Agency. So we 

lowered the bar and said it’s a likelihood, a probability, that when 

they actually get the case at the inspectors general or wherever the 

Agency sends it when we refer it, that it will be established by a 

preponderance of evidence. 

So a probability that there will be a preponderance of evidence, 

a lowering of the bar, and we think this is going to be a net plus 

for whistleblowers and for the public. 

Senator AKAKA. OSC serves a valuable role in protecting Federal 

employees and applicants from Prohibited Personnel Practices. 

26

However, it is unclear what protections employees at OSC have 

when reporting allegations of Prohibited Personnel Practices or 

protected disclosures. Would you please explain what redress options are available to OSC employees and whether these options afford OSC employees the same or similar protections that your office 

makes available to other Executive Branch employees, such as a 

comprehensive investigation and representation? 

Mr. BLOCH. Senator, like all agencies, we have an EEO program 

that is administered by the career staff. We have a program, if you 

complain to our office, to the managers of the Agency about a Prohibited Personnel Practice or a whistleblower disclosure concerning 

OSC, that it will be handled by the management of the Agency if 

it concerns the career staff. And if it concerns the managers of the 

Agency, such as myself, it will be passed on to the President’s 

Council on Integrity and Efficiency (PCIE). 

We’ve had two complaints since I’ve been there. One was by a 

career employee about my predecessor, and that was handled by 

our office and resolved satisfactorily. And the other is the one that 

was filed recently against me by the affected employees in the reorganization, which, again, is unfortunate, but that’s certainly their 

right. And we forwarded it on to the PCIE and we’re very happy 

that they have it and we’ll let them determine it, we’ll cooperate 

fully. 

Senator AKAKA. Thank you, Mr. Chairman. 

Senator VOINOVICH. Senator Levin. 

Senator LEVIN. Just a couple of questions. Thank you, Mr. Chairman. 

Just to conclude that nondisclosure agreement line of questions, 

we understand that the employees objected to that language and 

asked that it be removed and that there was objection on the part 

of you folks to removing that. Is that accurate? 

Mr. BLOCH. The way I understand—to give you my best recollection truly on that there was a lot of back-and-forth and I wasn’t 

privy to most of it. It was reported to me after the fact. My recollection is that there wasn’t fundamental disagreement about the release language, but rather there was some additional language that 

was batted back and forth in terms of what kinds of complaints 

would be filed and so on. And we accepted—ultimately we accepted 

the language the employees proposed through their attorney to 

maintain their ability to do whatever they wanted as far as continue to complain to Congress—they already had before we even 

started to negotiate, and we understood that. And we intend to cooperate fully. 

So we eventually said your language is good, we’ll go with that, 

and then they didn’t want to settle in the final analysis. 

Senator LEVIN. For other reasons than this? 

Mr. BLOCH. I don’t know the honest answer to that, what the 

other reasons were. But yes, possibly. 

Senator LEVIN. My last question is about an article that appeared in the Wall Street Journal recently, ‘‘Crying Foul at Whistleblower Protector.’’ One of the allegations which you responded to 

in the article, is about the hiring of a former headmaster of a 

boarding school attended by your children as a OSC consultant. I 

27

just have two quick questions on that. One is, was that a competed 

contract? 

Mr. BLOCH. OK. The answer to that is no, it was an intermittent 

consultant, pursuant to 5 USC 3109, and we complied with all Civil 

Service laws, rules, and regulations. It was all signed off on by our 

contracting officer and our human resource department and Bureau of Public Debt in the Department of Treasury. 

Senator LEVIN. Got it. And second, there was a FOIA request for 

the report on work from Mr. Hicks to you, which was completely 

redacted when you sent out the answer to the FOIA request. It’s 

called ‘‘Report on Work,’’ to you from Mr. Hicks, dated September 

16, 2004. 

This is the copy you sent out in response to the FOIA request. 

It is not too helpful. It has B5—that is the only thing that is 

unredacted. 

In any event, my question is will you submit to the Committee 

an unredacted version of this report? That is my question. 

Mr. BLOCH. Senator, I relied on the head of our Legal Counsel 

and Policy Division who handles all FOIA matters and the legality 

under FOIA, and it was their recommendation that there were exceptions and exemptions to the FOIA request concerning specific 

pre-decisional materials. So I would have to get back to you on that 

and have my staff confer with your legal staff about what we’ll do. 

I don’t want to make a commitment there and step in something 

I shouldn’t step into. 

Senator LEVIN. That would be fine. You just let us know if you 

will do that. 

Thank you, Mr. Chairman. 

Senator VOINOVICH. Thank you. Senator Carper. 

Senator CARPER. Thanks, Mr. Chairman. 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. I have a couple of questions I would like to ask, 

but I would ask you, if you don’t mind, to just take a minute and 

share with me what you would like for us to take away from this 

hearing. If there are only one or two things that we remember from 

all the things that you have said, what might be those one or two 

top items to remember? 

Mr. BLOCH. Senator, I think the top thing to remember is that 

we really have done an excellent job, and it’s because of the career 

staff. And anytime some of these unfortunate statements have been 

aired in the press that are nothing but rumor and innuendo, it 

really isn’t helpful. Because it’s the career staff who’s done such an 

excellent job, and it’s really kind of denigrating and insulting to 

them to think that they would just let some guy like me come in 

and tell them not to do their job correctly. They’re not going to do 

that. They’ve done a wonderful job. And they’re very hurt by the 

kinds of things that are being said by people, that they’re throwing 

cases in the river, that they’re doing bad things. It’s absolutely 

false, it’s denigrating, and it’s not fair to them. 

And that’s what I care about, and I hope you take that away 

from what I’m saying, is that they’re the ones that count. And it 

shouldn’t be about me, it should be about them. 

28

Senator CARPER. All right. The first question I would like to ask 

you is if you could just talk a little bit about backlog. And let me 

just ask, what was the situation at OSC when you arrived, when 

you were confirmed, with regard to backlogged cases? And if you 

have already addressed this, I apologize. I would just ask you to 

do so again. What was, when you delved into it, the reason for the 

backlog that existed? What steps have you taken or has been taken 

under your leadership to address that backlog? And finally, do you 

believe that OSC has or will soon have the capability to resolve 

these cases more quickly? And why should we have cause for hope 

or no hope? 

Mr. BLOCH. Senator, thank you for that. We have experienced an 

unprecedented year of reduction in backlogs while at the same time 

increasing the rate of referral during that process, doubling it, of 

positive cases. So we think that’s a good model for looking at the 

good that is in cases rather than trying to get rid of them. We successfully negotiated the waters of bureaucracy to strike a good balance between procedure and results and to look at whether something actually contributes to the end result. The employees came 

up with the solutions, we’ve implemented those solutions by reducing unnecessary referral memos. We sometimes would see 10-page 

referral memos. It might take 2 to 3 weeks for someone to refer 

something out of the intake unit because they were so busy doing 

something else, and then that would be duplicated by the lawyers 

and investigators who would get the case to prosecute it. And so 

we saw a duplication going on, and we wanted to make sure we 

were more efficient than that. And yet we contributed to the overall fairness and result to the employee. 

There is reason for hope because we reduced the backlog in 1 

year by 82 percent, while doubling the rate. And we can continue 

to do this into the future by having a better structured Agency, 

more agile and cross-trained, and that’s what we’ve tried to do in 

the reorganization. 

Senator CARPER. You talked a little about victims of Prohibited 

Personnel Practices. Do you think that you have made it easier 

during your tenure at OSC for whistleblowers who do believe that 

they have been victims of Prohibited Personnel Practices, do you 

think you have made it easier for them to come forward? And if 

so, how? 

Mr. BLOCH. Yes, absolutely, Senator. We have made it easier. We 

lowered the bar for what we would accept as a claim, the whistleblower disclosure. We reduced it from a very high standard of 

proof, which was approaching reasonable doubt, down to a preponderance of evidence based on what the Agency would ultimately investigate, since we don’t have investigatory authority for the whistleblower disclosures themselves, although we do on the Prohibited 

Personnel Practices side. And so we did make it easier for them to 

file claims, and the proof of that is we doubled the number that we 

sent to the agencies as substantiated whistleblower claims. 

Over and above that, we have stepped up our efforts to do outreach to employees to say we really care, and we want you to file 

these claims. And we’re doing that routinely. I’m giving speeches 

on it, putting out op-eds about it. There’s an op-ed in this week’s 

Federal Times about the need for protection of whistleblowers and 

29

how much we welcome them, and the whole history of whistleblowing and how important it is to our country. 

Senator CARPER. Mr. Chairman, I know my time has expired or 

is just about to expire. Could I ask one more question? 

Senator VOINOVICH. Sure. 

Senator CARPER. My last question, Mr. Bloch, is, as I understand 

it, there has been a restructuring during your tenure of OSC field 

offices. I don’t fully understand what the restructuring is and I 

don’t know that I need to do, but I have been led to believe that 

restructuring has compelled some of the affected employees to leave 

the Agency. 

Senator VOINOVICH. Senator Carper, I might just say that there 

has been extensive testimony by Mr. Bloch on that issue. Maybe 

you could just summarize it for Senator Carper, OK? 

Mr. BLOCH. All right. 

Senator CARPER. And before you do, let me just ask my question 

as part of it. Are you concerned about the impact that these departures will have on your efforts on OSC’s case backlog, and are you 

concerned about the potential impact on employee morale. If you 

could just address those two issues, I would be grateful. Thank you. 

Mr. BLOCH. Thank you, Senator. We are very concerned——

Senator VOINOVICH. Two questions that weren’t asked, Senator 

Carper. That is great. 

Mr. BLOCH. We are very concerned about employee morale. We’ve 

implemented new policies. I have an employee advisory committee 

that I established last year, that I receive their recommendations 

and then we implement their recommendations. We’ve changed 

policies. We’re implementing a new student loan repayment program, retention bonuses, and a cross-training program. We’re having an offsite retreat in June. All staff are coming in. We really 

need to pull back together and once again recognize and realize the 

mission of the Agency. 

We are very concerned about those employees who were not able 

to go along with our reorganization for one reason or another—

their personal lives, they wanted to stay in Washington, they got 

other jobs. We tried to help them get those jobs. Again, we’re very 

concerned about that. But this was about an overall management 

decision that we felt we really needed to take the Agency in a new 

direction, a positive direction, and a winning direction. And we 

think we’re there, and we’ve hired new employees to be able to 

make up for the shortfall and they’re—I think we’ve got them all 

in place now. 

Senator CARPER. Thanks, Mr. Bloch, and Mr. Chairman, thanks 

for the chance to ask these questions. 

Senator VOINOVICH. Thank you, Senator Carper. 

Senator Akaka has a couple more questions that he would like 

to ask. 

Senator AKAKA. Oh, thank you so much, Mr. Chairman. You 

have been most generous in granting this hearing and granting additional time. 

Mr. Bloch, Military and Professional Resources, Inc. (MPRI) review called OSC’s Alternative Dispute Resolution unit, ‘‘an invaluable tool,’’ and stated that the unit’s mediation practice is ‘‘a 

growth industry which should be expanded.’’

30

These words of praise are consistent with the findings of a GAO 

report I requested on the use of ADR in Federal agencies. However, 

in March, the ADR unit employee responsible for this praise resigned rather than accept the involuntary relocation to Detroit. 

Since most Agency officials with authority to mediate are located 

in Washington, what was the basis for moving the sole ADR employee to Detroit? 

Mr. BLOCH. Senator, when I first arrived at the Agency, I expressed the same kind of praise for the ADR program and the desire to expand it. I told all of my employees that I wanted to get 

them to be involved in it. Some of them are trained in this and 

have done some team ADR. So we talked with Linda, who is our 

ADR person, a very capable person whom I’ve relied on greatly, 

about expanding the program and we’ve been working on that. This 

was part of our overall vision and mission, was to expand it by 

making the Detroit office a leader, a center for the country, where 

people would come in and have more face-to-face, because it was 

my sense from 15 years of law practice that the more you got people in the room together, the more chance of success you had. And 

so I wanted to step up our use of ADR and make that a national 

center for that. 

At the same time, we wanted others in the other field offices to 

have some ability to work as a team. And we’ve actually been able 

to do that since Linda left—and we were very sorry to see her go. 

And in fact, when we had an employee advisory committee meeting 

back—I can’t remember the exact dates here, maybe March or February—she was a part of that. And I was trying to express to her 

that we were interested in keeping ADR in D.C. if all these other 

employees did not end up going to Detroit and didn’t accept the reassignment. 

There was apparently—and again, I can’t speak for others and 

why they did things or didn’t do things, but all I know is there was 

not an approach there that she seemed to be interested in staying. 

And that is unfortunate. But we did make that clear that we would 

be very willing to work with the employees and to do something in 

D.C. because of the change of circumstances when the employees 

did not take the reassignment—or if they did not. 

Senator AKAKA. Mr. Chairman, I have one last question. Mr. 

Bloch, it has been alleged that under your direction the Complaint 

Examining Unit has dumped an increasing number of cases into 

the Investigation and Prosecution Divisions, IPDs, without giving 

adequate review of the complaints. As a result, the backlog in the 

IPDs has doubled, especially since the cases referred for investigation require significantly more time and attention than those being 

considered in CEU because CEU employees cannot discuss the 

cases with the complainants. 

My question is, how many cases are in the IPDs and how are you 

going to fully investigate them, especially now that seven experienced career staff are no longer at OSC? 

Mr. BLOCH. Senator, it would be a real surprise to my employees 

in the CEU that they don’t discuss cases with employees. I was just 

sitting in one’s office about 3 days ago and they said, I was on the 

phone with an employee for an hour today. And I was congratulating her on her years of experience and ability to interact with 

31

1The letter and articles appear in the Appendix on page 210, and 75 through 94, respectively. 

employees and how important that is. And they were asking when 

are we going to get the new customer service unit to take some of 

that burden off them, and we were coming up with solutions there. 

They interact with employees. There’s been no dumping whatsoever. There was no effort to simply transfer one backlog to another. 

The backlog refers to cases that are over-aged. It doesn’t refer to 

number of cases. If we got a million cases in tomorrow in OSC, 

they wouldn’t be in backlog because they’re not old. They’re moving 

through the Agency. Now, if you can’t move the million and they 

get bottlenecked, that’s a problem. That becomes a backlog over 

time, when they become over-aged. We do not have that problem 

with the cases we recently have referred to the IPDs. 

However, there is what we called, after we finished our backlog 

reduction process last year, there is—what we discovered was what 

I call a ‘‘silent backlog’’ in the IPD, which is cases that are over 

a year to 2 to 3 and sometimes 4 and 5 years old that have never 

been filed with MSPB, and some of them have been just sitting essentially in corners in a pile without any action taken on them, 

some of which had already been slated for 16-day closure letters, 

but just no action had been taken. And so we’re really stepping up 

our efforts to make sure that doesn’t occur anymore and that we 

don’t have this so-called ‘‘silent backlog’’ in the IPDs that I inherited. 

But we don’t have another problem in terms of the cases that we 

referred, and we certainly don’t engage in any dumping. And that’s 

just an absolute fact. 

Senator AKAKA. Thank you very much for your responses. 

Senator VOINOVICH. Thank you, Mr. Bloch, we really appreciate 

your being here and your candor in answering our questions. Without objection, I would like to submit in the record the May 17, 

2005, letter from Tom Davis and John Porter to Mr. Bloch commending his efforts to improve OSC’s service to whistleblowers. To 

my understanding, that is—was it their staffs that were in your 

shop going over things? 

Mr. BLOCH. Theirs and others. Congressman Waxman and some 

others, yes. 

Senator VOINOVICH. Then a May 18, 2005, Government Executive

article on OSC. And the May 11, 2004, Stars & Stripes article on 

OSC’s involvement in the whistleblower case dealing with defective 

welding on the USS Kitty Hawk. And the April 29, 2005, Federal 

Times article, ‘‘OSC’s Involvement in Reemployment of Reservists.’’ 1

We will leave the record open for Senators if they want to submit 

anything for the record, and then we will give people a chance, if 

they have some differences of opinion on the record, to submit their 

statement so that we have a complete statement here for this Subcommittee in regard to your responsibilities there at the OSC. 

Mr. BLOCH. Thank you, Mr. Chairman. 

Senator VOINOVICH. Thank you very much for coming. 

[Whereupon, at 11:48 a.m., the Subcommittee was adjourned.] 

(33)

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Æ


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