WASHINGTON – Senator Chuck Grassley is questioning Attorney General Eric Holder and Deputy Attorney General James Cole regarding their commitment to FBI whistleblowers while one case continues to languish for nine years and a second case sits in limbo for more than four years.
“Whistleblowers are key to unlocking many of the secrets hidden deep in the closets of the federal government. Allowing a case to sit in limbo for more than nine years shows a lack of commitment to resolving issues for these courageous people,” Grassley said. “The excessive time to make a judgment on these cases indicates that the process for adjudicating FBI whistleblower claims is broken, and needs to be fixed. The Attorney General and Deputy Attorney General have significant say over the speed at which these matters are addressed, and the recent decision by Deputy Attorney General Cole to remand a nine year old case for further proceedings is mind boggling and calls into question his commitment to help support whistleblowers.”
In a letter today to the Attorney General, Grassley cited Agent Jane Turner who in 2002 filed a whistleblower complaint with the Justice Department Inspector General after discovering that FBI agents removed items from Ground Zero following the attacks of 9/11. Due to the Inspector General’s delayed decision, Agent Turner was forced to file an appeal with the Office of Attorney Recruitment and Management, which ordered the FBI to issue back pay, attorney’s fees and other relief. After an FBI appeal, the Deputy Attorney General remanded the case for further proceedings and it now continues to languish nine years after Agent Turner’s original complaint.
Grassley also cited the case of Robert Kobus, a 30-year non-agent employee of the FBI who more than four years ago disclosed time and attendance fraud by FBI agents. The Inspector General substantiated his claims of retaliation for protected whistleblowing, yet his case has been sitting with the Office of Attorney Recruitment and Management for four years.
Grassley noted that both the Attorney General and the Deputy Attorney General have testified before Congress that whistleblower retaliation will not be tolerated and that they would work to ensure that safeguards are in place so that whistleblowers are provided all the protections afforded by the law.
A long-time advocate for whistleblowers, in addition to co-authoring the 1989 whistleblower protection law and subsequent updates, Grassley sponsored changes made in 1986 to the President Lincoln-era federal False Claims Act to empower private sector whistleblowers. Since the 1986 amendments were signed into law, the False Claims Act has brought back more than $27 billion to the federal treasury, and has deterred even more fraudulent activity. In 2009, in coordination with Senator Patrick Leahy, Grassley worked to pass legislation to shore up whistleblower protections in the False Claims Act that had been eroded by the courts after years of litigation by defense and healthcare contractors.
Grassley is also the author of legislation that would give the same whistleblower protections to employees in the legislative branch as provided already to employees of the executive branch of government. In addition, in October, a Grassley-sponsored amendment to give whistleblower protection to employees in the Judicial Branch was added to a federal judgeships bill that was being debated in the Senate Judiciary Committee.
A copy of the text of the letter can be found here. A signed copy can be found by clicking here.
November 14, 2011
Via Electronic Transmission
The Honorable Eric H. Holder
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Dear Attorney General Holder:
I write to express my concerns regarding the perpetual delays for resolving Federal Bureau of Investigation (FBI) whistleblower cases at the Department of Justice (DOJ). As you are well aware, I am a long-standing advocate for whistleblower rights. Whistleblowers point out fraud, waste, and abuse when no one else will, and they do so while risking their professional careers. Whistleblowers have played a critical role in exposing failed government operations such as Operation Fast and Furious, and retaliation against whistleblowers should never be tolerated. Thus, I am concerned about the treatment of whistleblowers at the FBI, specifically in the cases of Jane Turner and Robert Kobus. The process of resolving whistleblower claims appears to be broken.
Jane Turner was a career FBI agent with an outstanding record for conducting investigations involving missing and exploited children. Agent Turner filed a whistleblower complaint with the Department of Justice, Office of the Inspector General (OIG), in 2002 when she discovered that FBI agents removed items from Ground Zero following the terrorist attacks of 9/11. Unfortunately, Agent Turner was forced to file an appeal to the Office of Attorney Recruitment and Management (OARM) due to the OIG’s delayed decision in their investigation. Ultimately, the OARM substantiated her allegations in May, 2010, and the FBI was ordered to provide Agent Turner back pay, attorney’s fees, and other relief. It is my understanding that the FBI filed an appeal to the Deputy Attorney General concerning the issue of back pay, despite the FBI’s failure to raise the issue of back pay during previous OARM proceedings, and the case was remanded, in part, back to OARM for further review of the back pay issue. Consequently, a final resolution to Jane Turner’s reprisal case against the FBI is now further delayed by the Deputy Attorney General’s curious decision. Given the already excessive delays in this case, the ruling by the Deputy Attorney General postpones a judgment that should have come much sooner. I remind you that Agent Turner initially filed her complaint approximately 9 years ago, and she has yet to receive a final decision. Any reasonable person would agree that 9 years is extreme and unacceptable.
Robert Kobus is a 30 year non-agent employee of the FBI who disclosed time and attendance fraud by FBI agents. The OIG also conducted an investigation into these allegations and substantiated that he was retaliated against for protected whistleblowing. The FBI management not only demoted Mr. Kobus to a non-supervisory position, but they even went so far as to move him from his office to a cubicle on the vacant 24th floor of the FBI’s office building. Nevertheless, the OIG’s findings were referred to OARM for adjudication and Mr. Kobus’ case has now languished in bureaucratic red tape for approximately 4 years.
I’m confident you would agree that a cumulative 13 years is an excessive amount of time to complete two whistleblower investigations. You previously stated during your testimony to the Senate Judiciary Committee that you will “ensure that people are given the opportunity to blow the whistle and they will not be retaliated against, and then to hold accountable anybody who would attempt to do that.” You also stated that, “I have seen their [whistleblowers’] utility, their worth, and, frankly, the amount of money that they return to the Federal Government. And they serve a very, very useful purpose.” The Deputy Attorney General, in his responses to congressional “Questions for the Record”, asserted he would “work with the Judiciary Committee and the independent Office of Special Counsel, which investigates and prosecutes violation of law, including reprisals against whistleblowers, to provide timely and accurate information to the Congress.” He further pledged he would “not tolerate unlawful retaliation against any Department of Justice employee, including FBI employees” and he would “work to ensure that there are adequate safeguards so that whistleblowers receive all of the protections to which they are entitled by law.” I would ask that you honor these statements and ensure these cases, and others like them, are investigated and decided in a reasonable timeframe.
Given your previously stated support for whistleblowers, I presume that you would agree that DOJ is sending the wrong message to whistleblowers by taking an inordinate amount of time to issue final declarations for Agent Turner and Mr. Kobus. The excessive time the OARM has taken to issue a final judgment, which is further exacerbated by the Deputy Attorney General’s recent decision in Agent Turner’s case, has cast your department in a dubious light regarding your stated support for whistleblowers. These excessive delays indicate that the process of adjudicating a FBI whistleblower claim is broken. Consequently, I ask that you review these matters and ensure that the OARM and the Deputy Attorney General conduct their respective reviews in a transparent and expeditious manner. While I appreciate that allegations of fraud, waste, and abuse must be properly investigated, Agent Turner and Mr. Kobus deserve transparency in the process and finality to their cases.
Thank you for your cooperation and attention to this important matter. I request you provide a written response to this letter no later than November 18, 2011.
Charles E. Grassley