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LetterOIG

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Date Created:June 9, 2017

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Tags:havre, maclean, whistleblower, Agents, Breitbart, patrol, OIG, border, sensitive, Sector, Homeland, protection, enforcement, Special, GSA, al Qaeda, AGENCY, letter, Counsel, DHS, security, Supreme Court, office


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National Border Patrol Council
Legal Division Tucson
Robert Erbe
2185 Magee Road, Suite 125
Tucson, 85742
(520) 288-8950 (Office)
(520) 308-4781 (Fax)
Robert.Erbe@ErbeLawOffice.com
June 2017
Leonard Dovec
Team Leader/Senior Special Agent
Department Homeland Security
Office Inspector General
Bellingham Sub-Office
1835 Barkley Blvd., Suite 201
Bellingham, 98226
E-Mail: Leonard.VDovec@dhs.gov
Dear Senior Special Agent Dovec: you are aware, May 18, 2017, the Department Homeland Security Office Inspector General (DHS/OIG) conducted subject interview National Border
Patrol Council (NBPC) President Brandon Judd. While initially appeared that the
DHS/OIG investigation was aimed allegations corruption against management
officials the United States Border Patrol Havre Sector, DHS/OIG informed Mr. Judd
that was being investigated for the unauthorized disclosure law enforcement
information.
The allegation the unauthorized disclosure information involved April
18, 2017, article published the Breitbart website entitled Officials Defy Trump
Promises: Miles Border Ordered Unpatrolled. The article raised genuine issues
concerning possible illegal activity, gross mismanagement and public safety. stated
that certain unnamed Border Patrol Agents believed that one the possible motives
behind the Havre Sector manager order allow certain portions the border
unpatrolled was due widespread corruption. Prior Mr. Judd interview, the
DHS/OIG investigators were told that was our belief that nothing the article
qualified law enforcement sensitive information. More importantly, you were
informed that even there was disclosure law enforcement sensitive information,
Mr. Judd disclosures were protected the Whistleblower Protection Act (WPA)
well the Whistleblower Protection Enhancement Act (WPEA). Specifically,
DHS/OIG was apprised the Supreme Court case Dep Homeland Security
MacLean, 135 S.Ct. 913 (2015), where the Court held that while protected
whistleblower disclosure does not include disclosure that specifically prohibited law, regulations agency policy does not qualify law under the WPA.
Despite being alerted the law this particular area, the DHS/OIG investigators
proceeded with the interview Mr. Judd. Mr. Judd cooperated with the
investigation answering questions and providing statement the DHS/OIG
investigators.
The purpose this letter formally document the legal elements involving
charge unauthorized disclosure information well highlight the case law
with regards the protections contained the Whistleblower Protection Act. Based
upon the law, DHS/OIG cannot legally sustain any allegation that Mr. Judd improperly
disclosed law enforcement information. Also, understand that DHS/OIG only the
investigatory body responsible for gathering the facts and that any threatened actual
personnel action would taken U.S. Customs and Border Protection. result, are forwarding this memorandum CBP well the Office Special Counsel
(OSC) ensure that threatened actual personnel action taken against Mr. Judd.
DHS OIG Investigation into Havre Sector Corruption Allegations
During the week May 15, 2017, four (4) Special Agents with the Department
Homeland Security (DHS) Office Inspector General (OIG) interviewed Havre Sector
managers and Border Patrol Agents with regards article published the Breitbart
website entitled Officials Defy Trump Promises: Miles Border Ordered Unpatrolled.
The article was published April 18, 2007, and stated that certain Border Patrol
Agents were sounding the alarm about miles border being left wide open and
unsecured due order issued Havre Sector Border Patrol manager. The
article generally stated there were miles the Montana border that was left open
and unpatrolled. The article did not specify the exact location the miles, whether
the miles was contiguous, even the Border Patrol station within the Havre Sector
where the order was given.2 According the Breitbart article, Agents believed that one the possible motives behind the Havre Sector manager order was due
widespread corruption.
See http://www.breitbart.com/texas/2017/04/18/exclusive-officials-defy-trumpspromises-40-miles-border-ordered-unpatrolled/
There are six (6) Border Patrol Stations within the Havre Sector that patrol the
Montana Border. The stations are: St. Mary Station, Havre Station, Plentywood
Station, Scobey Station, Malta Station, and Sweetgrass Station. According the
Agency public website, Havre Sector characterized 456 miles international
border. https://www.cbp.gov/border-security/along-us-borders/border-patrolsectors/havre-sector-montana
The Breitbart article also had link podcast interview with National Border
Patrol Council President Brandon Judd. Mr. Judd was interviewed Breitbart News
April 18, 2017. During the interview, Mr. Judd discussed the Breitbart article well
the current overall status border enforcement. With respect the Breitbart article,
Mr. Judd generally discussed without specifically identifying the miles border
being left unpatrolled within the Havre Sector. stated had discussions with the
highest levels management who were looking into the situation. Mr. Judd also stated believed that the order was due corruption and that management [was] making
the decision pull agents out certain zones allow contraband come across the
border. Quotations from the podcast interview were published the Breitbart website April 18, 2017.3 April 20, 2017, Mr. Judd sent e-mail the Chief the United States
Border Patrol Ronald Vitiello and Associate Chief Rodolfo Karisch. Mr. Judd also
carbon copied the Commissioner CBP, Kevin McAleenan. The subject the e-mail
was titled Allegation Corruption, and the e-mail Mr. Judd cited several pieces
circumstantial evidence believed showed that the change operations the Havre
Sector were due either corruption, retaliation, for political purposes. Mr. Judd
highlighted the evidence which gave him reasonable cause believe that the new zone
assignments evidenced certain wrongdoing. the end his e-mail, Mr. Judd stated
[f]or the safety the agents and the public large can not implore you enough
change back the same enforcement posture pre 4/12/17.
Based the Breitbart article and Mr. Judd complaint the Office Border
Patrol, the DHS OIG opened criminal investigation ostensibly against Havre Sector
management officials. Initially, appeared that the sole purpose the DHS OIG
investigation was investigate the allegation possible corruption within the Havre
Sector management ranks. However, towards the latter part the investigation, the
DHS OIG investigators began conduct administrative investigation against NBPC
Union President Brandon Judd for the unauthorized disclosure law enforcement
information. unclear when DHS OIG opened administrative investigation
Mr. Judd Mr. Judd was not issued Notice Appear prior his DHS/OIG
interview. Instead, prior Mr. Judd interview May 18, 2017, the OIG Special
Agents compelled his testimony having Mr. Judd sign Kalkines Warning.4
completing the Kalkines Warning, the OIG Special Agents wrote the general nature
the allegation the unauthorized disclosure law enforcement information.
See http://www.breitbart.com/texas/2017/04/18/u-s-border-officials-suspectedworking-drug-smugglers-says-border-patrol-council-president/ Kalkines United States, 200 Ct. Cl. (1973), the U.S. Court Claims ruled that
employee can compelled answer questions about the performance
employee duties when that employee duly advised his options answer
under the immunity granted remain silent and face dismissal.
Upon being informed that the nature the allegation concerned the
unauthorized disclosure law enforcement information, NBPC Legal Counsel
disputed that any information the article contained law enforcement sensitive
information. More importantly, however, NBPC Legal Counsel informed the DHS OIG
Special Agents that even Mr. Judd disclosures constituted law enforcement
sensitive information, that his disclosures were protected under the Whistleblower
Protection Act, U.S.C. 2302. addition, NBPC Legal Counsel informed the OIG
Agents the Supreme Court case Dep Homeland Security MacLean, 135 S.Ct. 913
(2015), and that even they substantiated any allegation against Mr. Judd, the Agency
could not legally take any type personnel action based upon the disclosure. The DHS
OIG Agents, however, proceeded with the interview which Mr. Judd fully
cooperated and provided written statement. his written statements, Mr. Judd
invoked the protections the Whistleblower Protection Act.
II.
There Evidence that Mr. Judd Disclosures the Media Constituted
Law Enforcement Sensitive Information order prove the unauthorized disclosure law enforcement information,
the Agency must show: (1) the employee possessed law enforcement sensitive
information; (2) the employee disclosed the law enforcement sensitive information; and
(3) the such disclosure was unauthorized. See Wrocklage Dep Homeland Security,
769 F.3d 1363 (Fed. Cir. 2014); Voorhis Dep Homeland Security, 2010 MSPB LEXIS
1521 (May 2010), aff 116 MSPR 538 (2011). this case, there evidence support that any law enforcement sensitive
information was disclosed. Although there was certainly disclosure the media,
neither the article the podcast contain any law enforcement sensitive information. the outset, unclear what type information qualifies law
enforcement sensitive information. pointed out the Government Accountability
Office March 2006, least seven (7) federal agencies agency components use the
term Law Enforcement Sensitive (LES) information. This includes the Department
Homeland Security. However, all the agencies gave differing definitions for the term.5
The GAO Report noted that DHS does not formally define what information qualifies
LEO designated information.6 DHS Management Directive 11042.1 addresses
Safeguarding Sensitive But Unclassified (For Official Use Only) Information and
states that law enforcement sensitive information falls under the arena sensitive
but unclassified information. Such information defined information designated
See GAO Report (GAO-06-385), Information Sharing: The Federal Government Needs
Establish Policies and Processes for Sharing Terrorism-Related and Sensitive but Unclassified
Information (March 2006), 24.
Id. sensitive control and restrict access certain information, the release which
could cause harm person privacy welfare, adversely impact economic
industrial institutions, compromise programs operations the safeguarding
our national interests. general disclosure that miles the Montana border was left open and
unpatrolled not specific enough qualify either law enforcement sensitive
information sensitive but unclassified information. The disclosure did not specify
the exact location the miles, whether the miles was contiguous, even the
Border Patrol station within the Havre Sector where the order was given. CBP
public website indicates the Havre Sector area responsibility consists 456 linear
miles the international border. Also, there have been other similar public disclosures
concerning areas vulnerability the border. For example, recent Washington Post
article discussed high priority areas the Sectors Rio Grande Valley, Paso
Sector, Tucson and San Diego that are close urban centers and roads, allowing those
who cross vanish quickly. According the article, the DHS Planning document
was released the Democratic staff the Senate Homeland Security and
Governmental Affairs Committee. This information certainly more specific than the
information released the Breitbart article podcast. Unlike trying identify
miles the Montana-Canada border, easy identify urban centers those
Border Patrol Sectors where the illegal crossing occurring.
Additionally, one must simply compare the facts this case cases which
actual law enforcement sensitive information was disclosed. For example, Bledsoe
Dep Justice, MSPR (2002), DEA Agent was removed from federal service for
disclosing ongoing investigation suspect and informed the suspect that search
warrants would executed his residence. Similarly, Levick Dep Treasury,
MSPR (1997), Customs Criminal Investigator divulged sensitive information
co-worker who did not have need-to-know which compromised smuggling
investigation. Recently, MacLean Dep Homeland Security, 543 F.3d 1145, 1150
(2008), the Ninth Circuit found that the release the media government text
message Federal Air Marshals (FAM) that stated, all RON (Remain Overnight)
missions August 9th would cancelled, qualified sensitive security
information because contained specific details aviation security measures
regarding deployment and missions FAMs. (emphasis added). All these cases
share one common trait i.e., very specific and detailed information that either did
could have compromised law enforcement operations.
See These Border Towns Could First Get Trump Big Beautiful Wall, Washington
Post, April 24, 2017. Attachment hard fathom how general statement that miles the Montana border being left open and unpatrolled could compromise programs operations the
safeguarding our national interests. Again, the article only identified the Havre
Sector and did not identify the particular station within the Sector. fact, the names
the Border Patrol Agents who signed the order regarding the change operations were
redacted avoid any chance revealing the exact station the Havre Sector. the
Agency public website states Havre Sector area responsibility consists 456
linear miles the international border. Moreover, the article does not mention whether
the miles were contiguous. Based upon the Breitbart article, Drug Trafficking
Organization alien smuggler would know where attempt cross believing that
the area was unmanned and unpatrolled.
There additional evidence that supports our contention that the Breitbart
article did not contain law enforcement sensitive information. April 16, 2017, prior the article being published, Mr. Judd sent Chief Ronald Vitiello e-mail which
contained draft the article. Above the draft article, Mr. Judd wrote: Chief Below the story, able hold off for one more day. Please let know anything
not accurate. Attachment Chief Vitiello responded back the following day stating
Thanks, get back you. Id. Additionally, Mr. Judd informed Acting
Commissioner Kevin McAleenan the article the day before was published and
asked Acting Commissioner McAleenan wanted see copy the draft article.
Acting Commissioner McAleenan responded the affirmative and Mr. Judd sent him
copy the article. Neither Acting Commissioner McAleenan nor Chief Vitiello
expressed any concerns that the article contained law enforcement sensitive
information.
For all these reasons, any allegation that Mr. Judd improperly disclosed law
enforcement sensitive information cannot sustained. Neither the facts law
support any such conclusion.
III.
Mr. Judd Disclosures Are Protected the Whistleblower Protection Act
and the Agency Cannot Threatened Take Actual Personnel Action
against Mr. Judd based the Protected Disclosures well-settled that discipline may not based disclosure protected the
Whistleblower Protection Act. Chambers Dep Interior, 602 F.3d 1370, 1380 (Fed. Cir.
2010); Parikh Dep Veterans Affairs, 116 MSPR 197, (2011); MacLean Dep
Homeland Security, 2015 MSPB LEXIS 10203 (November 2015)(removal reversed where
appellant protected disclosure was contributing factor the agency personnel
action). the courts have consistently stated, the purpose the WPA shield
employees who are willing speak out and criticize government management,
freely encourage employees disclose that which wrong with our government.
Marano Dept Justice, F.3d 1137, 1142 (Fed. Cir. 1993). fact, the Supreme Court
has indicated that there are powerful network legislative enactments such
whistleblower protection laws that exceed the protections the First Amendment and
are available those who seek expose wrongdoing. Garcetti Ceballos, 547 U.S.
410, 425 (2006). the Court stated, [e]xposing governmental inefficiency and
misconduct matter considerable significance and public employers should
matter good judgment, receptive constructive criticism offered their
employees. Garcetti, 547 U.S. 425, quoting Connick Myers, 461 U.S. 138, 149 (1983).
The WPA its terms includes and protects any disclosure that employee
reasonably believes evidences violation law, rule regulation; gross
mismanagement; gross waste funds; abuse authority; substantial and specific
danger public health safety. U.S.C. 2302(b)(8)(A). The WPA and WPEA does
not apply disclosures that are specifically prohibited law information that
required kept secret the interest national defense the conduct foreign
affairs. U.S.C. 2302(b)(8)(A); C.F.R. 1209.4(b). The term law the phrase
specifically prohibited law excludes rules and regulations. other words,
employee disclosure violates agency regulation, not specifically prohibited
law because regulations not qualify law under the statute. Dep Homeland
Security MacLean, 135 S.Ct. 913 (2015). Dep Homeland Security MacLean, supra, the United States Supreme Court
found that the Transportation Security Administration (TSA) violated U.S.C.
2302(b)(8)(A), when fired air marshal because had told reporter that the TSA
had decided remove air marshals from certain long-distance flights save money
hotel costs, even though had credible information that Qaeda was planning
attack passenger flights the United States. Federal Air Marshal Robert MacLean had
objected management decision cancel certain overnight missions and after being
told his superiors that nothing could done, contacted MSNBC reporter
and told the reporter about the canceled missions. After MSNBC published story
about the cancelled missions, several Members Congress criticized TSA decision.
Within hours, TSA reversed its decision and put air marshals back the flights.
Initially, TSA did not know MacLean was the source the disclosure. However,
MacLean later appeared NBC Nightly News criticize the TSA dress code for air
marshals. Although MacLean appeared disguise, several co-workers recognized his
voice and TSA began investigating the NBC appearance. During that investigation,
MacLean admitted had disclosed the information concerning the cancelled missions.
TSA subsequently removed MacLean from federal service based charge
unauthorized disclosure sensitive security information. finding that TSA violated 2302(b)(8)(A), the Court found that while
MacLean disclosure may have violated regulation was not specifically prohibited law. The Court found that such broad interpretation the word law could
defeat the purpose the whistleblower statute. MacLean, 135 S.Ct. 920. the Court
stated (Id.): law included agency rules and regulations, then agency could insulate itself from
the scope Section 2302(b)(8)(A) merely promulgating regulation that specifically
prohibited whistleblowing. But Congress passed the whistleblower statute precisely
because did not trust agencies regulate whistleblowers within their ranks. Thus,
unlikely that Congress meant include rules and regulations within the word law. important note that the Supreme Court affirmed the Federal Circuit decision
which remanded the case back the MSPB determine whether MacLean reasonably
believed that the content his disclosure evidenced substantial and specific danger
public health and safety. MacLean Dep Homeland Security, 714 F.2d 1301, 1310-1311
(2013). The Agency continued with its attempt remove MacLean from federal service
but November 2015, the removal action was reversed MSPB Administrative
Judge. MacLean Dep Homeland Security, 2015 MSPB LEXIS 10203 (MSPB 2015).
The MSPB found that the Agency violated the WPA removing MacLean from
federal service and ordered MacLean reinstated. informed DHS/OIG prior the beginning Mr. Judd interview, the
facts this case are nearly identical the facts Department Homeland Security
MacLean pertains affirmative defense under the Whistleblower Protection
Act. Mr. Judd disclosure Breitbart was protected disclosure had reasonable
belief that there was evidence violation law, rule regulation; gross
mismanagement substantial and specific danger public health safety.
important note that alleged whistleblower does not have prove actual
wrongdoing order establish that his disclosure protected category. Elkassir GSA, 325 F.App 909 (Fed. Cir. 2009). Therefore, immaterial whether not the
DHS/OIG investigation found corruption the part Havre Sector management.
The only issue whether Mr. Judd possessed reasonable belief his protected
disclosures. his interview and statement, Mr. Judd explained the DHS/OIG
investigators the factors that led his reasonable belief. These factors were also listed Mr. Judd e-mail Chief the United States Border Patrol Ronald Vitiello and
Commissioner Kevin McAleenan. Also, clear that Mr. Judd disclosure was not
prohibited law DHS/OIG informed Mr. Judd that was being questioned
matter that may lead only administrative action.
Mr. Judd disclosure that Havre Sector management issued order which left miles the Montana border open and unpatrolled well his belief that
management was making this decision pull agents out certain zones allow
contraband come across the border qualifies under the following categories: (1)
violation law, rule regulation; (2) gross mismanagement; and/or (3) substantial
and specific danger public health safety. Either drug smuggling alien
smuggling would violate Title and Title the United States Code. Gross
mismanagement management action inaction that creates substantial risk
significant adverse impact the agency ability accomplish its mission. Wood
Dep Defense, 100 MSPR 133 (2005). Here, the Agency responsible for protecting
our nation borders order leave certain section the border unmanned and
unpatrolled would create significant adverse impact the Agency mission.
Likewise, this same disclosure would also qualify substantial and specific danger
public health safety. See Chambers Dep the Interior, 116 MSPR
(2011)(appellant statement concerning the diversion Park Police patrol officers from
national parks and the resulting increase drug dealing smaller national parks
qualified substantial and specific danger public health safety especially
light appellant expertise and familiarity with the areas under her jurisdiction).
IV.
Conclusion stated above, since discipline may not based disclosure protected
the Whistleblower Protection Act the DHS/OIG cannot substantiate the allegation that
Mr. Judd committed unauthorized disclosure law enforcement sensitive
information. Therefore, respectfully request that the DHS/OIG not substantiate this
allegation and forward the case the Agency for disciplinary action. DHS/OIG
ignores this advice and substantiates the allegation, the Agency should immediately
close the case finding legally insufficient propose any type action against Mr.
Judd. the Agency proposes any type personnel action against Mr. Judd takes
any significant change his duties, responsibilities working conditions result
the protected disclosure, will file complaint with the Office Special Counsel
(OSC) for investigation Prohibited Personnel Practice. Further, proposed
disciplinary adverse action issued, will request OSC file stay any
personnel action with the Merit Systems Protection Board until such time the OSC
able complete its investigation and conduct legal review whether seek
corrective action. U.S.C. 1214(b)(1)(A); Special Counsel Rel. Sharon Stephensonpino Dep Navy, MSPR 311 (2004). our hope that this legal opinion will convince you immediately close any
investigation involving whether Mr. Judd improperly disclosed law enforcement
information. Further, ask that this legal opinion included exhibit any
DHS OIG Report Investigation ensure that any management official understands
the law prior proposing taking any personnel action.
Very truly yours,
National Border Patrol Council
Legal Division Tucson
Robert Erbe
NBPC Attorney
cc:
Scott Falk
Chief Counsel
U.S. Customs and Border Protection
1300 Pennsylvania Ave.,
Washington, 20229
E-Mail: Scott.K.Falk@cbp.dhs.gov
Michael Wenzler
Deputy Executive Director
Labor and Employee Relations
U.S. Customs and Border Protection
1300 Pennsylvania Ave., N.W.
Washington, 20229
Michael.J.Wenzler@cbp.dhs.gov
Honorable Carolyn Lerner
Special Counsel
Office the Special Counsel
1730 Street, N.W., Suite 218
Washington, 20036-4505
Bruce Fong
Associate Special Counsel
Investigations and Prosecutions
Office the Special Counsel
San Francisco Bay Area Field Office
1301 Clay Street, Suite 1220N
Oakland, 94612-5217
Karen Gorman
Chief Retaliation and Disclosure Unit
Office Special Counsel
1730 Street, N.W., Suite 218
Washington, 20036-4505
Senator Ron Johnson
Chairman
Committee Homeland Security and Governmental Affairs
328 Hart Senate Office Building
Washington, 20510
Honorable Jason Chaffetz
Chairman, Oversight and Government Reform
United States House Representatives
2236 Rayburn House Office Building
Washington, 20515