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U.S. Office of Special Counsel

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(202) 653-7984               

    The U.S. Office of Special Counsel (OSC) today announced that, in response to Special Counsel Elaine Kaplan’s request, the Immigration and Naturalization Service (INS) has agreed to provide full corrective relief to two Border Patrol Agents whom OSC concluded had suffered retaliation because they made disclosures to the media concerning border security lapses, in the wake of the September 11th terrorist attacks. 

    The agents, Mark Hall and Robert Lindemann, who are assigned to INS’ Detroit Sector Office, alleged that INS took or threatened to take personnel actions against them because they had disclosed, among other things: 1) that twenty-eight field agents were attempting to protect 804 miles of waterway and shoreline between the U.S. and Canadian border with only one working boat, several damaged electronic sensors, and a broken remote surveillance camera; 2) that 324 field agents were then serving the entire U.S.- Canadian border and the agents were often required to release certain detainees because the Border Patrol did not have its own detention facilities; and 3) that agents were being ordered to process illegal Mexican immigrants caught at the Detroit Metro Airport instead of guarding the border against potential terrorists. 

    The disclosures – which were reported by both the print and television media, including the Detroit Free Press and NBC’s “Today Show” – angered some Border Patrol officials, who viewed the public revelation of these issues as an act of “disloyalty.” As a result, the INS: 1) temporarily changed Hall and Lindemann’s tours of duty, which caused them to lose special pay; 2) proposed to suspend them for 90 days; and 3) subsequently proposed to suspend them for 90 days and demote them for one year. 

    OSC investigated the agents’ complaints. It concluded that there were reasonable grounds to believe that the actions taken by Border Patrol officials against the complainants violated the Whistleblower Protection Act (WPA), and the First Amendment to the U.S. Constitution. Among other things, the WPA makes it unlawful for an agency to retaliate against an employee because he has disclosed information that he reasonably believes evidences a substantial and specific danger to the public health and safety. Similarly, the First Amendment protects federal employees when they speak out on matters of public concern, so long as their speech does not unduly disrupt the ability of their government employer to perform its mission.

    Under the law, when OSC concludes that there exist reasonable grounds to believe that there has been a violation of the WPA or the First Amendment, the Special Counsel forwards a report of prohibited personnel practices to the head of the employing agency, requesting that the agency agree to provide relief to the injured complainant. If the agency declines to provide relief, the Special Counsel may bring a petition for corrective action before the Merit Systems Protection Board.

    In this case, the Commissioner of the INS agreed to provide full corrective action in response to Special Counsel Kaplan’s findings, set forth in OSC’s prohibited personnel practice report. INS agreed on April 26, 2002: 1) to provide Mr. Hall and Mr. Lindemann with back pay plus interest for the loss of all special pay; 2) to rescind, and expunge from their personnel files, the proposals to suspend and demote the agents; and 3) to provide OSC-sponsored whistleblower protection training for all managers and supervisors in the Detroit Sector and Eastern Regional Office. 

    Special Counsel Kaplan observed that “especially in these times of heightened concern about national security, it is crucial to protect federal employees like Mr. Hall and Mr. Lindemann when they shine public light on security concerns. Federal employees are often in the best position to observe such risks and weaknesses; when employees expose these conditions, they can be corrected. Employees should never, of course, make public disclosures of classified information, but Mr. Hall and Mr. Lindemann’s disclosures did not involve classified information. Mr. Hall and Mr. Lindemann’s efforts to bring attention to lingering security issues on the border in the wake of the September 11th attacks were hardly ‘disloyal.’ On the contrary, their efforts represented an act of complete loyalty to our Nation and the public they serve.”

    Section (b)(8) of the Whistleblower Protection Act, 5 U.S.C. § 2302, prohibits retaliation against employees who make protected disclosures. In addition, 5 U.S.C. § 2302(b)(12), in conjunction with 5 U.S.C. § 2301(b)(2), prohibits retaliation against employees for exercising their First Amendment rights.