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Scott Bloch isn’t in Kansas anymore. The conservative trial lawyer from Lawrence, Kan., just shy of three months as head of the U.S. Office of Special Counsel, has managed to anger scores of House members, a handful of senators, federal-worker labor unions, and gay rights advocacy groups. In early February, Bloch, whose independent agency is charged with protecting federal workers from illegal employment practices, removed references to sexual orientation discrimination from the office’s Web site and complaint forms. He says he was reviewing the office’s interpretation of a 1978 statute that protects the conduct of federal workers outside of work. The move strips most gay federal workers of legal recourse if they suffer discrimination on the job. To Bloch, the issue revolves around the 1978 Civil Service Reform Act, which makes it illegal to “discriminate based on personal conduct which is not adverse to the on-the-job performance.” That language has been widely interpreted to prohibit discrimination on the basis of sexual orientation. Bloch is narrowly interpreting the statute to focus solely on the word conduct. In his reading, the mere fact that someone is gay does not protect the person from discrimination. “It’s true, it’s not a protected class,” says Elaine Kaplan, Bloch’s openly lesbian predecessor. But, to be protected, “do I have to show that I actually engaged in sexual conduct? He’s confusing the hell out of everybody.” The office gets only about 10 complaints involving sexual orientation each year, but Kaplan says the OSC’s interpretation is key. Because sexual orientation is not a protected class, it doesn’t fall under the jurisdiction of the Equal Employment Opportunity Commission, making the OSC the only refuge for gay federal workers. “It’s a big deal because the OSC is the only remedy for these prohibited personnel practices,” says Kaplan, now of counsel at plaintiffs firm Bernabei & Katz. This political tangle isn’t Bloch’s only problem. When he took over in January, he inherited an office plagued with a backlog of several hundred cases, a relatively paltry $13 million budget and a small staff, and a reputation among federal employees and advocates for being hostile to the workers it’s supposed to protect. Bloch, who was confirmed by the Senate in December for a five-year term as special counsel, says that sticking with the old sexual orientation policy is not legally defensible. “We cannot abuse our authority and violate the laws we enforce if we expect others to follow the law,” says Bloch, who would respond to questions about the sexual orientation discrimination policy only in a written statement to Legal Times. ORIENTATION VS. CONDUCT During Kaplan’s tenure, “OSC began to enforce for discrimination based solely on ‘sexual orientation’ not necessarily involving any conduct,” Bloch wrote. “In essence, this created a ‘protected class.’ “ Four members on the Senate Committee on Governmental Affairs, which oversees the OSC, sent Bloch a pointed letter on Feb. 19, charging him with reneging on commitments he made during the nomination process to protect gay federal workers. In a written response to committee member Sen. Daniel Akaka (D-Hawaii), Bloch wrote that “sexual conduct can clearly fall within the definition of conduct that is not adverse to the on-the-job performance of an employee.” But Bloch says he’s not backtracking. The issue here, he says, is that sexual orientation is not sexual conduct. “The statute does not mention sexual orientation, and neither do the courts,” Bloch says in the statement. “They do mention conduct.” Bloch says he is unaware of binding precedent that would give the office jurisdiction over such cases. But the interpretation favored by Kaplan has been in use by the government since 1983, when then-Associate Attorney General Theodore Olson issued an advisory opinion from the Justice Department’s Office of Legal Counsel saying, “it is improper to deny employment to or to terminate anyone on the basis of either sexual preference or conduct that does not adversely affect job performance.” Bloch has been skewered by gay rights advocacy groups, including the Log Cabin Republicans, more than 70 members of the House of Representatives, and a few government employees unions, including the largest — the National Treasury Employees Union. A March 4 letter from Reps. Eliot Engel (D-N.Y.) and Barney Frank (D-Mass.) and signed by more than five dozen representatives demanded that Bloch adopt the earlier interpretation: “We expect you to publicly acknowledge that discrimination based on sexual orientation is and will remain a prohibited practice.” Bloch’s action has stirred concern on Capitol Hill and among interest groups that his tenure could be rocky. “The jury’s still out on his leadership,” says Thomas Devine, legal director of the Government Accountability Project (GAP), a D.C.-based organization that represents government whistleblowers. Bloch, a 45-year-old father of seven, came to Washington in 2001 from 13-lawyer Stevens & Brand in Lawrence to work in the Justice Department’s Task Force on Faith-Based and Community Initiatives, which helps community groups and religious organizations apply for department grants. But Bloch, an employment litigator by trade who handled a mix of plaintiff and management cases in private practice, was itching for a job in his specialty. He says he was ecstatic when a friend recommended him for the special counsel job. “I’m still pinching myself,” he said last month. WHISTLEBLOWERS’ HAVEN The Office of Special Counsel, born in the shadow of Watergate with the passage of the Civil Service Reform Act of 1978, is charged with investigating and prosecuting federal employee claims of illegal employment practices and violations of the Hatch Act, which restricts the political activity of executive branch workers. It also serves as a secure channel for whistleblower disclosures. The whistleblower cases, both disclosures and retaliation claims, are the agency’s bread and butter. The office has a staff of roughly 100, about 40 of them lawyers, who review some 500 whistleblower disclosures and 600 retaliation claims each year. If a case can’t be settled, the office brings it to the Merit Systems Protection Board. The U.S. Court of Appeals for the Federal Circuit has final appellate jurisdiction over OSC matters. When a whistleblower disclosure is made, the OSC can order an agency in question to conduct an investigation, and then issues a report to the president and Congress after the investigations are completed. The office takes this step only about 5 percent of the time. The office’s travails started almost immediately after opening its doors in 1979. Politicians who didn’t want a zealous OSC quickly squashed the agency, slashing its budget and forcing out its first special counsel. In fact, Devine says, in its early years OSC staffers were blowing the whistle on the office itself. The passage of the bipartisan 1989 Whistle-Blower Protection Act was supposed to fix the agency, but the office’s hostile reputation persisted. It became known as a “black hole,” says Devine. Indeed, says Jeffrey Ruch, executive director of Public Employees for Environmental Responsibility, the agency has the “biggest bully pulpit in town.” ‘HUGE LEAP FORWARD’ Change, Devine says, came in the late 1990s, when President Bill Clinton asked Kaplan, who was a National Treasury Employees Union lawyer for more than 13 years, to head up the office. Kaplan reached out to federal managers and employees, writing a series of editorials and letters to the editor to publicize the office. “For the first time since 1980, the affected community felt like it was being heard,” says Devine, who has been at GAP since the OSC first opened its doors. “This was a huge leap forward.” Indeed, Kaplan ordered some high-profile whistleblower investigations, appeasing advocacy groups. For example, in 2002 Kaplan ordered an investigation by the Transportation Department into whistleblower claims that the Federal Aviation Administration covered up airport security lapses. And last spring, the OSC under Kaplan negotiated a settlement on behalf of a gay Internal Revenue Service employee who was denied a better job within the agency because of his sexual orientation. Bloch removed a press release announcing the settlement from the OSC Web site. Kaplan supporters, mostly Democrats, urged President George W. Bush to appoint her to a second five-year term last year. He didn’t, and Kaplan resigned in May. And even though Kaplan raised the office’s profile, she wasn’t able to make much headway toward eliminating a backlog of cases that had piled up over the years. According to Bloch, there are about 600 open whistleblower disclosure cases. “Buried in those 600 cases may be very serious issues,” he says. Whistleblower lawyer David Colapinto of plaintiffs firm Kohn, Kohn & Colapinto says the office is severely understaffed and underfunded. “A lot of the problems are because of the sheer number of cases,” he says. “They are not equipped to properly handle all of the cases that pour into that office each year.” Colapinto says that eliminating this nagging backlog has forced past special counsels to dismiss claims that, upon further inspection, have merit. “They will interpret the law in order to screen out cases,” he says. Backlog aside, whistleblower advocates are waiting for signs that Bloch’s office will be a hospitable place for their clients. “Our primary concern is that the Kaplan era was a blip,” says Devine. Bloch concedes that he faces significant challenges. “Many people who work in the federal government do not feel like their voices are being heard,” he says. “I think we need to reconsider the core mission of this office.” Bloch says that seemingly meritorious cases are sometimes dropped because investigators feel they don’t meet their burden of proof. Additionally, the Federal Circuit has set a standard of “irrefragable proof” in whistleblower retaliation cases, meaning that a government worker has to overcome the presumption that the government acts correctly, fairly, and lawfully. Of its last 85 retaliation cases decided on the merits, the Federal Circuit ruled for the whistleblower only once. Bipartisan legislation to give whistleblowers the right to file their claims in federal court, among other reforms, is now wending its way through both the House and Senate. Bloch says he will decide soon if he will support the legislation. For now, he has pledged to reduce the backlog by the year’s end, and says he is hiring a handful of new staffers to help. The backlog “threatens good government,” he says. “The system is bottlenecked.”

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