[Senate Hearing 108-318]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-318
 
                      NOMINATION OF SCOTT J. BLOCH

=======================================================================


                                HEARING

                               before the


                              COMMITTEE ON
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                                 ON THE

 NOMINATION OF SCOTT J. BLOCH TO BE SPECIAL COUNSEL, OFFICE OF SPECIAL 
                                COUNSEL

                               __________

                           NOVEMBER 12, 2003

                               __________

      Printed for the use of the Committee on Governmental Affairs


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                   COMMITTEE ON GOVERNMENTAL AFFAIRS

                   SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska                  JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            CARL LEVIN, Michigan
NORM COLEMAN, Minnesota              DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania          RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah              THOMAS R. CARPER, Deleware
PETER G. FITZGERALD, Illinois        MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire        FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama           MARK PRYOR, Arkansas

              Michael D. Bopp, Staff Director and Counsel
                    Johanna L. Hardy, Senior Counsel
       Michael J. Russell, Staff Director, Financial Management,
          The Budget, and International Security Subcommittee
      Joyce A. Rechtschaffen, Minority Staff Director and Counsel
                  Lawrence B. Novey, Minority Counsel
           Jennifer E. Hamilton, Minority Research Assistant
Nanci E. Langley, Minority Deputy Staff Director, Financial Management,
          The Budget, and International Security Subcommittee
        Jennifer Tyree, Minority Counsel, Financial Management,
          The Budget, and International Security Subcommittee
                      Amy B. Newhouse, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Fitzgerald...........................................     1
    Senator Akaka................................................     7

                               WITNESSES
                      Wednesday, November 12, 2003

Hon. Sam Brownback, a U.S. Senator from the State of Kansas......     2
Scott J. Bloch to be Special Counsel, Office of Special Counsel..     4

                     Alphabetical List of Witnesses

Bloch, Scott J.:
    Testimony....................................................     4
    Prepared statement...........................................    13
    Biographical and professional information requested of 
      nominees...................................................    14
    Pre-hearing questionnaire and responses for the Record.......    20
    Post-hearing questions and responses for the Record from:
      Senator Akaka..............................................    46
      Senator Akaka, questions and revised responses.............    50
    Post-hearing questions and responses for the Record from:
      Senator Levin..............................................    54
      Senator Levin, additional question and response............    57
Brownback, Hon. Sam:
    Testimony....................................................     2


                      NOMINATION OF SCOTT J. BLOCH

                              ----------                              


                      WEDNESDAY, NOVEMBER 12, 2003

                                       U.S. Senate,
                         Committee on Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:07 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Peter G. 
Fitzgerald presiding.
    Present: Senators Fitzgerald and Akaka.

            OPENING STATEMENT OF SENATOR FITZGERALD

    Senator Fitzgerald. I am going to call this meeting to 
order. Senator Akaka is on his way but he has asked for us to 
begin.
    This afternoon the Governmental Affairs Committee will hold 
two hearings. The first hearing will be on the President's 
nominee to be Special Counsel. Upon conclusion of the 
nomination hearing, the Committee will immediately hold a 
legislative hearing on S. 1358, the Federal Employee Protection 
of Disclosures Act, the so-called whistleblower bill. I am 
chairing both hearings since the nomination and the bill are 
within the subject matter jurisdiction of the Subcommittee on 
Financial Management, the Budget, and International Security 
which I Chair. I am pleased to have this opportunity today, and 
I look forward to hearing from all of the witnesses.
    I will also be pleased to recognize Senator Akaka, when he 
arrives. He is not only the Ranking Member of the Subcommittee 
on Financial Management, the Budget, and International Security 
but he also is the sponsor of S. 1358 which we will address 
shortly.
    First, we will take up the nomination of Scott J. Bloch to 
be Special Counsel of the U.S. Office of Special Counsel. I 
would like to welcome Mr. Bloch today as well as Senator 
Brownback from Kansas, Mr. Bloch's home State. The President 
has selected you for a very important position in our 
government, and I congratulate you on your nomination, Mr. 
Bloch.
    Mr. Bloch has filed responses to the Committee's 
biographical and financial questionnaire, answered prehearing 
questions submitted by the Committee, and has had his financial 
statement reviewed by the Office of Government Ethics. Without 
objection, this information will be made part of the hearing 
record, with the exception of the financial data which are on 
file and available for public inspection in the Committee 
offices. In addition, I personally have reviewed the FBI 
background investigation report on Mr. Bloch.
    President Bush nominated Mr. Bloch to be Special Counsel on 
June 26, 2003. Mr. Bloch has a record of 15 years as a 
practicing attorney with extensive experience in employment and 
contract law. In November 2001, Mr. Bloch was appointed as 
Associate Director and Counsel to the Task Force for Faith-
based and Community Initiatives in the U.S. Department of 
Justice. In January of this year, Mr. Bloch assumed the 
position of Deputy Director and Counsel for the task force.
    The Office of Special Counsel is an independent Federal 
agency with investigative and prosecutorial responsibilities 
regarding three statutes: The Civil Service Reform Act, the 
Whistleblower Protection Act, and the Hatch Act. The primary 
mission of the Office of Special Counsel is to protect Federal 
employees from prohibited personnel practices, especially 
reprisals for whistleblowing. As part of its work to protect 
Federal Government whistleblowers, the Office of Special 
Counsel is authorized to receive, investigate, and prosecute 
allegations of prohibited personnel practices. The office also 
may file complaints with the Merit Systems Protection Board to 
seek disciplinary action against individuals who are found to 
have committed a prohibited personnel practice.
    The Office of Special Counsel also is responsible for 
enforcing the Hatch Act that addresses political activities, 
protecting the re-employment rights of veterans and reservists, 
and operating a disclosure unit to which Federal employees may 
disclose information about government waste, fraud, and abuse.
    The Office of Special Counsel is a vital agency in our 
Federal Government that impacts Federal employees. The nominee 
is being considered for an important position of leadership in 
this agency, and we appreciate his presence today before the 
Committee.
    Before I swear in the witness I would like to call upon my 
colleague from Kansas, Senator Brownback, to introduce the 
nominee. I want to thank Senator Brownback for coming here 
today. I understand that Senator Roberts also wanted to be here 
today but he has a scheduling conflict with the Intelligence 
Committee. So Senator Brownback, welcome to the Governmental 
Affairs Committee, and you may proceed.

OPENING STATEMENT OF SENATOR BROWNBACK, A U.S. SENATOR FROM THE 
                        STATE OF KANSAS

    Senator Brownback. Thank you very much, Mr. Chairman. Thank 
you very much for holding this hearing today as well. Indeed my 
colleague Senator Roberts would like to be here, but for a 
scheduling conflict. We both strongly support Mr. Bloch's 
nomination.
    As you noted in your introduction, he has 15 years of 
litigation experience ranging in a wide range, civil rights to 
employment law and private practice, in areas quite impressive. 
This experience, coupled with his recent work at the Department 
of Justice I think makes him really an ideal fit for this 
Office of Special Counsel, and as Special Counsel in the Office 
of Special Counsel.
    I am pleased to say he is a fellow Kansan. He was a partner 
in a prominent Kansas law firm for 15 years. He taught at the 
University of Kansas School of Law, my alma mater. I believe we 
even have a coach from your State now at our alma mater, which 
I do not want to bring up a sore point with the starting of 
basketball season, but he is doing a very nice job.
    He was an honors graduate at the University of Kansas. He 
was on the board of editors of the law review, won awards for 
his writing in law school. He served on charitable and pro bono 
boards including the Douglas County Bar Grievance Committee, 
where he oversaw, as chair of the investigation and reporting 
on attorneys accused of unethical conduct. He was on the board 
of discipline that heard testimony and made findings to the 
Kansas Supreme Court for the discipline of attorneys. So he is 
used to this role in a whistleblower capacity within his own 
profession.
    In the practice of law, Mr. Bloch has been a champion of 
employee rights, ethics, and protection of whistleblowers. He 
has demonstrated a resolve to pursue just results even in the 
face of difficult odds. He has served in the Justice Department 
for the last 2 years, bringing his wife Catherine and their 
seven children to live in Virginia. I have met and talked with 
his wife and two of their children are here with him today. I 
do not think you would probably mind, Mr. Chairman, if he 
introduced his wife and children at this point in time.
    Senator Fitzgerald. That would be great, if you could do 
that.
    Mr. Bloch. Thank you, Senator. My wife Catherine is to my 
right. My daughter Mary, whose confirmation ceremony I attended 
last Monday at our church and now she is reciprocating.
    Senator Fitzgerald. How old is Mary?
    Mr. Bloch. Mary is 13. Beatrice is 10 years old.
    Senator Fitzgerald. Welcome.
    Mr. Bloch. My brother William, who came on the red-eye from 
California. He is a plaintiff's employment attorney in 
California.
    Senator Fitzgerald. Welcome. Thank you for being here. You 
have five other kids?
    Mr. Bloch. That is correct. My youngest daughter celebrates 
her birthday today, her first birthday. I also want to 
recognize my son who could not be here, but wanted to be, who 
is in the Marines and just returned from a tour in Iraq, but he 
had to report back to California for duty.
    Senator Fitzgerald. Thank him for his service for us. Thank 
you.
    Senator Brownback. He has obviously a strong tie with his 
family, and when he was telling me about his son and the work 
that he was doing in the Marines in Iraq, that shows a lot of 
strong character as well in a very difficult battle that we are 
involved in.
    I would just conclude by saying that the Office of Special 
Counsel needs someone with rock solid ethics, leadership and a 
passion for justice. I think you find that in Mr. Bloch. That 
is why Senator Roberts and myself wholeheartedly support his 
nomination into this important position in the Federal 
Government. Mr. Chairman, thank you very much.
    Senator Fitzgerald. Senator Brownback, thank you very much 
for introducing the witness for us, and thank you for being 
here today. We appreciate you taking time out of your schedule. 
Now, I would like to go ahead and swear in the witness, and 
thank Senator Brownback for being here today. All witnesses are 
sworn in under this Committee's rules and have to take an oath.
    [Witness sworn.]
    If you would like, Mr. Bloch, you could proceed now with 
your statement and then we will proceed to questions. So you 
may begin. Thank you for introducing your family earlier.

 TESTIMONY OF SCOTT J. BLOCH,\1\ TO BE SPECIAL COUNSEL IN THE 
                   OFFICE OF SPECIAL COUNSEL

    Mr. Bloch. Thank you, Mr. Chairman, and Ranking Member, 
Senator Akaka, when he gets here, and the Members of the 
Committee. I am grateful and deeply honored by the nomination 
of the President of the United States to the Office of Special 
Counsel. I am equally honored by the introduction from Senator 
Brownback from my great State of Kansas, and his and Senator 
Roberts' support of my nomination to this honorable position 
within our Federal Government.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Bloch appears in the Appendix on 
page 13.
      Biographical and professional information appears in the Appendix 
on page 14.
      Pre-hearing questionnaire and responses appears in the Appendix 
on page 20.
      Post-hearing questions and responses appears in the Appendix on 
page 50.
---------------------------------------------------------------------------
    The challenges to the Office of Special Counsel are 
daunting, but not insurmountable. If you honor me with 
confirmation to this position I will do my utmost to carry on 
the high standards of integrity and efficiency of the Office of 
Special Counsel.
    As I reflect today on my background which has prepared me 
for this challenge, I am reminded that I grew up with an 
understanding of the importance of the underdog. My father was 
a lifelong member of a union, the Writers Guild of America, and 
he taught me the need for protections for those who are trying 
to earn a living for their families, who stand as a lone voice 
against a powerful industry. In my law practice I learned to 
champion the small worker and found this work to be the most 
rewarding of my legal career. That sense of justice and the 
rule of law inspired me to come to Washington for a career in 
public service. It continues to inspire me in this new position 
for which I have been nominated.
    In Plato's Republic, Socrates asks whether justice is 
merely the will of the stronger. Socrates was a gadfly of 
Athens and may, in a certain sense be considered the first 
whistleblower for he exposed official corruption and called for 
real justice based on principle, based on each person's due.
    OSC stands as a gadfly to those who would impose their will 
on the weaker, who would punish whistleblowers for exposing 
corruption, waste, and illegality that endanger the public. OSC 
stands as a guardian of justice and accountability in the 
Executive Branch. Responsible government is vital to the 
functioning of our country. The founders of our Nation set up a 
system of self-government with checks and balances. From the 
important protections of whistleblowers and civil and political 
rights of employees, to enforcing the Hatch Act, to protecting 
re-employment rights and veterans preferences for those who are 
literally putting their lives at risk for our liberty and the 
liberty of others throughout the world, I see this office as 
being a part of an ethical, self-governing nation.
    I look forward to helping protect our country and the 
important work of nearly three million civilian employees in 
the Executive Branch. I look forward to working with you, Mr. 
Chairman, and the Members of this Committee and the 
professional staff at OSC to improve the merit system of civil 
service. I thank you for this opportunity to appear before this 
Committee and to answer your questions.
    Senator Fitzgerald. Thank you. That was a very good 
statement and I like your reference to Socrates, and your 
citing of him as perhaps the first whistleblower is very 
apropos. So thank you for that insight.
    I am going to ask you a series of questions that our 
Committee asks of all nominees. These are standard questions, 
and then we will proceed into more specifically tailored 
questions regarding the Office of Special Counsel.
    First, is there anything that you are aware of in your 
background which might present a conflict of interest with the 
duties of the office to which you have been nominated?
    Mr. Bloch. No.
    Senator Fitzgerald. Do you know of anything, personal or 
otherwise, that would in any way prevent you from fully and 
honorably discharging the responsibilities of the office to 
which you have been nominated?
    Mr. Bloch. No.
    Senator Fitzgerald. Do you agree without reservation to 
respond to any reasonable summons to appear and testify before 
any duly constituted committee of Congress if you are 
confirmed?
    Mr. Bloch. I do.
    Senator Fitzgerald. Mr. Bloch, you have extensive private 
sector experience in litigation, and most recently you have 
been serving as Counsel and Deputy Director for the Task Force 
for Faith-based and Community Initiatives at the Department of 
Justice. How will you bring these experiences to bear on the 
work that you will undertake as a Special Counsel at the Office 
of Special Counsel?
    Mr. Bloch. Thank, you, Senator. I appreciate this 
opportunity to explore how my background can help with the 
position of Special Counsel. It is my understanding that the 
office requires someone who has a wide background in employment 
laws, who has a passion for protecting the rights of workers, 
who has an understanding of the interplay between various 
statutes and common-law doctrines concerning employment law. I 
believe I fit that bill. In my 15 years of practice in my law 
firm I was our resident expert in the area of employment law 
and quickly developed a specialty in plaintiffs employment 
work, which comprised better than a majority of my practice. I 
also represented----
    Senator Fitzgerald. Did you also represent some defendants 
in labor lawsuits against companies? Did you represent some of 
the companies being sued?
    Mr. Bloch. Yes, I did, Senator. I believe that my 
background, which began when I was a law student and I clerked 
for a national labor law firm----
    Senator Fitzgerald. Is that Seyfarth, Shaw?
    Mr. Bloch. Seyfarth, Shaw, from your fine State.
    Senator Fitzgerald. But you worked in the Los Angeles 
office; is that right?
    Mr. Bloch. I did. We had the best of both worlds out there. 
In that capacity, that whetted my appetite for the area of 
labor law and employment law. When I got into private practice 
I began to represent individuals and found that that was both 
fascinating and rewarding because you got to develop the facts 
from the outset and really see the perspective from the worker.
    Senator Fitzgerald. Can you give us some examples of the 
types of plaintiffs you represented, the types of aggrieved 
workers? What kind of cases would these have been?
    Mr. Bloch. They ranged anywhere from civil rights claims, 
sexual discrimination, racial discrimination, disability 
discrimination, fair labor standards practices cases, Family 
Medical Leave Act cases, retaliation cases. Retaliation is a 
rather broad topic and it includes a number of things under its 
umbrella, such as whistleblowing, retaliation for exercise of a 
protected right such as testifying, jury duty, workers 
compensation claims, and so on. There is also a subcategory of 
discrimination claims that result in a retaliation or a 
reprisal against an employee. I represented plaintiffs in all 
of those areas. In all of those areas actually I represented 
some corporations as well because we would often have--since I 
was the resident expert in the firm, all of the firm clients 
would come to me for help with any kind of appearance before an 
administrative agency or a local agency investigating claims at 
the early stages of any kind of discrimination or reprisal 
against an employee. So I have been experienced in all of those 
areas. And other areas as well, under ERISA, Section 1132 
claims, 1983 claims involving constitutional rights, as well as 
protected employment rights and property interests.
    Senator Fitzgerald. You really have a very broad labor law 
background. Did you only do labor law cases when you were in 
the private sector or did you do other things?
    Mr. Bloch. No, I was in a smaller firm. We had about 14 
lawyers so you had to--I was the chair of the litigation 
department for the last 5 years of practice, so you had to be 
able to think on your feet and do a lot of different areas. I 
practiced in securities fraud, some medical malpractice, both 
on the plaintiffs and the defense side, as well as complex 
commercial litigation, ethics law which included claims against 
law firms both regional as well as national. So I had about 60 
percent of my practice, 65 percent, in employment and the rest 
was a smattering of these other areas, including administrative 
law.
    Senator Fitzgerald. Now the Special Counsel actually has 
several roles. On one hand, they are advocates for 
whistleblowers. On the other hand, in certain cases they may be 
required to actually prosecute government officials who have 
had the whistle blown on them. Where it merits prosecution, the 
Office of Special Counsel has to prosecute them; is that right? 
What is your understanding of the office based on your 
preparation for going into the office?
    Mr. Bloch. Thank you, Senator. The office, as I understand 
it, is to be a protector or guardian of the merit system of 
civil service and the merit system principles as found in Title 
5 of the United States Codes, Section 2301, to make certain 
that we have an efficient workforce and that employees are not 
reprised against, or mistreated or discriminated against on 
non-merit related issues, as well as bringing corrective 
actions to protect those employees, and when necessary and when 
merited, to bring disciplinary complaints against supervisors 
or even high level officials. So there is clearly a dual, maybe 
even a triple role that the office serves.
    Senator Fitzgerald. Have there been any actions brought 
against high-level officials of which you are aware?
    Mr. Bloch. Yes, there have been a number. Some of them, as 
I understand it, have not public record but some are. But, yes, 
there have been.
    Senator Fitzgerald. Is there not a public record of these 
proceedings?
    Mr. Bloch. I was limited in what I could get into with the 
Office of Special Counsel and the Acting Special Counsel, so 
there were certain things I was not allowed to see. Names, for 
instance. But I could see expurgated or redacted files, or 
redacted letters that had been written to the President or to 
high-level officials in agencies concerning other high-level 
officials. So, yes, I am aware of some.
    Senator Fitzgerald. So there are prosecutions going on and 
the public does not know anything about them?
    Mr. Bloch. No, I am not saying that it is withheld from the 
public. There are some things as I understand it, of a national 
security nature that may be protected and I am not able to look 
at them at this time.
    Senator Fitzgerald. Things that do not have an intelligence 
reason or a national security reason for protecting, do they 
make public those prosecutions when the Office of Special 
Counsel is actually going after a government official for 
waste, fraud or abuse that is actionable under the 
whistleblowers statute? Do they make that publicly available?
    Mr. Bloch. Senator, my understanding is it is a matter of 
public record when a disciplinary action is filed or a 
corrective action is filed with MSPB. The fact or existence of 
an investigation file I cannot honestly tell you as I sit here 
that I know that the investigations files are public. I do not 
think they are, but I really would have to ask a staff member.
    Senator Fitzgerald. But when an action is filed--we have 
been joined by our Ranking Member, Senator Akaka. Thank you 
very much for being here. Senator, you may have an opening 
statement that you wish to give, and we would be happy to allow 
you to proceed at this time.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. Thank you very much, Mr. Chairman. I want to 
thank you for your leadership and I want to tell you that I am 
pleased you are having this nomination hearing for Scott Bloch 
to be Special Counsel. I want to join you in welcoming his 
lovely family, and also any friends who are joining him this 
afternoon. So, welcome.
    The Office of Special Counsel was created under the Civil 
Service Reform Act way back in 1978. It is an independent 
Federal investigative and prosecutorial agency whose primary 
mission is to safeguard the merit system by protecting Federal 
employees and applicants from prohibited personnel practices. 
Unfortunately, for many years, OSC was seen as more of an 
adversary than an ally to whistleblowers. During congressional 
hearings in the 1980's, this Committee was urged to abolish the 
OSC. Instead we chose to strengthen the agency and gave it a 
new charter. The charter is to protect employees, especially 
whistleblowers, from prohibited personnel practices and to act 
in the interest of employees who seek its assistance.
    Our Committee affirmed that the OSC should not act contrary 
to those interests. This requires a Special Counsel to be a 
strong and independent advocate for whistleblowers. The Special 
Counsel must also be an educator, one who will ensure that 
Federal employees understand their rights and protections when 
disclosing waste, fraud, and abuse within the government. All 
too often workers find out too late that they are not covered 
by the Whistleblower Protection Act or are unaware of their 
rights and protections.
    If confirmed, I urge you to make it a priority to inform 
Federal employees of their rights and protections or the lack 
thereof. Employees should not be losing their jobs or be 
subject to possible civil or criminal penalties because their 
agencies failed to educate its workforce of their rights and 
protections under the law. Federal civil servants should be 
encouraged to come forward with information vital to ensuring 
government accountability and a secure Nation.
    Mr. Bloch, I want to thank you for being here today, and I 
am glad to have your family here as well. Thank you very much, 
Mr. Chairman.
    Senator Fitzgerald. Mr. Bloch, I was wondering if you would 
want to describe what you think may be some of the challenges 
the Office of Special Counsel might face in the coming years. 
As Special Counsel, how will you address these challenges and 
which issues will be your top priorities?
    Mr. Bloch. Thank you, Senator. I have thought about this 
issue. I think it is very important to go in with an idea of 
what it is that you are facing in the way of challenges and 
what kind of vision you might have for the future. I look 
forward to working with this Committee and with you and with 
the staff at OSC to implement a broad vision for the future. 
That includes sending a message to the Federal workforce and to 
the public that efficiency, expeditious handling of claims is 
very important. That whistleblowers are going to be protected 
in not only name, and not only in words, but in action. That 
with the changing nature of the Federal personnel system as we 
see in several different agencies, that we have to fashion a 
better system for employee understanding of rights, because it 
can become very confusing, or there can be a crossfire of 
different avenues and different procedures that employees are 
put into and they are not sure what to do and become very 
confused. So we have to educate, and I thank the Ranking Member 
for bringing that to bear here today, that education is a very 
important part of the future of this office.
    Senator Fitzgerald. The office has quite a backlog right 
now, does it not?
    Mr. Bloch. Yes, Senator. I am aware of the backlog. At the 
current time there are really three divisions of OSC where a 
backlog can become a serious issue or it has become something 
of a serious issue. Leaving aside for the moment the Hatch Act 
unit, the three areas under the prohibited personnel practices 
that we think of when we talk about the backlog are in the CEU, 
or Complaints Examining Unit, the IPD, or the Investigation and 
Prosecution Division, and then the DU, or the Disclosure Unit. 
As you know, the primary mission of OSC is the protection of 
employees from prohibited personnel practices, especially 
reprisal for whistleblowing. Then secondarily, although not a 
far second, is a secure channel for the receipt of disclosures 
of wrongdoing in the government, of gross waste, of gross 
mismanagement, of illegality, of substantial danger to the 
public health or welfare.
    Senator Fitzgerald. Do you know how large of a staff you 
will have under you?
    Mr. Bloch. Currently there are about 103 full-time 
equivalents. Special Counsel's office has a number of positions 
that have not been refilled; that have become vacant. So that 
the budget that exists for OSC has not been fully utilized for 
the full-time equivalents now. In the President's budget for 
2004, in addition to filling approximately six or seven 
positions that have been vacant, there is an additional 
opportunity for filling an additional seven, I think, full-time 
equivalents to bring it to 113 under the 2004 budget, which I, 
of course, support.
    Senator Fitzgerald. Do you know how many cases wind up with 
the OSC?
    Mr. Bloch. The number of matters that come in for 
prohibited personnel practices is a little over 2,000.
    Senator Fitzgerald. A year?
    Mr. Bloch. A little under 2,000 I should say, per year 
average.
    Senator Fitzgerald. Has that been going up over the years, 
do you know?
    Mr. Bloch. In reality, in the last 3 years there has been a 
little bit of a dip. There has been a year where it went down, 
and then went back up to pretty much a level that was 
experienced a few years ago.
    Senator Fitzgerald. How many of those cases typically get 
prosecuted?
    Mr. Bloch. That are recommended for actual prosecution, 
that are not closed for one reason or another, or settled in an 
alternative dispute resolution?
    Senator Fitzgerald. Right.
    Mr. Bloch. Around 400.
    Senator Fitzgerald. Get prosecuted? That is a lot.
    Mr. Bloch. That are referred out. Then of those that get 
through the Investigation Prosecution Division, I think we are 
talking about 150 to 200 that actually go forward with 
continuing prosecution. Then if you are asking about the number 
of cases that actually go to the Merit Systems Protection 
Board, it is a smaller number. What that number is I cannot 
tell you, but it is significantly smaller, I believe.
    Senator Fitzgerald. Senator Akaka.
    Senator Akaka. Thank you very much, Mr. Chairman. Mr. 
Bloch, as you know the OSC is responsible for working with 
agencies to ensure that employees know of their rights and 
protections when they believe they have been retaliated 
against. However, we are finding that employees are still 
unaware of their rights. Do you see any deficiencies that exist 
in law that prevent employees from knowing their rights and 
protections?
    Mr. Bloch. Thank you, Senator. I believe this is a very 
important area that you have raised, and I thank you for your 
leadership in this area. I believe that the current law, the 
2302(c) certification program is one area that is being under-
utilized potentially. In addition to that, there is the 
education program, the ongoing education program and outreach 
program of OSC to the agencies. This is something that I feel 
strongly about. It is something that I have enjoyed 
tremendously in my current work in the Justice Department, is 
going not only to the public and educating and doing outreach, 
but actually going in among the agencies in the Federal 
Government. So there has been quite a bit of work, we have done 
interagency outreach and so on, that has been very helpful in 
educating employees and officials. I look forward to doing the 
same and on an expanded basis in the Office of Special Counsel.
    Senator Akaka. Thank you, Mr. Bloch. Under both the 
whistleblower statute and the labor management statute, the 
President may exclude agencies from coverage of those laws for 
national security reasons. However, in the labor management 
context the President is required to issue an Executive Order 
when removing agencies. Would you support adding a similar 
requirement to the WPA?
    Mr. Bloch. Senator, thank you. I do understand that there 
are a number of agencies that have been excluded in the past 
from certain personnel laws, and even currently we are facing a 
bill with the Department of Defense as well as Homeland 
Security which already has gone through and there have been 
discussions about, to what extent are the personnel laws going 
to be applied? Will the Secretary of an agency voluntarily 
agree to those provisions to be enforced?
    I do know that in the Department of Defense as well as in 
certain portions of Homeland Security, for instance, the 
prohibited personnel practices, especially whistleblowing 
rights, will still apply. So I think it is important that any 
bill that comes out spells out and is very clear about the need 
for employees to be informed of their rights and to 
specifically have this delegated to the agency officials.
    Senator Akaka. Thank you. Federal employees are entrusted 
to serve the American public by helping the Nation prevent and 
recover from terrorist attacks, fighting crime and diseases, 
improving our economy, and protecting the environment. As such 
we must provide them with adequate protections for coming 
forward with information vital to an effective government. 
Based on your background and your experience in whistleblower 
issues, are there elements of any State or other whistleblower 
system that you believe should be included in the WPA?
    Mr. Bloch. Thank you, Senator. I have reflected on this and 
the thing that concerns me most is that when you look at State 
law whistleblower claims, the common law in the majority of 
States in the United States, and certainly in the Midwest 
region where I was most familiar with, you find a sense in 
which the courts and the law that has developed has required 
employees to jump through hoops, and to use magic words and 
magic procedures, and that if they do not there is a sense of 
gotcha. I think the law should not be that way. I think the law 
has always been and always needs to be evenhanded, non-
discriminatory, and not tilted in a particular person's 
direction or company's direction.
    So I think it is important, it is vital that the law 
reflect that sense of evenhandedness, and fairness, especially 
in the whistleblower area where there seems to have developed a 
kind of accretion of requirements that are not in the spirit of 
what a whistleblower is, which is someone who believes in 
accountability and who is actually trying to help the public or 
the company, or the government in this case, and yet they are 
retaliated against and punished, and that is wrong.
    Senator Akaka. Thank you for that response, and thank you 
for your other responses, Mr. Bloch.
    Thank you, Mr. Chairman.
    Senator Fitzgerald. Thank you, Senator Akaka. I may just 
ask one more question before we are going to have to go into 
another hearing on actually a revision to the whistleblower 
laws. We are going to be considering a bill Senator Akaka is 
sponsoring.
    I wanted to ask you about veterans. Your responsibilities 
will include protecting the rights of veterans. They do get a 
preference for government employment. There will be a lot of 
reservists and servicemen and women who will be returning from 
Iraq and Afghanistan. How do you plan to protect the re-
employment rights of veterans and reservists under the law?
    Mr. Bloch. Thank you, Senator. I believe that protecting 
the rights of reservists, veterans, is very important to our 
country and to our integrity as a government. Just today or 
yesterday, I believe, there was an article in the Washington 
Post that reflected a problem with enforcement of the Uniformed 
Services Employment and Re-employment Rights Act, as well as 
veteran preferences. Since approximately a year ago there have 
been something in the order of 1,300 returning reservists and 
veterans from service to our country who have not been returned 
to their jobs or have not been given the employment benefits to 
which they are entitled. Very much like the whistleblower 
situation, we have people who are being, in a sense, punished 
for having served the public good and the country. We cannot do 
this.
    So I feel committed to this area as well as the other areas 
of the office, and we have tools within the Special Counsel's 
law office, if I am lucky enough to be confirmed, that I can 
utilize such as the prohibited personnel practices concerning 
veterans preferences, 2302(b)(11) as well as the USERRA Act. We 
have, to my understanding--the staff has told me at OSC that we 
have a good relationship with the vets office at the Department 
of Labor where they are now currently mounting a campaign to 
bring awareness to the public. I think their slogan is, ``They 
Did Their Job. Let's Give them Their Jobs Back,'' or something 
to that effect. I fully support that. I will enforce the USERRA 
laws as well as veterans preferences vigorously.
    Senator Fitzgerald. Thank you very much, Mr. Bloch. Very 
good answers to our questions. I appreciate your appearance 
here today, and congratulate you and your family on your 
nomination. Please extend our good wishes to the rest of your 
children, all five of them who couldn't be here, and good luck 
to you. We appreciate you having come today.
    Without objection, the hearing record will remain open for 
any additional statements or questions from Senators through 5 
p.m. on Tuesday, November 18, 2003.
    If there is no further business to come before the 
Committee, this nomination hearing is adjourned and we will now 
take a 5-minute break while staff prepare for the legislative 
hearing on S. 1358.
    Thank you very much.
    [Whereupon, at 2:47 p.m., the Committee was adjourned.]


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