June 25,2002

Grassley Expresses Concern Over Possible Retaliation at INS

WASHINGTON – Sen. Chuck Grassley today sent a letter to the Immigration andNaturalization Service expressing concern over possible retaliation against two supervisors whoprovided information to investigators about an earlier whistleblower retaliation case.

In March, Grassley sent a strongly worded complaint to the INS commissioner for takingaction against two border patrol agents who disclosed concerns about security weaknesses at theU.S.-Canadian border. In April, the INS informed him it was reversing its plans to retaliate againstthose two agents.

The text of today’s letter follows.

June 25, 2002
The Honorable James Ziglar
Immigration and Naturalization Service
Washington, D.C.

Dear Commissioner Ziglar:

As a longtime advocate for whistleblowers, I am alarmed at what appears to be continuedretaliation against Border Patrol agents at the Immigration and Naturalization Service’s (INS) U.S.- Canada border in Port Huron and Detroit, Michigan.

As you know, in March of 2002, I alerted you to the Border Patrol’s retaliation against BorderPatrol agents Mark Hall and Robert Lindemann for their roles in spotlighting security problems atthe U.S.- Canada border. This retaliation – including de facto demotions and arbitrary, punitivereassignments – was confirmed by an Office of Special Counsel (OSC) report, and from aDepartment of Justice Office of Inspector General (IG) report. On April 4, 2002, the INS announcedthat it was withdrawing the discipline taken against these agents.

I appreciated that the INS eventually did the right thing, despite the fact that it requiredcongressional intervention and public pressure. Recently, however, it seems that retaliationproblems are recurring. It has been brought to my attention that the supervisor for Messrs. Hall andLindemann, Edmund Rutkowski, and a supervisor at Port Huron, Richard Nemitz, are sufferingretaliation for their roles in cooperating with the OSC and IG in their Border Patrol investigations.It is my understanding that throughout the Border Patrol, other Supervisory Border Patrol Agents inCharge (PAIC) are being upgraded from GS-12s to GS-13s. I am told that this upgrade is simply areclassification or regrading the PAIC position due to an increase in responsibilities.

However, in the Port Huron and Detroit stations, the INS has announced that it is hiring newPAICs, rather than upgrading the current PAICs. The net effect is that, while elsewhere in theBorder Patrol the PAICs are being upgraded, in Port Huron and Detroit, the PAICs are being forcedto compete for the GS-13 PAIC positions. If they fail to compete, or fail to win the position, theywill become first-line supervisors at the GS-12 level, which is essentially a demotion. If this is true,I am concerned that these actions by the Border Patrol are retaliatory.

It is my understanding PAICs Rutkowski and Nemitz have filed complaints with the OSC,the entity that investigates whistleblower complaints, alleging that the Border Patrol is engaging ina prohibited personnel practice. They are also considering administrative or legal courses of relief.I ask that you immediately suspend or withdraw the position announcements pendingresolution of the OSC investigation and any administrative or legal challenges. It is undisputed thatthese two PAICs are receiving disparate treatment that will negatively affect their careers. The onusis on you either to demonstrate somehow that Border Patrol and INS are not retaliating against them,or to immediately order the retaliation to cease.

In addition, I ask for your response within ten (10) days to five issues:

1) Please inform me that you will not be taking any disciplinary action against PAICsRutkowski and Nemitz.

2) Please inform me whether you will suspend the position announcements for PAICsin the Detroit and Port Huron stations. If you do not, please provide an explanation for yourdecision.

3) Please inform me whether PAICs Rutkowski and Nemitz will be upgraded to GS-13slike other PAICs along the Northern Border. If you decide that they will not be upgraded, pleaseprovide an explanation for your decision.

4) Please provide me with an explanation of whether and how the PAIC positions arebeing upgraded or re-competed at each Border Patrol station in the United States. Include in yourresponse copies of documents memorializing any reclassification decisions, desk audits, or positionvacancy announcements.

5) What Border Patrol official or INS official made the decision to hold the jobannouncements for the Port Huron and Detroit stations? Did any official(s) in a position higher thanthe Detroit sector approve this decision? If so, please identify the person(s). Please provide to mecopies of all documents relating to the decisions to compete the PAIC GS-13 positions in Detroit andPort Huron. Include in your response copies of e-mails, internal memoranda, meeting minutes, andany other documents.

As a member of the Judiciary Committee’s Immigration Subcommittee, I must exercise myresponsibility to conduct oversight of the INS and Border Patrol. I am confident that once you aremade aware of the circumstances of this situation, you will ensure that the INS and Border Patrolcease retaliation against these two men.

I appreciate your time and assistance on this matter. If you have any questions please contactMr. Matt Reed at 224-5564 or Kathy Nuebel at 224-5744.

Cordially yours,

Charles E. Grassley
Ranking Member
Subcommittee on Crime and Drugs

cc: Attorney General John Ashcroft
Department of Justice

Special Counsel Elaine Kaplan
Office of Special Counsel

Glenn Fine
Inspector General
Department of Justice