Oliver B. Mitchell IllP. O. Box 2705

Long Beach, California90801-1912

September 3,20t4osc

The U. S. Office of Special Counsel1730 M St NW, Suite 218Washington, DC

20035-450s

Subj: POSITION STATEMENT lN OSC CASE No. Dl-13-227O

Dear Ms. Olare Nelson, Esq.,

My name is Oliver B. Mitchell lll, l'am a veteran and former employee of the Veterans Affairs (VA)

Greater Los Angeles Healthcare Center. ln response to your email and factual statement, datedThursday, August 28,2014 the following statement is provided.

The Fifth Amendment of the United States Constitution provides, "No person shall be held toanswer for a capital, or otherwise infamous crime, unless on a presentment or indictment of agrand jury, except in cases arising in the land or naval forces, or in the militia, when in actualservice in time of war or public danger; nor shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witnessagainst himself, nor be deprived of life, liberty, or property, without due process of law; nor shallprivate property be taken for public use, without just compensation."

Although pleading the Fifth is something that's usually associated with criminaltrials, I moy invokemy Fifth Amendment Rights in civil cdses, depositions and investigations during all phoses os

well.

On August L6,2At3l lodged a Summons and Complaint against the United States Department ofVeterans Affairs and amended to reflect the United States of America as additional Defendants in

the United States District Court for the Central District of California. ln light of pending litigation, Ihereby invoke my Constitutional Right to plead the Filth and cannot comment on specificquestions contained within your emaildated August 28,2AL4. As a general matter, however, I

offer the following brief statement with caution.

Please refer to my letter, to you, dated July 3, 2014 in which I state "Notably, the concerns I

brought forward over 5 years ago hove now monifested in recent media coverage; yet, the OSC

has not referred the specific concerns I brought forward in 2009 for investigation."

lnvestigators must confirm that complaints fall within the jurisdiction of a whistleblower statue.lnvestigators must verify every case upon assignment to ensure the complaint was timely filed, thata prima facie allegation is present under one of the statues, and that the case has been properlydocketed. lf he or she has not already done so, the investigator checks on prior or currentretaliation, safety and health, or other regulatory cases related to either the complainant or theemployer. This would allow the investigator to coordinate related investigations and obtainadditional background data pertinent to the case at hand.

Under the whistleblower statues, employers are not permitted to retaliate against an employee forengaging in activities protected by statue. To prove a violation, each of the four elements of aprima facie allegation must be proven.

The employe/s knowledge and the investigation must show that a person involved in the decisionto take the adverse action was aware, or suspected, that the complainant engaged in protectedactivity. Personal interviews and collection of documentary evidence are conducted wheneverpracticable. Under any circumstonce, testimony and evidence moy be obtained by telephone,mail or electronically.

As neutral fdct-finders, you, your office, the VA and the VA OIG have the responsibility to collectrelevont ond sulficient evidence in order to reach the appropriate disposition of the case. Afterhaving gathered all relevant evidence available and resolved any discrepancies in testimony, theinvestigator evaluates the evidence and draws conclusions based on the evidence and the law. lfthe complainant offers any new evidence or witnesses, the investigator must ascertain whethersuch information is relevant, and if so, what further investigation might be necessary prior to finalclosing of the case.

lnvestigators must document any and all activities associated with the investigation of the case,

developing a substantial case file that contains the original complaint, the respondent'sresponse(s), all of the documentary evidence, memoranda to the file about every contact with anyparty or witness that is otherwise not documented.

ln this case, the evidence, whether written, oral or electronic is clear and convincing. Please referto my letter dated March 6,2074 in which I state "OSC's failure to properly adjudicate mycomplaint is not in line with the Whistleblower Protection Enhancement Act (WPEAI ol2012. Asthe complainant I only need to raise the allegotion with some reasonable expedotion thot theinformation is true." Understandably the complexity of this complaint has resulted in a longerinvestigation that may exceed in length their statutory timeframes.

Additionally, refer to your email to me, dated Friday, August 23,2A13 in which you state "GoodAfternoon. I received your voicemail messages and I also reviewed the additionol emails you sentsince our conversation on Wednesday 8/2L/13."

ln that emailyou allude to "the additional emoils I sent since our last conversdtion on 8/27fi3."ln those emails, I provided you, your office and the agency with an electronic email between myselfand VA GeneralCounsel.

ln that email, dated March 2,2010,1 emailed VA Agency Counsel saying "Additionolly, I have someevidence that I need to discuss with you. Sometime bock in August'O9l hod written o'Conflict oflnterest" statement requesting "immunitt'' for the additional evidence I had." Please see

attachment.

ln your emailto me dated August 23,2OL3 you state "As we discussed, without additionalinformation regarding the context of the audio or information corroborating your interpretation ofthe meaning of the audio, we are unable to conclude with a substantial likelihood that there has

been wrongdoing..." I ask and concede, what other evidence may I offer that would corroboratemy interpretation of the meaning of the audio?

There is clear and convincing evidence to support my allegations. The measure or degree of thatproof established a firm belief as to the allegations sought to be established. My disclosures weremade "openly ond honest'ly'' with the sole intention of correcting bad practices that have harmedour veteran population, the agency and have posed a significant threat to public health and safety.

Per the OSC "Federal law establishes a unique process for disclosures made to OSC. This process is

intended to guarantee the confidentiality of the whistleblower and ensure that wrongdoing is

investigated and corrected. ln brief, when a whistleblower disclosure is filed with OSC:

1. The Special Counsel may order an agency head to investigate and report on the disclosure;2. After the investigation, the Special Counsel may send the agends report, the

whistleblower's comments, and the Special Counsel's determination as to the completenessand apparent reasonableness of the agency report, to the President and congressionaloversight committees; and

3. The information transmitted to the President may be made public on OSC's website."

ln your emailto me, dated Thursday, August 28,2AL4, you provided an attached statement and/orfactual portion of the referral letter. However, your referral letter is not addressed, the languogeappeors to be in third pafi, and does not oddress the completeness of both the writtencomplaint(s) ond audio. Additionally, you state "Also, attached is the factual portion of the referralletter that moy be sent pending the Special Counsels approval. For the record, the context of boththe first and second audio reads as followed:

'The Chief Technologist for lmaging Services, GS-12 named Randolph G. Jones stated "ouraccessibility lor CT and MRt hosn't chonged during td or td qtr for this year vs. lost yeor. Wehoven't chonged our occessibility ot oll. Even with the oddition ol another sconner our numbershove stoyed the same." He continued stating "were still booking the old potients, were stillpldying catch up with the backlog." He suggested "we should try booking the newer patients

first, it isn't good health core but it plays the system becouse afier 3O doys they drop off the rodoronyway." As our discussion continued Mr. Jones stated "when we hove down time we should takethe list (referring to the bocklog list[ and just stort purging!'

The Chief of lmaging Services, GS-15 named Dr. Suzie El-Saden stated "we need to getstarted on the bocklog by scheduling patients within 25 doys. Were just getting farther andtorther behind, well never turn our numhers dround." ln response to a question I askedconcerning our backlog and procedures for handling the backlog Dr. El-Saden stated "onything oyeor old should be cancelled. Concelled because they wouldn't let us get in there and do o mosspurge so ifs just a motter of getting in ond concelling them ourselves." She continued stating"my bocklog should stort at like April 2007 not dnything eorlier thon thot. Not just MRI but weneed to cancel any orders before April 2007." ln response to a statement made by the coordinatorof the SR Team meeting Dr. El-Saden stated "o lot ol our patients hove hod there study donesomewhere else, have had there surgery, hove gotten better or just died while woiting forservices." Dr El-Saden continued stating "the moss purge thing is not going to hoppen is thatright?" posing her question to Craig Morioka, lnformation System Manager.

The lnformation System Manager for lmaging Services named Craig Morioka responded toDr. El-Saden's question of the mass purge stating "not thot I know of nobody walnts to even takethe chance of leor of losing their job or something."

While l'am pleased that OSC has chosen to investigate and refer the matter, I offer that theimportance of this investigation is to resolve the VA's foilure to provide timely core, curb the grossmismonagement, abuse of outhori$ and limit the specific dongers to public heolth ond safety.

I thank you for your time and attention to this matter and I thank you for your service to ournation's veterans.

,n;#kcie,, ,,,