* Former lead Amerithrax investigator alleges DOJ retaliated for his prior whistleblower reports of FBI and DOJ mismanagement into anthrax attacks of 2001.
Posted by DXer on April 7, 2015
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CASE CLOSED ... what really happened in the 2001 anthrax attacks? 
DXer said
MEMORANDUM AND ORDER
This matter comes before the Court on the United States’ motion to dismiss for lack of subject matter jurisdiction or, alternatively, failure to state a claim. [R. 14]. Mr. Lambert has responded in opposition, and the matter is ripe for consideration.1 For the reasons discussed below, the United States’ motion will be granted. Counts I-IV of Mr. Lambert’s complaint will be dismissed.
Richard L. Lambert served as a Special Agent in the FBI for 24 years, eventually being named the Special Agent in Charge of the Knoxville Division. In March 2012, Mr. Lambert retired and took a position at UT-Battelle, a private government contractor, as the Senior Counterintelligence Officer for their Oak Ridge Field Office. A major part of Mr. Lambert’s new job was to “[e]stablish and maintain liaison relationships with the Federal Bureau of
1 After briefing closed on the United States’ motion to dismiss, Mr. Lambert moved for leave to file a sur-reply. [R. 24]. According to Mr. Lambert, the United States made new arguments in its reply, but he fails to identify what those new arguments are. With no extraordinary circumstances shown by Mr. Lambert to support filing a sur-reply, his motion will be denied.
Investigation and other appropriate intelligence community and law enforcement agencies.” Mr. Lambert was therefore in frequent communication with FBI Counterintelligence Agents embedded in his office.
In October or November of 2012, Ken Moore, the FBI’s Special Agent in Charge in Knoxville, approached Patrick Kelley, an attorney with the FBI and “designated agency ethics official,” at a conference with questions about the one-year post-employment restrictions in 18 U.S.C. § 207(c). That section generally prohibits certain former senior executive branch personnel from communicating with their former department or agency with the intent to influence official action within one year of separation from government service. Mr. Moore was concerned that § 207(c) might apply to Mr. Lambert, meaning that Mr. Moore would not be allowed to speak with him. Mr. Kelley agreed that it might apply, and told Mr. Moore he would “dig into it.”
After consulting with DOE and DOJ ethics offices, Mr. Kelley concluded that § 207(c) applied to Mr. Lambert’s situation. In a November 8, 2012, email explaining the situation, Mr. Kelly stated that his conclusion meant that Mr. Lambert “cannot talk directly to any FBI employee.” He acknowledged that this would be disruptive, but saw “no way around it”—the statute is a criminal prohibition that could not well be ignored. Mr. Kelley sent his email to Mr. Lambert, to executive managers in the FBI’s Counterintelligence Division, and to Mr. Moore. Mr. Kelley also referred his opinion to the DOJ Office of the Inspector General and “other unknown, unnamed officials” at the DOE, DOJ, and UT-Battelle.
When Mr. Lambert received the email, he informed Mr. Kelley that his legal opinion was wrong and “provided him with the controlling law and operative facts.” When asked to provide a legal or factual basis for his conclusion that Mr. Lambert was violating § 207(c), Mr. Kelley
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refused and otherwise declined to provide Mr. Lambert with any citations to support his conclusion other than the survey of his colleagues at the DOE and DOJ.
Mr. Lambert states that he self-reported Mr. Kelley’s conflict-of-interest allegations to the United States Attorney for the Eastern District of Tennessee and to the FBI’s Office of Professional Responsibility. According to him, “[b]oth entities deemed [Mr.] Kelley’s legal opinion to be meritless.”
Seven months after Mr. Kelley sent his email, and three months after the one-year cooling off period ended, UT-Battelle terminated Mr. Lambert’s employment. According to Mr. Lambert, his termination was a “direct and proximate result” of Mr. Kelley’s erroneous legal opinion. Additionally, the DOJ’s Inspector General and the DOJ’s Public Integrity Section “launched and sensationalized massive criminal probes, which included the dispatch of teams of OIG Special Agents and PIS attorneys to East Tennessee who raided and searched [Mr. Lambert’s] office . . . seized and analyzed [his] personal documents and effects, and interrogated dozens of [Mr. Lambert’s coworkers.]”
In the end Mr. Lambert asserts that, because of the stigmatizing publicity and notoriety surrounding Mr. Kelley’s legal opinion and the subsequent investigation, he “has been blackballed with the specter of illegal conduct and ethics violations, unable to gain reemployment despite his submission of more than 70 job applications to various employers.”
Mr. Lambert filed suit on April 2, 2015. His amended complaint, filed June 20, 2015, contains five counts. The first three, brought under the Federal Tort Claims Act, are for: (I) legal malpractice against Mr. Kelley; (II) professional nonfeasance against former FBI Director Robert Mueller (for failing to ensure that Mr. Kelley was suitable for his position); and (III) negligent failure to train, supervise, and advise against former Attorney General Eric Holder. In Count IV,
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II.
When a defendant challenges subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of proving that the court has jurisdiction. Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). A Rule 12(b)(1) motion may challenge the sufficiency of the complaint itself, in what is known as a facial attack, or it may challenge the factual existence of subject-matter jurisdiction, which is known as a factual attack. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). In ruling on a facial attack, the court accepts as true the allegations of the complaint and construes them in a light most favorable to the plaintiff. DLX v. Kentucky, 381 F.3d 511, 516 (6th. Cir. 2004). On the other hand, when faced with a factual attack, the court does not presume that the complaint’s allegations are true, and may resolve factual disputes when necessary. Madison-Hughes v. Shalala, 80 F.3d at 1130.
As for a Rule 12(b)(6) motion, Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure require the complaint to articulate a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This requirement is met when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). A motion to dismiss under Rule 12(b)(6) requires the court to construe the complaint in the light most favorable to the plaintiff, accept all the complaint’s factual allegations as true, and determine whether the plaintiff can prove no set of facts in support of the plaintiff’s claims that would entitle the plaintiff to relief. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir. 1990).
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DXer said
The court may not grant a motion to dismiss based upon a disbelief of a complaint’s factual allegations. Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990); Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995) (noting that courts should not weigh evidence or evaluate the credibility of witnesses). The court must liberally construe the complaint in favor of the party opposing the motion. Id. However, the complaint must articulate more than a bare assertion of legal conclusions. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434 (6th Cir. 1988). “[The] complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Id. (citations omitted).
III.
A. Motion to Substitute
As an initial matter, the United States has moved to substitute itself for Mr. Kelley in
Count I. For non-constitutional torts, “[w]hen a claim of wrongful conduct is brought against a government official in his individual capacity . . . the Attorney General’s certification that the defendant was acting within the scope of his employment requires substitution of the United States as a defendant.” Sobitan v. Glud, 589 F.3d 379, 383 (7th Cir. 2009); see 28 U.S.C. § 2679(d)(1). On May 12, 2016, James G. Touhey, a Torts Branch Director in the Department of Justice certified that Mr. Kelley was acting within the scope of his employment when Mr. Lambert’s claims arose. Accordingly, and without opposition from the plaintiff, the United States shall be substituted for Mr. Kelley in his individual capacity as to Count I.
B. Malpractice,FailuretoTrain,andProfessionalNonfeasance
Because Mr. Lambert’s three claims brought under the FTCA arise out of defamation or
misrepresentation, this Court lacks subject matter jurisdiction and must dismiss them. The United States generally enjoys sovereign immunity, but “[t]he FTCA provides a limited
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sovereign immunity waiver and subject matter jurisdiction for plaintiffs to pursue state law tort claims against the United States.” Milligan v. United States, 670 F.3d 686, 692 (6th Cir. 2012). Under the FTCA, a plaintiff’s suit can proceed against the government “in the same manner and to the same extent as a private individual under the circumstances.” 28 U.S.C. § 2674. And the government’s tort liability is “determined in accordance with the law of the state where the event giving rise to liability occurred.” Milligan, 670 F.3d at 692 (quoting Young v. United States, 71 F.3d 1238, 1242 (6th Cir. 1995)).
There are exceptions to the FTCA though. Under § 2680, sovereign immunity is not waived for intentional torts, including claims “arising out of . . . libel, slander, [or] misrepresentation.” 28 U.S.C. § 2680(h). “If a case falls within the statutory exceptions of 28 U.S.C. § 2680, the court lacks subject matter jurisdiction,” and the case must be dismissed. Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir. 1984). Furthermore, waivers of the United States’ sovereign immunity “must be construed strictly in favor of the sovereign and must not be enlarged beyond what the language requires.” Estate of Smith ex rel. Richardson v. United States, 509 F. App’x 436, 440 (6th Cir. 2012).
Section 2680(h) “thus relieves the Government of tort liability for pecuniary injuries which are wholly attributable to reliance on the Government’s negligent misstatements.” Block v. Neal, 460 U.S. 289, 297 (1983). According to the Neal court, “the essence of an action for misrepresentation, whether negligent or intentional, is the communication of misinformation on which the recipient relies.” Id. at 296. Section 2680 therefore bars actions where the Government’s misstatements are an “essential to the plaintiff’s negligence claim.” Id; see also Dragoiu v. United States, 2013 WL 119995, at *7 (E.D. Mich. Jan 9, 2013) (“Following Neustadt and Neal, circuit courts have held that section 2680(h) bars any claim in which the
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government’s misstatements, either negligently or intentionally made, were ‘essential’ to the plaintiff’s claims.”) (collecting cases).
Mr. Lambert specifically disavows any “causes of action for libel, slander, misrepresentation, defamation, deceit, tortious interference with contract or any other intentional tort.” [R. 12, Amended Complaint, ¶ 94]. Likely knowing that this Court lacks jurisdiction to hear such claims, Mr. Lambert asserts that “[t]hose torts are not alleged in this complaint nor should they be inferred or implied as causes of action.” Id. But a plaintiff cannot “use semantics to recast the substance of the claim so as to avoid a statutory exception.” Milligan, 670 F.3d at 695. In deciding whether a plaintiff’s claim falls within a particular exception, a court “must look to the substance of the claim and not limit . . . review to how the plaintiff pleaded the cause of action.” Id.
The essence of Mr. Lambert’s complaint is not Mr. Kelley’s alleged malpractice, but his communication of misinformation on which the recipient (UT-Battelle and others) relied. Had Mr. Kelley simply delivered his advice to Mr. Lambert and dropped the matter without forwarding his conclusions to others, there would have been no harm. Mr. Lambert made that point clear when he expressly states that he “makes no claim whatsoever of detrimental reliance on Defendant’s erroneous legal opinion.” [R. 19, Page ID 719]. Mr. Lambert’s damages stem from the defendants’ “publication, dissemination, and proclamation of this erroneous legal opinion” that “decimated [Mr. Lambert’s] professional reputation, disparaged [his] integrity, and falsely branded [him] a federal criminal.” [R. 12, Amended Complaint, ¶ 4].
Mr. Lambert’s efforts to recast his intentional tort defamation or misrepresentation claims into a negligence action not barred by § 2680(h) are particularly apparent where he asserts that the defendants “were highly motivated to be grossly negligent in their rendering of a legal
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opinion to Plaintiff based on their animus stemming from Plaintiff’s prior whistleblower reports.”2 [R. 19, Page ID 726]. Mr. Lambert’s malpractice theory merely obfuscates the fact that he is really asserting a defamation or misrepresentation claim. “Because plaintiff’s complaint set[s] forth an intentional tort claim merely sounding in negligence, such claim falls within the exception embodied in § 2680(h),” and should be dismissed. Satterfield v. United States, 788 F.2d 395 (6th Cir. 1986).
C. Privacy Act
In his final claim against the United States, Mr. Lambert contends that the defendants
violated the Privacy Act, which generally prohibits disclosure without an individual’s consent of “any record which is contained in a system of records.” 5 U.S.C. § 552a(b). To state a Privacy Act disclosure claim, a plaintiff must show that: (1) the disclosed information is a record contained within a system of records; (2) the agency improperly disclosed the information; (3) the disclosure was willful or intentional; and (4) the disclosure adversely affected the plaintiff. Doe v. United States Dep’t of Justice, 660 F. Supp. 2d 31, 44-45 (D. D.C. 2009).
A “system of records” for the purposes of the privacy act is “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.” 5 U.S.C. § 552a(a)(5). “A system of records exists only if the information contained within the body of material is both retrievable by personal identifier and actually retrieved by personal identifier.” Paige v. DEA, 665 F.3d 1355, 1359 (D.C. Cir. 2012) (quoting Maydak v. United States, 630 F.3d 166, 178 (D.C. Cir. 2010)) (emphasis in original). Thus, to violate § 552a(b), an
2 The accuracy of Mr. Kelley’s opinion or his motives behind it are not relevant at this stage, where the Court accepts the plaintiff’s facts pled as true. Only relevant here is the idea that the defendants were intentionally negligent—a strange allegation that only makes sense in light of the fact that intentional torts like defamation, libel, or misrepresentation are barred by § 2680(h).
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individual generally must actually retrieve the information in question from the system of records in which it is contained. Id. (quoting Armstrong v. Geithner, 608 F.3d 854, 857 (D.C. Cir. 2010)).
In his complaint, Mr. Lambert identifies two pieces of disclosed information that he believes meet the “record contained within a system of records” requirement: (1) Mr. Kelley’s legal opinion and (2) the “allegations and investigative results” of the FBI and DOJ’s inquiry into whether Mr. Lambert violated § 207(c). While he has no actual evidence that Mr. Kelley’s legal opinion is stored within a system of records, Mr. Lambert concludes that “it is highly probable” that the opinion is memorialized in the FBI and DOJ records system because the Code of Federal Regulations requires designated ethics officials to keep records on advice rendered. 5 C.F.R. § 2638.203(b)(8). Mr. Lambert also assumes that the DOJ and FBI must have kept some sort of records on their investigation into his purported § 207(c) violation because the DOJ and FBI generally keep such records.
Even giving Mr. Lambert the benefit of the doubt, and not requiring he allege facts in support of these assumptions, his Privacy Act claim still lacks any allegation of actual retrieval of those records. As mentioned above, a Privacy Act claim must allege that an individual actually retrieved the information in question from the system of records in which it was contained. The disclosure of information “acquired from non-record sources—such as observation, office emails, discussions with co-workers and the ‘rumor mill’—does not violate the Privacy Act . . . , even if the information disclosed is also contained in agency records.” Cloonan v. Holder, 768 F. Supp 2d 154, 164 (D. D.C. 2011). There is no allegation that Mr. Kelley retrieved his email from a system of records before disclosing it to others at the FBI, DOJ, and UT-Battelle. Likewise, there is no allegation of anyone retrieving a record by personal
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identifier relating to the FBI and DOJ’s investigation into Mr. Lambert. With no facts supporting the allegation that the disclosed information was indexed and later retrieved by name or personal identifier, Mr. Lambert’s Privacy Act claim cannot survive a motion to dismiss.
IV.
For the foregoing reasons, the United States’ motion to dismiss [R. 14] is Granted.
Counts I-IV of the plaintiff’s amended complaint are dismissed. The plaintiff’s motion for leave to file a supplemental brief or sur-reply [R. 24] is Denied.
IT IS SO ORDERED.
DXer said
Former F.B.I. Agent Sues, Claiming Retaliation Over Misgivings in Anthrax Case
By SCOTT SHANEAPRIL 8, 2015
In a lawsuit filed in federal court in Tennessee last Thursday, Mr. Lambert accused the bureau of trying “to railroad the prosecution of Ivins” and, after his suicide, creating “an elaborate perception management campaign” to bolster its claim that he was guilty.
DXer said
On July 6, 2006, Richard Lambert provided a whistleblower report of mismanagement to FBI’s Deputy DIrector. His whistleblowing complaints, both written and oral, included “the FBI’s fingering of Bruce Ivins as the anthrax mailer” and “the FBI’s subsequent efforts to railroad the prosecution of Ivins in the face of daunting exculpatory evidence.”
For example, he addressed the FBI’s Laboratory’s refusal to provide timely and adequate scientific analyses and forensic examinations in support of the investigation. He notes the “WFO’s diversion and transfer of two Ph.D. Microbiologist Agents from their key roles in the investigation to fill billets for an 18 month Arabic language training program in Israel. He alleges that Defendant Kelley erroneously found that OSHA regulations precluded the Task Force’s collection of evidence in overseas venues.
And remember that book where David Willman channeled the views of the Amerithrax investigators and their “Ivins Theory”? Well, he objected to the FBI ordering him not to speak to “60 Minutes” or to author WIllman.
Plaintiff Lambert alleges: “Defendants DOJ and FBI crafted an elaborate perception management campaign to bolster their assertion of Ivins’ guilt.”
DXer said
Excerpts:
5. This complaint further details how Defendants’ derelict failure to perform their mandated legal duties to Plaintiff was driven by Defendants’ blinding animus toward Plaintiff for Plaintiff’s prior whistleblower reports of FBI and DOJ mismanagement of the FBI’s investigation into the anthrax attacks of 2001 (code named “AMERITHRAX”).
From pages 23 to 25:
“50. In the fall of 2001, following the 9/11 attacks, a series of anthrax mailings occurred which killed five Americans and sickened 17 others. Four anthrax-laden envelopes were recovered which were addressed to two news media outlets in New York City (the New York Post and Tom Brokaw at NBC) and two senators in Washington D.C. (Patrick Leahy and Tom Daschle). The anthrax letters addressed to New York were mailed on September 18, 2001, just seven days after the 9/11 attacks. The letters addressed to the senators were mailed 21 days later on October 9, 2001. A fifth mailing of anthrax is believed to have been directed to American Media, Inc. (AMI) in Boca Raton, Florida based upon the death of one AMI employee from anthrax poisoning and heavy spore contamination in the building.
51. Executive management at FBI Headquarters assigned responsibility for the anthrax investigation (code named “AMERITHRAX”) to the Washington Field Office (WFO), dubbing it the single most important case in the FBI at that time.
52. In October 2002, in the wake of surging media criticism, White House impatience with a seeming lack of investigative progress by WFO, and a concerned Congress that was considering revoking the FBI’s charter to investigate terrorism cases, Defendant FBI Director Mueller reassigned Plaintiff from the FBI’s San Diego Field Office to the Inspection Division at FBI Headquarters and placed Plaintiff in charge of the AMERITHRAX case as an “Inspector.”While leading the investigation for the next four years, Plaintiff’s efforts to advance the case met with intransigence from WFO’s executive management, apathy and error from the FBI Laboratory, politically motivated communication embargos from FBI Headquarters, and yet another preceding and equally erroneous legal opinion from Defendant Kelley – all of which greatly obstructed and impeded the investigation.
53. On July 6, 2006, Plaintiff provided a whistleblower report of mismanagement to the FBI’s Deputy Director pursuant to Title 5, United States Code, Section 2303. Reports of mismanagement conveyed in writing and orally included: (a) WFO’s persistent understaffing of the AMERITHRAX investigation; (b) the threat of WFO’s Agent in charge to retaliate if Plaintiff disclosed the understaffing to FBI Headquarters; (c) WFO’s insistence on staffing the AMERITHRAX investigation principally with new Agents recently graduated from the FBI Academy resulting in an average investigative tenure of 18 months with 12 of 20 Agents assigned to the case having no prior investigative experience at all; (d) WFO’s eviction of the AMERITHRAX Task Force from the WFO building in downtown Washington and its relegation to Tysons Corner, Virginia to free up space for Attorney General Ashcroft’s new pornography squads; (e) FBI Director’s Mueller’s mandate to Plaintiff to “compartmentalize” the AMERITHRAX investigation by stove piping the flow of case information and walling off task force members from those aspects of the case not specifically assigned to them – a move intended to stem the tide of anonymous media leaks by government officials regarding details of the investigation. This sequestration edict decimated morale and proved unnecessary in light of subsequent civil litigation which established that the media leaks were attributable to the United States Attorney for the District of the District of Columbia and to a Supervisory Special Agent in the FBI’s National Press Office, not to investigators on the AMERITHRAX Task Force; (f) WFO’s diversion and transfer of two Ph.D. Microbiologist Special Agents from their key roles in the investigation to fill billets for an 18 month Arabic language training program in Israel; (g) the FBI Laboratory’s deliberate concealment from the Task Force of its discovery of human DNA on the anthrax-laden envelope addressed to Senator Leahy and the Lab’s initial refusal to perform comparison testing; (h) the FBI Laboratory’s refusal to provide timely and adequate scientific analyses and forensic examinations in support of the investigation; (i) Defendant Kelley’s erroneous and subsequently quashed legal opinion that regulations of the Occupational Safety and Health Administration (OSHA) precluded the Task Force’s collection of evidence in overseas venues; (j) the FBI’s fingering of Bruce Ivins as the anthrax mailer; and, (k) the FBI’s subsequent efforts to railroad the prosecution of Ivins in the face of daunting exculpatory evidence. Following the announcement of its circumstantial case against Ivins, Defendants DOJ and FBI crafted an elaborate perception management campaign to bolster their assertion of Ivins’ guilt. These efforts included press conferences and highly selective evidentiary presentations which were replete with material omissions. Plaintiff further objected to the FBI’s ordering of Plaintiff not to speak with the staff of the CBS television news magazine 60 Minutes or investigative journalist David Willman, after both requested authorization to interview Plaintiff.
54. In April 2008, some of Plaintiff’s foregoing whistleblower reports were profiled on the CBS television show 60 Minutes. This 60 Minutes segment was critical of FBI executive management’s handling of the AMERITHRAX investigation, resulting in the agency’s embarrassment and the introduction of legislative bills calling for the establishment of
congressional inquiries and special commissions to examine these issues – a level of scrutiny the FBI’s Ivins attribution could not withstand.
55. After leaving the AMERITHRAX investigation in 2006, Plaintiff continued to publicly opine that the quantum of circumstantial evidence against Bruce Ivins was not adequate to satisfy the proof-beyond-a-reasonable doubt threshold required to secure a criminal conviction in federal court. Plaintiff continued to advocate that while Bruce Ivins may have been the anthrax mailer, there is a wealth of exculpatory evidence to the contrary which the FBI continues to conceal from Congress and the American people. The FBI vehemently opposes Plaintiff’s position.”
DXer said
FBI official leading anthrax probe off the case
NBC | 9/19/06 | Jim Popkin
Posted on 9/20/2006, 3:37:05 PM by TrebleRebel
Agency says it remains committed to solving the 5-year-old mystery
WASHINGTON – The top FBI official in charge of the investigation into the deadly anthrax attacks has left the case, NBC News has learned. Richard “Rick” Lambert had been the inspector of the so-called AMERITHRAX case since September 2002, and had run every aspect of the five-year-old investigation. Just last month, he was transferred to the Knoxville, Tenn., field office of the FBI as its special agent in charge, according to the FBI.
Lambert was the public face of the case, and his transfer is sure to fuel speculation that the massive investigation has stalled. No one has been arrested, five years after the first anthrax-laden envelopes were mailed from a New Jersey post office, and officials familiar with the case tell NBC News that no criminal charges are expected to be filed anytime soon.
Lambert was not available for comment Monday, but an FBI official tells NBC it’s unfair to read too much into his transfer. The case “is not stuck in the mud,” the FBI official says, adding that it’s standard practice in the FBI to rotate senior officials on and off major cases. (A series of senior FBI agents ran other high-profile investigations, including the hunts for serial bomber Eric Rudolph and the Unabomber, “Ted” Kaczynski.)
Later Monday, the FBI plans to issue a press statement stating that hard work on the case continues. The FBI will say that it is one of the largest, most complex cases in its history and the the FBI is “committed to solving the case.”
DXer said
In his federal court filing, former lead Amerithrax investigator Richard Lambert alleges that his reports of mismanagement included WFO’s insistence on staffing AMERITHRAX principally with new Agents recently graduated from the FBI Academy resulting in an average investigative expenence of 18 months with 12 of 20 Agents assigned to the case having no prior investigative experience at all.
DXer said
Former lead Amerithrax Investigator alleges in court filing that the FBI Lab deliberately concealed from the Task Force its discovery of human DNA on the anthrax letter to Senator Leahy. (para. 53)
DXer said
The lead Amerithrax investigation Richard Lambert, after leaving the investigation in 2006, continued to advocate that there is a wealth of evidence exculpatory of Bruce Ivins which the FBI continues to conceal from Congress and the American people. See Complaint, para. 55.
Senator Grassley should obtain the 2006 witness reports and the wealth of exculpatory evidence should be disclosed.
DXer said
By KEVIN LESSMILLER
http://www.courthousenews.com/2015/04/07/former-agent-says-fbi-memo-cost-him-new-job.htm
(CN) – A former FBI agent claims in a lawsuit that he was fired by his new employer because the agency published a legal opinion falsely accusing him of breaking the law.
Richard Lambert sued Attorney General Eric Holder, former FBI Director Robert Mueller, the Justice Department, the FBI, FBI employee Patrick Kelley and unknown Justice Department and FBI employees for legal malpractice and violations of the Federal Tort Claims Act and Privacy Act.
Lambert was fired from his job as the senior counterintelligence officer for the U.S. Department of Energy’s Oak Ridge, Tenn. field office because Kelley and others falsely accused him of violating a post-employment requirement to not speak with colleagues, according to the lawsuit.
Lambert retired in 2012 from his job as the FBI’s special agent in charge of the Knoxville division after 24 years, the complaint says. In his new job, Lambert often communicated with local FBI officials.
Kelley accused Lambert in a Nov. 8, 2012, legal opinion of violating a one-year “cooling off” criminal provision, which says Lambert cannot talk to FBI employees for a year after leaving, the lawsuit says.
“In response to defendant Kelley’s continuing and ongoing propagation of his erroneous legal opinion, plaintiff self-reported Kelley’s conflict of interest allegations to both the United States Attorney for the Eastern District of Tennessee and to the FBI Office of Professional Responsibilities at FBI headquarters,” the complaint states. “Both entities deemed defendant Kelley’s legal opinion to be meritless.”
The Energy Department and contractor UT-Battelle LLC fired Lambert in June 2013 as a result of the legal opinion that suggested he committed a crime, the lawsuit states.
Lambert says part of the reason he was unfairly targeted was due to a whistleblower report he filed in 2006 about the mismanagement of an investigation into 2001 anthrax letters.
“In April 2008, some of plaintiff’s foregoing whistleblower reports were profiled on the CBS television show 60 Minutes,” the complaint states. “This 60 Minutes segment was critical of FBI executive management’s handling of the Amerithrax investigation, resulting in the agency’s embarrassment and the introduction of legislative bills calling for the establishment of congressional inquiries and special commissions to examine these issues.”
Lambert notes that federal law protects current FBI employees from whistleblower retaliation but does not protect employees after they leave. He says the agency was waiting for his retirement from the FBI to release Kelley’s legal opinion.
“Defendants waited patiently for plaintiff’s retirement and then wielded a grossly negligent and erroneous interpretation of the conflict of interest statute as a blunt instrument of retaliation,” Lambert claims in the lawsuit. “Seemingly drunk with blood lust and blinded by animus, defendants failed to discern that the platter on which they sought to serve plaintiff’s head was illusory – a factually unfounded and wholly meritless legal opinion.”
As a pro se plaintiff, Lambert represents himself. He seeks $2.4 million plus punitive damages.
DXer said
http://www.fbi.gov/about-us/executives/kelley
Patrick W. Kelley – Chief Compliance Officer, Office of Integrity and Compliance
Prior to joining the FBI in 1994, Patrick W. Kelley served for 21 years in the U.S. Navy as a member of the Judge Advocate General’s Corps. He began his career in the Navy in 1973 as the Station Judge Advocate at Naval Air Station, Moffett Field California. He served there until 1977 when he was transferred to Naval Base, Yokosuka, Japan, where he was a prosecutor and international law officer. In 1981, Mr. Kelley was promoted and transferred to the Naval Justice School, Newport, Rhode Island, where he served as an instructor until 1983. The Navy selected Mr. Kelley for post-graduate schooling in Philadelphia, Pennsylvania, and then sent him to the Office of the Judge Advocate General in Washington, D.C., to serve as the head of the Standards of Conduct and Legislation Branches. Mr. Kelley was promoted again and selected to serve as the Commanding Officer of Naval Legal Service Office, Groton, Connecticut, in 1988. In 1991, Mr. Kelley was promoted to the rank of Captain (O-6) and transferred to the Pentagon where he finished his naval career as the Deputy Assistant Judge Advocate General for Administrative Law.
After retiring from the Navy in 1994, Mr. Kelley joined the FBI Office of General Counsel (OGC) as an attorney-advisor in the Administrative Law Unit. He was selected as unit chief of that unit in 1995. Three years later, Mr. Kelley was promoted to the Senior Executive Service. As a deputy general counsel, Mr. Kelley led the General Law and Legal Training Branch. He also served as the OGC Chief of Staff, the FBI Component Designated Agency Ethics Official, and Senior Privacy Officer. In the summer of 2007, Mr. Kelley was asked to lead the newly created Office of Integrity and Compliance, where he currently serves.
Mr. Kelley holds a Bachelors of Science degree from Michigan State University, a Juris Doctor degree from Duke University, a Masters of Law degree from the University of Pennsylvania, and a Masters of Business Administration degree from George Washington University. He was given a Legion of Merit medal by the Navy in 1994 and a Meritorious Executive award by the FBI in 2003.
DXer said
2011 Oak Ridge Emergency Management Forum
“Ten Years After 9/11…Changes in America”
Security/Emergency Management Challenges in
the Next Ten Years
Richard L. Lambert Jr., Special Agent in Charge
Federal Bureau of Investigation
Knoxville Division
…
Richard L. “Rick” Lambert, a native of the State of Texas, entered on duty with the Federal Bureau of Investigation (FBI) as a Special Agent in 1988. He first served in the St. Louis Division where he conducted violent crime and white collar crime investigations.
In 1992, Rick was promoted to the position of Supervisory Special Agent (SSA) in the Legal Counsel Division at FBI Headquarters in Washington, D.C., where he provided legal representation in the Civil Litigation Unit and Employment Law Unit. In 1995, Rick was appointed to the position of SSA in the From 1996 to 1999, Rick served as an SSA in the Norfolk Field Office where he led an Organized Crime/Drug Squad in dismantling an outlaw motorcycle gang and Jamaican drug trafficking enterprise.
In 1999, Rick was named an Assistant Inspector/Team Leader in the Inspection Division at FBI Headquarters where he led several inspection teams in evaluating the effectiveness and efficiency of various field office investigative programs.
Rick was assigned as an Assistant Special Agent in Charge of the San Diego Field Office in 2000 where he managed the Foreign Counterintelligence and Counterterrorism Programs, including oversight of the Joint
Terrorism Task Force and coordination of the field office’s investigation of the terrorist attacks of 9/11.
In 2002, Rick was appointed to the position of Inspector and detailed to the Washington Field Office to lead the FBI’s investigation into the anthrax attacks of 2001. Rick was appointed Special Agent in Charge of the
Knoxville Field Office in June 2006. Rick holds a Bachelor of Arts degree in English and a Master of Arts degree in Political Science from Midwestern State University, a Master’s degree in Public Administration and a Juris Doctor from the University of
Houston, and a Master’s degree in Business Administration from the n Uiversity of
Tennessee. He is a member of the Texas Bar.
Security/Emergency Management Challenges in the Next Ten Years
Future Trends in International Terrorism
On the meaning of the death of Usama bin Laden
On the impact of the death of Usama bin Laden
An overview of how terrorism has evolved over the last ten years
An overview on what the future may hold
in store for America and for Americans
Anthrax, Al Qaeda and the Infiltration of US Biodefense
http://www.amerithrax.wordpress.com
DXer said
Former Head of FBI’s Knoxville Office Sues Bureau, Justice Department
Steve Neavling
http://www.ticklethewire.com/2015/04/07/former-head-of-fbis-knoxville-office-sues-bureau-justice-department/
***
“Richard Lambert, a 24-year veteran of the FBI and former special agent in charge of the Knoxville office, claims that his office was raided and false rumors were spread about him.
“Due to the notoriety and stigma surrounding defendants’ erroneous legal opinion and its plain implication that he is a federal felon, Mr. Lambert is currently unemployed and unemployable,” Lambert wrote in the lawsuit.
ORNL spokesman David Keim declined to comment Monday.
At issue is whether Lambert violated a law that “makes it a crime for a former government worker to ‘communicate’ with his or her former co-workers for one year after leaving his or her post ‘with the intent to influence official action,’” the Sentinel wrote.
Lambert was also a key FBI investigator for a while in the anthrax mailings after 9/11. He was one of the investigators who strongly believed that scientist Steven Hatfill was behind the mailings. Hatfill successfully sued the government for trying to pin the mailings on him, and leaking information about the case to the press.
Eventually, the FBI decided Hatfill was not the guy, and investigators turned their attention on scientist Bruce Edwards Ivins, who committed suicide before he could be charged.
Richard Lambert, a 24-year veteran of the FBI and former special agent in charge of the Knoxville office, claims that his office was raided and false rumors were spread about him.
“Due to the notoriety and stigma surrounding defendants’ erroneous legal opinion and its plain implication that he is a federal felon, Mr. Lambert is currently unemployed and unemployable,” Lambert wrote in the lawsuit.
ORNL spokesman David Keim declined to comment Monday.
At issue is whether Lambert violated a law that “makes it a crime for a former government worker to ‘communicate’ with his or her former co-workers for one year after leaving his or her post ‘with the intent to influence official action,’” the Sentinel wrote.
Lambert was also a key FBI investigator for a while in the anthrax mailings after 9/11. He was one of the investigators who strongly believed that scientist Steven Hatfill was behind the mailings. Hatfill successfully sued the government for trying to pin the mailings on him, and leaking information about the case to the press.
Eventually, the FBI decided Hatfill was not the guy, and investigators turned their attention on scientist Bruce Edwards Ivins, who committed suicide before he could be charged.”
DXer said
Forgive my errant posting of “Hodgins: The King of the Lab.” I am trying to persuade my local science museum to name their new hedgehog Hodgins and I mistakenly posted the URL here.
DXer said
Agent Lambert’s successor:
FBI Announces Kenneth L. Moore New Special Agent in Charge of Knoxville Division
http://www.ticklethewire.com/2012/05/08/fbi-announces-kenneth-l-moore-new-special-agent-in-charge-of-knoxville-division/
Kenneth L. Moore has been appointed special agent in charge of the FBI’s Knoxville Division, the FBI announced in a press release. Moore has served as chief inspector in the FBI’s Inspection Division* at FBI Headquarters since April 2011.
Moore’s career began in 1987 in Little Rock. He later went on to …. serving as on-scene commander for FBI operations in Afghanistan, where he was responsible for all deployed FBI personnel and assets.
Moore was promoted into the FBI’s Senior Executive Service as an inspector in the Office of Inspections in 2009, leading to his most recent post as chief inspector.
He replaces Richard Lambert, who retired in March. Lambert once headed the FBI probe into the anthrax attacks.
______
*/ The Inspection Division
08/29/2014
http://www.fbi.gov/news/podcasts/thisweek/the-inspection-division.mp3/view
Mollie Halpern: The FBI ensures it preserves the integrity of its investigative, financial, and administrative programs through its Inspection Division.
Tracy Paige: The standard that we hold ourselves to should be unimpeachable.
Halpern: The FBI has self-imposed policy and guidelines for conducting investigations and operations—all while protecting civil rights. The internal policies and guidelines often hold us to a stricter standard than what the Department of Justice mandates by law. The InspectionDivision makes sure the FBI works within all of the set parameters in a transparent, fair and impartial process. Section Chief Tracy Paige says holding ourselves accountable is who we are as an organization.
Paige: Every FBI employee takes an oath to uphold and defend the Constitution, and we take that seriously—and we want to ensure that all our employees continue to do so—so we maintain the integrity we have had through the last hundred years.
Halpern: From FBI Headquarters, I’m Mollie Halpern of the Bureau with FBI, This Week.
DXer said
former Amerithrax lead investigator Richard Lambert … “compartmentalization within the Amerithrax task force would inhibit our ability to connect the dots … among the three squads investigating the case.”
Posted by Lew Weinstein on October 17, 2009