Evan Vucci/AP

Group Says Biden Administration Is Firing a Whistleblower Using Revoked Trump Rules

The firing would be a "violation of the president's directive," employee argues.

An employee advocacy group is accusing the Biden administration of failing to follow through on its promise to reverse a Trump-era initiative aimed at making it easier to fire federal workers, instead using the nullified policy to dismiss a whistleblower. 

Walter Loewen, a planning and environmental coordinator at the Bureau of Land Management, is facing a proposed removal after the agency said he performed inadequately. The dismissal, which is pending a final signoff from BLM management, follows Loewen raising concerns about a large and controversial oil and gas project on 1.5 million acres of federal land in Wyoming. Loewen and Public Employees for Environmental Responsibility, the group representing him, said that timing is not a coincidence. Then-Interior Secretary David Bernhardt gave the project final approval just weeks before President Biden took office. 

Loewen has spent 16 years—six at BLM—conducting environmental assessments and environmental impact studies on projects like the one in Converse County, Wyoming, as required by the 1970 National Environmental Protection Act. Less than one week after Loewen elevated to management concerns that the project would negatively impact several species of birds, including a sensitive species, he was removed from it and all specific NEPA projects. Instead, Loewen was assigned primarily what he called “busywork,” such as rewriting guidance that management knew would soon be moot because headquarters was in the process of writing new policies.

Several months after he was stripped of his normal duties, Loewen’s supervisor, who assumed that role shortly before his change in work, issued a “notice of opportunity to demonstrate acceptable performance” that gave him 30 days to improve. The notice was given under a provision of an executive order President Trump issued in 2018 that attempted to ease and hasten the process by which agencies could fire federal workers. The supervisor took issue with the quality of the work on the tasks she assigned to Loewen in that period, though she did not propose his removal until last month. BLM followed through on the process despite Biden's action repealing Trump’s order on his third day in office and instructing agencies to revoke changes to their policies made under its authority. 

Loewen said the series of events began in what appeared to be retaliation against him for blowing the whistle on potential negative impacts of the oil and gas project. The Trump administration prioritized opening up federal lands for such development.   

“I haven’t changed in 16 years,” Loewen said. “Since [my supervisor] cannot give me specifics of why that occurred, the only thing I can conclude is my comments regarding Converse County were not received well.” 

BLM declined to comment on the specifics of Loewen’s case or to answer about whether it was still using the nullified removal process created by Trump’s order. 

Further complicating the agency’s action, the official making a final determination on Loewen’s firing is Duane Spencer, the acting associate state director in Wyoming who gave initial approval for the Converse County project over Loewen’s objections. PEER said that creates a conflict of interest and someone else should serve as the deciding official. The project has faced pushback for its potential pollution and other environmental impacts, in addition to its impact on species in the area. 

In its reply to the proposed removal, PEER faulted BLM for failing to give Loewen a performance improvement plan. Such an approach would have been typical prior to Trump’s order, it argued, and would have given Loewen more time to demonstrate improvement. PEER included a declaration from a BLM biologist, who backed up Loewen’s side of events and said he always knew his colleague to be a dedicated and hard worker. It also criticized BLM for failing to adhere to Biden administration policy. Biden’s order took effect immediately, though the Office of Personnel Management only issued implementation guidance, which largely focused on the collective bargaining side of things, earlier this month.   

“Maintaining this [notice of proposed removal] based on an agency action that President Biden had ordered suspended before the date of the NPR is a violation of the president’s directive,” wrote Peter Jenkins, the PEER attorney representing Loewen. He accused BLM of holding Loewen to an impossible, “nit-picking” standard that if applied to everyone at Interior would leave it without NEPA practitioners. “Federal employees are not judged based on pedantic requirements placed on superfluous work, but on their performance of duties in their [position description].” 

Loewen, who documented all adequate and above performance reviews at BLM up until his whistleblowing, remains in his job conducting “busywork” even as he said he has faced pressure to leave. He and PEER are prepared to file an appeal to the Merit Systems Protection Board if BLM follows through on firing him. In the meantime, he said, he will continue to do his best. 

“I did try to do an excellent job on all my work because that’s what I do,” Loewen said. “It doesn’t matter if it is considered busywork.”