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31 October 2003. Thanks to G.
Initial news report: http://sanantonio.bizjournals.com/sanantonio/stories/2003/10/13/story1.html
Federal judge seals records alleging FBI's involvement in international spy business
By Bill Conroy
San Antonio Business Journal
A judge in federal court in Sacramento has issued an order sealing previously public court documents in a sensational case that involves a former FBI agent who claims he worked as an international spy for the Bureau.
Former FBI agent Lok Thye Lau alleges he worked for the Bureau as a deep undercover agent overseas in the late 1980s. Lau contends the work was of such a stressful and horrific nature that it caused him permanent psychological damage, yet he says the FBI has refused to provide him with the necessary security clearances to pursue proper treatment.
The FBI paints a different picture of Lau. The Bureau claims Lau is a liar and a petty thief.
However, Lau contends the bureau doesn't want the real story to come out. He alleges the FBI went out of its way to set him up to fail, leading to him being fired in 2000 in the wake of an alleged shoplifting incident. Since then, Lau has been fighting to prove that he was hung out to dry by the FBI because he now knows too much.
The remarkable revelations made by Lau are supported by court records and reams of Freedom of Information Act documents. However, on Oct. 10, U.S. District Court Judge Garland E. Burrell in Sacramento issued an order to seal documents filed in Lau's case. Those papers detail Lau's FBI career and reveal that he conducted undercover work overseas "against hostile and aggressive foreign powers for years."
Specifically, Judge Burrell ordered that a previously public declaration filed in Lau's case be sealed. The judge also ordered the sealing of pleadings in a friend-of-the-court brief filed on Lau's behalf by the League of United Latin American Citizens (LULAC), one of the nation's oldest Hispanic civil-rights groups. [Declaration and Amicus copied below.]
Prior to the judge's ordering the court records sealed, the San Antonio Business Journal had already published a story based on the previously public documents.
The court and FOIA records in Lau's case indicate that the FBI got involved in the spy business at least a decade before 9/11. Although Lau can't discuss the specific nature of his past covert foreign assignment, there are plenty of indications in the public record that point to the likely target country's being China.
This story has major ramifications, both internationally and in the context of the current CIA-related spy scandal plaguing the Bush administration. The sealing of the court records also raises the specter of government censorship in this case.
Lau's case is filed in U.S. District Court in California - Eastern District (2:02-CV-390 USDC California Eastern).
|Docket as of October 21, 2003 9:05 pm||Web PACER (v2.3)|
LOK THYE LAU Patricia Tsubokawa Reeves plaintiff [term 08/13/03] 19164981874 [COR LD NTC] Reeves and Associates 1215 18th Street Sacramento, CA 95814-4112 916-498-4112 FTS 498-1874 Antonio V Silva PRO HAC VICE [COR LD NTC] 2616 Montana Avenue El Paso, TX 79903 915-564-5444 George F Allen [COR LD NTC] Law Offices of George F Allen 2126 K Street Sacramento, CA 95816 916-444-8765 FTS 444-1983 v. JOHN ASHCROFT, Attorney Kristin Sudhoff Door General [COR LD NTC] defendant United States Attorney 501 I Street Suite 10-100 Sacramento, CA 95814 916-554-2700 ATTORNEY GENERAL FOR THE STATE Kristin Sudhoff Door OF CALIFORNIA [term 05/10/02] defendant (See above) [term 05/10/02] [COR LD NTC] D STREBEL PIERCE, individually Kristin Sudhoff Door defendant [term 05/10/02] [term 05/10/02] (See above) [COR LD NTC] JAMES MADDOCK, individually Kristin Sudhoff Door defendant [term 05/10/02] [term 05/10/02] (See above) [COR LD NTC] MICHAEL DEFEO, individually Kristin Sudhoff Door defendant [term 05/10/02] [term 05/10/02] (See above) [COR LD NTC] FEDERAL BUREAU OF Kristin Sudhoff Door INVESTIGATION [term 05/10/02] defendant (See above) [term 05/10/02] [COR LD NTC]
2/21/02 1 COMPLAINT for Damages, Declaratory and Injunctive Relief; jury demand, fee status paid, receipt # 2638, assigned to Judge Garland E. Burrell referred to Magistrate Judge Gregory G. Hollows (sk) [Entry date 02/22/02]
2/21/02 2 ORDER setting scheduling conference for 9:00 5/6/02 before Judge Garland E. Burrell (sk) [Entry date 02/22/02]
3/29/02 3 RETURN OF SERVICE executed upon defendant John Ashcroft on 3/1/02 (sk) [Entry date 04/01/02]
3/29/02 4 RETURN OF SERVICE executed upon defendant FBI on 3/1/02 (sk) [Entry date 04/01/02]
3/29/02 5 RETURN OF SERVICE executed upon defendant James Maddock on 2/26/02 (sk) [Entry date 04/01/02]
3/29/02 6 RETURN OF SERVICE executed on 3/1/02 serviced upon US Attorney's Office (sk) [Entry date 04/01/02]
4/5/02 7 RETURN OF SERVICE executed upon defendant John Ashcroft on 2/25/02 (sk) [Entry date 04/08/02]
4/5/02 8 RETURN OF SERVICE executed upon defendant Michael DeFeo on 3/29/02 (sk) [Entry date 04/08/02]
4/5/02 9 RETURN OF SERVICE executed upon defendant D Strebel Pierce on 3/29/02 (sk) [Entry date 04/08/02]
4/5/02 10 RETURN OF SERVICE executed upon defendant James Maddock on 2/26/02 (sk) [Entry date 04/08/02]
4/5/02 11 RETURN OF SERVICE executed upon defendant FBI on 3/8/02 (sk) [Entry date 04/08/02]
4/22/02 12 JOINT STATUS REPORT (daw) [Entry date 04/23/02]
4/25/02 13 STATUS ORDER by Judge Garland E. Burrell ORDERING status conference VACATED 4/25/02; discovery ddl set for 8/6/03; plaintiff's expert disclosure set for 3/6/03; defendants expert disclosure set for 04/03/03; motion hearing set for 9:00 10/6/03; final pretrial conference set for 2:30 12/15/03 and trial set for 9:00 3/9/04; defendant Pierce must be served by 06/18/02, proof of service must be filed by 4:00 06/18/02; joint pretrial status report must be filed 7 days prior to the final pretrial conference (cc: all counsel) (dd) [Entry date 04/25/02] [Edit date 04/25/02]
4/25/02 14 ANSWER by defendant John Ashcroft to complaint [1-1] (daw) [Entry date 04/26/02]
5/10/02 15 STIPULATION dismissing all dfts except John Ashcroft (kdc) [Entry date 05/13/02]
7/1/02 16 NOTICE by plaintiff Lok Thye Lau of association of attorney Antonio Silva from Texas; called attorney and explained pro hac vice application procedure (seal) [Entry date 07/02/02]
3/6/03 17 DISCLOSURE of expert witnesses by defendant John Ashcroft (kdc) [Entry date 03/07/03]
3/7/03 18 DISCLOSURE of expert witnesses by plaintiff Lok Thye Lau (kdc) [Entry date 03/10/03]
6/27/03 -- LODGED ex parte application to modify status (pretrial scheduling) order; Declaration of Kristin S. Door; and order by defendant John Ashcroft (mdp) [Entry date 06/30/03]
7/7/03 19 ORDER by Judge Garland E. Burrell ORDERING dft's ex parte application to modify the Rule 16 scheduling order is DENIED (cc: all counsel) (kdc) [Entry date 07/07/03]
7/7/03 -- LODGED Document: ex parte application to modify scheduling order NOT TO BE SIGNED PER JUDGE (kdc) [Entry date 07/07/03]
7/15/03 20 RESPONSE by plaintiff Lok Thye Lau to ex parte application to modify status order (kdc) [Entry date 07/16/03]
7/31/03 -- LODGED motion to allow expert witness report disclosure and application to modify status order; declarations of Lok T Lau and Antonio V Silva by plaintiff Lok Thye Lau (kdc) [Entry date 08/01/03]
8/4/03 -- LODGED substition of attys by plaintiff (ak) [Entry date 08/05/03]
8/5/03 -- LODGED Document: lodged motion to allow expert witness report disclosure lodged on 8/4/03 (NOT TO BE SIGNED PER JUDGE) (kdc) [Entry date 08/06/03]
8/6/03 21 ORDER by Judge Garland E. Burrell ORDERING motion lodged on 7/31/03 is STRICKEN since Mr Silva has not complied with the pro hac vice application requirement of this court (cc: all counsel) (kdc) [Entry date 08/06/03]
8/6/03 22 LETTER to court from counsel for defendant John Ashcroft notifying the court that attorney Antonio Silva is not authorized to practice before this court (kdc) [Entry date 08/06/03]
8/11/03 -- LODGED Pro Hac Vice applicaiton by plaintiff Lok Thye Lau (fee paid #5285) (sk) [Entry date 08/12/03]
8/11/03 23 LETTER to court from attorney Antonio V Silva regarding his license to practice law (mdk) [Entry date 08/12/03]
8/13/03 24 ORDER by Judge Garland E. Burrell ORDERING attorney Antonio V Silva added for plaintiff Lok Thye Lau PRO HAC VICE (cc: all counsel) (kdc) [Entry date 08/13/03]
8/13/03 25 ORDER by Judge Garland E. Burrell ORDERING substitution of attorney GRANTED withdrawing attorney Patricia Tsubokawa Reeves for Lok Thye Lau and substituting attorney George F Allen (cc: all counsel) (kdc) [Entry date 08/13/03]
8/18/03 26 MAIL returned [24-2] addressed to George F Allen attorney for plaintiff Lok Thye Lau: "not at this address" (kdc) [Entry date 08/19/03]
8/20/03 -- RESERVICE of DOCUMENT(S) Substitution of Attorney [25-2] addressed to counsel for plaintiff Lok Thye Lau (daw) [Entry date 08/20/03]
8/20/03 -- RESERVICE of DOCUMENT(S) Status Order [13-2] addressed to counsel for plaintiff Lok Thye Lau (daw) [Entry date 08/20/03]
8/22/03 27 MAIL returned [25-1] addressed to plaintiff Lok Thye Lau's counsel of record George F Allen @ 1214 F Street Sacramento CA 95815; Not deliverable as addressed (lm) [Entry date 08/25/03]
9/2/03 -- RESERVICE of DOCUMENT(S) [24-1], [24-2] addressed to plaintiff Lok Thye Lau, defendant John Ashcroft (attorney George F Allen's address not updated-A/M notified) (kdc) [Entry date 09/02/03]
9/3/03 28 NOTICE OF MOTION AND MOTION to dismiss case by defendant John Ashcroft, or in the alternative, for summary judgment by defendant John Ashcroft motion TO BE HEARD by Judge Garland E. Burrell, Motion Hearing Set For 9:00 10/6/03 (kdc) [Entry date 09/04/03]
9/3/03 29 BRIEF by defendant John Ashcroft in support of motion to dismiss or in the alternative, for summary judgment [28-1], [28-2] (kdc) [Entry date 09/04/03]
9/3/03 30 APPENDIX OF EVIDENCE by defendant John Ashcroft in support of motion to dismiss or in the alternative, summary judgment [28-1], [28-2] (kdc) [Entry date 09/04/03]
9/15/03 31 NOTICE OF MOTION AND MOTION to extend expert witness disclosure time and modify status order by plaintiff Lok Thye Lau motion TO BE HEARD by Judge Garland E. Burrell; Motion Hearing Set For 9:00 10/20/03 (kdc) [Entry date 09/16/03]
9/15/03 -- LODGED memorandum of points and authorities in support of pltf's motion to extend expert witness disclosure and order by plaintiff Lok Thye Lau (kdc) [Entry date 09/16/03]
9/22/03 32 OPPOSITION by defendant Attorney General CA to pltf's motion to extend expert witness disclosure time and modify status order [31-1] (crf) [Entry date 09/23/03]
9/22/03 -- LODGED Order by plaintiff Lok Thye Lau denying motion to dismiss or in the alternative motion for summary judgment (crf) [Entry date 09/23/03]
9/22/03 33 RESPONSE by plaintiff Lok Thye Lau to dft's motion to dismiss or in the alternative motion for summary judgment [28-1], [28-2] (crf) [Entry date 09/23/03]
9/29/03 34 REPLY to pltf's response to dft's motion to dismiss or in the alternative for summary judgment case [28-1], [28-2] (crf) [Entry date 09/30/03]
9/30/03 -- LODGED amicus curiae brief submitted by the League of United Latin America Citizens (kdc) [Entry date 10/01/03]
10/3/03 35 ORDER by Judge Garland E. Burrell ORDERING amicus curiae brief lodged on 10/3/03 STRICKEN for no leave of court (cc: all counsel) (kdc) [Entry date 10/03/03]
10/3/03 36 REQUEST by the League of United American Citizens to file amicus curiae brief (kdc) [Entry date 10/07/03]
10/3/03 -- LODGED order granting LULAC's request to file amicus curiae brief (kdc) [Entry date 10/07/03]
10/7/03 -- LODGED application for order sealing ex parte application to remove information from court files and sealing order by defendant John Ashcroft (kdc) [Entry date 10/08/03]
10/7/03 -- LODGED ex parte application to remove information from court files and proposed order by defendant John Ashcroft (kdc) [Entry date 10/08/03]
10/8/03 37 RESPONSE by plaintiff Lok Thye Lau to ex parte application for sealing order and to remove information from court file [0-0] (kdc) [Entry date 10/09/03]
10/10/03 38 ORDER by Judge Garland E. Burrell ORDERING the Clerk's Office to 1) detach Exhibit 1 from the Ex Parte Application and substitute it for the Declaration of Lau which is attached as Exhibit 1 to the Response to dft's Motion to Dismiss (doc #33) and place the removed declaration of Lau in the vault under seal and 2) detach Exhibit 2 from the Ex Parte Application and substitute it for the first eight pages of the Amicus Brief and place the first eight pages of the Amicus Brief that have been replaced in the vault under seal (cc: all counsel) (kdc) [Entry date 10/10/03]
10/10/03 39 REPLY by plaintiff Lok Thye Lau regarding [32-1] (daw) [Entry date 10/14/03]
10/10/03 40 RESPONSE by plaintiff Lok Thye Lau to dft's objections to evidence offered in opposition to motion for summary judgment (daw) [Entry date 10/14/03]
10/10/03 41 SUPPLEMENTAL BREIF by defendant John Ashcroft regarding ex parte application to remove information from court files (daw) [Entry date 10/14/03]
10/15/03 -- LODGED Document: lodged application dated 10/10/03 (NOT TO BE SIGNED BY JUDGE) (daw) [Entry date 10/15/03]
10/15/03 42 ORDER by Judge Garland E. Burrell ORDERING Clerk is directed to deliver to dft's counsel the declaration of Nancy L. Stewart, Lau declaration and Amicus Curiae brief, which are currently under seal in the vault, and the chambers' copies of these documents which are delivered to the Clerk concurrenlty with this order; dft is to ensure that these documents are made available for further decision in this case, including appellate review, until the time for appellate review expires; the balance of the govt's request in its supplemental brief, which copies of these documents not in the court's possession, in unsupported and is DENIED w/o prejudice (cc: all counsel) (daw) [Entry date 10/15/03] [Edit date 10/15/03]
10/15/03 43 MOTION for leave to file motion for sanctions against the govt by plaintiff Lok Thye Lau; motion TO BE HEARD by Judge Garland E. Burrell; motion hearing not noticed (daw) [Entry date 10/16/03]
10/15/03 44 NOTICE by plaintiff Lok Thye Lau regarding intent to file motion for sanctions against the govt [43-1] (daw) [Entry date 10/16/03]
10/15/03 -- LODGED proposed order by plaintiff Lok Thye Lau granting motion for sanctions against the govt (daw) [Entry date 10/16/03]
10/15/03 45 PROOF OF SERVICE by plaintiff Lok Thye Lau of [43-1], [44-1] (daw) [Entry date 10/16/03]
10/20/03 46 MINUTES before Judge Garland E. Burrell: motion to extend expert witness disclosure time and modify status order by plaintiff Lok Thye Lau [31-1] SUBMITTED w/o oral arugment (kdc) [Entry date 10/21/03]
[Lau Declaration. Source: http://www.cfac.org/Attachments/lau_declaration.html]
2126 K Street
Sacramento, California 95816
Antonio V. Silva
Antonio V. Silva, P.C.
2616 Montana Avenue
El Paso, Texas 79903
Texas Bar ID No. 18351350
N.M. Bar ID No. 3769
Attorneys for Plaintiff, Lok T. Lau
THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
LOK T. LAU,
JOHN ASHCROFT, ATTORNEY
DECLARATION OF LOK T. LAU IN SUPPORT OF OPPOSITION TO DEFENDANT'S MOTION TO DISMISS, OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT
Lok T. Lau declares upon the penalty of perjury pursuant to the provisions of 28 U.S.C. 1746 as follows:
1. I am a naturalized citizen of the United States born in Singapore. I first arrived in the United States on July 3, 1976 in Plymouth, Michigan as landed immigrant and stayed with my married sister Amelia Chan.
2. In order to better myself, I immediately enrolled in at Schoolcraft College, Livonia, Michigan in September o f 1976. I later enrolled at Eastern Michigan University, Ypsilanti, Michigan in January of 1977, which I continued to attend until I graduated.
3. On January 27, 1982, I became a naturalized U.S. citizen. This was a very proud day for my family and me.
4. In August of 1982, I was recruited to and accepted work as a sheriff's deputy with the Sheriff of Washtenaw County. I attended the Police Academy in Oakland, Michigan from September of 1982 through December of 1982.
5. During early 1984 I was recruited as an FBI "asset" (informant and operative in Foreign Counter-Intelligence matters). In May 1984, I was instructed by officials at FBIHQ to 'quietly apply' for FBI 'Special Agent' position. I had also been recruited by the CIA, but did not follow up on that opportunity. The FBI recruiter painted a more glamorous picture to be an agent and provided assurance that the FBI is by far a better agency to work for and to contribute to one's country.
6. In July of 1984, I was highly commended by my FBI and CIA "handlers" for having recruited a valuable asset for the U.S. intelligence community.
7. In May of 1984 I resumed my 4-year college education in order to meet the 'education requirement' of the FBI'. I completed my studies in August of 1985.
My Unusual, Long Term, Very Dangerous, Stressful and Anxiety Provoking UC Assignment
8. I worked against very dangerous hostile entities while I worked for the FBI as a deep undercover agent.
9. In October 1985, I had a huge success as a FBI-asset in accomplishing mission that made a big difference for the national security of the United States of America. I cannot detail the extent of my contribution or even what I did, but the result was extremely significant to the United States.
My FBI Training is Unusual
10. As my job application had been pending two (2) years, in February 1986 I advised the FBI that unless his application for employment was approved soon I might take up other law enforcement careers such as with the Seattle, WA. Police Dept.
11. On April 14, 1986, I received an order to report at FBI Academy in Quantico, VA. by 4-21-86 for training as a Special Agent.
12. Between May 1986 to Sept. 1986, while at the FBI Academy, my stress level was very high as I was isolated by my peers in the FBI Academy when my class-mates suspected me of being a 'plant' by management because of my complete absence of 'family contact' via mail or telephone. In addition, I was alleged to have had 'suspicious' contacts with senior FBI agents on weekends, which were observed by my peers.
I Am Isolated From My Family and Support System
13. During this time I was being primed for upcoming undercover, (UC), assignment and it was a condition of that assignment that even my immediate family-members could be aware of my true employment.
14. In September 1986, I graduated from FBI Academy, when approx. 35 percent of classmates had already been washed out related to various performance issues at the Academy.
Undercover Rules Are Violated
15. John Vasquez, who has an AA in Criminal Justice, a BA in Political Science, and a M.Ed. in Psychology began working for the FBI April 5, 1976, and held many upper level and supervisory positions and retired as a GM-15, as Unit Chief of the Training, Research and Development Unit. See the Declaration of John Vasquez attached in opposition to the defendant's motions. All references contained herein relating to Mr. Vasquez refer to that declaration.
16. Mr. Vasquez has done extensive undercover work and is very knowledgeable about undercover work by virtue of his past experience and his FBI experience.
17. Mr. Vasquez is the initiator of the Safeguard Unit, and did the research to put the Safeguard Unit in place. His recommendations were accepted. He put together the Safeguard Unit as a pilot project, and ultimately the project was made part of the organization and that unit is still operating.
18. Mr. Vasquez noted:
The problems encountered by undercover agents are the reasons the Safeguard Unit was born. This occurred in 1980 or 1981. I wrote the first manual and then a second manual. In 1993 or 1994 the Safeguard Unit evolved into a major unit.
19. Mr. Vasquez knows me and first met me when I was in new agent training and about midway through the program Mr. Vasquez became aware that the FBI was looking at me for an undercover role.
20. Mr. Vasquez has opined that the placement of an agent right out of the academy is very unusual and Mr. Vasquez has been in law enforcement for 41 years and one of the basic rules is that an agent is allowed first to develop an organizational identity and to become part of the culture. If a young agent is placed in an undercover role, the agent actually takes on the identity of the subculture he is working against. I was placed right out of the academy into my deep undercover assignment.
21. Mr. Vasquez noted that, "No one had ever taken an undercover assignment right out of the academy as [I] did before [I] was even an agent."
22. Mr. Vasquez interviewed me at the FBI Academy. Mr. Vasquez noted, "While it is usual for agents who are asked to work undercover to refuse, [I] agreed to assist. Mr. Vasquez received official communications and was asked to talk to me, test me and evaluate me.
23. As per Mr. Vasquez, an evaluation determines the ability to work in an undercover assignment and this is done by interview, finding out the background, emotional and personality stability, determination as to whether the person could undergo a long-term assignment and follow directions. One must determine if the individual is regimented and disciplined. Psychological tests are given and interpreted.
24. Mr. Vasquez administered the psychological tests such as the MMPI and others to me at Quantico. The testing was done in a way so that my classmates would not know I was being selected. My class left and I stayed for the testing. As per Mr. Vasquez, the psychological tests did not reveal any psychological or emotional problems.
25. With the depth of his knowledge, Mr. Vasquez stated:
Mr. Lau was probably recruited by the FBI for a specific operation. The FBI used Mr. Lau and then when it was over discarded him. Along the way the FBI did nothing to support him.
26. Mr. Vasquez, noted he:
felt uncomfortable in the [my] placement in a long-term undercover assignment as he was not yet an agent and would be on probation for one year. [I] had never seen a case file, worked a case, arrested anyone and had not established an organizational identity and had done organizational bonding. One is either in the organization or one is not. [I] was not.
27. Mr. Vasquez also noted:
I projected problems for Mr. Lau unless he had a tremendous support system in the field and was provided periodic training such as being taken into a field office at night. My concern was the lack of organizational bonding and the lack of cultural identity. The problems I projected would be reentry problems. When it was time to become an agent, Mr. Lau would not know what his role would be as an agent.
28. Mr. Vasquez noted with respect to me as follows:
In the 80's the FBI had problems with other undercover agents who were not supported properly and had reentry problems. There were some horror stories. One undercover agent had problems in reentry and never made the transition. This person simply walked the halls of Quantico and did not understand what he was there for. His identity was so shaken and he could not grasp he was to be in class and retraining. It was pitiful and the FBI had several such agents.
One cannot simply send an agent undercover for years and then simply place the agent in an office and expect that person to function normally. It is similar to a veteran returning from the war and finding persons who did not understand the contributions or sacrifices made.
Some reentry undercover agents resorted to shoplifting, drinking, gambling and essentially got into their undercover roles so deeply that they never were able to adjust.
Joe Pistone is a good example of this phenomenon. Mr. Pistone was undercover 6 or 7 years and worked against the Mafia. Mr. Pistone never was able to effectively make the transition. I worked with Mr. Pistone but was not able to facilitate the transition. Mr. Piston was sent to Dallas and had trouble acclimating due to his time away, and he was returned to Quantico and ultimately retired.
29. Mr. Vasquez knew the work I did and described it as " a Group 2 assignment, which means it was longer than 6 months."
30. Mr. Vasquez noted with respect to my undercover assignment that:
This is a problematic assignment due to its length and by the level of cover. Mr. Lau was in deep cover. Mr. Lau did not go home at night. He did not see his family. He stayed away from his family support system. This would cause monumental problems; I do not care who you are. The family did not know what Mr. Lau was doing.
Mr. Lau was not given an undercover training, as the FBI did not want to parade him around any more than necessary. To place in this training Mr. Lau would put Mr. Lau and the operation at risk since someone would be able to put 2 and 2 together.
The support persons in the Field Office did not provide mental health training, or anything other than daily instructions during meetings. These instructions were such things as requiring receipts for expenditures. The FBI was attempting to account for money but these management rules and organizational Mr. Lau did not view controls as important had not bonded with the organization.
Mr. Lau could not have any FBI forms nor would he be able to have anything related to the FBI. His reports were on a blank piece of paper or napkin. This would cause problems, but could not be avoided.
If one understood the workings of the FBI, an agent could simply call and dictate a report. Mr. Lau did not know this, but might endanger himself if he did this. It was only a last resort to be used, but he was not trained to do this.
Problems With My Support
31. Mr. Vasquez met with me about every 4 to 6 months for at least three days. The Safeguard Program was becoming an institution at that time. Mr. Vasquez interviewed the support group in the field office where the operation was being conducted.
32. With respect to the support provided by the FBI to me, Mr. Vasquez noted:
I did not feel comfortable with the support provided to Mr. Lau, as there was a change in support personnel, and management. The support staff assigned rotated and those that remained were not receptive to Mr. Lau's needs.
In spite of the fact the operation was going very well, the administration aspect was problematic. The reasons for the problems are that the support personnel assigned were jealous that Mr. Lau was getting the glory and they were not. These agents tried to hold Mr. Lau to FBI office standards but Mr. Lau was someone who had never had the opportunity to be an FBI agent. This attempt to force Mr. Lau to follow all the rules and regulations was wholly unrealistic in view of the fact Mr. Lau had never been an agent. The imposition of the FBI protocol on Mr. Lau, who had never had been an agent, was a further cause of friction.
When I met with Mr. Lau, we would laugh at the friction with the support agents since Mr. Lau expected the bad guys to be scumbags, but he did not expect his support staff to be that way. Mr. Lau did not expect jealousy or friction or denial of requests, as he was the man on the front line. Mr. Lau, who had never been an agent, who was working a sensitive, critical operation dealing with national security, and he did not expect the answer to be, "I'll have to run it by the boss."
Mr. Lau's credentials and badge were in the vault in the field office. He did not get a chance to see or hold his badge. When I visited him, he would ask to see and hold my badge. This was a flag to me that he was saying, "I do not know who I am."
I conveyed this to the field office. I did not have the power to do anything other than send a classified communication to the undercover unit. I did not have the authority to supercede the orders of the field division and could only recommend. The field division would listen but I would not learn it the recommendations had been implemented.
33. With respect to the shoplifting incidents, Mr. Vasquez provides telling testimony conforming with that of my doctors when he stated:
I had another undercover agent, Mr. Livingston, in Miami, Florida, who worked before Lok Lau. Mr. Livingston, after reentry, was arrested for shoplifting and this was 2 years before the Safeguard Unit was implemented.
This shoplifting was a cry for help and a signal that there was ongoing identity crisis.
Mr. Lau was undercover for seven years. This is a long time. I went to see him quite often. When I transferred, I passed on the duties to a psychologist, Steve Band. I cut him into Lok Lau and took him with me to introduce him.
I recommended that when Lok Lau reentered that he be placed in a small to medium field office, a week or two of training at Quantico, training opportunities so that he could catch up with his peers with whom he had attended the academy. This would take a lot of training since this was a 5-year deficit. If one expected Mr. Lau to hit the ground running after 5 years, this would be unrealistic. It would take a lot more than that. Even though Mr. Lau had seniority on some agents, he would encounter problems with younger agents who knew the FBI culture and ways of operation.
As far as I know, Mr. Band was there when Lok Lau came out from undercover.
The First Shoplifting Incident
34. Mr. Vasquez bluntly stated with respect to my first shoplifting incident:
Mr. Lau was caught shoplifting in the Midwest. This report saddened me since I saw it coming. While I did not know Mr. Lau would shoplift, I knew he would do something to bring negative attention upon himself. Mr. Lau was simply screaming out for help. The flags were flying all over the place. Mr. Lau's mental outlook was outside the parameters of an FBI agent, and more like the bad guys he worked against. I knew his support system failed him. The FBI allowed something to happen that should not have happened. Mr. Lau was left too long or he was having an emotional problem that was not recognized.
The Second Shoplifting Incident
35. Mr. Vasquez, who started the Safeguard Unit flatly stated with respect to the second shoplifting incident:
Mr. Lau was alleged to have shoplifted in 1997. This was a desperate cry for help and an indication he needed help. Mr. Lau was trying hard and making blunders and the FBI was holding it against him. Mr. Lau's contributions were not recognized.
My Inability To Discuss The Assignment
36. With respect to how I was treated, Mr. Vasquez an expert in undercover work and the man who started the FBI's Safeguard Unit states:
Mr. Lau could not talk to anyone about his assignment. This means Mr. Lau could not even discuss the matter with his fellow agents. Mr. Lau upheld his end of the undercover assignment and the FBI did not. The FBI failed to recognize Mr. Lau's accomplishments. Mr. Lau felt he should have been a hero. I agree. What Mr. Lau accomplished deserved accolades, not the treatment he received.
Mr. Lau should have been placed in a teaching position wherein his expertise could be used. Mr. Lau gained expertise that does not appear in the manuals and the FBI did not recognize this. Instead, Mr. Lau was a no body who did not know how to be an FBI agent.
To the supervisor of the squad in Sacramento probably felt he was a thorn in the side of the office and the Bureau, as a 5year agent should be able to do any assignment. In Mr. Lau's case he had forgotten the little training he got and as a result the supervisor would be sour on him.
The supervisor would have known a little bit about the assignment but not much. The SAC would have known but not have cared. When on reaches a GS-14 level one simply is looking toward promotions and does not rock the boat. A supervisor in this position is not an advocate for retraining or using Mr. Lau's expertise. Rather the lack of knowledge was used against Mr. Lau.
My Supervisors Failed Me
37. As per Mr. Vasquez:
If a supervisor feels that an agent is a danger to himself or others, one must have some basis. It is the responsibility of the supervisor to get help for the agent by referral to the Employee Assistance Program, (EAP), or other evaluations to determine mental and physical stablili6ty.
38. Mr. Vasquez stated that "Mr. Band should have gone to Headquarters to report what was happening in Sacramento with Mr. Lau, and report that Mr. Lau was having troubles and showing signs of psychological problems, and we owe him since we put him in the situation. This would involve some serious medical and psychological help, evaluations and treatment."
Fitness for Duty
39. Mr. Vasquez in referring to the Fitness for Duty Examination stated:
When Mr. Lau was found unfit for duty, the problems should have been addressed. The FBI is very image conscious, and they swept Mr. Lau out of the Bureau to protect this damage. A lot of people were in charge when Mr. Lau went undercover, and no one was in charge when he came out. There was no long-term continuity. Whoever was in charge in the first place at Headquarters should have taken care of Mr. Lau. There is help of all types available from FBIHQ. Mr. Lau was given no help.
I Am Assigned to a Field Office I Visit Only Once
40. The records may reflect that on April 21, 1986, I began my service with the FBI as a Special Agent, however these records were necessary due to the nature of the assignments I performed.
41. From September 1, 1986 through July 1, 1991, I worked in the Chicago Field Office where I was assigned in an undercover capacity to do Foreign Counterintelligence work in the form of a highly dangerous and classified undercover assignment after Academy.
42. While assigned to the Chicago field office, I never worked inside the office and had only visited the office once (very briefly).
43. While allegedly assigned to the Chicago Field Office I always worked and operated 'off site' (not in or from the FBI's offices or known spaces) as a deep undercover agent. I did this for many years.
Unusal Handling of My Long Term UC Assignment
44. As of October 1986 despite the nature and importance of my assignment there had been no allocation of funds for ultra important undercover project from FBIHQ in spite of my having overcome enormous difficulties from outset to date.
45. I had never been an FBI Agent, and I was not assigned to a Field Office except on paper. I had no way of knowing how an FBI worked except as my "handlers" instructed me. The fact the FBI did not think it important enough to allocate money immediately was the first sign of trouble and that I was really on my own.
46. Another danger signal arose in November of 1986, when even as the funds were finally allocated, management risked my life and safety by being so skeptical it would not even turn over the title of government's motor vehicle to my name because some worried due to fear I might steal it. Driving an FBI vehicle on a deep undercover assignment is suicide, but the FBI did not seem to care. This realization was mentally devastating.
47. The holidays around December of 1986, including Christmas were very bad for me. In fact, this was one of my worst Christmases ever, I spent this season without friends and relatives. I had to repress my spirituality since the subjects are all basically atheist.
48. In March 1986, my "handlers" advised me that FBI management was getting restless and wanted to take bold but dangerous actions related to my assignment since nothing much was happening toward achieving the objectives of the undercover project. I had to advise senior agents the wisdom of patience and persistence.
I Made In Roads In My UC Assignment
49. In July of 1986 , the subjects of my deep undercover assignment began to trust and task me with missions of such proportions that these actions were both puzzling and gratifying to the FBI senior management. Indeed, there were great tensions between the leadership in the FBI Field Division in Chicago and FBI Headquarters as to how best to take advantage of the sudden or quick penetration into the camp of the subjects by me.
50. In October of 1986, I was unexpectedly provided with a chance of a lifetime to accomplish something for the bureau and my country- it was an invitation to go overseas. This was the ultimate goal of the undercover assignment. Management advised me that I was a few years ahead of schedule. However, the Assistant Directors at headquarters were skeptical of the opportunity at hand. I was surprised by the lack of courage to take chances by the decision- makers at the FBIHQ. After all, it would be my life at stake should anything was to go wrong. Strangely enough, there were suggestions at the top that I be polygraphed to ascertain the truth of my reporting. Management was afraid that I might set them up for 'an international incident'! I was devastated. Finally, it was decided that I be polygraph upon my return on my overseas trip. See attached exhibit ____ (EE), which is the performance appraisal that has been declassified and contains my signature, at pages 3 & 4.
51. In November of 1987, on the eve of historic overseas trip, FBI management advised me that one of FBI's highly placed assets had betrayed me to the subjects concerning my true identity as a FBI agent. I did not cancel my trip for it would confirm asset's allegation. During this trip, stress and fear were constant companions.
52. During November of 1987, the historic trip turned out to be very stressful with subjects giving me enhanced scrutiny during the visit, personnel armed with machine-guns were a constant reminder to me of my fate if something went wrong, and there were frequent roadblocks on my route of travel. I anticipated death on several occasions, but I somehow survived it all.
53. In December of 1987, I completed my trip. The success of my historic overseas trip and my accomplishments had exceeded all expectations. The skeptics made me undergo an extensive polygraph test to ascertain my loyalty and accomplishments. When the electrode- examination was over, the skeptics were shamed, and I wondered if I had won more friends than foes at FBI Headquarters. This 1987 Christmas' season was a difficult time as I learned that my former girlfriend finally gave up waiting for me and was married.
The FBI Director Recognizes My Accomplishments
54. In January of 1988, FBI Director William Session flew into Chicago to personally present an incentive award to me for my outstanding courage, historic accomplishments and sacrifices for my country. It was the proudest day in my life. I can still vividly recall top- agents teasing me for reading the letter of commendation first rather than looking at the monetary value of the award-check.
55. In February 1988, the subjects wrote me to advise that my 'family roots' had been located and my living relatives had been verified. This was a terrifying experience for me since it meant I would now be risking the lives of my family members. The subjects were known to be ruthless in every way! Worst still, I could not forewarn anyone of them since they were not allowed to know my true employment or targets!
56. On March 7, 1988 I was examined by the Corporate Health Center in Chicago, Illinois. Dr. Bruce Hunter Huck, M.D., found that I was a healthy person. There was no mention of any other problem of any sort. This is evident the UC assignment and what followed resulted in the emotional and psychiatric problems with which I was ultimately diagnosed. See attached exhibit____ (LL).
No Continuity in Handlers
57. Throughout '1988 to 1989, there were new 'contact agents' [handlers], being introduced along with new supervisors due to my known contacts and supervisors promotions and retirements. The continuity of support and leadership were constantly interrupted at this level in the Chicago Field Division as well as at FBI Headquarters. My support dwindled by the day from fellow agents. On several occasions, I had requested to be taken off the undercover project to no avail. Its success seemed more important than my welfare.
58. The assignment was extraordinarily dangerous and stressful. I was cut off from my family and friends, and the "handlers" did not remain constant. I later learned I was not treated as other undercover agents were treated and should have been provided support, emotional, financial and human to ease my stress and anxiety. I was literally on guard 24 hours a day, and I knew my death could come at anytime. The outside world, including my family, knew nothing of what I did or how. In fact, even though I was an FBI Agent, my badge was kept at the field office and I could not even see it or my FBI credentials.
I Am At the Mercy of My Handlers
59. I had never been an FBI agent and was placed in this deep undercover assignment even before I graduated from the FBI Academy. I did not know the FBI's office procedures since I had never worked in an FBI Field Office. While other FBI agents had years of on the job, on hands experience, I was working deep undercover risking my life everyday, and just trying to stay alive.
60. In September of 1989, the deep undercover project necessitated yet another harrowing overseas trip, and this time, the hostile country to be visited was in total chaos. This challenging trip was successfully accomplished. However, my primary contact agent appeared to worry more about the daunting administrative task of accounting for the expenses of my trip than for my personal well being. It was becoming clear to me that the FBI did not care about me either as an agent or a human being.
61. Throughout 1989 to 1990, the subjects were having problems within their rank and file and with their rivals or enemies who were getting more aggressive in attempting to curtail the subjects' influence throughout the community. In the meantime, my support from the FBI further declined, my depression increased while my health suffered and my cry for help because I wanted out was again ignored. My mother was considering cardiac by-pass surgery in late December of '90.
My First Desperate Plea For Help is Ignored
62. On December 24, 1990, I was detained at a Sears in Ann Arbor, Michigan for Retail Fraud, second degree (shoplifting). I pled no-contest to the charges but did so to avoid any publicity to my highly sensitive foreign counterintelligence assignment. After this incident, I received a superior performance appraisal rating.
63. Otherwise, my identity as a deep undercover FBI agent would be blown if I had pled not guilty and went to trial. During this timeframe, the years of stress and anxiety were beginning to tell on me. I was depressed, anxious, having trouble sleeping and nightmares with constant fear that I did not have long to live.
64. Between May and June of 1991, the FBI shuttled me back and forth between Chicago and Washington D. C. for lengthier polygraph exams. and debriefings concerning my loyalty and candor. In the meantime, the subjects were also checked out to ensure no complicity on my part.
65. This polygraph was in direct violation of FBI policy, which states, "The UCA has demonstrated no reason or evidence to doubt or question his loyalty to the Bureau and the United States. It is important to note that the transition out of long-term deep undercover work has traditionally been difficult for most UCAs. It should be anticipated that the transition would be a time for mental and emotional adjustments. Historically, UCAs who have had difficulty with this transition phenomenon have experienced periods of cynicism, sadness, and anger. It may be useful to monitor the UCA's sense of well being in relation to matters involving national security. Difficult transitions have been avoided by: (a) incorporating the UCA in decisions regarding the closing of an UCO; (b) affording UCA a transfer choice that will significantly support has return to traditional overt activities (i.e. being closer to family/friends and re-bonding with Bureau friends and activities); and, (c) providing USP assessment and re-training at the FBI Academy." See attached exhibit____ (AA).
66. The FBI ignored the shoplifting allegation as a signal of "cry for help" despite my lack of training, early and immediate total submersion, and failure of support and (was-delete) my suffering as a result. It is now clear to me that I was acting out in an attempt to get help.
My Transfer Request Denied Despite FBI Policy
67. On July 29, 1991, I arrived in Sacramento, CA. straight out of deep undercover project from Chicago, IL. I was truly disappointed with my transfer to Sacramento instead of Seattle, WA. I later learned that a rookie agent and son of a retired SAC (Brass) were given the slot over my need to be with my family after a harrowing undercover assignment.
68. By declassified communication SSA Frank M. King, Chicago Division, and SSA Jay Barron, FBIHQ notified the FBI of my request for a transfer to a preferred location (office of preference). The communication noted:
The UCA ahs voiced his office of preference with Seattle his first choice, followed by Portland, San Diego, and Sacramento. ASAC . . . did not voice any opposition to the possible transfer of the UCA to the Seattle Division. Additionally, SAC, Chicago strongly feels in view of the fact the UCA will have devoted five years to this most successful operation, the UCA's choice of Seattle should be granted." See attached exhibits____ (FF, GG). There is no discussion of any shoplifting or necessary referrals to the Employee Assistance Program, or any other reference to the incident. Id.
69. I was transferred to the last of my articulated choices and away from my family. Emotionally, this was devastating to me. Moreover, this was in direct violation of FBI policy. See attached exhibit____ (AA).
70. SSA Michael J. Waguespack related to my transfer and treatment:
I feel strongly that, as an institution, the FBI mishandled SA Lau's transfer subsequent to his reassignment from Chicago. For example, he was assigned to the Sacramento Division, whereas he wanted to go to the Seattle Division for a number of reasons. The [REDACTED] in fact, recommended against this transfer insofar as they felt that his emotional well-being may be dependent upon his new assignment. See attached exhibit __[GGG]
71. Beginning in August of 1991, the very thought of returning to a regular FBI office for the first time in my life petrified me and I began to have anxiety-attacks more frequently than the past years beginning in the mornings just before going to work.
April 5, 1991 Performance Appraisal
72. I was routinely given performance appraisals while in my deep undercover assignment. The April 11, 1992 performance appraisal was "superior" and noted:
[REDACTED] He has succeeded in becoming a trusted confidant of numerous subjects of investigations and has also penetrated the "inner circle" of the subject community. As a result, he obtains singular and sensitive information of investigative value in a timely manner. SA LAU also provided valuable, insightful assessments and analyses of the information obtained. SA LAU also shows a keen awareness of areas of potential investigative interest and aggressively develops his contacts with the subjects in furtherance of the objective of the investigation. SA LAU has also been instrumental in developing an formulating a scenario for bringing this successful operation to a conclusion." On the last page of the performance appraisal the appraiser notes, "SA LAU give thorough and extremely detailed oral briefings to his contact agent on a regular basis. SA LAU's oral presentation of the facts and information is clear, concise and shows that he has a thorough command of the investigative priorities of the undercover operations. SA LAU's in-depth, detailed written reports concerning his undercover activities have continued to show improvement. " See attached exhibit ____ (EE), which is the performance appraisal that has been declassified and contains my signature, at pages 3 & 4.
I Received No Help At All, Just Retraining
73. I was sent by FBIHQ to the FBI Academy in Quantico, VA. for two (2) weeks, for more assessments and humiliation. I was forced to attend basic classes with new recruits and yet I cannot say a thing about what I've accomplished or to ask just anyone whether I would still have a job the next day because of the shoplifting charge; my cry for help!
74. In August of 1991, just going to work everyday was a struggle due to my anxiety attacks and my worsening depression. I sometimes had the feeling that sleep or death would be the best cure for me. Sleep became difficult for me; I was not sure whether it was my allergies that had often kept me up because I'm in Sacramento (commonly known as 'the allergy capital of the world') or something else.
75. In September 1991, Denny Joyce, the supervisor I had was supportive and he left me alone to try to learn and to try to do my job, I felt a little better. I did well and received good grades for my performance in this 'bank robbery and reactive squad'.
76. During the fall of 1993, even though I doing well in the squad getting 'superior' performance rating under supervisor Don Pierce, I was transferred to Supervisor Paul Shields Foreign Counter Intelligence Squad (FCI). Interestingly, my desk was located outside the secretive and secure squad room area jokingly called the 'FCI cone of silence room'. My job was the 'one man band' handling the fearsome Asian Organized Crime in the Sacramento Field Office which has jurisdiction over half of the geography in California. Seven months later, I was again transferred to another squad because I had not made a dent in the Asian organized crime activities. While on the Asian Organized Crime squad, I was supervised by Paul Shields and received a performance rating of Fully Successful. I was reassigned to another position as I inadvertently encountered the subject of my FCI days, while on official business in San Francisco at Chinatown! Two FBI Headquarters agents flew out to the Sacramento Field Office to reprimand upper management in Sacramento regarding this incident.
77. This time I was thrown in the surveillance squad ALSO KNOWN AS THE 'DUMPING GROUND' of the bureau!
Mr. Pomerantz Admits I am Disabled
78. On September 29, 1993, after a very stressful 2 years, the verdict or punishment finally came on 9-29-93 for my shoplifting on DECEMBER 24, 1990. I was given TWO WEEKS ON THE BRICKS OR SUSPENSION WITHOUT PAY FOR 2 WEEKS! ASSISTANT DIRECTOR STEVEN POMERANTZ STATED IN HIS LETTER WORDS TO THE EFFECT THAT I WAS DISABLED BY THE UC ASSIGNMENT DUE TO STRESS of it, OTHERWISE HE WOULD HAVE FIRED ME.
79. On October 12, 1993, Steven L. Pomerantz, Assistant Director, Administrative Services Division, issued a letter to me telling me that I was being suspended from the FBI for a period of 14 calendar days. Mr. Pomerantz concluded that while shoplifting was not appropriate behavior, my unusual stressors caused by my lengthy and unorthodox deep undercover project militated against any more serious sanction.
80. Mr. Pomerantz stated that were it not for the "atypical circumstances" surrounding Mr. Lau's first years on the job, he would have had "no choice" but to remove [Mr. Lau] from the rolls of the FBI. However, due to the challenging circumstances, Mr. Pomerantz determined that disciplining Mr. Lau for shoplifting would be "inappropriate." See attached exhibit ___[OO]
81. Mr. Pomerantz specifically noted:
Were it not for these unique circumstances and the attendant stressors, which I believe contributed to your uncharacteristic display of impetuous poor judgment on December 24, 1990, I would have had no choice but to remove you from the rolls of the FBI. However, inasmuch as I believe that your actions on that date were, to some degree, the by-product of the unusal work related stress you were subjected to, I have concluded that disciplining you for the incident at Sears would be inappropriate. Id.
82. Mr. Pomerantz' statements are an admission of my harrowing and stressful, undercover assignment of a long term nature, and the fact that I, as a rookie FBI Agent had been placed in dangerous and stressful work environment which caused the aberrant behavior. Mr. Pomerantz knew that my behavior was aberrant, (and why-delete) and the FBI management did absolutely nothing to help me get over the stress and anxiety, which had caused me to make this desperate plea for help. I was not given counseling, nor was I given a referral to the Employee Assistance Program. (EAP)
83. In early 1994, I was fortunate to obtain a passing grade from Supervisor Paul Shields. We later found out he was the sex maniac who was busted on 'Stockton Blvd' for soliciting a prostitute and led the police on a chase that made the national news! He was never suspended or dragged through the ashes like I was for a much less salacious and notorious activity. See attached exhibit ___[SS]
The Agency Knew I Was Disabled As A Result of My UC Assignment
84. On June 29, 1993, SSA Stephen R. Band, and [REDACTED] in a memorandum, called an "informal note" and entitled, "SA Lok Thye Lau" and "Foreign Counterintelligence Security Countermeasures" found I had experience unacceptable stress levels resulting in a variety of behaviors including lower test scores, unacceptable behavior, and failure to follow UC protocols, yet the FBI did absolutely nothing.
85. The "informal note" discloses, in pertinent part:
"Review of this October 1990 debriefing indicated that he was experiencing unacceptable stress levels. Accordingly, [REDACTED]
In addition to his obvious decline in test scores [REDACTED] had obtained input from the case agent and contact agent in Chicago indicating that SA Lau's behavior was unacceptable. For example, Chicago indicated that SA Lau was not making scheduled meets. When asked why Lau did not attend the scheduled meet, SA Lau advised that he time frame was not convenient for him. Chicago also notes that he was not filling out necessary paperwork. W hen asked why the paperwork was not complete, on one occasion SA Lau advised that he had run out of paper. On another occasion when questioned about working on thanksgiving he indicated he was due holiday pay for having cleaned the [REDACTED] apartment on that day.
Review of his June 1991, testing and debriefing indicated that he was experiencing extreme stress levels. (Note this time from is approximately six months after his arrest for shoplifting) Notes from his tests indicate that he (SA Lau) may behave unpredictably, by simply doing what he wishes rather than what others consider best. He might occasionally behave carelessly or irresponsibly and manipulate others in ways that hamper good working relationships.
SSA band indicated that it is his belief that SA Lau's behavior (his shoplifting incident) was a direct result of the stresses he was feeling from his [REDACTED] role. While Chicago agreed he would be removed, it took several months to devise an acceptable ending scenario. SSA Band maintained that SA Lau's unacceptable behaviors were transient in nature directly related to his [REDACTED] assignment.
SSA Band could offer no mitigating factors that might explain his deceptive responses to the questions dealing with multiple shoplifting incidents, other to suggest that as English is Lau's second language, it could possibly be do to a lack of understanding. It was suggested that SA Lau might better respond to a polygraph examination if it were given in the Chinese language.
SSA Band was asked why SA Lau showed no remorse in reference to the incident. SSA Band advised that he did show great remorse when interviewed by SSA Band. SSA Band advised that when interviewed by PSU, not only did SA Lau not show remorse but he steadfastly denied that he had shoplifted. SA Lau advised that he was "entitled" to take the merchandise and additional merchandise from the items originally returned as the store had not treated him properly. SSA Band advised that based upon the information presented to him, he would guess that SA Lau had moved into an anger phase regarding the incident, as he was frustrated that the matter was taking so long to finally be resolved.
When asked if SA Lau may again exhibit unacceptable behavior, SSA Band advised that it would be unlikely unless SA Lau was again placed into a position which he (SA Lau) perceived as stressful. SSA Band advised that SA Lau appears to be currently functioning at an acceptable level, even though he is under the stress of knowing that he is still under administrative review. " See attached exhibit _ [MM]
86. The most critical part of the "informal note" was the chilling statement that my behavior in shoplifting was directly due to my undercover assignment. (SSA Band indicated that it is his belief that SA Lau's behavior (his shoplifting incident) was a direct result of the stresses he was feeling from his [REDACTED] role. While Chicago agreed he would be removed, it took several months to devise an acceptable ending scenario. SSA Band maintained that SA Lau's unacceptable behaviors were transient in nature directly related to his [REDACTED] assignment.) Id.
Move to Another Agency or Retire on Disability
87. In the summer of 1994, everywhere I went things were heating up! I was given unsuccessful rating for my performance even in doing surveillance work. The work environment turned hostile and Supervisor Debbie Pierce even asked me if I would like to transfer to another federal agency to work (permanent basis) or perhaps retire on disability.
88. SSA Pierce authored a memorandum dated 1/14/93 in her own handwriting. I recognized SSA Pierce's handwriting and note that the memorandum admits she spoke to me about moving to another federal agency or taking disability retirement. This document was provided by the FBI during my discovery for previous EEO complaints currently awaiting for a decision from EEOC. See attached exhibit ____ [QQ]
89. In her memorandum dated 1/14/95, SSA Pierce notes," I asked him if he had considered going over to another federal agency- and encouraged him to think about itI also asked him if he was considering a medical disability" Id. SSA Pierce obviously thought I was disabled. She did nothing to help me however.
90. During the fall of 1995, after I was asked to provide a memorandum for my physical medical conditions (sleep apnea and chronic allergies), I was once again transferred out of the surveillance squad to the White Collar Squad also supervised by SSA PIERCE. Because I had advised SSA Pierce of the fact that I might file EEO complaint against her, I was almost immediately sent away to Seattle for an extended temporary duty (TDY) to assist in a wiretap case and to be with my mom whom had immigrated to Vancouver B.C. Canada recently. I was quickly given a passing grade on my second week in Seattle via telephonic contact.
91. During March of 1996, the Special Agent In Charge of Seattle Division gave me a letter of commendation for an outstanding job in the wiretap case and agreed verbally (I learned that it was in writing years later through FOIPA request) to my transfer to Seattle.
92. Back in Sacramento, I was given humiliating job of full time photocopying documents for other agents on my squad with SSA Pierce as my supervisor. SSA Pierce advised me that I have a GIGLIO PROBLEM. A break came when I was again requested back to Seattle division while on a TDY assignment for the San Francisco Division! I was glad to leave the San Francisco Division wiretap because it was illegally conducted in spite my protest! It was ironic that I do have a GIGLIO problem while working in Sacramento and not in Seattle or the San Francisco FBI Division!
93. During the summer and fall of 1996, all hell broke loose, everything was sizzling! I was given a failing grade by SSA Debbie Pierce because I could not be rated for being on TDY so much! I appealed this rating to FBI Headquarters and it was reversed to 'FULLY Successful" I filed my first EEO COMPLAINT, SSA Pierce got even by giving me another failing grade 3 weeks after her earlier decision was reversed by FBIHQ! A week later, SSA Debbie Pierce was on her way to a big promotion as ASAC in Milwaukee Division! The ASAC in Sacramento Charles Kiley, in the meantime, had my FBI car and guns taken away through a medical mandate because of my sleep apnea. However, ASAC Kiley insisted that I continue to make arrests and other full duties as an FBI agent! See attached exhibit ___ ( HHH).
94. In October of 1996, I made a most devastating discovery!! I found a copy of FD- 302
(Most official form of report in the FBI, used for court purposes) in my personnel file. The FD-302 was placed there by SSA Debbie Pierce and states in pertinent part that SA LAU " would be vulnerable to approach from foreign government agents . . ."
95. This aforementioned FD-302 disappeared for about 4 years and only after numerous EEO complaints and FOIPA requests before I received a copy of it! So far, SSA Debbie Pierce appeared to have written at least 3 different versions to explain why she made the aforementioned remark ! It would not be as devastating if I had not sacrificed many years of my life and career sacrificing for God and Country while my peers moved on in life and had received promotions or gotten their 'TIME CARD PUNCHED'
96. My five year reinvestigation which was done between April 25 and July 11, 1996 contains this notation:
Derogatory information, primarily dealing with the employee's job performance, was offered by employee's supervisor and two co-workers. Captioned employee's supervisor suggested employee could potentially be vulnerable to coercion based upon perceived character flaws and dissatisfaction with performance appraisal. See attached exhibit ____ [PP]
97. On November 14 1996, a medical mandate was presented to me even though it was dated October 6, 1996. My assigned car and guns was immediately taken away from me and ASAC KILEY threatened me and my supervisor ( Jim Wedick) with dismissal if i did not bring in the statistical accomplishments of a veteran agent soon!
98. On December 8, 1996, I was alleged to have been arrested for the shoplifting at Raley's Supermarket for 3 oz. Coffee powder, toothpaste and a small pad-lock etc. It should note that this arrest was never prosecuted by the District Attorney and was dismissed for "lack of evidence and in the interest of justice".
99. It should be noted that this shoplifting charge was not discovered by the FBI management until Supervisor Don Vilfer ran a NCIC check on me approximately 19 months later, in September of 1998! There was supposedly an outstanding warrant for my arrest. Supervisor Vilfer gave the excuse that NCIC was ran on me in preparation of sending me to a psychiatric exam sponsored by the bureau in order to determine his "Fitness For Duty." See attached exhibit_____ [NN]
100. Since my first EEO complaint was filed against SSA Debbie Pierce or the Bureau, life at the 'barn' or FBI office in Sacramento became a living HELL! Altogether approximately 36 EEO complaints were filed between September of 1996 and August of 2000.
101. I recognize the FBI will try to make me out as a whiner and complainer, but this was my only way of complaining about the lack of help I received in and out of the UC assignment, and to get someone's attention. I know now that my actions were desperate pleas for help including the alleged shoplifting incidents, but I did not know then.
102. It is only after hours speaking to Mr. Vasquez that I realized what happened to me and why I did what I did. I served my country and gave it everything I had and accomplished some absolutely astonishing things I cannot relate due to the sensitivity of the assignment, but the FBI did not fulfill its bargain to me, failed to give me even minimal assistance after such a long and harrowing UC assignment and as a result, I acted out and was fired. I cannot be treated as any other person as I was psychologically and emotionally strong going into the assignment, and a broken, untrained, emotionally damaged and scarred person following the UC assignment.
103. The FBI's total failure to recognize they did this to me and I acted out as a way of getting help is an abomination that cannot be tolerated. I am not someone gone bad; my years of service to the FBI damaged me beyond any ability to repair the damage and instead of treating me with respect and dignity and recognizing me for the disability it created, the FBI merely jettisoned me like so much garbage.
SSA Pierce Was Directly Involved in My Firing
104. In a thorough and very time consuming review of thousands of documents, I discovered two memoranda which demonstrate the stated reasons for firing me were not the real reasons but just a pretext for getting rid of me.
105. SSA Pierce wrote on September 29, 1998 to Special Agent In Charge James Maddock in referring to the first shoplifting incident and noted:
Jim, I don't know if you are aware of this, but Don found it when he was cleaning out his stuff. (He supervised Lau in 1992) I had never seen this till the other day and was stunned at the details. I always led to believe the first incident was relatively "innocent". For dismissal action there may be a need for details for the first time and I'm not sure this in a file. Hope it helps. Deb"
106. Donald Pierce was my supervisor for a year and is the husband of SSA Pierce. Jim refers to SAC James Maddock. The maintenance of records, which are derogatory in an agent's disciplinary file, violates the settlement agreement in the Black Agents class action lawsuit known in the FBI's circle as BADGE. (Black Agents Don't Get Equality) These disciplinary records or documents were maintained more than 6 years instead of being removed or purged from an employee's record or personnel file after one year per BADGE's Settlement Agreement. Furthermore, the personnel records, including my 'shop-lifting' record and investigative records during my deep undercover assignment from 1986 to 1991 is still considered highly classified to date. I believe the policies and procedures of the FBI including the 'National Security' Law had been violated when Debbie Pierce and her husband still have in their possession my highly classified record still in their possession years after they had left the Sacramento Division. I know this to be true for many federal officials in the Department of Labor, Workers' Compensation Program(OWCP) with 'Top Secret' security clearance still could not hear my legal claims against their agencies and presently still awaiting higher security clearances from the FBI for over two years. SEE ATTACHMENT
107. By the time of this handwritten note to my SAC, SSA Pierce had been out of Sacramento for approximately three (years) and was ASAC in Milwaukee, Wisconsin.
108. The first document is dated well before proposed termination letter dated February 5, 1999. See defendant's exhibit 3-E.
The Proposal to Fire Me
109. By letter dated May 14, 1999, I responded to the proposal to fire me to the person assigned to receive my response, Mr. Frank Figliuzzi, Adjudication Unit, Office of Professional Responsibility, United States Department of Justice, Federal Bureau of Investigation in Washington, D.C. See attached exhibit _____ [Firing response dated May 14, 1999]
110. Because of the nature of the claims I made and the work I had done a request was made to the National Security Division for "additional assessment from NSD regarding potential damage if the UCA's identity becomes public and a recommendation as to whether to proceed with termination that will probably result in the disclosure of the UCA's identity." This communication went to Mr. DeFeo the decision maker. See attached exhibit _____ [KK]
111. During the time I worked in the Sacramento Office there is correspondence, which details my disabilities. For example, in a declassified document provided in discovery by the FBI I found a noted dated November 17, 1994, which was transmitted within the National Security Division to the effect "As you can see Lau [REDACTED] or his ability to recall specific names." This was related to the NSD review requested. See attached exhibit ___[JJ]
112. In the request for a fitness for duty examination dated September 9, 1998, my SAC ultimately asked for a fitness for duty examination in the following Language:
Based on SA Lau's behavior, inability to contribute to the FBI mission, delusions of persecution by management, and the fact Sacramento employees have raised concerns about him creating a dangerous environment, SAC, Sacramento strongly requests FBIHQ consider having SA Lau evaluate for a fitness-for-duty examination. It is also recommended that any appropriate follow-up mental health counseling be made available for this employee. See attached exhibits ____ [OO]
My Disabling Conditions
113. I suffer from stress, major depression and post traumatic stress disorder(PTSD). See attached exhibits ____ [Reports of Drs Geise and Ebert.]
114. In addition to major depression, and post traumatic stress disorder(PTSD) I suffer from sleep apnea that is aggravated by allergies caused by pollens in the Sacramento area. I was diagnosed in 1994 with severe obstructive sleep apnea. In November of 1996, just one month before the Raley's incident, the FBI took away my bureau car and fire-arms because of my disability.(see medical mandate). It was most stressful and unbearable when the FBI's management threatened my supervisor James Wedick and myself with termination if I did not make head-way in my investigative duties as an FBI agent to include making arrests and serving of search and arrests warrants on known violent criminal suspects. I informed the FBI before the Raley=s incident and requested a transfer and time off for treatment as accommodations. I was also denied the transfer to Seattle. Sleep apnea causes all the symptoms attributable to a severe lack of sleep, including inability to concentrate, poor judgment and loss of memory. Likewise, depression can cause poor judgment and loss of memory.
115. I was taking the anti- depressant medication Prozac at the time of the Raley=s incident. I also had consumed alcohol, a prescription medication for allergies and Prozac shortly before the Raley=s incident. Shortly after the incident, I was so shaken by the experience, I contacted my therapist to determine what could have happened. I felt very ill after the Raley's incident. I went home and called my therapist who was treating me for depression. She asked me about the Raley=s incident. She asked what medications I took and if I consumed alcohol with the medications. I answered, "yes" and she then told me not to mix Prozac and alcohol.
116. I saw my psychiatrist two days later. My psychiatrist advised me that mixing the two would affect memory, judgment and coordination. This psychiatrist had previously diagnosed me as depressed beginning in the spring or summer of 1996. I started taking Prozac in the summer of 1996. Thus, I was on Prozac only a few months before the Raley=s incident in early December 1996.
117. My actions and statements to Raley=s employees - no matter whose version is true - was directly attributable to my physical and mental disabilities and my medications. Thus, that my recollections of specific events or statements may differ from a Raley=s employee can be explained by my intake of Prozac and alcohol, my depressive state and sleep deprivation. Interestingly, the FBI had never allowed me to use any of my medical or disabilities factors to mitigate my aberrant behaviour which led to my termination from the rolls of the FBI. However, in many cases involving Caucasian FBI agents, including the case of a an agent whom had made false claim in his medication usage to explain away his aberrant behavior and encounter with the police, he was never discipline to date. See O.I.G. "Double Standard of Discipline at the FBI" report Chapter 3, page 3 and 4
118. The FBI has known for years of my sleep apnea, depression, and the fact my aberrant behavior on one other occasion was directly attributable to work place stress, my allegations of workplace harassment and discrimination and lack of back up in dangerous situations, and my requests for a transfer to Seattle due to my medical and psychological conditions were denied on numerous occasions. The FBI has known about the extreme stress I suffered while deep undercover for six years (despite the policy limitation of four years).
My Disability Is Of My Own Making As Per ASAC Charles Kiley
119. In a document dated in the 1996 which contains a note written by then ASAC of the Sacramento Field Office, Charles Kiley which states with respect to a response to an appeal I had filed and concerned my disability, "Disability issue is of his making not ours." This is an admission that the FBI knew I was disabled, but simply did not acknowledge that the disability was a result of actions of the employer, the FBI. See attached exhibit ___[TT]
Fitness for Duty Examination
120. The FBI alleged I was acting strangely as stated in various interviews and documents alleging my bizarre behavior with other FBI employees. Yet, the FBI did nothing to determine any medical reason for such behavior and to help me. Instead it simply set me up for this removal by pretending I was normal while accusing me of clearly abnormal behavior even after it was fully aware of my disability, sleep apnea, depression, stress from work and other bizarre behavior.
121. In the memorandum dated September 9, 1998, SAC James M. Maddock wrote (a memorandum) in which he noted, "Sacramento previously reported to OPR a series of aberrant behavior by SA Lau which concerned Sacramento employees. " See attached exhibit ___[OO]
I Am Regarded As Disabled: Aberrant Behavior
122. The memorandum referenced in the preceding paragraph is an admission that I allegedly had engaged in aberrant behavior from at least July 18, 1997 to the date of the memorandum dated September 9, 1998. Id.
123. SAC Maddock's memorandum relates the following employees (related) as to how I was perceived in the Sacramento office:
LOK LAU's Aberrant Behavior
On 7/18/97, Mrs. Carrie Myers, Duty Operations Assistant, Sacramento, reported that on 7/18/97, SA Lok T. Lau approached her while she was working at night in the Sacramento Office. He attempted to blow into her ear, blowing on her cheek when she turned away. Mrs. Myers asked what he was doing and SA Lau replied, "You know when you do that to a cat, it makes them shake." He then laughed. Mrs. Myers felt very uncomfortable with this gesture and his comment. She also reported feeling uncomfortable with him hanging around the office late at night after everyone else had gone home.
Relating a separate incident, Ms. Linda Bakula reported that in June or July, 1997, SA Lau came to the night desk and asked that the alarms be deactivated in the workout room so that he could use the restroom. He emerged from the workout room about 20 minutes later, sweating profusely, and still in his work clothes (shirt and tie). Ms. Bakula found this to be odd, in that restrooms were available directly across from the night desk.
Mrs. Myers also reported that around 6/5/97 between 10:30 p.m. - 11:00 p.m., she was working in the fax area training another employee, Kimberly Rather. All the alarms had been set when she heard a door close. SA Lau was standing nearby and acknowledged hearing the noise. He then announced he would investigate the noise and drew a handgun from an ankle holster. He proceeded to walk through the dark hallways and squad areas with gun drawn. Mrs. Myers initially began to accompany him but turned back, realizing the potential for danger which SA Lau was creating. Mrs. Myers had assumed the noise was iron a door closing which SA Lau, himself, had used to enter the office.
Mr. Lee Myers, who was the Duty Operations Assistant at the time of the following incident, reported that on 12/5/96 at approximately 10:00 p.m., he observed suspicious activity on a monitor at the night desk. Knowing that SA Lau was in the building, Myers advised him that a car and two people were near the building, possibly attempting to get over the wall arid to a dumpster. Because of prior administrative action, SA Lau was not permitted to carry a firearm at the time. He told Myers he would arm himself with his sword and check it out. Myers then observed SA Lau on the monitor which covered that area outside the building. SA Lau was observed confronting the two individuals near the dumpster and holding what appeared to be a sword in a scabbard. SA Lau obtained Identification from them and returned to the building for record checks. Myers provided an EC which LA Lau prepared regarding the Incident in which he commends his own actions he perceived as heroic. Myers noted that SA Lau would often comment about his frustration with having "no car, no gun." Lee Myers also expressed concern for his wife's (Carrie Myers) safety when SA Lau is present late at night engaging in odd behavior.
By letter dated 8/25/97, SA Lau was censured and placed on probation for unavailability, poor judgment and unprofessional conduct during a trip to Seattle on official business. SA Lau brought embarrassment to the FBI and the Seattle office when he insisted the Seattle Police Department provide him with marked units to assist him during an interview.
SA Lau has recently related to a number of Special Agents in the Sacramento Office that he has filled the swimming pool at his residence with fresh water and is raising fish in the pool. On 9/2/98, the Executive Director of the FBI Agents' Association (FBIAA) gave a presentation to Special Agents in the Sacramento Field Office. During the presentation, the Executive Director inquired of the SAs present if housing was as expensive in Sacramento as in San Francisco. SA Lau responded that it was so expensive to live in Sacramento that he was forced to raise fish in his swimming pool for food." See attached exhibit ___[OO]
124. While the memorandum is an indication I was perceived as engaging in aberrant behavior, absolutely nothing was done, which I find stunning in view of SSA Band's assessment that as a result of my long term UC assignment, increased stress levels would cause me to act out, and had caused me to shoplift in the past. SEE ATTACHMENT >>>>( DR. Stephen BAND's Informal REPORT)
125. What I find most chilling is that I was perceived as a threat. It appears that Mrs. Myers feared for her safety around me in view of my "odd behavior." I had a strong suspicion the personnel at the Sacramento Field Office perceived me as crazy and dangerous. I base this on the fact my firearms and FBI car were removed from me.
I Am Regarded As Disabled: I Am Seen As a Threat
126. It is alleged an EEO Investigator also perceived me as a threat, but I still received no help or referrals. In his memorandum, SAC Maddock notes:
During recent visit by EEO Investigator Anthony F. Mauro, Pittsburgh Division, he cautioned Acting ASAC Vilfer that SA Lau could, in his opinion, present a threat to employees in the office. SA Mauro noted that his experiences as an EEO Investigator had exposed him to many angry people, but that SA Lau was beyond that and appeared vengeful. SA Mauro said SA Lau had not articulated any specific threat. Management and other employees are concerned about SA Lau's potential for violence in light of his aberrant behavior and almost total fixation on righting perceived wrongs via the EEO process. The concern is that if that process "fails" him, he will strike back. SA Lau owns an M-1 assault rifle and numerous rounds of ammunition which he allegedly bought for "home defense". Id.
127. SAC Maddock did not stop with those examples of my alleged threatening behavior and wrote:
Employee fear of SA Lau is heightened by his cavalier self-professed history of violence. SA Lau has described to employees en incident several years ago during which individuals who were being questioned as part of an FBI investigation into illegal Chinese immigrant smuggling were thrown overboard. He has implied this was because they were not cooperating and has shown photos of these persons floating in water near a ship. He has described how nearby Coast Guard personnel radioed their lack of approval of such techniques and he told them to mind their own business. See attached exhibit ___[OO]
I Am Regarded As Disabled: SAC Maddock: SA Lau Has A Persecution Complex And Is Delusional
128. SAC Maddock also accused me of having a persecution complex and as suffering from delusions when he wrote,
"Delusions of Persecution by Management and Disruption of the Workplace, While SA Lau's own actions have impaired his ability to fully execute the responsibilities of a Special Agent of the FBI, he has openly blamed management for those shortcomings. His multiple EBO complaints and office discussion evidences delusions of persecution by management. When recently asked by a fellow agent on his squad why he spends his days preparing complaints against management, SA Lau responded that he did not care and if he is fired, he is 'ready for that.'" Id.
Clear Signals I Am Disabled: I Used 96 Days of Sick Leave in 12 Months during 1997 to 1998
129. The memorandum by SAC Maddock also notes that, "Additionally, SA Lau has had difficulty regularly attending work in that 96 days in the past 12 months have involved the use of sick leave or annual leave." This clearly was a clue to management that something was wrong and I was suffering problems that prevented me from working, but nothing was done to help me.
I Requested Accommodation Explicitly
130. In my response to the proposal to remove me from the FBI, I made accommodation requests. The letter noted:
SA Lau hereby requests the following reasonable accommodation(s), which will allow him to perform the essential functions of his job:
1. The proposal to terminate be held in abeyance;
2. During the period of time the proposal to terminate is held in abeyance, SA Lau be referred to the Employee Assistance Program;
3. That SA Lau be provided with such assistance as the Employee Assistance Program deems necessary to stabilize his condition;
4. That SA Lau remain on paid administrative leave until his medical/psychiatric or other treatment is completed; and
5. That SA Lau be returned to work as a Special Agent upon completion of his medical/psychiatric or other treatment." See attached exhibit _____ [Firing response dated May 14, 1999].
Even Though My Request For Accommodation Comports Precisely With FBI Policy, It is Denied In Violation Of FBI Policy
131. Margaret Grey, Unit Chief, Health Care Programs Unit (HCPU), Administrative Services Division, Federal Bureau of Investigation (FBI) stated that I was treated differently as she wrote that while I was found not fit for duty, I was not allowed the benefit of FBI policy.
132. Chief Grey wrote (in her declaration which is Defendant's Exhibit 5) as follows:
"14. Once an FBI employee is found not fit for duty, it is the policy of the FBI HCPU to advise the FBI employees to seek treatment for a period of three to six months in a n effort to rehabilitate himself or herself, and following this period of time, the FBI reevaluates the employee.
15. With respect to Mr. Lau, Mr. Foran, Ms. Singleton, and I determined that Mr. Lau would be maintained on the rolls of the requirements. These requirements included: (1) attending psychotherapy session with a psychiatrist or psychologist; (2) submitting a monthly medical report from such therapist; (3) submitting to reevaluation after three months of treatment; and (4) requesting that his treating therapist consult with Drs. Sreenivasan and Garrick.
16. If Mr. Lau complied with these requirements, it was our decision to have Mr. Lau reevaluated by Drs. Sreenivasan and Garrick after three months. At that time, a final determination would have been made regarding Mr. Lau's fitness to serve as a Special Agent.
17. However, at the time that Mr. Foran, Ms. Singleton, and I made our decision regarding Mr. Lau's mental capacity to serve as a Special Agent, Mr. Lau had been placed on administrative leave pending an Office of Professional Responsibility (OPR) investigation.
18. Due to the pending OPR matter, Mr. Foran, Ms. Singleton, and I were directed by FBI management officials to hold our recommendation in abeyance until the OPR matter had been resolved. We learned that, following an administrative inquiry, the OPR decided to terminate Mr. Lau from employment with the FBI.
19. Because the FBI terminated Mr. Lau based upon its findings in the OPR investigation, Mr. Foran, Mr. Singleton, and I never reached a final decision regarding whether Mr. Lau was fit to return to duty to serve as an FBI Special Agent."
133. It is clear that the decision "[w]ith respect to Mr. Lau, [by] Mr. Foran, Ms. Singleton, and Unit Chief Grey [who had] determined that [I] would be maintained on the rolls of the requirements [which] included: (1) attending psychotherapy session with a psychiatrist or psychologist; (2) submitting a monthly medical report from such therapist; (3) submitting to reevaluation after three months of treatment; and (4) requesting that his treating therapist consult with Drs. Sreenivasan and Garrick.]" was never carried out and never was presented to me as an option. See Defendant's exhibit 5 at pages 3-5.
134. It is also clear is the FBI failed to follow its own policy and failed to follow the recommendations of their own health experts in dealing with my case.
135. The FBI never responded to the accommodation requests contained in my firing response. The only responses appear to be in which Unit Chief Grey was involved and the second was in an APU memorandum as follows: (The FBI Disciplinary Process is one, which allows an appeal to the Disciplinary Review Board (DRB) by a "fired" employee. That process is not as independent as the Declaration of Mr. Wiley D. Thompson, III makes out. Specifically, Mr. Thompson fails to mention that the DRB is provided with an extensive analysis of the case. See attached exhibit NOW MARKED DD. The DRB is thus not independent and is clearly influenced by the agency "analysis."
136. By November 24, 1998 former SAC James Maddock in his 23-page electronic communication (EC) to FBI Headquarters had already strongly recommended my termination even before the Office of Professional Responsibility (OPR) had the opportunity to investigate my alleged shoplifting that was subsequently dismissed for "lack of evidence and in the interest of justice" by the district attorney.
137. In his 23-page analysis, SAC Maddock, bluntly, page after page, argues for support of the agency decision to fire me. There is one glaring exception however, and this is when the Appellate Unit's (APU) notes:
" . . . the APU finds that issue regarding Appellant's physical/mental conditions is irrelevant to the Appellant's culpability for his 1996 shoplifting, since Appellant not only fails to allege causation, but denies the 1996 shoplifting altogether. The APU would recommend the INSD and DRB defer to the OGC regarding the more general legal issue concerning Appellant's purported disability, and also regarding the issue of whether Appellant was entitled to receive and/or failed to receive some sort of accommodations from the bureau. It is the opinion of the APU that the broader legal issue lies outside the purview of the INSD or DRB, and is more appropriately handled by the OGC's Employment Law Unit." Id, pg. 26.
138. The effect of this recommendation and the denial of Unit Chief Grey's group's recommendation were to require me to file the instant lawsuit.
I Was Not Allowed to Receive Proper Treatment While An Employee of the FBI
139. I was not fired until February 8, 2000. To the point of my termination I was unable to obtain any type of medical help to assist me as the classified nature of my long term (5 years) assignment prevented any discussion of what was stressing me out and causing me to act out.
140. Out of desperation, I asked my attorney to write to the FBI to ask for medical and psychological help. See attached exhibit ____ [VV]SEE BERNARD THOMPSON AND JIM JUDD's EC that was faxed today, Friday, 9/19/03
141. The FBI responded in a letter dated September 21, 1999 which was incorrect and was corrected by a letter dated September 23, 1999. See attached exhibit ____ [WW].
142. The letter alleged because "contract medical providers" examined me on September 9, 1999, I was receiving care. Id. This is sheer nonsense as I did not seek care relating to my medical and psychological conditions from contract providers and I was prohibited from discussing the matter of my long-term undercover assignment with anyone.
143. To alleviate my extreme stress, I requested that Dr. Ebert be cleared. See Dr. Ebert's letter dated October 19, 1999 attached hereto as exhibit ____[XX]
144. Both Dr. Ebert and Dr. Giese have both opined I was traumatized by my deep undercover assignment.
145. Dr. Ebert, I, Bruce W. Ebert, Ph.D., J.D., is a clinical and forensic psychologist licensed to practice psychology in the State of California, license number PSY 7461. I consulted with Dr. Ebert and the most general terms, the following:
a. [I] was involved for a 5 year period time in an undercover assignment, and was recruited because of his psychological profile and abilities.
b. [My] assignment began immediately shortly after [I] left the FBI Academy, and [I] never served in a field office.
c. [My] assignment was very stressful and [I] worked against extremely dangerous persons. Had [I] been discovered during the course of [my] assignment, the discovery would have resulted in [my] death.
d. [I] still ha[d] nightmares over being confronted by an unfriendly subject carrying an AK 47 during an identity check. [I] have disruptive sleep.
e. The undercover assignment made it impossible for [me] to contact any family or friends for fear of discovery.
f. During this time, [I] was not provided proper support or guidance. The stress and anxiety were unbearable.
g. By the time [I] was removed from the assignment [I] was already deeply traumatized and emotionally scarred by the lengthy and tense undercover assignment that required [I] put his life on the line each day.
h. Upon the re-entry from the extremely dangerous undercover assignment [I] was not give proper re-entry psychological treatment by the FBI. Instead, [I] was placed in a field office, and despite the fact there were periodic behaviors on [my] part that evidenced [my] psychological condition, [I] was never given any help.
i. The nature of [I] assignment was such that [I] cannot discuss it with anyone, including doctors (and even [my] attorney) and despite the fact [I] had repeatedly sought permission to seek treatment by discussing the cause of his problems, the FBI did not allow or provide such treatment. [I] was only recently able to obtain treatment from Dr. Arthur Giese.
146. Dr. Ebert initially diagnosed me with a Major Depressive Disorder, and symptoms of posttraumatic stress disorder.
147. Dr. Ebert later learned that Dr. Arthur Giese, a licensed psychiatrist, had diagnosed [me] with Post-traumatic stress disorder, 309.81, and Major depression, 296.2. Dr. Ebert concurred in these diagnoses based on his work with me.
148. Dr. Ebert, in his declaration provided to the defendant in another EEO matter and which is in their possession, custody and control opined as follows:
Based on the foregoing, my interviews with Mr. Lau, and my education, training and experience and my work with Mr. Lau it is my opinion that
a. Mr. Lau was mentally and psychologically scarred by his undercover assignment, which prevented him from contacting his family and friends, and placed him in danger of losing his life each day.
b. Mr. Lau suffered a Major Depressive Disorder, and Post Traumatic Stress Disorder which has been continuous and unrelenting from at least the last year of his undercover assignment and went from bad to worse, and effected his decision making and cognitive abilities during the last year of his assignment and following his removal from the assignment and placement in a field office without proper counseling or re-entry assistance.
c. This Major Depressive Disorder, and Post Traumatic Stress Disorder continue through today, and continue to be unrelenting and will continue into the indefinite future.
d. The Post-traumatic Stress Disorder, 309.81, and Major depression, 296.2 were caused by the work Mr. Lau did as an FBI agent, including the extremely dangerous undercover assignment Mr. Lau was assigned to complete.
149. Dr. Geise diagnosed me with Dr. Arthur Giese, a licensed psychiatrist, had diagnosed [me] with Post-traumatic stress disorder, 309.81, and Major depression, 296.2. See attached exhibit ____(ZZ).
150. Dr. Geise took serious issue with the reports of the FBI doctors regarding my disability. See attached exhibit ____(ZZ).
How My Medical and Emotional Conditions Affect Me
151. In an annual medical examination, dated May 6, 1997, I reported that I did suffer from "depression or excessive worry." See attached exhibit ____(CCC) [Report of Medical History, May 6, 1997.
152. In an annual medical examination, dated May 27, 1998, I again reported that I suffered from "depression or excessive worry." See attached exhibit ____(BBB) [Report of Medical History, May 27, 1998.]
153. I saw Dr. Stabeneau on or about October 19, 1997, March 31, 1998, July 21, 1998, April 15, 1999, where Dr. Stabeneau prescribed Prozac for me. Dr. Stabeneau diagnosed Mr. Lau with Dysthymic Disorder. See attached exhibit ____(AAA) [Handwritten medical reports from James Stabeneau, M.D., dated October 19, 1997, March 31, 1998, July 21, 1998, and April 15, 1999.]
154. In addition, Dr. Giese prescribed Prozac for Mr. Lau in April 2001 and in July 2001. See attached exhibit ____(DDD) [Medical Reports from Arthur T. Giese dated April 13, 2001 and July 6, 2001.]
155. In a report dated November 27, 1996, C. Eric Gage, M.D., F.R.C.S. noted that Mr. Lau had "been placed on Prozac due to the stresses due to work restrictions." See attached exhibit ____(EEE) [Otolaryngology Consultation by C. Eric Gage, M.D., F.R.C.S. dated November 27, 1996.}
156. There were many times when I could not perform my job due to my mental condition without accommodation.
157. This is based on the fact I felt sick, was unable to concentrate, had memory lapses and was unfocused. The sleep deprivation was a big part of it and the failure of my employer to work with me on my sleep apnea that resulted in many of the symptoms described herein.
158. The sleep apnea makes me very, very tired and dizzy and causes a lack of focus. Sometimes I feel like a walking zombie because of sleep deprivation. I also suffered lethargy.
159. In related EEOC cases this same defendant argued I was so disabled I could not return to work.
160. The same defendant in EEOC cases before the U.S. Equal Employment Opportunity Commission, San Francisco District Office in EEOC Nos. 370-A0-2305, 2385-2387; 370-A1-2212, 2318 2321, 2359, Agency Nos. F-96-4858; F-97-4913-15, 5020, 5038, 5069; F-98-5157, 5166, 5188, 5235-36, 5247, 5254, 5278-79, 5287-88; F-99-5301, 5396 filed on February 14, 2003. In that brief seeking what is essentially a summary judgment the same defendant as the defendant herein argued:
"3. Because of his Psychiatric Conditions, Mr. Lau Was Not a Qualified Individual with a Disability for his Position of Record.
"Mr. Lau cannot meet the threshold definition of a person with a physical disability, and thus, his Rehabilitation Act claim fails with regard to his physical conditions. By contrast, Mr. Lau's psychiatric condition may constitute a substantial limitation. See, e.g., SOF 429-30, 437, 440-43, 460. However, due to Mr. Lau's psychiatric conditions, Mr. Lau also cannot show that he was a "qualified" individual with a disability, i.e., able with or without reasonable accommodation to perform the essential functions of the position in question without endangering the health and safety of himself or others. 29 C.F.R. section 1630.2(m), 1630.2(r)." See attached excerpt of the very lengthy motion ______(FFF)
These Complaints And The Actions Of The FBI Demonstrate, At A Minimum, I Was Perceived As Disabled AND THEREFORE FIT TO BE FIRED!
161. The basis alleged on my complaints was that I was discriminated based on race, national origin, physical handicap, and reprisal. Mental handicap was added subsequently as a basis to the EEO complaints after Dr. Ebert and Dr. Giese had confirmed my mental condition. The complaints which have not been withdrawn are:
a. Complaint Number 1: on 8-13-96, I was given a Minimally Acceptable (MA or failed grade) Rating and that SSA Pierce created a hostile environment. It should be noted FBIHQ had reversed MA rating to Fully Successful shortly after SA Lau's appeal.
b. Complaint Number 2: I received a second MA Rating on 10-3-96, only a few weeks after FBIHQ had reversed SSA's previous rating. Complaint Number 3 On 11-14-96 , ASAC Charles Kiley using a medical mandate to forced me to relinquish my firearms and Bureau car, while also instructing me to continue the full duties of an FBI agent. I was also denied reasonable accommodation (flexible 10-hour shifts) after medical mandate being imposed on me. It should be noted that I was working then on a violent international Asian gang, and I subsequently had made numerous arrests without my gun or car!
c. Complaint Number 4: on or about 6-27-96, Supervisor Debbie Pierce placed a FD- 302 report in my personnel file questioning my loyalty to the effect that I "would be vulnerable to approach by foreign government." The above allegation would not be as devastating psychologically if I had not volunteered for my dangerous and lengthy undercover assignment.
d. Complaint Number 5: in May, 1997, I was denied a pay raise( Within Grade Increase or WIGI in the FBI) in spite of Fully Successful Rating, and on June 6, 1997, I was prohibited from assisting other FBI Divisions as well as other law enforcement agencies on temporary duties (TDY).
e. Complaint Number 6: on July 18, 1997, FBI management required I to work only the 8.15 a.m. to 5 p.m. shift.
f. It should be noted that on the FOIPA requests and investigative statements (by EEO investigators of FBI) yielded documents showing that FBI managers actually wrote to the effect that I could be a physical threat to the night clerks and myself if left alone due to my mental instability.
g. Complaint Number 7: SAC James Maddock on Aug. 25,1997 gave me a letter of censure and placed me on probation for one year. The reasons given were : 1) that in one of my TDY assignments to Seattle, WA., I did not report back via telephone once every 2 hours to my supervisor in Sacramento!(no cell phone was provided to Lau) 2); I irritated the Seattle Police by requesting a marked unit to assist me in an interview in a high threat location & situation. Recently, I discovered actual documents that were hand-written by SSA Debbie Pierce in 1998, when she was made ASAC of Milwaukee Field Office. Pierce wrote to SAC Maddock suggesting ways in getting me fired after Maddock had learned of the alleged second shoplifting charging incident.
h. Complaint Number 8: on or about 2-6-98, I was 1) prohibited to travel to Los Angeles, CA. to work on one of my cases. It should be noted that the Assistant United States Attorney (prosecutor) Rick Bender had appealed to the FBI's management to reconsider their denial but to no avail. 2) I was ordered to leave the FBI's office by 6.30 p.m. unless I was personally escorted by an agent supervisor. Interestingly, documents written by the FBI management point to the fact that several FBI employees had noted "SA Lau's aberrant behaviors" and were fearful of my presence. However, no treatment or counseling was ever provided or offered to me.
i. Complaint Number 9: on February 6, 1998, my most promising Asian Organized Crime case was reassigned to another agent who does not speak the Asian languages. Just before the aforementioned case was reassigned, the federal prosecutor had requested my assistance on numerous occasions in the investigation due to my language abilities. Complaint Number 10: on February 27, 1998 FBI management put me on a 30-day file(case) review schedule. In a sworn affidavit of my supervisor, Michael Ernst had stated that I had never missed a deadline on my cases and had only required very minimal of supervision.
j. Complaint Number 11: on or about July 13, 1998, I was not selected for the positions of EEO and Employee Assistance Program coordinator even though I was the only person who had applied. Instead, these two positions were given to other employees who had never applied for such duties.
k. Complaint Number 12: as of September 4, 1998, I had worked in the super sensitive Foreign Counter-Intelligence(FCI) room for approximately one year without the required security clearance imposed by U.S. national security laws. This deliberate security lapse by FBI management not only had seriously violated FBI's policies and procedures, but had also jeopardized my career and job since allegations as a security risk was nothing new. ( Please note SSA Debbie Pierce's 302 on Lau and subsequently my supervisor Paul Shields had threatened to open an espionage case against me.
l. Complaint Number 16: in a letter dated 6-29-02 from the EEOC/OFO, the FBI's decision to close EEO Complaint number 16 was reversed. The issue accepted for investigation/hearing was whether I was retaliated against when the Chief Division Counsel kept copies of another FBI supervisor's EEO materials on loan to me for my review.
m. Complaint Number 19: on or about August 26 1998, the FBI management suddenly recalled me approximately 40 miles from Reno, Nevada. This trip was made in order to provide translation assistance to the U.S. Secret Service about to conduct a raid on an Asian gang making counterfeit U.S. currencies. FBI management later on explained that I had a 'Giglio problem', a credibility issue due to my earlier Shoplifting incident while he was deep undercover. This rationale by the bureau seemed inconsistent with the very duties that SA Lau was performing up to Aug. 26 1998!
n. Complaint Number 22: on or about 9-16-98, Sacramento Chief Division Counsel Brian Callihan confiscated once again the EEO affidavits and EEO floppy disks belonging to me and supervisor Emanuel Johnson under the pretext of securing 'classified documents' prior to my being placed on administrative leave. The decision by the FBI to dismiss this complaint was reversed by the EEOC/OFO on or about 4-19-00.
o. Complaint Number 23: on September 16 1998, I was placed on administrative leave pending the outcome of an Office of Professional Responsibility (OPR) inquiry concerning the alleged shoplifting incident on 12-8-96. The fact of the matter is that within the Sacramento FBI Division, various agents were suspected of committing worse crimes than I was alleged to have committed, but were not suspended or placed on administrative leave. See attached exhibit ___[SS] (Paul Shields' arrest records and Office of Inspector General (O.I.G.)Report on Double Standard of Discipline by the FBI.
163. This statement is given under the penalty of perjury under the laws of the United States, 28 U.S.C. section 1746 and the foregoing is true and correct.
Lok T. Lau
[LULAC Amicus Brief. Source: http://www.cfac.org/Attachments/lau_amicus.html]
Rev. Julie Marquez, Chair
Judicial, Criminal and Social Justice Committee
League of United Latin American Citizens (LULAC)
7202 Camino Grove
San Antonio, TX 78227
Amicus Curiae Brief
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
LOK THYE LAU, CIV. S-02-0390 GEB/GGH
v. BRIEF IN SUPPORT OF
PLAINTIFF'S RESPONSE IN
JOHN ASHCROFT, OPPOSITION TO MOTION FOR
ATTORNEY GENERAL, SUMMARY JUDGMENT OR FOR
Date: Oct. 6, 2003
Time: 9:00 a.m.
To the Judge of said Honorable Court:
Comes now the League of United Latin American Citizens (LULAC), hereinafter referred to as LULAC and files this AMICUS BRIEF IN SUPPORT OF PLAINTIFF'S RESPONSE IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT OR DISMISSAL heretofore filed by defendant and asks that this court deny said motion.
LULAC is the oldest most established Hispanic Civil Rights Organization in the United States. We ask to be allowed to file this Amicus Curiae Brief, as a friend of the Court, due to the gravity of the issues presented regarding the national security and safety of the American People. Each issue in this case is significant in that this is a case of first impression which will have momentous effect on minorities and other people of color who work for the government of the United States, who form an essential part of our National Security and without whom all of us would be less safe.
Human intelligence has come to the forefront as one of the most essential tools that we have to fight terrorism and to secure the safety of the American people in our post 9/11 world.
How the FBI, the United States and the American People deal with those whose sacrifice themselves and put their own lives at risk to safeguard the Freedoms we treasure, in our great country, will send a message of how we, as a country, deal with the faceless heroes who protect us and our way of life. The message we send through this case will be heard not only by our "Human Assets" but, indeed, by the whole world.
This case is of paramount importance to the safety and security of all of us in the United States and to those faceless heroes who risk their lives and the lives of their families at every turn twenty-four (24) hours a day while they are involved in undercover work.
LULAC accepts, adopts and incorporates by reference all of the facts and legal arguments presented by Plaintiff, through his Counsel, filed in his Response To Deny the Motion for Summary Judgment or Dismissal as though fully set out herein.
Counsel for Plaintiff Lau has set out the legal arguments and authorities LULAC will confine itself to the facts as set out in the reports and declarations as they have been laid out in the record and to the issues of material fact, presented by plaintiff, that require this court to deny the motion for summary judgment. We urge the court to so rule.
THE ALPHA OF THE CASE
This case arose not when plaintiff Lau was terminated by the FBI but when he was "hired". It is doubtful that the FBI ever had any intentions of having plaintiff work as a Special Agent of the FBI. Given the dates and times set out in plaintiff's declaration, it is obvious that a man of Asian ethnicity who spoke the languages that Lau was speaks was of great need to this country.
Not until Lau was about to terminate his relationship as an asset was a place found for him at the FBI Academy at Quantico. From his few weeks spent at the academy Lau went directly into his undercover work. He had received no formal training and it is doubtful that anything could have prepared him for the ordeal that was to be his, alone, to bear for the next six (6) years. He was not to be in an office setting working as a Special Agent of the FBI for the next six (6) years. His nightmare into the nether world of darkness and shadows and fear had begun.
FBI rules, regulations and policy were violated again and again in this case. Lau spent more time doing undercover work than was allowed and no one knew or could have expected the damage that would be done to the psyche of Lok T. Lau. The damage is still ongoing and may never go away. For six long years Lau served America as the best human intelligence officer that he could be. Joe Pistone is an example of one who did work as a Special Agent of the FBI and then later went in to do undercover work and to infiltrate and penetrate the MAFIA. By his own admissions, Agent Pistone participated in committing criminal acts of every kind including murder. FBI Agent Joe Pistone was brought back to the FBI and given a lot of support and medical help and after all of that he was never able to come back. He was given a medical disability and retired, honorably, from the FBI. Can we do any less than that for plaintiff Lok T. Lau? Nietzfche once said that the only way to slay the dragon was to become the dragon. Those were very prophetic words as they relate to the case of Lok T. Lau.
The first cry for help that Lau uttered went unheard. He was later reprimanded but the reprimand reflects that, at least at that time, there was someone within the bureau that knew what plaintiff had been going through. See Exhibits 3 and 4. Plaintiff Lau was sent back undercover in spite of the fact that the FBI knew there were stressors and other such things going on with Lau that were directly attributable to his undercover work.
The FBI took a young, virile, intelligent young man who was working for law enforcement and told him he was a Special Agent of the FBI and that all he was to do was to serve his country. That Lau served his country and the American people very well is evidenced by the many awards he won. The letter of recognition and commendation with a cash award given to him by the Director of the FBI William Sessions is evidence of Lau's success. This was Lau in the Omega. Lau had to become like the dragon that was the subject of his investigation - he did it, magnificently. See exhibit 1.
Lau had not spent one day at work in an office of the FBI preparing reports or anything else. His offices were the streets of the "subject community" both in the United States and abroad. It is important to note that pre 9/11/01, the FBI was prohibited from operating outside of the continental borders of the United States. The bureau acted outside the legal restrictions more than once. Lau took more than two trips abroad. To this day Lau has not been able to present any of his facts. By marking every document secret, classified material and undercover work, the FBI has managed to keep under cover all that it has done, as well as to cover up all that it has sanctioned and condoned and all that Lau has done.
From a reading of the record, it is not difficult to discern that Lau was involved in espionage activities, kidnappings, trading in human slavery, illegal immigration, murder, torture, kidnapping, extortion hostage taking and any number of other criminal activities that involved crimes against humanity, then and now, in his undercover work. Lau "penetrated" the Chinese Triads, the Tong and other Chinese Organized Crime Organizations that trade in all of these things as a way of life. There is no way that Lau could have performed his undercover so well that he received awards and other forms of recognition were that not so. See Exhibit #5.
Given his ethnicity and the languages he speaks, the subjects he lectured the CIA operatives in, the time during which he worked undercover coupled with Tianamen Square, it is quite obvious that he was of use to the United States in those areas regarding the Chinese. See Exhibit # 6 and 7.
It cannot be argued that the FBI had no knowledge of Lau's activities while working in his undercover capacity. He was not only expected but, also, he was required to engage in all of those awful things or run the risk of being found out. Had he been found out, by the "Hostile Forces", Lau would have been assassinated immediately. Lau and the FBI knew that fact was true. For six years Lau had to be on his guard and had to participate in whatever those hostile forces demanded of him if he was to be successful and penetrate the subject community. Lau had to, literally, work three 8 hour shifts every day, seven days a week and he had to be completely isolated from his family and friends and he had to become a member of the "Hostile Forces" if he was to survive. It staggers the imagination to think of what that must be like, to live like that for six years with no support system and completely submerged in the nether world he had to function in. Who could live like that and not be affected. Who could be at Dachau and not be affected, who could be subjected to slavery and not be affected, witness and/or participate in torture and not be affected, it is simply not possible to come out of a situation like that and be "normal".
THE OMEGA - AFTER THE UNDERCOVER
When Lau reported to work in Sacramento to the FBI office, that was the first time that he had ever been in the office to do the work of a Special Agent of the FBI. He did not anymore know how to write a 302 than the Consul General of the Chinese Embassy did. The first day Lau was in the FBI office was the Omega of his career as a Special Agent. He was but a shell of the man who went to the FBI Academy six years before. It is hard to believe that the FBI
could believe and, indeed, expect Lau to function as a Special Agent since Lau did not know what that entailed. He had not performed the "normal" duties expected of an Agent during his undercover activities. Lau had been acting as a hostile force with the Chinese Gangs and engaging in Organized Crime for six years, the entire length of his service to the Bureau and to the American People. See Exhibit #2 the OPR Report. Dated by 8/3/99 approved by the FBI's DeFeo.
The nether world that Lau reported to when he showed up at the FBI office to report for duty for the first time as an Agent of the FBI was to be just as foreign and almost as dangerous as had been his undercover activities. The only difference was that in the world of the FBI Lau would be assassinated on paper and would be terminated from the rolls of the FBI rather that to killed by a gun. Lau's first outcry involving the Sears incident had gone unheard and he had not been treated by a psychiatrist, instead, he had been sent back to undercover assignment after spending a week or so at the FBI Academy. Now, in the FBI world, Lau's cries for help were not only not heard, they were used against him and he was judged most cruelly and unfairly by his "colleagues" at the FBI. This was particularly true in the matters that involved SSA Pierce.
SSA Pierce expected Lau to do the work and fill out the reports of a veteran Agent except that Lau was not a veteran Agent of the FBI. SSA Pierce failed in her obligations and duties that she owed Lau as a member of the FBI; Lau was one of their own. Instead of obtaining help for Lau, Pierce made numerous and copious notes of each and every little detail that she could think of in order to harm Lau. From his being late on the day of the open house due to the fact that his face was "puffy" due to his allergies, a fact she could have clarified simply by asking Lau about it, to the fact that her secretary and her clerk were "outraged" by the fact that he was late when they all stood around and listened to the message he left which they played out loud for everyone to hear. Pierce determines there is nefarious and insidious conduct on Lau's part because he gave her a small present of costume jewelry at Christmas. He gave small presents to others, she found that objectionable too.
Pierce is someone whose conduct, in this case, needs to be carefully examined. This woman owed a duty to Lau that she failed to perform through misfeasance, malfeasance, nonfeasance and who engaged in gross misconduct at every opportunity that she had to hurt Lau or to judge him harshly and wrongly. There is no question but that she knew of Lau's disability because she authored Exhibit #8 in 1995, wherein she offered Lau a medical disability. Lau did not accept. It was to take Pierce several more years to accomplish her goal but she would and did all she could to contribute to the removal of Lau from the rolls of the FBI. See Exhibit #10 authored by her on 9/29/98, wherein she hand wrote a note from her position as Inspector FBIHQ to SAC Maddox, Sacramento FBI, of item that she thought would help in the termination of Lau. She claims there was no retaliation by her against Lau for his use of the EEO process against her but her activities belie her statements.
Then Acting ASAC Pierce's possession of classified materials regarding Lau Deep undercover work is very troubling and problematic and needs to be investigated further before any action in the form of a final disposition is taken on this case. Her conduct and actions raise serious ethical, legal and possibly criminal activity on her part. She has not been prosecuted for having classified documents in her possession and sharing them with other FBI employees. One can assume that as acting ASAC she did not have the requisite clearance to have them in her possession or the FBI has been negligent in prosecuting her. That is most troubling in that she admits to having the documents in her possession in her sworn statement attached and incorporated herein by reference marked
Equally troubling is Pierce's admission that she "factored in" the contents of the classified documents in arriving at her conclusions that "Lau was susceptible to coercion by Agents of a Foreign Government". That conclusion is based strictly on the fact of the ethnicity of Lau as Pierce would not have reached the same conclusion if Lau had been Irish American. Worse still is the fact that there was no way that Lau could defend himself against her accusations and suspicions because he did not know she had the classified documents, had not discussed the evidence and facts contained in the documents because he believed them to be off limits and has not discussed those matters, not even to obtain medical treatment for himself nor with his attorney to prepare for this case. One could and maybe should reach the conclusion that her possession, sharing of, use and reliance upon, and treatment of those classified documents, to Lau's extreme detriment and the detriment to his Counsel and this case has placed them in the public domain. Hence Lau and his Counsel should be entitled to receive copies of them for use in obtaining appropriate, long overdue, psychiatric treatment and for use in this case. A careful reading of all the reports, letters, handwritten notes and drafts of all papers, documents, etc., authored by Pierce, to include Exhibit's 8, 9 and 10 is required in order to fully appreciate everything this woman did to remove Lau. Her efforts began early and ended only after Lau's termination.
Pierce documented everything she could about Lau not to help due to his disability, a condition she well knew he was suffering, instead she used all of the aberrant activities and his bizarre behavior to set him up for removal from the rolls. It would be funny, were it not Lau's life that hangs in the balance, that Pierce actually states, in Exhibit #10, she learned about the Asian Culture because she took the "Martial Arts".
Suffice it to say that all of the creepiness, craziness, bizarre behavior and every act that indicated Lau was lost and sick and needed help went unheard and all of it was used against him to label him a problem employee instead. The Performance Appraisal Rating that showed Lau was an excellent employee contained in Exhibit #5 dated 1995 is a far cry from the circumstances plaintiff Lau found himself at the time the Fitness For Duty Request dated 9/9/98. See Exhibit #11.
ISSUES OF MATERIAL FACT PRESENTED
Whether by its misconduct or treatment or mistreatment of plaintiff, defendant and his agents and employees has caused plaintiff to suffer irreparable injury to his health, his emotional and mental health, his career and has placed plaintiff's very life at grave risk is for a jury to determine.. The same holds true for the lives of plaintiff's family. Plaintiff is a sick and mentally damaged, disabled and hurt person who got those disabilities during the course and as a direct result of his service to the FBI and the American People. Plaintiff had several psychiatric examinations and evaluations before and after his employment by the FBI to do his undercover work as a member of this country's human intelligence. This too, is an issue of material fact for the trier of fact to determine.
Defendant's own employees and managers considered Lau to be disabled and recommended either medical disability or treatment by mental health professionals. See Exhibits #8 and 12. The declaration of Margaret M. Grey, Exhibit #12 is very telling. They found that Lau needed therapy and made the decision to so recommend but were "instructed by management" to withhold therecommendation pending the outcome of the OPR investigation.
The Administrative Law Judge Reinhart made a finding on the Raley's incident which the FBI used to terminate Lau that is completely contrary to the finding made by the FBI's DeFeo that formed the basis to terminate plaintiff. A jury could and very probably will find that the termination and all that was used to accomplish that result was nothing more than a sham engaged in by the FBI.
This court should not reward defendant for being disingenuous enough not to mention the fact of plaintiff's disabilities in the letter of termination. Whether the action to terminate Lau was based on a "sham or pretext" engaged in by defendant is an issue of material fact.
Whether defendant knew or should have known that plaintiff was disabled is moot as defendant has admitted that plaintiff is, in fact, disabled. Why then did defendant fail in his duty to treat plaintiff as a disabled employee and get him the medical help he has needed since he reported for work at the FBI office? Has defendant failed to provide a duty owed to plaintiff? All of these are issues of material fact that require this court deny the motion for summary judgment or dismissal.
This case has numerous issues of material fact require that they be presented to a jury. This court should not, in the interests of justice of the American People, those engaged in human intelligence in furtherance of our national security and most of all plaintiff who is, indeed, a hero and who gave everything he had during his undercover work for our country. Plaintiff gave his life to safeguard our way of life. How could the FBI have let this case get this far? The only explanation is racial discrimination. African American Agents have had to sue the FBI (BADGE), so have Hispanic Agents, case settled. Considering the sensitivity of the matters that were the subject of the undercover work performed by plaintiff, one must question the wisdom of defendant herein.
The right of a citizen to be able to defend himself and his rights underpins our entire system of justice in the United States. That is what holds us together and gives us confidence in our judicialsystem. The Government would have this court act as the trier of fact. The court should deny the Motion filed by defendant.
LULAC has submitted Exhibits #14 through #20, inclusive, in order to illustrate the culture of racism and discrimination that still permeates agencies of the Federal Government at the highest levels. Whether the FBI terminated Lau solely because of his disabilities clothed in a sham action is an ultimate issue of material fact that must be decided by a jury.
Wherefore, Premises Considered, LULAC prays this court will deny the Motion filed by defendant in all things. That this court enter an Order that no further rulings will be made unless and until plaintiff is given "adequate" medical and psychiatric treatment as was the recommendation contained by health professionals of the FBI in Exhibit #12.
The court should also enter an Order sanctioning defendant for putting plaintiffâ's attorney in the unenviable position of being ineffective. That plaintiff should not have to proceed further, in this case, until his attorney is fully briefed and is prepared to render effective assistance of counsel to plaintiff.
Plaintiff has no adequate remedy at law and this court has plenary jurisdiction to enter Orders that are in the interest of justice at law and in equity.
Rev. Julie Marquez, Chair