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Washington Post's Joe Davidson asks federal managers to respect whistleblowers

Posted on March 14, 2012 by Richard Renner

The commissioned corps of the Public Health Service (PHS) and the National Oceanic and Atmospheric Administration (NOAA) work on the cutting edge of federal research and policy on diseases, medical devices, public health, global warming and our environment. Yet, they fall into an exclusion from the Civil Service Reform Act (CSRA) that denies them any of the protections of the Whistleblower Protection Act (WPA). The WPA protects only civilian federal employees.  Reference 5 U.S.C. § 2101(1). They also have no coverage, and no protection, from the less effective Military Whistleblower Protection Act, 10 U.S.C. § 1034.

In today's Washington Post, page B4, columnist Joe Davidson picks up their cause. He decries how their "fine work" does them no good if they become whistleblowers.  He laments how the law has so far failed to protect PHS whistleblower Paul T. "PJ" Hardy. He was fired after raising concerns about the Food and Drug Administration (FDA) approving breast cancer detection devices without adequate proof of safety and effectiveness. The Office of Special Counsel (OSC) sought a stay on his behalf. The Merit System Protection Board (MSPB) concluded it had no power to act because of the PHS and NOAA exclusion from the CSRA.  "This loophole doesn't make any sense," Special Counsel Carolyn Lerner told Davidson. "It undermines public health and safety and should be addressed through legislation.  There really are no statutory protections."

Attorney Stephen M. Kohn is Executive Director of the National Whistleblowers Center (NWC) and is representing Hardy. "We are going to push as aggressively as possible for the protection of all federal employee whistleblowers to be free from targeted monitoring," he told Davidson. Hardy and other PHS whistleblowers have filed a lawsuit in federal court to challenge how managers targeted them for surveillance. Targeting certain employees because of their protected whistleblowing violates the freedoms of the First Amendment. Hardy also challenges his dismissal as a violation of the First Amendment. When no federal statute provides a remedy for these violations, the First Amendment should apply to protect the victims of unlawful retaliation.

The National Whistleblowers Center has now issued an ACTION ALERT. Follow this link to call on legislators and HHS Secretary Kathleen Sebelius to reinstate Hardy and close the CSRA loophole.

Davidson calls on all government agencies to appreciate that "an otherwise legal search can become illegal if it's conducted in retaliation for whistleblowing" (quoting Kohn). Davidson also agrees with Senator Charles Grassley's letter that, "denying or interfering with employees' rights to furnish information to Congress also is against the law." Here, here!

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Special Counsel moves to protect two whistleblowers

Posted on October 8, 2011 by Richard Renner

Carolyn LernerSpecial Counsel Carolyn Lerner (pictured) announced today that she filed requests yesterday on behalf of two federal whistleblowers to protect them from adverse personnel actions. She filed the requests with the Merit System Protection Board (MSPB) in support of Paul T. Hardy, a Regulatory Review Officer for the U.S. Public Health Service (USPHS), and Franz Gayl, a high-level civilian science and technology adviser to the U.S. Marines Corps.

These actions by the Office of Special Counsel (OSC) were unprecedented in the prior administration. Today marks the beginning of new assertiveness by the OSC, and new grounds for optimism by federal employees at every level. Bravo!

Hardy and Gayl have endured hostility from management for years. It is long overdue that someone in government finally took a stand on their behalf. Thankfully, the newly installed Special Counsel is in just the right position to take that stand. Here in this corner, we are so pleased. Follow the continuation of this blog post to read more about Hardy and Gayl's cases.

In Office of Special Counsel (OSC) v. US Public Health Service, the Special Counsel is seeking to stay the effect of the 2010 performance evaluation of Paul T. Hardy, a Regulatory Review Officer for the U.S. Public Health Service (USPHS). In 2009 USPHS detailed Hardy to the US Food and Drug Administration (FDA), his previous employer. Hardy is an expert in biomedical engineering. He led a team of scientists who found safety and effectiveness problems with a Full-Field Digital Mammography device that is intended to detect breast cancer, the Carestream Health Inc. KODAK DirectView Computed Mammography. Such devices are used on about 40 million women every year. Hardy was concerned that FDA managers would approve the device despite his team’s objections. Hardy objected.  He refused to change his recommendations despite threats from management. He also documented his concerns on the official FDA record. He disclosed his concerns to members of Congress. FDA then launched a criminal investigation of Hardy alleging unauthorized release of information. That investigation closed without any action against Hardy, but the agency still approved the device late last year.

After having received Exceptional or Fully Successful performance evaluations the prior three years, Hardy was suddenly given a negative performance rating in January 2011, and in May, was placed on “Non-Duty with Pay Status” and prohibited from entering an FDA/HS facility. Based upon his negative performance review by FDA managers, the USPHS recommended against his promotion, which automatically resulted in his termination.

In OSC v. U.S. Marine Corps, the Special Counsel is seeking a 45-day stay on the proposed indefinite suspension without pay of Franz Gayl, a high-level civilian science and technology advisor to the Marines. Gayl, a GS-15, blew the whistle on the failure of the Marine Corps to timely provide Mine Resistant Ambush Protected (MRAP) vehicles to our troops in Iraq, as well as other protected disclosures. Gayl’s suspension is slated to begin on October 13. The Marine Corps stripped Gayl of his Top Secret security clearance one year ago and placed him on administrative leave. While the MSPB does not have jurisdiction to hear a challenge to Gayl’s security clearance suspension, OSC asserts that the MSPB may nonetheless rule on Gayl’s claim that his indefinite suspension without pay violates the Whistleblower Protection Act.
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