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U.S. Special Counsel Warns Agencies Not to Spy on Whistleblowers

Posted on June 20, 2012 by Owen Dunn

FDA Whistleblowers’ Complaint Sparks OSC Guidance Memo on Electronic Surveillance

Today, U.S. Special Counsel Carolyn N. Lerner issued a formal memorandum that the Office of Management & Budget (OMB) sent to the Chief Information Officers and General Counsels of all executive departments and agencies stating that electronic surveillance of an employee’s contacts with an Inspector General and/or the Office of Special Counsel (OSC) is illegal.

The Special Counsel’s action was sparked by allegations of illegal surveillance of Food and Drug Administration (FDA) whistleblowers supported by the National Whistleblowers Center (NWC).

Special Counsel Carolyn Lerner was appointed by President Obama to run the Office of Special Counsel, the federal agency responsible for ensuring that the federal government does not retaliate against whistleblowers.

In her memo, the Special Counsel stated:

We strongly urge Executive departments and agencies to evaluate their monitoring policies and practices, and take measures to ensure that these policies and practices do not interfere with or chill employees from using appropriate channels to disclose wrongdoing….Agency monitoring specifically designed to target protected disclosures to the OSC and IGs is highly problematic. Such targeting undermines the ability of employees to make confidential disclosures. Moreover, the deliberate targeting by an employing agency…could lead to a determination that the agency has retaliated against the employee.

In January 2012, the FDA whistleblowers filed a complaint documenting how FDA officials conducted special targeted monitoring of employees who blew the whistle on the FDA’s illegal approval of unsafe medical devices to the New York Times, the Inspector General and the OSC. The FDA utilized spyware to secretly monitor the whistleblowers computers and used other technology to gain access to their password-protected Gmail-to-Gmail communications to Congress, the Office of Special Counsel, and other oversight authorities.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center and lead counsel for the FDA whistleblowers, stated:

This is a significant first step in protecting the Constitutional rights of federal employee whistleblowers. This is the first time limits have been placed on the federal government's ability to monitor employee emails. The OSC’s guidance memorandum provides additional support for the NWC's position that FDA improperly conducted surveillance in violation of employees’ freedoms of speech, privacy, and association, as well as their freedom against illegal searches.

The targeted monitoring of whistleblowers in all government agencies must stop immediately. It has created a tremendous chilling effect on the willingness of federal employees to speak up about what they witness. This affects not only public health and safety, but also the personal wallet of every American taxpayer.

Managers who illegally spy on whistleblowers must be held accountable for their actions.

Civil servants who believe that they were illegally monitored for raising issues should immediately consult an attorney, file a complaint with the OSC, and seek redress.

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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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Whistleblowers Expose FDA's Illegal Surveillance of Employees

Posted on February 1, 2012 by Lindsey Williams

TAKE ACTION!

FDA Spy Program Documents Linked Here

As reported in today's Washington Post, six current and former employees of the Food and Drug Administration (FDA) have filed a complaint against the FDA in U.S. District Court. The employees are seeking an injunction to stop the agency from illegally spying on employees' private communications to Congress and other oversight agencies.

Linked here are key documents related to this lawsuit and the FDA's spying program.

The complaint details how the FDA targeted its employees with a covert spying campaign that lasted for two years. The FDA began the program after learning that the employees wrote a letter to President-Elect Obama and his transition team in early 2009 detailing government misconduct in approving unsafe medical devices.  The Agency installed (or activated) spyware on their workplace computers and used other technology that to monitor their password-protected Gmail-to-Gmail communications.

In addition to reading the whistleblowers' emails, the FDA took contemporaneous screen shots of the employees’ computer screens. Managers used the collected information to learn the identities of confidential whistleblowers and to obtain the details of the public health and safety concerns the whistleblowers intended to disclose to the Office of Special Counsel, Congress and the Agency's own Inspector General.

The FDA also intercepted email communications to and from staff members of the House Committee on Energy and Commerce and the Ranking Member of the Senate Finance Committee.  These Congressional intercepts are linked here.

The FDA’s prolonged covert monitoring of the whistleblowers continued even after the HHS Office of Inspector General denied the FDA’s request to take any criminal and/or administrative action against the whistleblowers. In their letter of refusal, the OIG explicitly informed the FDA that the whistleblowers' communications to Congress were protected under law.

The managers who spearheaded the surveillance efforts were the same managers involved with the wrongdoing and corruption that the whistleblowers were seeking to report. Lawyers at the FDA and HHS Offices of General Counsel, who should have understood that the program breached the employees’ confidentiality, helped FDA managers with their obstruction and retaliation.

In their lawsuit, six FDA whistleblowers who were fired by the agency (including two highly respected medical doctors, a Branch Chief, a former Health and Safety Officer employed by the Public Health Service and a 23-year FDA career M.D./Ph.D Scientist) are requesting a nationwide injunction prohibiting the federal government from targeting whistleblowers with selected surveillance and monitoring.

The lawsuit alleges that such targeted monitoring of whistleblowers violates their First Amendment rights of freedom of speech and association.

Stephen M. Kohn, NWC Executive Director and attorney for six FDA whistleblowers, issued the following statement:

The FDA declared war on employees who were trying to warn Americans about threats to public health and safety.

The federal government cannot---and should not---spy on whistleblowers. The First Amendment prohibits targeting whistleblowers and selectively monitoring them using highly intrusive electronic surveillance without a warrant.

Targeting the employees who raise health and safety concerns---or who try to report waste, fraud and abuse to the proper authorities---will have a massive chilling effect on employees.

The FDA's illegal spying program is not just a problem for the six victims in this case. The day we allow the government to spy on employees based on their lawful whistleblower activities is the day we give up privacy for every honest public servant in America.

If permitted to stand, the FDA's whistleblower surveillance program will be used by government agencies throughout the United States to silence employees who want to report misconduct.  Those who are not silenced will be subjected to years of intrusive covert spying designed to dredge up embarrassing information that the agencies can use to destroy the whistleblowers' reputations and careers.

Today, the NWC issued an Action Alert seeking public support for the FDA whistleblowers and demanding an end to the federal government's targeted and selective surveillance of whistleblowers.

The NWC obtained the intercepted emails as a result of a lawsuit filed under the Freedom of Information Act and from documents produced by the FDA as a result of administrative actions taken against three of the whistleblowers.

Links:  

FDA Whistleblower Complaint

 
 
 

 

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American Bar Association Holding Panel Discussion with OSC

Posted on October 26, 2011 by Lindsey Williams

The American Bar Association (ABA) is holding a brown bag lunch panel with staff members from the Office of Special Counsel (OSC) on Thursday, November 3rd, from 12:00 pm-1:30 pm EST. The panel discussion will cover recent developments in Merit Systems Protection Board (MSPB) and Federal Circuit case law that impact whistleblowers. The panel will also discuss matters within OSC’s jurisdiction, practice tips for attorneys representing clients in OSC matters, and the Special Counsel’s new policy initiatives.

The panelists for the presentation are: Mark Cohen, Deputy Special Counsel of OSC; Shirine Moazed, Chief of the OSC’s Washington Field Office; and Andrew J. Perlmutter, Attorney at Passman & Kaplan, P.C. (Moderator).

You can attend the event in person at 740 15th St. NW, John Marshall Room, 9th floor, Washington, DC 20005 or by teleconference.

The event is open to the public, but prior registration is required and space is limited. You do not need to be an ABA member to attend. Please return the registration form by Tuesday, November 1st. Any questions please contact Ryan Spagnolo at ryan.spagnolo@americanbar.org.

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MSPB Approves Stay for FDA Whistleblower

Posted on October 21, 2011 by Lindsey Williams

The Merit Systems Protection Board (MSPB) recently allowed a stay in the termination of a Food and Drug Administration (FDA) whistleblower, Paul T. Hardy. The Office of Special Counsel (OSC) requested the stay on his behalf due to reasonable belief that Mr. Hardy’s recent termination from the FDA constituted a violation of the Whistleblowers Protection Act (WPA).

According to the OSC, there is substantial evidence that Mr. Hardy’s termination was a direct retaliation for disclosures he made about serious safety issues with a screening device designed to detect breast cancer. The OSC explained that Mr. Hardy’s whistleblowing “raised issues related to exposing the general population to unwarranted radiation exposure and ineffective cancer screening devices.”

Stephen M. Kohn, Executive Director of The National Whistleblowers Center, and one of Mr. Hardy’s attorneys stated the following:

The Office of Special Counsel did the right thing. They stood up and demanded due process for Paul T. Hardy. The FDA’s practice of firing whistleblowers who resist industry pressure to approve hazardous drugs and devices must stop. The OSC’s request to stay these abusive practices is a critical first step in fixing the retaliatory culture that pervades upper management at the FDA. We hope that OSC will continue its investigation into the FDA and order relief for the other whistleblowers who lost their jobs after they exposed substantial and specific dangers to public health and safety.

If Mr. Hardy’s and other recent whistleblower cases associated with the OSC are any indication, Mr. Kohn may have found a good reason for hope in recently appointed Special Counsel, Carolyn Lerner. Since Ms. Lerner was sworn into office in June, her office has asked the MSPB to issue a total of three stays for whistleblowers, including Mr. Hardy. According to the Washington Post, that is three more stays than were won in the three years leading up to Ms. Learners appointment.

In an interview Ms. Lerner stated, “Federal workers should know they are not going to be singled out and punished for doing the right thing.” Ms. Lerner’s whistleblower advocacy is encouraging and will hopefully continue to strengthen the cause of Mr. Hardy and whistleblowers like him.

You can support Mr. Hardy and other FDA whistleblowers by TAKING ACTION an demanding that the FDA and Public Health Service stop retaliating against whistleblowers.

 

*Trevor Melvin (a NWC intern) contributed to this posting
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Former Special Counsel Sentenced to One Month in Prison

Posted on March 31, 2011 by Lindsey Williams

Scott Bloch, the former head of the Office of Special Counsel (OSC), was sentenced to one month in prison, twelve months probation and 200 hours of community service yesterday, after he pled guilty to criminal charges for his misconduct during is tenure at OSC. 

During FY 2008, of the 530 new whistleblower disclosures brought to the OSC, just 25 were reported to the President and Congress, meaning 95% of whistleblower disclosures brought to the OSC were ignored with no determination ever made on their validity. More "highlights" on Mr. Bloch's tenure at the OSC can be found at civilservicechange.org, courtesy of Charlotte Yee.
 
Stephen M. Kohn, Executive Director of the National Whistleblowers Center, said:

Instead of deterring fraud, which was his job as the head of the Office of Special Counsel, Scott Bloch promoted it. This will ultimately cost the American taxpayer billions of dollars. It is a shame that Mr. Bloch has been given nothing more than a slap on the wrist for his crimes, while true whistleblowers such as Bradley Birkenfeld are ostracized and imprisoned.
 
It has now been over two years since President Obama made a campaign promise to appoint a strong advocate for whistleblowers as the new Special Counsel. The National Whistleblowers Center repeats our call for the immediate appointment of someone who is aggressive, competent, independent and will change the culture of the OSC and stand behind whistleblowers.
 
 
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Former Special Counsel Sentencing Postponed Again

Posted on February 7, 2011 by Lindsey Williams

Today, Magistrate Judge Deborah Robinson of the U.S. District Court for the District of Columbia postponed Scott Bloch’s sentencing once again until Thursday, March 10, 2011. Prosecutors urged the judge to reconsider her ruling last week that the charge of lying to Congress carries a one-month minimum jail sentence.

Scott Bloch was the former head of the Office of Special Counsel. He pled guilty in April to contempt of Congress for lying about his effort to erase files from government computers. Bloch withheld information from the House Oversight and Government Reform Committee during the Bush administration. Federal investigators charged him, the nation’s former top protector of whistleblowers, with criminal contempt of Congress.  

His sentencing has been continuously postponed because his charge is rare and a verdict has been difficult to determine. Last week, in her 13-page ruling Judge Robinson declared that the dispute was a novel one with no published opinion on what the sentencing for contempt of Congress is.

Bloch’s attorneys at Winston & Straw and the government’s attorney argued that Judge Robinson had discretion to sentence Bloch to probation. Bloch’s attorneys had worked out a deal that would require probation, a fine, and community service. Judge Robinson stated that she had not found any authority to support the lawyers’ argument that the sentencing provision is discretionary.

Assistant U.S. attorney Glenn Leon said in today’s court filing that a sentence of probation is always permitted unless there is language expressly prohibiting a non-jail sentence. Leon cited a 1987 U.S. Supreme Court ruling to Judge Robinson.

Robinson asked Leon and Bloch’s attorneys to provide more evidence justifying the government’s motion to reconsider the sentencing ruling. Bloch’s attorneys plan to support the prosecution’s motion urging Judge Robinson to change her mind and allow Bloch to avoid jail.

*Sabeen Khanmohamed (a NWC intern) contributed to this posting
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OSC report due for immigration official protected by MSPB stay

Posted on October 5, 2010 by Richard Renner

Maria Aran is the chief of staff for the Miami district of the US Citizenship and Immigration Services (USCIS), a part of the Department of Homeland Security. When she discovered that a sub-office had mishandled hundreds of sensitive documents, she made a report for the agency's security office. When she sent that report, she inadvertently also sent it to 300 agency officials around the country. (Anyone else ever get surprised that an email was sent by "reply-all"?) Soon thereafter, Aran's bosses wanted to involuntarily transfer her to another agency. Aran complained to the Office of Special Counsel (OSC) which requested an emergency stay of the transfer.  The Merit System Protection Board (MSPB) granted that stay for 45 days. Andrew Becker of the Center for Investigative Reporting writes in today's Washington Post (p. B-3) that OSC is nearing the end of its 45-day investigative period. MSPB stays to protect whistleblowers were unheard of during the prior administration. While we appreciate this stay, we also long for President Obama to appoint a permanent Special Counsel who will have the support and staffing to seek more protections for whistleblowers.

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Sentencing delayed again for former head of OSC

Posted on September 10, 2010 by Lindsey Williams

Former Special Counsel Scott Bloch pled guilty earlier this year to one count of criminal contempt of Congress. He was due to be sentenced on Wednesday, but it was delayed so that the magistrate judge can decide whether there is a minimum one-month mandatory jail term. The statute (2 U.S.C. Section 192) says a person “shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.”

Bloch and the government both claim that the plea deal reached was based on a sentence of probation, a fine and community service. The prosecutors are not seeking jail time. The court is not bound by the plea deal, but if the judge rules that there is a minimum one-month sentence, Bloch could move to withdraw his plea deal.

Bloch’s job as the head of the Office of Special Counsel was to protect federal employees from prohibited personnel practices – meaning he was supposed to protect the whistleblowers. Instead, he illegally scrubbed files from office computers while he was under investigation by the inspector general of the Office of Personnel Management for improperly retaliating against former employees.

I have a hard time understanding why prosecutors are working so hard to protect a man who disgraced an office designed to protect whistleblowers. Prosecutors had no problem asking for jail time for the largest international tax whistleblower ever, Bradley Birkenfeld.

As NWC Executive Director Stephen Kohn, so aptly put it: “This is not a case of the fox guarding the chicken coop. This is a case of the fox pleading guilty to murdering the chickens. Scott Bloch's actions have cost taxpayers billions of dollars in the misuse of monies, and have cost countless whistleblowers their reputations and careers.”

The Office of Special Counsel is still without a leader. President Obama should immediately appoint an aggressive, competent, independent whistleblower advocate who will have the courage to take on the bureaucracy and demand accountability.  It is time for someone who will change the culture of the OSC and stand behind the whistleblower. You can send President Obama your own letter requesting a new OSC by clicking here.

"Plea agreement for ex-special counsel in limbo" Government Executive, Sept. 8, 2010
"No Sentence Yet for Disgraced Bush Lawyer" The Blog of Legal Times, Sept. 8, 2010
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Whistleblower "Watchdog" Blurs It's Record

Posted on August 2, 2010 by Stephen Kohn

We are deeply disappointed at the letter from Darshan A. Sheth, Acting Director of Public Affairs for the Office of Special Counsel (letter to the editor, Washington Post on Monday, July 26, 2010). There is bipartisan consensus that the Office of Special Counsel (OSC) is dysfunctional, and instead of suggesting reforms, the OSC responded to this criticism by obfuscating its record. This is a bureaucracy that has failed to protect whistleblowers for the past ten years.

The letter from the OSC fails to mention the most recent statistics it released, which show that during fiscal year 2008 the OSC ignored 95% of whistleblower disclosures without any investigation and obtained zero stays from the Merit Systems Protection Board. Indeed the letter notes that there is an “increase in the number of whistleblower reprisal complaints“ even as the OSC continues to do little or nothing to support the whistleblowers who file these complaints.

The only way for whistleblowers to be truly protected is if this defensive posturing by the OSC ends.  Real reform must occur, and President Obama must appoint a new chief watchdog at the OSC who will protect and champion the whistleblower. 

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