Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

House and Senate leaders are in "conference" right now debating whether or not employees in the Public Health Service (PHS) will obtain whistleblower protections. At stake is whether or not thousands of PHS employees who work at the Department of Health and Human Services (HHS) and the Food and Drug Administration (FDA) will be protected if they blow the whistle on waste, fraud or safety violations.

The National Whistleblowers Center is urging Congress to grant PHS employees the same protections against retaliation as their colleagues who work at HHS and the FDA.

The House-Senate Conference debating the FDA Reform Act (S.3187 / H.R. 5651) will decide the fate of PHS whistleblowers within hours.

Currently there is a loophole in federal law that allows government bureaucrats to fire PHS employee who blow the whistle. There is no protection for PHS whistleblowers who report the waste of taxpayer money or "bad science" being used to justify major public health decisions.

This weekend whistleblower advocates, with strong support among many Members of Congress, proposed a legislative fix for this unjustifiable and dangerous loophole. The fix would simply provide PHS employees with the same protection that all other workers at HHS/FDA have. It gives them the right to lawfully blow the whistle, have an independent investigation conducted by the Office of Special Counsel into any retaliation, and a hearing on the merits of their case. Simple due process.

Take action and tell us your thoughts on this glaring loophole in the comments.

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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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