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

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.

Links:

• OSC Guidance Memorandum
• FDA Whistleblowers' Federal Lawsuit

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

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.