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

Special 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.

• Print
• Comments
• Trackbacks
• Share Link

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

• Print
• Comments
• Trackbacks
• Share Link

 

It has become apparent that Scott Bloch, head of the Office of Special Counsel, was fired by the Bush Administration. This decision comes more than five months after Bloch became the target of an federal obstruction of  justice probe. Bloch's tenure has been a tumultuous one, and federal government whistleblowers have paid a heavy price.

The National Whistleblower Center's President, Stephen M. Kohn, issued the following statement upon the termination of Special Counsel Scott Bloch:

"The termination of Special Counsel Scott Bloch represents the low point in the history of the Office of Special Counsel. Originally intended to protect whistleblowers, the Office has never fulfilled its promise. Since its inception, the Office has ignored or ruled against the overwhelming majority of federal employee whistleblowers. The institution itself has never acted as a "safe harbor" for whistleblowers. Under Special Counsel Bloch, the Office imploded. Ignoring its mission to protect whistleblowers, the management of the OSC turned on its own staff."

"Change must come to the OSC and it must come fast. We call upon the new President and Congress to ensure that the position of Special Counsel be filled by a truly experienced and competent advocate for whistleblowers. Moreover, Congress and the President must act in a bi-partisan manner to ensure that never again will the Office be politicized and used as a patronage slot. The problem rests with both the President and Congress. Historically, Congress has failed to exercise any oversight concerning the appointment of the Special Counsel. That must end. This position is critically important for the enforcement of federal laws and the protection of taxpayer dollars. Employees risk their careers to do the right thing and report misconduct and abuses of power. The new President must do the right thing and appoint a Special Counsel who can protect these American heroes. Congress must do its job and demand that the next Special Counsel has the background, experience and expertise demanded under the Whistleblower Protection Act."

• Print
• Comments (1)
• Trackbacks
• Share Link

UPDATE: The Washington Post is now reporting the Scott Bloch has resigned, effective yesterday, after a meeting with White House officials. The Post is covering the Bloch resignation HERE and HERE

 Click here to view Bloch's resignation letter.
 

 

UPDATE:   GOVEXEC.COM IS NOW REPORTING THAT THE WHITE HOUSE FORCED BLOCH OUT.

 

 GovernmentExecutive.com is reporting the Office of Special Counsel chief Scott Bloch has submitted his resignation to President Bush, effective January 5th. Although Mr. Bloch probably would not have lasted long under a new administration (his 5 year term ends in January), there was no replacement selected and he may have been able to serve past his term.

Bloch has had more than his share of issues while attempting to lead the independent agency charged with investigating federal government whistleblower complaints. He has dealt with whistleblower complaints against his agency, and an FBI Investigation into allegations that he hired the "Geek Squad" to wipe agency computers clean.
 

GovExec says that Bloch submitted, "a defiant two-page resignation letter to President Bush that quotes Sophocles and list[ed] his achievements at OSC."

UPDATE (10/22/08): The Washington Post has this story detailing Bloch's many disservices to federal workers. 

• Print
• Comments (1)
• Trackbacks
• Share Link

Back in May I blogged about the disgrace that has become the Office of Special Counsel. At that time the head of the OSC, Scott Bloch, had his home and office raided by FBI agents in an obstruction of justice probe.


Now, more trouble is brewing at OSC. On Saturday, Bloch's Deputy Special Counsel Jim Byrne resigned, and in his resignation letter skewered Bloch, saying:

"Upon my departure, I am obligated to note that the mission, independence, and very existence of the Office of Special Counsel are--and shall remain--at risk unless and until this agency is afforded a presidentially appointed, senate confirmed leader who is capable of putting OSC's mission and OSC's people ahead of political agendas and personal vendettas."

The Washington Times and POGO's blog carried reports on this issue last week.


NPR also has a related story, reporting that President Bush has so far refused fire Bloch, although he has been counseled to do so by senior advisers.

• Print
• Comments
• Trackbacks
• Share Link

Many MSM sources (such as the New York Times and CNN)and blogs (like Talk Left) are now reporting that the Office of Special Counsel was raided by the FBI today, along with the home of agency head Scott Bloch. Bloch and his agency are under investigation for obstruction of justice stemming from an ongoing probe in which Bloch and other managers at the OSC -- the agency responsible for investigating federal whistleblower complaints -- are suspected of retaliating against whistleblowers in that agency.


Mr. Bloch has been under investigation since 2005, and today's events are in no doubt related to the fact that he used a private computer service company (Geeks on Call) to erase his personal and office computers during the time of the investigation.

• Print
• Comments
• Trackbacks (2)
• Share Link