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

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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In today's Washington Post, columnist Joe Davidson says, "If the Environmental Protection Agency’s Office of Civil Rights were a chunk of ground, it would be declared a disaster area." Mr. Davidson recounts the findings made by Deloitte Consulting in a report released last month. He also noted the call made by the National Whistleblowers Center to oust OCR's director, Rafael DeLeon. EPA spokesperson Adora Andy told Mr. Davidson that EPA would look into our allegations about Mr. DeLeon's off-color remarks. EPA said the same thing to POLITICO on Monday. How long does it take to ask Mr. DeLeon if he called Dr. Marsha Coleman-Adebayo and Ms. Susan Morris "pink elephants?" How long does it take to ask him if he chided Dr. Coleman-Adebayo for being a "Rosa Parks of the EPA" or if he referred to a lapdance at a staff party? Or, is EPA unsure if a director of the "Office of Civil Rights" should do any of these things? Joe Davidson's article could give these questions the prominence we need to get some answers soon.  Thank you, Mr. Davidson.

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Today's Washington Post, Metro section, leads with a story by Rosalind Helderman called "Democrats try to curb Cuccinelli's powers." The story reports on an effort by some Virginia Commonwealth Senators to change state law so that the state Attorney General must get court approval before issuing a "civil investigative demand" (CID). The proposal is an obvious response to concerns that Virginia's current Attorney General, Ken Cuccinelli, is abusing the power to issue CIDs by focusing on a global warming scientist.

Mr. Cuccinelli's office issued a statement suggesting that the proposed limit on CIDs could lessen Virginia's share of recoveries for false claims actions. The article mentions an increased share for states "when they win fraud cases." This may be a reference to the Grassley Amendment to the Deficit Reduction Act. Under the Grassley Amendment, states that have their own "Little FCA" Acts that meet federal standards will get a bigger share of federal recoveries from fraud claims in their states. Virginia's law already meets these standards. (Maryland does not; read here about why.) The federal government is still working to get states to adopt their own Little FCAs, and has not excluded any state for limits on CIDs. For Mr. Cuccinelli to use the Grassley Amendment to deflect criticism of, or limits on, his use of CIDs is a misuse of the FCA.

"My general opinion is that this is what happens when political hacks in both parties step into the FCA arena -- good law gets hacked up," says Patrick Burns of Taxpayers Against Fraud. "The Civil Division at DoJ has never engaged in partisan politics or open-ended witch hunts, and what Cucineill is doing here feels very much like that."

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In yesterday's Washington Post, an editorial called "Charging WikiLeaks" urges the Obama administration to refrain from pressing criminal charges against WikiLeaks leaders for releasing classified State Department cables. "Media outlets do not have a legal duty to abide by the government's secrecy demands," the editorial declares. What should the government do? At the end of the editorial, the Post editors suggest, "[s]horing up the independence and tools of the inspectors general . . . might persuade the next would-be whistleblower to tern to a responsive . . . government entity . . ..." Does the Post really think that would-be whistleblowers don't have the address of the House and Senate Intelligence Committees? My experience is that inspectors generals are good at taking action against corruption that the leadership does not want.  If it is the leadership that is corrupt, then the inspector general they pick is unlikely to take action against them.  My hunch is that most would-be whistleblowers would figure that out. How about meaningful legal protections against retaliation? The current version of the Whistleblower Protection Enhancement Act (WPEA) in the Senate (S. 372) would leave national security whistleblowers stuck with the decisions of the leaders of the intelligence agencies.  That is likely to be worse that the Merit System Protection Board (MSPB) which rules against whistleblowers over 98% of the time. The House version (HR 1507) would allow all federal employees to have access to jury trials.  Even the employees of national security agencies have access to jury trials for Title VII claims of discrimination. The legal system has figured out how to permit these claims to be tried without damaging national security. It is time we use this process to enhance national security by making sure that whistleblowers have the gold standard of justice when they pursue the lawful means of raising concerns about abuses.

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Ed O'Keefe of The Washington Post is quoting Stephen M. Kohn, Executive Director of the National Whistleblowers Center, in a story appearing on today's Fed Page. Called, "Immigration agency assailed over leak probe," the story reports on criticism the immigration service is getting from the American Federation of Government Employees (AFGE) Local 118. AFGE is upset that management at the immigration service is conducting a witch hunt for whoever leaked to The Washington Post an email about quotas for arrests of undocumented immigrants. The investigation has focused on an agent who has an Asian last name, apparently because the Washington Post reporter also has an Asian last name.

Kohn told O'Keefe that the backlash for President Obama on prosecuting whistleblowers is less than it would be since Obama is a Democrat.  "It mutes the criticism," Kohn said. Kohn also said that whistleblowers face more risk since the president has not yet appointed a Special Counsel to protect them. Rep. Darrell Issa (R-Calif) told O'Keefe that he is calling on the president to appoint top leaders for 15 inspector general offices that still lack permanent leadership. Rep. Issa's letter is available here.

O'Keefe's story also mentions other whistleblowers facing prosecution by this administration.  These include Thomas Drake who used to work for the National Security Administration (NSA).  The article also mentions concern about the Internal Revenue Service failing to issue any whistleblower rewards, but neglects to mention Bradley Birkenfeld who is still in jail after delivering to the U.S. government information that helped collect $20 billion in unpaid taxes.

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This Sunday's Washington Post featured an article that details Bradley Birkenfeld's actions as a whistleblower, and how those actions landed him in federal prison. The article discusses the contradictory messages sent to potential whistleblowers by the U.S. government:

Birkenfeld's story turned into a cautionary tale for would-be informants and a test of the U.S. government's attitude toward them. Should people who come forward with inside knowledge of a crime be rewarded, punished -- or both? Can the government simultaneously woo such whistleblowers with financial enticements and threaten them with incarceration?

Click here to read the full article.

As you know, Mr. Birkenfeld filed his official clemency petition on tax day. If you have not done so already, we urge you to take action now and send a letter in support of Mr. Birkenfeld's clemency campaign. We also urge you to pass this message on to your friends, family, and anyone else who might be interested in this cause. 

 

 

*Meryl Grenadier (NWC Fellow) drafted this post.

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Today's Washington Post (Metro page B-1) reports on "a blunt assessment" of Washington DC's Metro transit administration.  Retired Metro manager David L. Gunn wrote the report.  Among other problems, it finds a "shoot the messenger" phenomenon "that discourages employees from raising safety concerns." The report is particularly sobering in light of last year's collision that killed nine people.  Metro has had other fatal accidents since then.

I know a fix for the "shoot the messenger" phenomenon. Any Metro manager, union official, or journalist could help.  One change could assure that safety issues are raised and addressed in the warm glow of pubic attention.  Every Metro train operator, bus driver, maintenance worker and manager needs to know that a recent federal law now protects them from retaliation when they raise safety concerns. 

Last October, I wrote here about how the Washington Post could report on the National Transit Systems Security Act of 2007 (NTSSA). NTSSA has given every transit system employee the right to put safety first, to bypass the chain of command, and to disobey unsafe or illegal orders. Under NTSSA, every Metro employee has legal protection if they choose to speak to a newspaper about safety concerns. They would be protected if they follow safety rules and run "late" as a result. Victims of retaliation need to know that they have only 180 days to file a complaint (some laws allow only 30 days).

I would be happy to speak to any group of Metro employees about their rights under NTSSA and how to enforce them.   Just call me, 202-342-6980, Ext. 112.

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On October 14, the Washington Post ran a story on Metro drivers going "Strictly by the Book" (p. B-1). The story highlights safety issues that reach beyond Metro. That the Post's writer would be concerned about the disruption reveals a prevalent but dangerous attitude that speed is more important than safety.

As an advocate for whistleblowers, I am particularly concerned that the bus drivers speaking to the reporter were afraid of retaliation. The National Transit Systems Security Act of 2007 (NTSSA) has given every transit system employee the right to put safety first, to bypass the chain of command, and to disobey unsafe or illegal orders. Under NTSSA, every Metro employee has legal protection if they choose to speak to a newspaper about safety concerns. They would be protected if they follow safety rules and run "late" as a result.

That some Metro employees were afraid to speak shows that this new law is either unpublicized or ineffective. I think it is both. The Post could do a service by explaining that federal laws protect many health and safety whistleblowers. Victims of retaliation need to know that they have only 180 days to file a complaint (some laws allow only 30 days).
Awareness of the law will do no good, however, unless our government does a better job of enforcement. The Department of Labor's whistleblower program is still run by holdovers from the prior administration. They have used unfounded excuses to deny remedies to whistleblowers. They are bogged down by backlogs, poor training and inadequate resources (as found by the General Accounting Office last January). The new Secretary of Labor, Hilda Solis, can make a dramatic improvement in the system at any time by appointing new members of the Administrative Review Board.

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Robert MacLean is a former federal air marshal. During the Summer of 2003, he exposed a plan by the Transportation Security Administriation (TSA) to stop all overnight travel by the air marshals to save money on the budget.  This shutdown of air marshal travel came at the same time that the Department of Homeland Security was reporting an active al-Qaeda suicide hijack plan.  MacLean's courageous disclosure prompted Congressional and public outrage.  In response, TSA reversed its decision, continued air marshal travel, and fired MacLean for making the disclosure.  MacLean also raised concerns about how TSA's dress code for air marshals made them easy for terrorists to identify.

 

Yesterday, a House committee heard testimony from the Director of the Federal Air Marshal Service (FAMS), Robert Bray.  Bray told Congressman Bill Pascrell (New Jersey) that it was a problem that his predecessors ignored whistleblower complaints of safety and security problems.  The old management forced the whistleblowers to go to the media. Rep. Pascrell insisted that the TSA should give MacLean and others their jobs back: "pure and simple."

Joe Davidson reports in today's Washington Post that Pascrell showed concern about MacLean's case. MacLean is "still twisting in the wind," Pascrell told Davidson. "I think it's very unfair."

MacLean has posted seven (7) minutes of excerpts of the hearing on YouTube.

Here are some excerpts from the witnesses' testimonies:

Jon Adler, National President of the Federal Law Enforcement Officers Association, cited MacLean's case in his verbal and written testimony:

"Last, in an effort to remedy some of the personnel hardships brought on those who spoke out in the past, FLEOA recommends that TSA conduct retroactive case reviews of past Whistleblower cases within the agency. Brave Air Marshals such as Frank Terreri who sits with me today, and Robert MacLean were punished in 2005 and 2006 for blowing the whistle on past FAMS policies that endangered the public.  At the same time, FAMS executive management, in the height of its hypocrisy, continued to televise false bravado news segments that publicized Air Marshal operational protocol. I appeal to this committee to support all efforts to review these cases and return those who were victimized to full flying duty."

http://homeland.house.gov/SiteDocuments/20090723104159-67506.pdf
 

Christopher P. Carney, Chairman of Subcommittee:

"In the past, the FAMS organization has struggled with numerous personnel issues that have impacted morale and caused the agency public embarrassment."

"I know that members have questions on a number of topics today, including polices aimed at improving Air Marshal anonymity, steps that have been put in place to foster better communication between line-level Air Marshals and management, and the need to implement consistent guidance on disciplinary actions that the entire FAMS, including field offices, are to follow."

http://homeland.house.gov/SiteDocuments/20090723103947-58658.pdf
 

Bennie Thompson, Chairman of FULL Committee

 

"After a downward spiral with countless complaints and concerns, the Service realized that they needed to turn the corner and fix the considerable damage that had been done to its workforce morale and reputation."

"All TSA workers need to have whistleblower protections in the name of security – so that they are able to report security concerns without fear of losing their jobs or retaliation."

 

http://homeland.house.gov/SiteDocuments/20090723104018-05453.pdf

 

 

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As you know, we have been waging an intense campaign for new whistleblower protection laws. We have experienced recent victories and setbacks. And now, prominent whistleblowers like Bunny Greenhouse are calling us all to action. Throughout this campaign, our staff has been incredibly impressed with the level of support shown by our blog readers, facebook users, and all other online grassroots supporters. We have sent thousands of letters to Congress and we are achieving real change!!! 

This groundswell of support is driving a national conversation about whistleblower rights, which is evidenced by the fact that the national news media is paying very close attention to these recent developments. Just today, there are two stories in the Washington Post detailing the struggle for whistleblower protections for federal employees, and especially national security whistleblowers. See the links below for the articles.

"Advocates Determined to See Whistleblower Protections Pass"

"Obama, Gates at Odds Over New Whistleblower Protections"

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