This month, the Office of Special Counsel (OSC) publicly released its 2017 Annual Report to Congress. Overall confidence in the ability of OSC to protect federal employees has increased. Nonetheless, there are still areas for improvement regarding OSC’s handling of whistleblower reports.
On Monday, August 1st, four federal agencies celebrated National Whistleblower Day with an event sponsored by the Senate Whistleblower Protection Caucus. This was the first time any federal agencies have ever recognized Whistleblower Day, although the U.S. Senate has passed a resolution four years in a row proclaiming July 30th as National Whistleblower Day.
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).
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!
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.
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.
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.
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 firstname.lastname@example.org.
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.”
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.
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.
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.