By NICK SCHWELLENBACH
In an unusual, but welcome move on Friday, the federal government's top official for protecting whistleblowers intervened in two whistleblowers' cases to stop adverse personnel actions against them from moving forward, according to an Office of Special Counsel (OSC) press release issued on Saturday.
Special Counsel Carolyn Lerner filed requests with the Merit Systems Protection Board (MSPB), a federal panel that handles whistleblower disputes, to "stay" (temporarily halt) adverse personnel actions against the two whistleblowers.
“These cases concern serious threats to public health and safety, and raise important issues of law,” said Lerner in a written statement.
The two whistleblowers are familiar to POGO. One is Franz Gayl, a civilian Marine Corps science advisor who blew the whistle on egregious delays in providing Marines with Mine Resistant Ambush Protected vehicles (MRAPs) and other equipment. The two-year delay occurred despite urgent requests from Marines in the field and hundreds of deaths due to improvised explosive devices (IEDs). Gayl’s disclosure shed light on the problem and within months thousands of MRAPs were shipped to Iraq, saving perhaps thousands of American lives.
Gayl was stripped of his security clearance about a year ago and was placed on administrative leave. His job is slated for suspension on October 13.
“While the MSPB does not have jurisdiction to hear a challenge to Gayl’s security clearance suspension,” stated the OSC press release, “OSC asserts that the MSPB may nonetheless rule on Gayl’s claim that his indefinite suspension without pay violates the Whistleblower Protection Act.”
The other whistleblower is Paul Hardy, a regulatory review officer with the U.S. Public Health Service who was detailed to the Food and Drug Administration (FDA) to review medical devices submitted for approval.
POGO has sent several letters pointing out similar issues in other medical device approvals, concerns raised by other whistleblowers inside of FDA. And like many of these other whistleblowers, Hardy found himself facing a hostile reaction from management.
The OSC press release states that the MSPB normally does not have jurisdiction over uniformed federal personnel (the U.S. Public Health Service is uniformed, similar to servicemembers in the armed forces and Coast Guard). However, “at issue in this case is whether MSPB may consider a whistleblower claim action by a member of a uniformed service who, like Hardy, was effectively an employee of the FDA at the time of his fatal performance evaluation.”
The non-profit National Whistleblowers Center (NWC) said the OSC’s moves mark a positive step forward for whistleblower protection. “These actions by the Office of Special Counsel (OSC) were unprecendented in the prior administration,” wrote Richard Renner of NWC. “Today marks the beginning of new assertiveness by the OSC, and new grounds for optimism by federal employees at every level.”
Lerner indicated that these moves may not be unusual for much longer and may become the norm. “OSC’s actions make clear that this agency will vigorously protect federal employees against retaliation when they blow the whistle,” Lerner said.
Nick Schwellenbach is POGO’s Director of Investigations.