Carolyn LernerSpecial 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.