In an October 8 news release, the Office of Special Counsel reported that it had filed stay requests with the Merit Systems Protection Board (MSPB) in the cases of two whistleblowers, Franz Gayl and Paul T. Hardy. On October 13, the MSPB issued an Order granting the stays, temporarily halting disciplinary actions against the two whistleblowers. Advocates of good government praised the actions.
Gayl, a Marine Corps science and technology advisor, ” blew the whistle on the Marine Corps for failing to provide Mine Resistant Ambush Protected vehicles to troops in Iraq, after which he was stripped of his top secret security clearance. He has been under attack reportedly for “his continued efforts to hold officials accountable for ignoring an urgent request for help by soldiers under fire.” We described Gayl’s story previously here.
Attacks on Hardy have been attributed to his disclosure of safety issues connected with medical devices approved by the Food and Drug Administration.
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. (Richard Renner, Whistleblowers Protection Blog).
It is not clear, yet, whether the MSPB has authority to intervene on Hardy’s behalf.
Ordinarily, MSPB does not have jurisdiction in matters concerning members of the uniformed services. 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.
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