Two whistleblowers get 45-day stay after OSC intervention

Friday - 10/14/2011, 3:27pm EDT

This story has been updated from its original version.

By Jolie Lee
Federal News Radio

After the Office of Special Counsel intervened on their behalf, two federal whistleblowers won a 45-day stay on personnel actions taken against them.

"We haven't made any determinations yet, but we're saying 'Give us some time to investigate these allegations," Special Counsel Carolyn Lerner said in an interview this week with Federal News Radio.

In the first case, Franz Gayl, a science and technology advisor to the Marines, blew the whistle on the Marine Corps for failing to provide Mine Resistant Ambush Protected vehicles to troops in Iraq. The Marine Corps stripped Gayl of his top secret security clearance and his suspension was set for Oct. 13.

The Merit Systems Protection Board does not have jurisdiction to rule on Gayl's security clearance, but the Board granted OSC's request for a 45-day stay for his suspension without pay.

In an interview with Federal News Radio, Gayl said he was "very thankful" to OSC and MSPB.

"This is something I kind of have been waiting on for some time," said Gayl, who has been on administrative leave for more than a year.

"The best case scenario would be that I would be able to return my own job as science and technology adviser," he said.

Lerner said the stay "will allow for a full and fair review of the matter, without harming Mr. Gayl before his claims are even considered," according to a statement sent to Federal News Radio after MSPB granted the stay.

The Government Accountability Project also commended MSPB's decision.

"The actions of OSC and MSPB should also be a signal to the Marine Corps to give up their wrong-headed campaign of retaliation against a dedicated employee who simply wanted to protect his fellow Marines," said Jonathan Cantú, Gayl's attorney and an attorney with GAP, in a statement on the organization's website.

In an interview with Federal News Radio, Cantú said, "A lot of people would be content to not go on work and just sit on the couch and collect his paycheck, but he's committed to doing his job and he's always wanted to work for that paycheck and contribute his expertise of a really important national interest."

The Marine Corps declined a request for comment, saying in a statement, "Personnel matters involving federal employees are subject to privacy laws and regulations." It continued, "Be assured the Marine Corps takes its obligations and duties under the various whistleblower statutes and regulations seriously and will continue to carefully adhere to these important laws, and the principles underlying them, in its actions."

In the second case, Paul Hardy, a regulatory review officer for the Public Health Service Commissioned Corps, led a team of scientists who found radiation exposure problems with a breast cancer screening device. Hardy was on a detail with the Food and Drug Administration. When FDA planned to approve the screening device over his team's recommendations, Hardy went to the media with his findings.

Hardy, who had received positive performance evaluations in the previous three years, received a negative performance review after he came out with his findings. The negative review resulted in his termination on Oct. 9.

The Food and Drug Administration declined Federal News Radio's request for comment on Hardy's case.

MSPB does not have jurisdiction in matters of the uniformed services. The Department of Health and Human Services argued because Hardy was a member of Commissioned Corps, MSPB did not have jurisdiction. However, OSC said Hardy was "effectively an employee of the FDA at the time of his fatal performance evaluation," according to an Oct. 8 release from OSC.

MSPB did not make a ruling on Hardy's stay request. Because the MSPB did not take action within three days of OSC's request, the stay automatically took effect.

MSPB said it would consider the jurisdiction question should OSC request another stay. OSC has until Nov. 14 to request a stay extension or corrective action, MSPB said in its notice today.

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