Whistleblower Law Blog

Despite Recent Scrutiny, Whistleblower Retaliation at the VA Remains a Critical Problem

In recent testimony before the Senate Committee on Homeland Security and Governmental Affairs, Carolyn Lerner, head of the U.S. Office of Special Counsel, said that her office expects that 35 percent of the prohibited personnel practices complaints it receives in 2015 will come from aggrieved employees at the Department of Veterans Affairs. Lerner also told the Committee that, in 2014, “the VA surpassed the Department of Defense in the total number of cases filed with OSC, even though the Defense Department has twice the number of civilian employees as the VA.” Lerner’s testimony came on the heels of a September 17, 2015 letter to President Obama from her office that detailed numerous OSC findings of the VA’s failures to hold accountable employees responsible for wrongdoing, including unlawful retaliation. It also came shortly after the OSC announced that it found that the VA unlawfully retaliated against a former employee of its Baltimore Regional Office. These developments demonstrate the ongoing challenges in protecting the valuable role played by whistleblowers in exposing wrongdoing.

The Office of Special Counsel has two primary duties: 1) it investigates federal employees’ disclosures of wrongdoing (including violations of law, gross mismanagement, gross waste of funds, abuse of authority by government officials, or significant danger to public health or safety); and 2) it investigates “prohibited personnel practices,” including whistleblower retaliation. For the former, the OSC evaluates whether there is a substantial likelihood that wrongdoing exists, and then sends the information to the agency in question. An agency is then required by law to thoroughly investigate the allegations and submit a report on its findings to OSC. For the latter duty, the OSC investigates whether an agency subjected the aggrieved employee to an adverse action (such as firing or demotion) in retaliation for blowing the whistle. If the OSC determines that retaliation occurred, it works with the agency to provide relief to the employee and retains the power to litigate on the employee’s behalf before the Merit Systems Protection Board.

Lerner testified that because of the large increase in complaints related to the VA, her office has had to reallocate resources and personnel to focus solely on VA cases. Lerner detailed OSC remedial actions in several specific cases, including the following: 1) Bradie Frink, a disabled veteran who the VA Baltimore Regional Office fired after he sought help from Senator Barbara Mikulski when the VA lost his claims folder and took no action to locate it, despite Frink’s numerous requests; and 2) Ryan Honl, a secretary at a VA mental health unit in Wisconsin who the VA stripped of his job duties after Honl alerted the VA Inspector General’s Office to the over-prescribing of opiates to patients at the facility. In her testimony, Lerner also discussed the VA’s failures to discipline those at the VA responsible for retaliatory actions.

These developments show that despite increased scrutiny on the VA in recent years, as well as laws that specifically protect those who blow the whistle regarding wrongdoing within the government, whistleblowing remains a risky dangerous venture. But the OSC’s announcement that it has taken steps to devote more personnel and resources to investigating VA whistleblower retaliation may encourage some who might otherwise be deterred from exposing wrongdoing that threatens the safety and health of veterans. Most importantly, these developments highlight the need to adequately protect whistleblowers, whose actions are often the only way in which egregious misconduct, either in the public or private sector, can be adequately exposed and remedied.


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