Watchdog Examining Dozens of Federal Coronavirus Whistleblower Cases

(Illustration: CJ Ostrosky / POGO)

Thirty-one federal whistleblower disclosures related to the coronavirus have been filed with the U.S. Office of Special Counsel, a federal agency where government employees can officially blow the whistle on alleged wrongdoing. In addition, 15 federal whistleblowers have also filed official complaints that they have been retaliated against for disclosing coronavirus-related concerns, according to data provided by the office to the Project On Government Oversight (POGO) last Friday.

The numbers show that far more federal employees than previously known have blown the whistle with coronavirus-related concerns.

The numbers show that far more federal employees than previously known have blown the whistle with coronavirus-related concerns as the government has raced to initially contain and more recently mitigate the spread of the virus, which has killed over 60,000 in the U.S. to date. It is unknown how much overlap there is between the individuals filing these disclosures and those filing retaliation complaints, as one whistleblower could file both a disclosure and a retaliation complaint.

The Office of Special Counsel won’t discuss details about the cases. (Disclosure: the author is a former Office of Special Counsel employee.) But complaints from at least two whistleblowers have been publicized and attorneys for another whistleblower have said he will soon be filing with the office.

In April, Rick Bright, who was the head of the Biomedical Advanced Research and Development Authority, an office within the Department of Health and Human Services (HHS), went public with his claim that he was retaliated against for opposing the broad use of anti-malarial drug hydroxychloroquine that President Donald Trump has touted as a possible treatment for COVID-19. A recent, limited study of the drug’s use in veterans hospitals shows that the drug does not appear to have any benefit, that it did not appear to reduce the need for ventilators to help patients breathe, and that more patients who were treated with it died than those who weren’t treated with it. (The study has not yet been peer reviewed.) The Food and Drug Administration recently issued a warning about the drug. Other studies are ongoing.

Bright says HHS is retaliating against him by transferring him to a job within the National Institutes of Health that is a “more limited and less impactful position.” HHS says his move is “part of a bold plan to accelerate the development and deployment of novel point-of-care testing platforms.”

“I believe this transfer was in response to my insistence that the government invest the billions of dollars allocated by Congress to address the COVID-19 pandemic into safe and scientifically vetted solutions, and not in drugs, vaccines and other technologies that lack scientific merit,” Bright said in a statement. “Unfortunately, this resulted in clashes with HHS political leadership, including criticism for my proactive efforts to invest early in vaccines and supplies critical to saving American lives. I also resisted efforts to fund potentially dangerous drugs promoted by those with political connections.”

News reports say Bright has had a tense working relationship with his immediate supervisor Robert Kadlec, the department’s assistant secretary for preparedness and response, who reportedly sees Bright as a “roadblock” to Kadlec controlling the Biomedical Advanced Research and Development Authority, according to a source who spoke to the Wall Street Journal.

The administration sought to distribute millions of doses of hydroxychloroquine in New York state and New Jersey, Vanity Fair recently reported, based on internal documents it obtained.

Bright’s attorneys, Debra Katz and Lisa Banks, have said a retaliation complaint with the Office of Special Counsel will be filed shortly and they will request that the office obtain a stay, which is a temporary reinstatement of Bright into his position as head of the Biomedical Advanced Research and Development Authority while the office investigates his complaint. (Disclosure: Katz serves on POGO’s board of directors as vice chair.)

Another whistleblower, a Department of Health and Human Services official whose identity has not been made public, disclosed concerns in late February about the lack of proper personal protective equipment and infection control training of government personnel in close contact with Americans who were evacuated from Wuhan, China, which was the epicenter of the coronavirus outbreak. The whistleblower’s 24-page retaliation complaint with the Office of Special Counsel states that the personnel were “not properly trained or equipped to operate in a public health emergency situation,” according to the Washington Post, and that “appropriate steps were not taken to quarantine, monitor, or test [the workers] during their deployment and upon their return home.” The official alleged she was improperly reassigned after raising concerns and that if she didn’t accept the reassignment, she would be terminated.

“We take all whistleblower complaints very seriously and are providing the complainant all appropriate protections under the Whistleblower Protection Act. We are evaluating the complaint and have nothing further to add at this time,” according to an HHS spokesperson the Post quoted in late February.

A Department of Veterans Affairs hospital employee in Portland, Oregon, filed a whistleblower complaint with the Office of Special Counsel in March after he was exposed to a patient with coronavirus without having been warned that the patient was infected. The employee, Jason Phillips, was not wearing a mask, and he subsequently exposed his family before learning about his own exposure. The Washington Post wrote that “he filed the whistleblower complaint because he was not notified by supervisors of the sick patient, but also because he said his supervisor tried to coach him to change his story about not wearing a mask and about the length of time he was exposed to the patient.” A Veterans Affairs spokesperson said, “These are serious allegations and the department will look into them right away.”

The Office of Special Counsel appears to be preparing for more coronavirus-related whistleblower disclosures and retaliation complaints.

In Government Executive two weeks ago, Special Counsel Henry Kerner wrote, “With the appearance of COVID-19, the number of such disclosures filed with OSC, as well as related complaints of retaliation, has risen over the past few weeks. In response, I established an internal coronavirus taskforce to enhance communication across our multiple units handling these cases.”

Unlike in past instances when the Office of Special Counsel has taken internal actions to deal with a big influx of cases, such as when a surge of Federal Aviation Administration matters occurred under the George W. Bush administration or when the tidal wave of Department of Veterans Affairs cases flooded the office under President Barack Obama, there is no single agency that’s necessarily the source of coronavirus-related complaints. They could come from virtually anywhere in the federal government.

“We are unable to provide a breakdown by agency at this time,” a spokesperson for the Office of Special Counsel told POGO when asked where the coronavirus-related whistleblower cases are coming from. The spokesperson also told POGO that “the statistics I provided would be broadly inclusive to include disclosures/retaliation complaints related to the CARES Act.” The Coronavirus Aid, Relief, and, Economic Security Act is the massive $2 trillion legislative package created to respond to COVID-19’s economic carnage.

At least two out of the three publicized whistleblower cases come from the Department of Health and Human Services, which has historically not been a large source of the office’s caseload. According to the office’s most recent annual report covering fiscal year 2018, only 136 cases came from the department. In 2017, it was 160. In contrast, the Department of Veterans Affairs was the source of 2,125 and 1,824 cases in those years, the top source of the Office of Special Counsel’s caseload.

Unlike the Rick Bright case, relatively few whistleblower cases involve the White House. But when they do, the law offers the special counsel protection from removal by the president, conferring greater independence to the Office of Special Counsel. Currently the special counsel can be removed “only for inefficiency, neglect of duty, or malfeasance in office.” This for-cause removal protection is at risk in a current case before the Supreme Court.

The Office of Special Counsel is just one federal watchdog, albeit one with jurisdiction over most of the government. There are also dozens of inspectors general offices throughout the federal government that also can receive whistleblower disclosures and that conduct audits and investigations. Some of these offices are conducting coronavirus-related oversight. The recently created website for the new Pandemic Response Accountability Committee, made up of several inspectors general, aggregates the coronavirus-related work of these watchdog offices.

For instance, a recent report by the Department of Health and Human Service’s office of inspector general based on a survey of a random sample of U.S. hospitals in late March found many ill-prepared for an influx of COVID-19 patients.

The report came under attack by Trump in a press briefing earlier this month. When asked about it on April 7, Trump said the report is “just wrong. Did I hear the word ‘inspector general,’ really? It’s wrong.” He went on to suggest that the report is politically motivated even though it is not critical of the administration.

Unlike the special counsel though, inspectors general lack for-cause removal protections, which POGO has sought to change by advocating for new legislation. The absence of this protection was recently demonstrated with Trump’s termination of Michael Atkinson, the intelligence community inspector general, in the wake of the president’s impeachment acquittal. A whistleblower complaint transmitted to Congress by Atkinson, as required by law, sparked impeachment proceedings last fall.

The independence of these watchdog offices can also be compromised because a number of inspector general positions are filled by acting officials, who can be swept aside easily by a president and replaced with a person elsewhere in government who has previously been Senate-confirmed, although not for that specific inspector general job. Trump did just that in April with Glenn Fine, the Pentagon’s then-acting inspector general who was the short-lived first chairman of the Pandemic Response Accountability Committee. Along with advocating for for-cause removal protections, POGO has long pushed for promptly filling inspector general vacancies with qualified, independent individuals instead of having them occupied by acting officials for long stretches.

On Friday, Trump nominated Jason Weida, an assistant U.S. attorney, to be the permanent inspector general at the Department of Health and Human Services. An inspector general nomination is normally a positive development, but it has apparently raised the suspicion of Senator Patty Murray (D-WA), the ranking member of the Senate health committee, who said it was a move “to replace an independent government official,” a reference to Christi Grimm, who serves as the department’s acting inspector general. The nomination comes just weeks after Trump’s exchange regarding the watchdog report on hospital preparedness and his subsequent attack on Grimm on Twitter. The nomination was made after the office had been without a permanent inspector general for over 300 days.