Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

There is a lot of discussion as to whether Edward Snowden, the NSA Whistleblower is a hero or a villain. If the government had established procedures under which intelligence employees could report wrongdoing and be protected from retaliation, Snowden would not have had to risk his freedom and career by releasing documentation of official misconduct to the press. However, there are currently no effective protections for workers in the intelligence community.

The intelligence community is exempt from Whistleblower Protection Act. Russell Tice spoke to MSNBC about this issue yesterday.

Mr. Tice states in the interview:

“The Whistleblower Protection Act does not apply to the intelligence community. They’re exempt from it. And most people in the intelligence community don’t realize that. So, you can’t even go to the Office of Special Counsel because they’re exempt from that, too, and the merit system protection board. So even if you use the Intelligence Community Whistleblower Protection Act, the only thing that gives you is the right to go to Congress. It doesn’t–it doesn’t have any teeth there to protect you against retribution from the agency that you’re reporting abuse on.” 

Watch the interview. 

In the past few days the Obama Administration has touted it’s October 10, 2012, Presidential Policy Directive which was designed to “protect” national security whistleblowers. At the time this directive was released the National Whistleblower Center strongly criticized it as failing to provide any real or substantive legal rights for national security employees. See NWC Press Release.

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FOR IMMEDIATE RELEASE

Statement of Stephen M. Kohn, Executive Director of the National Whistleblower Center

“Edward Snowden should not be prosecuted. Instead, the White House must keep the promise made by President Obama, during his 2008 election campaign, when he pledged to support legislation that would fully protect all government whistleblowers, including those in sensitive national security positions.”

“Until Congress enacts a law, setting forth reasonable procedures by which civil servants can disclose national security violations to the American people, the government should not prosecute these whistleblowers. Congress and the President must do their jobs, and stop destroying the lives of civil servants who try to report misconduct”

There is significant historical precedent for the protection of whistleblowers demonstrating that such protections were strongly supported by the Founding Fathers. Mr. Kohn previously discussed this precedent in his New York Times Op-Ed, The Whistleblowers of 1777. Mr. Kohn is also the author of The Whistleblower's Handbook: A Step by Step Guide to Doing What's Right and Protecting Yourself  (Lyons Press, 2011). 

FOR MORE INFORMATION, CONTACT:
Mary Jane Wilmoth
(202) 342-1902
mjw@whistleblowers.org

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By Guest Columnist: Donna Boehme

 Principal at Compliance Strategists LLC and editor of the weekly CS Newsflash (and former chief compliance and ethics officer at two leading multinationals). Named by ComplianceX to "Who Compliance Professionals Should Follow in 2013." So follow her on Twitter @DonnaCBoehme.

It’s a terrible story that should be told, and told often, if we are to make any progress for chief compliance officers (CCOs) and the companies that need them to do their jobs well.

Earlier this year, the U.K. Parliamentary Commission on Banking Standards finally weighed in on the blame for the implosion of HBOS bank after “catastrophic failures of management, governance and regulatory oversight” led to bad lending losses of nearly £50 billion and a taxpayer bailout of £20billion.[1] The report placed primary blame directly on the doorstep of three former executives whom the report calls to be banned forever from the finance industry. Sir James Crosby, former HBOS CEO has already resigned two outside board positions and agreed to give up his knighthood. Pressure is on two other former Directors Andy Hornby, CEO and Lord Dennis Stevenson, Chairman, to face similar consequences. But enough about those guys.

This story is about Paul Moore, the former chief risk and compliance officer for HBOS, fired in 2004 for his warnings to the bank’s C-Suite and Board of its excessive risk taking culture. Paul says the release of the Parliamentary report, plainly called “An Accident Waiting to Happen,” was like the “parting of the Red Sea” for him.    Paul is Exhibit A for why former federal prosecutor Michael Volkov called the CCOs the “Person of the Year” in 2011 and has described this difficult role as the “unsung hero” of the corporate landscape.[2] 

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The SEC Office of the Whistleblower post Notices of Covered Action where a final judgement or order, by itself or together with other prior judgments or orders in the same action issued after July 21, 2010, results in monetary sanctions exceeding $1 million.

Subject to the Final Rules, individuals who voluntarily provided the Commission with original information after July 21, 2010 that led to the successful enforcement of a covered action listed below are eligible to apply for a whistleblower award.

Once a Notice of Covered Action is posted, individuals have 90 calendar days to apply for an award.

View the updated list on the continuation of this blog post. Updated 5-17-2013.

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C.R. Bard Inc., a medical device company based in New Jersey, has agreed to pay the United States $48.26 million to resolve claims that it knowingly caused false claims to be submitted to the Medicare. The claim alleged that the company paid off doctors and hospitals to induce them to prescribe brachytherapy seeds. Giving such kickbacks is a violation of the False Claims Act.

The settlement requires that Bard pay $48.26 million and it resolves claims relating to Bard’s sale of brachytherapy seeds, a form of radiation therapy, to hospitals. The United States alleged that from 1998 to 2006, Bard provided illegal remuneration to customers and physicians to induce them to purchase Bard’s seeds, in violation of the Anti-Kickback Statute.   The illegal remuneration allegedly took the form of certain grants, guaranteed minimum rebates, conference fees, marketing assistance and/or free medical equipment that Bard paid to customers and/or physicians who used the seeds to perform treatment for prostate cancer.   Hospitals ultimately submitted bills to Medicare for these seeds, which the government alleged were rendered false by Bard’s illegal kickback activity. The government alleged that Bard was liable under the False Claims Act for causing the submission of those false claims. 

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On Apr 18, 2013, Rep. George Miller (D-CA) introduced bill to extend whistleblower protections to offshore oil and gas workers. Currently there is no federal law that protects oil and gas workers if they are retaliated against after they blow the whistle on workplace health and safety violations on the Outer Continental Shelf. Workers on oilrigs like the Deepwater Horizon risk losing their jobs if they report dangerous workplace conditions. The workers performing cleanup activities on the Outer Continental Shelf similarly have no protections against employer retaliation for raising health and safety concerns.

The Committee on Education and the Workforce Democrats issued a fact sheet about the Bill. The fact sheet calls for all workers to be protected when they blow the whistle on “concerns about unsafe working conditions” and to grant the workers the “right to stop working if they fear they could be injured or killed.”

“Employees are best situated to discover hazards in the work environment; they are the first line of detection and should be protected when raising concerns,” stated Stephen Kohn, Executive Director of the National Whistleblower Center. 

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On April 24, Senate Democrats delayed a confirmation vote on Labor Secretary nominee Thomas Perez. Committee Chairman Tom Harkin of Iowa was concerned that Republicans would use a threatened separate hearing as a forum to attack Perez in his absence. Read more.

Senate Republicans have criticized Perez for his involvement in a deal with the city of St. Paul, MN that left a whistleblower with nothing.  Senator Chuck Grassley, Ranking Member of the Senate Judiciary Committee in coordination with Issa and House Judiciary Chairman Bob Goodlatte, released a joint staff report about how Perez orchestrated a controversial quid pro quo with the city that prevented the Justice Department from recovering hundreds of millions of dollars back to the taxpayers, and left a whistleblower who filed the suit out in the cold.  

Here is an excerpt from the joint staff report. 

"In early February 2012, Assistant Attorney General Thomas E. Perez made a secret deal behind closed doors with St. Paul, Minnesota, Mayor Christopher Coleman and St. Paul’s outside counsel, David Lillehaug. Perez agreed to commit the Department of Justice to declining intervention in a False Claims Act qui tam complaint filed by whistleblower Fredrick Newell against the City of St. Paul, as well as a second qui tam complaint pending against the City, in exchange for the City’s commitment to withdraw its appeal in Magner v. Gallagher from the Supreme Court, an appeal involving the validity of disparate impact claims under the Fair Housing Act."

According to the joint staff report, this deal cost the U.S. Government the opportunity to recover as much as $200 million.

The Department of Labor’s OSHA Whistleblower Protection Program enforces the whistleblower provisions of more than twenty whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.

Read the full joint staff report here. 

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On April 12, 2013, the National Whistleblower Center filed an Amicus Curiae brief with the Merit Systems Protection Board (MSPB), in the case of King v. Department of the Air Force. At issue is whether the provision of the Whistleblower Protection Enhancement Act of 2012 (“WPEA”) regarding compensatory damages applies to all current cases pending before the MSPB. The MSPB requested stakeholders to file briefs on the issue as they did in Day v. Department of Homeland Security.  

In its brief, the NWC again strongly urged the MSPB to retroactively apply the WPEA to all pending cases. The MSPB’s decision will impact the fate of federal employees and whistleblowers that filed claims or suffered retaliation before the WEPA was signed into law on November 27, 2012.

Stephen M. Kohn, Executive Director of the NWC, said, “it is unequivocal that the intent of Congress was to apply the WPEA, including the provision on compensatory damages, to all pending cases retroactively.”

The NWC’s brief can be viewed here.

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 Today the Court of Appeals for the Federal Circuit issued a decision in MacLean v. Department of Homeland Security.  In 2003, Robert MacLean blew the whistle on the Department of Homeland Security’s Transportation Security Agency’s (TSA) plan to remove U.S. air marshals from long distance flights during a heightened terrorist alert.  Mr. MacLean was concerned that the suspension of overnight missions created a danger to the flying public. He complained to his supervisor and to the Office of Inspector General; both responded that they could do nothing. 

Mr. MacLean then gave information to a MSNBC reporter about the TSA’s plan. The reporter published an article criticizing the plan. The TSA withdrew its plan after criticism from the public and members of Congress. The TSA subsequently fired Mr. MacLean. 

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