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

The Transportation Security Administration announced this week that its screeners would have the ability to appeal their whistleblower retaliation claims. The screeners have, since the agency's 9/11 reforms, enjoyed far less federal employee whistleblower protection than other government employees. Before the change, employees who blew the whistle on unsafe practices in the security systems of our nation's airports had but one recourse: they could take their case to the Office of Special Counsel. The OSC is an "independent" government agency charged with hearing whistleblower complaints -- the truth is that meritorious claims are routinely dismissed by the OSC.


Now, the TSA Screeners, like many other government employees, can appeal an OSC ruling to the Merit Systems Protection Board ("MSPB"). Although this does provide an extra layer of protection for some of our nation's most critical whistleblowers, it is far from optimal. The fact is that, like other victims of illegal retaliation and discrimination, whistleblowers should have the right to appeal their cases to federal court, and have their case heard by a jury.


That being said, kudos to the American Federation of Government Employees for pushing the new regs, their efforts are certainly a commendable step in the right direction.


Stephen Barr of the Washington Post reported on this story here>>>

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I attended the Senate Judiciary Committee hearing this morning on the False Claims Act Correction Act of 2007.  Senators Leahy, Specter, Grassley and Durbin all attended intermittently, with Senator Grassley being the only member to attend the entire hearing. The witnesses were :

•    Michael Herz, a Deputy Assistant Attorney General representing  the Justice Department ;
•    Tina Gonter, a Qui Tam whistleblower;
•    John Clark, a former federal judge, now a Qui Tam attorney;
•    John Boese, a corporate attorney, representing the views of the U.S.  Chamber of Commerce.

Although each of the panelists had a distinctly different viewpoint on the False Claims Act, they did agree on one thing: that the FCA – having rooted out $20 billion in fraud since 1986, including $5 billion since 2005 -- is a highly effective fraud-fighting tool and it should be kept that way.  But what should be done to upgrade the law, if anything?

Mr. Herz and the Department of Justice expressed agreement with some of the reforms in S.2041 (such as increasing the statute of limitations to ten years), ...
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The National Whistleblower Center has joined an amicus curiae brief submitted to the Supreme Court to support the rights of FOIA requesters.  The amicus brief was filed by the National Security Archive, OpenTheGovernment.org, the Reporters Committee for Freedom of the Press, the National Whistleblower Center, and the Electronic Frontier Foundation. 

A copy of the amicus brief can be found here>>.

The Supreme Court granted certiorari in Taylor v. Sturgell  (No. 07-371) to review the D.C. Circuit’s decision denying a FOIA requester access to documents on the grounds of issue preclusion.  The D.C. Circuit affirmed dismissal of Taylor’s FOIA case on res judicata grounds because a prior FOIA requester was a "close associate" of Taylor's, and had been his "virtual representative" in a prior FOIA case that was brought unsuccessfully seeking the same documents.  The principal reason the D.C. Circuit held that the second FOIA case was barred by res judicata was that both FOIA requesters were represented by the same attorney in both cases.

Amici argue that “virtual representation applied in a FOIA matter raises serious concerns. FOIA requests are filed by many different people for many different reasons... No one lawsuit will achieve FOIA's public purpose (or, indeed, another requester's individual interest); the statute is designed to fulfill the public part of its purpose through many individuals each reminding federal agencies that they cannot operate in secret."

If res judicata is broadly applied to FOIA cases, then citizens will be denied access to records when there are multiple FOIA requesters making requests for information on the same subject matter.  Advocacy groups, journalists, researchers, scientists or historians may all have an interest in seeking records on the same subject matter, but that does not mean that each requester’s interest is the same.  Because many different reasons may apply to the denial of FOIA requests from different requesters at different times, one FOIA requester should not be automatically barred by the denial of requests made by another.

Related Documents:

• Petition for Certiorari
• Opposition Brief
• Amicus Brief
  

The SCOTUS Blog has more on the case on this page

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The Senate Committee on the Judiciary has scheduled a hearing this Wednesday on the False Claims Correction Act of 2007, S.2041 (discussed previously here). More details to follow...

UPDATE: Stephen M. Kohn, President of the National Whistleblower Center, has submitted written testimony to the committee to be entered into the record at tomorrow's hearing. View the testimony here.

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In the wake of the deadly 2006 Sago mine disaster in West Virginia, angry miners came forward to say that the company that managed the mining company had blatantly sacrificed routine maintenance in favor of greater productivity. Why didn't these workers come forward sooner? Because they were afraid of losing their jobs. Even now, over 2 years after the January 2006 explosion that claimed 13 lives, lawmakers are dragging their feet on mine safety reform and specifically, whistleblower protections.


Last Friday, this West Virginia newspaper reported that the WV Senate had shot down a bill that would protect mine safety whistleblowers from retaliation when they report unsafe conditions in their mines. The lawmakers that voted against the bill were also spineless enough to request that their votes be anonymous -- fortunately for the voters of West Virginia, that request was not granted.  It is shocking to think that the WV legislature would turn their backs on the safety of the hardworking miners in their district.

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The Washington Post is reporting that Democrats and Republicans in the U.S. Senate have reached a compromise on legislation to reform the Consumer Product Safety Commission (CPSC). This essentially ensures that the legislation (S.2045) will pass the Senate within the next couple of months, and  then move on to the House of Representatives, where a companion bill is already in the works. This legislation was prompted by the rash of recalls over the past year, which peaked our awareness of unsafe consumer goods, including toys made with lead-based paint.


The Good News: S.2045, the Senate bill, includes a very strong provision to protect whistleblowers who work in manufacturing, distribution, or retailing of consumer products.  These employees would have the right to report retaliation to the Department of Labor, and to appeal that decision in federal court.


The Bad News: The House companion bill, which is currently stalled the House Committee on Energy and Commerce, does not include any whistleblower protections. Further, big business lobbyists have expressed vocal opposition to any bill that includes whistleblower protection, and they are fighting very hard behind the scenes to make sure that it is left out of the final language.


The National Whistleblower Center has issued an Action Alert on this issue, and is urging all concerned citizens to take part.

Click here to view the Alert>>

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In a recent University of Chicago study, researchers determined (again) that whistleblowers are the best tool for fighting corporate fraud. One unfortunate, but not surprising, finding was that  of whistleblowers whose identity was revealed, 82% of them were either forced from their position or quit under duress.


This new research comes on the heels of another study done by Price Waterhouse which found that whistleblowers expose more fraud than anyone, including corporate auditors or the SEC.

• View the Study Here>>
  
• Canadian Business Online reports on this study here>>

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Today we learned that the U.S. Government will receive a 30 day extension from the U.S. Supreme Court to file their reply brief in Murphy v. IRS (More on Murphy v. IRS here).  This is the Solicitor's second 30 day extension, giving the government until March 17th to file the brief. Maybe they are banking on the luck of the Irish...or possibly they haven't been able to make sense of the Appeals court's decision yet either...

We will keep you posted. 

• For more on the Murphy v. IRS Supreme Court case, click here>>

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On January 25, 2008, The DOJ issued it's responses to questions posed to former AG Gonzales by the Senate Judiciary Committee on July 24, 2007. Several of these questions dealt with how the DOJ  handles False Claims Act investigations (those questions are found on pages 51-58 of the DOJ letter)

Among the interesting revelations contained in these responses is that the DOJ is currently investigating approximately 1,000 separate False Claims Act allegations, with the following approximate breakdown by issue:

• Health Care: 630
• Pharmacuetical: 150
• Defense Procurement: 135 (30 of which are related to the Iraq War)
  
• Other Procurement: 95

The responses also cover issues such as the average amount of time it takes DOJ to intervene in a case, and how erosive judicial decisions (such as Sanders and Rockwell) have hampered the ability of the DOJ to pursue FCA cases.

View the full responses here

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