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

As you know, the recent financial meltdown and the Madoff scandal have highlighted the importance of protecting whistleblowers.  Employees that have the courage to stand up for the protection of American taxpayers  should be treated with the respect they deserve.  As the new Administration and Congress prepare to revitalize the economy we must ensure that oversight and accountability are central part to any rescue plan.  You can sign our petition calling for stronger whistleblower protection here.

Another way to make change for whistleblowers a priority for the new Administration is to visit the change.org website and vote for "Protect government whistleblowers from reprisals" by midnight tomorrow, December 31st.

**You need to sign-up as a member to the site in order to vote.**

Ideas for Change in America is a project of Change.org, an online community and media network for social issues.  Ideas for Change in America is a non-profit citizen-driven project (not connected with the Obama Administration) that aims to identify and create momentum around the best ideas for how the Obama Administration and 111th Congress can turn the broad call for "change" across the country into specific policies.

The top 10 rated ideas will be presented to the Obama Administration on Inauguration Day, January 20, 2009 as the "Top 10 Ideas for America."   Change.org will then launch a national campaign behind each idea and mobilize the collective energy of the millions of members of Change.org, MySpace, and partner organizations to ensure that each winning idea gets the full consideration of the Obama Administration and Members of Congress.

The "Top 10 Ideas for America" will be determined through two rounds of voting. In the first round, ideas will compete against other ideas in the same issue category. The first round will end on December 31, 2008, and the top 3 rated ideas from each category will make it into the second round. 

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Today the Eighth Circuit U.S. Court of Appeals held that 2007 amendments to the whistleblower protection for truck drivers is not retroactive.  In Elbert v. True Value Company, Case No. 08-1222 (8th Cir. 2008-12-19), the Court said that Timothy Elbert did not have a right in 2007 to file in federal district court a claim against his 2005 discharge.  The August 3, 2007, amendment to the Surface Transportation Assistance Act (STAA) is not retroactive.

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A few federal judges have been reluctant to follow a provision in the 2002 Sarbanes-Oxley (SOX) law that allows corporate fraud whistleblowers to have a de novo trial in federal court. One judge in Maryland ordered a SOX case back to the Department of Labor's Administrative Review Board (ARB) saying that the de novo provision was "absurd."  Yesterday, I filed an amicus brief with the Fourth Circuit Court of Appeals explaining why this is the law, and why it is not "absurd" to follow the law.

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This week’s cover story in Newsweek focuses on Thomas M. Tamm, a former Justice Department lawyer in its Office of Intelligence Policy and Review.  Tamm blew the whistle on the National Security Agency's illegal wiretapping on U.S. citizens.  As his reward for heroically exposing this illegal program, Tamm could be charged with violating national security and intelligence laws and jailed for up to 10 years.

Tamm is currently under investigation by the FBI for reporting NSA's illegal actions to the New York Times.  Unfortunately, Tamm had no other option.  He was repeatedly silenced by his supervisors.  There was no place for him to report the criminal activities of the government's highest ranking employees, and there are no whistleblower protections for national security and intelligence employees who suffer retaliation.  

President-Elect Obama and Attorney General nominee Eric Holder will be forced to decide whether to prosecute Tamm.  Although both have publicly condemned the warantless wiretapping program as outside the bounds of the law, there has been a rise in the criminal prosecution of whistleblowers in recent years.  This disturbing trend includes the Justice Department's prosecution of Richard Convertino, who blew the whistle to Congress on the failure of the Bush administration to prosecute terrorists after 9/11.  

It is time to send a message to those who retaliate and threaten whistleblowers, and put an end to the government's use of "national security" as a justification to break the law.

If you would like to take action on this critical issue please click here.

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The Fourth Circuit U.S. Court of Appeals has affirmed an administrative appeal decision that leaves corporate whistleblower Stacy Platone out in the cold.  The December 3, 2008, opinion affirms a decision of the U.S. Department of Labor's Administrative Review Board that took away Platone's order from an Administrative Law Judge.  The Court held that under the Sarbanes-Oxley (SOX) employee protection, whistleblowers have to be specific about their allegations of fraud to be protected from retaliation.

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The National Whistleblower Center is reporting that the Civilian Agency Acquisition Council and the Department of Defense have approved new rules governing federal contracting which go into effect today.

For the full story on the NWC website, and to read the rules, Click Here.

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We told you that Obama's hardest promise would be protecting whistleblowers. 

According to today's Washington Post, he just might be up for it.

Many of us in the whistleblower community of supporters have been cautiously optimistic about the opportunity to pass truly meaningful whistleblower protection laws under an Obama administration. The President-elect has a history of supporting whistleblowers, in fact, as a young lawyer he worked representing whistleblower Dr. Janet Chandler in a False Claims Act case that eventually wound its way to the Supreme Court. As a Senator, Obama supported legislation to protect government employees from retaliation when they report waste, fraud and abuse. Now as he prepares to take office, he has again, via the transition team website, reiterated his support for whistleblowers.

There is much reason for optimism, and all signs point to continued support from the Obama Administration, but we must also be cautious. Many a politician or corporate manager have vowed to strive for the highest ethical standards, to hold the powerful in check...that is, until they attained those positions of power. The voices of dissent are often not so appealing when they are bringing to light problems with which you must deal.

DIGG This story here

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Last week, I blogged about the recent critical GAO report which found that Congress and the Administration have not done enough to implement oversight of the $700 corporate bailout bill that was passed in October. Well, after weeks of foot-dragging, the Senate has finally voted to appoint former New York Prosecutor Neil Barofsky to the position of Inspector General of the Troubled Asset Relief Program (TARP) -- the program responsible for doling out all of that money.
 

This is a good first step, but much more needs to be done. As this exceptional article in the Washington Post reports, IG's serve at the pleasure of the president, and some have been notoriously loyal to the administration. Further, the IG will not be effective unless he can get credible information about illegal or wasteful spending from employee whistleblowers who can speak up without fear of retaliation. That's why the most important piece of this, and any oversight effort, is a strong whistleblower law. Congress should pass one immediately.

DIGG this article here

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The Boston Globe is reporting that the Supreme Court is considering taking up a case that "might set new limits on whistle-blower lawsuits against drugmakers, biotechnology companies, and other businesses." The court has requested advice from the Department of Justice regarding the suit.

The case in question deals with the False Claims Act and specifically whether FCA cases can be based on allegations which have previously been made public in state government documents. Limitations have currently only been applied when the whistleblowers' allegations have previously seen light in Federal Government documents.

Industry groups support the new limitations, which is no surprise considering the FCA has been the most effective fraud-fighting law in history, netting over $1 Billion in fraud recoveries for American taxpayers last year alone. 

FCA-type laws are also helping uncover massive government contractor fraud schemes in countries like South Korea

Click here to DIGG this story

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 When the United States Supreme Court issued the controversial 5-4 decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), whistleblower advocates were rightly upset about the huge loophole the Court created for government officials who retaliate against whistleblowers.  The Supreme Court held that the First Amendment does not protect public employees when they are raising concerns as a part of their official duties.

A recent decision by the U.S. Court of Appeals for the 10th Circuit, however, highlights a snag for government officials who are trying to escape liability:  how many employees really have an assigned job duty of blowing the whistle on their boss?  In Thomas v. City of Blanchard (Oklahoma), Case No. 07-6197 (December 3, 2008), the Court concluded that Ira Thomas was not acting pursuant to his duties as a building inspector when he threatened to report a fraudulent building certificate to the Oklahoma State Bureau of Investigation (OSBI). Reporting crimes to OSBI was not a part of Thomas' regular duties; it was not what the City had "commissioned" him to do. "Merely because an employee’s speech was made at work and about work does not necessarily remove that employee’s speech from the ambit of constitutional protection."  The Court held that the mayor was not personally liable as there was no evidence that linked him to the decision to discharge Thomas.  The City, and two other officials involved in Thomas' termination, will now face a jury on Thomas' claims.

The Court's opinion is available at:

www.ca10.uscourts.gov/opinions/07/07-6197.pdf

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Yesterday the Government Accountability Office, which is responsible for overseeing wasteful spending in the federal government, issued a 66 page report (see the summary here, with link to the full report) concluding that the Treasury Department and Congress have not done enough to prevent waste, fraud and abuse in the $700 Billion bailout bill passed in October:
 

"Treasury has yet to address a number of critical issues, including determining how it will ensure that CPP is achieving its intended goals and monitoring compliance with limitations on executive compensation and dividend payments. Moreover, further actions are needed to formalize transition planning efforts and establish an effective management structure and an essential system of internal control. To help ensure the program's integrity, accountability, and transparency"
 

Although this report does not recommend specific legislative proposals, the best thing that Congress could do to stem financial misconduct and waste is simple...protect whistleblowers.


In September, the National Whistleblowers Center joined with over 200 other public interest organizations in calling for Congress to include whistleblower protections in the bailout legislation. Yet, Congress failed to act.
 

The GAO calls for several reforms in the administration of the Troubled Asset Relief Program (TARP) -- which is responsible for doling out the billions -- but whistleblower protection should be the centerpiece of any reform package, as it is a necessary prerequisite for these reforms to work. Without protecting the whistleblowers who report misconduct, other reforms are doomed to fail. Two recent studies, one by PriceWaterhouseCooper, the internationally respected auditing agency, and another by the University of Chicago, both found that whistleblowers are the #1 way to ferret out corporate fraud.
 

Also ABC News ran this story on the need for corporate whistleblower protection in the wake of the bailout.

Let's not forget that it was corporate greed and lack of oversight that got us into this financial mess, and that is precisely why Congress, the administration (and the next administration) should take decisive action, now.

Show your support! Digg this blog post here

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