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

Last week, Stephen M. Kohn was invited by Sibel Edmonds’ Boiling Frogs Post to debate Norman L. Eisen, Special Counsel to the President for Ethics and Government Reform on the controversial “Whistleblower Protection Enhancement Act” (S. 372). In Mr. Eisen’s absence (he declined the invitation to participate), Stephen M. Kohn appeared on Boiling Frogs with Sibel Edmonds and independent moderator Peter B. Collins to discuss his opposition to provisions in the bill that roll back existing whistleblower protections for FBI agents. Follow this link to join Steve Kohn on opposing the poison pills in S. 372. Now, Thom Hartmann has posted a blog entry about Sibel Edmonds' interview of Steve.

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The Maryland Senate yesterday passed a state version of the False Claims Act (FCA) by a vote of 37 in favor and 8 against. Before passing this bill, however, the Senate watered it down with an amendment. The Maryland False Health Claims Act of 2010, SB 279, as amended, no longer allows the state (or a whistleblower acting on behalf of the state) to obtain compensatory damages. The amendment also requires a court to dismiss the action if the State of Maryland declines to intervene. The Senate's amendment also waters down the provision for attorney fees. It now provides that attorney's fees and costs "may" be allowed by the court, and that the court must consider the amount of penalties and damages recovered. This last provision is contrary to prevailing law that calls on courts to award attorney fees based on market rates, without regard to any proportionality to the amount of recovery. The Senate's bill also allows courts to reduce the amount of the whistleblower's recovery if the court finds that the whistleblower participated in the violation. A more enlightened view would have barred recovery only if the person caused the violation through actions other than following orders of a superior. Also, I mentioned before that Maryland could gain even more if this bill covered all frauds, and not just those arising in medical care programs. Perhaps the Maryland House will consider these shortcomings when its Judiciary and Appropriations committee conducts the bill at its first hearing on April 1. The Senate bill does include an anti-retaliation provision, Section 2-607, that would allow employees to sue if they suffer retaliation for participating in a lawsuit, objecting to a violation, or refusing to participate in a violation. According to a Baltimore Sun article, the state administration estimates that between 5 and 10 percent of the state's $6 billion in annual medical spending is lost in fraudulent claims. The article quotes a spokesperson for the hospital association as saying that the amendment would cost the state the extra 10% it would receive from federal false claims lawsuits in the state. This refers to the Grassley Amendment to the federal FCA which increases a state's share if the state's law meets certain minimum requirements.  Apparently, making hospital administrators happy is more important to Maryland's Senators than protecting taxpayer dollars.

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The administration of Australia's Prime Minister, Kevin Rudd, announced plans this week for a new whistleblower law to protect Commonwealth employees. In 2008, the Rudd administration asked Australia's House of Representatives Standing Committee on Legal and Constitutional Affairs (the Committee) to report on its recommendations for a model whistleblower protection bill. A year ago the Committee issued its report.  Now the Rudd administration has responded. “Australia’s federal laws currently offer very few protections for public interest disclosures. The Rudd Government’s response moves to change that.” Out of 26 recommendations, the administration is accepting 10, accepting 11 more in part, and rejecting only four. The administration has announced that it hopes to have the final legislation enacted this year. Overall, the recommendations call on employees to raise concerns through proper channels, but recognizes exceptions in which going to other authorities or the media will be protected. If a government worker experiences retaliation, the law will call on the employing agency to correct it.  If necessary, the employee can go to the Federal Ombudsman for relief. The Ombudsman could call on the Federal Police for an investigation, and then order the agency to provide reinstatement and other make whole remedies.

Our colleague, Peter Bennett of Whistleblowers Australia, reports that the proposals provide some significant improvements (such as protection for going public in some circumstances), but still leave some areas unprotected (such as universities).

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New MSPB case statistics have implications for pending whistleblower legislation.

Things just keep getting worse for federal employees and whistleblowers who challenge adverse actions taken by federal employers. Charlotte Yee recently posted on the Government Accountability Is A Citizen’s Responsibility blog the official Merit Systems Protection Board (MSPB) Fiscal Year 2008 (Oct. 2007 – Sept. 2008) statistics for all non-benefit cases decided by MSPB administrative judges. The results are, once again, astoundingly biased in favor of the federal employers.

The MSPB judges ruled in favor of employees a total of 1.7% of the time out of a total caseload of 4,698 cases nationwide.

In other words, if you are a federal employee and have a whistleblower reprisal claim or otherwise challenge serious discipline or a termination before the MSPB you have more than a 97% chance of losing your case (even after factoring in the cases that settle). 

Even though the MSPB continues to utterly fail to be a fair arbiter of federal employee cases, the Senate is proposing to give the MSPB more power to decide cases in favor of federal employers. In S. 372, the so-called Whistleblower Protection Enhancement Act, the Senate is giving the MSPB new summary judgment procedures (only in whistleblower cases). This will make it even more difficult for employees to prevail in whistleblower cases because unlike cases filed in federal court, the MSPB has very limited discovery tools available.   Summary judgment is a procedure that is available in court cases, under the Federal Rules of Civil Procedure. However, those federal rules for court cases also provided for broad discovery. Not so at the MSPB. If enacted, the new MSPB summary judgment procedures will result in a more efficient way for the MSPB to dispose of cases and rule against federal employees without holding a hearing. 

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The Australian Law Reform Commission recommended that national security whistleblowers should face criminal sanctions only when their disclosures, "damage national security, interfere with an investigation and endanger someone's life or safety." The Commission also recommended that a new law create an offense of unauthorized disclosure only in these circumstances.

Today Australia's Attorney-General, Robert McClelland, tabled the recommendation in Parliament so that the government could review it.  The recommendation follows a 2005 disclosure by retired customs officer Allan Kessing about security breaches at Sydney Airport. Kessing was charged with disclosing information without due authorization. He made his disclosure to an opposition member of Parliament and it was published in a periodical two years later. The Herald Sun reports on the action in today's edition.

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A number of prominent national security whistleblowers and advocacy groups released a letter today opposing the Whistleblower Protection Enhancement Act (S. 372) until corrections are made to the national security provisions. The letter, addressed to Senators Joseph Lieberman and Susan Collins of the Senate Committee on Homeland Security explains how the bill rolls back existing whistleblower protection and expands the state secrets privilege. This bill breaks promises made by both President Obama and the Senate to strengthen whistleblower rights. The letter makes it clear that these whistleblower advocates are not willing to risk sending these dangerous national security provisions to conference before they are fixed – they must be corrected now.

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Today’s Politico article entitled “Critics question whistleblower bill” highlights the broken promises of the White House and Senate on national security whistleblower protection. The NWC has repeatedly pointed out the serious flaws in the national security provisions of the Whistleblower Protection Enhancement Act (S.372). Politico points out that Senator Daniel Akaka (D-Hawaii) continues to stand behind these dangerous provisions and does not take issue with the fact that this new Intelligence Community Whistleblower Protection Board would not have the power to award a whistleblower his or her job back. The Senate Homeland Security Committee promised changes would be made to the bill’s flaws, but changes have not come. The House version of the bill (H.R. 1507), however, allows whistleblowers access to federal courts and is fully supported by the NWC. Senate Intelligence, Judiciary, and Homeland Security Committee are set to meet this week, but are "unlikely" to address correcting the repeal of existing FBI whistleblower protections. Prominent FBI whistleblowers recently issued letters stressing the importance of national security whistleblower protection and urged the bill to not be passed in its current form. Support their cause and TAKE ACTION! to stop the passage of this bill.

*Philip Barrett (a NWC intern) contributed to this posting

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Uganda's The New Vision reports that the country's Parliament is debating a Whistleblower Bill to protect disclosures of public and private corruption.  Legislators are debating whether protected disclosures should be made to regional officials or to national offices.  Perhaps someday they will protect all disclosures of corruption.

Meanwhile, the same article reports that a tax whistleblower is pressing for payment of a promised reward.  This whistleblower helped the government collect 3.8 billion schillings (about $1.5 million) in taxes between 2002 and 2005. However, he still has not received his entitlement of ten percent (10%).  He has filed a court claim for payment, and as a result, his identity has been disclosed.  The New Vision reports that he is now in "grave danger."

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