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

Tuesday was an important day for us here at the National Whistleblowers Center as we aired the first episode of our radio show, Honesty Without Fear. A big thank you goes out to all of you who tuned in and submitted questions for the hosts. Your support drives our success and continued growth.

In this picture you can see our host, Stephen M. Kohn, in action.

Did you miss our live broadcast this week? You can listen to archived recordings at www.whistleblowersradio.org.

Stay tuned for an announcement about next week's show. In the meantime, comment on this post with your thoughts about Honesty Without Fear, or submit a question for the hosts.

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The American Bar Association (ABA) is holding a brown bag lunch panel with staff members from the Office of Special Counsel (OSC) on Thursday, November 3rd, from 12:00 pm-1:30 pm EST. The panel discussion will cover recent developments in Merit Systems Protection Board (MSPB) and Federal Circuit case law that impact whistleblowers. The panel will also discuss matters within OSC’s jurisdiction, practice tips for attorneys representing clients in OSC matters, and the Special Counsel’s new policy initiatives.

The panelists for the presentation are: Mark Cohen, Deputy Special Counsel of OSC; Shirine Moazed, Chief of the OSC’s Washington Field Office; and Andrew J. Perlmutter, Attorney at Passman & Kaplan, P.C. (Moderator).

You can attend the event in person at 740 15th St. NW, John Marshall Room, 9th floor, Washington, DC 20005 or by teleconference.

The event is open to the public, but prior registration is required and space is limited. You do not need to be an ABA member to attend. Please return the registration form by Tuesday, November 1st. Any questions please contact Ryan Spagnolo at ryan.spagnolo@americanbar.org.

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The deadline for three organizations to file a petition for review with the U.S. Supreme Court has now passed. The Fourth Circuit's March 28, 2011, decision is now the final word in ACLU v. Holder. Today, the ACLU's chief counsel, Christopher Hansen, confirmed to me that they decided against appealing to the Supreme Court.

In ACLU v. Holder, three organizations asked a federal court to declare that the "seal" provision of the False Claims Act (FCA) was unconstitutional. These organizations were the American Civil Liberties Union (ACLU, and its Virginia affiliate), OMB Watch and the Government Accountability Project (GAP). The FCA's seal allows whistleblowers to file a lawsuit that will not be open for public inspection for an initial period of sixty (60) days. The seal allows the federal government to investigate the allegations to determine if it will intervene in the case to assert the government's right to remedy the alleged frauds. The government can ask the court to extend the seal, and the court must consider whether the government's request is in the public interest. If the seal were invalidated, then the perpetrators of the fraud could receive notice of the allegations, and they could take action to conceal or fabricate evidence before government investigators arrived.

After the Fourth Circuit issued its decision, the National Whistleblowers Center (NWC) issued an open letter to the three groups urging them not to pursue their claim. NWC's letter explained how the seal is an essential element of the FCA's strategy for redressing frauds against the public fisc. We urged the groups not to appeal because the FCA is the most effective whistleblower law in history and has recovered billions of taxpayer dollars. Other prior blog posts about this case are available here, here and here.

Mr. Hansen would not discuss the reasons for not pursuing an appeal to the Supreme Court, except to say that the decision was not made by the ACLU's board, but was made based on "the best interests of the client." Frankly, I am not so concerned now about the reasons for this last decision against a petition to the Supreme Court.  I am thankful that this ill-advised endeavor has come to an end with the FCA's seal intact.

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Forced arbitration is when employees faced with an issue at work are forced to have an arbitration instead of being able to go to court with a fair judge and jury. Often times, as a condition of employment, employers will not hire a worker, or could possibly fire a worker, unless they “consent” to an arbitration clause. Other times it is just assumed that employees agreed to it if they continue to work for their employer after an arbitration policy is announced.

Arbitrators are not judges. They do not need to know the law or have any relevant experience. Even though the arbitrators are not judges, their decisions are final. Also, there are no appeals for arbitrator decisions. They do not have to justify their decisions and the process takes place behind closed doors with no public record. The arbitrators charge parties for their services and often work for the same employer numerous times, tipping the odds significantly in the favor of the employer. One arbitrator and retired trial judge even stated, “You would have to be unconscious not to be aware that if you rule a certain way, you can compromise your future business.”

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Tomorrow, the NWC will air its first episode of a new radio show called "Honesty Without Fear." Hosted by Executive Director Stephen M. Kohn, the show will feature informative and action-oriented content such as whistleblower interviews, live Q&A with callers, and updates on current whistleblower issues.

We are proud to have been selected by Progressive Radio Network to host this show. "Honesty Without Fear" is an exciting new medium for us to engage with the whistleblower community on local, state, national, and international levels, and it provides listeners with a direct tap into discussions with experienced whistleblowers and leading whistleblower experts.

On tomorrow's show we will discuss America's first whistleblowers and hear from two FBI national security whistleblowers: Jane Turner and Dr. Frederic Whitehurst. What was it like for whistleblowers during the founding of our nation, and how do things compare today? Join us for tomorrow's show to find out.

Tune in for "Honesty Without Fear" on the Progressive Radio Network Tuesdays at 1:00pm EST. Click here for a live stream.

Are you looking forward to our show? Have a question that you'd like answered live on the air? Comment on this post or submit a question to the host.

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The Merit Systems Protection Board (MSPB) recently allowed a stay in the termination of a Food and Drug Administration (FDA) whistleblower, Paul T. Hardy. The Office of Special Counsel (OSC) requested the stay on his behalf due to reasonable belief that Mr. Hardy’s recent termination from the FDA constituted a violation of the Whistleblowers Protection Act (WPA).

According to the OSC, there is substantial evidence that Mr. Hardy’s termination was a direct retaliation for disclosures he made about serious safety issues with a screening device designed to detect breast cancer. The OSC explained that Mr. Hardy’s whistleblowing “raised issues related to exposing the general population to unwarranted radiation exposure and ineffective cancer screening devices.”

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This morning, the Senate Homeland Security and Government Affairs Committee (HSGAC) marked up and approved S. 743, the Whistleblower Protection Enhancement Act (WPEA). The WPEA has been pending for years. Its expressed purpose is to strengthen protections for  whistleblowers. As sponsor Sen. Daniel Akaka (D-HI) explained, if whistleblowers are not protected, many would not take the risk to protect public health and national security. Since the 1994 adoption of the Whistleblower Protection Act, the Merit System Protection Board (MSPB) and the Federal Circuit Court of Appeals have ruled in favor of only three whistleblowers out of hundreds of cases. Sen. Akaka decried the failure to interpret the law consistent with its purpose. Sen. Susan Collins (R-ME) also spoke about the "crucial role" that whistleblowers play.

The mark-up hearing took up less than five (5) minutes of the Committee's one-hour hearing. During the hearing, Sen. Akaka announced that he had an amendment to make three changes that he called "minor." He described the amendments as (1) clarifying provisions on non-disclosure agreements, (2) giving the General Accounting Office (GAO) more time to conduct its review of the legislation, and (3) giving the Defense Department access to information and consultation rights in the intelligence provisions. The amendment, and the bill, were both approved by the Committee unanimously, on voice votes. Unfortunately, the text of the amended bill is not presently available to the public. The normal course of business would make the amendment available at www.thomas.gov, but it is not presently listed in the bill's summary and status page. To see the Committee's hearing on the WPEA, go to the 47th minute of the archived video.

The National Whistleblowers Center (NWC) submitted a letter to HSGAC on September 28, 2011. This letter raised twelve concerns and makes suggestions for how to make the WPEA truly effective in protecting federal employee whistleblowers. The Committee did not adopt the NWC suggestions. For example, the bill still contains a new provision allowing MSPB judges to dismiss whistleblower cases without a hearing.

NWC has also released a report called Detecting Waste, Fraud, and Abuse: Protections Needed for Federal Employees. The report details how whistleblowers save taxpayer funds and protect the public health, the environment and our integrity as a nation. Hopefully, further consideration of this bill by the full Senate and House will lead to the improvements. Federal employees need protections that are effective enough to encourage them to come forward.

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Oranges and Sunshine is a new feature film scheduled for limited release this Friday, October 21, 2011. It is based on the book Empty Cradles by Margaret Humphreys (portrayed by Emily Watson), a social worker in Nottingham, England. Earlier in her career, it was her job to remove babies from loving parents. By 1986, she was leading a group therapy for adults coping with issues arising from their adoptions. Some wanted to find their parents or siblings. One discovered a brother living in Australia. Then another young woman contacted her claiming that she had been taken from her parents in England and transported to Australia where she grew up.

Connecting these two cases, Humphreys begins research that uncovers a decades-long British practice of exporting dependent children. In the 1950's and 1960's, upwards of 130,000 children were deported under the program, about 7,000 to Australia. Humphreys used her personal vacation to travel to Australia with that one woman who so treasured meeting her brother. While there, Humphreys continues her research into the child deportations.

Were this a typical whistleblower story, Humphreys would have received a hostile reaction from her superiors when she started raising concerns about a massive fraud and conspiracy by government officials. Instead, when Humphreys explains her concerns to her supervisor, the supervisor is upset that Humphreys had to use her personal vacation time for her investigation in Australia. The supervisor arranges to assign Humphreys to investigate her own concerns, full time, and starts raising the money to cover her salary and expenses for two years. This is a whistleblower fantasy. Our hero also has a supportive husband, and children who share only a few words about missing their busy mother.

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Dr. Marsha Coleman-Adebayo (pictured with Rev. Walter E. Fauntroy) celebrated the release of her new book at Busboys and Poets last night. Her book is called, NO FEAR: A Whistleblower's Triumph Over Corruption and Retaliation at EPA. 

The event began with a short documentary film produced and directed by Tylon Washington and Shawna Glover. The film began with interviews in South Africa of victims of vanadium mining. They explained how they worked without protective equipment. The vanadium pentoxide entered their lungs, came out of their pores, and damaged their bedsheets and bodies. Some interviews were with their widows. The American company that ran the vanadium mine took x-rays of their workers' lungs, but would not share those x-rays with the injured workers. Dr. Marsha Coleman-Adebayo sacrificed her career at the U.S. Environmental Protection Agency (EPA) to speak out against the poisoning of South Africa. NO FEAR tells the story of these workers, Dr. Coleman-Adebayo's efforts to protect them, the retaliation she suffered, her historic jury verdict against EPA, and the campaign that led to the NO-FEAR Act.

Rev. Walter E. Fauntroy introduced Dr. Coleman-Adebayo. He called her a Rosa Parks for the 21st Century.

Hosts of the event were Teaching for Change, TransAfrica Forum, National Whistleblowers Center (of which Dr. Coleman-Adebayo is a Board member), No FEAR Coalition, Alliance for Justice in the Workplace, and USDA Minority Committee.

You can order her new book from the NWC store.

For more information about her current campaign to remove one EPA retaliator, follow this link. You can also visit Dr. Coleman-Adebayo's own web page. Follow the continuation of this blog post for more photos.

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Special Counsel Carolyn Lerner (pictured) announced today that she filed requests yesterday on behalf of two federal whistleblowers to protect them from adverse personnel actions. She filed the requests with the Merit System Protection Board (MSPB) in support of Paul T. Hardy, a Regulatory Review Officer for the U.S. Public Health Service (USPHS), and Franz Gayl, a high-level civilian science and technology adviser to the U.S. Marines Corps.

These actions by the Office of Special Counsel (OSC) were unprecedented in the prior administration. Today marks the beginning of new assertiveness by the OSC, and new grounds for optimism by federal employees at every level. Bravo!

Hardy and Gayl have endured hostility from management for years. It is long overdue that someone in government finally took a stand on their behalf. Thankfully, the newly installed Special Counsel is in just the right position to take that stand. Here in this corner, we are so pleased. Follow the continuation of this blog post to read more about Hardy and Gayl's cases.

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Today, the Securities and Exchange Commission Office of the Whistleblower website posted 15 new covered actions that will now be considered for a whistleblower award. A whistleblower must submit a timely application for an award in a covered action within 90 calendar days. The SEC’s website is a vital resource for whistleblowers and their counsel to navigate the SEC whistleblower process to make disclosures and claim an award. You can access the website at this link: http://www.sec.gov/whistleblower and you may review all of the 185 cases (including the new cases posted today) that are eligible for consideration of an award at this link: http://www.sec.gov/about/offices/owb/owb-awards.shtml.

Why is the SEC whistleblower website so important? It can mean the difference between a whistleblower receiving or not receiving a financial award under Dodd-Frank. The SEC Whistleblower Office will publish a list of cases that the SEC considers “covered actions” under the Dodd-Frank and potentially eligible for an award. An individual then has ninety (90) calendar days from the date that “covered action” is posted to apply for an award from SEC Whistleblower Office.

The application does not mean that a whistleblower will automatically receive an award, but if the whistleblower does not submit an application within 90 calendar days of the date the covered action is posted on the SEC web stie they will have no chance receiving an award.

The SEC listed 15 new actions that are covered under the Dodd-Frank Act today. That means that the 90-day clock is rolling for whistleblowers to submit their award application form on those cases. The National Whistleblowers Center strongly encourages whistleblowers to check out the SEC whistleblower awards page regularly so they do not miss their opportunity to apply for a financial reward.

The SEC Whistleblower Office website also allows individuals to submit a tip online, provides answers to frequently asked questions, and has a list of supplemental resources about Dodd-Frank whistleblower awards, including the Final Rules.

If you are looking for legal representation to assist you in reporting fraud to the SEC, the National Whistleblower Legal Defense and Education Fund may be able to help you. You can submit a confidential intake form to the Attorney Referral Service by clicking here.

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We kindly ask all of our supporters to welcome Dr. Marsha Coleman-Adebayo, NWC Board Member and EPA whistleblower, as she makes her first public appearance to launch the release of her new book No Fear: A Whistleblower’s Triumph Over Corruption and Retaliation at the EPA.

This special book talk event will be Tuesday, October 11th at 6:30 pm at Busboys & Poets (14th and V Streets, Washington, DC). Hosts of the event are Teaching for Change, TransAfrica Forum, National Whistleblowers Center, No FEAR Coalition, Alliance for Justice in the Workplace, and USDA Minority Committee. The event is free and open to the public. Please RSVP to nofearbbp@gmail.com. We look forward to seeing you all there! It truly is a remarkable story.

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By Guest Blogger: Jane Turner
Member of NWC's Board of Directors and Director of NWC's FBI Oversight Program

Recently, an article appeared in Wired magazine reporting that the Federal Bureau of Investigation (FBI) was teaching that being a devout Muslim is in itself a sign of terrorist activity. The article exposed teaching techniques used at the FBI Academy in Quantico, Virginia. Teaching materials for FBI counterterrorism agents were replete with portrayals of American Muslims in a negative light. The article noted “...FBI whistleblowers provided Danger Room with these materials.”

My immediate attention went to the FBI employees who are still brave enough to put their careers on the line to speak the truth. The Director of the FBI, Robert S. Mueller III, has positioned himself in public and private as a leader who will not retaliate against FBI whistleblowers.

The reality, however, has been that Director Mueller and his senior managers have done their best to discredit, retaliate, humiliate, threaten, and launch reprisals against FBI personnel who try to bring misconduct or criminal behavior to light. Previously, two of Mueller’s closest senior management team, Assistant Director Robert Jordan and Executive Assistant Director W. Wilson Lowry took retaliatory action against Unit Chief John Roberts. They advised Roberts that they considered his whistle blowing activities a personal insult. They invoked the well worn screed about the “FBI family” which is code for keeping everything in house, and noted Director Mueller agreed with their assessment. This is the modern version of the “code of silence” that has long kept the public in the dark about police misconduct.

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Privacy Act Protections for Whistleblowers At Risk

On Tuesday, October 4, 2011, the National Whistleblower Center filed a friend of the court brief with the U.S. Supreme Court in support of the plaintiff in a Privacy Act case, Federal Aviation Administration v. Cooper, No. 10-1024. The Supreme Court is currently reviewing whether the Privacy Act permits the recovery of damages for non-pecuniary harm, such as mental and emotional injuries, under the Act’s “actual damages” provision. 5 U.S.C. § 552a(g)(4)(A).

In the lower court, the Ninth Circuit held that the plaintiff was entitled to seek damages for emotional distress. The government, however, has appealed to the Supreme Court to seek a reversal claiming that the term “actual damages” should be narrowly construed to limit Privacy Act damages suits to recovery of out of pocket losses or economic harm caused by the government’s willful or intentional violation of the Act.

Whistleblowers who report wrongdoing by Federal agencies and government officials frequently are subject to violations of privacy. It cannot be over-stated how vital avenues of legal redress, including rights available under the Privacy Act, are to those courageous employee-whistleblowers, both actual and potential, who put the public good before their own careers and who face violations of their privacy as a result of taking unpopular positions. Protecting the privacy of these individuals is an essential component in encouraging employees to reveal severe abuses of power and dangerous industrial practices. Even under the best of circumstances, whistleblowers run enormous risks and suffer retaliation for reporting wrongdoing. If the Privacy Act does not provide remedies for actual non-pecuniary harms (such as for emotional distress and humiliation), then whistleblowers face even greater disincentives to expose misconduct or violations of law.

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