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

Recently I wrote a blog post on the need for whistleblower protection in the South Carolina State Police and how their upper eschelon was retaliating against troopers who blew the whistle on a fellow officer who intentionally hit a suspect with his car.

Although there has been no news of reform out of South Carolina, at least one state is getting the message. Connecticut's state senate has passed expanded whistleblower protection in the wake of its own state police corruption and retaliation scandal.

Since the U.S. Congress has yet to pass meaningful whistleblower reforms for Government employees, it is important that states act to sure up protections for honest employees who report waste, fraud and abuse.

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As was widely expected, the FCA Corrections Act was quickly approved by the Senate Judiciary Committee yesterday, and will now face a fight on the Senate floor. Committee member Charles Grassley, who has been considered to be the father of the modern False Claims Act since resuscitating the law in 1986 , has shepherded the bill this far, with bi-partisan support. We can be sure, though, that the powerful healthcare and defense contracting lobbies will be fighting these reforms tooth and nail, in both the House and the Senate. (The House bill is HR.4854). 

• More info about the FCA Corrections Act
• Bill Text: S.2041

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According to the website of the Senate Judiciary Committee, that body will be voting to send the FCA Corrections Act (S.2041) to the Senate floor this Thursday, April 3rd, 2008 @ 10AM.

• Click Here for More information on S.2041
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UPDATE: THE COMMITTEE VOTE ON S.2041 HAS BEEN POSTPONED. AS OF TODAY (3/13/08) AT 2PM IT HAS NOT BEEN RESCHEDULED. MORE INFO WILL BE POSTED AS WE RECEIVE IT...

The Senate Judiciary Committee is scheduled to vote on S.2041, The False Claims Act Correction Act, in a meeting this Thursday. The bill is designed to reverse key federal court decisions which have undermined the intent of the FCA. This legislation has been championed by committee member Sen. Charles Grassley, and was the subject of a hearing on Feb 27, which I attended and blogged here.

• Click here for the official announcement on the Committee's website
• Click here to read Stephen Kohn's testimony, submitted at the 2/27/08 hearing

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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 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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This week, President Bush signed the National Defense Authorization Act for Fiscal Year 2008 (HR. 4986). Section 846 of this bill is a provision designed to protect employees of defense contractors when they report fraud to Congress, an Inspector General, the Government Accountability Office, or a Department of Defense employee charged with overseeing contracts.

The Bush administration has consistently opposed whistleblower rights for employees of the federal government and its contractors. Veto threats have been issued against the whistleblower protection legislation that has been proposed by the Congress (click here for the latest on those bills). The administration claims that protecting whistleblowers could harm national security, but the truth is the exact opposite: strong whistleblower laws can help keep this country safe and secure, as well as save us billions of dollars in wasted revenue.

In this case, the President had no choice but to sign the Defense Authorization bill into law, but then he went out of his way to express sharp disapproval of the whistleblower provisions in his signing statement. This statement (below), goes against the spirit of the law, and gives the president justification to ignore a congressional mandate.

“Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.”

In short, the new law is a victory worthy of great praise, but the President’s brash treatment of legislation designed to protect honest employees is deplorable.

See the full text of HR. 4986, sec. 846 after the jump...

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This February 5th is being called "Tsunami Tuesday" as many of the big states line up for primary elections to nominate candidates for President.

Ordinarily we would be urging those of you who are politically active to take advantage of this forum. We’d tell you to call, write or hire a plane to fly a banner. Just do anything to get attention for the False Claims Act during the campaign. We are a little disappointed nobody has asked the candidates to support the False Claims Act Corrections Act at any of the seemingly endless series of snooze inducing debates. What’s one question about fighting fraud mixed in with the You-Tube chatter?

Despite this void there has been a major positive event to highlight before February 5th.

Two of the biggest states at stake on February 5, California, and Illinois, have had their own False Claims Acts for many years. New York just got on board last year. Now, perhaps sensing a tsunami of support for fighting fraud, New Jersey has joined the group. By a unanimous vote in its Senate, The Garden State enacted its own False Claims Act just in time for Feb 5th.

Were the legislators and Governor afraid not to have a False Claims Act on the books when the national press arrived to cover a presidential campaign? Probably not. Probably, the New Jersey Legislature just knew a good thing when they saw one. Now, in addition to the billions collected through the Federal FCA, whistleblowers will be able to fight fraud at the local level.

The political implications of more states enacting these laws should not be dismissed. First of all the False Claims Act is popular. Fighting fraud is the safe place to be if you are voting in any legislature. We need to remind the Congress of that simple fact early and often to push for improvements to the law. Second, the laws enacted at the state level will increase popularity for all the False Claims Acts. It can be hard to get attention for a federal case involving merely millions as opposed to billions of dollars, but at the state level smart politicians/attorneys can make a nice career out of saving their state a few million dollars and fighting fraud. That’s fine with me.

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President Bush has signed into law the first legislation in more than a decade to strengthen the Freedom of Information Act. The Open Government Act of 2007, signed by Bush on New Years eve, contains several important changes and improvements to the Freedom of Information Act.

The new law establishes enforceable deadlines for agencies to process FOIA requests; extends FOIA's reach to certain records maintained by government contractors; establishes an ombudsman to resolve disputes; creates a FOIA tracking system; restores provisions for recovery of attorneys fees by FOIA litigants who successfully prevail in court, including cases where there is a voluntary or unilateral change in the government's position after filing of the lawsuit, so long as the FOIA requester's claim is not insubstantial; and requires that any award of attorneys fees be paid out of an agency's budget and not the Treasury Department's judgment fund.

Legislative improvements to FOIA were long overdue and the Open Government Act of 2007 is intended to speed up citizen access to government information. The Freedom of Information Act is an essential tool to assist whistleblowers, journalists, citizens and watchdog groups discover what their government is up to and provide outside oversight of government activities.

A copy of the Open Government Act of 2007 is linked here

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The op-ed page of the New York Times contained an editorial today about the passage of S.274, the Senate whistleblower protection legislation (we blogged it here) , and the need for a strong bill to come out of conference. Check it out:

"Protection for Endangered Whistleblowers"
PDF Version

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Another big legislative announcement! We received word today that the False Claims Act Amendments Act of 2007 has been introduced in the House of Representatives by Congressman Howard Berman. The bill number is HR. 4854.

This bill is designed to be companion legislation for the False Claims Act Correction Act of 2007, which was introduced in the Senate in September of this year by Senators Grassley, Leahy, Durbin and Specter. The legislation is intended to correct loopholes in the False Claims Act, a law which permits private citizens to file suit against contractors who defraud the federal government. 

The NWLDEF and the National Whistleblower Center fully support this legislation, and urge Congressional Leaders to make it a priority when they return from recess.  

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Late last night, the U.S. Senate finally got the job done, unanimously passing S.274, the Federal Employee Protection of Disclosures Act. This law, along with its companion house legislation (H.R.985), if preserved in conference, would go a long way towards protecting every single federal whistleblower and federal government contractor from retaliation when they report illegal activity to their supervisor. This legislation will effectively overturn the terrible Supreme Court Decision in Garcetti v. Ceballos, which held that government employees are not protected by the First Amendment when they report concerns at work.

More on this issue to come...

Below is the text of today's National Whistleblower Center Press release:

Washington, DC., December 18, 2007. Last evening the U.S. Senate, by unanimous consent, passed the Federal Employee Protection of Disclosures Act (S.274). This law enhances the protection for federal employee whistleblowers by expanding the scope of protected activity to cover complaints within an employees chain of command.

Passage of S.274 now sets the stage for a conference between the House and Senate to agree final legislative language. On March 14, 2007 the House enacted the Whistleblower Protection Enhancement Act (H.R. 985), which expanded the scope of whistleblower protections to national security related agencies, permitted employees to obtain jury trials in federal court, provided enhanced protections for federal contractors and protected employees who exposed misconduct to their managers.

“The House and Senate whistleblower protections laws complement each other. They need to be melded together in conference and immediately enacted into law. Only by combining the best of both bills will federal employees obtain realistic protection. Until then, the taxpayers and citizens will remain the losers in this debate, as billions of dollars in waste remains unreported and government officials who violate the law and mislead the American people escape accountability,” said Stephen M. Kohn, the President of the National Whistleblower Center.

“The Senate Action now sets the stage for the final passage of what will be one of the most important laws enacted by this Congress,” added Kohn.

The House and Senate bills were strongly endorsed by a broad coalition of public groups, including the National Whistleblower Center, the Project on Government Oversight, the Government Accountability Project and Taxpayers Against Fraud, the No Fear Coalition, the Make it Safe Coalition, the Liberty Coalition, and the Bill of Rights Foundation, among numerous others.

-end-

 

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I call it the two crash rule: It takes two disasters for Congress to protect whistleblowers.

For example, for years airline pilots pleaded for Congress to enact modest protections for airline employees who exposed safety concerns. Year in and year out legislation was introduced, but stalled or was ignored. Then, in 2000, two Alaskan Airlines jets crashed. Only after two plane crashes were the whistleblower protections enacted. The same story holds true for almost every other federal whistleblower law. Disasters prompted action – but in each case the legislative response was limited to fixing the crisis at hand.

How many more disasters are needed to provide real whistleblower protection for all American workers? How many more billions lost in various schemes (such as the home mortgage fiasco)? How many tainted products will be imported into America? How many more taxpayer dollars will be wasted or swindled by contractors in Iraq?

Since January, 2007 numerous whistleblower protection laws have been introduced into Congress. But since the Democratic takeover of Congress only one whistleblower protection proposal has actually passed. This law provides enhanced protections for truck and bus drivers who complain about safety risks.

Obviously, truck drivers need whistleblower protection, but what about the tens of millions of employees who remain completely unprotected?

Congress needs to enact a comprehensive national whistleblower protection law, a law which will provide all legitimate whistleblowers with adequate legal protections.

Below is the list of whistleblower protection laws are currently pending in Congress. They all deserve our support. But why has no member of Congress introduced a national whistleblower protection act, which would protect all honest employees who expose violations of law or threats to the public safety? Why are most whistleblowers still without any adequate protection under federal law? When will Congress finally act?

Here is a list of the major whistleblower protection proposals introduced into Congress since January, 2007. As of today, none of these laws have passed:

• CPSC Reform Act of 2007, S.2045, Section 22 (Consumer safety whistleblower protection).
  
• SAFE Drug Act, H.R.1165, Section 3 (Drug safety whistleblower protection).
  
• The Judicial Transparency and Ethics Enhancement Act of 2007, H.R.785, Section 1026, and S.461, Section 1026 (whistleblower protections for judicial branch employees).
  
• The Whistleblower Recovery Act of 2007, H.R.3180 (closing loophole in order to protect employees who expose fraud on the U.S. taxpayers).
  
• The Whistleblower Protection Enhancement Act of 2007, H.R.985 (federal employee whistleblower protection).
  
• Nurse and Patient Safety and Protection Act of 2007, H.R.378, SEC. 4(d) (providing whistleblower protection for the disclosure patient abuse).
  
• Consumer Food Safety Act of 2007, H.R. 3624, SEC. 419 (Food safety whistleblower protections)
  
• Safe Food Act of 2007, S. 654, SEC. 407 (Food safety whistleblower protections)
  
• Federal Employee Protection Act, S. 274 (modest protection for a limited class of federal employee whistleblowers)
  
• U.S. Troop Readiness, Veteran’s Health, and Iraq Accountability Act, 2007, H.R. 1591, SEC. 543 and the Small Business and Work Opportunity Act of 2007, S. 349, SEC. 213 (whistleblower protection regarding disclosure of tax fraud).
  
• Private Sector Whistleblower Protection Streamlining Act of 2007, H.R. 4047 (protections for private sector employees).
  
• National Defense Authorization Act, FY 2008, S. 1548, sec. 861 (Defense contractor protections).
  
• False Claims Act Correction Act of 2007, S. 2041 (closing loopholes in False Claims Act which currently permit corrupt federal contractors to escape liability).

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