David Welch, the first corporate employee to file for protection under the whistleblower provisions of the Sarbanes-Oxley Act (SOX) was in court today. nearly 7 years after filing his first complaint, Mr. Welch is still battling his former employer and attempting to win reinstatement.
An AP reporter covered the hearing in Richmond, VA today -- you can read about it here
A few weeks ago I posted a story about a University of Nevada (Reno) professor who was fired after blowing the whistle on animal abuse occuring in campus laboratories. Now a group of demonstrators is protesting the decision, made by UNR president Martin Glick, and demanding that he fully reinstate Dr. Hussein S. Hussein, who is a world renowned animal nutritionist.
This Monday, May 12, the Democratic Policy Committee is scheduled to hold hearings to "examine the impact of American reconstruction and anti-corruption failures on the U.S. mission in Iraq." Several former government employees will be offering testimony.
This hearing is a continuation of the admirable work that this committee has done in shedding light on problems in Iraq. In September 2007, Army Corps whistleblower Bunnatine "Bunny" Greenhouse testified before the committee regarding her opposition to the multi-billion dollar "no bid" contract awarded to Halliburton/KBR in the run-up to the Iraq war.
Detailed information about the May 12, 2008 hearing can be found here.
Here are the links for the September 2007 testimony of Bunnatine Greenhouse and Stephen M. Kohn.
Many MSM sources (such as the New York Times and CNN)and blogs (like Talk Left) are now reporting that the Office of Special Counsel was raided by the FBI today, along with the home of agency head Scott Bloch. Bloch and his agency are under investigation for obstruction of justice stemming from an ongoing probe in which Bloch and other managers at the OSC -- the agency responsible for investigating federal whistleblower complaints -- are suspected of retaliating against whistleblowers in that agency.
Mr. Bloch has been under investigation since 2005, and today's events are in no doubt related to the fact that he used a private computer service company (Geeks on Call) to erase his personal and office computers during the time of the investigation.
Some interesting whistleblower stories have been cropping up around the country over the past week or so:
1. Four years after blowing the whistle, FAA air-traffic controller Anne Whiteman's allegations are finally being addressed, and hopefully she is feeling some measure of vindication. Ms. Whiteman disclosed that the FAA had systematically covered up errors by other air-traffic controllers by classifying the incidents as "pilot error." This meant that potentially life-threatening incidents were not being acted upon, but rather, they were swept under the rug. The FAA, now finding itself under the microscope after two whistleblowers testified before a House committee earlier this month, has been forced to take action on this issue.
2. In another story of whistleblowing in the aviation industry, the Department of Labor has announced that the Scottsdale, AZ, based West Jet Aircraft must pay nearly $100,000 in back pay and compensatory damages to a whistleblower who was fired after he/she (the whistleblower was not identified) reported the company for, among other things "performing a test flight with passengers on board."
3.) The first-ever whistleblower case under the Sarbanes-Oxley Act of 2002 is still being adjudicated. The Associated Press article, aptly titled "The Whistleblower's Undending Story," tells an all-too familiar tale...
Three news stories about whistleblowers have caught my attention this week, and I wanted to share them with everyone.
1.) Briefs have been filed in a potentially precedent-setting case for one Maryland state whistleblower law. The case, Lark v. Montgomery Hospice, Inc. -- pending before the Court of Appeals of Maryland -- could determine whether Maryland's Healthcare Worker Whistleblower Protection Act should protect whistleblowers who report their claims internally (within their chain of command), or if the law only applies to those employees who report their claims to a regulatory agency. Since we know (both by empirical evidence and just plain common sense) that the vast majority of employees reporting wrongdoing go to their supervisor first, then it only makes sense that strong whistleblower laws should always protect employees who report internally.
The American Nurses Association, a professional organization representing nearly 3 million registered nurses, has filed an amicus brief on behalf of the whistleblower in this case. See the ANA press release here>>
A troubling whistleblower story has been developing in South Carolina. The federal authorities and the South Carolina state senate is investigating systematic retaliation by the SC State Police against their own officers who report illegal activity within the agency. Read about it here>>
Most recently, whistleblowers' disclosures there have led to the release of these shocking videos, showing officers using their vehicles as a weapon to ram fleeing suspects.
As one state senator put it, the SC State police has been run by "good ol' boy politics."
Hopefully the state and federal investigations in South Carolina will root out the wrongdoers and result in the proper reforms, but this instance really shows the need for better state and federal laws to protect whistleblowers. After the devastating 2006 Garcetti v. Ceballos Supreme Court decision, government whistleblowers no longer have the First Amendment to rely on as a shield against retaliation, which leaves them with basically no protection whatsoever.
For more links to interesting articles and blog posts about whistleblowers and whistleblower law, check out our Whistleblower Link Blog. Where is it? It's on the left hand side bar, just scroll down!
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Federal employees got a bit of good news last month when the United States Court of Appeals for the District of Columbia struck down a district court’s attempt to keep federal employees from being able to litigate non-discrimination claims as part of a “mixed case” complaint: one which can be filed in federal district court when no administrative decision is issued after 120 days.
This decision, Ikossi v. Department of the Navy, together with two prior Court of Appeals decisions, Butler v. West and Evano v. Reno, form a trilogy of cases that produce a roadmap that should that should enable federal employees the right to join a federal Whistleblower Protection Act claim together with a Title VII discrimination claim and proceed to federal court on the entire claim in federal district court when the agency fails to issue a final administrative decision within 120 days.
According to Michael Kohn, who is General Counsel to the National Whistleblower Center and served as lead counsel in the Ikossi case:
“the most effective way to escape the reach of the MSPB and the Federal Circuit’s stranglehold on whistleblower claims is for those individuals who can raise a Title VII discrimination claim in to file a “mixed case” complaint with a federal agency’s Equal Employment Opportunity (‘EEO”) office claiming that the adverse action flowed from unlawful discrimination and as a result of having engaged in protected whistleblower conduct.”
As reported in the New York Times, ABC News, the Associated Press, and other media outlets yesterday, the Department of Justice Office of the Inspector General has issued a report on their continuing investigation of the FBI's widely criticized "national security letters" program. The IG found that top FBI counterterrorism officials, including the current Assistant Director for Counterterrorism and Executive Assistant Director for Counterterrorism, signed off on "blanket" NSLs which authorized the warrantless obtainment of records for over 3,000 phone numbers.
Many of the deficiencies brought to light in the IG's findings were reported by Special Agent Bassem Youssef, an FBI whistleblower who has been critical of the NSL program.
More information:
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.
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.
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.
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.
Yesterday, January 30, 2008, in a Senate Judiciary Committee DOJ Oversight hearing, Senator Charles Grassley (above, right) had some tough questions for Attorney General Michael Mukasey. Notably, Senator Grassley, a longtime critic of FBI policies and actions against whistleblowers, asked the AG about Special Agent Bassem Youssef, who has exposed serious misconduct in the war on terror.
In his full written questions, Senator Grassley, citing an October 2007 letter to Mukasey sent by Mr. Youssef's attorney, Stephen Kohn, says:
"Special Agent Youssef, through his counsel, provided my office with a
copy of a ten page letter (dated October 11, 2007) filed with your
office detailing threats to our nation's security caused by the failure
of the FBI to hire and promote subject matter experts within the FBI's
counterterrorism division. The examples set forth in that letter are
extremely troubling. [Mr. Chairman, I ask that the letter be placed in
the record.]What action has your office taken to investigate the issues and concerns
raised in Mr. Youssef's October 11, 2007 letter?Do you plan to seek an independent review of Youssef's allegations about how lack of expertise among FBI managers is hindering its
rts? Why or why not?"
counterterrorism effo
He goes on to ask Mr. Mukasey about the abuses related to National Security Letters program, of which Mr. Youssef has firsthand knowledge, and has been a vocal critic.
You can read all of Senator's Grassley's tough questions for Attorney General Mukasey after the jump...
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...
Briefs were filed yesterday in the Supreme Court case Allison Engine Co., Inc. v. United States ex rel. Sanders (Docket no. 07-214). This case will decide whether corporations and individuals who receive government contracts are legally required by the False Claims Act to "present" their claim for payment to a government agency, or if they can evade liability under the FCA by routing these claims through a surrogate, such as a subcontractor.
The Petitioners' and Respondents' briefs were filed yesterday, as well as Amicus briefs, including for the Respondents Amicus Curiae briefs from Senator Grassley and Taxpayers Against Fraud. (Thanks to TAF for these briefs).
View the National Whistleblower Press Release on this issue here
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.
Early this morning, Stephen Kohn gave a 10 minute interview which provided some insight into the case of FBI counterterrorism whistleblower Bassem Youssef. For those of you who don't live in the DC area or who (like me) were not awake early enough to catch this interview, you can listen to it by clicking here.
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Last month we reported on a key Whistleblower/Civil Rights tax case that was filed with the Supreme Court by attorneys working with the National Whistleblower Center. See Whistleblowers Blog (December 13, 2007). The case is Murphy v. IRS, No. 07-802 (Supreme Court), and the principal issue is whether the IRS can tax as income plaintiffs' court awards for non-physical compensatory damages, such as make whole awards for emotional distress and loss of reputation.
Since the petition for a writ of certiorari was filed on December 13, 2007, the Solicitor General has requested and received an extension of the time for the government to file a response to Ms. Murphy's cert petition. A copy of the Solicitor General's request is available here, and a copy of the order granting the request is here.
**Also, a brief update on the status of the case was reported in today's Wall Street Journal.
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Here are links to some of the blog posts and websites that covered FBI Whistleblower Bassem Youssef's discussion at the American Library Association conference, where he discussed the Bureau's counterterrorism shortcomings.
Here is a look at some blog posts:
Huffington Post:
http://www.huffingtonpost.com/2008/01/14/fbi-agent-criticizes-coun_n_81355.html
Wonkette:
http://wonkette.com/344491/the-fbi-agent-and-the-naughty-librarians
The Raw Story
http://rawstory.com/news/2007/Whistleblower_effectively_gagged_by_FBI_0110.html
Some others:
And some traditional media sources:
Yesterday, Minneapolis Chief U.S. District Judge James Rosenbaum ordered the FBI to pay over $1 million to former FBI Agent Jane Turner and her attorneys. Combine that amount with the $360,000 that Turner was awarded by a jury in February 2007, it brings her total court award, to nearly $1.4 Million. The judge's ruling yesterday dealt yet another solid blow to the FBI, which had filed an objection to Ms. Turner's request for reimbursement of her attorneys fees.
Special Agent Turner was a highly regarded child crime agent working in the "Indian Country" of North Dakota for thirteen years. She experienced harsh retaliation from her managers after blowing the whistle on sex discrimination within the FBI, as well as negligence in child abuse investigations. In January 2007, a Minneapolis jury awarded Turner over $500,000 for retaliation and backpay - which by law was reduced to $360,000.
**Tad Vezner of the Pioneer Press has a good article on this issue linked here**
The FBI initially appealed the jury verdict, but the Solicitor General of the United States intervened and forced the FBI to drop their appeal.
Stephen Kohn, Ms. Turner's attorney and President of the National Whistleblower Center, called the Turner decision "vindication for an irrational attempt by the FBI to destroy one of its highly decorated veteran agents after she exposed highly discriminatory practices by her management."
In addition to disclosing discrimination, Ms. Turner also reported widespread theft by FBI agents at the 9/11 crimescene. A subsequent DOJ investigation found that scores of employees had stolen items belonging to the victims, including a crystal Tiffany globe and bloodstained clothing.
"FBI management at the highest levels must be held accountable for their crude attempt to cover up official misconduct. What the Bureau did to Jane Turner is unnaceptable in modern law enforcement." Added Kohn.
**North Dakota TV station KFYR has video on the Turner issue here
**Dan Browning of the Minneapolis Star-Tribune has written numerous articles on the Turner case, and has more on the Judge's decision here (Free Subscription Required)
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
For all those interested, the IRS has issued new guidance for claimants under the IRS whistleblower law. They are seeking public comment on the proposed regulations.
See the IRS' proposed rules here.
As stated in section 4 of the document, public comments will be accepted by mail or electronically at Notice.comments@irscounsel.treas.gov.
Jason Zuckerman of the Employment Law Group blogs this issue here
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Bassem Youssef, a Supervisory Special Agent with the FBI, will be speaking at the American Library Association (ALA) conference in Philadelphia on Saturday, January 12th. Mr. Youssef (pictured at right with former FBI director Louis Freeh) is a whistleblower who exposed major shortcomings in the Bureau's conterterrorism efforts, including the fact that top counterterrorism officials have no knowledge of even the most elementary details regarding the Muslim religion or terrorist ideology (See Jon Stewart's hilarious "Daily Show" segment, featuring information from Mr. Youssef's case).
Mr. Youssef is slated to address the ALA about the FBI's use of "National Security Letters" to obtain phone records of Americans without a warrant. The NSL debacle was reported in the Washington Post earlier this year. Mr. Youssef will also speak about his experiences as a whistleblower.
The ALA has long been a champion for civil liberties, privacy and intellectual freedom.
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:
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.
**UPDATE: THE FULL TEXT OF THE LEGISLATION IS LINKED HERE
This week, Congressman Albert Wynn introduced the Congressional Disclosures Act (HR. 4650), legislation to protect federal employees from retaliation when they make disclosures to members of Congress. This is important legislation and it has been strongly supported by the National Whistleblower Center and many other public interest groups.
This bill is the second of the No FEAR (Notification of Federal Employees Anti-discrimination and Retaliation) laws, the first of which was enacted in 2002, and has been described as "the first civil rights law of the 21st century."
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-
The National Whistleblower Center announced today that a major Whistleblower/Civil Rights tax case has been filed with the Supreme Court. The case, Murphy v. IRS, has generated a lot of attention in the past year, and certainly puts forth questions that beg a grant of certiorari.
At the heart of the case is whether the IRS has the constitutional right to tax plaintiffs' court awards for non-physical compensatory damages, such as emotional distress and loss of reputation.
The case was brought by Marrita Murphy, an environmental whistleblower who won her case before the Department of Labor, and was awarded compensatory damages to vindicate her rights under six federal environmental whistleblower statutes. Murphy filed suit when that IRS demanded that she pay taxes on the "make-whole" award.
Murphy v. IRS has the potential to affect thousands of past and future victims of civil rights violations and whistleblower retaliation.
UPDATE 1/16/08: To see the latest on Murphy v. IRS, click here
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This weekend, The Detroit News reported that the remaining federal criminal charges against DOJ whistleblower Richard Convertino will be dropped. Mr. Convertino, a career federal prosecutor, was hit with conspiracy and obstruction charges after blowing the whistle on DOJ mismanagement of terror investigations.
I would like to take this opportunity to remind everyone that the False Claims Act is supposed to be a Whistleblower law. Something is strange when there's a 670 Million Dollar settlement under this law and it’s actually pretty hard to find out what happened. (The only reports I could find were in the Corporate Crime Reporter and a paragraph five mention in this Associated Press article)
There's a lot of good news in the fact that Merck had to pay this money, but we'll have to wait for all the details because it seems many of the documents are still under seal. False Claims Act Plaintiffs always have a hard time adjusting to the idea that they have to keep their mouths shut to let the Government investigate their claims. In this case, the Government should be congratulated - they got a huge result. Yet one of the points of the law is to deter the type of behavior Merck engaged in, and it's hard to see how keeping the results quiet does that.
We were able to find one court document, the Complaint filed in Nevada under that State's False Claims Act. If that complaint can be believed, and there are 670 million reasons to give it credibility, Merck went about "increasing market share" as they call it, pretty much the way a drug pusher does. Only drug pushers don't get the US taxpayer to underwrite sales.
The complaint filed in Nevada district court outlines a scheme to defraud the taxpayer. Merck essentially gave away their drugs, drugs for chronic conditions, to hospitals so that patients would be dependent on the prescription when they left the hospital. Then Merck charged higher prices when the patient left. Only problem is that by discounting drug away earlier they were supposed to report that as the new price of the drug and re-imburse the government accordingly. Ooops. You can't say the pill is 10 cents in the hospital but costs 2 dollars when the patient leaves and get two dollars per pill from the government which pays the bills each time.
In a special irony, one of the drugs whose "market share" this scheme Improved was Vioxx. So now Merck has more Vioxx liability for that drug's cardiac problems than if they marketed the drug legally. That would almost be funny if it didn't put so many patients' lives at risks.
Anyway, the US Department of Justice is to be congratulated for winning such a huge settlement. The Lawyers who won the case and certainly the Plaintiff who brought it have all earned their reward. I just wish that instead of keeping everything quiet everybody would do a little more bragging. Get all the documents out of seal and tell the world that the False Claims Act works to recover funds stolen from the government even in complex schemes. Let's encourage the whistlebowers to report fraud as the False Claims Act was enacted to do. When you win $670 Million, its time to tell the world.
Today's Washington Post has an update on the FBI Bullet-Lead debacle. Lee Wayne Hunt , a North Carolina man who has maintained his innocence since being convicted of murder in 1986, is appealing his case to the North Carolina Supreme Court.
This is not Mr. Hunt's first appeal, but this time he is doing so with the help of information obtained by the National Whistleblower Center's Forensic Justice Project. The FJP's lawsuits against the FBI produced a wealth of documents detailing how thousands of cases, including Mr. Hunt's, were prosecuted on the basis of a faulty forensic science known as bullet-lead analysis.
Dr. Frederic Whitehurst, a former FBI Special Agent and forensic expert, is the Executive Director of the FJP.
Yesterday, John Solomon of the Washington Post reported that the Senate Judiciary Committee is requiring that the FBI turn over records related to all criminal cases in which bullet-lead analysis was presented as evidence. There are over 2,500 such cases nationwide.
Dr. Frederic Whitehurst, the Executive Director of the Forensic Justice Project (a project of the National Whistleblower Center) has filed three lawsuits against the FBI since 1996 in an effort to obtain release of these records. Unfortunately, the FBI has never been fully compliant with the FJPs FOIA requests, and has engaged in extensive feet-dragging and stonewalling, even so far as demanding that the FJP pay over $70,000 for access to these public records.
The Senate's action is in response to years of work by the FJP, which led to a joint investigation by the Washington Post and 60 Minutes.
On November 18, 2007, the results of an investigation into the operations of the FBI crime lab were printed in the Washington Post and broadcast on CBS News 60 Minutes. The Forensic Justice Project (“FJP”), a project of the National Whistleblower Center, in Washington, D.C., and FJP Executive Director Dr. Frederic Whitehurst, cooperated with the joint Post-60 Minutes investigation by providing records released by the FBI to FJP and Dr. Whitehurst under the Freedom of Information Act (“FOIA”). These FBI FOIA records document the serious misconduct and other problems reported in the joint Post-60 Minutes investigation.
By way of background, since 1996 it has taken no fewer than three separate lawsuits filed on behalf of either Dr. Frederic Whitehurst or the Forensic Justice Project (or both) under the Freedom of Information Act to obtain records regarding FBI Laboratory scandals. In each and every case, the FBI has delayed and stonewalled the release of records documenting misconduct in the FBI Lab, including the problems identified in the Washington Post-60 Minutes investigation.
The FOIA cases are:
1. Whitehurst v. FBI, Civil Action No. 96-572 (GK) (D.D.C.):
This was the original case filed on behalf of Dr. Whitehurst and it alleged that the FBI was refusing to process FOIA requests made on Dr. Whitehurst’s behalf in 1993 and 1995. These requests sought access to records about Dr. Whitehurst’s whistleblower allegations about serious problems in the FBI Lab, which also became the subject of a U.S. Department of Justice Office of Inspector General (“OIG”) review of the FBI Lab. Dr. Whitehurst’s lawsuit also alleged that records about Whitehurst and his allegations that were responsive to the FOIA requests were being selectively released by the FBI to criminal defendants, the courts, members of Congress, but were being denied to Dr. Whitehurst.
On February 5, 1997, Judge Gladys Kessler ordered the FBI to release all records responsive to these requests. See the order here
This lawsuit was later expanded to include Dr. Whitehurst’s FOIA requests for copies of the Justice Department’s OIG report and work product.
Ultimately, this lawsuit was settled and part of the settlement covered granting Dr. Whitehurst a fee waiver and access to thousands of pages of records on his whistleblower allegations and the FBI Lab scandal.
2. Forensic Justice Project v. FBI, Civil Action No. 04-1415 (PLF) (D.D.C.):
This FOIA case against the FBI was filed on behalf of the FJP in 2004 and requested access to records of various FBI Lab examiners who had testified in criminal cases regarding bullet lead. The case against the FBI was settled in March 2006, with the FBI agreeing to grant a fee waiver and provide the FJP with the names of defendants and case numbers of cases in which these examiners testified.
This FOIA case also was filed by the FJP against the DOJ for the records of DOJ Criminal Division Brady Task Force review of the FBI Lab scandal and Dr. Whitehurst’s whistleblower allegations. The FOIA case against DOJ on the Brady Task Force records was settled on December 9, 2005, with the DOJ agreeing to grant a fee waiver to FJP and produce on a rolling basis records from the Brady Task Force review.
The FJP provided all of these records to the Washington Post and these FBI records on bullet lead provided important leads for the Washington Post-60 Minutes investigation.
3. Forensic Justice Project and Whitehurst v. FBI and DOJ, Civil Action No. 06-1001 (RWR) (D.D.C.):
This FOIA action was filed in 2006 and is currently pending. See the Complaint
The FOIA request was filed with the FBI in September 2005 seeking copies of all records related to the comparative bullet lead cases and records related to the decision to stop using comparative bullet lead analysis that were referred to in a September 2, 2005 FBI press release. See the Original FOIA Request With FBI Press Release Attached
The FBI has refused to grant a fee waiver forcing the FJP and Dr. Whitehurst to appeal and then go to court. Reporter John Solomon of the Washington Post also wrote a letter informing the FBI and DOJ that he was interested in reviewing the records requested by FJP and Whitehurst. In February 2007 the FBI acknowledged that there exist approximately 250,000 records responsive to this request but the FBI demands that Dr. Whitehurst and the FJP pay approximately $70,000 to process this FOIA request.
The records responsive to this request are the actual case file records for all of the comparative bullet lead cases handled by the FBI Lab based on flawed science prior to the FBI’s decision to stop using comparative bullet lead analysis in criminal cases. In its September 2, 2005 Press Release, the FBI itself identified more than 500 cases where convictions were obtained using the scientifically flawed comparative bullet lead analysis. In addition, the FBI identified thousands of other criminal cases where comparative bullet lead analysis had been used prior to its discontinuance.