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

Yesterday, the Department of Justice held a listening session with representatives of the National Whistleblowers Center, American Civil Liberties Union, Government Accountability Project and Project on Government Oversight to discuss needed improvements in the DOJ regulations that implement the Whistleblower Protection Act for FBI employees. The meeting was called as a result of a directive issued by President Obama ordering the Attorney General, in consultation with the Office of Special Counsel and FBI employees, to make recommendations to improve the effectiveness of the DOJ whistleblower program for FBI employees.

Steve Kohn and I attended the meeting on behalf of NWC and provided our insights on the weaknesses in the current FBI whistleblower program after representing several FBI employees who faced whistleblower retaliation over the past 20 years.

The NWC and ACLU also presented a briefing paper at the meeting listing 14 specific recommendations that are needed to improve the DOJ regulations on whistleblower rights for FBI employees. A copy of the briefing paper can be found here. 

Among the most important recommendations are changing the definition of what is a “protected disclosure” to protect FBI employees from retaliation who report wrongdoing to supervisors and for reporting through their chain of command, providing for reasonable deadlines for rulings and decisions in cases, in order to avoid the administrative delays that currently plague the program, appointing statutory Administrative Law Judges who are independent, publishing decisions in FBI whistleblower cases and making remedies and other provisions consistent with recent reforms enacted last November in the Whistleblower Protection Enhancement Act.

The Attorney General’s report to President Obama is due in April of this year. Thereafter, we expect the DOJ will announce changes to its current regulations on whistleblower protections for FBI employees through rulemaking, which will provide an opportunity for the public to submit comments on proposed rule changes.

The DOJ’s whistleblower program was non-existent in the 1990’s when Frederic Whitehurst blew the whistle on the FBI crime lab. Even though Congress had enacted a special provision within the Whistleblower Protection Act of 1989 to require the President and Attorney General to implement regulations and enforce whistleblower rights for FBI employees (5 U.S.C. § 2303), the government refused to create any FBI whistleblower program, as required by law, until after Fred Whitehurst sued President Clinton and Attorney General Reno alleging whistleblower retaliation in 1995. During the midst of that lawsuit, President Clinton ordered the Attorney General to finally create the program that Congress required be implemented in 1989.

Since the DOJ regulations were created in 1998 there have been continual problems in enforcement and many complainants have complained of administrative delay and program ineffectiveness. In addition, none of the decisions of the DOJ are published giving the FBI a distinct advantage in litigating claims to defeat FBI whistleblowers.

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The Washington Post has published year-end articles that highlight three ongoing projects of the National Whistleblower Center.

In an article published on December 26, "Top 10 stories in the federal workforce in 2012", The Washington Post cited the scandal involving FDA electronic spying on its own scientists who blew the whistle on agency misconduct. The Post ranked the FDA electronic spying scandal as the number 9 story that affected the federal workforce this past year. The NWC has been actively supporting the scientists who have sued the FDA for whistleblower retaliation and challenged the constitutionality of the FDA's secret monitoring of the scientists' personal and private emails.  As revealed by the NWC and the whistleblower scientists, the FDA targeted the whistleblowers for electronic surveillance by installing secret spyware on their computers.  The FDA captured confidential emails from the whistleblowers' personal and private email accounts (such as Yahoo and Gmail accounts) and the FDA stole the whistleblowers' confidential communications with their attorneys as well as communications with members of Congress, the Inspector General and others discussing the whistleblowers' allegations of serious wrongdoing by the agency.

In the same article, the Post mentioned the passage of the Whistleblower Protection Enhancement Act (WPEA) as the number 3 story affecting the federal workforce.  Although the WPEA falls short of the landmark reform that whistleblower advocates have pushed for more than a decade, the scaled back version finally enacted by Congress this Fall contained long needed improvements in the whistleblower law that protects federal employees.  The NWC worked in coalition with a number of other groups to ensure that harmful provisions were removed from the WPEA before final passage of the modest reform bill.  Left out of the WPEA were any real protections for intelligence agency or national security whistleblowing, federal court access and jury trials to challenge retaliation by agencies (despite that similar court access is available for federal employees in other contexts), and true reform of the appellate review process.  Despite these shortcomings the NWC and other groups endorsed the final WPEA bill which removed some barriers that had excluded employees from protection and created a new remedy to provide for compensatory damages to provide monetary relief to whistleblowers for harm to reputation or emotional distress (remedies that had not previously been available).  Challenges lie ahead for the whistleblower community to demand more extensive reforms that were left out of the WPEA.  The NWC remains committed to advocate for stronger whistleblower reforms for federal employees in 2013.

Finally, another Post article published on December 22, "Review of FBI forensics does not extend to federally trained state, local examiners" highlighted continuing problems with the FBI Laboratory's review of 21,000 cases impacted by alleged forensic misconduct.  The Post article follows up on whistleblower allegations first raised by Dr. Frederic Whitehurst in the 1990's and confirmed by the Dept. of Justice Inspector General in 1998.  The latest forensic scandal involving the FBI Lab grows out of Dr. Whitehurst's whistleblower allegations and the Justice Department's failure to properly review cases impacted by Dr. Whitehurst's allegations of forensic fraud.  Following his settlement with the FBI, Dr. Whitehurst established the Forensic Justice Project, as part of the NWC, to continue to monitor the Justice Department's review of cases handled by the FBI Lab to determine whether individuals were wrongfully convicted from the FBI's forensic fraud.  After obtaining tens of thousands of pages under the Freedom of Information Act, the NWC and Dr. Whitehurst worked with The Washington Post to examine whether the Justice Dept. properly reviewed FBI Lab cases and notified criminal defendants whose cases were likely impacted by allegations of forensic fraud.  In April of 2012, the Post published a three part series on serious flaws in the Justice Dept.'s review of the FBI Lab scandal, and with the help of NWC in reviewing the FOIA records, it concluded that hundreds of criminal defendants who were convicted based in part on testimony of FBI Lab examiners, never were contacted by the government after the Justice Department had found problems affected their convictions.  The current review centers on 21,000 hair and fibers cases handled by the FBI Lab.  Two cases in the District of Columbia were found to result in innocent men each spending more than 20 years in prison based on false hair matches by FBI Lab examiners.  The work of one of those FBI Lab examiners was originally identified by Dr. Whitehurst as suspect back in the 1990's but the Justice Department never properly reviewed or looked into the cases handled by that Lab examiner.  It has been irrefutably established through DNA testing that these two individuals convicted in the District of Columbia were in fact innocent.  Dr. Whitehurst and the NWC will continue to review these and other ongoing problems in the FBI Lab in 2013, and urge Congress to conduct more aggressive oversight of these problems.

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David Colapinto, General Counsel of the National Whistleblowers Center (NWC), spoke with ABC News correspondent Lindsey Ellerson in a story released today.  Ellerson looked at how the new movie, The Informant!, sheds light on other more notable whistleblowers.

Colapinto told Ellerson, "In terms of the Whitacre case itself, I thought that it was both entertaining and it was an interesting portrayal of that unique case -- but it should not be confused with what whistle-blowers face on a day-to-day basis." Colapinto suggested that other cases, such as Colleen Rowley's better portrayed the whistleblower experience. "What she did in terms of coming forward on the problems with the failure to report the events of 9/11 was just absolutely incredible, Our government has still not come to terms with the lessons of 9/11 which she was responsible for really shining the light on in terms of the lack of communication between agencies in the executive branch, law enforcement, intelligence, etc."

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Today the House Committee on Oversight and Government Reform heard from whistleblowers, their advocates, and even an administration official about the need for convincing remedies for federal employee whistleblowers.   Committee Chair Edolphus Towns (D-NY) opened the hearing with an encouraging word about the prospects for Whistleblower Protection Enhancement Act (WPEA), H.R. 1507. He indicated that he had positive signs from the Senate and the administration about getting improved whistleblower protections passed this year. It remains to be seen if these protections will provide full court access, including jury trials, and coverage for national security employees, as is already provided in Title VII cases, and is now proposed in the current text of H.R. 1507. Bunny Greenhouse spoke about how the current law failed to protect her.  She added, "I am well versed in how poorly it works when it comes to federal sector whistleblower protection."  Here is a photo of Michael German (ACLU), Corinne Kohn (Friends of Whistleblowers), David Colapinto (National Whistleblowers Center), Angela Canterbury (Public Citizen) and Michael D. Kohn (National Whistleblowers Center).

 

Chairman Towns noted how, "Whistleblowers risk their careers to challenge abuses of power and gross waste of government resources." He added that, "enhancing whistleblower protections helps us to fulfill our role of bringing about a more honest, accountable, and effective government for the American people." He reported that his committee had worked with the House Intelligence Committee to craft strong whistleblower protections for national security personnel that would also protect classified information.  He explained that having an effective whistleblower protection will help federal employees feel safe to raise issues where they can be most effective, and without having to resort to the media.

Rep. Darrell Issa (R-CA), the ranking member of the Committee, also spoke of the need to protect whistleblowers, "absolutely, without fail."  He called the need for enhancement, "obvious and vital." He noted that such protections should not come at the expense of national security, and he looked forward to working toward resolution of this issue and passage of the bill.

Rep. Dennis Kucinich (D-OH) said that whistleblowers "deserve to be thanked, not punished." "If we can see what is happening, then we have a chance to make it right."

Mr. Rajesh De, Deputy Assistant Attorney General for the Office of Legal Policy said that the administration "strongly supports protecting the rights of whistleblowers." He agreed that the time had come to amend the current system.  He specifically supported "make whole" compensatory damages for whistleblowers.  He supports providing protection for raising issues to your immediate supervisor, even if it is part of the employee's normal duties. He said that national security employees should also have protections. While he did not address the issue of jury trials directly, he did say that for national security employees, the administration wants a new executive branch agency to be responsible for fielding and deciding whistleblower issues.  To experienced whistleblower advocates, that sounds a lot like the current, and failed, Merit System Protection Board.  Mr. De looks forward working this issue out with the Committee. Perhaps the administration is accepting that jury trials are inevitable for everyone outside of national security. At a minimum, Mr. De's statement certainly shows that the administration saw no need to speak against jury trials when it had the chance.

Ms. Teresa Chambers described her experienced being removed as Chief of the U.S. Park Police after telling the media that her agency was understaffed.  She explained that whistleblowers need a remedy that is "fast and fair."  She said that jury trials are the best reform Congress can enact.

Representative Chris Van Hollen (D-MD), one of the sponsors of H.R. 1507, reported that he is now "hopeful" that the Senate will pass WPEA.  "We wouldn't know of the flaws in the existing system if you had not come forward to tell your stories," he said, thanking the witnesses.  He said that protecting whistleblowers will also protect our taxpayers and our country.

Dr. Louis Fisher is the constitutional law specialist of the Library of Congress. He presented a remarkable history of the role of Congress in national security and foreign affairs. He explained that as long as the administration reserves for itself the decision of who needs to know classified information, then the administration will be able to escape review of abusive practices.  He noted that in 1990, Congress passed a law governing the CIA that made clear that Congress itself has a need to know to carry out its duties as a co-equal branch of government.

Michael German of the ACLU explained his insightful proposal to protect national security whistleblowers.  First, he said, we need to protect employees when they speak out as part of their official duties.  Second, we need a means for all employees to alert members of Congress about protected disclosures, so those members of Congress can pursue lawful means to review classified information contained in such disclosures.

David Colapinto of the National Whistleblowers Center explained how all federal employees, including those working in national security, have access to jury trials for claims of race, gender, religion and national origin discrimination. If an employee needs agency information, the agency's EEO office can review the information and either approve its release or provide a declassified substitute. He argued that the same procedure can be used for whistleblower cases. Any system that relies on administration appointees, such as the MSPB, will not work.  Only jury trials will be effective. 

Today's hearing marks a turning point in the history of whistleblower protection.  For the first time, legislators are working with a light shining from the end of the tunnel.  We are not out of the tunnel yet, however.  Our political process still needs to impress on the decision makers that whistleblowing is important for our transparent democracy, and that whistleblowers must have access to that same crucible of truth that we use for car accidents and criminal defendants -- jury trials. The momentum is with us now. We need to maintain our spine and our spirit to bring us to the finish line.

 

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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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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.

• Click Here to Read the Supreme Court Brief
• Click Here to Read the National Whistleblower Center Press Release

 

UPDATE 1/16/08: To see the latest on Murphy v. IRS, click here 

Interested in issues like this one? Click to subscribe to our RSS feed.

 

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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.

For more than a decade the FBI and the Justice Department have been sitting on records relating to serious misconduct on the part of FBI Lab examiners in scores of criminal cases.


Both the FBI and DOJ have dragged their feet in responding to FOIA requests forcing Dr. Whitehurst and the FJP to file three separate FOIA suits in federal court to get access to records about the government’s misconduct.


All of these records, should have been made public long ago. It should not have taken three FOIA suits to force the release of some of the records while the FBI continues to stall and prevent release of the FBI Lab’s case files where it misused scientifically flawed comparative bullet lead analysis in thousands of criminal cases.


Even worse is the secret process by which the DOJ reviewed Dr. Whitehurst’s whistleblower allegations about the FBI Lab’s serious misconduct.


It is only now, as more information comes to light as a result of these FOIA suits, that portions of the FBI’s misconduct in these are matters are being pieced together thanks to the investigative efforts and determination of the Washington Post, 60 Minutes, attorneys and groups like the Innocence Project and the Forensic Justice Project, and scientists like Bill Tobin and Dr. Frederic Whitehurst.


The FBI and DOJ should have disclosed all of this information to the courts as well as criminal defendants and their attorneys years ago. Instead, the DOJ and the FBI deliberately chose to operate in the dark, out of public view, and conceal the evidence that is scientifically flawed but which was still used in criminal cases. This has severely prejudiced people who have been hurt by the FBI Lab’s misconduct.


By stonewalling and delaying the release of this information, the FBI and DOJ have ensured that wrongfully convicted citizens are deprived of their right to appeal or seek post-conviction relief because the statute of limitations in many states have already likely expired.


David K. Colapinto
General Counsel
National Whistleblower Center

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The Washington Post-60 Minutes investigation, published in today's Washington Post, has confirmed that the convictions of hundreds of defendants have come into question because a bullet-lead analysis used for 40 years has been discredited and the FBI has failed for more than 2 years to properly notify those convicted about these problems. Read The Article 

Later tonight, after the 60 Minutes special begins, you can visit this blog for further information on the bullet-lead issue. We will have original documents from the FOIA lawsuit, as well as blog posts from former FBI Crime Lab whistleblower (and Executive Director of the Forensic Justice Project) Dr. Frederic Whitehurst and the General Counsel for the National Whistleblower Center, David Colapinto.

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This Sunday, The Washington Post and 60 Minutes will be breaking a major story detailing appalling injustices committed by the FBI. This story has been over 10 years in the making, and is the direct product of work done by the National Whistleblower Center. We urge you to read Sunday’s Post and watch 60 Minutes on Sunday night for more details.

Then, after the show …

Come back to this blog where Dr. Frederic Whitehurst, the original FBI whistleblower whose shocking disclosures were the impetus for many of the so-called “reforms” in the FBI Crime Lab, will be posting his thoughts on the current scandal. Dr. Whitehurst is now the Executive Director of the Forensic Justice Project.

Also blogging will be David Colapinto, the General Counsel of the National Whistleblower Center. Dave has been representing whistleblowers (including Dr. Whitehurst) for over 20 years.

Stay Tuned!

Click here to see 60 Minutes’ article about the upcoming show

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