House Oil Spill Response Bill includes gold standard whistleblower protection

Posted on July 27, 2010 by Richard Renner

Deepwater Horizon explosionHouse Speaker Nancy Pelosi has announced plans to bring the Oil Spill Response Bill to the House floor for passage. The Washington Independent is reporting that the bill will include the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, which, “provides whistleblower and anti-retaliation protections to workers on the Outer Continental Shelf” and “protects worker safety by improving federal agency coordination.” The text of this bill is available here. From my read, it includes most of what we call the "gold standard" protections for whistleblowers.  It will protect oil and gas workers when the raise concerns about compliance with the Outer Continental Shelf Lands Act, or any concerns about illness, injury or unsafe conditions. It would protect reports made in the course of performing duties, and protect refusals to violate the law. It would provide a right of action through the Department of Labor, a 180-day statute of limitations, a contributing factor standard for proving causation, and a "clear and convincing evidence" burden for employers who claim they would have fired the whistleblower even if protected activity was not considered. If the Department of Labor has not issued a final order within 300 days, whistleblowers could go to U.S. District Court and ask for a trial by jury. One provision that is missing (but was added to SOX in the Dodd-Frank Act) is a provision specifically barring enforcement of pre-dispute arbitration agreements.  It does provide that, "The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment," but this might not be enough to keep courts from enforcing arbitration agreements, as they are keen to do. It would be a good day for oil and gas workers, and for everyone who cares about the environment we leave for future generations, if this bill would pass.  It would be an even better day if the House adds the Dodd-Frank anti-arbitration language.

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Justice Department Considering Using False Claims Act to Recover Losses in Deepwater Horizon Disaster

Posted on July 26, 2010 by Lindsey Williams

FCA Legal Actions Could Result in BP Paying Treble Damages To United States Taxpayers

 
Washington, D.C. July 26, 2010.  Assistant Attorney General Tony West confirmed that the U.S. Department of Justice was "considering all avenues of redress against the potentially responsible parties," according to a letter released today by the National Whistleblower Center. The letter specifically mentions the False Claims Act ("FCA").  The letter is in response to a letter from NWC urging the government to use the FCA to hold responsible parties accountable for losses suffered by the taxpayers as a result of the Deepwater Horizon disaster.
In a letter to the Executive Director of the National Whistleblower Center, Assistant Attorney General West praised the "important contributions" of whistleblowers (referred to as "relators under the FCA) "in assisting the United States" in recovering "taxpayer funds."  West stated:
 
This public-private partnership has proved a successful tool for the recovery of public funds and for rewarding relators who bring allegations of fraud to the government.  Indeed, since January 2009 more then $3.6 billion was obtained under the Act's qui tam provisions, and relators were awarded more than $497 million for their efforts in helping government pursue these recoveries.
 
The FCA was originally signed into law by President Abraham Lincoln, and was recently strengthened by Congress in 2009 and 2010.  The law covers corporations that obtain oil and gas leases from the United States, and provides for the payment of treble damages if a company violates the FCA.  Qualified whistleblowers that provide original information concerning such violations are entitled to mandatory monetary rewards between 15% and 30% of any monies recovered by the United States pursuant to an FCA case. 
 
Stephen M. Kohn, the Executive Director of the National Whistleblower Center praised Assistant Attorney General West's response: 
 
It is not enough to simply slap BP on the wrist by making them pay fine and clean up costs. BP owes U.S. taxpayers treble damages, and they must be made to pay up.
 
The FCA is powerful tool, protecting and rewarding employees who expose violations of environmental law and government lease agreements.  Under the FCA, every corporation involved in drilling under a federal government lease can be held accountable to the taxpayers for treble damages if they violate the terms of those leases or if they made false statements to obtain a lease.  This liability stretches beyond the Deepwater Horizon disaster. Workers, who risk their jobs and careers to expose violations of leasing obligations, including violations of safety and environmental standards, are entitled to significant monetary rewards if their claims are covered under the FCA. We are encouraged that the Justice Department is considering using the FCA as one of its legal tools for protecting Americans from economic and environmental disaster in the Gulf Coast.
 
 
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DOJ answers NWC call for FCA action on oil spill

Posted on July 22, 2010 by Richard Renner

Last month, we posted here our letter to the U.S. Department of Justice calling on them to exercise their power under the False Claims Act (FCA) to hold oil companies accountable for misleading the government and the American people about their ability to clean up oil spills. Deepwater Horizon explosionToday we received an answer. Assistant Attorney General Tony West has written to us to say, "that the Department of Justice is dedicated to recovering any losses it sustains as a result of the oil spill, and is considering all avenues for redress against the potentially responsible parties." Mr. West's letter goes on to express the Department's appreciation of the False Claims Act and the role whistleblowers play in helping the government recover funds fraudulently obtained:

The Deparment appreciates the important contributions of relators in assisting the United States to recover taxpayer funds under the False Claims Act's qui tam provisions. This public-private partnership has proved a successful tool for the recovery of public funds and for rewarding relators who bring allegations of fraud to the government. Indeed, since January 2009, more than $3.6 bilion was obtained under the Act's qui tam provisions, and relators were awarded more than $497 million for their efforts in helping the government pursue these recoveries.

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Whistleblower Bobby Maxwell tells CNN about slipshod MMS inspections

Posted on July 2, 2010 by Richard Renner

Last month, CNN's Special Investigations Unit released a story about Bobby Maxwell's experience as an inspector for the U.S. Department of Interior's Minerals Management Service (MMS). Deepwater Horizon explosionThe main point of the story is how MMS was infused with a "culture of corruption," and its slipshod inspections missed opportunities to prevent the Deepwater Horizon explosion. The story also mentions that Maxwell is in the fifth year of a whistleblower lawsuit against Kerr-McGee. In that case, Maxwell won a $7.5 million dollar verdict against Kerr-McGee. After a judge threw out the verdict, he appealed. In 2008, the U.S. Court of Appeals for the Tenth Circuit agreed that Maxwell had a right to pursue his fraud case and reinstated the verdict. No doubt, Maxwell's status as a wistleblower, especially a whistleblower who has won his case, empowered him to speak out about the dangers of MMS' alignment with the oil companies instead of with the environment.  No doubt, Maxwell raised his concerns years ago, but no one was listening until 11 workers lost their lives and the ecology of the Gulf of Mexico was ruined by this disaster. Maxell's story makes obvious how we would all benefit from giving our federal employees strong whistleblower protections. To me, this is the reason why our Senators must scrap the poison pills in their current version of the Whistleblower Protection Enhancement Act (WPEA), S. 372, and adopt the strong House version, HR 1507. Follow this link for more information about helping environmental whistleblowers.

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