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

For whistleblowers considering whether to go to the media or not, watching this seminar would be an excellent way to learn about issues one should consider.  For example, these journalists have the impression that whistleblowers tend to be "persnickety" or "gruff." After all, they reason, it is their unwillingness to go along with misconduct that makes them whistleblowers in the first place. While I might find this assessment to be a generalization, all whistleblowers should be mindful of how they come across so they can attenuate their presentation to a journalist. Showing a willingness to listen to the journalist's questions, answering them directly, and avoiding interruption could go a long way to helping the journalist to bond to you and your cause. The panelists agree that for each story they do based on whistleblower information, their could be two or three times as many that they turn away.

Rich Bonin said that whistleblowers he has worked with are all motivated by altruism. Bonin said that whistleblowers still need to be prepared for a counterattack. If you are challenging rich or powerful interests, such as the government, they are going to use their resources to find damaging claims to make against you. "Being a whistleblower is never easy," Bonin says, "but is has value."

Because adversaries will go after whistleblowers with a fine-toothed comb, journalists need to do that too.  They need to find what the other side will find, before they find it. Obviously, this is easier for the journalist if the whistleblower can just be open about what the other side might find or say. When blowing the whistle on the federal government, be mindful that agencies have access to personnel files, including background investigations of those with security clearances. While privacy laws generally prohibit release of this information, it is not unusual for information to leak out when agency heads want it to leak out. Whistleblowers suffer from social isolation after they blow the whistle. They are used to working on something important, and then they get ignored or shunned.

John Solomon of the Center for Public Integrity presented "Seven Principles for Working Together." By understanding the difference between speaking "on" or "off" the record, or "on background," whistleblowers can avoid misunderstandings about what the journalist will print. Journalists want facts, accurate and new facts. Whistleblowers need to expect that the journalist will check and verify facts before printing them. So, come to the table with facts, and with information about how to verify them.

Steve Kohn discussed how his firm won a whistleblower case against the Savannah nuclear weapons facility just by going to the media.  At the time, there was no legal protection for whistleblowers in the nuclear weapons industry. When a hearing was called, attorney Michael Kohn decided to walk out without presenting any witnesses, on grounds that the rules for the hearing did not provide due process. Then, the Washington Post started with a page 3 story about hazards at the facility. Plant management overreacted and fired one of the witnesses. Then the Washington Post ran a page 1 story! That led to action by the Secretary of Energy, the Inspector General, and an order for reinstatement.  This is a rare case, and whistleblowers cannot expect to see it repeated.

Jim Popkin of the Seven Oaks Media Group answered a question about how investigative journalists will be able to sustain themselves in this era of cutbacks. He mentioned a web page where members of the public can read about investigative projects and make contributions.  Here is the link to the Knight News Challenge selection of Spot.us. When asked how to sustain a journalist's interest in a story, Jim explained that sustaining interest is the job of advocates, not journalists. Journalists report what is new, and it is not their job to repeat it for the sake of obtaining a desired result. Whistleblowers need to have realistic expectations of what a journalist can do.

Michael Kohn reported on a case where media attention had an undesired effect.  After the 9/11 terrorist attacks, he worked on a story about how the NRC had known about the risks of an air attack on nuclear power plants. Once the story got out, the concern became focused on the accessibility of information about these dangers. The result was that NRC removed information from its web pages, and the public lost an opportunity to access information that could hold officials accountable.

John Solomon is working through the Packard Media Group to encourage news editors and producers to accept the public responsibility to continue investigative journalism, and to recognize ways in which it can still be profitable, if it is done the right way. "It is such an important part of democracy," he says.

Epoch Times has released a story about this seminar.

The amicus brief was filed on behalf of the National Whistleblowers Center (NWC) and the Government Accountability Project (GAP). GAP attorneys Kasey Dunton-Dermont and Tom Devine assisted with the brief.

The SOX provision at issue is 18 U.S.C. §1514A(b)(1)(B).  It provides that if the Department of Labor (DOL) does not issue a final order within 180 days, then the complainant can file a de novo civil action in U.S. district court.  

Between 1999 and 2005, David Stone became a quick climber of the corporate ladder at Instrumentation Laboratory Company (IL).  Promoted twice, we went from a Sales Representative to Director of National Accounts.  In this national management position, Stone learned that IL had not been paying required administrative fees to Group Purchasing Organizations (GPOs). Combined with internal control problems, this meant that IL was misrepresenting its financial condition to investors. Stone reported these problems to corporate officials who promptly began retaliating.  First they gave Stone a bad performance appraisal.  Then, in March 2006, they fired him.

Stone filed a SOX whistleblower complaint with DOL's Occupational Safety and Health Administration (OSHA) which (as it does in most cases) found no merit in the complaint.  Stone appealed to an administrative law judge (ALJ) who dismissed the case without allowing Stone to have discovery or a hearing.  It is no wonder then that Stone decided to leave the DOL process and file in federal court.

The federal judge, however, also did not want to hear the case.  Citing a decision from Louisiana, and a comment by the Secretary of Labor, the judge said that allowing Stone to have a trial after the ALJ had issued a recommended decision was an "absurd result."  Ignoring the plain language of SOX, the judge ordered that the case go back to DOL for a final decision.  Stone appealed.

In our amicus brief, NWC and GAP argue that the plain and clear language of SOX controls, and it was an error for the judge to refuse to hear Stone's case.  The brief notes that the Fourth Circuit reached the same conclusion for discrimination cases under Title VII, holding that de novo review “makes clear” that the trial in district court “proceeds as if no earlier proceedings had been completed at all.” Laber v. Harvey, 438 F.3d 404, 421 (4th Cir. 2006). Other courts have also followed SOX the way it is written, allowing de novo litigation. JDS Uniphase Corp. v. Jennings, 473 F.Supp.2d 705, 710 (E.D. Va. 2007); Collins v. Beazer Homes USA, Inc., 334 F. Supp. 2d 1365, 1374 (N.D. Ga. 2004).

The brief argues that legislative history need not be considered when the statute's language is clear. Nevertheless, the history of SOX supports what the language says.  Senator Patrick Leahy stated “Only if there is not a final decision within 180 days of the complaint (and such delay is not shown to be due to the bad faith of the claimant) may he or she bring a de novo case in federal court with a jury trial available.” Legislative History of Title VIII of HR 2673, the Sarbanes-Oxley Act of 2002, Section 806, 148 Cong. Rec. S7418, S7420 (July 26, 2002).  Congress clearly knew what it was saying.  In fact, Congress has said it six more times in the whistleblower laws it has passed since enacting SOX in 2002:  Energy Reorganization Act, 42 USC 5851(b)(4); Surface Transportation Assistance Act, 49 USC 31105(c); National Transit Systems Security Act of 2007, 6 USC 1142(c)(7); Federal Rail Safety Act, 49 USC 20109(d)(3); Defense Authorization Act, 10 USC 2409(c)(2); and Consumer Product Safety Improvement Act, 49 USC 2087(b)(4).

The brief concludes that it is not “absurd” to follow the law as Congress wrote it.  A decision is expected by the end of 2009.  Click here to download the Brief of Amici Curiae.