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

The Washington Times obtained e-mails showing that the White House counsel’s office provided its own drafts of the proposed whistleblower legislation, which would be harmful to the rights of national security employees.

The National Whistleblowers Center has long favored the whistleblower legislation pending in the House of Representatives.  NWC Executive Director Stephen M. Kohn is quoted in the Washington Times article saying “The House got it right. Obama pledged to support it and he should keep his promise to every whistleblower. As passed, the Senate bill does not fulfill that promise.” Tom Devine of the Government Accountability Project is also quoted as supporting more rights for whistleblowers than the White House proposed. “In reality, it just changes the drapes and window dressing.  All the hearings would still be conducted by the agencies.”

The NWC has consistently advocated the right of all whistleblowers to a jury trial. That, among other important rights, is not provided in either the current version of the Senate bill or apparently in the proposed Administration law.

“We are hopeful that whistleblowers will take action now to advocate for passage of the protections included in the House version. Now is the time to call your Representative or Senators if you care about protecting whistleblowers,” said Stephen M. Kohn.

In addition, today’s New York Times carries a letter to the editor from a former CIA Analyst, which provides a strong example of why it is important to protect national security whistleblowers. Mr. Melvin A. Goodman states that “If Congress ever got around to giving genuine whistleblower protection to members of the intelligence community, this country might get some idea of the extent of the perfidy and duplicity of some government officials.” Mr. Goodman also says that the state secrets privilege, which is often used to silence whistleblowers has “more to do with national embarrassment and not national security.”

Let’s hope that President Obama keeps his promise to provide meaningful whistleblower protection, including jury trials, to national security employees.  You can help by sending a letter to Congress urging them to pass the whistleblower protections included in H.R. 1507.

*Anthony Munter (Of Counsel for the National Whistleblower Legal Defense and Education Fund) contributed to this posting.
 

The reason typically cited for denying court access for all federal employees is that it could create a national security risk. As current or former national security whistleblowers, we know this is not true. In an objective and independent review, the General Accounting Office (GAO) saw “no justification for treating employees at [intelligence] agencies differently from employees at other federal agencies except in rare national security cases.” This finding has held since 1996, and yet misinformation about extending full due process protections to national security whistleblowers is still pervasive today.

Moreover, whistleblowers have actually been instrumental in pointing out issues that threaten our nation’s security. Even without full due process protections, courageous employees have pointed out problems including deficiencies in the counterterrorism program that contributed to the success of 9/11, the promotion of faulty intelligence that led to a war, systemic due process violations through misconduct in crime labs, and billions of dollars in waste and illegal contracting. Rather than a national security threat, whistleblowers are a central defense against misconduct.

The future of our nation depends on your support for this critical oversight and accountability issue. Taxpayers put forward billions in government spending, and they deserve accurate information and a guarantee of accountability. Please safeguard our nation against future terrorist attacks by removing the gag order from the brave men and women who are charged with ensuring our safety.

The past ten years have demonstrated the invaluable contributions of whistleblowers. We have made countless preventable mistakes, including the failure to search Moussaoui, abuses in Abu Ghraib, and lies to Congress about secret CIA programs. The need to fully protect national security whistleblowers is indisputable. They are vital to our country’s safety, and their future is in your hands.

Respectfully submitted,

Sibel Edmonds
FBI Whistleblower and Director of the National Security Whistleblowers Coalition

Dr. Frederic Whitehurst
Former FBI Supervisory Special Agent and FBI Whistleblower (Crime Lab)
Member of the Board of Directors, National Whistleblower Center

Colleen Rowley
Retired FBI Agent, Whistleblower
Former Minneapolis Legal Counsel

Jane Turner
Retired FBI Agent, Whistleblower

Robert MacLean
Former U.S. Department of Homeland Security Federal Air Marshal
National Whistleblower Liaison, Federal Law Enforcement Officers Association

Jon Adler
National President
Federal Law Enforcement Officers Association

P. Jeffrey Black
Nevada State Chapter President
Federal Law Enforcement Officers Association
Federal Air Marshall Whistleblower

John B. Vincent
Retired FBI Counter Terrorism Agent, Whistleblower

Bill Russell
Former NSA Employee, Whistleblower

Melvin A. Goodman
Former CIA Analyst, Senior Fellow, Center for
International Policy, Whistleblower

Russell D. Tice
Former Intelligence Analyst & Capabilities Operations
Officer, NSA, Whistleblower

Sandalio Gonzalez
Special Agent in Charge, Ret., DEA, Whistleblower

William Savich
Special Agent, Bureau of Diplomatic Security, Department of
State,  Whistleblower

Martin Edwin Andersen
Former Senior Advisor for Policy Planning
Criminal Division, U.S. Department of Justice
First-ever National Security Winner of U.S. Office of Special Counsel´s "Public Servant Award"

Joseph Carson, PE
Nuclear Safety Engineer, Department of Energy
“Multiple-time Prevailing” Whistleblower

Gabe Bruno, Representative
FAA Whistleblowers Alliance
Retired FAA Manager

Craig R. Sawyer
Former U.S. Department of Homeland Security Federal Air Marshal Manager
Whistleblower Against Gross Mismanagement and Retaliation Member, Federal Law Enforcement Officers Association

Linda Lewis,
Emergency Programs (WMD) Specialist,
U.S. Department of Agriculture

Bill  Bergman,
Former Senior Financial Market Analyst, Federal Reserve Bank of Chicago, Whistleblower

Spencer A. Pickard
Former U.S. Department of Homeland Security Federal Air Marshal
While on active duty, exposed the Federal Air Marshal Service's safety and security lapses on ABC News 20/20 

Mark Danielson
DoD Police Officer, Whistleblower

Bogdan Dzakovic
Former FAA Air Marshal Team Leader and Red Team Leader, Current TSA, Whistleblower

cc.

 
Hon. Nancy Pelosi
Speaker of the House
H-232, US Capitol
Washington, DC 20515

Hon. Darrell Isa
Ranking Member
House Committee on Oversight and Government Reform
2347 Rayburn House
Office Building
Washington, DC 2051

Hon. Bruce Braley
U.S. House of Representatives
1019 Longworth HOB
Washington, D.C. 20515

Hon. Chris Van Hollen
U.S. House of Representatives
1707 Longworth H.O.B.
Washington, D.C. 20515

Hon. Todd Platts
Vice Ranking Member
Subcommittee on National Security and Foreign Affairs
2455 Rayburn House Office Building
Washington, DC 20515

Hon. Edolphus Towns
Chairman
House Committee on Oversight and Government Reform
2232 Rayburn House Office Building
Washington, DC 20515

Hon. Henry A. Waxman
U.S. House of Representatives
2204 Rayburn House Office Building
Washington, D.C. 20515

Hon. Harry Reid
Majority Leader
U.S. Senate
522 Hart Senate Office Building
Washington, D.C. 20510-2803

Hon. Joe Lieberman
Chairman
Senate Committee on Homeland Security and Governmental Affairs
One Constitution Plaza, 7th Floor
Hartford, CT 06103

Hon. Susan Collins
Ranking Member
Senate Committee on Homeland Security and Governmental Affairs
413 Dirksen Senate Office Building
Washington, DC 20510
 
Hon. Daniel Akaka
U.S. Senate
141 Hart Senate Office Building
Washington, D.C. 20510

Hon. George Voinovich
Ranking Member
U.S. Senate Subcommittees on Homeland Security & Oversight of Government Management
524 Hart Senate Office Building
Washington, DC 20510

 

In 2008, we noted that the funding available to the Department of Justice to investigate these cases was inadequate to handle the many qui tam actions filed. Now both houses of Congress have responded to our concerns with legislation.

The new law provides $165 million a year for two years to investigate and prosecute fraud actions.   This is important because we need more lawyers and more investigators to work on these cases.   The backlog of qui tam cases under seal stood at 900 at last check and it could take the Department four years to investigate a single case with that many still waiting. Keep in mind that the full cost of this legislation could be paid by a couple of successful cases. Many worthy issues can be lost for lack of resources or time to investigate because leads can get stale.  If only a few more good cases get the attention they deserve and survive, that money will have been a great investment.

The bill also includes important provisions to prevent contractors from escaping liability under the False Claims Act.

Significantly, the Supreme Court’s decision in the Allison Engine case is overturned. In that decision, the Court held it was not enough to show subcontractors merely made false statements or certifications, which resulted in their obtaining money. Instead the Court required proof, "   …that the defendant intended that the false record or statement be material to the  government's decision to pay or approve the false claim."

That means the Court requires a demonstration that the sub-contractor made a false statement with specific intent to get the government to pay money. This extremely high burden,  requiring “specific intent” frustrates the whole point of the False Claims Act. Should a sub-contractor making knowingly false statements and defrauding taxpayer be able to escape liability?

Under the old law, the sub-contractor can make a false statement to the prime contractor. The prime contractor can then bill the government and no matter what the government’s specifications were on the product involved, no matter even if the sub-contractor said the product would work when it did not, everybody escapes liability unless the plaintiff can show the sub-contractor intended to defraud the government directly.

Major government contracts have many specifications and sub-contractors make numerous certifications and they know that the ultimate payor of the contract is the government.  However, showing such certifications are false was not enough for the Allison Court.
 
The new law also fixes a related problem created by the Totten v. Bombardier case.  Supreme Court Justice John Roberts was on the DC Court of Appeals when he decided that a bill had to be presented to the government and that government money had to be directly involved in any case under the False Claims Act.  Judge Roberts ruled, “Amtrak is not the government.” While Roberts was technically correct that Amtrak is not a government agency, it does receive almost all of its money from the government.

So, while Amtrak is the nation’s railway it is not a direct agency of the U.S. Government. Roberts did not dispute whether or not Amtrak got defrauded.  What he did decide was if the government gave money to Amtrak and not directly for train products, just as operational or capital funds and THEN Amtrak went got defrauded, the money no longer was government money. So no liability existed as far as a False Claims Act case was concerned.  Roberts decided somebody had to directly present a bill to an officer or employee of the government and without this “presentment” there is no False Claims Act case.

Additionally, the new law, re-defines the term “claim” under the Act. It is now possible to sue when the government provides the money even if the user of the money is not a direct government agency like Amtrak. This will greatly expand the ability of whistleblowers to make new and important cases under the Act.

Back in December of 2007, we reminded everyone that the False Claims Act is at its heart a whistleblower law. Now the law extends true protection to those most likely to be retaliated against for reporting fraud. Under the old law only employees can sue for retaliation under the False Claims Acts section 3730(h).

This means a small contractor or an agent or an independent contractor could not. For example, say a family owned grass seed business has their contract terminated because they contest the way their prime contractor is handling the overall job. Now that sub-contractor would be able to sue for retaliation under the False Claims Act.

Sub-contractors are often small mom and pop operations and they can certainly lose the ability to obtain new business or be fired from a big project if they confront their prime contractor.  Shouldn’t the small business or independent contractor have the same right to sue for retaliation as an employee? Now they will.

These amendments to the False Claims Act are an important first step towards stronger whistleblower protection for all employees.  We look forward to continued improvements in this area.

The Three Steps:

1)    Commitment: Reaffirm his strong endorsement of reforms for federal whistleblower rights made in his campaign statements and transition policy – reforms providing best-practice free speech rights, including full court access for all whistleblowers funded by taxpayers and coverage of government contractors – and the appointment of a liaison responsible for interacting with whistleblower advocates as set forth in his May 8, 2007, response to a candidate survey.
 
2)    Change: Actively support the swift enactment of strong whistleblower protections, such as those in the bipartisan H.R. 1507, sponsored by Rep. Chris Van Hollen (D-MD) and Rep. Todd Platts (R-PA), in advance of congressional hearings this year, and communicate that message specifically to Attorney General Eric Holder. The president’s help will ensure that Congress enacts strong, comprehensive federal whistleblower protection legislation that gives all federal employees a functional administrative process and access to jury trials.

3)    Leadership:  Issue and enforce a directive to all agency managers that they must not tolerate any retaliation against federal employees who expose waste, fraud, abuse, suppression of federal research, threats to public health and safety, and illegality. While this directive alone will not resolve the need for improvements to the law, it will help to send a strong message of support for federal employees and help to end the culture of secrecy.

The NWC is optimistic that by working together with the President and members of Congress meaningful whistleblower protection for all federal employees will soon become a reality.  If you would like to express your support to Congress please sign the petition.