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

The Wall Street Reform and Consumer Protection Act (H.R. 4173) passed 60-39 by Congress today includes a number of provisions designed to protect employees who report fraud in the commodity and stock exchanges. This is one of the most important whistleblower laws ever passed.

The NWC has compiled the sections of this bill that pertain specifically to whistleblowers with a one-sentence summary of each (see below). Additionally, the NWC's upcoming seminar, scheduled for July 23, 2010, has been updated to include a presentation of the whistleblower provisions in the Wall Street Reform Act. To register, click here.

Section 748
23(A) - qui tam for whistleblowers under the Commodities Exchange Act

23 sub (H) - anti-retaliation provision, which permits whistleblowers to go to federal court if they are retaliated against for filing fraud claims under the Commodities Exchange Act

Section 922

21F(a) qui tam for securities fraud: new qui tam rewards and incentives for whistleblowers who blow the whistle on securities violations

21F sub (H)(1) anti-retaliation provision for employees who file qui tam claims under securities law

(H)(1)(A)(iii) anti-retaliation for employees who make disclosures under SOX, any violation of SEC art or who make protected disclosures under obstruction of justice act

Claims filed in federal court - employees entitled to double back pay

(B) statistical ratings organizations (Moody's & Standard & Poor's) now protected under SOX anti-retaliation provisions (C) SOX whistleblower protection act enhanced and amended to increase the statute of limitations, guarantee jury trials, and prohibit mandatory arbitration agreements

Section 923 - Conforming amendments

Section 924 - SEC regulations to establish special whistleblower office and impose regulations enforcing whistleblower rules. 

Section 929A - SOX anti-retaliation law is clarified to ensure subsidiaries of publicly traded companies are fully protected under the whistleblower protection law

Section 966 - Federal employees are losers under the Act and regulators obtain no protections except a glorified "suggestion box"

Section 1057 - New whistleblower protection for employees who make disclosures to the newly created consumer protection board

Section 1079B - Amends the False Claims Act anti-retaliation law to provide for universal national 3 year statute of limitations to file wrongful discharge claims under the False Claims Act.

*Meryl Grenadier (NWC Fellow) drafted this post.

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On the Daily Show last night, following President Obama’s Oval Office speech, Jon Stewart delivered a monologue addressing the president’s record on civil liberties and executive power. Stewart plays a number of clips of President Obama from the campaign trail, where he states his positions on Guantanamo Bay, warrantless wiretapping, extraordinary rendition, covert military operations, habeas corpus rights for detainees, and whistleblowers.

The whistleblower clip quotes President Obama on the campaign trail saying that he “knows something about whistle blowing, and about getting those folks the proper protection.” Stewart responds by asking, “if by protection, did he mean sun block? …Because arresting them doesn’t seem like protection.”

It is true, as a presidential candidate, President Obama championed whistleblower rights and supported enacting best practice whistleblower legislation. However, his administration has presided over the prosecution of numerous whistleblowers, including UBS whistleblower Bradley Birkenfeld and NSA whistleblower Thomas Drake. The Whistleblower Protection Enhancement Act, meant to be the centerpiece of the Obama Administration’s commitment to accountability, transparency and oversight has been watered down and filled with poison pills and roadblocks.

Watch the Daily Show clip below. When you finish watching, take action, and let President Obama and Congress know that the time to truly enhance whistleblower rights is now.  

 *Meryl Grenadier (NWC Fellow) drafted this post.

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Yesterday concluded the 2010 National Whistleblower Assembly. Staff from the National Whistleblowers Center participated in a number of panels on major issues facing the whistleblower community. Richard Renner provided practice tips as part of the know your rights panel, Stephen M. Kohn discussed first amendment protections for doctors at the medical whistleblower workshop and David K. Colapinto presented current rights for FBI employees at the protecting FBI whistleblowers workshop.

Also at the assembly, the Make it Safe Coalition honored UBS whistleblower Bradley Birkenfeld with it’s “Tax Whistleblower of the Year Award”. As those who follow our blog know, Mr. Birkenfeld blew the whistle on the largest tax fraud scheme in history, and remains the only banker involved in the scheme to receive a prison sentence. Mr. Birkenfeld’s brother, Douglas Birkenfeld, attended the assembly and accepted the award on his behalf, as Mr. Birkenfeld is currently incarcerated in federal prison. The award presentation is below:

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As you may know, Army Corp of Engineers whistleblower Bunny Greenhouse has been actively involved in the fight for stronger whistleblower protection.  She has often said that she is only trying to allow the truth to be spoken.  Studies have proven that the best way to discover the truth is to encourage employees to blow the whistle and protect them from retaliation.

Ms. Greenhouse, concerned about the provisions included in the Senate bill, wrote a letter urging the Senate and the White House to “stop paying lip service to strong whistleblower protection for federal employees.”  She stated that despite all the retaliation she suffered as a result of blowing the whistle on the no-bid contract to Halliburton she would still not be able to tell her story to a jury of her peers.  Ms. Greenhouse explained that most federal employee would also be denied court access under the current Senate bill.

Her letter featured on the front-page of today’s Washington Times has sparked a debate over the true effectiveness of the Senate jury trial provision.

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On Monday, the Merit Systems Protection Board (MSPB) issued a decision once again denying whistleblower protection to a courageous federal employee.  In July 2003, U.S. Federal Air Marshal Robert MacLean blew the whistle on the Transportation Security Administration’s (TSA) plans to remove air marshals from long distance flights during the height of a terrorist alert in order to save money.  Congressional outrage the day after MacLean’s disclosure prevented the TSA from implementing the plan and the security of long distance flights was never compromised. On August 31, 2006, over four months after terminating MacLean and over three years after MacLean’s disclosure the TSA issued a regulation labeling his disclosure as Sensitive Security Information (sensitive but unclassified information).

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in 2006, the U.S. Supreme Court decided Garcetti v. Ceballos, in which they held that government employees are not protected by the First Amendment when they report concerns at work. This awful decision served as an impetus for advocates of employee rights, civil rights, and free speech issues, to band together and demand a comprehensive whistleblower law to protect government employees.  While advocates continue to battle for whistleblower rights in Congress, federal courts have begun to recognized the ill-conceived policies of the Garcetti decision. Recently, we told you about a 10th Circuit federal appeals court decision that allowed a building inspector whistleblower to have his day in court. Now, the 4th Circuit has produced a great decision in favor of a Baltimore policeman who reported misconduct in the police shooting of an unarmed elderly man.

As pointed out by this article, posted on The First Amendment Center website, Judge Wilkinson's concurring opinion in that case, Andrews v. Clark, is a powerful rebuke of the policies underlying the Garcetti decision. In his concurrence, Judge Wilkinson says that throwing out the whistleblower's case "would have profound adverse effects on accountability in government"  and “informed scrutiny of the workings of government...is impossible without some assistance from inside sources such as Michael Andrew.” This decision, along with Judge Wilkinson's concurrence, is great evidence that our federal judges get it.
 

I highly recommend reading the article, as well as the Andrews v. Clark decision.

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The Madison Wisconsin Capitol Times has this story today about Tom Nanstead, an electric company whistleblower who was terminated in 2005 after reporting that his employer routinely overbilled its customers for their utilities. Now, four years later, it has been determined by the Wisconsin Public Service Commission, that Xcel energy did indeed overbill their customers, but Mr. Nanstead has found no legal recourse that can return him to work or provide him with compensation. This well-written story highlights the need for a national whistleblower protection  law, and especially the trouble faced by private-sector whistleblowers.

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During the Presidential campaign, the staff at the National Whistleblowers Center worked hard to put the candidates on record with regard to their views on whistleblower protections. This survey response, from then candidate Obama indicated an unequivocal support for strong whistleblower laws. As we reported soon after the elections, the American people fully expect President Obama to keep that promise, by  supporting legislation to strengthen employees' free speech rights and appointing whistleblower supporters to key positions.

It is for this reason that I found this post on the FedBlog (run by GovExec.com) to be so interesting. FedBlog is reporting that: 

 

Apparently, Danielle Gray, the staffer who filled out [the National Whistleblowers Center] questionnaire for President Obama in which he expressed strong support for whistleblower protections, is now an associate counsel to Obama. It's not clear that she'll be working specifically on whistleblower issues in her new position, but it might affect how people read Obama's signing statement on whistleblower issues in the omnibus spending bill.

One can only speculate on the effect this will have on the administration's view of whistleblower rights, but it certainly seems like a good thing.

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The National Whistleblowers Center, along other good government groups will be hosting the 2009 National Whistleblower Assembly from March 8-12. This event, which brings scores of public and private sector whistleblowers to Washington, DC, has been extremely successful in getting the attention of Congress over the past three years.

Back in 2007, when the whistleblower community held the first such event (it was called "Whistleblower Week in Washington"), one of the major events that week was an award ceremony at which representatives from approximately 30 public interest groups presented Senator Charles Grassley with an achievement award for all that he has done for whistleblowers. During his acceptance speech, Senator Grassley explained to us his support for whistleblowers, and there are two lines of that speech that I will never forget. 

First, the Senator expressed his view that "Whistleblowers are treated like a skunk at a picnic." While this statement is somewhat humorous, we know it's true. Whistleblowers who risk their livelihood to expose wrongdoing are often seen as breaking up the party of greed and corruption. Senator Grassley realizes that whistleblowers are heroes, and they deserve our respect. That brings me to the second thing that I remember from that speech: the Senator calling for the President of the United States to hold nothing less than a Rose Garden ceremony honoring whistleblowers. At the time, Grassley said that "this would send a message from the very top of the bureaucracy about the importance and value of whistleblowers."

As we know, the Bush Administration was for the most part not friendly toward whistleblowers, and this idea never got off the ground. In recent weeks, though, Senator Grassley has  proposed this idea to President Obama, who has long supported whistleblower rights. Hopefully this becomes a reality! 

This year's National Whistleblower Assembly is sure to be as exciting, informative, and successful as in the past. I encourage anyone in the DC area to check it out! For more information, and to RSVP for events, click here.

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As you know, we have been waging an intense campaign for new whistleblower protection laws. We have experienced recent victories and setbacks. And now, prominent whistleblowers like Bunny Greenhouse are calling us all to action. Throughout this campaign, our staff has been incredibly impressed with the level of support shown by our blog readers, facebook users, and all other online grassroots supporters. We have sent thousands of letters to Congress and we are achieving real change!!! 

This groundswell of support is driving a national conversation about whistleblower rights, which is evidenced by the fact that the national news media is paying very close attention to these recent developments. Just today, there are two stories in the Washington Post detailing the struggle for whistleblower protections for federal employees, and especially national security whistleblowers. See the links below for the articles.

"Advocates Determined to See Whistleblower Protections Pass"

"Obama, Gates at Odds Over New Whistleblower Protections"

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