My colleague, Stephen M. Kohn (Executive Director of the National Whistleblowers Center) and I spent New Year’s Eve racing the clock to file two friend-of-the-court “amicus” briefs with the Department of Labor’s Administrative Review Board (ARB). Last November, the ARB issued an invitation to file amicus briefs to address a series of questions about the requirements for valid whistleblower complaints. In an amicus brief on behalf of my client, Douglas Evans, we answered the questions about the whether whistleblower complaints to OSHA have to meet the standards for pleading claims in federal court, and what procedure Administrative Law Judges (ALJs) should follow before considering whether to dismiss a claim without a hearing. In a separate amicus brief on behalf of the National Whistleblowers Center (NWC), we answer the questions about the scope of protected activity under the Sarbanes-Oxley Act (SOX). Specifically, we trace the long history of Department of Labor and court decisions that broadly applied a variety of whistleblower protections.  We note how Congress relied on the body of law when it enacted SOX.  We argue that the ARB and Court decisions of the last five years made a mistake, and violated congressional intent, by narrowing the scope of protection. We specifically ask the ARB to reject the requirement that protected activity must “definitively and specifically” relate to a violation of law. We examine the difference between raising concerns outside of established channels, and the “exceptionally broad” protection that activity has when it is pursued through established channels. We also dispute the claim that SOX claims should connect to some “fraud” or meet some standard of “materiality.” Finally, we show that the concerns raised by Ms. Kathy Sylvester and Ms. Theresa Neuschafer (breaches of Good Clinical Practices or GCPs) are at the core of Parexel’s business as set out in its Form 10-k, and is, therefore, material.

These briefs would be a good reference for any whistleblower or lawyer facing a challenge to any whistleblower claim on grounds of pleading standards, or the scope of protected activity.  Enjoy the new year.

You can also read the brief of the U.S. Chamber of Commerce which fails to consider the full history of whistleblower protection, and focuses on the recent cases that agree with the Chamber’s argument that protection should be narrow. I was pleasantly surprised that the Chamber would say, on page 1, “The Chamber’s members have a strong interest in the fair and efficient enforcement of the Sarbanes-Oxley whistleblower provision to accomplish its essential goals.”

Attorneys for Ms. Sylvester and Ms. Neuschafer also submitted a brief. These Maryland attorneys include E. Patrick McDermott of Annapolis, David C. Weaver of Frederick, and Brett Dieck of Marriottsville. The Securities and Exchange Commission (SEC) filed their own amicus brief.

Readers of this blog might recall an earlier post that explains why my client Douglas Evans would be so interested in the ARB’s consideration of pleading standards.  The Ninth Circuit last week stayed his petition for review to await the ARB’s decision on this case.

The ARB has scheduled an oral argument on these issues for January 18, 2011, at 10:00 a.m. at the Francis Perkins Building, the headquarters of the U.S. Department of Labor in Washington, DC. This will be the ARB’s first oral argument under the present administration. Hopefully, we will have a better idea of the Board’s thinking after that oral argument. The case is Sylvester v. Parexel International, ARB Case No. 07-123.

  • Joe Carson

    Hi Richard,

    Writing the following is how I spent New Year’s Eve, which someone told me was the deadline to submit recommendations for the program of the Tennessee League of Women Voters in 2011-13.

    December 31, 2010

    Ms. Barbara Devaney, Action Chair, Tennessee League of Women Voters
    2813 Tyne Blvd
    Nashville, TN 37215

    Dear Ms. Devaney,

    Per the Bylaws of the Tennessee League of Women Voters (LWV), Article XI, “Program,” Section 3(a), I submit the following recommendation:

    “Principles of the League of Women Voters,” relevant to this recommendation include:

    All powers of the US government should be exercised within the constitutional framework of the balance among the three branches of government legislative, executive, and judicial.

    That responsible government should be responsive to the will of the people.

    That government should promote conservation and development of natural resources in the public interest.

    That government should adopt domestic policies which facilitate the solution of international problems.

    League of Women Voters of the United States 2008-2010 Public Policy Positions particularly relevant to this recommendation include defense spending, natural resources, and LWV’s belief that efficient and economical government requires competent personnel.

    These aspects of the LWV Program presume a federal civil service that is trustworthy – ethical, competent and accountable – in performing its assigned tasks. Unfortunately, too much evidence demonstrates this is not a valid presumption in many federal workplaces.

    By the Civil Service Reform Act (CSRA) of 1978, the responsibility to ensure federal employees are adequately protected PPPs is divided between the agency heads, the U.S. Office of Special Counsel (OSC), and the U.S. Merit Systems Protection Board (MSPB). Agency heads are responsible to “prevent PPPs” in their agencies. OSC has the nondiscretionary duty to investigate allegations of PPPs, determine whether there are reasonable grounds to believe a PPP occurred and, if so, to report its determination to the involved agency head. MSPB is responsible to conduct “special studies” necessary to determine whether agency employees are adequately protected from PPPs.

    I am concerned that OSC, the federal law enforcement agency created by the CSRA to protect federal employees from PPPs, has, for 31 years – since its creation – violated/misinterpreted/misapplied its 5 U.S.C. §1214(e) reporting requirement in claiming that it does NOT apply to the civil service laws, rules, and regulations within its enforcement jurisdiction. I am concerned that MSPB, also created by the CSRA, has violated/misinterpreted/misapplied 5 U.S.C. §1204(a)(3) for 31 years in claiming that it does not require MSPB to conduct the special studies of OSC’s interpretation of and compliance with its nondiscretionary duties to protect federal employees from PPPs as well as agency heads interpretation of and compliance with their nondiscretionary duties to prevent PPPs. I am concerned this leaves agency heads unable to demonstrate compliance with their duty, per 5 U.S.C. §2302(c), to “prevent PPPs.”

    LWV’s national Program is premised on Americans being able to trust federal officials and agencies. Developing and maintaining this public trust requires a federal civil service where employees are adequately protected from PPPs, which requires OSC and MSPB to properly interpret and implement their relevant nondiscretionary duties. LWV can play an important role in spurring the necessary Congressional oversight and Presidential action to ensure they are. Thank you for your consideration of this recommendation and please feel free to contact me with questions or comments.

    Joseph P. Carson, PE, Knox County LWV member
    10953 Twin Habour Drive
    Knoxville, TN 37934 (phone 865-300-5831)

  • nemie aequita

    Before you blow the whistle-consider whether or not you have family,and if it’s private or public. It’s a action that cant be rolled back and it can be hell. Make damn sure you rally for support.

  • Qui Tam Relator

    Thank you so very much !!! I was the first Qui Tam Relator after the 1986 Amendment to the False Claims Act to file and win a Criminal and Civil Case since Lincoln entacted the law in March 1863. I never got all the reward and was branded a Whistleblower and never really recoverd from the trama of working undercover for the FBI and DCIS for two years until the discovery portion was revealed to both parties and I was fired ASAP. The case was the largest and most serious in American History and now is lost in the archives because the government and the Corporate World want to hide cases that were sucessful in the early stages of the False Claims Act. CV-88-3757-JMI (GHKx). I could really never find substantial work after that and have been homeless on and off for the last 20 years this is how they treat Qui Tam Relators in this great country of ours. I devoted Two years of my life and I end up struggling and homeless to survive. Bradely Birkenfeld is not alone in being cast aside and forgotten because of what he did for our country. Thank you for this site it makes me feel good you guys are out there !