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Over the weekend the Daily Beast reported on a leaked draft investigative report that exposed the systemic failures in the flawed intelligence community whistleblower program. According to this report, late last year the Trump Administration put a lid on the finalization of an investigation of the whistleblower program failures by the Inspector General for all intelligence agencies. 
Continue Reading National Security Whistleblowers: Systemic Failures and Broken Promises Exposed in Leaked Report

In a brief 3-page report dated September 15, 2016, the House Intelligence Committee concluded that Edward Snowden “was not a whistleblower” because there were “laws and regulations in effect at the time” that “afforded him protection” and he failed to exercise those whistleblower rights.  The Committee report specifically cited the Intelligence Community Whistleblower Protection Act of 1998 (IC WPA) that does permit employees, like Snowden, to make disclosures of wrongdoing to Congress if certain other conditions are met.
Continue Reading House Intel Claim that Snowden Had Whistleblower Protection Is False and Misleading

There are more effective ways to protest lax enforcement of financial fraud

Last week, it was widely reported that Eric Ben-Artzi, a Deutsche Bank whistleblower stated he will refuse a portion of his whistleblower award from the U.S. Securities and Exchange Commission’s whistleblower program.   Mr. Ben-Artzi had worked at the bank as a vice president and he tells an all too-familiar story of a loyal corporate insider reporting serious fraud internally only to be betrayed by corporate compliance officials and then getting fired by management.
Continue Reading Deutsche Bank Whistleblower Should Accept SEC Whistleblower Award

On April 19th I visited the Supreme Court to listen to oral arguments in Universal Health Services v. U.S. ex rel. Escobar, arising under the whistleblower provisions of the False Claims Act.  However, I was shocked at what I heard.The hospital that was sued in this case actually asked the Justices to believe that: (1) it is not fraud for a hospital to bill Medicaid or other government insurance programs for a doctor’s services when it knows that a doctor did not perform any services; and (2) that companies and hospitals that are government contractors should be permitted “to pick and choose which regulations they comply with.”
Continue Reading Government Contractors Ask Supreme Court for False Claims Act Loophole So They Can “Pick and Choose” What Regulations to Follow

On August 4, 2015, the Securities and Exchange Commission (“SEC”) issued an interpretive rule to dispel confusion over whether employees who only report violations to their employer are protected by the Dodd-Frank whistleblower protection provision. The SEC will formally publish this interpretative rule in the Federal Register and it will operate as an amendment to the Dodd-Frank whistleblower rules. A copy of the SEC’s interpretative ruling can be found here.
Continue Reading SEC Says Employees Protected For Internal Whistleblowing

Yesterday, the National Whistleblower Center joined other groups in filing an amici curiae brief with the Department of Labor Administrative Review Board (ARB) in Powers v. Union Pacific Railroad Company, ARB Case No. 13-034.  Joining the NWC as amici are the National Employment Lawyers Association, the Truckers Justice Center and Teamsters for a Democratic Union.

The ARB called for amici to file briefs in the Powers case to consider the standard of proof for employees to establish the “contributing factor” test in whistleblower retaliation cases arising under the Sarbanes-Oxley Act  (SOX) and other whistleblower statutes.  The full ARB is considering whether an earlier 2-to-1 ARB panel decision in Fordham v. Fannie Mae, ARB No. 12-061 was correctly decided.  In Fordham, the ARB reversed and vacated an Administrative Law Judge’s recommended decision that had improperly weighed employer defenses in determining whether the employee had demonstrated her whistleblowing was a contributing factor in her termination.  
Continue Reading NWC Joins Amicus in SOX Whistleblower Retaliation Case

In a long-overdue decision issued on October 9, 2014, the Department of Labor Administrative Review Board (ARB) finally clarified the standard of proof for employees to establish the “contributing factor” test in whistleblower retaliation cases arising under the Sarbanes-Oxley Act  (SOX) and other whistleblower statutes.  In a 2-to-1 panel decision in Fordham v. Fannie Mae, ARB No. 12-061, the ARB reversed and vacated an Administrative Law Judge’s recommended decision that had improperly weighed Fannie Mae’s defenses in determining whether the employee had demonstrated her whistleblowing was a contributing factor in her termination.

The majority opinion noted that Congress had created the “contributing factor” test to lower the standard of proof needed in whistleblower cases, and that once a “contributing factor” is shown the burden of proof shifts to the employer to prove by “clear and convincing” evidence that it would have taken the same action in the absence of the employee’s whistleblowing.
Continue Reading ARB Decision Promotes Clarity And Uniformity In Whistleblower Cases

Dr. Frederic Whitehurst

July 30, 2014 – Another front-page story about the FBI Lab Scandal appeared in the Washington Post today.  In this story, we learned that the FBI unilaterally stopped reviewing thousands of criminal cases to determine if tainted forensic evidence was used to obtain convictions simply because the FBI did not like the results of the review.  It turned out that “nearly every case” the FBI reviewed included flawed evidence or testimony from the FBI Lab.  So the FBI stopped looking at the cases in August of 2013.

It didn’t matter that the review was pointing to possibly thousands of tainted convictions and that some of those included death penalty cases.  The FBI stopped looking after it determined that its review might cast serious doubt on nearly all of the convictions that relied on FBI Lab hair analyses.  Apparently that was too much for the FBI stomach so they stopped the review and sought to change the rules governing the review last August.

According to today’s front page Washington Post article, the FBI did not get approval from the Justice Department to change the way it would review these cases.  The Post quotes a Justice Department official as saying, “The Department of Justice never signed off on the FBI’s decision to change the way they reviewed the hair analysis.”

To keep this in context, this particular review was required because the FBI and Justice Department had previously promised in 1996 to conduct reviews of cases impacted by the FBI Lab scandal.  That’s right.  The Attorney General and the FBI Director both promised in 1996 that they would get to the bottom of who was hurt by tainted forensic evidence from the FBI Lab.  After it was shown in a series of articles that the reviewed ordered in 1996 was seriously flawed, the FBI and DOJ agreed in 2012 to undergo the current hair analysis review.

This leads us to four questions about the FBI Lab Scandal. 
Continue Reading Four Questions About the FBI Lab Scandal

On July 22, 2014, Cynthia Schnedar, Deputy Inspector General at the Justice Department, was interviewed by Federal News Radio about the DOJ OIG’s recent bombshell report documenting how DOJ failed to properly review criminal convictions that were impacted by the FBI Lab scandal in the 1990s.

Notably, the OIG report found that 16 people were executed and 8 prisoners died before there was a complete review of the scientific flaws in the evidence used to obtain those convictions. The OIG report lists 402 cases that the earlier DOJ review found were impacted by the FBI Lab scandal.

However, Deputy Inspector General Schnedar conceded in her radio interview that the number of cases actually impacted by the FBI Lab scandal “is really unknown” twenty years after the Justice Department started looking at problems in the FBI crime lab.

She also stated that many other defendants “may have died” or been deported before there was a review, and the DOJ’s earlier review improperly narrowed the scope leaving doubt as to whether innocent people were convicted with evidence from the FBI Lab.

Deputy IG Schnedar also stated in passing that the DOJ’s earlier review grew out of allegations raised by a FBI whistleblower.
Continue Reading Justice Department OIG: Number of Cases Impacted by FBI Lab Scandal “Is Really Unknown”