Bloomberg Law reports on an upcoming legal battle over the denial of Department of Justice request to dismiss a qui tam suit. Over the past two years, federal district courts have granted 25 DOJ motions to dismiss such suits, compared to six in the previous two years, the story notes.

Companies that bill the federal government for services are eager in 2020 to see what courts say about Justice Department decisions to dismiss whistleblower cases it finds to be meritless or a burden on government resources.

The U.S. Court of Appeals for the Seventh Circuit is considering how much deference the federal courts should give to those dismissal decisions in a specific case over whether an Illinois federal judge erred in rejecting the DOJ’s move to dismiss a suit alleging a drug kickback scheme by CVS, Omnicare, and others.

More on the Granston memo, which triggered the dismissals:

Continue Reading Can courts proceed with a whistleblower suit after the DOJ seeks dismissal?

Just before the holiday, the American Bar Association published a statement on its “Legal Fact Check” webpage concluding that the whistleblower’s identity is NOT Protected by the law.

Stephen M. Kohn

The lawyer for the White House whistleblower has asked that the person’s identity be kept anonymous for the protection of the individual and his or her family. With some exceptions, lawmakers and media have honored that request. But in terms of federal law, the whistleblower has more assurance that his or her job, rather than identity, will be protected.

They conclude that the Intelligence Community Whistleblower Protection Act (ICWPA) stipulates that the inspector general not disclose a whistleblower’s identity without their consent, unless it is “unavoidable during the course of the investigation.” The ICWPA itself offers no further protections, they write, but other laws may offer protection from reprisals or punishment.

Stephen M. Kohn, board chair of the National WhistleBlower disagrees and makes his case in the National Law Review.

He starts with the privacy provisions in the disclosure form filled out IC whistleblowers.

The Disclosure Form provides intelligence community employees with two assurances that their confidentiality will be protected.  First, the Form states that the information provided by whistleblowers is covered under the Privacy Act.  The Privacy Act of 1974, 5 U.S.C. § 552a was passed after the Nixon White House was caught trying to obtain embarrassing information about another whistleblower, Daniel Ellsberg, in an attempt to discredit him.  The Privacy Act is very comprehensive and contains both criminal and civil penalties. 

The law also prohibits retaliation. Kohn argues that disclosure of the name is a form of retaliation.

Supporters of President Trump have argued that this law only protects whistleblowers from concrete employment actions, such as a termination or demotion.  They claim that guarding a confidential informant’s identity is not prohibited under the ICWPA, and the blowing a whistleblower’s cover is not an adverse action.

Years ago the U.S. Supreme Court ruled that anti-retaliation laws are not limited only to correcting “concrete” employment actions, like a discharge.  Instead, these laws cover a host of adverse actions that could “dissuade a reasonable employee” from making a protected disclosure.   If CIA or intelligence community employees feared that the privacy protections afforded under the law would not be applied to them, would that cause a chilling effect on their willingness to blow the whistle?  That question has been answered many times.  But even if there were no cases on-point, the disclosure of a CIA employee’s identity would severely limit, if not destroy, their employment prospects with that highly secretive agency.  

He argues that the ICWPA gives the president “enforcement authority” and thus the responsibility to prevent retaliation.

President Trump is mandated by law to protect the Ukraine whistleblower, ensure that he or she suffers no retaliation, and enforce the rules on confidentiality.  This is a non-discretionary duty. 

It is as simple as that.  The President “shall” “enforce” the whistleblower law that makes it illegal to retaliate against the Ukraine whistleblower or to expose his or her identity.  Unfortunately, as demonstrated by his public comments and Tweets, it is the President himself who is engaging in the retaliation.  This is a unique circumstance in American legal history.

President Trump’s retweet of an article that claims to identify the the whistleblower means the system failed, Kohn writes. 

When the Ukraine whistleblower signed the Disclosure Form to report an “urgent concern,” she or he was promised, in writing, confidentiality.  That promise was broken.  Privacy Act protections were ignored.  The Inspector General Act was undermined. The law prohibiting retaliation was violated by the very person mandated to enforce that law.  The Attorney General has sat on his hands while credible evidence of obstruction of justice was published in the national news media, on almost a daily basis.  

Will justice sleep forever?  This issue is now in the hands of Congress.   In November it will be in the hands of the American people. 

Audio: More from Kohn on protection for federal workers via The Federal News Network

It may be the end of the year for the rest of the world, but the fiscal year ended in October. As we wait for the Department of Justice to crunch its numbers for the year end report on False Claims Act collections, we look back on this year’s reports from other federal programs.

The Inspector General (IG) of the Intelligence Community, Michael K. Atkinson, called whistleblowers the agency’s  “first responders” in his semi-annual report to Congress. In April, the office issued a report entitled “Whistleblowing Works.”

The Commodity Futures Trading Commission awarded more than $75 million in FY 2019 to five whistleblowers  “who voluntarily provided original information or analyses that led to successful enforcement actions.” This total includes the program’s largest-ever award of approximately $30 million.

SEC

The Securities and Exchange Commission reported that it awarded approximately $60 million in awards to eight people  “whose information and cooperation assisted the Commission in bringing successful enforcement actions.” This included a $37 million award to a whistleblower who supplied information that led to a settlement against JPMorgan Chase & Co. over claims the company was not transparent with investors about conflicts of interest.

The most recent report from the IRS came out in February and reported that whistleblowers helped the agency collect more than $1.4 billion in criminal fines, and civil forfeitures in fiscal year 2018. Since 2007, the program has made more than $800 million in whistleblower awards based on the collection of $5 billion.

Continue Reading How many whistleblowers helped the feds uncover fraud this year? Reports are still coming in.

Today we remember Dennis Brutus, a poet and international anti-apartheid activist who died ten years ago. While in exile in the U.S., he became a founding director of the National Whistleblower Center. Brutus understood the power of whistleblowing and pushed to expand the center’s efforts internationally.

He led the effort to get apartheid South Africa barred from the Olympics. His activism landed him in the same Robbin Island prison as Nelson Mandela and then, on to exile. In the U.S., he taught, wrote poetry and promoted the divestiture movement. When President Ronald Regan ordered him deported, NWC founding board members Michael and Steven Kohn successfully defended him. He returned to South Africa in 1991 and continued pushing for justice there and worldwide.

Patrick Bond a professor of political economy at the University of the Witwatersrand in Johannesburg, South Africa offers this tribute to Brutus.

The memory of Dennis Brutus will remain everywhere there is struggle against injustice. Uniquely courageous, consistent and principled, Brutus bridged the global and local, politics and culture, class and race, the old and the young, the red and green. He was an emblem of solidarity with all those peoples oppressed and environments wrecked by the power of capital and state elites. But in his role as a world-class poet, Brutus also taught us well, that social justice advocates can have both bread and roses.

Continue Reading Remembering Dennis Brutus, poet and international activist

The New Yorker declares it the year of the whistleblower, and we offer some of our popular posts of 2019.

From The New Yorker:

This year, as one scandal after another played out in the news, it was easy to become overwhelmed. Amid all the noise, there’s been a common theme in many of the reports—the increased profile and significance of whistle-blowers. It’s hard to think of another recent period when the act of whistle-blowing has had such a consequential impact on our politics and culture.

From the Whistleblower Protection Blog:

Ukraine whistleblower
  • Can the Ukraine call whistleblower remain anonymous? And, who is obligated to protect his or her anonymity?
  • The journalist and the whistleblower. Every journalist who has ever worked with a whistleblower knows these are fraught relationships.
  • Remember when the whistleblower complaint was seen as “hearsay”? Turns out secondhand whistleblower “reports are 47.7% more likely than firsthand reports to be substantiated by management, which suggests that management views many secondhand reports as credible.“
Climate Corruption Campaign
  • NWC announces new program; Only company insiders would know of climate change-related risks concealed from shareholders, the IRS and the public. The campaign will help these insiders secure confidential whistleblower status.
  • More here. Can whistleblowers save the Amazon rainforest?

Continue Reading Whistleblowers were big news in 2019. Here’s a sample.

The New York Times offers a profile of a family that had to flee their Russian homeland — to an American city “they would rather not name’ — after blowing the whistle on athletic doping.

“We are just like any middle-class American family,” Vitaly Stepanov said of life with his wife, Yuliya, and their kindergartner son, Robert. “Well, except for the whistle-blower part.”

Oh, yes. That. The Stepanovs, in truth, are not a typical family at all: Yuliya, 33, once was a top middle-distance runner on Russia’s national team. Vitaly, 37, worked for the Russian Anti-Doping Agency. 

Earlier this month, an international anti-doping panel barred Russia from competition for four years, a period that includes the upcoming Olympic Games in Tokyo.

“As whistle-blowers, we never imagined things going this far, and it’s surreal that the cheats won’t be welcomed at the Olympic Games,” Vitaly said. “Finally, after so many half-measures, something real is being done to Russia as a punishment.”

The Times reports that they have been labeled as traitors in Russia, where president, Vladimir Putin, has called Yuliya “Judas.”They want to stay in the U.S. and have applied for asylum.

As for those back in Russia who have verbally attacked her and her husband, Yuliya was straightforward in her response. “They hate us for telling the truth,’’ she said. “I’ve seen comments on the internet like, ‘We should kill those traitors, we should go poison them.’ But we feel safe here. We want to stay here.’’’

More on the case here from the NWC.

In the meantime, Time magazine reports that Russia plans to appeal the recent ruling  and has charged it’s former anti-doping laboratory director Grigory Rodchenkov with tampering with a lab database.  Rodchenkov has also fled the country and is now working with the World Anti-Doping Agency.

With Russia planning a legal challenge to WADA’s sporting sanctions, the next step for Rodchenkov could be testifying at the Court of Arbitration for Sport in the spring. His lawyer said he’s ready.

“If WADA or any other agency needs Grigory to testify, Grigory will uphold his promise to cooperate fully to help atone for his role,” Walden said.

 

Two pieces of note for whistleblowers and their supporters from Government Executive.

One reported on a survey that posed this question, which was answered by nearly 700 federal workers.

Please complete the following sentence: “The attacks on the whistleblower by President Trump and various Congressional Republicans have made it ________ likely that I will report an act of perceived wrongdoing to the appropriate authorities.”

Nearly 35 percent said “much less” or “somewhat less.” A full half said the attacks would not change their behavior.

Another piece reports on an attempt to protect those who do blow the whistle by adding a provision to the defense spending bill. It would have allowed the Office of Special Counsel to request a 45-day stay on a personnel action. The board hears appeals of lower level personnel decisions, including whistleblower cases. It has not had a quorum since just before President Trump took office. So, cases before the panel are stalled, with a backlog of over 2,000.

The House provision would  have allowed MSPB’s general counsel—currently Tristan Leavitt, who is also serving as the agency’s executive director—to order a 45-day stay of any personnel action that he believed was a prohibited personnel action, including whistleblower reprisal. The Senate version of the bill did not include the provision, and the House conceded.  

All this is happening as Trump allies continue to demonize government workers as part of a “deep state” conspiracy theory. How deep is it? The survey found that 37 percent of employees approve of Trump, compared to 55 percent who disapprove. Not hugely different from Trump’s 40-ish percent approval rating.

While Brietbart and Fox New pundits trumpet the deep state theory,  Government Executive and several other publications have explored the effort to politicize civil service.

As the Trump era has unfolded, the term “deep state” has come to mean something sinister to some on the far right. More than just signifying an impersonal, inept bureaucracy, it conjures a secretive illuminati of bureaucrats determined to sabotage the Trump agenda…

Chris Lu, President Obama’s deputy Labor secretary, rejects the notion that some entrenched deep state is undermining Trump’s political appointees. “The politicals set the direction of the agency, but they can only do it effectively if they tap into the expertise of the federal civil service,” he said.

The New York Times story about the parade of civil servants marching up to Capitol Hill featured this headline: Trump’s War on the ‘Deep State’ Turns Against Him

The House impeachment inquiry into Mr. Trump’s efforts to force Ukraine to investigate Democrats is the climax of a 33-month scorched-earth struggle between a president with no record of public service and the government he inherited but never trusted. If Mr. Trump is impeached by the House, it will be in part because of some of the same career professionals he has derided as “absolute scum” or compared to Nazis.

More on the topic below:

The New Yorker: Trump vs. the “Deep State”

Wired: So Much for the Deep State Plot Against Donald Trump

The Washington Post: There is no ‘deep state’ — but maybe there should be

Much of what we accept as legal in medical billing would be regarded as fraud in any other sector.

I have been circling around this conclusion for the past five years, as I’ve listened to patients’ stories while covering health care as a journalist and author. Now, after a summer of firsthand experience — my husband was in a bike crash in July — it’s time to call out this fact head-on. Many of the Democratic candidates are talking about practical fixes for our high-priced health care system, and some legislated or regulated solutions to the maddening world of medical billing would be welcome.

My husband, Andrej, flew over his bicycle’s handlebars when he hit a pothole at high speed on a Sunday ride in Washington. He was unconscious and lying on the pavement when I caught up with him minutes later. The result: six broken ribs, a collapsed lung, a broken finger, a broken collarbone and a broken shoulder blade.

The treatment he got via paramedics and in the emergency room and intensive care unit were great. The troubles began, as I knew they would, when the bills started arriving.

I will not even complain here about some of the crazy-high charges: $182 for a basic blood test, $9,289 for two days in a room in intensive care, $20 for a pill that costs pennies at a pharmacy. We have great insurance, which negotiates these rates down. And at least Andrej got and benefited from those services.

What I’m talking about here were the bills for things that simply didn’t happen, or only kind-of, sort-of happened, or were mislabeled as things they were not or were so nebulously defined that I couldn’t figure out what we might be paying for.

Continue Reading When your medical bill amounts to fraud

  • A round up of recent news begins with a link to a new piece in The Hill by the founders of the NWC. They ask “(N)ow that the impeachment case is clearly headed to a Senate trial, what will become of the whistleblower?”
  • Time magazine declared public servants the “Guardians of the Year.” Whistleblowers expect blowback. But paranoia about a “deep state” conspiracy has brought much wrath upon those professionals. Previously they were seen, at worst, as bureaucratic or boring. So, a tribute is in order.

There are 363,000 federal workers in the greater Washington, D.C., area. In the first week of September, history turned in the office of one of them. The intelligence analyst who blew the whistle on President Donald Trump had just gotten off the phone with the Inspector General’s office.

The piece quotes NWC chair Stephen Kohn on how the intelligence community statutes were designed to protect both classified information and the whistleblower.

“That’s what’s so significant about the Ukrainian case,” says whistle-blower attorney Stephen Kohn. “Congress specifically said, If you want to be protected under this law, you raise your concerns this way.”

Continue Reading Public servants, questionable pork and a reading list

A guest post from Dean Zerbe, senior policy analyst for the National Whistleblower Center and former tax counsel for the Senate Finance Committee.

Many people considering blowing the whistle on tax evasion ask themselves the most basic question: Do I have a case that will interest the Internal Revenue Service (IRS)?

I have represented whistleblowers who have received over $300 million dollars in award payments from the IRS and during that time have found that there are a few key tests that may increase the possibility the IRS will take action on a whistleblower submission.

  • Federal Tax v. State Tax

The IRS whistleblower award program is focused on federal tax. If your case involves state taxes– then the answer is no. However, some states do have a whistleblower program that you may wish to explore filing with the appropriate state. Also, if the federal tax at issue is payroll tax, be cautious. These are highly fact intensive cases – and commonly the IRS will tell the taxpayer to simply “get right” going forward – with no back taxes owed (and therefore no award).

  • Know v. Speculation

The IRS whistleblower office has continually beaten the drums that they are looking for submissions from whistleblowers who have good, informed knowledge about tax evasion – as opposed to speculation. Speculation for the IRS means that the whistleblower doesn’t have first-hand knowledge, but may be familiar with the industry and believes or expects that there is evasion of tax. Particularly problematic submissions are those cases where the whistleblower cannot even name the specific taxpayer evading tax. While the IRS is open to a submission where the whistleblower doesn’t know every step of the transaction – the more the whistleblower can color it all in – the better.

Continue Reading Do I Have A Good Case For The IRS Whistleblower Program?