Whistleblower Law Blog

Federal Circuit Reverses MSPB Dismissal under the Whistleblower Protection Act

admin — Thu, 03 Jul 2008 16:24:52 +0000

In Kahn v. Dept. of Justice, the Federal Circuit held that the Merit Systems Protection Board (“MSPB”) erred in dismissing Kahn’s individual right of action (“IRA”) appeal under the Whistleblower Protection Act (“WPA”). In his IRA appeal, Kahn, a special agent for the Drug Enforcement Agency (DEA), alleged that he was retaliated against after he made disclosures to his superiors about another agent’s alleged violations of DEA rules and regulations.

The MSPB held that Kahn’s reporting of Agent Annis’ activities were not protected under the Whistleblower Protection Act because the disclosures were made as part of his normal duties as a special agent. The Federal Circuit reversed, concluding that there was an issue of material fact as to whether Kahn’s disclosure was a part of his normal duties given Kahn’s job description and competing sworn statements from him and his supervisor. Finding that Kahn presented non-frivolous allegations that his disclosures were outside of the scope of his normal duties, the Federal Circuit remanded the case to the MSPB.

Podcast of Whistleblower Conference Available Online

admin — Wed, 02 Jul 2008 13:44:44 +0000

A podcast of a recent conference on the rights of whistleblowers is available at http://www.wcl.american.edu/podcast/podcast.cfm. The panel on The Emerging Era in Whistleblower Rights and the Public’s Right to Know - Panel 1 - Restoring Openness and Accountability to Government and Corporations is posted at Download - Stream - Email.

The Employment Law Group, P.C. Helps Whistleblower in Anti-Retaliation/Overtime Case

admin — Tue, 17 Jun 2008 18:01:33 +0000

In an article titled “Ex-employees sue liquor store, bar owner Cash Moore,” Florida Daily News reports about Brenda Lowery’s whistleblower retaliation and overtime nonpayment lawsuit against local liquor store and bar owner, Cash Moore. Ms. Lowery suffered retaliation when she reported to state authorities that she believed Moore’s company was engaged in illegal activity. Ms. Lowery and other employees were also denied overtime payment for hours worked in excess of 40 per week because their employer paid them for regular time in two separate paychecks for their work performed in separate but commonly owned and managed stores. The Employment Law Group^® law firm is representing Ms. Lowery in her retaliation claims under the anti-retaliation provisions of the Florida Whistleblower Act, and is also representing Ms. Lowery and her coworkers by asserting overtime violations of the Fair Labor Standards Act.

The Employment Law Group, P.C. Will Speak at Program on The Emerging Era in Whistleblower Rights and the Public’s Right to Know

admin — Tue, 10 Jun 2008 16:58:42 +0000

On June 23, 2008, Jason Zuckerman, a Principal at The Employment Law Group^®law firm, will speak at a program titled, “The Emerging Era in Whistleblower Rights and the Public’s Right to Know”. The program, which is sponsored by The Government Accountability Project and American University Washington College of Law, will focus on strategies for effecting national security disclosures and protecting public employees’ First Amendment Rights under recently enacted whistleblower reforms. To register for this event, click here.

Supreme Court Issues Pivotal Decision About Subcontractor Liability under the False Claims Act

admin — Mon, 09 Jun 2008 17:21:58 +0000

Today the Supreme Court issued a ruling on a key issue under the False Claims Act, i.e. whether the False Claims Act includes fraudulent claims made by subcontractors on a federal project or whether it only includes claims submitted directly to the federal government. In Allison Engine v. Thacker, the Court held that a relator asserting claims under Sections 3729(a)(2) and (3) of the False Claims Act cannot simply show that the defendant’s use of a false record or statement resulted in payment or approval of a false claim. Instead, the relator must show that the defendant intended to use a false record or statement to induce the government’s payment or approval of a false claim.

Relying on the plain meaning of Section 3729(a)(3), the Court held that the False Claims Act can be applied to subcontractors and other indirect recipients of government funds. According to the Court, the False Claims Act was intended to expose any conspiracy to defraud the government in getting a false claim approved or paid and therefore, subcontractors who submitted claims for payment that concealed defects in Gen-Sets manufactured for installation on Navy destroyers, can be liable under Sections 3729(a)(2) and (3) of the False Claims Act.

Organizations Rally to Restore Federal Whistleblower Rights

admin — Mon, 09 Jun 2008 14:21:31 +0000

Last week, 112 diverse organizations rallied together to persuade leading U.S. Senate and House officials to enact stronger protections for federal employee whistleblowers. The coalition, led by the Government Accountability Project and the Project on Government Oversight, delivered a letter to legislators advocating prompt reconciliation of the House and Senate versions of whistleblower protection legislation that were enacted in March 2007 and December 2007. The letter also emphasized the need for stronger whistleblower protections, including the right to a jury trial and expansion of protections to scientists and national security whistleblowers.

U.S. Tax Court Proposes Amendments to IRS Whistleblower Award Program

admin — Thu, 05 Jun 2008 21:47:47 +0000

On June 2, 2008, the U.S. Tax Court proposed new rules for determining IRS whistleblower awards under section 7623. The proposed rules grant the court jurisdiction over appeals of award determinations and include procedures for commencing a whistleblower award action.

Among the proposed amendments are references to actions for redetermination of a whistleblower’s employment status, determination of relief from joint and several liability, and lien or levy, and authorization for electronic service. The press release regarding the proposed amendments to the Tax Court’s Rules of Practice and Procedure is available here.

Nuclear Regulatory Commission Proposes New Guidance for Issuing Chilling Effect Letters

admin — Thu, 05 Jun 2008 21:38:29 +0000

The Nuclear Regulatory Commission (NRC) has issued new guidance to encourage employees in the nuclear industry to report violations of nuclear safety procedures. Under the new guidance, the NRC will consider the impact of actual as well as perceived discriminatory practices in assessing whether a licensee is maintaining a safety conscious work environment. The new CEL guidance will hopefully ensure that NRC licensees are maintaining workplace environments where employees are free to raise nuclear safety concerns without fear of reprisal.

The Employment Law Group, P.C. Helps DC Whistleblower Expose Improper Road Contracts

admin — Wed, 04 Jun 2008 20:38:00 +0000

In an article titled “Ex-Official Sues Over Dismissal in Road Contract Case” The Washington Post reports about The Employment Law Group ^®law firm client Stephen Amos’ whistleblower retaliation lawsuit against DDOT Director Emeka Moneme and Interim Attorney General Peter Nickles. Mr. Amos, a former DDOT employee, was terminated because he exposed improper city road contracts between Fort Myer Construction Company and Peake Construction which enabled Fort Myer to fraudulently qualify for federal funds. The Employment Law Group^®law firm is representing Mr. Amos in a retaliation action under the D.C. Whistleblower Protection Act and Section 1983.

The Employment Law Group, P.C. Helps FAA Whistleblower Expose Unsafe Air Control Practices

admin — Tue, 03 Jun 2008 14:11:07 +0000

In an article titled “More Step Up To Complain About FAA: Whistle-Blowers Say Agency Ignored Safety Concerns,” The Washington Post reports about The Employment Law Group^®law firm client Mike Cole’s whistleblower retaliation lawsuit against the FAA. Mr. Cole suffered retaliation when he used the FAA’s own safety hotline to disclose unsafe air control practices that nearly resulted in aircraft collisions. The Employment Law Group^®law firm is representing Cole in a retaliation action under the Whistleblower Protection Act.

The Employment Law Group, P.C. Principals Publish Article on Sarbanes-Oxley Retaliation Claims

admin — Mon, 02 Jun 2008 14:32:31 +0000

In this week’s Legal Times, Principals Scott Oswald and Jason Zuckerman of The Employment Law Group^®law firm, discuss recent appellate decisions concerning the scope of protected activity under Sarbanes-Oxley’s whistle-blower protection provision. To read the article, click here.

Medtronic Settles False Claims Act Suit for $75 Million

admin — Wed, 28 May 2008 13:17:10 +0000

Last week, Medtronic agreed to pay $75 million to resolve allegations of Medicare fraud. The suit, originally brought under the qui tam provisions of the False Claims Act, alleged that Kyphon, a Medtronic subsidiary, defrauded Medicare by improperly persuading hospitals to keep patients overnight for simple outpatient procedures to repair small fissures of the spine. This fraudulent conduct resulted in Medicare reimbursing hospitals up to $10,000 per procedure when patients were recovering within a few hours, leading to losses of millions of dollars for the Medicare program. The two whistleblowers who exposed the fraud will receive a total of $14.9 million as their relators’ share of the settlement proceeds.

The Employment Law Group, P.C. Quoted in Article on Whistleblower Retaliation Cases

admin — Tue, 27 May 2008 13:36:13 +0000

Principal Jason Zuckerman of The Employment Law Group^®law firm is quoted in an article in BNA’s Daily Labor Report titled “Whistleblower Retaliation Cases Increase; Law Still Developing,” about recent decisions concerning the whistleblower retaliation provision of the Sarbanes-Oxley Act. Zuckerman was a panelist at a May 19, 2008 seminar on whistleblower retaliation law, at which Zuckerman discussed new laws protecting whistleblowers in the financial services, defense contracting and transportation industries, and the scope of protected conduct under various whistleblower retaliation laws, including the False Claims Act.

Sixth Circuit Reverses Dismissal of False Claims Act Retaliation Claim

admin — Mon, 19 May 2008 19:57:05 +0000

On May 13, 2008, the Sixth Circuit reversed a lower court’s dismissal of a False Claims Act (“FCA”) retaliation claim. In the U.S. ex rel. Marlar v. BWXT Y-12, LLC, No. 07-6051 (6th Cir. May 13, 2008) opinion, the Sixth Circuit rejected the district court’s narrow interpretation of the scope of protected conduct under the False Claims Act, holding that a plaintiff need not demonstrate that her disclosures clearly alerted management that she intended to pursue a qui tam action.

The district court held that Marlar did not engage in protected conduct under the retaliation provision of the False Claims Act in that her disclosures did not alert her former employer that she intended to bring a qui tam action. The Sixth Circuit reversed, holding that Marlar’s disclosures to management about BWXT receiving “illegal” “large incentive payments” under its contract with DOE “would have given [the defendant] reason to believe that she was contemplating a qui tam action,” and therefore she could prove that she engaged in protected conduct.

House Passes Legislation to Curb Contractor Fraud

admin — Wed, 14 May 2008 14:45:10 +0000

On April 23, 2008, the House passed Congresswoman Maloney’s bill, H.R. 3033 (“Contractors and Federal Spending Accountability Act”) with a voice vote, to put a stop to contractors defrauding the government. This legislature requires the Administrator of General Services to establish and maintain a database of contractor violations of federal procurement laws. Currently, the Project on Government Oversight (POGO), a nonprofit organization that investigates fraud and abuse in all federal agencies, maintains a database of contractor misconduct, which is available here. The companion bill in the Senate is S. 2905. To date, the Senate has read the companion bill twice and has referred it to the Committee on Homeland Security and Governmental Affairs.