whistleblower protection

  • August 31, 2015
    Guest Post

    by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; member, ACS Board of Directors

    This month, former United States Congressman Michael Grimm will begin an extended vacation courtesy of the United States Federal Bureau of Prisons. Mr. Grimm was awarded an eight month getaway as the prize for a scheme to defraud the Internal Revenue Service while running a New York health food restaurant. He pled guilty last December but was formally sentenced in July, 2015.

    A December 23, 2014 press release issued by the United States Attorney’s Office for the Eastern District of New York stated that “Michael Grimm has now publicly admitted that he hired unauthorized workers whom he paid ‘off the books’ in cash, took deliberate steps to obstruct the federal and state governments from collecting taxes he properly owed, cheated New York State out of workers’ compensation insurance premiums, caused numerous false business and personal tax returns to be filed for several years, and lied under oath to cover up his crimes.”

    As Mr. Grimm counts down his final days of freedom, there is no question that the summer of 2015 is for him a far cry from his summer of 2011 when he was a member of the House Finance Committee and hawked legislation requiring whistleblowers to report wrongdoing to corporate internal compliance groups before disclosing information to the Securities and Exchange Commission. Back then Grimm explained that “most companies want to know if an employee is doing something wrong or hurting customers.” Mr. Grimm’s choice of words was telling. Employees doing something wrong? What about their bosses?

    These days Mr. Grimm is a poster child for why employees should not be required to blow the whistle internally before reporting to government regulators. What is the likelihood that one of Mr. Grimm’s employees would have had their grievances fully and completely addressed if they complained about being paid off the books? The truth is that when the boss is the culprit, internal compliance programs are not a viable means of redress for employees. Enron, Tyco and WorldCom all had internal compliance programs, none of which worked.

  • November 7, 2014

    by Caroline Cox

    Robert Barnes reports for The Washington Post on the decision of the U.S. Court of Appeals for the Sixth Circuit to uphold bans on same-sex marriage. According to SCOTUSblog, the ACLU has announced that it will be filing for Supreme Court review right away.

    Chris Geidner of Buzzfeed reports that U.S. District Court Judge Ortrie Smith has ruled Missouri’s ban on same-sex marriage to be unconstitutional. 

    In The Atlantic, Olga Khazan explains why personhood amendments continue to fail throughout the country.

    Steven Mazie writes for The Economist about the oral argument for Yates. V. United States, colloquially known as the “fish case.”

    The National Constitution Center provides a podcast featuring Eugene Kontorovich, Michael Ramsey, and Jeffrey Rosen discussing the oral argument for Zivotofsky v. Kerry, the Jerusalem passport case.

    At the blog for Alliance for Justice, Tom Devine writes about Department of Homeland Security v. MacLean, a case that “will have fundamental consequences for whistleblowers and for the country.”

  • November 5, 2014

    by Caroline Cox

    At Salon, Luke Brinker considers the implications of the midterm elections on the fight for marriage equality.

    Sarah Kliff at Vox reports on the five personhood defeats for abortion opponents throughout the country.

    Today the Supreme Court hears oral arguments for Yates v. United States. Nina Totenberg of NPR previews the case, which considers whether a fisherman violated the anti-shredding provision of an act passed after the Enron scandal when he threw undersized fish from his boat.

    At the blog for Southern Poverty Law Center, Booth Gunter interviews a 94 year-old Alabama woman on her reflections on poll taxes, literacy tests, and the new measures to limit voting.

    Leslie Griffin writes for Hamilton and Griffin on Rights about the oral argument in DHS v. MacLean, a case that will help define when federal employees are prohibited by law from revealing information that they believe shows a “substantial and specific danger to public safety.”

  • June 27, 2011

    The Obama administration’s disappointing record on government transparency is a lesson in the limits of the “trust us” approach to governing, writes ACS Board Chair Geoffrey R. Stone in an op-ed in The New York Times.

    Stone, a constitutional law professor at the University of Chicago who worked with President Obama at the university and acted as an informal adviser to Obama’s presidential campaign, laments that President Obama has not lived up to the promises of “Senator Obama” to “promote openness and public accountability in government policy making.”

    Stone points to the journalist-source privilege, whistleblower protection and the state secrets privilege as areas in which President Obama has shown a “disappointing willingness” to continue the Bush administration policy of hiding its decisions from the American public. He notes that one bright spot in Obama’s record was his repeal of a Bush administrative directive that allowed broad classification of government information.

    Nonetheless, he writes, “[t]he record of the Obama administration on this fundamental issue of American democracy has surely fallen short of expectations.”

    He continues:

  • May 16, 2011
    Guest Post

    By Reuben Guttman.  Mr. Guttman, a partner at the law firm of Grant & Eisenhofer, heads the firm's whistleblower practice and is founder of the website Whistleblowerlaws, which helps individuals using the False Claims Act to seek compliance with environmental, affirmative action, wage and hour, and "Buy American" requirements. It was cited as an authority by the Chamber of Commerce in its brief in Schindler Elevator Corp. v. U.S. ex rel. Kirk, which the U.S. Supreme Court today issued an opinion. Mr. Guttman is also a Senior Fellow and Adjunct Professor at the Emory Law School Center for Advocacy and Dispute Resolution.


    With the heightened pleading standard established by the Supreme Court in Twombly and Iqbal, it must follow that Plaintiffs are entitled to some accommodation in the manner and methods used to muster the facts now required to properly plead a case. Apparently this is not so.

    In issuing its 5-3 decision (Justice Kagan did not take part in the decision) in Schindler Elevator Corp. v United States, No. 10-188 (May 16, 2011), the Court held that a whistleblower litigating under the Federal False Claims Act (FCA) does not have standing if his or her claims are based on information secured from a Freedom of Information Act (FOIA) request. The FCA precludes whistleblowers from basing claims on government "reports" and in Schindler, the Court had to decide whether the Government’s response to a FOIA request constituted a government report. Justice Thomas opined that because a response to a FOIA request provides information, it must therefore be a "report" within the meaning of the statute. While this may be good news for college students seeking support for the proposition that a one page document suffices as a term paper or report, it is indeed a blow to whistleblowers seeking redress from private contractors that cheat the government.    

    The whistleblower in Schindler, Daniel Kirk, a Vietnam Veteran, claimed that his employer, a government contractor, failed to honor a veterans job preference, which in turn violated a government contract.  In support of efforts to prove his claims, Schindler's wife secured information from the Department of Labor (DOL) through a FOIA request. Mrs. Kirk’s efforts, according to the Court's opinion, proved fatal to the complaint.

    The False Claims Act's public disclosure bar is designed to preclude the filing of parasitic lawsuits or lawsuits based on public information readily known to the government. Specifically, the statute bars suits based on government audits and reports. If a government agency issues a report documenting fraudulent conduct by a contractor, it would make sense that a private citizen should not be able to use that report, file a lawsuit, and claim a bounty for bringing attention to that which is already known. But a response to a FOIA request is different. First, as a document generated at the behest of a private citizen, it would never be revealed if the private citizen did not know to ask for it. Second, the document may only provide raw data or information absent any analysis and its relevance may only be understood by the individual seeking the information. As Justice Ginsburg noted in her dissent, quoting the Opinion of the Second Circuit which was reversed, the Department of Labor's responses "did not synthesize the documents or their contents with the aim of itself gleaning any insight or information, as . . . It necessarily would in conducting a 'hearing" or 'audit.' "

    The truth is that Daniel Kirk, the relator in Schindler, was doing exactly what the Court in Iqbal and Twombly required of him; he was mustering very precise facts in order to plead a case. And though he may have filled his complaint with some facts secured from the government itself, there is no evidence that the government was able to put the pieces together absent his aide. 

    With so much public money being injected into the private sector these days and with insufficient oversight of contractors, does this case -- like other recent Supreme Court decisions -- merit corrective legislation? As Justice Ginsburg noted in her dissent: "[a]fter today's decision, which severely limits whistleblower's ability to substantiate their allegations before commencing suit, that question is worthy of Congress' attention."