Whistleblower Law Blog

Third Circuit Sides With Whistleblowers in Split on FCA Pleading

June 24, 2014

A federal appeals court said that the False Claims Act (FCA) does not require whistleblowers to list “representative samples” of fraudulent transactions in order to proceed with a FCA claim, deepening a  judicial split that won’t be resolved until the U.S. Supreme Court weighs in.

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First Amendment Protection: The Start of a Comeback?

June 20, 2014

NOTE: A version of this post first appeared on Law360.com. The author, R. Scott Oswald, is managing principal of The Employment Law Group, P.C.

With Lane v. Franks, the U.S. Supreme Court has backed off slightly from the absolutism of a 2006 decision that limited the free-speech rights of public employees — and, in the process, has created a framework that may allow more moderation in future cases.

At one level the Court’s holding yesterday — that the First Amendment can protect government workers from punishment for testifying under oath about job-related matters — was unremarkable, even obvious.

But while Justice Sonia Sotomayor offered her 9-0 opinion mainly as a clarification of Garcetti v. Ceballos, which denies government employees constitutional protection for “speech made pursuant to [their] official duties,” she also added two new considerations that promise to bring more workplace speech under the First Amendment’s shield:

• Whether an employee is acting on a civic obligation to “society at large”
• Whether allowing retaliation would discourage important types of whistleblowing

In so doing, Lane hearkened back to the more employee-centric balancing test of 1968’s Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., which had stood mostly undisturbed until the 5-4 ruling in Garcetti.

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ARB Clarifies: Trucking Whistleblowers Face “Much Easier” Proof of Retaliation

June 11, 2014

In two related decisions last month, the U.S. Department of Labor’s Administrative Review Board (ARB) noted that proving retaliation in trucking-related whistleblower cases became “much easier” in 2007 — and said that judges will no longer get a free pass on applying the old standard.

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Sixth Circuit: Whistleblowers May Sue, Despite Arbitration Clause

June 09, 2014

A federal appeals court said two whistleblowers may sue their former employer for unlawful retaliation under the False Claims Act (FCA), despite having contracts that required arbitration of disputes — and despite a federal law that favors such arbitration requirements.

In U.S. ex rel. Paige v. BAE Systems Technology Solutions & Services, Inc., the U.S. Court of Appeals for the Sixth Circuit held that the FCA retaliation claims of Matt Paige and Jim Gammon were not related to their employment contracts — and therefore weren’t governed by the arbitration clause, which covered issues “arising from” those contracts.

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CFTC Gives Whistleblower $240,000 in First Award Under Dodd-Frank

May 23, 2014

The U.S. Commodity Futures Trading Commission (CFTC) finally made a whistleblower award under its Dodd-Frank mandate, but released virtually no information about the enforcement action that led to its $240,000 payout.

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Rule 345 Provides a New Shield for IRS Whistleblowers

May 23, 2014

A U.S. Tax Court judge on Tuesday allowed three whistleblowers to hide their identities in court for reasons that ranged from death threats to a fear of professional ostracism.

The rulings by Judge Diane L. Kroupa appear to be the the first decisions publicly reached under the Tax Court’s Rule 345, which in 2012 established a formal procedure for tax whistleblowers to request anonymity.

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ARB Makes It Harder to Justify Firing Nuclear Whistleblower

May 15, 2014

The U.S. Department of Labor’s Administrative Review Board (ARB) once again extended a long-running whistleblower case, clarifying the high standard an employer must meet to avoid liability for firing an employee who expressed safety concerns in a nuclear plant.

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Whistleblower Nurse Reaps $15 Million Reward in Amedisys Fraud Settlement

May 09, 2014

The U.S. Department of Justice announced settlements with several healthcare companies accused of fraud — including a massive $150 million deal with Amedisys Inc. in which the government resolved seven lawsuits with the giant homecare provider, leading to more than $26 million in payouts to whistleblowers and a jackpot for U.S. taxpayers.

The largest whistleblower reward, more than $15 million, went to April Brown, an Alabama nurse and single mother who was fired by Amedisys after she questioned its Medicare billing practices.

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MSPB: Cat’s Paw Doctrine Protects Federal Whistleblowers

April 10, 2014

The Merit Systems Protection Board (MSPB) adopted the U.S. Supreme Court’s 2011 formulation of “cat’s paw” liability to find that the Transport Security Administration (TSA) acted illegally when it fired an employee who blew the whistle on lax airport security measures.

The MSPB’s decision in Aquino v. Department of Homeland Security was its first formal application of the cat’s-paw doctrine to the Whistleblower Protection Act (WPA), which forbids retaliation against whistleblowers working for the federal government. Previous board decisions had reached a similar result using a different theory; the switch should help MSPB actions to survive appeal in federal court.

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ARB Affirms Punitive Damages for Two Whistleblowers

April 03, 2014

The U.S. Department of Labor’s Administrative Review Board (ARB) affirmed judgments against two transportation companies that fired employees who had reported health and safety issues — confirming in each case that the violation was grievous enough to trigger punitive damages.

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