On behalf of the National Whistleblowers Center, Stephen M. Kohn and I submitted a friend-of-the-court, or "amicus," brief today in Schroeder v. Greater New Orleans Federal Credit Union, Case No. 10-31169 in the U.S. Court of Appeals for the Fifth Circuit. There has been an unfortunate string of adverse decisions under the banking whistleblower protections in which the courts read the statutes literally. They would only protect disclosures to the federal agencies, and not to the employee’s supervisor or other internal channels. The latest came from the Eastern District of Louisiana, and I am pleased to share our amicus brief setting out what I think is the best argument for courts to protect both internal and external disclosures. This brief makes creative use of the comments that the Chamber of Commerce and Association of Corporate Counsel have made to the US Sentencing Commission and the SEC about the importance of their internal compliance programs. It also reaches back to the 1970’s mining cases that first explained how employees use the chain of command as the established channels for the first steps in making disclosures. Congress specifically approved these holdings in amendments to the mine safety act, and I think that should be enough for courts to determine that Congress really wants to offer broad protection to the full range of activities leading to the disclosures explicitly protected.
Hopefully, employees of banks, savings and loans, and credit unions will be able to use these arguments to show that they are entitled to protection from retaliation. Protecting these employees will protect us all from the devastating effects of financial abuse by bank officers.