Yesterday, the Fourth Circuit U.S. Court of Appeals in Richmond, Virginia, overruled a petition for rehearing filed by the American Civil Liberties Union (ACLU), OMB Watch, and the Government Accountability Project (GAP). By rejecting the petition for rehearing, the Fourth Circuit again saved America’s most effective whistleblower law, the False Claims Act (FCA). I reported

Rebuffing an open letter from the National Whistleblowers Center (NWC) asking for a face-to-face meeting, and brushing aside the potential consequences for the best whistleblower law ever enacted, three organizations filed a petition yesterday challenging the False Claims Act (FCA). The American Civil Liberties Union (ACLU), OMB Watch and the Government Accountability Project (GAP) filed the petition in the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. The case is ACLU v. Holder, Case No. 09-2086.

On March 28, 2011, the three-judge panel of the Fourth Circuit rejected the ACLU, OMB Watch and GAP challenge to the “seal” provision of the FCA. The FCA provides a reward program for whistleblowers who help the government recover money that companies obtain by fraud. The FCA provides for a temporary “seal” that shields the case from public disclosure while the government investigates the case to decide if it will intervene. The seal serves the government by preventing the fraudsters from getting wind of the government investigation. If companies knew the government was trying to prove they engaged in fraud, they might start destroying evidence that the government could later use to prove that fraud. The seal also protects the whistleblower from retaliation while the seal is in force. All FCA seals are temporary and will eventually be lifted so the public can see the claims made and the government’s decision on whether to intervene. If a seal last for longer than sixty (60) days, it must be approved by the Court which considers whether it is in the public interest.

After the March 28 panel decision, the NWC issued an open letter to the ACLU, OMB Watch and GAP. The open letter asked for a face-to-face meeting with the the decision makers from these groups to discuss whether proceeding with this case was really in the public interest. The NWC letter warned that the challenge to the FCA threatened the right of whistleblowers to file claims confidentially and could  undermine America’s “most effective whistleblower law.”

Continue Reading Groups spurn NWC and file petition against FCA

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In a victory for the right of whistleblowers to seal, temporarily, their claims of fraud against the government, U.S. District Court Judge Liam O’Grady late yesterday dismissed a case brought by the American Civil Liberties Union (ACLU), OMB Watch and the Government Accountability Project (GAP). The case, filed in Alexandria, Virginia, asked the court to declare that the “seal” required by the False Claims Act is unconstitutional. The case is known as ACLU v. Holder.  If successful, this suit would have required whistleblowers to disclose their identities and their claims to the whole world while the government investigates the claim to determine if criminal, civil or no charges should be pursued.  Such disclosure would tip off the crooks to the government’s investigation against them and could subject whistleblowers to retaliation.

This case divided whistleblower advocacy groups. Taxpayers Against Fraud (TAF) and the National Whistleblowers Center (NWC) opposed the suit. Despite concerted efforts to educate the ACLU, OMB Watch and GAP to the whistleblowers’ need for confidentiality, the groups decided to proceed with their suit.  They claim the public’s right to know about lawsuits as soon as they are filed should trump the government’s need to investigate, and the whistleblowers’ need for confidentiality. Lawyers Marc Vezina, Cleveland Lawrence, and Zach Kitts filed an amicus brief for TAF’s Education Fund. Judge O’Grady cited this amicus brief in his decision.

Continue Reading ACLU loses challenge to FCA seals

There are two new articles on the Daily Kos inspired by today’s Senate committee hearing on the proposed Whistleblower Protection Enhancement Act (WPEA). The first, by Michael German, is called, "Why Protect Whistleblowers?" Michael is the ACLU Policy Counsel on National Security, Immigration and Privacy.  His article explains how a few whistleblowers did