David Colapinto

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The post below was co-authored by Stephen M. Kohn, Michael D. Kohn David K. Colapinto, partners of the law firm Kohn, Kohn and Colapinto, LLP.

 One of the most destructive tools used to silence whistleblowers are non-disclosure agreements (often found in employment contracts and severance agreements) which prohibit employees from disclosing fraud and other crimes to law enforcement agencies.  Today’s Washington Post story exemplifies the problems faced by employees in every sector of the economy who are required to sign these gag orders in order to obtain jobs or badly needed severance payments.

On March 9th, we filed a complaint with the Department of Justice and the Securities and Exchange Commission seeking to have these agencies take strong action against illegal gag orders.  The complaint, based on information provided to the government by former KBR employee Harry Barko, exposed how KBR forced its employees to sign illegal gag orders when they were disclosing fraud in government contracting to company officials.  This complaint was reported in the Washington Post on March 10th.  Since then, the SEC has initiated an investigation into these practices. Today’s Post story indicates that momentum is building to stop these practices.   
Continue Reading We Must Stop Illegal Gag Orders

The Washington Post has published year-end articles that highlight three ongoing projects of the National Whistleblower Center.

In an article published on December 26, “Top 10 stories in the federal workforce in 2012“, The Washington Post cited the scandal involving FDA electronic spying on its own scientists who blew the whistle on agency misconduct. The Post ranked the FDA electronic spying scandal as the number 9 story that affected the federal workforce this past year. The NWC has been actively supporting the scientists who have sued the FDA for whistleblower retaliation and challenged the constitutionality of the FDA’s secret monitoring of the scientists’ personal and private emails.  As revealed by the NWC and the whistleblower scientists, the FDA targeted the whistleblowers for electronic surveillance by installing secret spyware on their computers.  The FDA captured confidential emails from the whistleblowers’ personal and private email accounts (such as Yahoo and Gmail accounts) and the FDA stole the whistleblowers’ confidential communications with their attorneys as well as communications with members of Congress, the Inspector General and others discussing the whistleblowers’ allegations of serious wrongdoing by the agency.Continue Reading National Whistleblowers Center’s Work Highlighted in The Washington Post’s Year-End Articles

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Today the Senate Committee on Homeland Security and Governmental Affairs held its markup of the Whistleblower Protection Enhancement Act of 2009 (S. 372). National Whistleblowers Center General Counsel David K. Colapinto has carefully analyzed this complex Senate bill.  His expert analysis and commentary on the Senate bill will be posted here shortly. Mr. Colapinto

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Today the House Committee on Oversight and Government Reform heard from whistleblowers, their advocates, and even an administration official about the need for convincing remedies for federal employee whistleblowers.   Committee Chair Edolphus Towns (D-NY) opened the hearing with an encouraging word about the prospects for Whistleblower Protection Enhancement Act (WPEA), H.R. 1507. He indicated that he had positive signs from the Senate and the administration about getting improved whistleblower protections passed this year. It remains to be seen if these protections will provide full court access, including jury trials, and coverage for national security employees, as is already provided in Title VII cases, and is now proposed in the current text of H.R. 1507. Bunny Greenhouse spoke about how the current law failed to protect her.  She added, “I am well versed in how poorly it works when it comes to federal sector whistleblower protection.”  Here is a photo of Michael German (ACLU), Corinne Kohn (Friends of Whistleblowers), David Colapinto (National Whistleblowers Center), Angela Canterbury (Public Citizen) and Michael D. Kohn (National Whistleblowers Center).

House Committee attenders

Continue Reading Whistleblowers and experts testify to House Committee

On November 18, 2007, the results of an investigation into the operations of the FBI crime lab were printed in the Washington Post and broadcast on CBS News 60 Minutes. The Forensic Justice Project (“FJP”), a project of the National Whistleblower Center, in Washington, D.C., and FJP Executive Director Dr. Frederic Whitehurst, cooperated with the joint Post-60 Minutes investigation by providing records released by the FBI to FJP and Dr. Whitehurst under the Freedom of Information Act (“FOIA”). These FBI FOIA records document the serious misconduct and other problems reported in the joint Post-60 Minutes investigation.

By way of background, since 1996 it has taken no fewer than three separate lawsuits filed on behalf of either Dr. Frederic Whitehurst or the Forensic Justice Project (or both) under the Freedom of Information Act to obtain records regarding FBI Laboratory scandals. In each and every case, the FBI has delayed and stonewalled the release of records documenting misconduct in the FBI Lab, including the problems identified in the Washington Post-60 Minutes investigation.

The FOIA cases are:

1. Whitehurst v. FBI, Civil Action No. 96-572 (GK) (D.D.C.):

This was the original case filed on behalf of Dr. Whitehurst and it alleged that the FBI was refusing to process FOIA requests made on Dr. Whitehurst’s behalf in 1993 and 1995. These requests sought access to records about Dr. Whitehurst’s whistleblower allegations about serious problems in the FBI Lab, which also became the subject of a U.S. Department of Justice Office of Inspector General (“OIG”) review of the FBI Lab. Dr. Whitehurst’s lawsuit also alleged that records about Whitehurst and his allegations that were responsive to the FOIA requests were being selectively released by the FBI to criminal defendants, the courts, members of Congress, but were being denied to Dr. Whitehurst.

On February 5, 1997, Judge Gladys Kessler ordered the FBI to release all records responsive to these requests. See the order here

This lawsuit was later expanded to include Dr. Whitehurst’s FOIA requests for copies of the Justice Department’s OIG report and work product.

Ultimately, this lawsuit was settled and part of the settlement covered granting Dr. Whitehurst a fee waiver and access to thousands of pages of records on his whistleblower allegations and the FBI Lab scandal.

2. Forensic Justice Project v. FBI, Civil Action No. 04-1415 (PLF) (D.D.C.):

This FOIA case against the FBI was filed on behalf of the FJP in 2004 and requested access to records of various FBI Lab examiners who had testified in criminal cases regarding bullet lead. The case against the FBI was settled in March 2006, with the FBI agreeing to grant a fee waiver and provide the FJP with the names of defendants and case numbers of cases in which these examiners testified.

This FOIA case also was filed by the FJP against the DOJ for the records of DOJ Criminal Division Brady Task Force review of the FBI Lab scandal and Dr. Whitehurst’s whistleblower allegations. The FOIA case against DOJ on the Brady Task Force records was settled on December 9, 2005, with the DOJ agreeing to grant a fee waiver to FJP and produce on a rolling basis records from the Brady Task Force review.

The FJP provided all of these records to the Washington Post and these FBI records on bullet lead provided important leads for the Washington Post-60 Minutes investigation.

3. Forensic Justice Project and Whitehurst v. FBI and DOJ, Civil Action No. 06-1001 (RWR) (D.D.C.):

This FOIA action was filed in 2006 and is currently pending. See the Complaint

The FOIA request was filed with the FBI in September 2005 seeking copies of all records related to the comparative bullet lead cases and records related to the decision to stop using comparative bullet lead analysis that were referred to in a September 2, 2005 FBI press release. See the Original FOIA Request With FBI Press Release Attached

The FBI has refused to grant a fee waiver forcing the FJP and Dr. Whitehurst to appeal and then go to court. Reporter John Solomon of the Washington Post also wrote a letter informing the FBI and DOJ that he was interested in reviewing the records requested by FJP and Whitehurst. In February 2007 the FBI acknowledged that there exist approximately 250,000 records responsive to this request but the FBI demands that Dr. Whitehurst and the FJP pay approximately $70,000 to process this FOIA request.

The records responsive to this request are the actual case file records for all of the comparative bullet lead cases handled by the FBI Lab based on flawed science prior to the FBI’s decision to stop using comparative bullet lead analysis in criminal cases. In its September 2, 2005 Press Release, the FBI itself identified more than 500 cases where convictions were obtained using the scientifically flawed comparative bullet lead analysis. In addition, the FBI identified thousands of other criminal cases where comparative bullet lead analysis had been used prior to its discontinuance.

Continue Reading Bullet-Lead Case Records and Stonewalling by the FBI