From gap-general-list@whistleblower.org Mon Feb 3 20:45:01 2003 From: gap-general-list@whistleblower.org (gap-general-list@whistleblower.org) Date: 3 Feb 2003 20:45:01 -0000 Subject: Latest News and Efforts from the Government Accountability ProjectCommentary: NASA shuttle whistleblowers Message-ID: <20030203204501.9798.qmail@waitak.pair.com> Commentary: NASA shuttle whistleblowers Martin Edwin Andersen Is it deja vu all over again?
The immediate aftermath of the death of seven Columbia astronauts is a time for mourning and remembrance, not fingerpointing or "I told you sos." However, reports that this second tragedy engulfing a space shuttle--and the hopes and pride of several nation--could have been prevented point to an inescapable conclusion: Not much has changed for NASA's public-sector whistleblowers.

When, on Jan. 28, 1986, a leak in one of its two reusable solid rocket boosters ignited the main liquid fuel tank and caused the space shuttle Challenger to explode just 73 seconds into its tenth flight, present in the horrified viewing audience was the man who foretold the tragedy. Roger Boisjoly, a veteran expert in mechanical design and structural analysis, had warned his bosses at NASA contractor Morton Thiokol that the space shuttle was not ready for launching. As a technical troubleshooter on the shuttle's solid rocket boosters, he vigorously defended his position in a teleconference session with NASA managers. In recommending and defending the original no-launch decision about the spacecraft, Boisjoly found himself at odds with four Morton Thiokol senior managers. After taking over the meeting, the gang of four voted to launch the Challenger in spite of his continuing objections.

Despite the fact that whistleblower Boisjoly's testimony served as the cornerstone for later exposures of organizational misconduct at Morton Thiokol and at NASA, his prescience did not spare him the fate of many others who "dare to commit the truth." Both Morton Thiokol and NASA immediately launched reprisals against him, going into what Boisjoly called "cover-up mode." He was placed on an investigative team in an effort to keep him and his disclosures out of the limelight. Years later, he still was suffering from post-traumatic stress disorder -- the kind of gut wrenching usually associated with overstressed combat veterans.

Now, after the Columbia's long groundward fall and searing legend writ in the skies, Britain's Observer newspaper is first past the post in telling us that another whistleblower's pleas were ignored, with the second shuttle crash as a possible result. According to the account, NASA chiefs "repeatedly ignored" safety red flags, causing a former NASA engineer to plead with the White House that President George W. Bush issue a presidential order to halt further shuttle flights in order to prevent "another catastrophic space-shuttle accident."

The last 11 years of 36-year NASA veteran Don Nelson's career were spent as a mission-operations evaluator for advanced space-transportation projects. Nelson, the Observer reported, warned the president last summer that NASA management and the Aerospace Safety Advisory Panel had failed to heed growing warning signs of another shuttle accident even as, in the last four years, the spacecraft experienced a growing number of incidents that suggested it was a tragedy waiting to happen.

Nelson's entreaties were ignored by the White House and later, in October, the rejection was reaffirmed by NASA. "I became concerned about safety issues in NASA after Challenger," Nelson told the Observer. "I think what happened is that very slowly over the years NASA's culture of safety became eroded. But when I tried to raise my concerns with NASA's new administrator, I received two reprimands for not going through the proper channels, which discouraged other people from coming forward with their concerns. When it came to an argument between a middle-ranking engineer and the astronauts and administration, guess who won?"

NASA, of course, is very good at one kind of damage control: public relations. After the Challenger disaster, its safety discourse became a kind of mantra, even as the facts were proving to be something quite different. Tight budgets, political and client pressures, it continually affirmed, would not be placed ahead of safety as NASA's primary concern. As NASA's then-director of space flight, Fred Gregory, told the House Space and Aeronautics subcommittee last year, "We will never launch when it is unsafe."

It is often said that whistleblowers are like miners' canaries, warning of impending tragedies that others cannot sense. Experience also shows that, particularly in "can-do" workplaces like NASA's, whistleblower complaints reflect otherwise hidden or unrecognized agency pathologies. For example, in the early 1990s, senior officials at NASA's Office of the Inspector General (OIG) -- the guardians of an agency's correctness -- were themselves the targets of accusations that they were asking their employees to lie about illegalities they witnessed in the inspector general's office. The NASA OIG also was accused of "signing off" on a $1.7 billion contract so that a contractor would have reduced oversight at the Jet Propulsion Laboratory. These and other revelations were brought to light by whistle-blowers, often at considerable risk to their professions.

Ironically, following the state-of-the-art whistle-blower language Sens. Charles Grassley (R-Iowa) and Patrick Leahy (D-Vt.) managed to attach to the Sarbanes-Oxley [Corporate Accountability] Act signed into law last year by President Bush, the space program's future private-sector whistle-blowers, possibly modern-day Boisjolys, will enjoy real job protection. However, as GAP legal director Tom Devine notes, NASA employees have the same low level of protections shared by federal workers across the government.

This is because a hostile federal circuit court of appeals, with sole jurisdiction on whistle-blower cases, has systematically thwarted the intent of Congress when it unanimously passed the Whistleblower Protection Act(WPA) in 1989, and strengthened it, in 1994, in order to try to force the activist court into making fairer and more rational interpretations. Today, NASA's whistleblowers -- people who make a difference -- must avail themselves of a law that is little more than a Trojan Horse against their interests.

Throughout the land, Americans gather to honor the Columbia's fallen heroes. Surely cities and towns around the country will soon have their share of schools, parks, planetariums and other public works named in the astronauts' honor. It is fitting that they do so.

But there is a precious honor Congress can bestow, too, and that is to give federal workers -- including those at NASA -- a fighting chance to do the right thing at the workplace without having to risk professional suicide. If a real whistleblower protection law is passed -- one that mirrors the good news of the Grassley-Leahy amendment for the corporate sector -- maybe we will not soon have to mourn a third space-shuttle catastrophe.

Martin Edwin Andersen is GAP's media director. In 2001, Andersen was awarded the U.S. Office of Special Counsel's "Public Servant Award" for extraordinary service in protecting national-security information and in rooting out corruption at Janet Reno's Justice Department. If you no longer wish to receive these e-mails, please send an email with the word "unsubscribe" in the subject line. To one of the addresses below. If you are recieving these emails from gap-general-list@whistleblower.org If you are recieving these emails from gap-media-list@whistleblower.org Commentary: NASA shuttle whistleblowers Martin Edwin Andersen Is it deja vu all over again?
The immediate aftermath of the death of seven Columbia astronauts is a time for mourning and remembrance, not fingerpointing or "I told you sos." However, reports that this second tragedy engulfing a space shuttle--and the hopes and pride of several nation--could have been prevented point to an inescapable conclusion: Not much has changed for NASA's public-sector whistleblowers.

When, on Jan. 28, 1986, a leak in one of its two reusable solid rocket boosters ignited the main liquid fuel tank and caused the space shuttle Challenger to explode just 73 seconds into its tenth flight, present in the horrified viewing audience was the man who foretold the tragedy. Roger Boisjoly, a veteran expert in mechanical design and structural analysis, had warned his bosses at NASA contractor Morton Thiokol that the space shuttle was not ready for launching. As a technical troubleshooter on the shuttle's solid rocket boosters, he vigorously defended his position in a teleconference session with NASA managers. In recommending and defending the original no-launch decision about the spacecraft, Boisjoly found himself at odds with four Morton Thiokol senior managers. After taking over the meeting, the gang of four voted to launch the Challenger in spite of his continuing objections.

Despite the fact that whistleblower Boisjoly's testimony served as the cornerstone for later exposures of organizational misconduct at Morton Thiokol and at NASA, his prescience did not spare him the fate of many others who "dare to commit the truth." Both Morton Thiokol and NASA immediately launched reprisals against him, going into what Boisjoly called "cover-up mode." He was placed on an investigative team in an effort to keep him and his disclosures out of the limelight. Years later, he still was suffering from post-traumatic stress disorder -- the kind of gut wrenching usually associated with overstressed combat veterans.

Now, after the Columbia's long groundward fall and searing legend writ in the skies, Britain's Observer newspaper is first past the post in telling us that another whistleblower's pleas were ignored, with the second shuttle crash as a possible result. According to the account, NASA chiefs "repeatedly ignored" safety red flags, causing a former NASA engineer to plead with the White House that President George W. Bush issue a presidential order to halt further shuttle flights in order to prevent "another catastrophic space-shuttle accident."

The last 11 years of 36-year NASA veteran Don Nelson's career were spent as a mission-operations evaluator for advanced space-transportation projects. Nelson, the Observer reported, warned the president last summer that NASA management and the Aerospace Safety Advisory Panel had failed to heed growing warning signs of another shuttle accident even as, in the last four years, the spacecraft experienced a growing number of incidents that suggested it was a tragedy waiting to happen.

Nelson's entreaties were ignored by the White House and later, in October, the rejection was reaffirmed by NASA. "I became concerned about safety issues in NASA after Challenger," Nelson told the Observer. "I think what happened is that very slowly over the years NASA's culture of safety became eroded. But when I tried to raise my concerns with NASA's new administrator, I received two reprimands for not going through the proper channels, which discouraged other people from coming forward with their concerns. When it came to an argument between a middle-ranking engineer and the astronauts and administration, guess who won?"

NASA, of course, is very good at one kind of damage control: public relations. After the Challenger disaster, its safety discourse became a kind of mantra, even as the facts were proving to be something quite different. Tight budgets, political and client pressures, it continually affirmed, would not be placed ahead of safety as NASA's primary concern. As NASA's then-director of space flight, Fred Gregory, told the House Space and Aeronautics subcommittee last year, "We will never launch when it is unsafe."

It is often said that whistleblowers are like miners' canaries, warning of impending tragedies that others cannot sense. Experience also shows that, particularly in "can-do" workplaces like NASA's, whistleblower complaints reflect otherwise hidden or unrecognized agency pathologies. For example, in the early 1990s, senior officials at NASA's Office of the Inspector General (OIG) -- the guardians of an agency's correctness -- were themselves the targets of accusations that they were asking their employees to lie about illegalities they witnessed in the inspector general's office. The NASA OIG also was accused of "signing off" on a $1.7 billion contract so that a contractor would have reduced oversight at the Jet Propulsion Laboratory. These and other revelations were brought to light by whistle-blowers, often at considerable risk to their professions.

Ironically, following the state-of-the-art whistle-blower language Sens. Charles Grassley (R-Iowa) and Patrick Leahy (D-Vt.) managed to attach to the Sarbanes-Oxley [Corporate Accountability] Act signed into law last year by President Bush, the space program's future private-sector whistle-blowers, possibly modern-day Boisjolys, will enjoy real job protection. However, as GAP legal director Tom Devine notes, NASA employees have the same low level of protections shared by federal workers across the government.

This is because a hostile federal circuit court of appeals, with sole jurisdiction on whistle-blower cases, has systematically thwarted the intent of Congress when it unanimously passed the Whistleblower Protection Act(WPA) in 1989, and strengthened it, in 1994, in order to try to force the activist court into making fairer and more rational interpretations. Today, NASA's whistleblowers -- people who make a difference -- must avail themselves of a law that is little more than a Trojan Horse against their interests.

Throughout the land, Americans gather to honor the Columbia's fallen heroes. Surely cities and towns around the country will soon have their share of schools, parks, planetariums and other public works named in the astronauts' honor. It is fitting that they do so.

But there is a precious honor Congress can bestow, too, and that is to give federal workers -- including those at NASA -- a fighting chance to do the right thing at the workplace without having to risk professional suicide. If a real whistleblower protection law is passed -- one that mirrors the good news of the Grassley-Leahy amendment for the corporate sector -- maybe we will not soon have to mourn a third space-shuttle catastrophe.

Martin Edwin Andersen is GAP's media director. In 2001, Andersen was awarded the U.S. Office of Special Counsel's "Public Servant Award" for extraordinary service in protecting national-security information and in rooting out corruption at Janet Reno's Justice Department. If you no longer wish to receive these e-mails, please send an email with the word "unsubscribe" in the subject line. To one of the addresses below. If you are recieving these emails from gap-general-list@whistleblower.org If you are recieving these emails from gap-media-list@whistleblower.org From gap-general-list@whistleblower.org Thu Feb 20 16:00:00 2003 From: gap-general-list@whistleblower.org (gap-general-list@whistleblower.org) Date: 20 Feb 2003 16:00:00 -0000 Subject: Latest News and Efforts from the Government Accountability ProjectHanford E-Alert Message-ID: <20030220160000.83502.qmail@waitak.pair.com> Hanford E-Alert Tom Carpenter E-ALERT ON HANFORD
February 13, 2003


Public Comment Needed on High-Level Radioactive Waste Left at Hanford


Up to 75% of the High-Level Nuclear Waste stored in underground tanks at the Hanford Nuclear Site in southeastern Washington will be buried at Hanford instead of being put into glass and shipped off to a high-level waste repository, according to a new proposal from the Bush Administration.


The U.S. Department of Energy (DOE) is gathering comments on the scope of an Environmental Impact Statement on Retrieval, Treatment and Disposal of Tank Waste and Closure of Single-Shell Tanks at Hanford.


Background


Two thirds of the nation’s extremely deadly high level waste is stored a few miles from the banks of the Columbia River at Hanford's leaky, underground tanks.


A controversy has been raging for decades regarding how to deal with this extremely long lived and dangerous waste.


By 1996, however, a regional consensus finally was reached on at least one aspect of treating this waste. Government officials agreed that all of the waste that could be removed from the Hanford tanks would be mixed with glass and ultimately stored in a deep, geological repository (like Yucca Mountain) - - and isolated for at least 10,000 years.


Yet, the Bush administration has decided that the glassification (called vitrification) project is too expensive and has proposed not to vitrify most of the waste after all. Instead, up to 75% of the high level nuclear waste would be buried permanently in shallow trenches right on the Hanford site.


This high level waste is so deadly, that a very small amount would be considered lethal, and exposure to this waste can cause cancer, mutagenic effects, and a myriad of health concerns.


Instead of vitrifying the waste, the Bush administration has proposed using alternate technologies for treating the waste – such as by pouring concrete (grout) into the high level waste tanks. Years ago scientists concluded grouting high level waste was not a credible technology, as it would break down in very little time.


A lawsuit in federal district court in Idaho brought by public interest organizations and Native American tribes is challenging the Department of Energy’s (DOE) ability to re-label this high level nuclear waste as something else – a necessary ploy that DOE is trying to use in order to evade the requirements of the Nuclear Waste Policy Act (which mandates that high level waste be isolated for 10,000 years in a deep geologic repository).


• Scientific studies and Congress have concluded that the Hanford site is not a suitable repository for high level nuclear waste.


• The DOE does not have the legal authority to re-characterize high level waste as something else, simply to make cleanup cheaper.


• It is the position of the Government Accountability Project that all of Hanford tank waste must be vitrified and properly disposed of in accordance with federal law.


Deadline for Comments is March 11, 2003. See www.hanford.gov for the Federal Register Notice of the Scoping Comment.


++++++++++++++++++++++++++++++++++++++++++++++++++++++++


2. State of Washington Won't Object to Bush Administration's Plan to Import 70,000 Truckloads of Off-Site Nuclear Waste to Hanford


In late summer of 2002, hundreds of citizens turned out to oppose the DOE’s Draft Hanford Solid Waste Environmental Impact Statement. Under this plan, the government would import an estimated 70,000 truckloads of offsite nuclear and chemically contaminated waste for permanent burial at Hanford.


In the face of such outcry, the DOE was obliged to withdraw the draft EIS for further study and now plans to re-issue another draft in March 2003.


However, in October 2002, DOE announced that it would import 170 barrels of extremely dangerous plutonium-contaminated (transuranic) waste from California and Ohio into Washington, and it would do so regardless that the draft EIS had been withdrawn (meaning that these shipments weren't covered by any environmental analysis).


The DOE's behavior prompted a strong letter from the Governor and Attorney General of the state of Washington in late November 2002 opposing the transuranic shipments in no uncertain terms.


Three weeks later, Washington Ecology director Tom Fitzsimmons announced that the state would not oppose these new shipments, despite the lack of an environmental analysis. Fitzsimmons sent former governor Mike Lowry to meet with citizens groups concerned about the deal Fitzsimmons had struck with DOE.


What followed was a series of meetings between Fitzsimmons and several key Hanford watchdog groups. The result of these meetings was the development of a clear understanding of the policy of the State of Washington Department of Ecology towards the importation of offsite waste:


• Ecology is not opposing, nor will it oppose, the annual importation and disposal of hundreds of thousands of cubic meters of nuclear and chemical wastes at Hanford.


• Ecology is not opposing, nor will it oppose, the importation of an estimated 70.000 truckloads of radioactive and chemical nuclear wastes for burial at Hanford in the future.


• Ecology is not opposing, nor will it oppose, the continued operation of unlicensed and illegal use of chemically and radiologically-contaminated burial grounds at the Hanford site.


o These burial grounds consist of unlined trenches with no monitoring and no environmental analysis in support of their operations.

o These same trenches have contaminated and continue to contaminate the groundwater below the Hanford site.


Tom Fitzsimmons and the governor have reiterated that they don’t want Hanford to become the nation’s nuclear waste dump. However, it does appear that Mr. Fitzsimmons is ready to exchange acceptance of massive quantities of radioactive and chemical nuclear wastes for burial at Hanford in return for DOE's promises to vitrify Hanford's high-level waste and to send Hanford's transuranic waste offsite. Though DOE still promises to vitrify the high level waste, as discussed above, it is becoming clear that DOE really intends to leave much of it un-vitrified and on the Hanford site.


If you no longer wish to receive these e-mails, please send an email with the word "unsubscribe" in the subject line. To one of the addresses below. If you are recieving these emails from gap-general-list@whistleblower.org If you are recieving these emails from gap-media-list@whistleblower.org Hanford E-Alert Tom Carpenter E-ALERT ON HANFORD
February 13, 2003


Public Comment Needed on High-Level Radioactive Waste Left at Hanford


Up to 75% of the High-Level Nuclear Waste stored in underground tanks at the Hanford Nuclear Site in southeastern Washington will be buried at Hanford instead of being put into glass and shipped off to a high-level waste repository, according to a new proposal from the Bush Administration.


The U.S. Department of Energy (DOE) is gathering comments on the scope of an Environmental Impact Statement on Retrieval, Treatment and Disposal of Tank Waste and Closure of Single-Shell Tanks at Hanford.


Background


Two thirds of the nation’s extremely deadly high level waste is stored a few miles from the banks of the Columbia River at Hanford's leaky, underground tanks.


A controversy has been raging for decades regarding how to deal with this extremely long lived and dangerous waste.


By 1996, however, a regional consensus finally was reached on at least one aspect of treating this waste. Government officials agreed that all of the waste that could be removed from the Hanford tanks would be mixed with glass and ultimately stored in a deep, geological repository (like Yucca Mountain) - - and isolated for at least 10,000 years.


Yet, the Bush administration has decided that the glassification (called vitrification) project is too expensive and has proposed not to vitrify most of the waste after all. Instead, up to 75% of the high level nuclear waste would be buried permanently in shallow trenches right on the Hanford site.


This high level waste is so deadly, that a very small amount would be considered lethal, and exposure to this waste can cause cancer, mutagenic effects, and a myriad of health concerns.


Instead of vitrifying the waste, the Bush administration has proposed using alternate technologies for treating the waste – such as by pouring concrete (grout) into the high level waste tanks. Years ago scientists concluded grouting high level waste was not a credible technology, as it would break down in very little time.


A lawsuit in federal district court in Idaho brought by public interest organizations and Native American tribes is challenging the Department of Energy’s (DOE) ability to re-label this high level nuclear waste as something else – a necessary ploy that DOE is trying to use in order to evade the requirements of the Nuclear Waste Policy Act (which mandates that high level waste be isolated for 10,000 years in a deep geologic repository).


• Scientific studies and Congress have concluded that the Hanford site is not a suitable repository for high level nuclear waste.


• The DOE does not have the legal authority to re-characterize high level waste as something else, simply to make cleanup cheaper.


• It is the position of the Government Accountability Project that all of Hanford tank waste must be vitrified and properly disposed of in accordance with federal law.


Deadline for Comments is March 11, 2003. See www.hanford.gov for the Federal Register Notice of the Scoping Comment.


++++++++++++++++++++++++++++++++++++++++++++++++++++++++


2. State of Washington Won't Object to Bush Administration's Plan to Import 70,000 Truckloads of Off-Site Nuclear Waste to Hanford


In late summer of 2002, hundreds of citizens turned out to oppose the DOE’s Draft Hanford Solid Waste Environmental Impact Statement. Under this plan, the government would import an estimated 70,000 truckloads of offsite nuclear and chemically contaminated waste for permanent burial at Hanford.


In the face of such outcry, the DOE was obliged to withdraw the draft EIS for further study and now plans to re-issue another draft in March 2003.


However, in October 2002, DOE announced that it would import 170 barrels of extremely dangerous plutonium-contaminated (transuranic) waste from California and Ohio into Washington, and it would do so regardless that the draft EIS had been withdrawn (meaning that these shipments weren't covered by any environmental analysis).


The DOE's behavior prompted a strong letter from the Governor and Attorney General of the state of Washington in late November 2002 opposing the transuranic shipments in no uncertain terms.


Three weeks later, Washington Ecology director Tom Fitzsimmons announced that the state would not oppose these new shipments, despite the lack of an environmental analysis. Fitzsimmons sent former governor Mike Lowry to meet with citizens groups concerned about the deal Fitzsimmons had struck with DOE.


What followed was a series of meetings between Fitzsimmons and several key Hanford watchdog groups. The result of these meetings was the development of a clear understanding of the policy of the State of Washington Department of Ecology towards the importation of offsite waste:


• Ecology is not opposing, nor will it oppose, the annual importation and disposal of hundreds of thousands of cubic meters of nuclear and chemical wastes at Hanford.


• Ecology is not opposing, nor will it oppose, the importation of an estimated 70.000 truckloads of radioactive and chemical nuclear wastes for burial at Hanford in the future.


• Ecology is not opposing, nor will it oppose, the continued operation of unlicensed and illegal use of chemically and radiologically-contaminated burial grounds at the Hanford site.


o These burial grounds consist of unlined trenches with no monitoring and no environmental analysis in support of their operations.

o These same trenches have contaminated and continue to contaminate the groundwater below the Hanford site.


Tom Fitzsimmons and the governor have reiterated that they don’t want Hanford to become the nation’s nuclear waste dump. However, it does appear that Mr. Fitzsimmons is ready to exchange acceptance of massive quantities of radioactive and chemical nuclear wastes for burial at Hanford in return for DOE's promises to vitrify Hanford's high-level waste and to send Hanford's transuranic waste offsite. Though DOE still promises to vitrify the high level waste, as discussed above, it is becoming clear that DOE really intends to leave much of it un-vitrified and on the Hanford site.


If you no longer wish to receive these e-mails, please send an email with the word "unsubscribe" in the subject line. To one of the addresses below. If you are recieving these emails from gap-general-list@whistleblower.org If you are recieving these emails from gap-media-list@whistleblower.org From gap-general-list@whistleblower.org Thu Feb 27 21:15:01 2003 From: gap-general-list@whistleblower.org (gap-general-list@whistleblower.org) Date: 27 Feb 2003 21:15:01 -0000 Subject: Latest News and Efforts from the Government Accountability ProjectA Good Year For Whistleblowers Message-ID: <20030227211501.74257.qmail@waitak.pair.com> A Good Year For Whistleblowers For the third year in a row, the U.S. Department of Justice is reporting a banner year for fraud actions, with recoveries exceeding $1 billion in the last fiscal year. And that doesn’t include a whopping $881 million settlement tentatively reached in the current fiscal year with one company. The recoveries themselves are a testament to the Lincoln Law of 1863, which was dusted off in the 1980s and retooled by Congress into the powerful 1986 False Claims Act.

ABA Law Review

by Molly McDonough

A GOOD YEAR FOR WHISTLE-BLOWERS

False Claims Act Recoveries Exceed $1 Billion

For the third year in a row, the U.S. Department of Justice is reporting a banner year for fraud actions, with recoveries exceeding $1 billion in the last fiscal year. And that doesn’t include a whopping $881 million settlement tentatively reached in the current fiscal year with one company. The recoveries themselves are a testament to the Lincoln Law of 1863, which was dusted off in the 1980s and retooled by Congress into the powerful 1986 False Claims Act.

Back then, the government recovered around $15 million a year in fraud actions. The government has since recovered a breathtaking $10 billion. More than $6 billion of that is attributed to the whistle-blower provision of the act.

Whistle-blowers, known as relators, filed 33 suits in 1987. That number jumped to 533 the following year and has leveled off at about 300 per year since, according to the Justice Department.

Lawyers at Justice have embraced the act, which rewards whistle-blowers acting as "private attorneys general" when they sue companies for fraud on behalf of the government.

Click here to register for The 4th Annual National Institute on the False Claims Act and Qui Tam Enforcement. The program is Jan. 29-31 at the Park Hyatt Hotel in Washington, D.C.

Speakers include Robert D. McCallum Jr., assistant attorney general, civil division, U.S. Department of Justice.

But it’s not just that the government has gained a keener interest in prosecuting these cases. Most lawyers agree that False Claims Act cases are much more successful if the government intervenes as a plaintiff and sees a case through to fruition. But plaintiffs lawyers say another reason for the increase in government attention is that they are bringing bigger and better cases to the DOJ.

"There are fewer meritless cases brought," says John R. Phillips, a Washington, D.C., False Claims Act lawyer who helped revive the statute and draft the 1986 amendment that gave the act bite in the current business climate. Among other things, the law increased recoveries for successful plaintiffs and barred employers from retaliating against whistle-blower plaintiffs.

Phillips says whistle-blower lawyers are learning that they have to bring the government a case that’s carefully researched and backed up by the facts. "This is not a ticket to the lottery. It takes a lot of hard work," he says.

Michael F. Hertz, director of the Justice Department’s commercial litigation branch in the civil division, disputes that the numbers are higher because the whistle-blowers are bringing forward better cases. Instead, he attributes the higher numbers to a few cases each year that bring in large recoveries, in part because they have involved large hospital systems and chains where systemic fraud was uncovered. But the percentage of cases Justice takes from relators has remained at about 22 percent to 23 percent over the past 17 years.

"Cases are being filed where there has been more damage to those programs identified," he says.

Phillips has worked on some of those big-recovery cases. He was among 40 private attorneys who invested some 75,000 hours of work and $30 million in legal and accounting resources to investigate cost-report irregularities at HCA, formerly Columbia/HCA Healthcare Corp.

In December, the government announced it had reached a tentative $881 million settlement with HCA to end litigation over the company’s alleged overcharging on cost reports associated with Medicare and Medicaid. Combined with settlements reached between HCA and the government in 2000, the recovery could total $1.7 billion, the largest False Claims Act recovery from a single institution.

Phillips says his 12-member firm, Phillips & Cohen, is responsible for one-third of the government’s recoveries in whistle-blower cases. While Phillips did not say how much his firm has earned in fees, most firms enter into contingency agreements in whistle-blower cases that entitle them to as much as 40 percent of a relator’s recovery.

The plaintiffs bar says some DOJ lawyers remain reticent despite escalating recoveries. "There is still some embedded resistance within the department to the notion that private attorneys can be private attorneys general," Phillips says.

According to Phillips, Justice works to keep whistle-blower compensation to a minimum. In the past fiscal year, Justice reported paying whistle-blowers $160 million. The False Claims Act allows whistle-blowers to recover 15 percent to 25 percent of any recovery reached with Justice’s help, or up to 30 percent on their own.

Justice keeps recoveries for relators around 16 percent, says James W. Moorman, a former assistant attorney general who is president of the Washington, D.C.-based False Claims Act Legal Center.

Moorman says it doesn’t make sense for Justice to fight private attorneys on this issue. Whistle-blower payments come from the offending companies, not taxpayers.

"To save a dime, they forfeit a buck," Moorman says. Instead of allowing whistle-blowers to receive larger rewards by amending complaints to include more allegations of fraud, "they will prevent whistle-blowers and their lawyers from adding value to a case which would [otherwise] bring the government far more money."

Southern Illinois attorney Ronald E. Osman says the government seems to be getting even more aggressive in this respect. He says the government now requires him and his clients to sign documents saying they will not amend their complaints to add value before the government shares information with them.

Hertz of the DOJ defended the 16 percent average, explaining that the figure is skewed lower because of cases in which the government and relators agree to lesser awards. He says there are sometimes real questions about whether the relator should recover at all under the statute. The government may push a 7 percent to 10 percent recovery when, for example, the relator alerts the government to fraud, but an investigation finds the fraud is different from the facts reported by the relator.

If you no longer wish to receive these e-mails, please send an email with the word "unsubscribe" in the subject line. To one of the addresses below. If you are recieving these emails from gap-general-list@whistleblower.org If you are recieving these emails from gap-media-list@whistleblower.org A Good Year For Whistleblowers For the third year in a row, the U.S. Department of Justice is reporting a banner year for fraud actions, with recoveries exceeding $1 billion in the last fiscal year. And that doesn’t include a whopping $881 million settlement tentatively reached in the current fiscal year with one company. The recoveries themselves are a testament to the Lincoln Law of 1863, which was dusted off in the 1980s and retooled by Congress into the powerful 1986 False Claims Act.

ABA Law Review

by Molly McDonough

A GOOD YEAR FOR WHISTLE-BLOWERS

False Claims Act Recoveries Exceed $1 Billion

For the third year in a row, the U.S. Department of Justice is reporting a banner year for fraud actions, with recoveries exceeding $1 billion in the last fiscal year. And that doesn’t include a whopping $881 million settlement tentatively reached in the current fiscal year with one company. The recoveries themselves are a testament to the Lincoln Law of 1863, which was dusted off in the 1980s and retooled by Congress into the powerful 1986 False Claims Act.

Back then, the government recovered around $15 million a year in fraud actions. The government has since recovered a breathtaking $10 billion. More than $6 billion of that is attributed to the whistle-blower provision of the act.

Whistle-blowers, known as relators, filed 33 suits in 1987. That number jumped to 533 the following year and has leveled off at about 300 per year since, according to the Justice Department.

Lawyers at Justice have embraced the act, which rewards whistle-blowers acting as "private attorneys general" when they sue companies for fraud on behalf of the government.

Click here to register for The 4th Annual National Institute on the False Claims Act and Qui Tam Enforcement. The program is Jan. 29-31 at the Park Hyatt Hotel in Washington, D.C.

Speakers include Robert D. McCallum Jr., assistant attorney general, civil division, U.S. Department of Justice.

But it’s not just that the government has gained a keener interest in prosecuting these cases. Most lawyers agree that False Claims Act cases are much more successful if the government intervenes as a plaintiff and sees a case through to fruition. But plaintiffs lawyers say another reason for the increase in government attention is that they are bringing bigger and better cases to the DOJ.

"There are fewer meritless cases brought," says John R. Phillips, a Washington, D.C., False Claims Act lawyer who helped revive the statute and draft the 1986 amendment that gave the act bite in the current business climate. Among other things, the law increased recoveries for successful plaintiffs and barred employers from retaliating against whistle-blower plaintiffs.

Phillips says whistle-blower lawyers are learning that they have to bring the government a case that’s carefully researched and backed up by the facts. "This is not a ticket to the lottery. It takes a lot of hard work," he says.

Michael F. Hertz, director of the Justice Department’s commercial litigation branch in the civil division, disputes that the numbers are higher because the whistle-blowers are bringing forward better cases. Instead, he attributes the higher numbers to a few cases each year that bring in large recoveries, in part because they have involved large hospital systems and chains where systemic fraud was uncovered. But the percentage of cases Justice takes from relators has remained at about 22 percent to 23 percent over the past 17 years.

"Cases are being filed where there has been more damage to those programs identified," he says.

Phillips has worked on some of those big-recovery cases. He was among 40 private attorneys who invested some 75,000 hours of work and $30 million in legal and accounting resources to investigate cost-report irregularities at HCA, formerly Columbia/HCA Healthcare Corp.

In December, the government announced it had reached a tentative $881 million settlement with HCA to end litigation over the company’s alleged overcharging on cost reports associated with Medicare and Medicaid. Combined with settlements reached between HCA and the government in 2000, the recovery could total $1.7 billion, the largest False Claims Act recovery from a single institution.

Phillips says his 12-member firm, Phillips & Cohen, is responsible for one-third of the government’s recoveries in whistle-blower cases. While Phillips did not say how much his firm has earned in fees, most firms enter into contingency agreements in whistle-blower cases that entitle them to as much as 40 percent of a relator’s recovery.

The plaintiffs bar says some DOJ lawyers remain reticent despite escalating recoveries. "There is still some embedded resistance within the department to the notion that private attorneys can be private attorneys general," Phillips says.

According to Phillips, Justice works to keep whistle-blower compensation to a minimum. In the past fiscal year, Justice reported paying whistle-blowers $160 million. The False Claims Act allows whistle-blowers to recover 15 percent to 25 percent of any recovery reached with Justice’s help, or up to 30 percent on their own.

Justice keeps recoveries for relators around 16 percent, says James W. Moorman, a former assistant attorney general who is president of the Washington, D.C.-based False Claims Act Legal Center.

Moorman says it doesn’t make sense for Justice to fight private attorneys on this issue. Whistle-blower payments come from the offending companies, not taxpayers.

"To save a dime, they forfeit a buck," Moorman says. Instead of allowing whistle-blowers to receive larger rewards by amending complaints to include more allegations of fraud, "they will prevent whistle-blowers and their lawyers from adding value to a case which would [otherwise] bring the government far more money."

Southern Illinois attorney Ronald E. Osman says the government seems to be getting even more aggressive in this respect. He says the government now requires him and his clients to sign documents saying they will not amend their complaints to add value before the government shares information with them.

Hertz of the DOJ defended the 16 percent average, explaining that the figure is skewed lower because of cases in which the government and relators agree to lesser awards. He says there are sometimes real questions about whether the relator should recover at all under the statute. The government may push a 7 percent to 10 percent recovery when, for example, the relator alerts the government to fraud, but an investigation finds the fraud is different from the facts reported by the relator.

If you no longer wish to receive these e-mails, please send an email with the word "unsubscribe" in the subject line. To one of the addresses below. If you are recieving these emails from gap-general-list@whistleblower.org If you are recieving these emails from gap-media-list@whistleblower.org