MacLean’s lawsuit stems from disclosures he made in 2003 regarding an order given by the Transportation Security Administration (“TSA”) to cancel all Air Marshal missions on flights from Las Vegas for a period of approximately one-month.  Having just received a briefing from the TSA regarding a “potential plot” to hijack U.S. airliners, MacLean viewed the suspension of overnight missions during a hijacking alert as a danger to the flying public.  Accordingly, he complained to his supervisor and then to the TSA’s Office of Inspector General, but both responded by telling MacLean that nothing could be done.

Unwilling to accept this, MacLean anonymously informed an MSNBC reporter about the directive in the hopes that media coverage would result in the order’s rescission.  Upon hearing about the story, several members of Congress criticized the directive and it was ultimately withdrawn.  Unfortunately, MacLean’s role in leaking the information to the press came to light a year later, and MacLean was removed from his position because, according to the agency, his contact with the reporter constituted an “unauthorized disclosure of sensitive security information (‘SSI’).”

MacLean challenged his termination before the Merit Systems Protection Board (“MSPB”), the federal panel responsible for hearing claims of illegal retaliation under the WPA.  The MSPB found for the Department of Homeland Security (“DHS,” the parent agency of the TSA) on the basis that MacLean’s disclosure fell outside the WPA’s protection because it was “specifically prohibited by law.”  Specifically, the MSPB held that the disclosure of the text message could not qualify for WPA protection because it was prohibited by a statute, the Aviation and Transportation Security Act (“ATSA”).

The ATSA states, in relevant part, that “the Secretary of Transportation shall prescribe regulations prohibiting disclosure of information obtained or developed in ensuring security under this title if the Secretary of Transportation decides disclosing the information would . . . be detrimental to transportation safety.”  The TSA issued a regulation in 2002, which MacLean was ultimately charged with violating, that bars disclosing “[s]pecific details of aviation security measures,” including “information concerning specific numbers of [Marshals], deployments or missions.”

MacLean appealed to the Court of Appeals for the Federal Circuit, arguing that the ATSA statute prohibiting the disclosure of information that would be “detrimental to transportation safety” was not sufficiently “specific” to qualify for the exemption from WPA protection for disclosures “specifically prohibited by law.”

The Federal Circuit decided that the statute was not sufficiently specific.  The Court made note of the fact that Congress had changed the language of the WPA from “specifically prohibited by law, rule, or regulation” in the statute’s draft version to simply “specifically prohibited by law.”  According to the Federal Circuit, Congress did so because it was concerned that the broader language “would encourage the adoption of internal procedural regulations against disclosure, and thereby enable an agency to discourage an employee from coming forward with allegations of wrongdoing.”

The Court went on to hold that the “detrimental to transportation safety” language of the ATSA did not describe specific matters to be withheld, but instead “provides only general criteria for withholding information and gives some discretion to the Agency to fashion regulations for prohibiting disclosure.”  Thus, the Court found that the ATSA did not “specifically prohibit” employee conduct within the meaning of the WPA.  Finally, the Court was “unpersuaded by the government’s argument that a parade of horribles necessarily follows our adoption of Mr. MacLean’s interpretation of the WPA.”  The Court noted that the ATSA covered a wide range of conduct that would not qualify as whistleblowing – specifically, any information that the employee did not reasonable believe evidenced a substantial and specific danger to public health or safety.  Thus, the Federal Circuit’s interpretation would not render the ATSA toothless, as the government argued.

Finding that the ATSA statute did not render MacLean’s statements exceptions to the WPA, the Federal Circuit reversed the decision of the MSPB and remanded the case to the MSPB to resolve the question of whether MacLean reasonably believed that the content of his disclosure evidenced a substantial and specific danger to public health or safety.

The employee’s complaint alleged that the cause of his retaliation was his report to his supervisors that signal routes were not tested properly due to time constraints, resulting in safety violations.  Following that report, the employee began to experience a reduction in overtime hours. After the employee filed a complaint with OSHA alleging that his reduction of hours constituted retaliation in violation of the Federal Rail Safety Act (“FRSA”), his position was eliminated.

Under the FRSA, a railroad worker’s employer may not retaliate against him for reporting hazardous safety and security conditions, refusing to work under such conditions, or refusing to authorize the use of any safety- or security-related equipment, track, or railroad structures.  Importantly, a railroad company covered by the FRSA may not retaliate against an employee for notifying the company of a work-related personal injury or work-related illness of an employee.

Nick Walters, OSHA’s regional administrator in Chicago, summarized the OSHA determination by stating that “An employer does not have the right to retaliate against employees who report safety issues.  When employees can’t report safety concerns on the job without fear of retaliation, worker safety and, in this case, passenger safety on Metra, becomes a serious concern.”

The proposed rule also has a number of other measures to help to decrease Medicare fraud: (1) expanding the instances in which a felony conviction can serve as a basis for denial or revocation of a provider or supplier’s enrollment; (2) if certain criteria are met, enabling HHS to deny enrollment if the enrolling provider, supplier, or owner thereof had an ownership relationship with a previously enrolled provider or supplier that had a Medicare debt; (3) enabling HHS to revoke Medicare billing privileges if it determines that the provider or supplier has a pattern or practice of submitting claims for services that fail to meet Medicare requirements; and (4) limiting the ability of ambulance suppliers to “backbill” for services performed prior to enrollment.

Including increased incentives for whistleblowers along with all of these other fraud-decreasing measures is a reminder of what whistleblower advocates have known all along: that whistleblowers have been and still are one of our most important bulwarks against fraud in and against the government, whether that fraud occur within a government agency or in a hospital, doctor’s office or pharmaceutical manufacturer.  In light of that, there are certain common sense steps that legislators can take to curb this sort of waste, fraud and abuse, namely (1) protect those whistleblowers from retaliation; and (2) provide those whistleblowers with financial incentives to offset the significant risks to their careers that they are taking in speaking out against illegal activity within their organization.  It is encouraging to see Secretary Sebelius and HHS intensify the fight to prevent fraud and abuse.

One word of caution, however: the award is not provided in addition to awards provided to whistleblowers under the False Claims Act (“FCA”); instead, the program proposes to serve as an alternative to filing a claim under the FCA, providing “additional incentives to individuals who otherwise would not have brought the information to the government’s attention by filing a qui tam lawsuit.”  The rule makes clear, however, that “an individual is not eligible for an [HHS] reward if he or she has filed a qui tam lawsuit under the federal or any state False Claims Act,” and that the agency will not “give a reward for the same or substantially similar information that is the basis of a payment of a share of the amounts collected under the False Claims Act.”

In 1986, the FCA was amended to include section 3730(h), which provides protections against retaliation for employees who blow the whistle on fraudulent activity by their employer.  This was a critical addition to the statute because it enabled those persons who were in the best position to learn of fraudulent activity to  bring qui tam lawsuits without fearing that their employers could retaliate against them with impunity.

Even after the 1986 amendments, however, the FCA still some critical shortcomings, which Congress addressed with further amendments to the statute in 2009.  Those amendments came as part of the Fraud Enforcement and Recovery Act (“FERA”).  During the floor debate on FERA, Congressman Howard Berman, one of the drafters of the bill, made remarks which are helpful in explaining the intended broadening of the scope of protected activity under the revised 3730(h).  Specifically, Congressman Berman stated that 3730(h) needed to be amended “so that it is clear that it covers the following types of retaliation that whistleblowers commonly have faced over the course of the last twenty years: (i) retaliation against not only those who actually file a qui tam action, but also against those who plan to file a qui tam that never gets filed, who blow the whistle internally or externally without the filing of a qui tam action, or who refuse to participate in the wrongdoing; (ii) retaliation against the family members and colleagues of those who have blown the whistle; and, (iii) retaliation against contractors and agents of the discriminating party who have been denied relief by some courts because they are not technically ‘employees.’”

The Congressman went into further detail regarding protections for internal reporting, and specifically addressed the amendment’s broadening of the FCA’s “in furtherance of” standard, which had previously been the subject of many motions to dismiss on the basis that the employee had failed to engage in protected activity.  After noting that the amendments altered 3730(h) to state that it would protect all “lawful acts done . . . in furtherance of . . . other efforts to stop 1 or more violations” of the FCA, Congressman Berman clarified that his proposed amendments were “intended to make clear that this subsection protects not only steps taken in furtherance of a potential or actual qui tam action, but also steps taken to remedy the misconduct through methods such as internal reporting to a supervisor or company compliance department and refusals to participate in the misconduct that leads to the false claims, whether or not such steps are clearly in furtherance of a potential or actual qui tam action.”

Finally, the Congressman noted that notwithstanding his clarifications that internal reporting was protected, that did not mean in his view that a qui tam plaintiff must have refused to engage in the misconduct or reported the fraud internally to be protected under 3730(h).  According to Congressman Berman, “as the Congress recognized when the False Claims Act’s qui tam provisions were first enacted in the nineteenth century, and as we have repeatedly affirmed in different contexts, including the new IRS whistleblower law, sometimes it ‘takes a rogue to catch a rogue.’ An individual who participates in the fraud, and who for whatever reason does not challenge the misconduct within his or her organization, is still entitled to a relator’s award and the protections of Section 3730(h) unless he or she is otherwise barred by a specific provision in the law.”

In Bailey’s role as a conductor at Conrail, one of his responsibilities was to ensure the safe and efficient operation of Conrail’s trains.  Between June 29, 2010 and February 8, 2011, he submitted approximately 35 formal written safety complaints to Conrail.  On February 11, Bailey and his supervisor, Robert Conley, had an exchange in which both men raised their voices.  The company launched an investigation, which resulted in Bailey’s termination.

After an administrative hearing, the ALJ entered an order determining that Bailey’s safety reports constituted protected activity under the Federal Railroad Safety Act (“FRSA”), and that those safety reports contributed to Conrail’s decision to terminate Bailey.  Accordingly, the ALJ ruled in Bailey’s favor, awarding him back wages, compensatory damages, costs, attorneys’ fees, and, finally, reinstatement.  Under 29 C.F.R. § 1982, the statute which details procedures for handling retaliation complaints brought under the FRSA, an ALJ’s grant of reinstatement is effective immediately upon the company’s receipt of the decision.

Conrail responded by appealing the decision to the ARB and moving for a stay of the reinstatement.  In comments accompanying 29 C.F.R. § 1982, the DOL made clear that “only ‘in the exceptional case’ may the ARB grant a motion to stay a preliminary order of reinstatement.”  The comments further explain that “the purpose of interim relief, to provide a meritorious complainant with a speedy remedy and avoid a chill on whistleblowing activity, would be frustrated if reinstatement did not become effective until after the administrative adjudication was completed.”  The Board laid out four factors that it evaluates in determining whether to grant a stay: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the Board grants the stay; and (4) the public interest in granting a stay.

The Board then went through the factors in order.  First, it determined that “the ALJ’s decision weighed disputed facts in light of the totality of circumstances after an apparently thorough evidentiary hearing,” and found that Conrail failed to demonstrate a likelihood of success on the merits in its motion for a stay.  Second, the Board rejected Conrail’s protestations that a stay would present irreparable harm because of the “threat of workplace violence.”  The Board noted that despite Conley’s testimony that he “felt threatened” by Bailey, Conley was the one responsible for instigating the February 11 confrontation.  Moreover, the Board noted that the “profane language and heated conversations” of the type engaged in by Bailey and Conley “were tolerated as part and parcel of the nature of the work environment” at Conrail.  Finally, it found that Conrail had failed to present evidence showing that reinstating Bailey would affect the public interest.  Accordingly, it denied Conrail’s motion to stay and upheld the ALJ’s order to reinstate Bailey.

The Federal Mine Safety and Health Act (“FMSHA”) forbids retaliation against a miner because the miner has (a) filed or made a complaint notifying the operator or the operator’s agent of an alleged danger or safety or health violation in a coal or other mine; (b) refused to work in unsafe or unhealthy conditions; or (c) reported a workplace injury.  If a miner submits a complaint that is “not frivolously brought” to MSHA, the agency will ask the Federal Mine Safety and Health Review Commission (“FMSHRC”) to order immediate reinstatement for the miner while the agency continues to review the case.   Reinstatement means that a miner will receive his or her regular pay while MSHA conducts its investigation into the merits of the miner’s discrimination claim.

Joseph A. Main, assistant secretary of labor for mine safety and health, noted that “MSHA urges miners to exercise their rights, and actively participate in monitoring safety and health conditions.  We take these rights under the Mine Act very seriously and will vigorously investigate all discrimination complaints.”

In July 2010, Howard suffered a head injury while cleaning a beltline in a mine’s belt corridor.  The injury required him to obtain treatment and examination from eight different doctors.  At the conclusion of his treatment, seven of his doctors released him to work without restrictions.  An eighth doctor, however, determined that Howard should be “restricted from exposure to moving machinery.”    Upon receiving this determination, CRCC immediately informed Howard that it could not accommodate him and terminated his employment.  Howard responded by filing a retaliation lawsuit under the Federal Mine Safety and Health Act (“Mine Act”).

The Sixth Circuit first agreed with the ALJ’s determination that Howard’s seven prior safety complaints under the Mine Act constituted protected activity.  The Sixth Circuit next pointed to evidence Howard introduced of an email from CRCC’s director of risk management to the company’s workers’ compensation attorney while they were waiting for the final doctor’s determination which stated “I’m wondering whether we stand a chance of getting [the doctor] to give [Howard] an impairment rating. . . The hope is that we will get restrictions as we need to settle with a resignation.”  According to the Sixth Circuit, the ALJ correctly determined that the combination of that and other similar emails, along with the fact that the CRCC relied on the opinion of one doctor while ignoring the conflicting advice of seven others, suggested that Howard’s termination was due in part to his protected activity, and that CRCC’s purported reasons for firing Howard were “weak, outside of normal business practices, and pretextual.”

Finally, the Sixth Circuit agreed with the ALJ’s determination that in light of the facts that (a) seven doctors disagreed with the one doctor who ultimately concluded it was unsafe for Howard to return to work; and (b) the one dissenting doctor’s initial determination stated that “Howard has the mental capacity to engage in any work he is trained, educated, or experienced to perform,” the CRCC did not have a viable safety argument in preventing Howard’s return to work.  Accordingly, the Court affirmed the ALJ’s decision to reinstatement Howard, who has been back at work since July 2012.

In an unfortunate August 2012 decision by a three-judge panel of the Federal Circuit, the court expanded the scope the 1988 Supreme Court decision in Navy v. Egan.  In Egan, the Supreme Court ruled that some federal employees did not have a right to appeal decisions made by their employers affecting their security clearances, creating a significant opportunity for unreviewable retaliation and employee abuse.  In the Federal Circuit’s August 2012 decision in Berry, it expanded the Supreme Court’s Egan decision and ruled that employees were also not entitled to a review of an agency’s determination that they were ineligible for a “sensitive” position.  This decision greatly expanded the class of government employees who could be retaliated against without review in this way.  According to the OSC’s amicus brief, there are approximately 500,000 employees at the DOD alone occupying positions designated as “sensitive.”

However, on January 24, 2013, in response to a petition filed by the Merit Systems Protection Board and the employees, the Federal Circuit agreed to vacate the August 2012 decision and hear the case en banc.  The entire 15-judge Federal Circuit is now reviewing the decision.  If the Federal Circuit confirms its August panel ruling, it will leave hundreds of thousands of government employees – and potential whistleblowers on government waste, fraud, and abuse – without any protections against this very damaging form of retaliation.  The OSC, along with advocates for the rights of whistleblowers and government employees across the country, are hopeful that the Federal Circuit will reverse its 2012 decision in Berry and resist making the same mistake of expanding the scope of the harmful Supreme Court decision in Egan.

After discovering the misconduct, Blakeslee reported it to Shaw’s CEO, James Bernhard.  The following day, Shaw commenced a termination proceeding and fired Blakeslee.  This termination came despite the fact that Blakeslee maintained “an outstanding reputation among his subordinates, co-workers and government contract administrators,” and had “earned exemplary job performance reviews each year” while working at Shaw.  While the company alleged that Blakeslee’s termination was as a result of a “reduction in force,” Blakeslee responded by filing a lawsuit claiming that the company had unlawfully retaliated against him in violation of the federal False Claims Act (“FCA”).  The jury agreed with Blakeslee’s claims, and awarded him $374,000 in back pay, $72,000 in front pay, $486,000 in noneconomic damages, and another $2.5 million in punitive damages.

Under the FCA, an employee may report fraud on the part of his employer to the government and be entitled to up to 30 percent of the damages the government recovers.  However, the Act also protects from retaliation employees who report their company’s fraud against the government internally.  Under the FCA’s anti-retaliation provision, an employer may not retaliate against an employee because the employee “investigated, reported or sought to stop an employer from engaging in practices which defraud the United States government.”

The OSHA complaint was filed by an employee had more than 30 years of service when he was dismissed from the railroad, having twice received the railroad’s World Class Employee Award.  After the employee reported his work-related injury in December 2010, however, the railroad suddenly charged him with misusing his company vehicle.  Following an investigation, OSHA determined that this charge was used as a pretext to retaliate against the employee for reporting his injury, and that the employee’s explanations as to his use of the company vehicle were reasonable and consistent with his job duties.  Accordingly, OSHA ordered Union Pacific to remove disciplinary information from the employee’s personnel record and pay the employee more than $350,000 in back wages with interest, compensatory and punitive damages.

While an employee reporting a workplace injury may not fit with what most people imagine when they hear the word “whistleblower,” it is critical that railroad employees be able to report injuries without fear of retaliation.  As David J. Marshall, a whistleblower lawyer at the D.C. law firm of Katz, Marshall & Banks, noted in response to another case of FRSA retaliation, “You don’t want a freight conductor who’s in charge of a mile-long train to feel that he has to work with a concussion because he’s afraid of what will happen if he informs his supervisor of his injury.  The law has to protect these workers and the public, who are also placed at risk when railroads fire back at whistleblowing workers.”