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Employment Law Litigation

Tough, Aggressive, and Vigorous

Employment Law Litigation

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Silver Spring Whistleblower Claim Lawyer

What is Whistleblowing Regarding the Federal Government?

Whistleblowing is the employee practice of reporting waste, fraud or abuse at a federal agency or at a company who contracts with a federal agency. Whistleblower retaliation is the practice of an employee related to the underlying conduct about which the employee complained taking an adverse action against the complaining employee. Usually, federal employees are not terminated as a retaliatory action; rather they are marginalized, moved to a basement type, isolated office, given no work assignments, thereby encouraging them to quit. For example, in Michael Keegan’s whistleblower case against the Social Security Administration (“SSA”), Mr. Keegan contended that SSA misled Congress in obtaining $500,000,000 for a new computer center building that was totally unneeded. SSA retaliated against Mr. Keegan by investigating him without cause, moving him to an isolated office and removing his supervisory duties. 

What Are Some Major Developments in the Federal Whistleblower laws?

On November 27, 2012, President Obama signed into law the Whistleblower Protection Enhancement Act (WPEA), which provides major upgrade in protection for federal employees reporting on fraud, abuse of power or law breaking witnessed at their agencies. There are two very significant changes in this law. First, the regulations used to require that a federal employee who simply followed his or her own chain of command by reporting said behavior was not protected activity. As such, the federal employee had to go to a third party, outside of the chain of supervision to be protected. The WPEA liberalizes whistleblower protection to include an employee’s chain of supervision. This is a very significant development because many federal employees as a practice would not report fraud, abuse or law-breaking to a third party and believed that telling his or her supervisor about it protected them. That however was not the case. Today it is. Second, a federal employee can now obtain compensatory damages on whistleblower actions.

Federal Contractors Are Now Protected

Originally enacted in 2013 on a trial basis, in 2017, the National Defense Authorization Act (“NDAA”) became a permanent law of the land. The NDAA offers the same kinds of protections to employees of federal contractors who report waste, fraud or abuse and get retaliated against. There is a three year statue of limitations to bring the claim. First, the federal contractor must file a claim with the Office of Inspector General’s office. If that office does not submit a final order within 210 days, the employee can bring his or her claim in federal court. The IG’s office can award reinstatement, backpay, compensatory damages and attorney’s fees.

How Do I Prove Whistleblower Retaliation?

In short, you don’t have to – completely at least. There are three elements to a whistleblower retaliation claim: (1) You have to prove by preponderance of evidence that you made a whistleblower disclosure in that you had a good faith belief that you were reporting waste, fraud or abuse. While you don’t have to put your disclosure in writing, if you don’t, most fact-finders will not find that you met this burden of proof on the first element. As such, always put your disclosures in writing. You may have the most wonderful reasons why you didn’t. Bottom line: if you don’t, most likely, very most likely, you’ll lose. (2) You have to prove by preponderance of evidence that the disclosure was a contributing factor that motivated the employer to take an adverse action against you. The Courts look to two elements. First, did a person about whom you complained take or direct the action. Second, whether that adverse action occured within a reasonable time following the complaint. If the answers to those questions are both “yes”, generally speaking, you’ve satisfied that element.

Once you meet your burden of proof on those two elements, the burden then shifts to the employer, usually the federal agency to prove by clear and convincing evidence, a very high evidentiary standard that it would have taken the same action against you without the complaint. Hence, once you’ve proven the first two elements, in many cases, you’re in really good shape.  

Take Me Through a Typical M.S.P.B. Litigation

With respect to federal employees, these claims are typically filed with the Office of Special Counsel, an office charged with investigating the federal employee’s claim. More often than not, the Office of Special Counsel will issue notice to the employee that (s)he may file the whistleblower complaint with the Merit Systems Protection Board, (“M.S.P.B.”) and an Administrative Law Judge (“ALJ”), a federal employee, will hear the case. The ALJ will then issue an acknowledgement order, an administrative court schedule listing all deadlines for discovery to be initiated and completed.

Discovery is a legal process in which each side to the litigation has an opportunity to demand that certain documents in the other side’s possession be produced. This may be especially helpful to the federal employee, who can compel the agency to produce, for example, all records of communications between various agency officials regarding knowledge of the whistleblower’s complaint. These communications, such as e-mails, can ultimately prove that federal agency officials were well aware of the federal employee’s complaint and that they took action against the employee.

Some ALJ’s will issue something called an “Order to Show Cause” during the litigation in an attempt to dismiss the case for lack of jurisdiction. The employee must tell the ALJ the reasons that the case falls under the province of the M.S.P.B. by demonstrating that the complaints met all of the elements of the whistleblower protection act discussed above. If this occurs, the employee still has to comply with the strict discovery deadlines listed in the acknowledgement order.

Assuming the ALJ does not dismiss the complaint, the case will then go to hearing, a legal procedure much like a trial. However, many of the Federal Rules of Evidence are relaxed. For example, out of court statements made for the truth of the matter asserted, called “hearsay” is generally permitted. Witnesses testify and are cross-examined. Depending upon the particular ALJ, closing statements are either done orally or a legal brief summarizing all of the evidence is filed.

Should the federal employee not prevail at hearing, the employee can appeal his action to the full board of the M.S.P.B. If the full board affirms the ALJ’s decision, the employee can appeal again to the United States Circuit Court for the Federal Circuit, in which a Federal Appeals Court can review the relevant portions of the hearing transcript and can overturn the decision.

Generally speaking, federal agency witnesses, usually supervisors or managers of the protected employee, will take the position that they took the adverse action against the federal employee for some reason other than whistleblower retaliation. Usually, they argue, the employee’s job performance was poor. In some cases, the agency argues that no true danger existed and that the complaining employee of some perceived danger, did so in a rude or non-cooperative manner, thereby attempting to shift the focus of the administrative hearing away from that which the agency did and onto the employee’s conduct.

This is a common defense raised by employers, both public and private, throughout employment law and wrongful termination actions. The employee never should be on trial, despite defense lawyer’s attempts to place him or there. A good part of the litigation battle in employment law cases consists of capturing the fact finder’s attention onto the employer.

Do I need an employment lawyer to represent me in a whistleblower claim?

It’s not required by law, but litigating against the United States federal government has many pitfalls. The employee is literally fighting the modern day Roman Empire. They have skilled soldiers with knowledge of all legal traps inherent in the system against the employee. Having an employment lawyer concentrating in this field will greatly help minimize the great advantage the government has in these kinds of cases. Even Goliath had a spot between his eyes that was unprotected. A good employment attorney should be able to focus the case onto the points in which the government is especially weak.

We invite you to contact our office and discuss your whistleblower case.  At our consultation, we will speak with you about your particular situation and develop a litigation strategy that we can implement right away.