Two recent decisions have limited the rights of whistle blowers. Various laws have been passed in Congress and states to encourage reporting fraud and illegal conduct as beneficial to the tax payers. Unfortunately, the U.S. Supreme Court has written opinions which limit the effectiveness of the federal laws.
The United States Supreme Court, in a six to two vote, has restricted the ability of whistle blowers to share in recoveries under the U.S. False Claims Act. Under the False Claims Act a private individual with knowledge of past or present fraud committed against the U.S. Government can sue on behalf of the government for the fraud. These suits are known as qui tam lawsuits from a Latin phrase which means ‘he who sues for the king as well as for himself" The Act provides for payment of a percentage of the recovery to the person providing the information or bringing suit. The Act allows the government to intervene in any suit of this kind. Since 1986 some $11 Billion dollars as been collected by the government under the Act.
The Act allows whistle blowers to sue on behalf of the federal government and then share in any recovery made as a result of their efforts. However, retired engineer James Stone was not allowed to share in a $4.2 million award he and the government made against Boeing Rockwell unit in Chicago obtained as a result of his efforts. Stone sued the company alleging it had made false statements regarding environmental health and safety issues. The government joined in the lawsuit he had filed and obtained the recovery.
But, Justice Scalia’s opinion created a distinction that the whistle blower must be the "original source" of the information about wrongdoing. It held that the information that went to the jury was not based on facts he had supplied, but which was developed after the lawsuit was filed so he wasn’t entitled to share in the recovery in spite of his efforts. Senator Charles Grasslley (R-Iowa) a supporter of whistle blower claims, said:
"The Supreme Court has made it even more difficult to get to the bottom of waste, fraud and abuse of taxpayer money"
The president of an advocacy group Taxpayers Against Fraud Education Fund said "No whistle blower can afford to pursue a case to resolution under these circumstances."
In another case, the U.S. Supreme court, in a five to four opinion, has held that a deputy prosecuting attorney in Los Angeles was not constitutionally protected from retaliation by superiors for making public information about activities within the office. Justice Kennedy’s opinion made a distinction between public employees statements "pursuant to their official duties" and those made as citizens in "the civic discourse." The first is not protected by First Amendment rights of free speech and the second has "the prospect of constitutional protection" according to Kennedy’s opinion.
The successful packing of the U.S. Supreme court by the Bush Administration of ultra conservative appointees has resulted in these kinds of decisions. Given the fact the Supreme Court justices are appointed for life and are next to impossible to remove from their judicial positions we can expect a continuing series of opinions which reflect the conservative views of this court to the disadvantage of the American people.