... is for good men to do nothing.
Retaliation Against Non-Physicians - Janet Chandler
certiorari to the united states court of appeals for the seventh circuit
No. 01-1572. Argued January 14, 2003--Decided March 10, 2003
"The fraud in this case allegedly occurred in administering a $5 million grant from the National Institute of Drug Abuse to Cook County Hospital, owned and operated as the name implies, with the object of studying a treatment regimen for pregnant drug addicts. The grant was subject to a variety of conditions, including the terms of a compliance plan meant to assure that the study would jibe with federal regulations for research on human subjects. Administration of the study was later transferred to the Hektoen Institute for Medical Research, a nonprofit research organization affiliated with the hospital. Respondent, Dr. Janet Chandler, ran the study from September 1993 until the institute fired her in January 1995.
In 1997, Chandler filed this qui tam action, claiming that the County and the institute had submitted false statements to obtain grant funds in violation of §3729(a)(1).3 Chandler said that the defendants had violated the grant's express conditions, had failed to comply with the regulations on human-subject research, and had submitted false reports of what she called "ghost" research subjects. Chandler also alleged that she was fired for reporting the fraud to doctors at the hospital and to the granting agency, rendering her dismissal a violation of both state law and the whistle-blower provision of the FCA, §3730(h).4 The Government declined to intervene in the action.
The County moved to dismiss the claims against it, arguing, among other things, that it was not a "person" subject to liability under the FCA.5 The District Court denied the motion, reading the term "person" in the FCA to include state and local governments. United States ex rel. Chandler v. Hektoen Institute for Medical Research, 35 F. Supp. 2d 1078 (ND Ill. 1999). The Court of Appeals dismissed the County's interlocutory appeal, and we denied certiorari. 528 U. S. 931 (1999). After Stevens came down, however, the District Court reconsidered the County's motion and dismissed Chandler's action. Although the court found "no reason to alter its conclusion that the County is a 'person' for purposes of the FCA," it held that the County, like a State, could not be subjected to treble damages, which Stevens, 529 U. S., at 784, described not as "remedial" but as "essentially punitive." 118 F. Supp. 2d 902, 903 (2000). The Court of Appeals, in conflict with two other Circuits,6 distinguished Stevens and reversed, 277 F. 3d 969 (CA7 2002). We granted certiorari, 536 U. S. 956 (2002), and now affirm the Court of Appeals."
Last year's corporate scandals made heroes of corporate and government "whistleblowers" who reveal illegal conduct. Indeed, Time Magazine chose as its Persons of the Year for 2002 three such whistleblowers - Cynthia Cooper of WorldCom, Coleen Rowley of the FBI, and Sherron Watkins of Enron.
Interesting, each woman's whistleblowing was directed, at least initially, to the organization to which she belonged. Cooper told WorldCom's board that the company's bookkeeping had wrongfully covered up billion-dollar losses. Rowley wrote a post-9/11 memo to FBI Director Robert Mueller faulting the bureau's response to her field office's request for an investigation of Zacarias Moussaoui. Watkins wrote a letter to Ken Lay decrying accounting impropriety in 2001. (The letter was later disclosed in Congressional hearings, but was not written for that purpose.)
What has received less attention, however, is another road that whistleblowers can take in certain circumstances. Instead of complaining internally, they can sue secretly. And if they win, they can get up to 30 percent of the judgment, as well as compensation for the costs of suing.
This other kind of whistleblowing was the subject of the unanimous Supreme Court decision in Cook County v. United States ex rel. Chandler, issued on March 10. That decision made clear that whistleblowers who sue under the False Claims Act can go after not only private companies who lie to the feds, but also counties that do the same.
The False Claims Act (FCA) is a federal civil statute. It imposes liability on "[a]ny person" who "knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval." Basically, it says it's illegal for anyone to cheat the government out of money.
The whistleblower in the Cook County case, Dr. Janet Chandler, claimed that the county hospital where she worked had defrauded the government of a $5 million grant. She alleged that the hospital did so by violating the grant's governing conditions and regulations, and also by submitting false reports of "ghost" research subjects. (Dr. Chandler also alleged the hospital had illegally fired her for reporting these facts to other doctors there, and to the government agency that had issued the grant.)
Under the FCA, the government can sue on its own behalf. But obviously, the government won't always know when someone is trying to cheat it For this reason, the FCA also allows whistleblowers to sue on behalf of the government.
It works this way: The whistleblower files his or her suit, which is kept under seal for 60 days; only the Justice Department and the court are informed of its existence. Then the Justice Department decides whether to intervene and litigate the suit for itself.
If the Justice Department does decide to litigate, then the whistleblower (known, in legal parlance, as the "qui tam relator") can still get 15-25 percent of the judgment or settlement, depending on how much the whistleblower helps out along the way. If it does not decide to litigate, then the whistleblower can go it alone and try to get 25-30 percent. (There's one exception: If the court determines it was actually the government's or media's information, not the whistleblower's, that prompted the suit, then the whistleblower gets from 0-10 percent.) The whistleblower can also get reasonable expenses, costs, and attorney's fees.
How much is the judgment or settlement likely to be? Under the FCA, the judgment will be a civil penalty of $5,000-$10,000 for each violation; double damages if the defendant is cooperative, and treble damages if not; plus the costs of litigation.
All this may seem very strange at first glance. If the hospital did indeed defraud the government out of $5 million, as Dr. Chandler claims, and it has to pay the full judgment, then it will have to pay the penalties, plus $10 million if it cooperates, or $15 million if it does not. Dr. Chandler would then be entitled to 30 percent of this amount - which could come to more than $3 million.
Arguably, yes. First, remember that due to the double/treble damages penalty, if the full judgment is paid, then the government is going to get its $5 million back no matter what, since Dr. Chandler's amount can come out of the extra created by the doubling or tripling. In addition, remember that Dr. Chandler will only get the money if fraud is proven, and that without her, that proven fraud never might have been discovered. Her career may also have been hurt, as she was fired for her initial whistleblowing to the other doctors.
Finally, if the double/treble damages remedy -which allows both the government and the whistleblower to be paid - seems extreme, remember that we're dealing with conduct done "knowingly." The FCA targets not sloppy bookkeeping, but outright fraud designed to accomplish what is, for all intents and purposes, theft.
First, it may not really be a windfall. Though Dr. Chandler happened to be in a position to discover the alleged fraud, she did not merely happen to be the person to blow the whistle - if indeed her allegations are correct, she was the one who was courageous enough to do so.
Second, there are other legal contexts - most notably, that of punitive damages - in which the law allows the plaintiff a windfall to create incentives to punish wrongdoers. As a result, a plaintiff who has suffered a modest injury as a result of extreme corporate wrongdoing may end up taking home millions in punitive damages, beyond the compensatory damages that are calculated to address the plaintiff's actual injury.
While some jurisdictions have capped punitive damages, and courts may strike down huge disparities between punitive and compensatory damages, punitive damages still remain part of our system. That's because society has judged that making sure the defendant gets its just deserts is more important than worrying about whether the injured plaintiff wins too great an award.
The same logic can be used to justify giving Dr. Chandler a large award if she wins her case. After all, think of how much good Cooper and Watkins did for the country. In addition, think of how much more good they might have done if they had been able to come forward earlier than they did, and to sue. (Indeed, if WorldCom or Enron had had any federal contracts on which they misrepresented their financial status, then Cooper or Watkins might have been able to use the FCA itself.)
This "Circuit split" made it appropriate for the Supreme Court to resolve the case. Thus, it was not surprising that the Court took the case. But it was surprising, I believe, that the Court resolved it 9-0.
The Court's conservative Justices are famous for not being big fans of lawsuits against the States. For somewhat similar reasons, they're not big fans of lawsuits against municipalities either. Indeed, it might even be fair to say that they are not big fans of civil plaintiffs generally. This question was obviously one on which reasonable minds could differ; after all, two Circuits had ruled the other way. So why wasn't it a split decision at the Supreme Court?
The answer may be that Justices are people, too, and that the hard-earned lessons of 2002 weren't lost on them either. Without whistleblowers, the government may not ever know anything is wrong - or if it does, may learn after it is too late, when catastrophe can no longer be averted. For instance, if a corrupt company defrauds both the government and others, then goes bankrupt, the money may never be able to be fully recovered. Whistleblowers ensure that wrongdoing, negligence, or shady practices are discovered before it is too late.
Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her forthcoming novel Three will be published in the U.S. in August 2003 by Plume Books, in the U.K. by Bantam, and in French translation by Actes Sud. Her earlier column on another kind of whistleblower - the employee who writes a books about his employer - may be found in the archive of her columns on this site.
Whistleblowers May Have a Friend in the Oval Office
While Barack Obama's election victory led millions of Americans to cheer and shout, a much smaller group of government watchers had reason to blow their whistles.
Whistleblowers in the federal government and those who work to protect them see a longtime friend in the next president.
"Attorney Obama and Senator Obama and candidate Obama and President-elect Obama have all supported whistleblower rights," said Adam Miles, the legislative representative for the Government Accountability Project, a public interest group that bills itself as the nation's leading whistleblower organization.
Obama's whistleblower trail starts before his days in public office.
When he was an associate with the Chicago firm of Miner Barnhill & Galland, Obama was among those representing Janet Chandler, a psychologist who charged Cook County Hospital with lying about the results of a federally funded program that served pregnant women on drugs.
The settlement resulted in money being returned to the government.
As a senator, Obama supported legislation that would increase whistleblower protection. Versions of that measure remain before Congress.
As a presidential candidate, he endorsed whistleblower protection legislation in the House that is stronger than the bill he voted for in the Senate.
President-elect Barack Obama has continued along this track. His transition Web site says:
"We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process."
Whistleblower protection advocates expect he'll have the chance to move from campaign promise to presidential performance early in his administration. "Extending serious protections for whistleblowers in the first 100 days is possible under the Obama administration," said Danielle Brian, executive director of the nonprofit Project on Government Oversight.
There's a good chance final legislation will pass because similar versions passed separately in the House and Senate last year. However, there's no guarantee for such action in the first 100 days.
The legislation would strengthen the 1989 Whistleblower Protection Act. It was designed to protect government workers who blow the whistle on government wrongdoing, but it has been weakened by court decisions.
One obstacle to passage of a stronger act should disappear next month when President Bush leaves office. In a letter to Congress last year, Attorney General Michael B. Mukasey said the legislation is "burdensome, unnecessary and unconstitutional. Rather than promote and protect genuine disclosures of real public concern [the bill] would provide a legal shield for unsatisfactory performance and behavior by federal employees."
Mukasey underlined the last sentence in the first paragraph of his letter. It warned that the president's "senior advisors would recommend that he veto the bill."
That's not likely the advice Obama will get from his advisors.
When Rahm Emanuel, Obama's incoming chief of staff, was a congressman, his office released a list of government workers who "lost their jobs in the Bush administration for telling the truth."
An Emanuel press release said "one of our most important weapons against waste, fraud and abuse . . . is federal whistleblower protections."
And in September, the co-chair of Obama's transition team, John D. Podesta, testified in favor of stronger whistleblower protections. Podesta spoke in his role as president of the Center for American Progress Action Fund.
Whistleblower Robert MacLean, a former air marshal, wants Obama to issue an executive order that "would send a loud message" that his "administration will not tolerate reprisal against those who expose wrongdoing."
There are no signs Obama is planning such an order, but there is plenty of evidence to make whistleblower advocates think the future for their issue will be better than its past. They take comfort in the words coming from Obama's transition team:
"Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled."
Contact Joe Davidson at email@example.com.