Yesterday, the Fourth Circuit U.S. Court of Appeals in Richmond, Virginia, overruled a petition for rehearing filed by the American Civil Liberties Union (ACLU), OMB Watch, and the Government Accountability Project (GAP). By rejecting the petition for rehearing, the Fourth Circuit again saved America’s most effective whistleblower law, the False Claims Act (FCA). I reported here how on March 28, 2011, the Fourth Circuit affirmed the dismissal of the ACLU, OMB Watch and GAP lawsuit that sought to declare the FCA’s “seal” provision unconstitutional. I explained:
The decision is a victory for whistleblowers who depend on the seal provisions to protect themselves from retaliation and to preserve evidence that might be destroyed if fraudsters learn of the impending government action against them.
On April 5, 2011, the National Whistleblowers Center (NWC) issued an open letter to the ACLU, OMB Watch and GAP urging them not to appeal. The letter asked these groups to open a dialog about “issues dear to us all.” It adds:
If ACLU v. Holder proceeds and limits the protections of the FCA seal, it will do irreparable harm to the success of the FCA. In turn, it will further discourage whistleblowers from coming forward.
The ACLU, OMB Watch, and GAP never answered the invitation to talk. On May 10, 2011, they filed a petition for rehearing. Yesterday, the full Fourth Circuit rejected that petition. Not a single judge asked for a poll — the initial step in considering a petition for rehearing. This decision starts the 90-day window in which the three groups can decide whether to appeal to the U.S. Supreme Court.
NWC’s offer to talk is still open. Our open letter explains why the FCA’s seal provision is so important to protect whistleblowers and encourage them to expose frauds. In the historic struggle between whistleblowers and the corporations who enrich themselves through fraud, the three groups are advancing the interests of the corporate fraudsters. Please join with us in calling on these groups to accept the Fourth Circuit’s decision and let the FCA continue to serve the public interest as America’s most effective whistleblower law.
