Federal appeals court upholds secrecy provision of whistleblower law

News

Federal appeals court upholds secrecy provision of whistleblower law

March 29, 2011 10:58:20 am

[JURIST] The US Court of Appeals for the Fourth Circuit [official website] dismissed [opinion, PDF] a claim led by the American Civil Liberties Union (ACLU) [advocacy website] upholding secrecy provisions of a federal whistleblower law. The case involved the Civil War-era False Claims Act (FCA) [text], which includes provisions authorizing private citizens, dubbed qui tam relators, to sue on behalf of the US accusing federal contractors of fraudulent claims against the government. The ACLU, together with the Government Accountability Project (GAP) and OMB Watch [advocacy websites], brought a facial constitutional challenge against the secrecy provisions of the the FCA that require the complaint to be sealed for up to 60 days so the government can decide whether to intervene and allow the government to move the court for extensions. The groups argued the provisions violate the First Amendment by infringing on the public’s right of access to judicial proceedings and the qui tam relators’ right to speak about their complaint, and that mandatory sealing strips the courts’ inherent ability to decide whether to seal on a case-by-case basis. The appeals court, in a 2-1 decision, held that, even assuming the First Amendment right of access applies to qui tam actions, the sealing provisions address a compelling government interest of protecting the integrity of such proceedings and that the provisions were narrowly tailored to address issues in modern fraud allegation claims. The court further held the FCA provisions do not intrude on judicial self-administration. One judge dissented, arguing “transparency remains central to combating waste and fraud…” and “the Government fails to justify its First Amendment infringement with compelling interests and narrow tailoring.” According to the opinion, since 1986, qui tam relators have filed helped the Department of Justice return over $27 billion to the US under the FCA.

Last year, the US Supreme Court [official website] ruled [JURIST report] 7-2 in Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson [Cornell LII backgrounder; JURIST report] that whistleblowers cannot bring suit under the FCA to recover misspent government funds if the information used in the lawsuits came from state or local agencies’ reports or audits. The suit arose out of public record documents that detailed a failure to obtain bids for the clean-up and reconstruction of storm-damaged portions of North Carolina. The ruling could potentially bar thousands of lawsuits by whistleblowers. However, Congress recently changed the language of the statute [SCOTUSblog report] as part of the health care reform bill [HR 3590 materials] signed into law [JURIST report] in March 2010.

Martin Luther King Jr. wrote his Letter from Birmingham Jail

On April 16, 1963, an incarcerated Martin Luther King, Jr. (arrested for demonstrating in defiance of a court order) wrote his Letter from Birmingham Jail in response to a published statement by eight fellow clergymen from Alabama.

Part of the letter read: We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. Read the full text of the Letter.