Sunday Read: Amicus Briefs
This overview of National Whistleblower Center’s amicus brief filings was sent as part of NWC’s Sunday Read series that aims to educate supporters about whistleblower legislative and policy initiatives. For more information like this, please join our mailing list.
National Whistleblower Center (NWC) is a premier nonprofit organization dedicated to advancing the interests of whistleblowers from around the world. NWC is committed to advancing the interests of whistleblowers in a myriad of ways, including assisting whistleblowers in obtaining legal aid, advocating for greater whistleblower protection laws, and educating the public about whistleblowers’ critical role in safeguarding democracy and the rule of law. Since its founding in 1988, NWC has filed amicus briefs in over a dozen whistleblower cases at both the state and federal level.
These briefs, amicus curiae which is Latin for “friend of the court”, are submitted in cases where the parties have given permission for others to submit information for the court’s consideration. These briefs are most well known in the Supreme Court but can be submitted in other courts as well. Through filing amicus briefs, organizations outside of the litigation can chime in with important insights that help the judge make a more well-informed decision.
In this week’s Sunday Read, we will summarize some of the important amicus briefs which show the continued advocacy NWC is involved in to ensure fair treatment of whistleblowers in United States courts.
Protecting False Claims Act Whistleblowers:
In Cochise Consultancy, Inc. v. United States, ex rel. Hunt, Billy Joe Hunt filed a qui tam action under the False Claims Act (FCA), but the government declined to intervene. The district court dismissed the case because the date Hunt learned of the misconduct exceeded the statute of limitations period. Thus, the issue was when does the FCA’s statute of limitation period begin to toll when the government declines to intervene in a qui tam action. NWC became involved because the defendant appealed the Eleventh Circuit’s holding that the FCA’s limitation period is triggered by the government’s, not the whistleblower’s, knowledge of misconduct. When the case went to the Supreme Court, NWC urged the Court to affirm the Eleventh Circuit’s decision. NWC argued that the statutory text, scheme, and Congress’s intent all evidenced that the FCA’s limitation period is triggered by the government’s knowledge, not the whistleblower’s knowledge. The Court agreed and affirmed the Eleventh Circuit’s decision.
Supporting Law Enforcement Whistleblowers:
In Eller v. Idaho State Police, Brandon Eller sought to recover damages caused by the retaliation he experienced at work after testifying against a fellow police officer. The case focused on whether a whistleblower who is retaliated against and suffers emotional distress may recover non-economic damages under Idaho’s whistleblower law. NWC became involved because it wanted to ensure that Eller and other whistleblowers are fully compensated for the actual damages they suffer and are encouraged to continue coming forward with information even in the likelihood of retaliation. NWC argued that permitting Eller to recover emotional distress would allow him and other whistleblowers to be more fairly compensated for the actual damages suffered and would incentivize other whistleblower to report misconduct. The Idaho Supreme Court agreed that the officer is entitled to recover emotional distress damages and remanded the case to the trial court to consider the impact its decision has on non-economic damages.
Supporting Federal Whistleblowers:
In Day v. Department of Homeland Security, Thomas Day alleged that his employer retaliated against him for whistleblowing. Whether the Whistleblower Protection Enhancement Act applied retroactively to whistleblower cases filed before its adoption. NWC submitted an amicus brief to the Merit Systems Protection Board to support retroactive application of the law. NWC argued that the WPEA applies to all cases as of its date of effectuation because it is a clarifying amendment and federal circuit jurisprudence mandates such. The MSPB held that the WPEA applies retroactively to cases that predate its passage on the theory that the WPEA was merely a clarification of existing law.
Whistleblower Protections for Contractors:
In Lawson v. FMR LLC, Jackie Lawson and Jonathon Zang were retaliated against after reporting their employer’s illicit activities. The case raises the question of whether the SOX Act protects individuals from retaliation if the individuals are employees of a private contractor of a publicly traded company. NWC filed an amicus brief urging the Supreme Court to reverse the First Circuit’s decision, which found that an “employee” under the SOX Act referred only to employees of public companies and did not cover private contractors. In its brief, NWC argued that the plain meaning of the SOX Act protects contractors like the whistleblowers here and that finding otherwise would deter other whistleblowers from reporting misconduct. In reversing the First Circuit, the Court held that the SOX Act covers contractors of a publicly held company.
Whistleblower Protections for At-Will Employees:
In Haddle v. Garrison, Michael Haddle was terminated for testifying against his employer in a criminal trial. This case posed the question of whether at-will employees may sue their employers over firings which allegedly constitute retaliation on the grounds of unfavorable testimony. NWC became involved because the Eleventh Circuit failed to protect Haddle’s right to provide testimony by affirming dismissal of his case on the theory that at-will employees do not suffer enough of an actual injury to state a claim for relief. NWC became involved because the Eleventh Circuit failed to protect Haddle’s right to provide testimony by affirming dismissal of his case on the theory that at-will employees do not suffer enough of an actual injury to state a claim for relief. NWC filed an amicus brief when the case went to the Supreme Court, advocating for Haddle’s right to testify. In its brief, NWC asserted that the Civil Rights Act of 1871 unquestionably protects at-will employees from retaliation as a result of testifying in court proceedings. NWC argued that third-party interference with employment, at-will or otherwise, is prohibited under the CRA given that the right to sell one’s labor gives rise to personal and property rights. The Supreme Court reversed and remanded the dismissal of Haddle’s case, holding that even though a person’s employment contract is at-will, the individual has a valuable contract right and, thus, third-party interference with the at-will relationship can cause the suffer enough of an actual injury to state a claim for relief.
Advocating for Public Employees:
In Butler v. Board of County Commissioners for San Miguel County, Jerud Butler was in court because he was demoted after testifying in a child-custody hearing. The case concerned whether a public employee’s truthful testimony at a judicial hearing qualifies as speech on a matter of public concern and thus protected by the First Amendment. The Tenth Circuit failed to protect Butler’s right to testify by holding that his testimony isn’t speech “on a matter of public concern” and thus unprotected by the First Amendment. NWC became involved when the case went to the Supreme Court and advocated for Butler’s right to testify. NWC argued that providing truthful testimony in a civil proceeding is a matter of public concern and protected under law. The Supreme Court denied Butler’s petition for a writ of certiorari, effectively preserving the Tenth’s Circuit’s decision to dismiss the case — but not creating a precedent that affirmed the decision, leaving room for improvement.
Please Support Our Continued Work:
NWC prioritizes advancing effective whistleblower laws and does so through pairing whistleblowers with attorneys and filing amicus briefs whenever possible. Advocacy for whistleblowers in important cases is still needed. As you can see in Butler there is still bad law that needs to be overturned.
NWC’s advocacy is made possible by the support of our generous subscribers like you. Please consider donating to support NWC’s continuing mission to support whistleblowers in court.
