Sunday Read: NWC and SCOTUS
It is an exciting time at the National Whistleblower Center (NWC). While we excitedly prepare to attend the UN’s CoSP10 next month and continue our pursuit of environmental justice, we are overjoyed to announce that NWC Executive Director Siri Nelson was sworn in as a member of the Supreme Court Bar. Nelson joins NWC Chairman Stephen Kohn in this special achievement.
Though this is a time of year when many organizations are winding down, this development has reenergized the NWC as we are uniquely positioned to have an even stronger impact on the legal landscape. NWC now enjoys twice as much access to the Court, which means more availability to submit amicus curiae briefs and even present arguments.
In this Sunday Read, we will explore the effectiveness of amicus briefs, how they further the NWC mission and also strengthen the legal landscape.
An Overview of Amicus Curiae
You may have seen the term amicus curiae or “amicus briefs” mentioned in news coverage of major cases. It is not a phrase to be glossed over, as it can play a significant role in major decisions.
Amicus curiae translates from Latin to “friend of the court.” It is an individual or organization who is not a party to a legal case, but is permitted to assist by offering information, expertise, or insight that has a bearing on the issues. The decision on whether to consider an amicus brief lies within the discretion of the court, which in this case, is the highest court in the land.
NWC has a proud legacy of submitting amicus briefs when whistleblower issues are a factor in Supreme Court cases. Since its founding in 1988, NWC has filed amicus briefs in more than a dozen whistleblower cases at both the state and federal levels. This advocacy is critical to stopping disastrous decisions.
Now that Nelson has been admitted to the Supreme Court Bar, she can act as counsel of record for briefs submitted by NWC. Further, her amicus briefs will be submitted with the unique level of credibility designated for other lawyers admitted to this level.
“Working on Constitutional issues has been on my agenda since I initially decided to pursue a career in the law and I look forward to advocating for whistleblower rights before the highest court in the land,” Nelson said last week.
A High-‘Valu’ Amicus Brief in 2023
In February 2023, NWC submitted an amicus brief to the Supreme Court in United States ex rel. Schutte v. SuperValu Inc.
In Supervalu, the Court heard consolidated cases regarding pharmacies overbilling Medicare and Medicaid, which are government programs. These cases explored whether or not an entity or individual “knowingly” submitted false claims if it acted based upon a reasonable, though incorrect, interpretation of the law.
This put the sole purpose of the False Claims Act (FCA) under review, which is the cornerstone of whistleblower law. NWC filed an amicus curiae brief with SCOTUS in an effort to preserve the intent of the law.
“The U.S. Court of Appeals for the Seventh Circuit incorrectly interpreted the False Claims Act’s scienter requirement,” the brief stated. “If the Seventh Circuit majority’s interpretation of the role of subjective intent in demonstrating that a contractor acted ‘knowingly’ is affirmed, the plain meaning and original intent of the False Claims Act will be completely undermined and whistleblowers, who have driven the success of the False Claims Act, will be discouraged from taking the great risks they face when reporting fraud.”
On June 1, 2023, the Supreme Court issued the landmark decision in SuperValu and unanimously held that liability under the FCA depends on a defendant’s subjective belief as to whether a claim was false, and not what an objectively reasonable person may have known or believed.
The decision eliminated a popular FCA strategy defense whereby defendants could use to move for dismissal of the action or for summary judgment if they could show that an objectively reasonable person would not have known the claim was false, regardless of the defendant’s intent.
While it remains unknown how much influence the NWC’s amicus brief — as well the shared view in Sen. Chuck Grassley’s (R-IA) amicus brief and other advocacy groups — had on the Supreme Court’s decision, it is reasonable to assume they took note of our enthusiasm and urgency.
NWC SCOTUS Amicus Briefs
As mentioned above, NWC has filed several amicus briefs before the Supreme Court in precedent-setting whistleblower cases. These briefs have touched on important aspects of federal whistleblower laws including the FCA, Dodd-Frank Act, and Sarbanes-Oxley Act (SOX). Below is a partial list of prior NWC amicus briefs submitted to the Supreme Court.
In this case, the Supreme Court addressed whether relators should rely on the statute of limitation in the FCA when the government declines to intervene.
The Supreme Court addressed who is considered a whistleblower with protections of anti-retaliation provisions under the Dodd-Frank Act.
The Supreme Court upheld a whistleblower’s claim and affirmed the “implied certification theory” of liability under the FCA.
In Lawson v. FMR LLC, the Supreme Court addressed the First Circuit Court’s misconstrued interpretation of SOX to deny protection to the employees of contractors of publicly traded companies.
“Filing amicus briefs before the Supreme Court is a key way that NWC engages in advancing whistleblower rights,” Nelson said last week. “I am excited to further our work in this hugely consequential area.”
For more information about the cases mentioned above and an even broader list of NWC amicus briefs spanning all jurisdictions, visit here.
Support NWC
NWC fights to raise awareness about effective whistleblower laws and inform courts about thee impacts of their decisions through amicus briefs. As a 501(c)(3) non-profit our awareness building work is made possible with the support of our generous donors. Please consider donating $50 today to support future amicus briefs and our continued efforts in protecting critical laws like the FCA.
This story was written by Justin Smulison, a professional writer, podcaster and event host based in New York.
