Docket Number: 
No. 16-1805
United States Court of Appeals for the Fourth Circuit
MWELA Amicus by Richard R. Renner and Erik D. Snyder
Filing Date: 
October 6, 2016

By focusing on the circumstances of the Appellant’s disclosure, rather than its content, the District Court falls into the same trap as other courts that have interpreted whistleblower protection statutes.1 The plain language of the American Reinvestment and Recovery Act (“ARRA”), Pub. L. 111-5, Section 1553; 48 C.F.R. § 3.907, and sequence, and the federal False Claims Act (“FCA”), 31 U.S.C. §3730(h), clearly state the kinds of disclosures that are protected by each law. ARRA protects disclosures that an employee reasonably believes is evidence of gross mismanagement, gross waste, a danger to public health, an abuse of authority, or a violation of law, rule or regulation, related to money provided by ARRA. The FCA protects all “lawful acts . . . in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.” Neither law limits protection in any way to the circumstances under which the disclosure is made or action is taken.

Unfortunately, this is exactly what the District Court has done. An analysis of whether an employee is protected by ARRA or the FCA must begin and end with whether the employee has satisfied the statutory requirements for protection. By making protection contingent upon the employment relationship between the employee and the subject of his disclosure, the District Court has moved the goalposts and added an additional element that is present in neither the statutory language, nor the legislative history of either law. This sets a dangerous precedent that is sadly familiar to those who regularly represent whistleblowers. The most poignant example of this danger is the trials and tribulations of the federal whistleblower protection act (“WPA”), 5 U.S.C. § 2302(b)(8). Like ARRA, the WPA protects disclosures that an employee reasonably believes is evidence of gross mismanagement, gross waste, a danger to public health, an abuse of authority, or a violation of law, rule or regulation, except that the WPA applies to disclosures about actions taken by the federal government or government contractors. Since its inception, the protections of the WPA have been systematically eroded by court-created limitations. The District Court’s opinion is just such a limitation.

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