Thursday, March 6, 2008

Whistle-Blowing in the Wind

"Complaining that recent court rulings were thwarting efforts by citizens to report fraud against the government, members of a Senate committee said on Wednesday that they wanted to work with the Justice Department to undo some of the harm they thought the courts had caused. ... In one such case, filed against Bombadier Corporation, the would-be-whistle-blower was rejected because the organization said to have been a victim of fraud--Amtrak--was not a government agency. ... In another case, a jury found that an American military contractor, Custer Battles, L.L.C., had committed fraud in connection with a contract to help distribute new currency in Iraq, and returned a $10 million verdict against it. But the judge threw the verdict out, saying the whistle-blower law covered only fraud involving American money, and the funds at issue in the Custer Battles case were Iraqi. ... But one whistle-blower, Tina M. Gonter, testified that she was concerned that court decisions like the one in the Bombadier case could be expanded into a liability shield for subcontractors, letting them 'hide behind the skirts of prime contractors'. ... But even as the recoveries have mounted the [DOJ] has fallen further and further behind on its caseload. More than a thousand whistle-blower suits are languishing under seal at the [DOJ], and almost nothing is publicly known about the cases. 'In light of the Bush Justice Department,' Senator Leahy said, 'many wonder whether it has resisted pursuing certain False Claims cases for political reasons, most notably involving contracting fraud related to the war in Iraq and Afghanistan.' ... Michael F. Hertz [MFH], deputy assistant attorney general for the department's civil division ... said that the [DOJ] would oppose on principle any provision that would let government officials sue contractors on the basis of information they collected in the ordinary course of doing their jobs. That, he said, would undermine the public's trust in the government", Mary Williams Walsh at, 28 February 2008.

MFH, don't insult our intelligence. Letting government officials "sue contractors .... would undermine the public's trust in government". Or would it expose whether or not the Bush DOJ is an extortion racket? A judge overturning a jury verdict screams out for changed civil procedure, no more JNOV. Under any circumstances. If a judge wants to grant it, let him beg the jury to reconsider its verdict. If it won't and he can't sign the verdict, let him resign from the bench and let the jury foreperson sign it. JNOV undermines Seventh Amendment. If the judge felt as he did, why did he waste the jury's time and let the case proceed? Was he gambling the jury would "see it his way" and hold for Custer Battles (CB)? Or is he soliciting a job for a relative with CB's law firm?


Bill Pickering said...

The concept behind your comments is right on target, although I'm not sure having government officials involved in civil lawsuits wouldn't open up an additional can of worms.

By the way, the Custer Battles case was not a JNOV (as often reported in the press). It was a Rule 50A motion, which as you know is decided by the judge BEFORE a verdict is rendered, and based solely on the legal merits of the case, not the factual issue. In this case, the Judge did not publish his argument until well after the verdict, thereby causing quite a bit of unneeded controversy.

Independent Accountant said...

We have a can of worms now. Today the DOJ can do or fail to do anything and the public has little if any recourse. Letting the public sue AUSAs might open the can. As Louis Brandeis wrote in 1914, "sunlight is often the best disinfectant".
I did not know the judge granted a rule 50A motion. So what? I think it really was a JNOV which the judge called a 50A. If there was no case as a matter of law, the judge should have dismissed early under I believe it's a 12b-6 motion.
If the judge let the jury deliberate, I say: the judge perpetrated a "fraud on the jury". The judge published his argument AFTER the verdict. THINK ABOUT THAT! Since when does a judge grant a motion for lack of evidence, if that was his REAL basis? The judge is not to weigh the evidence. The judge "whipsawed" this jury suddenly finding law to dismiss. CRAP!. By letting the case go to the jury the judge should be estopped from granting this motion. He got a verdict he didn't want. How do you know WHEN the judge "decided" the legal merits of the case? I don't think there is such a thing. If the Supremes can issue decisions like Kelo and Stoneridge, what can this mean? I say throw this clown off the bench.
It's time jurors created a website to disclose this stuff. If enough people refuse to serve on juries under these black-robed dictators they may be forced off the bench.

Bill Pickering said...


I love your passion and think you are right on the money in your ideals. However, as an attorney in federal court, I can tell you that the "justice" system does not work the way you would like. Judges routinely allow the jury to return a verdict, as Ellis did in the case, even when they know for certain they will dismiss the case at Rule 50A (which, as you correctly pointed out, should be done PRIOR to the verdict). Judges do this in an effort of expediency in the event their ruling is overturned on appeal they will not have to try the case over again.

I've watched the Custer Battles case very closely, and there was never any real doubt that the law was clearly on the defendants' side, and frankly there was a lot of rhetoric but very little evidence.

While it's not right, this is unfortunately how our justice system works when you factor in budgets and judges' time.

Independent Accountant said...

I agree, the "Justice System" does not work the way I want. I think it works the way the "Crits" claim, i.e., "right is the interest of the stronger". You say the law was on CB's side. If so, the judge should have immediately granted a 12b-6 motion and dismissed. Instead he made the plaintiffs waste money on a trial. Why? Who is he really working for?
Your opinion of the evidence means nothing to me. A judge is to neither weigh nor assess the credibility of evidence. That is for the trier of fact.
As for the strength of evidence, did you know 97% of federal criminal convictions are sustained on appeal? I've seen criminal convictions for conspiracy to distribute controlled substances sustained on three, yes, three pieces of circumstantial evidence, i.e., one phone call and two meetings! This under a "beyond the reasonable doubt standard".
I don't know how many times I've read cases where the circuit courts of appeal say, "harmless error", sustained. And, "we are not to weigh the evidence nor assess its credibility", sustained. And my favorite, "while we would not have convicted had we been the trier of fact, under Jackson v. Virginia's test, i.e., could any reasonable jury have convicted", sustained.
Having read 10,000 cases, 800 law review articles and 150 law books, I agree with you, law as practised ain't Perry Mason (PM)(1957-66) on TV. For the record, I was first exposed to PM on 21 September 1957 at 7:30 PM on channel 2 in NY. My father was an attorney and he would point out things in the show that one viewer in 1,000 might notice. Like: Hamilton Burger, mythical Los Angeles County DA was scrupulous in giving exculpatory evidence to defense attorneys. My father would say, "Number One, that's what's supposed to happen, but rarely does". I note Brady v. Maryland came out in 1963! So? Law is chaos and arbitrary. Just what Oliver Wendell Holmes said.
You write, "I love your passion". What does that mean? I've been a juror four times. I've conducted fraud investigations and helped send real criminals to prison. I've had lawyers ask me evidential questions so many times, it bores me. Of course, I am that one layman in 10,000; 100,000; who has his own copy of Wigmore. Wigmore? Yes, Wigmore. Wigmore may be "dated" but he makes you think.
While many lawyers would like to convince the laity that law is say, quantum mechanics and not accessible to many, that's nonsense. We say to an accused, "Every man is presumed to know the law".
How many Richard Posners (RP) sit on the bench? The ABA said RP was "unqualified" when he was nominated to the 7th circuit. So? I don't care what the ABA thinks either. The ABA said Robert Bork was unqualified to be a Supreme! I may disagree with many of Bork's position, but Bork unqualified? Does one Supreme compare favorably to RP? For that matter, do all nine combined? As long as lawyers can operate in the dark, the law as practised will continue to be what I preceive to be a racket. You might read Fred Rodell's 1939 classic, "Woe Unto You Lawyers". It expresses my experience with the law and lawyers quite well.
I've seen judges who didn't know Hornbook law! Really, they apparently hadn't read Prosser on Torts! Enough. We can agree to disagree.

Anonymous said...

What is sad is that the DOJ will forego prosecuting a rock solid case simply because the relator/plantiff is a government employee.

The law itself has no provision at all excluding government employees so it is completely inappropriate for these judges and DOJ personnel to interject their personal beliefs in determining what they will and will not prosecute.

This is a recurring practice by Federal Judges - if they don't like the verdict then they reverse it on a technicality. I agree "why waste everyone's time"

If government employees can demonstrate that they attempted to report the fraud in the course of their duties and that their management did nothing then they should be free to recover the fraud damages just like anybody else. If not then very simply the taxpayer LOSES!. What possible adverse can of worms could possibly result from such a policy?

Independent Accountant said...

I disagree with you as to why the DOJ does not pursue cases like those you have in mind. If the proposed defendant is a large corporation, the DOJ will jump through hoops of fire to avoid pursuing it, no matter who is the relator. Yes, federal judges reverse jury verdicts they don't like. Must they? 97% of federal criminal verdicts are sustained on appeal, and the cry is "harmless error", anything goes in federal court today. Look at the Supreme's recent Exxon decision. I read the decision and saw no basis in law for it. So?
The "possible adverse can of worms" is the limitation of future employment prospects for the AUSA who was unable to quash the complaint.