When Joel D. Hesch learned that a whistleblower was asking the U.S. Supreme Court to overturn dismissal of his federal retaliation suit in which the whistleblower alleged he had been fired for reporting his employer for committing fraud against the government, he jumped right in and obtained permission to file an amicus curiae brief (known as “a friend of the court” brief). Mr. Hesch filed the brief to urge the Supreme Court to take this case because the lower courts failed to recognize the dilemma a whistleblower faces when facing a counterclaim or on ongoing state proceeding while a government fraud case is still under seal.
Joel Hesch pointed the Court to his recently published a law review article that had proposed a standard for courts to apply in this type of context. In this case, the whistleblower had faced a Hobson’s choice between (1) breaking the federal requirement not to reveal a government investigation while fraud allegations were still under seal and (2) lying in a state arbitration proceeding about his activities relating to gathering evidence to give to the government as part of reporting fraud. While the whistleblower’s federal retaliation case was pending but still under seal, a state arbitration proceeding was also taking place. During the state proceeding, the whistleblower employee was asked questions about certain emails he sent to his employer using a fake name. Because he felt that telling the truth would reveal the sealed federal case, the employee chose to lie and not reveal his involvement in reporting the fraud. Although the federal government later recouped millions of dollars from the company based upon the employee’s allegations, a court ruled that the whistleblower could not pursue his federal retaliation case any further based on issue preclusion because the state arbitration proceeding did not contain any findings of retaliation.
Although the whistleblower was not his client, because of the injustice and due to the fact that the courts were using the wrong standard when addressing federal whistleblowers, Joel D. Hesch chose to file an amicus brief. In doing so, Mr. Hesch informed the Supreme Court how Congress intended that the federal False Claims Act to protect whistleblowers when reporting that their employers are committing fraud against the government. Mr. Hesch went on to explain that this federal statute creates what he coined a “zone of protection” that shields whistleblowers from causes of actions or proceedings arising from reasonable activities during the process of investigating or reporting fraud against the government. Although the Supreme Court only accepts 100 cases a year, Mr. Hesch urged the Supreme Court to take this case in order to establish a proper framework for courts to follow when an employer seeks to bring an action against a whistleblower or when there are other legal proceedings pending that may impact the whistleblower’s rights.
In his brief, Joel D. Hesch also explained that he was offering his scholarship and unique experiences with the False Claims Act to aid this Court in establishing a standard for evaluating the zone of protection that the False Claims Act provides to address claims against federal whistleblowers who act in conformity with the unique qui tam provisions of the False Claims Act. Specifically, he informed the Court that he is an expert on the False Claims Act and pointed out that he is an author of two whistleblower books and several scholarly articles relating to the False Claims Act, including a recent law review article advancing that the False Claims Act creates a zone of protection for whistleblowers. Professor Hesch has been previously authorized to submit another amicus brief in a different False Claims Act case before this Court. From 1990 to 2006, Professor Hesch worked as a trial attorney in the Civil Fraud Section of the Department of Justice (“DOJ”), where he conducted nationwide False Claims Act investigations affecting twenty different government agencies. While at the DOJ, he facilitated cases recovering more than one billion dollars, including the trial of Rockwell v. United States. 127 S. Ct. 1397 (2007). Joel D. Hesch also acts as a private attorney representing whistleblowers when seeking monetary rewards for reporting fraud against the government under the False Claims Act.
A copy of the amicus brief can be read Here.