More on the Different Types of ‘Whistleblowers’

As I’ve mentioned several times, I’m involved in a rather narrow spectrum of what is known as ‘whistleblower’ claims under the False Claims Act. The broad label of ‘whistleblower’ covers a much wider spectrum of wrongdoing than what I’m involved with. Today, in mid January, 2014, the news is focusing on Snowden as a whistleblower, and whether he should be prosecuted for the actions he took in blowing the whistle.

I represent whistleblowers who work for defense contractors or medical providers that are cheating on government contracts. You hire me as your lawyer to blow the whistle on the cheating you’ve uncovered, and I bring a False Claims Act complaint – what is known as a qui tam claim – and sue the cheater on behalf of the United States.

I describe all of this process right here at www. If the Government wins in the lawsuit you began, you get 15% of what the Government recovers. Because you blew the whistle on the fraud.

On a national scale, Snowden also was “blowing the whistle.” He was blowing the whistle on a broad range of misconduct that he claimed to observe within the Government’s National Security apparatus – the NSA. But he blew the whistle – not on cheating on the government, not on how the government itself was the victim of cheating, but rather on cheating by the Government – on how it was the agencies of the Government themselves, with their spying on American citizens, who were  doing the cheating.

So it’s important, when one is making contact with <> , to recognize, and be aware of, the difference between these two species of whistleblowers. One should understand that I represent only those whistleblowers who are blowing the whistle on acts of fraud committed against the Government, or committed on the Government – where it is the Government that is the victim of the fraud. I do not represent whistleblowers who’ve uncovered fraud within the Government, or whistleblowers who discover spying by the Government, or discover that it is the agencies of the Government that are doing the cheating, who are the ones who are committing the illegal acts, and who are spying on American citizens.

Several years ago I brought a qui tam case against Northrop Grumman in the District Court in Denver, Colorado, where these two separate concepts overlapped. And I lost.

In U.S. ex rel Babb v. Northrop Grumman, Dr. Robert Babb sued Northrop Grumman on behalf of the United States Government. The False Claim that I alleged in the complaint was that Northrop Grumman had taken from the U.S. Government a programming tool that Dr. Babb, an information technology and systems specialist, had invented. He called it the Lakos metrics tool (the LLC), and this ‘tool’ was created to analyze the root causes of tangles in the software architecture of the code base Dr. Babb was working on. (Don’t ask me what all this means – accept the fact that the LLC tool was a valuable electronic device.) Northrup Grumman itself had conservatively estimated that this tool – with the efficiencies created by analyzing the dependency structures and fixing “tangles” – would save the 70 programmers at Northrop Grumman who were using the tool $300,000 a day. The challenge was this: When Dr. Babb invented his ‘tool,’ he was working in a secure facility on what was known as the Diamond Project in Northrop Grumman’s top secret Government Surveillance Satellite and Reconnaissance Division. After Dr. Babb developed his LLC tool in the secured/top secret facility, Northrop Grumman, seeing the tool’s enormous money making potential, removed it from the top secret facility where the Diamond Project was located  – the code name “Prairie Dog” comes to mind – and Northrop Grumman brought the LLC tool into a non-secure building in order to develop and market the tool for commercial use there.

My lawsuit on behalf of the United States Government was based on the fact that, because the tool was created under a Government contract, it was the Government that owned the Lakos Metrics tool, not Northrop Grumman. Northrop didn’t perfect its rights of ownership and control of the invention because it had violated certain rules and protocols relating to notice when inventions are created under Government contracts, and it had wrongfully converted the LLC tool for its own use and profit.

Northrop Grumman of course didn’t see it this way. But it moved to dismiss the case, not on arguing how or why the tool in fact did belong to Northrop rather than the Government, or by arguing that appropriate notice of the invention in fact had been given to the Government, but instead it argued that, because the program had been created and developed during work on a top secret government project in a top secret government facility, pursuing the matter further would create a risk to national security.

Needless to say, I objected.

The “you’ve got to be kidding” part occurred when Northrup Grumman claimed that my memorandum opposing the motion to dismiss, before its public filing with the district court, would have to be vetted and cleared. I was surprised to discover that my brief might contain references to Government Surveillance Satellite and Reconnaissance Division activities, and (Yikes!) pose a threat to national security. So Northrup obtained a court order that would seal, before it was filed, my forty page brief opposing the dismissal.

Entering the twilight zone, a young woman dressed in a black jumpsuit with a black backpack arrived at my office and identified herself as someone from one of the various National Security agencies – it’s been so long, I forget which. She was “here” to “take control” of the memorandum that I was filing. The first question she asked me when she arrived at my door:

“Is this office secure?”

“Certainly,” I lied, trying hard not to laugh in her face.

I of course thought all of this 007 stuff was ridiculous and retro cold war until I received the papers from the Government and the office of the U.S. Attorney.

The United States Government supported Northrop Grumman in its Motion to Dismiss.

The Judge, paying no attention to my arguments that the LLC tool itself posed no threat whatsoever to national security – that the tool was as harmless and as non secret as any commercial application or operating system such as Windows 95 – nonetheless, dismissed the case.

Northrop Grumman succeeded in “playing” the Government “like a violin.”