Volume 56, Issue 1

4 posts

Blacklisting Allowed? Whether the False Claims Act Protects Former Employees from Retaliation

By Hunter Baehren

Employers commonly blacklist whistleblowers.  Despite its frequency, blacklisting remains unaddressed in many federal whistleblower statutes.  These statutes typically contain antiretaliation provisions protecting “employees,” but since victims of blacklisting are former employees, protection under federal law is uncertain.  In Robinson v. Shell Oil Co., the Supreme Court interpreted the term “employee” in the antiretaliation provision of Title VII of the Civil Rights Act to include former employees.  Courts disagree, however, on Robinson’s relevance in interpreting the term “employee” in the antiretaliation provisions of other federal whistleblower statutes.  A circuit split has emerged exemplifying this tension: the Sixth Circuit recently found that the term “employee” in the False Claims Act’s antiretaliation provision includes former employees.  The Tenth Circuit previously ruled otherwise.  This Note offers the following contributions: (1) this circuit split reflects a broader disagreement on the role of Robinson in interpreting antiretaliation provisions, and (2) the in pari materia rule can resolve the split, as well as provide courts a clear path to applying Robinson to antiretaliation provisions in other federal statutes.

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Beyond the Point of Exhaustion: Reforming the Exhaustion Requirement to Protect Access to IDEA Rights in Juvenile Facilities

By Abbe Petuchowski

Congress enacted the Individuals with Disabilities Education Act (IDEA), in conjunction with other federal and state laws, to recognize a substantive right to “a free appropriate public education” for youth with disabilities and to establish a process to make this right accessible. Although the IDEA guarantees youth in juvenile facilities the same legal rights to special education services as students attending traditional public schools, correctional and education agencies across the country struggle to provide students in these facilities with special education services that meet these legal mandates. When violations occur, the IDEA imposes a threshold requirement that families exhaust administrative remedies before bringing a claim in state or federal court. Courts have interpreted this requirement, and especially its exceptions for systemic allegations of IDEA violations, in different and unpredictable ways.

This Note analyzes the IDEA’s application of the exhaustion requirement in the context of class action claims against juvenile facilities in federal courts. Part I outlines the substantive rights and procedural protections under the IDEA. Part II examines how structural features of juvenile facilities impede access to IDEA rights. Part III analyzes how the exhaustion requirement and its exceptions interact with the juvenile justice context to further deny access to IDEA rights. To address these concerns, Part IV proposes a range of reforms to the exhaustion requirement for allegations of systemic IDEA violations in juvenile facilities.

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Misappropriation vs. Alteration: Post-Kelly Efforts to Criminalize Fraud Targeting Confidential Government Information

By Luke Urbanczyk

The federal wire and mail fraud statutes criminalize “any scheme or artifice to defraud” that uses interstate wires or mailings to obtain “money or property by means of false or fraudulent pretenses, representations, or promises.” But what exactly counts as property, triggering the statutes’ criminal penalties? In Carpenter v. United States, the Supreme Court held that confidential business information is property for purposes of the fraud statutes. In Cleveland v. United States and Kelly v. United States, the Court established that a scheme to alter a regulatory choice—which implicates the government’s role as a sovereign—does not deprive the government of property. The Court has left unclear, however, whether confidential government information can satisfy the fraud statutes’ property requirement.

After highlighting the uncertain status of the law governing schemes that misappropriate confidential government information, this Note argues that as a matter of property theory, the government has a property interest in its confidential information because it has the right to exclude others from this information and that Kelly represents a mere application of Cleveland’s narrow exception to this rule. Finally, this Note proposes a test to distinguish schemes that target government property from those that implicate the government’s sovereign capacity: when fraudulent schemes seek to misappropriate confidential government information they target property, but when they seek to alter a governmental decision, they do not.

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Re-Examining the “McDonnell Problem”: Federal Prosecutors’ Ample Room to Prosecute State and Local Government Corruption

By Ourania S. Yancopoulos

Historically, states have relied on the federal government to prosecute corruption involving their public officials and employees. In McDonnell v. United States, however, the Supreme Court purported to limit the definition of “official act” as used in the federal bribery, honest services fraud, and Hobbs Act extortion statutes—three of the Government’s most potent tools against public corruption. Many observers concluded that the ruling would obstruct or all but end the federal prosecution of government corruption at the state and local levels. To test this claim, this Note presents and analyzes a novel dataset of hundreds of prosecutions in five federal districts in the six years before and after McDonnell. The data show that federal prosecutors in these districts have neither stopped charging nor convicting state and local government corruption. Together with an assessment of post-McDonnell case law, this Note concludes that claims of the so-called “McDonnell Problem” are overstated.

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