Government Screener Vendor Under Review

There may be a more traditional whistleblower action to arise from the Edward Snowden scandal, says Erika Kelton, of the Phillips & Cohen law firm in Washington, D.C.

Writing recently in Forbes, Kelton, who represents whistleblowers, predicted that USIS, the contractor that vetted Snowden for his classified work with the National Security Agency, might be under investigation as the result of an unrelated whistleblower tip.

Kelton noted that Sen. Claire McCaskill, D-Mo., said in June the federal government was investigating USIS, and Patrick McFarland, the inspector general of the Office of Personnel Management, testified at a congressional hearing, “We do believe there were some problems” with Snowden’s background investigation by USIS, which took place in early 2011. That is the same time period, Kelton wrote, under investigation by the inspector general and the Justice Department. USIS has confirmed it received a subpoena for documents from the Office of Personnel Management in January 2012 and acknowledges it is under a federal civil investigation, Kelton wrote.

“The combination of the federal inspector general subpoena and civil Justice Department investigation suggests that a whistleblower (qui tam) lawsuit under the False Claims Act may have alerted the government to issues at USIS more than a year before Snowden took his first steps to reveal classified material,” Kelton wrote.

If such a whistleblower complaint were lodged and the government files a False Claims Act lawsuit against USIS, and if the company subsequently is found to have defrauded the government, under the law USIS could be liable for three times the government’s losses, plus penalties. “USIS could be on the hook for hundreds of millions of dollars,” Kelton wrote.