Filing a qui tam lawsuit to fight fraud can be a difficult decision. It takes courage to bring a whistleblower claim and there are risks involved. Despite these risks, whistleblowers motivated by a desire to protect public health and safety are encouraged to step forward to help ensure that those who defraud the government are held accountable.
The government recognizes the importance of whistleblowers and has passed laws that not only provide financial rewards, but also protect them from retaliation by the companies whose crimes they are exposing. The False Claims Act and the Whistleblower Protection Act are two federal laws that provide whistleblowers with the means to defend themselves against retaliatory acts by their employers.
The False Claims Act (FCA), as codified in Title 31 (Subtitle III, Chapter 37) of the United States Code, basically allows a private citizen to file a whistleblower lawsuit against a company that is cheating the government. If the United States, who is a partner in this lawsuit, successfully recovers money from the company, the whistleblower is entitled to a share of this money as a reward.
The FCA also contains a section entitled “Relief from Retaliatory Actions.” It states that if an employee, contractor or agent is “discharged, demoted, suspended, threatened, harassed, or in any manner discriminated against in the terms and conditions of employment” in retaliation for legal acts of whistleblowing, they are entitled to relief ordered by the court. That relief may include a restoration of the employee’s seniority status, two times their back pay plus interest, compensation for any other damages suffered as a result of the retaliation, and the payment of litigation costs and attorney fees. Whistleblowers have three years after the date of the retaliation to bring a civil lawsuit against those who harmed them.
The Whistleblower Protection Act, codified in Title 5 of the U.S. Code, applies specifically to certain federal government organizations and employees. The Act permits certain whistleblowers who believe they have been subjected to retaliation to bring their complaints directly before the Merit Systems Protection Board (MSPB), a federal agency that is authorized to adjudicate complaints brought by federal whistleblowers and issue orders to protect them from harassment.
Federal employees who disclose wrongdoing do not automatically qualify for MSPB protection. There are several requirements that must be met. According to a 2010 MSPB report, the whistleblower must;
- “Disclose conduct that meets a specific category of wrongdoing set forth in the law.”
- “Make the report to someone other than the wrongdoer.”
- “Suffer a personnel action, the agency’s failure to take a personnel action, or the threat to take or not take a personnel action.”
The whistleblower must also demonstrate a connection between their disclosure and the retaliatory actions taken against them. They are denied relief, however, if the government agency can establish by “clear and convincing evidence” that it would have taken the same personnel action even if the employee had not engaged in whistleblowing.
These requirements and others suggest that government whistleblowers may face challenges in receiving federal protection. In a 2012 article for the William and Mary Policy Review, Robert McCarthy, former General Counsel, U.S. Section, International Boundary and Water Commission, former Field Solicitor, U.S. Department of the Interior, and a former clinical law professor at the University of Washington, argues that “the MSPB has rejected the vast majority of whistleblower appeals that have come before it, as has the Federal Circuit Court of Appeals.” It is therefore vital that anyone bringing a whistleblower lawsuit as a federal employee be represented by a skilled whistleblower attorney familiar with federal law in this area.
Many states also have similar whistleblower protection laws. A summary of the whistleblower protections offered by state laws can be found on the website of the National Conference of State Legislatures.