The qui tam provisions of the False Claims Act have enabled the federal government to recover more than $30 billion based on whistleblower disclosures. Both the False Claims Act and Sections 827 and 828 of the 2013 Defense Authorization Act (NDAA) contain strong whistleblower protection provisions and protect a broad range of whistleblower disclosures concerning fraud on the government and are an effective tool to combat whistleblower retaliation. To learn more about whistleblower protections, call Zuckerman Law at 202-262-8959.
False Claims Act Retaliation
The anti-retaliation provision of the False Claims Act protects steps taken in furtherance of a potential or actual qui tam action and efforts to stop 1 or more violations of the FCA. Protected conduct includes raising concerns to a supervisor about fraud on the government or opposing fraudulent billing practices.
Prevailing in a False Claims Act retaliation claim requires a showing that:
- the employee engaged in protected activity;
- the employer had knowledge that the employee was engaged in protected activity;
- the employer took an action that had a negative effect on the terms, conditions, or privileges of employment, such as termination, demotion, suspension, harassment and any other act that would dissuade a reasonable person from reporting violations of the False Claims Act; and
- the employer retaliated against the employee because of this conduct.
Remedies for Prevailing False Claims Act Retaliation Plaintiffs
A prevailing whistleblower is entitled to “all relief necessary to make that employee, contractor, or agent whole,” which includes:
- reinstatement or front pay,
- double back pay (double lost wages and benefits);
- interest on the lost wage;
- special damages, which includes damages for emotional distress and other non-economic harm resulting from the retaliation; and
- attorney’s fees and costs.
Filing a False Claims Act Whistleblower Retaliation Claim
The statute of limitations for a False Claims Act whistleblower retaliation claim is three years from the date on which the retaliation occurred. An FCA retaliation claim can be brought directly in federal court; there is no requirement to first file with an administrate agency. If a whistleblower is also filing a qui tam claim, an FCA retaliation claim can be filed under seal.
NDAA Whistleblower Protection Law
NDAA Protected Whistleblowing
The scope of protected whistleblowing under the NDAA whistleblower protection provision is far broader than the scope of protected conduct under the False Claims Act. Under the NDAA whistleblower protection provisions, protected conduct includes the disclosure of information that the employee reasonably believes is evidence of:
- gross mismanagement of a Federal contract or grant;
- a gross waste of Federal funds;
- an abuse of authority relating to a Federal contract or grant; or
- a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract.
To be protected, the disclosure must be made to a Member of Congress or Congressional committee, an IG, the GAO, a federal employee responsible for contract or grant oversight or management at the relevant agency, an authorized official of DOJ or other law enforcement agency, a court or grand jury or a management official or other employee of the contractor or subcontractor who has the responsibility to investigate, discover, or address misconduct.
A covered person or body includes a “management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate, discover, or address misconduct.” 41 U.S.C. § 4712(a)(2)(G).
Gross mismanagement is “a management action or inaction which creates a substantial risk of significant adverse impact upon the agency’s ability to accomplish its mission.” Kavanagh v. M.S.P.B., 176 F. App’x 133, 135 (Fed. Cir. 2006) (quoting White v. Dep’t of Air Force, 63 M.S.P.R. 90, 95 (1994))
“An abuse of authority requires an `arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons.'” Elkassir v. Gen. Servs. Admin., 257 F. App’x 326, 329 (Fed. Cir. 2007)
Proving NDAA Whistleblower Retaliation
The burden of proof and causation standard in NDAA whistleblower cases are very favorable to whistleblowers. The complainant prevails merely by demonstrating that the protected disclosure was a contributing factor in the personnel action, which can be met by showing knowledge and temporal proximity.
Remedies for Prevailing NDAA Whistleblowers
Remedies include reinstatement, back pay, uncapped compensatory damages (emotional distress damages) and attorney fees and costs.
Filing a NDAA Whistleblower Retaliation Claim
An NDAA reprisal claim must be filed initially with the Office of Inspector of General of the agency that awarded the contract or grant about which the employee disclosed wrongdoing, and the statue of limitations is three years after the date of the reprisal. The OIG will investigate the complaint and make recommendations to the agency head. If the agency head fails to provide requested relief within 210 days, the whistleblower may bring an action in federal district court and try the case before a jury.
The requirement to exhaust administrative remedies in an NDAA retaliation lawsuit (filing the complaint with an OIG prior to filing the complaint in federal court) is jurisdictional. Therefore, an NDAA complaint filed initially in federal court will likely be dismissed.
The rights and remedies provided in Sections 827 and 828 may not be waived by an agreement, policy, form, or condition of employment.
The following table summarizes key distinctions between Section 3730(h) of the False Claims Act and Sections 827 and 828 of the NDAA:
Employee, contractor, or agent
|Employee of a contractor, subcontractor, or grantee|
|Lawful acts done by the employee, contractor, agent, or associated others (1) in furtherance of an action under the FCA or (2) other efforts to stop 1 or more violations||
-Violation of law, rule, or regulation related to a federal contract
-Gross mismanagement of a federal contract or grant
-Gross waste of federal funds
-Abuse of authority relating to a federal contract or grant
-Substantial and specific danger to public health or safety
|File directly in federal court||Must file initially at OIG; can remove to federal court after 210 days|
|But-for causation||Contributing factor|
Double back pay, reinstatement, special damages (emotional distress and harm to reputation), attorney’s fees
|Back pay, reinstatement, special damages, attorney’s fees|
|3 years||3 years|
For more information, call the whistleblower lawyers at Zuckerman Law at (202) 262-8959.whistleblower_lawyers_012017_infographic
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