The False Claims Act and Sections 827 and 828 of the Defense Authorization Act (NDAA) protect whistleblowers disclosing fraud on the government and other wrongdoing. The experienced government contractor whistleblower protection lawyers at Zuckerman Law represent whistleblowers at government contractors and grantees in whistleblower retaliation claims and False Claims Act qui tam actions.
To schedule a free confidential consultation, click here or call us at 202-262-8959.
For information about the NDAA whistleblower protection law, see our Practical Law Practice Note: Whistleblower Protections Under the National Defense Authorization Act.
Click here to learn about the qui tam or whistleblower rewards provision of the False Claims Act and click here to read our FAQ about the False Claims Act whistleblower retaliation law.
We have assembled a team of leading whistleblower retaliation lawyers to provide top-notch representation to whistleblowers.
Washingtonian magazine named Jason Zuckerman a top whistleblower lawyer. Zuckerman served in a senior position at the Office of Special Counsel, where he oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.
U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area. In 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law.
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. Recently the Second Circuit held that a refusal to violate the False Claims Act is protected under the FCA’s anti-retaliation provision.
Prevailing in a False Claims Act retaliation claim requires a showing that:
A prevailing whistleblower is entitled to “all relief necessary to make that employee, contractor, or agent whole,” which includes:
Click here to learn more about the damages that can be recovered in a government contractor whistleblower retaliation case.
As Judge Parrish held in United States ex rel. Barrick v. Parker-Migliorini Int’l, LLC, No. 2:12-cv-00381 (D.Utah March 25, 2022), reinstatement is the presumptive remedy in a False Claims Act retaliation case:
It is not lost on the court that, because of the animosity between the parties, reinstating Mr. Barrick at PMI may prove challenging. However, the court is bound by the Tenth Circuit’s recent Tudor decision, which explained that “[c]ourts must look beyond ill feeling and instead address simply whether a productive working relationship would still be possible, and they must do so through the lens of a strong preference for reinstatement.” 2021 U.S. App. LEXIS 27404, at *25 (emphasis added). Indeed, courts must ask if “extreme hostility would make a productive working relationship impossible—not just difficult or imperfect.” Id. at *26 (emphasis added). Accordingly, relying on Mr. Barrick’s contention that reinstatement at PMI is not untenable—and PMI’s lack of evidence to the contrary—the court grants Mr. Barrick’s motion for reinstatement. See id. at *27 (“Often, as in this case, the defendant is a large institution that should have sufficient resources to eliminate or otherwise ameliorate any hostility on its side toward the plaintiff. And when, as here, the plaintiff affirmatively seeks reinstatement, we can typically assume that the plaintiff is not asserting [he] would confront extreme hostility after reinstatement.”).
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 file initially with an administrative agency. If a whistleblower is also filing a qui tam claim, an FCA retaliation claim can be filed under seal.
Sections 827 and 828 of the Defense Contractor Whistleblower Protection Act provide robust whistleblower protection to employees of most government contractors and grantees. By its terms, 41 USC § 4712(a)(1) “applies to any federal contract or grant and is not limited to a particular appropriation or class of grant.” Tex. Educ. Agency v. U.S. Dep’t of Educ., 992 F.3d 350, 354 (5th Cir. 2021).
The scope of protected whistleblowing under the NDAA whistleblower protection law 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:
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).
Applying Federal Circuit precedent construing the Whistleblower Protection Act, the Eleventh Circuit recently held that “debatable differences of opinion concerning policy matters are not protected disclosures . . . to constitute ‘gross mismanagement,’ an employee must disclose such serious errors … that a conclusion … [of] err[or] is not debatable among reasonable people.” Karen Fuerst v. The Housing Authority of the City of Atlanta, Georgia, No. 21-10285 (11th Cir. June 22, 2022) (quoting White v. Dep’t of Air Force, 391 F.3d 1377, 1382 (Fed. Cir. 2004)).
In Fuerst, the Eleventh Circuit also clarified that “district courts should not treat evidence that other employees disagreed with a whistleblower as establishing that an objectively reasonable person would not reach the whistleblower’s conclusion. Especially in a retaliation context, carrying with it the implied threat of reprisal, a colleague’s disagreement may simply reflect a desire for self-preservation.”
The burden of proof and causation standard in NDAA whistleblower cases is 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 whistleblowers in NDAA whistleblower retaliation claims include reinstatement, back pay, uncapped compensatory damages (emotional distress damages), and attorney fees and costs.
If an NDAA case is being litigated in federal court, the plaintiff can add a False Claims Act retaliation claim and potentially recover double back pay.
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 statute 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 the 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.
Federal regulations prohibit the federal government from “contract[ing] with an entity that requires employees or subcontractors of such entity seeking to report waste, fraud, or abuse to sign internal confidentiality agreements or statements prohibiting or otherwise restricting such employees or subcontractors from lawfully reporting such waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.” 48 C.F.R. § 3.909-1(a)
And Section 883 of the NDAA of 2021 amends the Defense Contractor Whistleblower Protection Act (“DCWPA”) by prohibiting DoD from awarding a contract to a contractor that requires its employees to sign a confidentiality agreement “that would prohibit or otherwise restrict such employees from lawfully reporting waste, fraud, or abuse related to the performance of a Department of Defense contract to a designated investigative or law enforcement representative of the Department of Defense authorized to receive such information.” In addition, Section 883 requires DoD contractors to inform their employees of this limitation on confidentiality agreements, i.e., inform them of their right to lawfully report waste, fraud, abuse, and other wrongdoing.
The following table summarizes key distinctions between Section 3730(h) of the False Claims Act and Sections 827 and 828 of the NDAA:
| False Claims Act Whistleblower Protection | NDAA/Defense Contractor Whistleblower Protection Act | |
|---|---|---|
| Coverage | Employee, contractor, or agent of federal contractor | Employee of a contractor, subcontractor grantee, or subgrantee, or a personal services contractor |
| Scope of Protected Conduct (protected whistleblowing) | Protects 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 | Protects disclosures to employer or the government concerning: -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 |
| Administrative Exhaustion | No exhaustion requirement; file directly in federal court | Must file initially at OIG and after 210 days, can remove claim to federal court |
| Causation Standard | "But for" causation | Contributing factor causation |
| Damages | Double back pay, reinstatement, uncapped special damages (emotional distress and harm to reputation), attorney’s fees | Back pay, reinstatement, uncapped special damages, attorney’s fees |
| Statute of Limitations | 3 years | 3 years |
For more information about whistleblower protections for employees of government contractors and grantees, including Department of Defense contractors, see our Practical Law Practice Note titled Whistleblower Protections Under the National Defense Authorization Act. This Practice Note surveys the legal protections for employees of federal contractors, subcontractors, and grantees that receive federal funds who report waste, fraud, or abuse involving federal funds, a violation of law, rule, or regulation related to a federal contract, or a substantial and specific danger to public health or safety.
In addition, the outline explains the procedures that govern the filing, investigation and adjudication of National Defense Authorization Act (NDAA) whistleblower retaliation claims.
Topics covered include:
A former client represented by Zuckerman Law in an NDAA whistleblower retaliation claim offered the following review of Jason Zuckerman on Avvo:
“I was in a very difficult work situation dealing with the National Defense Authorization Act (NDAA) and whistleblower claims, and I needed legal representation. I was referred to Mr. Zuckerman by an attorney for a major corporation, who indicated that if they were in a similar situation, they would want Mr. Zuckerman on their side. From the get-go, Mr. Zuckerman listened to the details of my situation and believed in the merits of my case. He quickly dug into the details of my case and asked me thought-provoking questions, providing his legal expertise to help to build and shape my case. In doing so, he led me to see clearly how the employer wronged me. With his probing questions and knowledge of the relevant and applicable laws/statues, we filed a very strong NDAA and whistleblower claim, and combined with his tenacity, I was eventually able to settle with my employer and avoid a lengthy lawsuit.
Mr. Zuckerman was very knowledgeable, professional, and always in my corner. He was always accessible, and always very responsive to my questions and needs. He accompanied me and represented me in official meetings, and he was always available to provide guidance, even emailing and responding to me very late in the evening. Mr. Zuckerman is competent, fair, ethical, and honest, and it was a pleasure working with him. I would not hesitate in recommending him to anyone who has experienced whistleblower retaliation.”
WHEN REVIEWING INFORMATION ABOUT TESTIMONIALS OR STATEMENTS REGARDING A LAWYER’S QUALITY, CONSIDER THAT 1) THE FACTS AND CIRCUMSTANCES OF YOUR CASE MAY DIFFER FROM THE MATTERS IN WHICH RESULTS AND TESTIMONIALS HAVE BEEN PROVIDED; 2) ALL RESULTS OF CASES HANDLED BY JASON ZUCKERMAN ARE NOT PROVIDED AND NOT ALL CLIENTS HAVE GIVEN TESTIMONIALS; AND 3) THE TESTIMONIALS PROVIDED ARE NOT NECESSARILY REPRESENTATIVE OF RESULTS OBTAINED BY JASON ZUCKERMAN OR OF THE EXPERIENCE OF ALL CLIENTS OR OTHERS WITH JASON ZUCKERMAN. EVERY CASE IS DIFFERENT, AND EACH CLIENT’S CASE MUST BE EVALUATED AND HANDLED ON ITS OWN MERITS.
To schedule a free preliminary consultation, click here or call us at 202-262-8959.
Our experience includes:
In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon. Founding Principal Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government. At OSC, he oversaw investigations of whistleblower claims and obtained corrective action or relief for whistleblowers.
We have also written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:
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Summary
We are a Washington, DC-based law firm that represents whistleblowers in whistleblower rewards and whistleblower retaliation matters and litigates discrimination claims on behalf of employees in the District of Columbia, Maryland, and Virginia. The firm is dedicated to zealously advocating on behalf of our clients to achieve justice and accountability.
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