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Must a NDAA Whistleblower Retaliation Plaintiff Prove a Subjective Belief of a Violation?

 

Protected Whistleblowing Under NDAA Whistleblower Law

The whistleblower protection provisions of the NDAA protect 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.

In construing analogous statutory language in an ARRA retaliation case in Herrera-Castro v. Trabajamos Community Head Start, Inc., 2017 WL 666232 (Feb. 20, 2017), Judge Rakoff rejected the employer’s position that the whistleblower must prove that she subjectively believed that the conduct she complained about actually violated the statute:

Trabajamos argues, first, that Castro did not make a protected disclosure because she did not subjectively believe that the misconduct she reported violated the statute. But the statute requires no such subjective belief. Rather the statute requires only that the whistleblower “reasonably believes” that the information disclosed “is evidence of … a gross waste of covered funds.” Id.Moreover, it would thwart ARRA’s purpose—to encourage and protect reports of misconduct involving covered funds—to require laypeople to form legal conclusions concerning the misconduct they have discovered before coming within the statute’s protection.

Judge Rakoff makes an important point that a prophylactic whistleblower protection statute should not be construed to require the whistleblower to form a legal conclusion to be protected against retaliation.

Guide to NDAA/Defense Contractor Whistleblower Law

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:

  • Protected whistleblowing under the NDAA.
  • The scope of coverage of the NDAA’s whistleblower protection provisions.
  • The reasonable belief standard governing NDAA protected whistleblowing.
  • Proving “contributing factor” causation
  • The same-decision affirmative defense
  • Remedies or damages available to prevailing NDAA whistleblowers.

And for information about False Claims Act whistleblower protection, see our answer to frequently asked questions about the False Claims Act whistleblower protection law.

False Claims Act Whistleblower Protection and NDAA/Defense Contractor Whistleblower Protection

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 ProtectionNDAA/Defense Contractor Whistleblower Protection Act
CoverageEmployee, contractor, or agent of federal contractorEmployee 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 violationsProtects 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 ExhaustionNo 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" causationContributing factor causation
DamagesDouble back pay, reinstatement, uncapped special damages (emotional distress and harm to reputation), attorney’s feesBack pay, reinstatement, uncapped special damages, attorney’s fees
Statute of Limitations
3 years3 years

Experienced False Claims Act and NDAA Whistleblower Protection Attorneys

The experienced whistleblower attorneys at leading whistleblower law firm Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees.  To schedule a free preliminary consultation, click here or call us at 202-262-8959.

Our experience includes:

  • Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.
  • Litigating False Claims Act retaliation cases.
  • Representing qui tam relators.
  • Representing whistleblowers disclosing fraud on the government in Congressional investigations.

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.  Before hiring a lawyer for a high-stakes whistleblower case, assess the lawyer’s reputation, prior experience representing whistleblowers, knowledge of whistleblower laws and prior results.  And consider the experience of other whistleblowers working with that attorney.  See our client testimonials by clicking here.

Zuckerman Law has written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:

 

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.