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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.

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.  Two of the attorneys on our team served in senior position at the U.S. Office of Special Counsel overseeing investigations of whistleblower retaliation claims and whistleblower disclosures.

  • Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs.  During Bachman’s tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.
  • Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations.

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.

  • 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.
  • Both Eric Bachman and Jason Zuckerman served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protections.
  • Firm Principal Jason Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law.  is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.
  • Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases.  His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain.  Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.
  • The firm has published extensively on whistleblower rights and protections, and speaks nationwide at seminars and continuing legal education conferences.  We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Blog.

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.