Jay P. Holland, Esq., is available to address questions about pursuing a whistleblower claim, such as:
1. What are my rights as a whistleblower?
Monetary reward — Congress encourages whistleblowers, known as “relators,” to expose fraudulent activity in exchange for a monetary reward. The monetary award ranges from a minimum of 15% to a maximum of 30% of what the government recovers through a settlement or trial verdict of a False Claims Act claim. For example, if the government recovers one million dollars in a settlement, the relator would receive at least $150,000 and no more than $300,000.
Personal injury — The False Claim Act (FCA) protects whistleblowers who lost their jobs as a result of bringing the fraud to light. Individuals can bring private suits against his or her employer for retaliating against them for participating in an FCA investigation or court proceeding. A successful retaliation claim allows employees to obtain compensation double his or her lost back pay plus interest, litigation costs and attorneys’ fees and even reinstatement if the employee wishes to return to work.
2. What types of fraud are covered?
In general, the False Claim Act (FCA) covers fraud involving any federally funded contract or program as long as the wrongdoer made false or fraudulent claims for payment to the United States. Many different scenarios can constitute FCA violations, such as:
- Health care fraud involving Medicare or Medicaid bills for services that were not provided or were unnecessary
- Pharmaceutical and medical device companies promoting and marketing their drugs and devices for purposes unapproved by the FDA
- Contractors providing fraudulent documents falsely stating they are qualified to enter into a government program and bid upon certain government contracts
- Contractors providing inferior parts, while billing the government for a higher quality product
- Grant recipient billing the government for costs that are not associated with the grant
- Contractor hiding excess and fraudulent charges in the bills it submits to the government
- Defense contractor fraud, including false billing of hours worked
- Contractors paying employees less than the wage specified in a government contract but billing the government at the contract rate
- Contractors billing for environmental cleanup and testing when work was not done or was not done according to contract specifications
The following areas of government may result in a whistleblower raising a fraud claim under the False Claims Act:
- Defense contractor work
- U.S. General Services Administration Contracts and Schedules
- Medicare and Medicaid contracts
- Nursing home operations
- United States grants and loans
- Public works and government construction projects
- Research programs
3. What is a qui tam action and what is the origin of the act?
Since the False Claims Act (FCA) was enacted, it has carried a “qui tam” provision, short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which literally translates into “Who brings the action for the king, as well as for himself.” In short, what this phrase means and what you would be doing as a whistleblower is acting in the place of the government and representing its best interests.
The FCA has a long history. In 1863, after being strongly pushed by President Abraham Lincoln, the FCA was passed by Congress to recover funds from unscrupulous contractors who were selling faulty goods to the Union Army during the Civil War. The statute allowed for a whistleblower to initiate a civil suit and be paid a finder’s fee or a portion of the amount recovered for government. The finder’s fee was intended to help encourage whistleblowers to come forward to report fraud. Since then, the FCA has undergone some changes but the main purpose of the act has remained — to report and catch fraudulent activity and return money stolen from taxpayers.
4. What are the penalties to wrongdoers who violate the False Claims Act?
The False Claim Act (FCA) provides liability for triple damages, or three times the amount of the fraud, and a penalty from $5,500 to $11,000 per claim for anyone who knowingly submits or causes the submission of a false or fraudulent claim to the United States. For instance, if a contractor was proven to have stolen $1 million from the government and submitted 10 false claims for payment, then that contractor may have to pay the government $3,000,000, plus fines of between $55,000 to $110,000.
Since 1986, FCA judgments and settlements against fraudulent actors have totaled over $12 billion.
5. How does the process work?
The process is very detailed and must be followed exactly in order to pursue a claim. The complaint must be filed under seal, which means that all records are held in a secret place by the clerk of the court. While the matter is sealed, copies of the pleadings are provided only to the relator, and the relator’s counsel, the United States Department of Justice, including the local United States attorney, and to the judge and the judge’s staff.
In addition to the complaint being filed with the court, the relator must provide the United States Department of Justice and the United States attorney general a disclosure statement. The disclosure statement must contain substantially all the evidence the relator has concerning his or her allegations as explained in the complaint. The disclosure statement is not filed with the court and is not available to the defendants. However, it is often a complicated document, consisting of many pages and attached documents.
All pleadings filed with the court remain sealed for at least 60 days. Usually, at the conclusion of the 60 days, the United States Department of Justice must, if it wants the case to remain under seal, request an extension of time from the court, which is usually at six-month intervals. The United States Department of Justice often requests more than one extension of the seal and many cases remain sealed for at least two years.
While the case is under seal, the United States Department of Justice is required to diligently investigate the allegations. The investigation usually involves at least one law enforcement agency such as the office of inspector general of the agency that was harmed and even the FBI. The investigation often involves subpoenas for documents, other record review and witness interviews.
At the conclusion of the investigation, the United States Department of Justice chooses one of five options:
- Intervene in one or more counts of the complaint. By intervening the government intends to prosecute the complaint or certain counts of the complaint
- Decline to intervene in one or all counts of the complaint
- In rare instances, move to dismiss the relator’s complaint
- Attempt to settle the pending action with the defendant prior to the intervention decision
- Inform the relator that it intends to decline to intervene, but reserve the option to intervene at a later date
If the United States Department of Justice declines to intervene in the case, the relator may move forward with the action on behalf of the United States. In this instance, unless the government intervenes at a later date, the government will not participate in the prosecution of the case apart from its right to any recovery.
After the relator’s complaint is unsealed, the relator must serve the complaint to the defendant(s) within 120 days. Each defendant must file an answer to the complaint or a motion within 20 days after service of the government’s complaints. Then the normal litigation process begins.
6. Do I need a lawyer to pursue a claim?
The False Claims Act process is complicated so you will need an experienced attorney helping you navigate through the process. Also, several courts, including those in the District of Columbia, have ruled that individuals proceeding without an attorney are barred from prosecuting a qui tam action. These rulings usually note that a relator acting on his or her own would be acting as an attorney for the government, which is prohibited.
Offering Experienced Legal Counsel To Handle Whistleblower Claims
If you are seeking legal representation as a whistleblower, we can help. If you know of a company that is defrauding the government, it is important to consult our law firm to make sure your rights are protected throughout the process of pursuing a qui tam action.
Attorney Jay P. Holland, Esq., focuses on representing whistleblowers in qui tam claims. Our qui tam practice is nationwide. Our legal team is currently involved in a wide variety of whistleblower cases in federal courts in Washington, D.C., and throughout the United States. Call 240-297-1782 or email the firm to learn more.