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Whistleblowers are people who have the courage to step forward and report serious wrongdoing. By extension, whistleblower laws are essentially a collection of statutes and regulations that provide these people with rights and sometimes even rewards.
When deciding whether or not to blow the whistle, it is most important to know your rights. You may be entitled to rewards, you may be able to sue for retaliation. No matter what, you should always get professional legal counsel before you act to blow the whistle. If, however, you have already blown the whistle, you should still seek counsel immediately.
The easiest way to learn how these laws work and to navigate them is to contact an experienced DC whistleblower lawyer with any information you may have about your case. Most attorneys in this field work on a contingency fee basis, so such an initial contact is not likely to be costly.
Fear is the enemy of every whistleblower. That fear is, unfortunately, not unfounded. Those who would defraud the government may also try to retaliate against honest individuals. While all threats against whistleblowers cannot be eliminated, the law does provide recourse. The current version of the federal law, and virtually every state FCA law, also provides rights for individuals who face retaliation for fighting fraud. Most state anti-retaliation provisions are modeled on the federal law, which gives them the right to file a claim if they are reporting or fighting fraud that was committed by another individual or entity against the government. They can obtain two times back pay, special damages and attorneys fees under this provision and they can file such a case as part of a consolidated action to sue for fraud committed against the government.
Prior to filing a case, the whistleblower generally should notify the government of their allegations as part of the effort to establish their status as an “original source.” The case is then filed in court under seal, which means that their actions and identity will not be made public for an initial period of time. The whistleblower then formally serves the government with the complaint and all the supporting evidence.
If, for example, a person has information about a national fraud scheme, they may be able to file a consolidated claim including federal and state law claims. This involves serving the case on appropriate agencies of the affected state(s) and the federal government. The consolidated action is filed in federal court and will cover both the state and federal claims, which can be handled as noted under authority of the Federal False Claims Act 31 US Code Section 3732. Of course, any person looking to blow the whistle should work with a skilled and knowledgeable whistleblower attorney in DC to be sure he or she follows all the appropriate procedure.
The role of an attorney is to work with the client and figure out both, which laws are applicable, and to help present the strongest case possible. When suing under the Federal False Claims Act, a whistleblower lawyer in Washington, D.C. may be necessary simply because many jurisdictions require a lawyer when an individual sues on behalf of the government.
In addition, of course, these are complicated cases. A DC attorney familiar with qui tam law and procedure can help determine which claims make the most sense and, which claims are worth pursuing under the law. The more the attorney can help the client present a stronger case, the better. The idea is to help present something to the government’s attorneys and help them see how the case can be successful.
No matter which course of action the whistleblower wishes to take, the laws and the facts of the case are usually complex. The procedures and the complicated cases usually mean an individual will require the help of a whistleblower attorney. who is knowledgeable about this specific area of the law, including qui tam and the FCA.
Even when there is a lot of money to be made by cutting corners, many will not do so, only a few will. Most who do business with the government intend to make an honest profit. The competitors who cut corners get an unfair competitive advantage and one would think honest business people would object. Yet, commercial interests usually lobby to thwart whistleblower laws. Some companies are recognizing that fraud is an unfair competitive advantage, and they may want to sue to prevent it. If there is one thing that would provide a great catalyst to the False Claims Act (FCA) and even other whistleblower law, it would be honest businesses getting on board with this kind of case.
Most cases involving fraud against the government are brought to recover money spent on healthcare. It’s astounding that the many policy proposals to deal with the nation’s inability to pay for healthcare don’t recognize the overwhelming importance of the FCA. We spend more than $700 Billion on government-funded health insurance programs. There are only a few institutional watchdogs for all this money, the best of which is the False Claims Act, as it makes it possible for insiders with real information on fraud to come forward and get something done. Any government investigation can only go so far without information. Yet, a whistleblower starts with that information.
What’s truly troublesome is that every healthcare case involves at least the concern for making money over the care of a patient. By definition, patient care for all of us is compromised under such a circumstance. Yet, whistleblowers are accused of greed when they report such practices. Even within this area, patient harm can become a direct consequence of a kickback marketing arrangement, the failure to provide services claimed, or the corrupted practices of the provider, pharmaceutical companies and institutions. It raises concern that many law-abiding medical professionals choose not to speak up. Though many are not in a position to blow the whistle, some are.
All of us in the whistleblower bar, stand ready to work with them and protect their rights.
Unfortunately, pursuing these matters takes time. Cases are investigated “under seal,” meaning in secret, and for a long time the lawyer and the client have only each other to confide in about the case. That can make the relationship between a DC qui tam lawyer and a client in this area special. Other whistleblower reward laws require full investigation by a government agency prior to any reward for a whistleblower, another contributing factor as to why these cases can take time. Whistleblowers will tell you that nothing in this process is easy or fast, no matter what the defense bar says. Hopefully, we can all work together to make a difference.
More than a few whistleblower attorneys I happen to know learned how to manage these cases working on a so-called “bulletproof vest” case I had the honor of participating in more than ten years ago. One might have thought this was a simple case to prove. The allegation was that vests sold to police forces as being bulletproof and lasting as bulletproof, were not. The claim is that when the chemical compound in the vest was exposed to moisture it degraded. Either the vest worked or it did not. Either it stayed in a condition to protect the police person who wanted to rely on it or it did not. Such a product goes through industrial processes to the point that almost anything about it would be known by the time it was sold.
Millions of dollars, science, technology, and industry foreign manufacturers with memos in another language were involved. It took time, government investigation, government and private lawyers before settling the cases that came out of this allegation. Eventually, the defendant paid not only to the Feds, but also to the State of California. The Saga of the allegedly bulletproof Vest Case and the plaintiff/relator who exposed the matter has more than a few twists and turns, maybe somebody should do a movie on it. At least in the end the whistleblower got something, but only he knows how he feels about the many years it took for the system to do something about this matter.
I can’t claim to have been involved in all the momentous cases affecting the False Claims Act and there are a few anyone contemplating working in this area should know about. In particular, you may want to understand not only the actual case itself, but also the ongoing effort to spin the result of the case of the “Escobar case” Universal Health Services v. U.S. Ex Rel Escobar 136 S. Ct. 1989 (2016). The initial case was filed by two Relators in Massachusetts whose daughter died of an adverse reaction to medication, when people not qualified to treat a mental health patient or prescribe medications nonetheless treated her and billed Medicaid.
They filed a False Claims Case and their attorney Tom Greene has been fighting ever since. Yes the case went all the way to the Supreme Court ostensibly to resolve the issue of whether or not something called “implied certification” can be the basis for a False Claims Act case.
Well, almost every really big False Claims Act case involves “implied certification” of one form or another. The idea is that when the government pays a bill the bill implies something about what is supposed to be done for that money. The example most often used is if the Union Army bought guns that did not shoot, should they need a contract that says, the guns must be able to shoot, or does the fact that they were buying guns at wartime enough, does it imply enough about what they were buying that they should be able to recover money for fraud?
The Supremes held that the billing codes used in Medicare combined with regulations requiring certified medical professionals created such a requirement in the Escobar case and the fact that the Defendants effectively hid the status of the people involved gave rise to a legitimate case. That, my friends, is a win for the Plaintiffs, and it was unanimous. Justice Thomas issued the decision.
Having lost the case the Defense Bar proceeded to hitch its wagon to language in the case regarding Materiality. The idea is that what is being lied about must matter enough that at some point the Government might actually not pay. In some circumstances though, the Department of Justice has pointed out that the government may not have a choice but to continue to pay, even then. While the term Materiality is in the Act and hardly a new concept, the Defense Bar seized on Escobar effectively to pretend it is. Now almost every excuse as to why a case may not work comes down to somebody claiming the deficiency is not material to that case. In reality though, this is not a new problem. If the government does not care very much about the violations at issue, a case is going to be difficult to bring.
No DC qui tam attorney starts out with a case that they think is not material. We look in fact for the most material cases we can find. A case that screams fraud, that truly involves ripping off the government is likely going to pass this hurdle, but the new arguments around this case are creating some cover for defendants. It’s worth asking about this issue when you look at a case no matter how much you believe in the righteousness of your cause.
Our side could just as easily point to this decision as doing away with the distinction between a so called condition of payment and a condition of participation in government health care programs. Justice Thomas in his decision for the Court made clear that distinction is not the sole basis for determining materiality, which the Defense Bar relied upon for years to defeat cases. Perhaps our side has been a little slow to fight on this case. I realize that’s a bit of an esoteric argument. The point is we are taking on the big fraudsters in this kind of law and its always going to provoke a big issue and fight.
Ultimately, we all want to file cases that do matter to everyone. We also need the government sometimes, to step up and say certain conduct is not allowed when they pay. This is an ongoing area of litigation and as you may expect bears almost constant review.
Another case, or at least the result of another case, is one that False Claims Act potential clients should think about is the infamous Totten Case. This has a happy ending for the False Claims Act albeit not so much for the Relators who initiated the case. In U.S. Ex Rel Totten v. Bombardier 380 F3d 488 (D.C. Cir. 2004.) Then Justice for the D.C. Circuit and now Chief Justice of the U.S. delivered an opinion, which has the virtue of being one of the easiest to read.
The Facts? “Relator Edward Totten brought a qui tam action against Bombardier Corporation and Envirovac, Inc. alleging that those companies violated the False Claims Act 31 U.S.C. § 3729 by delivering allegedly defective rail cars to the National Railroad Passenger Corporation (Amtrak) and submitting invoices to Amtrak for payment from an account that included federal funds.” You do not need to be Nina Totenberg to follow that.
Then the decision quotes the version of the False Claims Act, which applied in 2004 to say the act imposes liability for anyone who “knowingly presents or causes to be presented, to an officer or employee of the United States Government a false or fraudulent claim for payment or approval.” The next five words killed the case,
“Amtrak is not the Government…” It is difficult to argue with logic as clearly presented as this, even though the obvious intent of the Act was to protect government funding and programs. While Amtrak receives much government funding it is not an Agency of the U.S. Government.
Fortunately, in 2009 the Act was amended by the Fraud Enforcement and Recovery Act. The amendments eliminated the requirement to present a bill to a government official and defined claim much more broadly to include situations in which a claim is presented to a contractor grantee or other recipient if the money or property is to be spent or used on the government’s behalf or to advance a government program or interest and if the U.S. provides any portion of the money.
So now the Act can reach many more situations when government money is at issue and that is a very good thing for the False Claims Act and all of us.
It is worth remembering this fight however, because if you are first considering bringing a False Claims Act case you still have to ask, whose money is at stake? The Act is designed to protect the U.S. Government’s interest and was once so restrictive you had to find a person in the U.S. Government itself who got the bill and paid it. Amtrak which receives most of its funding from the government was not within that scope.
Remember, when thinking in terms of the False Claims Act it is always about the harm done to the government. If you want to take issue with how thegovernment has or has not conducted its affairs that is your right, but this law is not designed for that purpose.
The urge to identify and stop those who take advantage of the government, and others, is natural. Acting on that urge, however, requires one to muster serious courage in the face of threats of retaliations and other risks associated with being a whistleblower. Individuals and organization who are most likely to be affected by someone coming forward are also likely to have powerful influences and serious resources at their disposal to help block any efforts to shed light on their nefarious practices
That, in turn, can put the potential whistleblower in a vulnerable position. Most may initially act t against these powerful entities, often their own employer, on their own. This is why people looking to report fraud need and are granted certain rights under the federal False Claims Act and its qui tam provisions, as well as similar whistleblower laws. It is also why obtaining counsel to learn what those rights are is a crucial step.
Determining who legally qualify as whistleblowers and what rights they may have, can be quite complicated. If you are considering blowing the whistle, you should strongly consider contacting a DC whistleblower lawyer as soon as possible to ensure that your rights are protected.
Tony Munter Attorney at Law is excited to announce the 2019 Whistleblower Education Scholarship! This scholarship will award $1000 to a student who shares their story about taking a stand against an unlawful act and the impact they made by doing so. Learn more about the application process on our scholarship page.