Assessing the possibility of collecting a whistleblower reward requires careful consideration. Obviously, the first issue is to determine if you have something worth reporting. There is no point in coming forward and attempting to be a whistleblower unless you have a substantial allegation to report under one of the important whistleblower reward laws, such as the False Claims Act, or the SEC, CFTC and IRS whistleblower programs, that would attract consideration by the government if reported.
However, you must also assess whether you can be a proper relator or whistleblower. A knowledgeable whistleblower attorney in DC could look at the facts and determine whether you meet the requirements for being a whistleblower.
Restrictions on Who Can Be a Whistleblower
Assuming there is a serious issue of fraud to report, whether it is security fraud, tax fraud, or fraud against the government, there are some restrictions on who can report the fraud. Most of the time, however, almost any person can be a whistleblower and can therefore be eligible for an award. It is always worth reviewing your status in this regard. The major statutory restriction is that, members of the military cannot be plaintiff-relators if they report matters related to their military service. There is no getting around that restriction.
Government Employees as Whistleblowers
There are other restrictions, but it may be surprising to learn that under the False Claims Act, it is even possible to be a federal government employee in certain circumstances to be a plaintiff-relator. The Tenth Circuit in particular has ruled that any government employee may blow the whistle and may be a proper relator under the law. There are requirements for such whistelblowers however, and this is something to check with counsel to see if the particular government employee can file a case. Other programs such as the SEC whistleblower program restrict which employees of particular government agencies may report.
Of course, reporting fraud under the False Claims Act has to be done “voluntarily” to obtain an award.
In addition to the fact that a proper relator must be one who is not compelled by a court order for example to disclose the relevant fact, some courts have imposed additional limitations on what kind of government employee fits that standard.
Some states’ False Claims Acts describe specifically under what circumstances a state employee may be a proper relator or whistleblower, but others do not. Obviously, if a person is a federal government employee and reporting fraud committed against a state government, or vice versa, there would be no issue preventing them from reporting such an act. Otherwise, any government employee should review their status and their case with counsel and raise this issue prior to filing any claim.
Restrictions Under SEC
There are restrictions on government employees under the SEC program as well. Anyone who is working for the Department of Justice, the SEC itself, “or an appropriate regulatory agency,” or who received the information while holding such a position, cannot obtain an award under this program. Neither can a foreign government employee. Similar restrictions apply to the Commodity and Future Trading Commission (CFTC) program
Can Attorneys Be Whistleblowers Too?
There have been a few cases where attorneys themselves have attempted to be whistleblowers in the context of a False Claims Act case. This creates an additional and very difficult issue, one that has led to problematic cases.
Attorneys blowing the whistle with respect to a False Claims Act cases will not likely prevail if they are blowing the whistle on their own potential clients, and may be breaking attorney-client privileges to do so. That type of endeavor by an attorney in the context of a False Claims Act case would be very difficult to win.
Individuals working for companies can report fraud as a whistleblower, but they should be careful to review the rules determining how they do so in order to obtain an award. There are additional reporting requirements for certain kinds of employees, such as compliance officers of companies, under the SEC whistleblower program. Most importantly, under the SEC and CFTC programs, individuals can also report such allegations anonymously.
The IRS has an award program as well. While the IRS does protect confidential information very carefully, it also requires the whistleblower to submit information under penalties of perjury with their name attached to the form required for any initial filing. Unlike the SEC whistleblower program or the CFTC whistleblower program, the whistleblower in the IRS case cannot file anonymously.
Seeking Legal Counsel About Being a Relator or Whistleblower
Assuming the person blowing the whistle has the standing to do so, and the vast majority of people do, consideration again reverts to the quality of the information and allegations. Does the whistleblower have real information that would be valuable to present to the government? Is this original information? Does the information involve a major act of fraud? Anyone contemplating any such action or who has any question on their own status regarding whether they can qualify as an appropriate whistleblower should raise these issues with counsel.
The purpose of these laws is to encourage as many people as possible to come forward with real reports of fraud and help the government in fighting fraud. So, while there are some restrictions, most people do have the right to file a case and obtain an award under whistleblower reward laws. If you want to know more about whether you can be a proper relator or whistleblower, you should consult a DC attorney to get answers to your questions.