What Happens If The Government Does Not Intervene In Your Whistleblower Case?

The decision is made by a combination of officials of the United States Department of Justice. Usually the Assistant U.S. attorney assigned to the case and the Department of Justice trial lawyer will make a decision after they consult with an investigator and review all the evidence they have compiled in the case.

They have a chain of command and report up through the Civil Frauds Division of the Department of Justice. So, it is hard to say when any one individual decides. It is a large government agency and many people will be involved in such a decision.

The people that you can impress are the people you will meet, when they interview you about your case. Unless you are filing a completely frivolous action, or unless your action is rejected on some technical grounds, like, for example, every allegation in your Complaint is based entirely on a news story you neglected to mention. Maybe you read about it all in a news story and you had absolutely no knowledge about the case until you did. Unless there is something unusually you are likely to get an opportunity to discuss the issues with the officials of the government.

Such a meeting is informal. You will not hear lawyers shouting “objection.” You most likely not be sworn in at the meeting. (We have done many, many such meeting and nobody has ever been sworn in, but do not under any circumstances mistake this for some kind of a license to misrepresent anything to a government official.)

There may not even be anyone recording what you say. Make no mistake about the informal nature of this meeting. It is extremely serious. The lawyers and investigators you meet will want to know everything you know about the False Claims case. They will want to know who else they can talk to who can corroborate your allegations. They will want to know where they can obtain documents.

They will, of course, judge your credibility too. All this goes into a meeting. So what can you do?

You can work with your lawyer to prepare the best Complaint possible and you can be as knowledgeable about the facts and as truthful and co-operative as possible. You want to make it possible for the Justice Department to pursue your case. If they do you have a greater chance of success.

Under the Federal False Claims Act and most State laws you still have a right to sue if the government does not intervene in your whistleblower case.  It may not be the end of your case when the government declines to intervene.

Have Cases Succeeded Without Government Intervention?

There have, in fact, been several successful cases in which the plaintiff pursued a claim even after the government declined to intervene in the case.

That decision by the government is discretionary. So, they do not have to intervene in any particular case and they do not have to decline any particular case.

They may have a really good reason not to intervene and then again they may not. They usually will not write down a reason and they sometimes will not tell you their reason. You and your lawyer each have a tough decision.

If you go forward and you do so in the face of real evidence that you should not, if you go forward in a frivolous way, it could be tricky. There are reverse attorneys’ fees in the law if you pursue a frivolous claim.  On the other hand if you go forward and win without the government’s help, your share of any potential recovery increases to a minimum of 25% and a maximum of 30%.  Under some state False Claims Acts the percentage is even higher.  For Example the California False Claims Act has a maximum award of 50% for a case which is pursued after it is turned down by the State.

It is a very tough decision so, talk to your lawyer.

How Long Do You Have to Make the Decision?

You usually have 120 days from the moment the case is unsealed to serve the Complaint on the defendant and begin active litigation.  The resources you will need to pursue the case at this point may be more daunting.  The one thing you should have is a relationship with a lawyer you have worked with for a long time who should also know the case pretty well. This is one time you may want to have a long conversation with that person.

That lawyer may not be willing to forward at this point for any number of reasons as well.  You will want to think about those reasons.  Do they make sense to you? Do they affect your opinion of the case? It may be that the lawyer’s reasons make perfect sense and involve facts you could not have anticipated. Obviously you may need a new lawyer if you disagree with your old lawyer about pursuing the case.  Both of you may agree to go forward and both of you may agree to drop the whole thing.  You will want to know what your obligations are if you do go forward.

These are the tough decisions you will have to make if the government declines your case.

Fortunately, you do not have to make those decisions until the government makes its decision.  You have plenty of time to work with them on supporting your case first.