Whistleblowers play a critical role in the government’s quest to crack down on fraud through qui tam suits. In fact, the government considers whistleblowers – or “relators” – to be so important that, as a matter of law, relators are entitled to 15% to 25% of the final settlement amount.
Oftentimes, relators are employees or former employees of the defendant who have come in contact with documents or information in the course of their employment that point to fraudulent activity, or other wrongdoing, on the part of their employer. In most cases, the whistleblower is an employee of a private company, but in some cases, a government employee may become aware of fraudulent activity in violation of the False Claims Act (FCA).
Until recently, there has been some question about whether or not federal employees are permitted to bring a private FCA action, but last year, the Fifth Circuit held that a federal employee – “even one whose job it is to investigate fraud” – can be considered a “person” under the False Claims Act.
In U.S. ex rel. Little and Arnold v. Shell Exploration & Prod., et al., 2012 WL 3089777 (5th Cir. 2012), the relators were two employees for the Minerals Management Service, an agency within the Department of the Interior, whose jobs consisted primarily of uncovering theft or fraud in government lease royalty programs. The relators brought their claims in accordance with FCA procedures, and the government declined to intervene. Thereafter, the relators brought a private action pursuant to the FCA, on behalf of the government. A Texas district court granted summary judgment to defendants on the grounds that the relators, as government employees, were prohibited from bringing an FCA action.
Specifically, Section 3730(b)(1) of the FCA provides:
- (b) Actions by private persons.—(1) A person may bring a civil action for a violation of section 3729 for the person and for the United States Government. The action shall be brought in the name of the Government. The action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting.
Accordingly, the defendant argued that “actions by private persons” were limited to non-governmental persons. Specifically, they argued that “private” should be interpreted to exclude a sub-class of federal employees – namely those federal employees whose job it is to investigate fraud.
The Fifth Circuit disagreed with the defendants and the district court, however, holding that there was no reason to circumvent the “ordinary or natural meaning” appropriate for undefined terms within the law. The court further noted that a person can have two legal identities, one official and one individual. Because the relators had not committed a crime in connection with their FCA action, there was no conflict of interest to bar their lawsuit.
Whistleblower employees face a number of unique issues and challenges pertaining to their employment rights and their ability to bring an FCA claim. Accordingly, it is highly recommended that you retain skilled legal counsel upon discovering fraudulent activity. The knowledgeable and skilled whistleblower attorneys at Goldberg Kohn focus on representing relators and other whistleblowers involved in qui tam actions, including those filed under the False Claims Act. According, we have the critical knowledge and experience you need and we can advise you on how to proceed with respect to confidential documents. Contact us at (312) 863-7222 to learn how we can help you pursue your whistleblower claims.