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The False Claims Act (FCA) is designed to help prevent fraud against the federal government. The FCA allows the government to pursue claims against individuals or entities who defraud the government or government programs.

The False Claims Act is also important for whistleblowers. The FCA allows whistleblowers to file a lawsuit on behalf of the government, and if that suit is successful, the whistleblower is entitled to a portion of what the government is able to recover. In addition to providing an incentive to whistleblowers, the FCA also protects whistleblowers who come forward by prohibiting employer retaliation against the whistleblower. 

Three Ways the Government Can Be Involved

After the whistleblower files a complaint, the government has 60 days to investigate the whistleblowers' allegations under the FCA. The government, however, may seek extensions of that 60 period to continue its investigation and, most often, the investigation period lasts for several years. Eventually, though, the government must decide which of three options to take with regard to the whistleblower's complaint.  The government can decide to:

  • Have the case dismissed;
  • Intervene in, or join, the case; or
  • Decline to intervene in the case.

The government may decide to decline intervention for many reasons, including the evidence available, the scope of the alleged fraud, the likelihood of recovery, the overall importance of the case, and many other factors, often unrelated to the merits of the allegations. If the government declines to intervene, they essentially leave the road clear for the whistleblower to pursue a False Claims Act lawsuit without government involvement. The whistleblower can determine whether they wish to pursue the claim or not.

If any recovery is made in the case, the government retains the right to receive the recovery, but the whistleblower will be entitled to a greater percentage of the government's recovery as a reward for pursuing the case without government assistance, demonstrating that the FCA was designed to encourage whistleblowers to pursue cases even when the government does not get involved. 

The government may decide to intervene in a whistleblower's case when the government believes that the whistleblower's allegations have merit and are sufficiently important. When the government intervenes, it essentially takes over the case, prosecuting the alleged fraudster on its own. The government will sometimes rely heavily on the whistleblower and the whistleblower's counsel to help in the prosecution of the case, particularly when the government has a positive relationship with the whistleblower and faith in the whistleblower's counsel.

On some rare occasions, the government will move to have the whistleblower's complaint dismissed outright, preventing the whistleblower from moving forward altogether. This option is used primarily when the whistleblower's allegations are without merit and run the risk of interfering with the government's objectives.

Government Intervention – DynCorp False Claims Act Case

The government intervenes in only a small percentage – approximately 25% – of all FCA cases that are filed. When the government intervenes, however, the government and the whistleblower are usually successful.  

In a recent July 2016 case against DynCorp International Inc., the government decided to intervene following the initial investigation. In this case, the company held a State Department contract to train Iraqi police forces, but the lawsuit alleged DynCorp permitted subcontractors to charge excessive and uncorroborated fees for lodging, recruitment and additional costs, and submitted these fees in claims filed with the State Department. In addition, DynCorp allegedly added its own charges to these fees before submitting them to the State Department.

Goldberg Kohn has filed many cases on behalf of its whistleblower clients in which the government has decided to intervene. Because the government declines to intervene in most FCA cases, it is important to have counsel who can litigate the case even when the government does not join the lawsuit. Goldberg Kohn has the experience and ability to do so. If you have evidence of fraud affecting government contracts, funds or programs, contact Goldberg Kohn for a free and confidential consultation today.