Concepts and Procedures in Whistleblower Law

By Stephen M. Kohn | Go to book overview

Chapter 6
The False Claims Act:
Qui Tarn Provisions and
Whistleblower Protection

The False Claims Act (FCA)1 is the major law utilized to "ferret out fraud against the federal government."2 It was enacted during the Civil War at the "behest" of President Abraham Lincoln to "control fraud in defense contracts" and was subsequently the subject of two important amendments, one in 1943 and the second in 1986.3 It contains two sections highly relevant to whistleblowers.

First, the law contains a qui tam4 provision which permits private citizens and "original sources" to file suit on behalf of the United States to recover damages incurred by the government as a result of fraud. In return for filing the suit, the whistleblower is entitled to a significant "cut of the judgment proceeds should they prevail."5 In this manner, a whistleblower can obtain a large monetary award if he or she follow the "complex" procedures set forth in the FCA when seeking to enforce that antifraud law.6 With mixed results, the constitutionality of various aspects of the qui tam provision have been vigorously challenged by the defense bar.7

Second, the law also contains an antiretaliation provision that prohibits the discharge or harassment of a whistleblower who makes FCAprotected disclosures or files a qui tam suit.8 Unlike the qui tam provisions, which allow the whistleblower to obtain a portion of the recovery obtained by the United States due to a violation of the FCA, the antiretaliation provision was modeled after other federal whistleblower laws and operates under the basic principles underlying employment discrimination cases.

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