Orange, California – False Claims Act and Whistleblower Attorneys
Stephen Danz and Associates represents whistleblowers throughout the United States. Our practice includes the highly specialized and complex Qui Tam lawsuits where private individuals called relators trust our attorneys to bring forth their cases in Southern California courts. Over the last thirty years since the 1986 amendments to the False Claims Act (“FCA”), the FCA has become the main weapon in the government’s arsenal to battle fraud, waste and abuse on federal and state governments.
The FCA was first enforced in the Civil War to handle procurement fraud by suppliers to the Union Army. It was rarely used by the government until it was amended in 1986. The 1986 amendments, combined with the 2009 and 2010 amendments, bolstered several key sections of the FCA statutes. These included the whistleblower and damages sections where they made it easier for the government and whistleblowers to file lawsuits. (31 U.S.C. §§ 3729-3733.) Note that each city and county is represented by a unique court system, and Orange, California is no exception. Please contact our attorneys to discuss your potential case.
The Whistleblower Protection Act of 1989 (WPA), as amended by the Whistleblower Protection Enhancement Act of 2012 (WPEA). It discusses whistleblower protections for federal employees under the WPA, including protected disclosures, covered federal employers, elements of the two classes of retaliation claims, the roles of the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB) in adjudicating whistleblower retaliation claims, and remedies available under the WPA. This Note covers federal law and applies only to federal employees.
Perceived Whistleblowing
The WPA protects an individual perceived as a whistleblower, regardless of whether the individual actually made a disclosure (King v. Dep’t of the Army, 116 M.S.P.R. 689, 694 (MSPB 2011)). In analyzing perceived whistleblower cases, the MSPB focuses on whether the agency officials involved in the retaliatory personnel actions believed that the employee made or intended to make a disclosure evidencing the type of wrongdoing listed under Section 2302(b)(8). Whether the employee actually made a protected disclosure is irrelevant. The employee prevails if the agency perceived the employee as a whistleblower. (King, 116 M.S.P.R. at 695-96.)
Exceptions to Protected Disclosures
Unless made to OSC or an agency IG, a disclosure is not protected under § 2302(b)(8) where either of the following is true:
• Disclosing the information is specifically prohibited by law.
• An executive order requires the information to be kept secret in the interest of national defense or the conduct of foreign affairs.
(5 U.S.C. § 2302(b)(8)(A).)
Only information specifically prohibited from disclosure by a statute falls within the first exception. An agency rule or regulation is not a “law” under Section 2302(b)(8)(A). (Dep’t of Homeland Sec. v. MacLean, 135 S. Ct. 913, 921 (2015).)
For a law to specifically prohibit a disclosure, it must also do one or more of the following
• Delineate particular types of matters that must not be disclosed.
(MacLean, 135 S. Ct. at 918.)
Agencies must inform employees of the means by which an employee can lawfully disclose classified information to:
• OSC.
• The agency’s IG.
• Congress.
• Another agency employee designated to receive classified disclosures.
(5 U.S.C. § 2302(c)(2)(iii).)
The WPA does not protect disclosures that solely involve wrongdoing by private entities (Aviles v. Merit Sys. Prot. Bd., 799 F.3d 457, 464-66 (5th Cir. 2015)). In Aviles, a former Internal Revenue Service (IRS) employee claimed the IRA removed him because he revealed an alleged tax fraud perpetrated by a private corporation and claimed IRS officials covered up the fraud. The Fifth Circuit affirmed the MSPB’s decision dismissing his whistleblower retaliation claim because his:
• Disclosures about alleged fraud by the private entity were not protected under the WPA.
• Allegations about IRS officials’ involvement were too speculative to support his retaliation claim.
(Aviles, 799 F.3d at 466-67.)
Personnel Actions Under Section 2302(b)(8)
The WPA covers a broad interpretation of “personnel action,” including the following types of actions:
• An appointment.
• A promotion.
• An action under Chapter 75 of Title 5 or other disciplinary or corrective action.
• A detail, transfer, or reassignment.
• A reinstatement.
• A restoration.
• A reemployment.
• A performance evaluation under Chapter 43 of Title 5 or under Title 38.
• A decision concerning pay, benefits, or awards.
• A decision concerning education or training if the education or…
Interprets “threats” broadly and has found that the following actions are threats to take disciplinary action:
• A memorandum of warning (see Campo v. Dep’t of the Army, 93 M.S.P.R. 1, 3 ¶ 5 (MSPB 2002)).
• A proposal to take a Chapter 75 or other disciplinary or corrective action (see Campo, 93 M.S.P.R. at 3-4 ¶ 6-8).
• A performance improvement plan (PIP) (see Czarkowski v. Dep’t of the Navy, 87 M.S.P.R. 107 (MSPB 2000)).
• A record of an agency’s investigation into an employee’s purported questionable conduct for which the employee faced potential disciplinary action (see Gergick v. Gen. Servs. Admin., 43 M.S.P.R. 651 (MSPB 1990)).