Santa Ana, California – False Claims Act and Whistleblower Attorneys
Stephen Danz and Associates represents whistleblowers throughout the United States. California has its own State and federal courts and therefore requires specialized knowledge and experienced attorneys. Our firm has attorneys dedicated to litigation throughout California and in particular Santa Ana, California. Our practice includes the 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.)
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.
Employment Actions that Are Not Personnel Actions
The MSPB has determined that certain actions are not personnel actions for the purposes of whistleblower protection under the WPA. These include:
• An arrest by an agency police officer (Weber v. Gen. Serv. Admin., 54 M.S.P.R. 444, 446 (MSPB 1992)).
• Comments directing an employee to “find another job” (Shivaee v. Dep’t of the Navy, 74 M.S.P.R. 383, 387 (MSPB 1997)).
• Denying or revoking an employee’s security clearance (Dep’t of the Navy v. Egan, 484 U.S. 518, 526-32 (1988)).
Merely opening an investigation into an employee’s conduct is not a personnel action. However, employees can seek compensation for defending against retaliatory investigations. An employee may recover fees, costs, or damages reasonably incurred due to an agency investigation of the employee if the agency began, expanded, or extended the investigation to retaliate against the employee for the disclosure.
Once the employee demonstrates the official’s knowledge and timing, the employee has established a prima facie case of retaliation. It is improper for the administrative judge (AJ) to consider further evidence on the issue of causation (Carey v. Dep’t of Veterans Affairs, 93 M.S.P.R. 676, 681–82 (MSPB 2003)).
Circumstantial Evidence of Causation
If the employee fails to demonstrate both knowledge and timing, the MSPB considers available circumstantial evidence to determine whether any other factor potentially affected the outcome of the personnel action (see Jones v. Dep’t of Interior, 74 M.S.P.R. 666, 678 (MSPB 1997) (failing to find contributing factor); see also Marano v. Dep’t of Justice, 2 F.3d 1137, 1143 (Fed. Cir. 1993)).
Proving Retaliation for Exercising Whistleblowing, Complaint, Appeal, or Grievance Rights Under WPA Section 2302(b)(9). To prove retaliation for exercising whistleblowing, complaint, appeal, or grievance rights under Section 2303(b)(9), an employee must prove, by a preponderance of the evidence, the following four elements:
• The employee (or someone identified with the employee) engaged in a protected activity (see Protected Activity Under Section 2302(b)(9)).
• The agency took, failed to take, or threatened to take a personnel action (see Personnel Actions Under Section 2302(b)(9)).
• The official responsible for the personnel action had knowledge of the employee’s protected activity (see Knowledge Under Section 2302(b)(9)).
• There was a causal connection (or nexus) between the employee’s protected activity and the personnel action (see Causation Under Section 2302(b)(9)).
The WPEA split Section 2302(b)(9)(A) claims into two.
Protected Activity Under Section 2302(b)(9)
The WPA Section (b)(9)(A) protects an employee’s exercise of “any appeal, complaint, or grievance right granted by law, rule, or regulation,” including complaints filed in a formal adjudicative proceeding (Owen v. Dep’t of the Air Force, 63 M.S.P.R. 621, 627 (MSPB 1994)). The MSPB has interpreted “any appeal right” to include:
• Filing EEO complaints and appeals (see, for example, Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679 (Fed. Cir. 1992)).
• Filing grievances (see, for example, Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569, 1574-75 (Fed. Cir. 1996)).
• MSPB appeals (see, for example, Luecht v. Dep’t of the Navy, 87 M.S.P.R. 297, 302 (MSPB 2000)).
• Unfair labor practice (ULP) charges (see, for example, Grant v. Dep’t of the Air Force, 61 M.S.P.R. 370, 377 (MSPB 1994)).
• Requests under the Privacy Act to correct allegedly false information in personnel records (Santillan v. Dep’t of the Air Force, 53 M.S.P.R. 487, 491 (MSPB 1992)).
• PPP complaints to OSC (Booker v. U.S. Postal Serv., 53 M.S.P.R. 507, 509 (MSPB 1992)).
• Civil lawsuits (Creer v. U.S. Postal Serv., 62 M.S.P.R. 656, 660 (MSPB 1994)).
• Preparatory activity, including:
• union-related activities, such as attempting to organize and establish a union (see Ireland v. Dep’t of Health and Human Serv., 34 M.S.P.R. 614, 620 (MSPB 1987)) or helping union members to file grievances (see Page v. Dep’t of the Navy, 101 M.S.P.R. 513, 516 (MSPB 2006));
• A disciplinary action case brought by OSC under Section 2302(b)(9), where OSC seeks disciplinary action against the agency official responsible for taking a personnel action against an individual in retaliation for the individual’s protected activity (see Causation in OSC Disciplinary Action Cases).
• A matter appealed by an employee facing disciplinary action under 5 U.S.C. § 7701, who alleges Section 2302(b)(9) as an affirmative defense (see Causation in Employee Appeals Alleging Section 2302(b)(9) as an Affirmative Defense).