Westminster, 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. For any potential relators in Westminster, California, please contact our office for confidential and complimentary consultation.
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.)
Causation in OSC Corrective Action Cases
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.
The WPEA adopted the “contributing factor” causation standard used in Section 2302(b)(8) cases for cases that involve:
• Exercising appeal, complaint, or grievance rights related to whistleblowing activity under Section 2302(b)(8) (5 U.S.C. § 2302(b)(9)(A)(i)).
• Testifying for or otherwise lawfully assisting any individual in filing an appeal, complaint, or grievance right granted by law, rule, or regulation (5 U.S.C. § 2302(b)(9)(B)).
• Cooperating with or disclosing information to an agency IG or OSC (5 U.S.C. § 2302(b)(9)(C)).
• Refusing to obey an order that would require the individual to violate a law (5 U.S.C. § 2302(b)(9)(D)).
(5 U.S.C. § 1214(b)(4)(B)(i); see Causation Under Section 2302(b)(8).)
However, for cases brought under Section 2302(b)(9)(A)(ii) (exercising appeal, complaint, or grievance rights not related to whistleblowing under Section 2302(b)(8)), the pre-WPEA causation standard still applies. Under the pre-WPEA standard:
• OSC must show by a preponderance of the evidence that the protected activity was a substantial or motivating factor in the personnel action.
• The burden then shifts to the agency to prove, by preponderant (not clear and convincing) evidence, that it would have taken the same action in the absence of the protected activity.
(See Savage v. Dep’t of the Army, 122 M.S.P.R. 612, 638 n.12 (MSPB 2015).)
Causation in OSC Disciplinary Action Cases
For disciplinary action claims brought under Section 2302(b)(8) and (b)(9)(A)(i), (B), (C), and (D), the WPEA codified the significant-motivating-factor test originally articulated in Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274 (1977). The Board may discipline an agency official if it determines that an employee’s protected activity was a “significant motivating factor” in that official’s decision to take or threaten to take a personnel action, even if other factors also motivated the decision. The Board does not discipline the agency official, however, if the agency official demonstrates by preponderant evidence that the official would have taken or threatened to take the same personnel action had the protected activity not occurred (5 U.S.C. § 1215(a)(3)(B).)
The statutory language describing the causation test in OSC disciplinary action cases excludes Section 2302(b)(9)(A)(ii) (exercising appeal, complaint, or grievance rights not related to whistleblowing under Section 2302(b)(8)) (see 5 U.S.C. § 1215(a)(3)(B)). Therefore, the significant-factor test in Special Counsel v. Nielson, a pre-WPEA case that articulated the causation for OSC disciplinary actions, may still apply to OSC disciplinary action cases brought under Section 2302(b)(9)(A)(ii) (71 M.S.P.R. 161, 171 (MSPB 1996)). Under Nielson, OSC must show that the protected activity was a significant factor in the adverse personnel action, where a “significant factor” is one that “played an important role in the allegedly retaliatory action,” as opposed to one that was “tangentially related” to the protected activity (Nielson, 71 M.S.P.R. at 171).
Agency Affirmative Defense
An agency can defeat a claim under the WPA only by showing, by clear and convincing evidence, that it would have taken the challenged action in the absence of the protected disclosure (5 U.S.C. § 1214(b)(4)(B)(ii)). This is an intentionally high burden of proof (Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012)).
The MSPB considers three factors in determining whether an agency meets this burden:
• The strength of the agency’s evidence in support of its action.
• The existence and strength of any motive to retaliate on the part of the agency officials involved in the decision.
• Any evidence that the agency takes similar actions against employees who are not whistleblowers but are otherwise similarly situated.
(Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).)
The agency’s clear and convincing burden applies to employee claims under Section 2302(b)(8) and most claims under Section 2302(b)(9). However, the agency’s burden to defeat claims under Section 2302(b)(9)(A)(ii) is only preponderance of the evidence.
Whistleblower Adjudication Under the WPA: Procedural Considerations
The procedures for enforcing a federal employee’s rights under the WPA differ for:
• Otherwise appealable actions (see Otherwise Appealable Actions).
• Complaints filed with OSC (see OSC Complaints of Whistleblower or Other Retaliation).
• IRA appeals (see IRA Appeals).
(5 C.F.R. § 1209.2(d).)