Senate Resolution 634, agreed to on July 1, 2020, designates July 30, 2020 as “National Whistleblower Appreciation Day”.1 The United States has long afforded praise to whistleblowers, those who bring to light frauds against the government, as noted in this Resolution. With the earliest whistleblower legislation passing on July 30, 1778 in support of ten sailors and marines who exposed fraud and misconduct against the United States Government, there is an incredibly long history of brave men and women acting in the interest of their government to protect the sanctity of business relating to government funds.2 Today, we celebrate these brave citizens for their work to expose corporate greed and to bring those accountable to justice.
What is a whistleblower?
A whistleblower is a person who, upon knowledge of an act of fraud knowingly committed by an entity in business with the government, reaches out to notify appropriate officials of said fraud. In normal circumstances, a whistleblower, coming upon said knowledge, reaches out to an attorney to discuss. If these frauds meet the elements noted within the False Claims Act (“FCA”)3, which will be discussed further below, the attorney will prepare and file a lawsuit, serving the pleadings to the appropriate government entities. This lawsuit, called a qui tam action, means the whistleblower, now known as the Relator, will act on behalf of the government when filing.
Why Do We Send the Pleadings to the Government?
As dictated in FCA Section 3730(b), complaints will be filed under seal, meaning all information, including names, will not be made public, for 60 days and must be disclosed to the U.S. Attorney whose district where the suit was filed and on the Attorney General of the United States. It is within these 60 days, with the possibility of extension, that the Government will be allowed to investigate the claims made in the complaint. The government, upon completion of their investigation, may proceed with or decline intervening in the case to prosecute. If the government proceeds, the Relator will have access to damages if a settlement or verdict is reached. If the government declines to intervene, the Relator will have full authority to proceed themselves with the case.
What Frauds Qualify as Violations of the False Claims Act?
Under Section 3729, violations of the FCA are broadly listed as knowingly:
- Presenting, or causing to be presented, a false or fraudulent claim for payment or approval;
- Making, using, or causing to be made or used, a false record or statement material to a false or fraudulent claim;
- Possessing or having custody or control of property or money used, or to be used, by the Government and knowingly delivering, or causing to be delivered, less than all of that money or property;
- Knowingly buying or receiving as a pledge of an obligation or debt, public property from an officer or employee of the Government or a member of the Armed Forces who may not lawfully sell nor pledge said property;
- Knowingly making, using, or causing to be made or used, a false record or statement material to the payment or transmission of property to the Government; or
- Conspiring to commit of any of these actions listed
Prime examples of potential actions that violate the FCA are, but not limited to:
- Healthcare Fraud – Lying to Medicare/Medicaid, billing patients for procedures that were not performed, inflating costs for patients, lying about who performed services, up charging a dental cleaning performed by a hygienist by billing for a dentist’s time, unnecessary care performed and billed
- Military Contractor Fraud – Billing for services not performed, giving false information to government agencies, false labor charges
- Much more, so long as the violations fall under the FCA
Why is this Important?
Why do we celebrate whistleblowers and their bravery for stepping forward? When it comes to government-owned property or money, it can be traced back to each of us by way of taxpayer funds. If taxpayer money is at stake, special care must be taken to ensure none is lost to fraud or inflated prices. As employees come across information showing a knowing relationship between a company and the fraud being committed, it is the moral obligation of the employee to come forward, present this information to an attorney, and begin the process of prosecuting the company in violation of the FCA. With any lawsuit, there are certain time periods within which a lawsuit must be filed, or it will be forever barred, so time is of the essence.
What is the Time Period to File These Cases?
Although the time period to file a case, also known as the statute of limitations, is determined on a case-by-case basis, the False Claims Act prescribes a set of time periods for which a qui tam action must be filed. Section 3731(b) states that, “A civil action under [S]ection 3730 may not be brought:
- (1) More than six years after the date on which the violation is committed, or
- (2) More than three years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than ten years after the date on which the violation is committed, whichever occurs last.”4
Put simply, the statute states Relators have six years from when the violation is committed OR three years from when the facts of the violation were presented, or should have been known, by the official who should act on the violation. Finally, the action cannot be brought more than ten years from the date of the violation, with the appropriate time period encompassing whichever comes later.
For example, if a Relator files a qui tam action on December 31, 2015, for healthcare fraud committed on January 1, 2010, the Relator has appropriately filed their lawsuit within the statute of limitations as prescribed in the FCA (using the six-year period as this is the longest timeframe).
If a different Relator discloses violations of the FCA committed on January 1, 2005, to the appropriate government entities on February 1, 2010, the Relator must file their complaint no later than February 1, 2013. Although the six-year time period will be expired by February 1, 2013, Relator’s disclosure to the appropriate government entities has extended his statute of limitations period to three years from the date of disclosure since this is the later date, as prescribed in the statute.
In their unanimous decision on May 13, 2019, the Supreme Court of the United States (“SCOTUS”) ruled that the limitations period as prescribed in Section 3731(b)(2) of the FCA does apply in a Relator-initiated qui tam action in which the government declines to intervene.5 Because the statute does not discriminate between intervened and non-intervened actions in Section 3731(b), stating, “A civil action under [S]ection 3730…”. By reading the plain text, the Justices found that there is no room for different application of the statute simply based on whether the government elects to intervene or not. Additionally, the Court clarified that the Relator, also named by the statute as a Private Person or Private Relator, cannot be considered “the” official of the United States, as noted in Section 3731(b)(2). Given the definite article “the”, this refers to one person, namely the U.S. Attorney General who, as noted above, must be served with the lawsuit to investigate the claims in this action—it is not the responsibility of the Private Person or Private Relator to act under these circumstances in that position.
Contact our Qui Tam Whistleblower Attorneys in St. Louis
For 20 years, our whistleblower attorneys have successfully prosecuted numerous cases and recovered millions of taxpayer dollars. Given the complex nature of statutes of limitations, we urge you to contact us immediately if you believe you have a qui tam action.
The qui tam litigators at The Simon Law Firm, P.C. are ready to hear your story, plan for the future of your case, and bring those who greedily steal taxpayer money to justice.
1 S. Res. 634, 116th Cong.
3 31 U.S.C. §§ 3729 – 3733
4 31 U.S.C. §§ 3731(b)(1-2)
5 Cochise Consultancy, Inc., et al. v. United States, ex rel. Hunt, 587 U.S. ___ (2019) (slip op.)