The Qui Tam Blog

By: Joel Androphy, Rachel Grier, and Stephanie Gutheinz

Senator Claire McCaskill’s whistleblower protection amendment to the American Recovery and Reinvestment Act of 2009 includes provisions to ensure that employees are able to disclose waste, fraud, or mismanagement related to stimulus funds.  The protections afforded by the McCaskill Amendment are in addition to the whistleblower protections provided by the False Claims Act.  The McCaskill Amendment applies to state and local governments, private contractors, and other non-Federal employers receiving a contract, grant, or other funds made available by the economic stimulus bill.  The McCaskill Amendment protects employees that disclose information, either to a supervisory authority over the employer or to another employee that has the authority to investigate misconduct, that the employee reasonably believes is evidence of:

• gross mismanagement of an agency contract or grant related to stimulus funds;
• gross waste of stimulus funds;
• a substantial and specific danger to public health or safety related to the implementation or use of stimulus funds;
• an abuse of authority related to the implementation or use of stimulus funds; or
• a violation of law, rule, or regulation related to an agency contract or grant relating to stimulus funds. 

Furthermore, disclosures made by employees in the ordinary scope of employment are also specifically protected.  Any employee engaged in protected conduct is protected against retaliation by the employer, including discharge, demotion, or other discrimination.  If an employee suspects that he or she has been retaliated against for engaging in protected conduct, the employee must file a complaint with the appropriate inspector general.  As currently written, the McCaskill Amendment provides no statute of limitations to file this complaint.  In order for an employee to establish a retaliation claim under the McCaskill Amendment, the employee is only required to prove that the protected conduct was a “contributing factor.”  While an employee is required to exhaust all administrative remedies first, the McCaskill Amendment expressly provides that pre-dispute arbitration agreements are not binding for claims brought under the Amendment. If the employee prevails, the employee is entitled to reinstatement, back pay, compensatory damages, attorneys’ fees, and litigation costs. 

By: Joel Androphy, Rachel Grier, and Stephanie Gutheinz

FCA liability will attach when a false statement is relevant to the government’s decision to confer a benefit, even if the false statement is made by an individual that is not a party to the claim submitted to the government for payment.  This is because the FCA contemplates liability for causing the government to approve a false claim, in addition to causing the government to pay a false claim.  Therefore, a vendor who falsely certifies the creditworthiness of a potential homebuyer for purposes of obtaining Department of Housing and Urban Development (HUD) insurance for mortgage-secured loans will be liable under the FCA if and when the homebuyer submits a claim to HUD after defaulting on the loan.  This is true despite the fact that the vendor is not a party to the claims submitted to HUD because the vendor’s false statements with regard to the creditworthiness of the purchasers induced the government to insure homes, approve claims, and confer a benefit of monetary payments to the homebuyers.  United States v. Eghbal, 548 F.3d 1281 (9th Cir. 2008).