Can a member of the military or other government employee serve as a whistleblower in a qui tam case under the False Claims Act?
The short answer is “yes” — military personnel and other government employees can serve as whistleblowers/relators in a qui tam action pursuant to the federal False Claims Act. But, the path must be navigated carefully to ensure the relator’s success.
Case in point: the James Hoyer law firm recently announced the settlement of a qui tam case between the United States and Science Applications International Corporation (SAIC) that was filed by a member of the military. In that case, James Hoyer had the privilege of representing a very courageous relator, Timothy Ferner, who was a lieutenant colonel in the United States Air Force when he became aware of SAIC’s efforts to obtain government contracts by circumventing the competitive bidding process. Lt. Col. Ferner’s qui tam suit resulted in SAIC returning $5.75 million to the government, and Lt. Col. Ferner was ultimately awarded with a relator’s share of those proceeds.
The SAIC settlement would not have been possible if the federal False Claims Act (“FCA”) prevented government employees from serving as qui tam relators. In 1991, shortly after the modern version of the False Claims Act was signed into law, the Eleventh Circuit addressed the issue of a government employee acting as a relator in a case called U.S. ex rel. Williams v. NEC Corp., 931 F.2d 1493 (11th Cir. 1991). The court found, “[N]othing in the False Claims Act prohibits a government employee from filing a qui tam action based upon information acquired while working for the government.” Id. at 1494.
In that case, Williams was an attorney for the Air Force when he encountered the fraud alleged in his qui tam complaint. The United States argued that Williams was excluded from being a whistleblower because of his status as a government employee. The Williams court conducted a lengthy analysis of the public disclosure section to determine whether any portion of the FCA precluded a qui tam suit by a government employee. The court did acknowledge that there may be difficulties inherent in a case involving a relator who is a government employee, but determined that the plain language of the FCA permitted a government employee to serve as a relator. Id. at 1503. As a result, Williams’ qui tam was permitted to move forward.
The public disclosure section of the FCA has been amended in the 22 years since the Williams decision, but it has never been changed to exclude government employees from being relators. In that time, each court that has evaluated the issue has found that the FCA does not exclude government employees, including members of the military. As recently as 2012, the Fifth Circuit conducted a lengthy evaluation of government-employee relators and determined, “[T]here is no basis to except such an employee from personhood [which allows them to act as a relator.]” Little ex rel. United States v. Shell Exploration & Production Co., 690 F.3d 282 (5th Cir.2012).
It is important to note that while the FCA does not prohibit a member of the military from being a relator, it does place a limitation against whom a military relator may bring a qui tam suit. Specifically, the False Claims Act says that a former or present member of the armed forces may not bring a qui tam suit “against a member of the armed forces arising out of such person’s service in the armed forces.” 31 U.S.C. 3730(e)(1).
Despite the fact that the FCA plainly allows government-employee or military relators, the specialized nature of these cases requires experienced qui tam counsel to protect the relators’ interests.
If you are a member of the military or other government employee with knowledge of fraud against the government and you are considering bringing a qui tam case, please contact James Hoyer for an evaluation of your claims. Click here for more information about the firm and to submit your information electronically, or you may contact our office at 813-397-2300.
Written by Elaine Stromgren