Federal Statute 31 U.S.C. § 3730(b) requires persons who wish to file a whistleblower action (“relators”), under the False Claims Act do so in the name of the United States Government. The relator must prepare and file a complaint and written disclosure statement, both of which are filed under seal, meaning the documents are not available for public view. Once filed, the complaint remains sealed for at least sixty (60) days and cannot be served on the named defendants until the court removes the seal and orders that the complaint be served.

Once the complaint and disclosure statement are filed and served on the government, section 3730(b) provides that the government has sixty days to review the complaint and “material evidence and information” to decide whether to intervene and proceed with the action. The section also requires that the relator’s disclosure statement provide the government “substantially all material evidence and information the person possesses.”

The government can, and often does, seek extensions of time to investigate the allegations brought forward by the relator. Section 3730(b)(3) allows the government, “for good cause shown,” to seek extensions from the court. During these extensions, the complaint remains under seal while the government continues with its investigation.

A relator must be represented by counsel in order to pursue a claim under the False Claims Act. The reason for this is rather straightforward - although individuals may represent themselves as pro se litigants in federal courts, whistleblower or qui tam actions are brought on behalf of the United States Government. Federal courts, and many state courts, do not allow non-attorneys to represent or pursue claims on behalf of another party.

If the government intervenes, it assumes responsibility for prosecuting the whistleblower action against the defendant. If this happens, the relator is still allowed to participate in the litigation. The relator and the government share a similar interest in the litigation, so the relator should seek to assist the government where appropriate. The relator is entitled to a hearing should the government decide to voluntarily dismiss the action. The relator is also allowed a hearing to determine the reasonableness of a settlement. After the relator has filed his complaint, section 3730(b)(5)’s “first to file” rule kicks in, which provides that “no person other than the government may intervene or bring a related action based on the facts underlying the pending action.”

Once a relator commences a case, he or she and the relator’s attorney should be prepared to participate in a relator interview. The interview allows attorneys from the Department of Justice to meet the relator and begin its investigation. Often, representatives from other government agencies will have reviewed the relator’s complaint and disclosure statement and participate in the interview.

Additional information regarding the United States Department of Justice’s Whistleblower Program is available on its website: https://oig.justice.gov/hotline/whistleblower-protection.htm

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Jason Cornell is an attorney who represents whistleblowers with the law firm Clark Fountain LaVista Prather Keen & Littky-Rubin. Clark Fountain represents plaintiffs in various matters throughout the United States. If you have questions regarding the issues addressed in this or other posts, you can reach Jason at jcornell@clarkfountain.com.