When NJ employees think of whistleblower claims, they may commonly think of the claims filed under New Jersey Conscientious Protection Act (CEPA). See New Jersey Whistleblower Laws Attorney. These arise when an employer retaliates against an employee reported or objected or refused to participate in any activity, policy or practice they believed to be illegal. To read more, see NJ Employment Attorney, Auditor Employees have Whistleblower Protection.
Employees and Non-Employees and the False Claims Act
However, employees who have knowledge their employer is committing fraud against the United States Government, such as Medicare fraud or contractors fraudulently billing the US government for work never done, possibly may bring a claim under the Federal False Claims Act (FCA), and receive a percentage of recovered funds under what is known as the qui tam provisions. These types of claims may also be brought by non-employees. More on the qui tam provisions shall be provided next week.
Note: This article is not intended to provide legal advice or take formal positions. This article should not be construed as giving legal advice, nor should it be relied upon in filing a claim. Successful False Claims Act claims are among the most complex of legal claims. If you think you may have any type of a whistleblower claim, you should contact an experienced whistleblower attorney.
What is the False Claims Act?
The False Claims Act, 31 U.S.C. § 3729 et seq., sets forth FCA liability for any person who knowingly submits a false claim to the government or causes another to submit a false claim to the government or knowingly makes a false record or statement to get a false claim paid by the government. The FCA defines a claim as a demand for money or property made directly to the US Federal Government, or to a contractor, grantee, or other recipient if the money is to spent on the government’s behalf and if the Federal Government provides any of the money demanded or if the Federal Government will reimburse the contractor or grantee.
What is meant by “knowingly”?
A person does not violate the FCA merely by submitting a false claim to the government; to
violate the FCA a person must have submitted, or caused the submission of, the false claim (or
made a false statement or record) with knowledge of the falsity.
Under § 31 U.S.C. 3729(b)(1), knowledge of false information is defined as being:
(1) actual knowledge,
(2) deliberate ignorance of the truth or falsity of the information, or
(3) reckless disregard of the truth or falsity of the information.
The Reverse False Claims Section
Section 3729(a)(1)(G) of the FCA is known as the reverse false claims section. This section establishes liability where one acts improperly to avoid having to pay money to the government rather than illicitly receiving money from the government.
But note: under the Tax claims exclusion in § 3729(d), the FCA states that the statute does not apply to tax claims under the Internal Revenue Code.
Seven Types of Prohibited Conduct under the FCA
Under 31 U.S.C. §3729 (a)(1), general descriptions of prohibited acts are when any person:
(1) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;
(2) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;
(3) conspires to commit a violation of subparagraph (A), (B), (D), (E), (F), or (G);
(4) has possession, custody, or control of property or money used, or to be used, by the Government and knowingly delivers, or causes to be delivered, less than all of that money or property;
(5) is authorized to make or deliver a document certifying receipt of property used, or to be used, by the Government and, intending to defraud the Government, makes or delivers the receipt without completely knowing that the information on the receipt is true;
(6) knowingly buys, or receives 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 lawfully may not sell or pledge property; or
(7) knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.
Accessing Damages and Penalties
If a person is culpable in any of listed seven types of conduct that result in FCA liability, the FCA provides that one who is liable must pay a civil penalty of between $5,000 and $10,000 for each false claim (those amounts are adjusted from time to time; the current amounts are $5,500 to $11,000) and treble the amount of the government’s damages.
Reduced Damages
Where a person who has violated the FCA reports the violation to the government under certain conditions, the FCA provides that the person shall be liable for not less than double damages.
The statute states that if the court finds that:
(A) the person committing the violation of this subsection furnished officials of the United States responsible for investigating false claims violations with all information known to such person about the violation within 30 days after the date on which the defendant first obtained the information;
(B) such person fully cooperated with any Government investigation of such violation; and
(C) at the time such person furnished the United States with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced under this title with respect to such violation, and the person did not have actual knowledge of the existence of an investigation into such violation, the court may assess not less than 2 times the amount of damages which the Government sustains because of the act of that person.
Costs of civil actions. A person violating this subsection shall also be liable to the United States Government for the costs of a civil action brought to recover any such penalty or damages.
Again, note: This article is not intended to provide legal advice or take formal positions. This article should not be construed as giving legal advice, nor should it be relied upon in filing any type of claim, whistleblower or otherwise. Successful whistleblower claims are among the most complex of legal claims. If you think you may have any type of whistleblower claim, you should contact an experienced whistleblower attorney.
Don’t Sit on Your Rights
I have represented whistleblowers who were illegally discriminated against by their employers, and was successful in recovering financial compensation for their emotional pain and suffering and moneys for lost wages, both for past lost wages and projected future lost wages. If you think you are being discriminated against, you should contact this office immediately for a free consultation. See Employment/Civil Rights Law. I accept employment discrimination and whistleblower cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.