Contacting the Government vs. Going Public: What it Means to be a Federal Whistleblower

There are a lot of misconceptions about what it means to serve as a federal whistleblower. While some of the most famous “whistleblower” cases in U.S. history involved individuals who went public, these individuals weren’t technically whistleblowers. Serving as a federal whistleblower—and receiving the protections (and potentially the financial compensation) available under federal law—involves a protected disclosure to the federal government.

When disclosing information to the federal government, whistleblowers must do so in strict accordance with the rules and requirements of the recipient law enforcement agency. Even if a federal employee responsible has information that is of interest to the government, failing to disclose this information the right way can result in failure to secure whistleblower status. Since this can have significant legal (and potentially financial) ramifications, it is critical that prospective whistleblowers ensure they do everything that is necessary.

So, what does it really mean to be a federal whistleblower? Let’s take a closer look:

Serving as a Federal Whistleblower Generally

First, we’ll talk about what it means to serve as a federal whistleblower generally. A federal whistleblower is someone, including a personal services contractor, who discloses non-public information that the federal government can use to pursue either civil or criminal enforcement action. The information that a whistleblower discloses must also generally be unknown to the federal government, though there are exceptions in some cases. The federal government accepts whistleblower complaints in three broad areas:

• Fraud – Fraud involves submitting improper claims for payment or reimbursement to federal payors. These include contracting agencies, agencies and offices responsible for grant oversight, and federal benefit programs such as Medicare and Medicaid.
• Waste – Waste involves the excessive unproductive use of federal funds. Personnel of both private and governmental entities can commit waste that warrants federal enforcement action. 
• Abuse – Abuse involves acting in a way that exceeds an individual or entity’s authority relating to a federal contract or grant. Bribery and other forms of corruption are forms of abuse that can warrant whistleblower complaints in the public and private sectors.

Who can report fraud, waste, or abuse to other law enforcement agency as a whistleblower? Individuals who are potentially eligible to serve as federal whistleblowers include:

• Employees of Federal Contractors and Subcontractors – Employees of federal contractors, subcontractors, grantees, and personal services contractors can report fraud, waste, and abuse under federal contracts. This includes fraudulent billing, substituting inferior materials or services, failure to perform, and a wide range of other federal contract-related issues that can be a substantial and specific danger to public health or safety.
• Employees of Entities that bill Medicare, Medicaid, and Other Federal Programs – Fraud and waste under federal programs like Medicare and Medicaid costs taxpayers billions of dollars per year. These are among the most common issues raised in federal whistleblower complaints.
• Employees of Privately Held and Publicly Traded Companies – The U.S. Securities and Exchange Commission (SEC) maintains an active whistleblower program as well. Current and former employees of both privately held and publicly traded companies can report all forms of securities fraud (and related statutory and regulatory violations) to the SEC.
• Federal Employees in Certain Positions – The Whistleblower Protection Act, Whistleblower Protection Enhancement Act, and Military Whistleblower Protection Act allow federal employees to file whistleblower complaints in certain circumstances. If you are a current or former federal employee, this guide explains what you need to know about whistleblower protections.
• Other Individuals Who Have Non-Public Information About Fraud, Waste, or Abuse – From tax fraud to fraud under disaster relief programs, whistleblowers can report a wide range of other forms of fraud, waste, and abuse as well. If you believe that you have any information that may be of use to the federal government, we strongly encourage you to speak with an experienced federal whistleblower lawyer who can help you decide whether to come forward.

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Dr. Nick Oberheiden

Founder

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Former DOJ Trial Attorney

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Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

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Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

Federal Agencies that Accept Information from Whistleblowers

Along with making an informed decision about whether to come forward, another important reason to consult with a federal whistleblower lawyer is to ensure that you disclose your information to the right federal agency if you decide to blow the whistle. Federal agencies that accept whistleblower complaints include:

• Commodity Futures Trading Commission (CFTC)
• Federal Trade Commission (FTC)
• Financial Crimes Enforcement Network (FinCEN)
• Internal Revenue Service (IRS)
• Office of Special Counsel (OSC)
• U.S. Department of Health and Human Services (DHHS)
• U.S. Department of Justice (DOJ)
• U.S. Food and Drug Administration (FDA)
• U.S. Securities and Exchange Commission (SEC)

Each of these agencies only accepts certain types of whistleblower complaints—and this list is not exclusive (federal employees, in particular, may need to contact a variety of other federal entities). Additionally, each of these agencies’ whistleblower programs has a unique set of substantive and procedural requirements. As a result, prospective whistleblowers cannot simply choose an agency from this list. Rather, they must make an informed decision about which agency to contact, and then they must carefully ensure that they meet all of the requirements for securing federal whistleblower status.

The Benefits of Securing Federal Whistleblower Status

At this point, you might be wondering, “Why go through the trouble?” Is it really worth putting in the time and effort to serve as a federal whistleblower, or do you have just as much chance of doing good by going public with the information you have in your possession?

The short answer is that serving as a federal whistleblower can be well worth it for a variety of reasons, including:

1. Helping the Federal Government Hold Wrongdoers Accountable

If you have information that the federal government can use to pursue civil or criminal enforcement action, disclosing this information in a formal whistleblower complaint is the best way for you to help the government establish accountability. Not only will filing a formal whistleblower complaint allow the federal government to take action promptly, but it can also help preserve the confidentiality of the government’s investigation—which can be critical to the government’s success.

2. Receiving Protection Against (and Remedies for) Retaliation

Once you qualify as a federal whistleblower, you will be protected against retaliation based on your decision to blow the whistle. Federal laws prohibit both public and private employers from engaging in whistleblower retaliation. If your employer retaliates against you in violation of federal law, you will be entitled to clear remedies—including financial damages.

3. Receiving Whistleblower Compensation (in Some Cases)

Many federal whistleblower programs pay compensation awards to individuals who provide information that leads to successful enforcement actions. Whistleblower compensation awards can be substantial—climbing into the millions (if not tens of millions) of dollars in many cases. These awards are generally based on two key factors: (i) the amount the government recovers as a result of its enforcement action; and, (ii) the level of assistance the whistleblower provides during the process.

4. Avoiding Personal Culpability

Some (but, crucially, not all) federal whistleblower programs provide protection against personal culpability for whistleblowers who disclose wrongdoing in which they have been personally involved. If you are concerned about facing federal prosecution and are considering serving as a federal whistleblower as a way to protect yourself, you will want to consult with an experienced federal whistleblower attorney promptly.

The Risks of Failing to Secure Federal Whistleblower Status

Now, what about the risks of failing to secure federal whistleblower status? What can happen if you decide to go public instead of filing a formal whistleblower complaint with the federal government?

If you go public instead of filing a formal whistleblower complaint with the federal government, you will not be eligible for the protections discussed above. As we also discussed above, going public could potentially compromise the government’s investigation. For many people, these considerations alone are enough to seriously consider serving as a federal whistleblower.

What Are Your First Steps for Serving as a Federal Whistleblower?

Let’s say that you may be interested in serving as a federal whistleblower. If this is the case, what are your first steps? In this scenario, you should:

• Be Sure Not to Share Your Information with Anyone – As you are making your decision about what to do, you should not share your information with anyone. At this point, you should only be communicating about your potential whistleblower complaint with your attorney.
• Speak with an Experienced Federal Whistleblower Attorney – Again, if you are thinking about blowing the whistle, we strongly recommend that you speak with an experienced federal whistleblower attorney as soon as possible. At Oberheiden P.C., we provide complimentary consultations to prospective whistleblowers, and we maintain all of our clients’ information in strict confidence.
• Work with Your Attorney to Make Informed Decisions – As you weigh your options, you will want to work with your attorney to make informed decisions. While it is important that you act promptly, it is equally important that you are confident that you are making the right decisions for yourself and the country.

Speak with a Federal Whistleblower Attorney at Oberheiden P.C. in Strict Confidence

If you would like to speak with an experienced federal whistleblower attorney, we encourage you to contact us promptly for a complimentary consultation. To speak with one of our senior attorneys in strict confidence as soon as possible, call 888-680-1745 or tell us how we can contact you online now.