What is the Difference Between a Whistleblower Complaint and a Qui Tam Complaint?

Are You Thinking About Blowing the Whistle? Here’s What You Need to Know

We commend you if you are thinking about blowing the whistle on fraud, waste, or abuse in the public or private sector. It takes a lot to come forward and do the right thing. Despite the enormous volume of fraud, waste, and abuse perpetrated against the U.S. government and taxpayers every year, only a select few people come forward when they have the ability (but not the obligation) to do so.

This is why we want to help you.

As you have been researching the whistleblower process, you may have found references to filing a “qui tam” complaint. At this stage, you may wonder whether you should file a whistleblower or qui tam complaint—or you might not be clear on the difference between the two. This is understandable, and gaining clarity about safety and health complaint is important. Here’s what you need to know:

A Qui Tam Complaint is a Specific Type of Federal Whistleblower Complaint

A qui tam complaint is a specific type of federal whistleblower complaint. From the Internal Revenue Service (IRS) to the U.S. Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC), several federal agencies administer whistleblower programs. These programs allow whistleblowers to report statutory and regulatory violations that fall within each agency’s specific enforcement authority—tax fraud and tax evasion in the case of the IRS, securities and commodities fraud in the case of the SEC and CFTC.

To file a complaint under one of these programs, whistleblowers must follow the relevant agency’s specific rules and requirements. Some of these rules and requirements are much stricter than others. Additionally, while federal whistleblowers are broadly entitled to the same protections (i.e., confidentiality and protection against retaliation), some agencies offer whistleblower compensation awards under their programs while others do not.

So, where does the qui tam complaint fit in?

A qui tam action is a whistleblower complaint filed under the False Claims Act (FCA) or the Fair Labor Standards Act (FLSA). The False Claims Act is a federal statute that broadly prohibits fraud, waste, and abuse under federal contracts, programs, and grants. As the U.S. Department of Justice (DOJ) explains:

“The FCA provides that any person who knowingly submits, or causes to submit, false claims to the government is liable for three times the government’s damages plus a penalty that is linked to inflation. FCA liability can arise in other situations, such as when someone knowingly uses a false record material to a false claim or improperly avoids an obligation to pay the government. Conspiring to commit any of these acts also is a violation of the FCA.”

“False claims” can take many different forms, though all forms involve efforts to obtain federal funds that the federal government is not obligated to pay. Billing for materials or services not delivered under federal contracts, billing for medically unnecessary services under Medicare or Medicaid, and submitting false information to secure federal grant renewals are just a few common examples of numerous possibilities.

“Qui tam” translates to “in the name of the king,” and federal whistleblowers who file qui tam complaints are seeking to recoup federal funds on behalf of the government. We have published an in-depth discussion of the qui tam process previously. But essentially, when a federal whistleblower files a qui tam complaint, the DOJ will investigate (it is required to do so as long as the complaint is valid), and then it will decide whether to pursue legal action. If the DOJ decides to pursue legal action, this is referred to as “intervention,” and while the whistleblower will remain involved, his or her role will be relatively limited on the qui tam case. If the DOJ declines to intervene, the whistleblower can file qui tam lawsuits directly on the federal government’s behalf.

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Founder

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Lynette S. Byrd

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)

Qui Tam Whistleblowers Are Eligible for Both Protection and Compensation

As we mentioned above, not all federal whistleblower programs include compensation provisions. However, whistleblower compensation is a core component of the qui tam complaint process. Due to the nature of qui tam cases, the government is often reliant on private citizens to come forward, and the FCA’s compensation provisions are intended specifically to incentivize those who might not otherwise be willing to commit their time and effort to aid with qui tam law enforcement. The DOJ makes this clear as well, stating:

“In 1986, Congress strengthened the False Claims Act by increasing incentives for whistleblowers to file qui tam lawsuit alleging false claims on behalf of the government. These whistleblower, or qui tam, actions comprise a significant percentage of the False Claims Act cases that are filed.”

The whistleblower protections afforded to qui tam whistleblowers include confidentiality protections and protection against retaliation. While it is not possible to file a qui tam complaint anonymously, the DOJ is committed to protecting whistleblowers’ identities, and it will maintain confidentiality for as long as possible (in many cases, this is indefinitely). Your attorney can assist with protecting your identity as well. Qui tam whistleblowers are also entitled to protection against retaliation, which means that even if your employer discerns your identity, it will be prohibited from taking adverse action against you based on your decision to come forward.

In terms of compensation, qui tam whistleblowers are generally entitled to between 15% and 30% of the federal government’s recovery resulting from their complaint. If the DOJ intervenes, the award will be in the range of 15% to 25%; and, if the DOJ declines to intervene, the award will be in the range of 25% to 30%. Several factors go into determining the amount of a qui tam whistleblower’s award, including most significantly the level of assistance the whistleblower provides.

Filing a Qui Tam Complaint in Federal District Court

For whistleblowers who have information about False Claims Act violations, blowing the whistle starts with filing a qui tam complaint in federal district court. This is very different from filing a complaint under most federal whistleblower programs, which generally involves contacting the relevant agency directly. Once you file your complaint in court, the DOJ will examine the complaint and launch its investigation—provided that your complaint meets the basic threshold requirements.

From this point forward, you—or your qui tam attorney—will mostly be working with agents and prosecutors at the DOJ. Generally speaking, the more assistance you can provide, the better. The next major step is the DOJ’s decision regarding intervention; and, as a qui tam whistleblower, you want to try to make sure that you have as much input into this decision as possible.

FAQs: Federal Whistleblower Complaints vs. Qui Tam Complaints