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Federal Employees, the First Amendment, Whistleblower Protection and the False Claims Act: Why Federal Employees Should Blow the Whistle

Jesse Klaproth on 7/23/2017

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The First Amendment Protects Federal Employees

An anonymous Twitter user with the handle @ALT_USCIS has been critically tweeting about the Trump administration's immigration ban. This alone would not garner much attention, but the anonymous user purports to be a disaffected employee of the United States Citizenship and Immigration Services, which means (if the anonymous user is being truthful) that a federal employee is publicly criticizing the executive branch that he or she works for. To the Trump administration, this would make the person a "leaker", but just because a person works for the administration does not mean they have relinquished their First Amendment rights, which protects most speech by federal employees with some limited exceptions.

One of the many common misconceptions that non-lawyers hold is that the First Amendment protects all speech – not so. When you publicly tweet, Instagram, or post something to Facebook or Google+ that offends broad swaths of the public, who in turn boycott your store, contact your employer, or pull advertising from your television show, the First Amendment is not implicated. Why? Because the First Amendment, like the entire Bill of Rights, only protects citizens from government action. So, if you tweet something critical of Trump and the FBI arrests you, then your First Amendment rights have been violated. When your private employer fires you because you tweeted something offensive and stupid, the First Amendment will not save you.

Twitter v. U.S. Department of Homeland Security

Now that we have covered how and when the First Amendment applies, let's turn back to the anonymous Twitter user who may be a federal employee. The critical tweets drew the ire of Mr. Trump and his administration and the Department of Homeland Security ("DHS") decided that the best and highest use of your tax dollars was to find and silence the federal employee. To figure out who the employee was, DHS served Twitter with an administrative summons, demanding that Twitter provide DHS with documents to "unmask" the anonymous Tweeter. Can DHS do that? Yes and no. DHS is empowered to issue such a summons, but only related to records dealing with importing merchandise, which was not the case here. So, DHS was acting outside the limited authority it has to issue such a summons – again, your tax dollars at work.

But, it was not just DHS overstepping its authority that was the problem. The summons was also directly implicating the First Amendment, which is supposed to protect citizens, including federal employees, from having their speech silenced by the government. Twitter stepped up and took the fight to DHS, filing a lawsuit to enjoin DHS from enforcing the summons. Rather than continuing to dig, DHS threw down its shovel and withdrew the summons. Twitter responded by withdrawing the lawsuit.

From the start, the actions of DHS made no sense. First, it had no authority to issue the summons. Second, even if DHS found out who the anonymous user was, what were they going to do? If the Tweeter was fired, demoted, suspended or suffered from any other adverse employment action for tweeting about matters of public concern (immigration), then it would violate the Tweeter's First Amendment rights and the anonymous Twitter user would have a pretty good lawsuit. The whole charade was an exercise in futility and the protections put in place by the Founders once again served as a bulwark against government intrusion into personal liberties.

Federal Whistleblower Protection Act

Although not at issue in the DHS debacle, federal employees who report illegality, gross mismanagement, wasting money, abuse of authority or public policy violations are protected from agency retaliation. So, if you are employed by a federal agency and you report that you have a reasonable belief that your agency has engaged in misconduct, it is illegal for the agency to threaten to take or to take retaliatory actions against you, such as firing you, suspending you, demoting you, failing to promote you, giving you a poor performance review etc…

Federal False Claims Act (Qui Tam)

Any person or entity, including federal government employees (See Little v. Shell Expl.&Prod. Co., 690 F.3d 282, 289 (5th Cir. 2012), holding that federal employees have standing under the False Claims Act), that know of any person, company, government contractor, medical treatment provider, or anyone else who knowingly presents a false or fraudulent claim for payment (invoice) to the federal government, conspires with others to submit a false or fraudulent claim for payment, or conceals or avoids an obligation to pay the federal government is protected under the False Claims Act 31 U.S.C. §3729 et seq. for reporting such fraud. In other words, if you work for a federal agency and become aware of a government contractor submitting false or fraudulent invoices to your agency, you can (and should) blow the whistle on the fraud. Likewise, if you work for the private company or government contractor and become aware that your employer is billing the federal government for goods or services that it did not provide, is overbilling the federal government or is otherwise submitting false invoices or knowingly be overpaid by the federal government, the False Claims Act will also protect you from speaking out. But, even if you are not a federal employee or are employed by a contractor, vendor, or company doing business with the federal government, if you have first-hand knowledge of fraud against the government, you can bring a claim under the False Claims Act.

The False Claims Act is the most powerful vehicle for whistleblowing because it not only protects the whistleblower from retaliation, it rewards the whistleblower by giving them a percentage of any money recovered by the government. Typically, fraud against the federal government tends to be large, not small, which means whistleblowers can recover many millions. The New York Times profiled a medical doctor who has utilized his knowledge of Medicaid fraud to make millions of dollars. See:

Unlike the First Amendment and Whistleblower Protection Act, a whistleblower (including federal employee) under the False Claims Act is not only protected, he or she is incentivized to blow the whistle. However, also unlike the First Amendment and Federal Whistleblower Protection Act, blowing the whistle under the False Claims Act requires an attorney because to report the fraud, you must file a complaint in federal court under seal. After the complaint is filed, the Department of Justice will investigate the allegations in the complaint and decide whether it will take over the case. If the DOJ does not take the case, then the whistleblower can prosecute the action with his or her private counsel on behalf of the United States, i.e. qui tam. The whistleblower is known as a relator.

False Claims Act or Qui tam actions carry stiff civil penalties. The United States is entitled to three times the amount of damages sustained by the United States of America, plus a civil penalty of $10,000 for each fraudulent billing submission. What does a relator receive for blowing the whistle? 15 to 25 percent of the proceeds recovered by the United States of America decides to intervene and 25 percent if it does not; plus attorney's fees and costs. That is a huge incentive, especially if the whistleblower uncovers massive billing fraud.

The message to employees is clear: If you see something; say something – even if you are a federal employee.

Jesse Klaproth is a partner at Klaproth Law PLLC, with offices in Philadelphia and Washington, D.C., and practices in the areas of employment law, consumer protection, personal injury and business services.

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