Who Can Be a Whistleblower? Filing a Qui Tam Case
False Claims Act whistleblowers come from many different roles. Some are employees who see billing records from the inside. Others are former employees, contractors, vendors, patients, competitors, auditors, consultants, or professionals who learn that a company is causing false claims to be submitted to the government.
The federal False Claims Act uses the term “relator” for a private person who files a qui tam lawsuit on behalf of the United States. The statute provides that a person may bring a civil action for a violation of 31 U.S.C. § 3729 for that person and for the United States Government. The action is brought in the name of the government and is filed under seal while the government investigates.
In practical terms, the strongest relators usually have reliable, nonpublic information about how the fraud worked. They may know who made the decision, what records were false, how the false claims reached the government, how long the conduct lasted, and which documents support the allegations. A whistleblower does not need to know every legal theory before calling a lawyer, but should possess some firsthand information or evidence supporting the allegations.
Common Types of False Claims Act Whistleblowers
Employees are common whistleblowers because they often see the gap between what a company tells the government and what actually happens. A billing specialist may see Medicare claims for services that were not provided. A nurse may see medically unnecessary services provided and observe the records be altered to justify them. A government contractor employee may see false testing data or false certifications. A grant administrator may see funds used for purposes the grant did not allow.
Former employees can also be relators. Sometimes a person does not understand the full significance of what happened until after leaving the company. Former employees should still be careful. Accessing old systems, using retained documents, or contacting current employees can create legal and practical risks if done without advice.
Contractors, agents, vendors, consultants, and competitors may also have relevant information. A subcontractor may know that a prime contractor billed the government for work not performed. A competitor may know that a company obtained a contract by falsely certifying compliance with set-aside, pricing, cybersecurity, or domestic-sourcing requirements. A consultant may have seen internal compliance reports ignored while the company continued billing.
Academic research has found that many relators in False Claims Act cases have been employees or former employees, but the Department of Justice does not publish a simple profile of the “average” whistleblower. A Harvard study of 1,926 qui tam complaints filed from 1994 to 2012 found the majority of False Claims Act cases, about 70%, are filed by employees. Although employees made up the largest group, the study also found customers (4.5%), contractors (2.2%), suppliers (0.5%), and competitors (0.4%) as relators. That study is useful background, but it does not replace the statutory rules that govern who may file.
Who May File a Qui Tam Case?
The federal statute begins broadly: a person may bring a civil action for a violation of the False Claims Act. That does not mean every person with an opinion about government fraud has a viable case. Several statutory rules can bar, limit, or complicate a qui tam action.
The relator must file the case in the name of the government. The complaint is filed in camera and under seal, and the relator must serve the government with the complaint and a written disclosure of substantially all material evidence and information the person possesses. The defendant is not served until the government finishes its investigation and the court orders the case unsealed. These requirements are part of 31 U.S.C. § 3730(b).
A relator may be an insider, outsider, or participant in the industry. But the closer the relator is to the alleged wrongdoing, the more important it becomes to evaluate role, evidence, confidentiality obligations, and possible exposure. A person who participated in the fraud may still have information, but the statute allows a court to reduce the relator's share if the person planned and initiated the violation, and a criminal conviction arising from the person's role eliminates the share and requires dismissal from the civil action.
The First-to-File Rule
The first-to-file rule is one of the most important limits on qui tam cases. Under 31 U.S.C. § 3730(b)(5), when a person files a False Claims Act case, no person other than the government may intervene or bring a case based on the same underlying facts.
This rule applies when more than one person knows about the fraud. A second whistleblower may have valuable information, but if someone else already filed a case about the same fraud, the later case may face dismissal or other obstacles. For that reason, delaying too long while investigating or assembling supporting evidence may allow another relator to file first and jeopardize the later case. A person who waits while trying to assemble a perfect file may discover that someone else filed first.
At the same time, filing quickly without adequate investigation can create problems. A qui tam complaint must plead fraud with particularity, and the relator must provide a meaningful disclosure to the government. A qui tam filing should therefore be made promptly enough to protect the relator’s position while remaining supported by adequate investigation, factual development, and careful pleading.
Public Disclosure and Original Source Issues
The public disclosure bar is another major issue. Under 31 U.S.C. § 3730(e)(4), a court must dismiss certain claims if, before the whistleblower complaint was filed, substantially the same allegations or transactions were publicly disclosed:
- in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party;
- in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or
- from the news media.
An original source is generally someone who either voluntarily disclosed the information to the government before the public disclosure or has independent knowledge that materially adds to the publicly disclosed allegations and voluntarily provided that information to the government before filing.
Public information is not always fatal. A public report might identify a problem in general terms, while a relator can add independent, material details about the defendant, the claims, the time period, the billing process, or the people involved. The analysis is fact-specific and should be done before filing.
What Makes a Strong Relator?
A strong relator is usually someone who can explain the fraud in concrete terms. That includes what the defendant did, why it was false, how it affected government payment, who knew, which claims or categories of claims were involved, and what documents or witnesses support the allegations.
First-hand knowledge is valuable. Credibility is also extremely important. So is lawful evidence handling. A relator who keeps a careful timeline, preserves documents within the scope of lawful access, avoids public accusations, and works through counsel is often in a better position than someone who gathers evidence aggressively without understanding the risks.
Healthcare cases deserve special caution. Patient records may contain protected health information. A whistleblower who suspects Medicare, Medicaid, TRICARE, or other government healthcare fraud should consider the guidance on HIPAA and patient records before copying, removing, or sharing medical information.
For examples of the kinds of conduct that may support a case, review the firm's page on examples of False Claims Act fraud. For practical steps before reporting, including timelines and evidence handling, see the guidance on preparing to blow the whistle.
How the Qui Tam Process Begins
A qui tam case generally begins with confidential legal evaluation. The attorney will want to understand the suspected fraud, the government program involved, the evidence, the relator's role, public disclosure issues, first-to-file concerns, retaliation risks, and whether the facts fit the False Claims Act.
If the case proceeds, the complaint is filed under seal. The government receives the complaint and written disclosure, investigates, and decides whether to intervene. If the government intervenes, it takes primary responsibility for prosecuting the case. If the government declines, the whistleblower may have the right to proceed, subject to the statute and court rules.
A successful relator may receive a relator's share of the proceeds. If the relator is punished for protected activity, separate whistleblower retaliation protections may apply. These issues often interact, which is why early advice can matter.
Frequently Asked Questions
Who is most likely to be a whistleblower?
Employees and former employees are common whistleblowers because they often see internal records, billing practices, and compliance decisions. But contractors, consultants, competitors, patients, and vendors can also be relators when they have meaningful information about fraud against the government.
Who can be a relator in a qui tam lawsuit?
A private person may bring a qui tam action under the federal False Claims Act, subject to statutory limits such as first-to-file, public disclosure, and certain bars involving government knowledge or prior proceedings. The person must file in the name of the government and follow the seal and disclosure rules.
Can a former employee be a whistleblower?
Yes. Former employees can bring qui tam cases if they have qualifying information and no statutory bar applies. They should be careful about using retained documents, accessing former employer systems, or contacting current employees without legal advice.
Can a contractor or competitor be a whistleblower?
Yes. Contractors, subcontractors, consultants, and competitors may have information that supports a False Claims Act case. The key question is whether the person has evidence of false claims or false statements material to government payment, not whether the person was an employee.
What is an original source?
An original source is a person who meets the statutory definition in 31 U.S.C. § 3730(e)(4), typically by voluntarily providing information to the government before a public disclosure or by having independent knowledge that materially adds to publicly disclosed allegations. Original-source status can be important when some information is already public.
Do I have to report internally before filing a qui tam case?
The federal False Claims Act does not generally require a private relator to report internally before filing. Internal reporting may help in some situations and create risks in others. Before reporting internally, a potential whistleblower should consider evidence preservation, retaliation, confidentiality, and first-to-file issues.
Who can file depends on more than a job title. The analysis includes the source of the information, whether another case was filed first, and whether the allegations were publicly disclosed. Gallagher & Lipshutz represents whistleblowers in federal and Nevada qui tam matters. To discuss whether you may qualify as a relator, contact our qui tam representation team or call (702) 381-3770. You may also reach the firm through our contact page.