Who Can File an FCA Case?

In the language of False Claims Act law, whistleblowers who file cases are called “relators” (rather than “plaintiffs”), and the cases they file are called “qui tam” lawsuits.

Qui tam” is a truncated version of a Latin phrase—qui tam pro domino rege pro se ipso in hac parte sequitur—which means “who proceeds in this matter as much for the king [a reference to the government] as for himself.” It refers to the fact that when relators file suit, they aren’t litigating to vindicate their own rights or recover their own out-of-pocket losses. As relators, they stand in the shoes of the government, suing on behalf of the government, to recover losses and injuries to the government. Relators also sue in the name of the government: the caption on a qui tam case identifies the case as “United States ex rel. Whistleblower v. Defendant,” or “State ex rel. Whistleblower v. Defendant.”

To become a whistleblower for purposes of an FCA case, you must clear three hurdles.

First, you must have information about a fraud involving state or federal funds.

Second, you must have information that has never been “publicly disclosed,” which means that it has not already been: (a) published by the news media (or, in some cases, on the internet); (b) the subject of a previous criminal or civil case to which the federal government was a party, including another whistleblower case, even if that case is under seal; or (c) disclosed in a government report, hearing, audit or investigation by Congress. If your information has been publicly disclosed already, then, generally speaking, you’re not likely to have a good FCA case.

Third, you must be the “first to file,” which means that no other whistleblower or group of whistleblowers alleging the same facts has already filed a case beating you to the punch. Generally speaking, when more than one whistleblower case is filed alleging the same fraud, only the case filed first survives.