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Overview of the Federal Whistleblower Process

Recent Whistleblower Examples

As a prospective federal whistleblower, it is important to know what you can expect if you decide to move forward. There are several steps in the process of working with the government to uncover fraud, waste, abuse, or other misconduct—each of which requires thorough planning and informed decision-making.

10 Steps in the Federal Whistleblower Process

So, what can you expect if you decide to blow the whistle? Here is an overview of 10 key steps in the federal whistleblower process:

1. Determine if You Are Capable of Qualifying as a Federal Whistleblower

The first step is to determine your eligibility to serve as a federal whistleblower. While each agency that accepts whistleblower complaints has its own set of rules and requirements, there are three broad qualifications that apply (mostly) across the board:

  • Are you in a position to “voluntarily” provide information to the federal government? To serve as a federal whistleblower, you must generally be in a position to “voluntarily” provide information to the federal government. This means that you must not be responding to an inquiry (i.e., a target letter or subpoena) from a federal agency, office, or court, whether on your own behalf or on behalf of your company or organization.
  • Do you have “original information” that exposes (or may expose) fraud or other wrongdoing? In most cases, you must also be able to provide “original information” to the government. This means that the government must not already have the information in its possession; and, with limited exceptions, the information must not be publicly available.
  • Are you excluded from serving as a federal whistleblower? Certain individuals are excluded from serving as federal whistleblowers. This includes individuals who have an obligation to report the information they have in their possession, as well as federal employees in certain other positions of authority.  

Determining your eligibility is a key first step, as the rest of the steps on this list will be irrelevant if you need to consider an alternate course of action. An experienced federal whistleblower lawyer will be able to assess your eligibility and help you decide whether to move forward.

2. Determine Where You Will Need to File Your Whistleblower Complaint

If you are eligible to serve as a federal whistleblower, one of your next steps will be to determine where you will need to file your whistleblower complaint. Several federal agencies have whistleblower programs, including (but not limited to):

  • Department of Health and Human Services Office of Inspector General (HHS OIG) – HHS OIG handles whistleblower complaints involving Medicare and Medicaid fraud as well as internal fraud, waste, and abuse (FWA).
  • Department of Justice (DOJ) – The DOJ handles whistleblower complaints under the False Claims Act (FCA) as well as select other complaints involving corporate fraud and misconduct.
  • Commodity Futures Trading Commission (CFTC) – The CFTC handles whistleblower complaints involving fraud, abuse, and financial crimes affecting the commodity futures and derivatives markets.
  • Federal Trade Commission (FTC) – The FTC handles whistleblower complaints involving consumer fraud and related statutory and regulatory violations.
  • Financial Crimes Enforcement Network (FinCEN) – FinCEN handles whistleblower complaints involving anti-money laundering (AML) violations under the Bank Secrecy Act.
  • Food and Drug Administration (FDA) – The FDA handles whistleblower complaints involving violations of the Food, Drug, and Cosmetic Act and its enabling regulations.
  • Internal Revenue Service (IRS) – The IRS handles whistleblower complaints involving tax evasion, tax fraud, and other tax-related and financial crimes.
  • Office of Special Counsel (OSC) – The OSC handles select whistleblower complaints filed by federal employees under the Whistleblower Protection Act (WPA).
  • Securities and Exchange Commission (SEC) – The SEC handles whistleblower complaints involving fraud, abuse, and financial crimes affecting the securities markets.
  • Federal District Court – Whistleblowers who submit qui tam complaints under the False Claims Act must submit their complaints to the appropriate federal district court.

Again, these are just examples. Several other agencies and offices accept whistleblower complaints from private-sector and federal employees as well. Choosing the correct location to file a whistleblower complaint is critical for ensuring that you receive the statutory protections that are available and that the government is able to conduct an investigation as efficiently as possible.

3. Review the Relevant Whistleblower Complaint Filing Procedures and Substantive Requirements

Once you determine where you need to file your federal whistleblower complaint, the next step is to review the relevant complaint filing procedures and substantive requirements. As noted above, each federal authority that accepts whistleblower complaints has its own set of requirements, and you must ensure that you meet the correct requirements in order to establish your status as a protected whistleblower (and your right to a whistleblower award, if applicable).

4. Work with a Whistleblower Lawyer to Make Informed Decisions About Whether, How, and When to Move Forward

Throughout the process, you will want to work with a whistleblower lawyer who can help you make informed decisions. This includes making informed decisions about whether, how, and when to move forward with filing a whistleblower complaint. From determining your eligibility to identifying the correct federal authority and relevant requirements for filing your complaint, there are several critical ways an experienced lawyer will be able to help during the pre-filing phase of the process.

5. Work with Your Lawyer to Prepare Your Whistleblower Complaint

If you make the decision to move forward, you will need to work closely with your lawyer to prepare your whistleblower complaint. Again, each federal authority has different requirements. This is true with regard to both form and substance. For example, while some federal agencies like the CFTC and IRS require whistleblowers to submit specific forms, the requirements for submitting a qui tam complaint under the False Claims Act are very different. At this stage, observing the requisite formalities is extremely important, as this is what will determine whether the government accepts your complaint and whether you will receive protection as a federal whistleblower.

6. Get Ready to Provide Assistance with the Relevant Agency’s Investigation and Enforcement Efforts

As a whistleblower, you will be expected to work with the government as it investigates the information you have submitted and works to build a case for civil or criminal enforcement. It is important to ensure that you are ready to provide this assistance, especially in the early stages, as doing so could be critical to the government’s enforcement efforts.

Ultimately, as a whistleblower, it is ultimately up to you to decide how much assistance you are willing to provide. However, declining to provide necessary assistance could thwart the purpose of your initial complaint. For whistleblowers who are eligible to receive compensation awards (i.e., those who file with the CFTC, DOJ, FinCEN, IRS, or SEC), assistance is a key factor for determining the amount of their awards as well.

7. Be Careful Not to Inadvertently Disclose Your Identity (If You Want It To Remain Confidential)

When you serve as a federal whistleblower, the government will protect your identity to the fullest extent possible under the law. But, you will play an important role in protecting your identity as well. You will need to be very careful not to inadvertently disclose your identity, and you may need your lawyer to take affirmative steps to ensure that your identity remains under seal.

8. Make Sure You Understand Your Legal Rights as a Federal Whistleblower

Along with the right to confidentiality, federal whistleblowers have other important legal rights as well. For example, all federal whistleblowers are entitled to protection against retaliation in their employment, and some federal whistleblowers will become eligible to receive substantial compensation awards. As a federal whistleblower, it is important to ensure that you have a clear and comprehensive understanding of your legal rights so that you can work with your lawyer to protect them as necessary.

9. Remain Actively Involved When (and to the Extent) Required

While there will be lulls in your involvement with the government’s investigation and subsequent enforcement efforts, you will need to remain prepared to participate as and when required. At this stage, your lawyer will be in regular communication with the federal agents and prosecutors involved, and your lawyer will be able to advise you regarding any requests for additional information or testimony.

10. Work with Your Lawyer to Secure Your Whistleblower Award (if Applicable)

Finally, if you file your complaint under a Whistleblower Program that pays financial awards to eligible whistleblowers, you will want to work with your lawyer to secure your award if you become entitled to receive one. Here too, each federal agency has its own set of rules and standards, and the steps you will need to take to secure your award will depend on the agency with which you filed your complaint.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Get Started with a Free and Confidential Whistleblower Consultation at Oberheiden P.C.

If you are thinking about blowing the whistle with the federal government, our lawyers can guide you step-by-step through the decision-making process, and we can work with the government on your behalf if you decide to move forward. To get started with a free and confidential consultation, please call 888-680-1745 or contact us confidentially online today.

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