In a recent False Claims Act case, a whistleblower obtained a favorable ruling on the remedies available for False Claims Act whistleblowers. In Mooney v. Americare, the whistleblower alleged retaliation for disclosing kickbacks from fraudulent referrals and the fraudulent alteration of documents submitted to Medicaid and Medicare. In particular, Judge Block held that back pay is doubled before the court offsets the value of interim earnings (also known as mitigation).
Under the False Claims Act’s whistleblower protection provision, a prevailing whistleblower is entitled to “all relief necessary to make that employee, contractor, or agent whole,” which includes reinstatement, double back pay, interest on the back pay, special damages, and attorney’s fees and costs. In Mooney, the court addressed the issue of whether the whistleblower’s back pay (lost wages and benefits that Mooney would have been paid absent the retaliation) should be reduced by the amount of her interim earnings before the back pay is doubled, or whether instead back pay should be doubled before the court applies an offset for mitigation.
Judge Block held that back pay damages should be doubled prior to subtracting any mitigation income because such an interpretation:
comports with congressional intent that an employee who suffered retaliation is best made whole by recovering double back pay;
prevents defendants from benefitting from the whistleblower’s successful mitigation efforts; and
prevents defendants from avoiding the double-damages provision by tendering the undoubled amount in mitigation prior to judgment.
Implications for Whistleblowers
This decision highlights the significant potential exposure for employers in False Claims Act whistleblower cases. Double back pay and special damages (damages for emotional distress and harm to reputation) can yield large jury verdicts. And the logic of this ruling also applies to the award of double back-pay in Dodd-Frank whistleblower claims.
Experienced False Claims Act and NDAA Whistleblower Protection Attorneys
The experienced whistleblower attorneys at Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees. To schedule a free preliminary consultation, click here or call us at 202-262-8959.
Our experience includes:
Representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.
Representing whistleblowers disclosing fraud on the government in Congressional investigations.
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U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.
Dallas Hammer has extensive experience representing whistleblowers at government contractors in retaliation and rewards claims and has written extensively about cybersecurity whistleblowing. He was selected by his peers to be included in The Best Lawyers in America® in the category of employment law in 2021 and 2022.
Described by the National Law Journal as a “leading whistleblower attorney,” founding Principal Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases. He served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protection laws. Zuckerman also served as Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government. At OSC, he oversaw investigations of whistleblower claims and obtained corrective action or relief for whistleblowers.
Matt Stock is a Certified Public Accountant, Certified Fraud Examiner and former KPMG external auditor. As an auditor, Stock developed expertise in financial statement analysis and internal controls testing and fraud recognition. He uses his auditing experience to help whistleblowers investigate and disclose complex financial frauds to the government.
Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” (2020, 2018, 2017, 2015, 2009, and 2007), selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2021) and in SuperLawyers in the category of labor and employment law (2012 and 2015-2021), is rated 10 out of 10 by Avvo, based largely on client reviews, and is rated AV Preeminent® by Martindale-Hubbell based on peer reviews
Leading whistleblower law firm Zuckerman Law has written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts: