Can Whistleblowers Remain Anonymous?

The biggest concern most whistleblowers (aka “Relators”) raise is confidentiality. They want to the do the right thing, but they fear that doing the right thing could cost them their job or their career.

These concerns are real. It is widely known that people or companies that defraud the government are capable of retaliating against employees who try to report the fraud. In fact, the False Claims Act has provisions specifically designed to protect whistleblowers against retaliation. Our firm’s Whistleblower, Qui Tam & False Claims Act Group works hard to protect our clients’ rights under the law.

But courts generally want litigation to be transparent and visible to the public, and there are rules in place designed to permit the public to view court proceedings.

The good news is that although complete anonymity is not possible, there are various methods to (at least partially) protect the identity of Relators in certain circumstances.

The False Claims Act

The primary statute for whistleblowing is the federal False Claims Act (“FCA”). Under the FCA, a person can bring a qui tam action in the name of the government to recover money paid by the government that should not have been paid.[1]

This raises some interesting legal questions, including whether the person can remain anonymous. Can the “person” be a corporation or some other legal entity that protects the identity of the whistleblower?

Filing a Qui Tam Lawsuit Under a Pseudonym

Federal Rule of Civil Procedure 10 states that a lawsuit must name all of the parties involved. Most courts have adopted a very strict set of factors that are used in deciding whether to allow a party to file under a pseudonym (e.g., Jane Doe). For example, in the Second Circuit, the factors include whether:

• the matters are highly sensitive and personal;
• identification poses risk of retaliation;
• identification poses other risks and the severity of those harms;
• the plaintiff is particularly vulnerable to the harms of disclosure;
• the suit is challenging government or private parties;
• the defendant is prejudiced by use of a pseudonym;
• the plaintiff’s identity has been kept confidential;
• the public interest is furthered by requiring disclosure;
• the public interest is particularly weak based on issues presented; and
• alternative ways to protect the plaintiff exist.[2]

The great majority of courts who have considered requests by Relators to proceed under a pseudonym have denied the request, even when the whistleblower had legitimate fears of retaliation and/or economic hardship.[3]

The False Claims Act’s Seal Provision

The FCA itself does not contain any particular provisions for filing anonymously. However, all FCA filings are initially filed under seal, i.e., the filings are shielded from public view and are only visible to the courts, government prosecutors, and the whistleblowers’ legal team. The seal is initially in place for 60 days but can be extended if the government has a good reason for the extension.[4] In most instances, cases remain under seal for a year or more.

In limited instances, the Relator’s lawyer can move to keep the case permanently under seal. But such requests face the same type of rigorous court scrutiny as efforts to proceed under a pseudonym.

Organizational Relators

As previously noted, companies that defraud the government are capable of retaliating against employees who try to report the fraud. This motivates whistleblowers to seek anonymity. But courts generally want litigation to be transparent and visible to the public.

One potential way to resolve these competing principles – and in the process protect the Relator’s identity to the extent permitted by law – is bringing the lawsuit in the name of a limited liability partnership.

There have been many successful cases brought by so-called “Organizational Relators,”[5] proceeding as a business entity like a limited liability corporation or partnership. Under this structure, the names of the owners of the business entity are shielded from public view.

However, cases filed by Organizational Relators face particular legal challenges that would not be faced by a Relator proceeding in his/her name, and a number of cases brought by Organizational Relators have been dismissed in circumstances where an individual proceeding in his/her name would likely have prevailed.

Further, the Relator’s name must be disclosed to government prosecutors, and if the case proceeds to litigation, it is likely that the Relator’s identity will eventually become known.

Conclusion

There is no method which guarantees that a Relator’s identity will be kept confidential, but experienced qui tam lawyers know the steps necessary to protect the Relator’s identity to the extent possible.

Contact Us to Learn More

Do you need a Whistleblower Lawyer or want to know more information about Qui Tam Law and your rights under the False Claims Act?

There are three easy ways to contact our firm for a free, confidential evaluation with one of our whistleblower attorneys:

1. Fill out the contact form on this page.
2. Email quitam@bm.net
3. Call (844) 781-3088

Your submission will be reviewed by a Berger Montague qui tam attorney and remain confidential.

[1] 31 U.S.C. § 3730(b)(1).

[2] Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 190 (2d Cir. 2008).

[3] U.S. ex rel. Permison v. Superlative Techs., Inc., 492 F. Supp. 2d 561, 564 (E.D. Va. 2007) (denying request to seal complaint or to grant anonymity because although “fear of retaliation is not entirely implausible, it is certainly vague and hypothetical at best”).

U.S. v. Bon Secours Cottage Health Servs., 665 F. Supp. 2d 782 (E.D. Mich. 2008) (denying request to maintain seal because plaintiff’s fear of retaliation by current or future employers was insufficient to overcome strong presumption favoring public access to judicial records).

U.S. ex rel. Littlewood v. King Pharms, Inc., 806 F. Supp. 2d 833, 842 (D. Md. 2011) (rejecting relator’s request to keep complaint sealed, finding “hypothetical” concerns about possible retaliation and damage to retaliation insufficient).

U.S. ex rel. Danner v. Quality Health Care, Inc., 2011 WL 4971453, at *2 (D. Kan. 2011) (rejecting relator’s “vague and hypothetical concerns about impairment of employment”).

U.S. ex rel. Durham v. Prospect Waterproofing, Inc., 818 F. Supp. 2d 64, 67 (D.D.C. 2011) (relator’s “general privacy interest” in keeping identity secret given that still employed by defendant and feared potential retaliation insufficient to overcome presumption of open records).

U.S. ex rel. Wenzel v. Pfizer, Inc., 881 F. Supp. 2d 217, 222 (D. Mass. 2012) (declining to redact relator’s identity from complaint as level of complaint’s specificity would require sealing substantial portions of complaint to protect relator’s identity).

U.S. ex rel. Luciano, 215 U.S. Dist. LEXIS 56896 (D.N.J. 2015) (“Relator has not demonstrated good cause for the Court to grant her request to proceed anonymously, especially where her identity has been public for months.”).

U.S. ex rel. Eberhard v. Angiodynamics, Inc., 2013 WL 2155327, at *3 (E.D. Tenn. May 17, 2013) (“the mere possibility, or even plausibility, or some form of economic harm is inadequate to depart from the rule favoring public access, particularly in the absence of any concerns involving national security, trade secrets or personal safety.”); United States ex rel. Coyle v. Russell Cty. Cmty. Hosp., LLC, , 2015 U.S. Dist. LEXIS 8590 (M.D. Ala. Jan. 26, 2015) (same).

[4] 31 U.S.C. § 3730(b)(3) (the government may, for good cause shown, move for extensions of the seal).  Typically, only the government can extend the seal.  See U.S. ex rel. Herrera v. Bon Secours Cottage Health Servs., 665 F. Supp. 2d 782, 784-85 (E.D. Mich. 2008); see also Am. Civil Liberties Union v. Holder, 673 F.3d 245, 253-55 (4th Cir. 2011) (affirming that FCA sealing provision is “narrowly tailored” only to preserve the integrity of the government’s fraud investigations).

[5] See, e.g., Minnesota Ass’n of Nurse Anesthetists v. Allina Health Sys. Corp., 276 F.3d 1032, 1048 (8th Cir. 2002) (““Neither the 1986 Amendments Act nor a review of its background or legislative history suggests that Congress meant to exclude suits on the basis of whether the relator was a natural person, corporation, or association. We therefore reject this argument.”).