Ever wonder what exactly a whistleblower does? Or do you think you might be one? Under the federal False Claims Act (FCA), whistleblowers are essential to the government recovering billions of dollars every year.
What is the False Claims Act?
Referred to as “Lincoln’s Law,” the federal FCA was enacted during the Civil War to combat fraud against the government. It is a truly unique statute. It incentivizes private citizens to file suit on behalf of the government to stop fraud and recoup fraudulently obtained federal funds. To incentivize insiders to come forward and work with the government to prosecute civil fraud, the FCA entitles a whistleblower, called a “relator” under the statute, to between 15% and 30% of the total amount recovered by the federal government flowing from a complaint filed by the whistleblower.
Though it lay dormant for decades, the FCA was strengthened by former Presidents Ronald Reagan and Barack Obama and bolstered by bipartisan congressional support. The current law provides for civil liability for anyone who knowingly presents, or causes to be presented, a false claim to the government, or who wrongfully keeps federal monies to which they are not entitled.
The FCA is an effective, though not perfect, fraud-fighting tool. The Justice Department announced a record-breaking $6.8 billion in settlements and judgments under the FCA in fiscal 2025. Given how much money is poured into the healthcare system every year, healthcare fraud is the largest source of FCA settlements today. However, other fraud is also pursued, including related to procurement, military, finances, customs and tariffs, COVID-19 and cybersecurity. The FCA has teeth, currently carrying penalties between $13,508 and $27,018 per claim, plus treble damages. As part of an FCA settlement, the government can also suspend or ban fraudsters from participating in federal programs, such as Medicare, or from qualifying in the future for federal contracts.
How does a whistleblower identify fraud against the government? Fraud can take just about any size and shape imaginable. In the healthcare space, it can be up-charging medical services or codes, performing unnecessary medical procedures or paying kickbacks to physicians to buy their loyalty to a drug or medical device. In the federal contracting sphere, it can involve knowingly providing services or products that materially differ from contract requirements, such as bulletproof vests that are not really bulletproof. In a customs and tariffs case, it could involve concealing the country of origin or the value of an item in order to avoid U.S. customs or tariffs. If you have insider knowledge that goods, services or materials are being fraudulently provided to and paid for by the federal government, you might be an FCA whistleblower.
What a whistleblower does
The FCA is an exceptional statute that allows a private person to bring a claim on behalf of the government. While sometimes incorrectly termed a “tipster,” the FCA whistleblower is far more than that.
The successful whistleblower is a knowledgeable insider. They know intimate details of the fraud, the scheme used to perpetrate it and the ways in which the defendant covers it up. The FCA whistleblower identifies patterns of fraudulent activity, gathers evidence and takes personal risks to disclose it. The whistleblower works closely with the government to investigate and recover from the defendant those monies it unlawfully took, ultimately returning funds to the taxpayers.
Act fast
If you are considering filing under the FCA, you must act quickly. This cannot be overstated. In addition to statute-of-limitations concerns, the FCA has a harsh first-to-file rule that bars recovery for everyone except the first one to file a fraud claim. Even if your allegations are more detailed and you have more evidence than the first filer, you are entitled to nothing unless you file first.
Maintain relevant records
As with any potential litigation, if you are considering filing a whistleblower lawsuit, you should preserve all relevant evidence. One of the first requirements for a whistleblower under the FCA is to turn over all the evidence to the government. However, never take documents unless you have permission to access them. You can kill an otherwise strong case before it starts if you obtain evidence improperly.
Contemporaneous notes
Document the fraud while it is fresh in your memory, while it is still happening and the context and dynamics are clear in your mind. Memories fade and change quickly. If there is an important meeting in which the fraud was discussed, record the date, time, attendees, documents reviewed and as much as what was said, and by whom, as you can. Keep those notes away from work and off of work devices and servers. Your future self and your whistleblower lawyer will thank you later.
Keep quiet
Uniquely, FCA cases are filed under seal and typically not served on the defendant for years. This means that during the investigation, the target is unaware that you filed a case against it and that the government is investigating. This critical seal allows the investigation to proceed undetected and, hopefully, without any destruction of evidence or improper silencing of witnesses. Most experienced whistleblower attorneys will tell you to assume the seal is already in place before you file. This means that from day one, you should keep strict confidentiality about your potential FCA case and avoid discussing it with friends, coworkers or even family members.
Get trusted legal advice
If you are aware of activities that constitute fraud related to federal, state or even some municipal funds, you should consult with an experienced whistleblower attorney immediately. These initial consultations are confidential, privileged and often free. Protect your legal inquiries. Always contact an attorney from a personal phone or email address, never from a work-sponsored computer or handheld device tied to a company server.
Trust your gut
If you are asked to perform tasks you know are against the law, you are right to question them and refuse. Honest employers will welcome good-faith inquiries. Fraudulent actors, however, are likely to obfuscate, deny or even retaliate against you. The most successful whistleblowers seek legal advice early, become educated and act strategically. The FCA is a complicated minefield with case-ending traps for the unwary. You should leave as little as possible to chance.
Get protection
The FCA provides strong protection against retaliation. The anti-retaliation provision states that an employer may not retaliate against an employee “because of lawful acts done by the employee … in furtherance of an action under this section or other efforts to stop 1 or more violations” (31 U.S.C. §3730(h)).
Prohibited retaliation includes termination, suspension, demotion, harassment or any other discrimination in the terms and conditions of employment. Critically, a plaintiff no longer needs to prove underlying fraud to state a proper retaliation claim. Standalone retaliation cases can succeed on their own, without an accompanying FCA lawsuit.
However, if you do have an FCA case to bring, the best protection is to consult with an attorney and file an FCA case as soon as possible. Doing so solidifies your whistleblower status and can provide the greatest protection available.
Veronica Nannis is a principal and experienced False Claims Act litigator at Joseph Greenwald & Laake. She has proudly represented whistleblowers for over 20 years.
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