Filing a lawsuit under the False Claims Act (FCA) is a significant decision that often involves substantial personal and professional risk. One of the most common concerns potential whistleblowers face is whether they can remain anonymous throughout the process. While the FCA offers certain protections, it is important to understand how anonymity works and the circumstances under which a whistleblower’s identity may eventually be disclosed.
The Seal Period: Initial Anonymity
When a whistleblower, also known as a relator, files a qui tam lawsuit under the FCA, the case is initially filed under seal. This means that the lawsuit is not made public, and the defendant is not immediately notified. During this time, the government investigates the allegations to determine whether it will intervene in the case.
The seal period typically lasts for 60 days, but it is common for the government to request extensions, sometimes keeping the case under seal for several months or even years. While the case remains sealed, the whistleblower’s identity is protected. This provision is designed to allow the government to investigate the allegations without tipping off the defendant and to safeguard the whistleblower from potential retaliation during the early stages of the process.
Limitations to Anonymity
Although the seal period provides temporary anonymity, it is important to understand that this protection does not extend indefinitely. Once the seal is lifted—either because the government has decided to intervene or the whistleblower decides to proceed without government support—the lawsuit becomes a matter of public record. At this point, the whistleblower’s identity is typically disclosed, as their name is listed in the complaint filed with the court.
In rare instances, whistleblowers may request to proceed anonymously even after the seal is lifted. Courts may allow this under extraordinary circumstances, such as cases where the whistleblower can demonstrate a significant risk of physical harm or severe retaliation. However, these instances are exceptional, and anonymity after the seal is lifted is not guaranteed.
Protections Against Retaliation
While complete anonymity may not always be feasible, the FCA includes robust provisions to protect whistleblowers from retaliation. Under 31 U.S.C. § 3730(h), whistleblowers are shielded from employer retaliation, including termination, demotion, harassment, or any other form of discrimination related to their decision to report fraud. If a whistleblower faces retaliation, they may be entitled to remedies such as reinstatement, double back pay, and compensation for special damages, including legal fees and emotional distress.
Balancing Anonymity and Accountability
Filing an FCA lawsuit often involves weighing the benefits of exposing fraud against the potential risks to one’s personal and professional life. While the seal period provides critical anonymity during the initial stages, whistleblowers should prepare for the possibility that their identity may eventually become public. Consulting with an experienced whistleblower attorney is essential to understanding these risks, navigating the legal process, and ensuring the strongest possible protections.
Conclusion
Anonymity is a crucial concern for whistleblowers, and while the FCA provides significant protections during the early stages of litigation, the eventual disclosure of a relator’s identity is likely once the case progresses. A knowledgeable attorney can guide whistleblowers through these complexities, helping them safeguard their rights and maximize the impact of their efforts to combat fraud.