We are pleased to present the first in a series of articles by John R. Thomas, Jr., a lawyer at Gentry Locke [Editor’s note, 3/26/19: He has since moved to Haley, Hafemann, Magee and Thomas] who represents whistleblowers in a variety of False Claims Act cases. He writes about how whistleblowers can do the right thing and protect themselves in the process.
As readers of Retraction Watch are well aware, scientific misconduct is a problem for a number of reasons. Science builds upon itself; unfounded scientific results lead to wasted research efforts, ineffective medical therapies, and faulty public policy conclusions. Even one fraudulent paper can have profound effects, such as fueling an anti-vaccine movement.
Research misconduct also erodes public trust in science and endangers ongoing public funding of scientific research. Following the recent discovery of fabricated AIDS research at Iowa State University, Senator Grassley addressed the issue before the U.S. Senate:
Universities need to be responsible and accountable with federal research grants. By taking action when it learned of the fraud, Iowa State University did that in this case. But that does not give the government an excuse not to do oversight. And if the government is relying on universities to report fraud instead of doing oversight, there are probably other cases of fraud that are never caught. If you write a taxpayer-funded check, you should be responsible for making sure the money is being well spent.
Senator Grassley is not alone in his concern for wasted taxpayer dollars; there is widespread support for holding universities and other research institutions accountable for wasted research funding.
Because of the complexity of scientific research and the restricted availability of raw data, whistleblowers are critically important in uncovering research misconduct. A potential whistleblower’s first and most important decision before moving forward is: How should I report my concerns?
One obvious way to report research misconduct is to follow internal institutional procedures. Most research institutions have a genuine interest in promoting good science and addressing misconduct. In some instances, however, a potential whistleblower may have legitimate reasons to believe that the institution will not address his/her concerns. This may be for a number of reasons, including institutional apathy, the professional standing of the individuals involved, or a desire to avoid bad publicity. In such cases, a whistleblower may need to consider other ways to report the research misconduct.
The False Claims Act (FCA), popularly known as the Lincoln Law, is one alternative approach for a whistleblower to consider. The FCA allows a private citizen whistleblower, or “relator,” to file a lawsuit – known as a “qui tam” action — on behalf of the Federal government to recover funds that were paid as a result of fraud. The penalties for violators are formidable: the government is entitled to treble damages and civil penalties of $5,500 to $11,000 per false claim. By law, the relator may be entitled to as much as 30% of the government’s recovery.
Pursuing a scientific whistleblower case through the FCA has some advantages. Aside from the financial incentive for whistleblowers, the FCA offers formidable consequences for misconduct. By filing an FCA action, a whistleblower involves the Department of Justice in the case, and thereby ensures that the research institution, the researcher and the grant agencies will not be the sole decision-makers in resolving the allegations. The significant penalties involved in FCA cases also command the attention of institutions and companies throughout the country, serving as a strong warning to others.
Pursuing an FCA case also involves significant challenges. Not all instances of research misconduct are actionable under the FCA; sloppy or bad science may not necessarily cause “false” claims to be made to the government for payment. In other words, to have a viable FCA case, the “false” statements or research misconduct must be “material” to Federal grant funding. Sometimes this connection is difficult to make.
That being said, not all potential FCA cases involve substantive scientific fraud; “falsity” encompasses a far broader range of misrepresentations than one might imagine. For instance, using the same set of experiments to obtain two separate Federal grants may be a violation of the FCA. Misrepresenting the credentials of researchers, departing significantly from an original grant proposal, or misrepresenting “effort” on a particular grant are other ways that researchers may also violate the FCA.
Before making an allegation of research misconduct, a potential whistleblower should consult with qualified counsel for several important reasons.
First, a potential whistleblower should ensure that they are following proper channels when reporting the allegations. If whistleblowers do not do so, they could find themselves sued for defamation. A potential whistleblower should also consider the risk of retaliation. Following the proper procedures in reporting allegations of research misconduct may reduce these risks.
The False Claims Act offers some protections for whistleblowers. Because an FCA case remains under seal while the government investigates the claim, the whistleblower has a measure of anonymity for some period of time. The False Claims Act also contains anti-retaliation provisions that protect whistleblowers.
Consulting with counsel will also help whistleblowers to ensure that they protect themselves from criminal prosecution if they have been involved in the research misconduct, whether knowingly or unknowingly.
While pursuing an FCA case is always challenging, it may sometimes be the right thing to do to protect integrity in science. Ultimately, a whistleblower has a range of options in dealing with research misconduct. If the whistleblower chooses to pursue the case through the FCA, however, the whistleblower can be sure of two things: accountability and consequences.
I’ll address more ways in which whistleblowers can protect themselves, as well as the details of identifying and bringing about a qui tam case, in future posts.
John R. Thomas, Jr., leads the Qui Tam Relator Practice at Gentry Locke in Virginia. John is the Chair of the Federal Bar Association Qui Tam Section and represents whistleblowers in a variety of False Claims Act cases. He can be reached at email@example.com.