New DOJ Task Force Needs Whistleblowers

Written by Tony Munter

The Department of Justice recently posted the Attorney General’s announcement of the establishment of a COVID-19 Fraud Enforcement Task Force, “to marshal the resources of the Department of Justice in partnership with agencies across government to enhance enforcement efforts against COVID-19 related fraud.”

In his long career, the new Attorney General Merrick Garland has written notable decisions, which place him within the mainstream of support for the False Claims Act. It’s therefore surprising the announcement does not use the word “whistleblower.” It does say that the Department needs the public’s assistance in “remaining vigilant and reporting suspected fraudulent activity.”

The announcement lists a phone number, and I called it. Information is provided in Spanish and English, and I apologize that my Spanish is not good enough to review that set of prompts. In English, it was “experiencing high call volume,” and directed me to a website to report unemployment identity theft. Then you get prompts to report fraud, waste, and abuse in COVID-19 or natural disaster issues. Various prompts also say you can report violations of civil rights by a local or state government, and other issues.

I picked a prompt to report Medicare/Medicaid fraud and got patched through to something that said it was the HHS OIG hotline. Still more prompts were given me, to report, with the caveat that if I had previously reported fraud they could not provide status of the report.

I’m sure that if I had the patience I could eventually have left some kind of message with respect to a potential fraud to report. I never really understand references to “waste” and “abuse,” but that’s for the government to figure out, since those terms are not to be found in the False Claims Act or regulations for the SEC whistleblower program, and I’m not sure how to make a case on that basis.

The Attorney General’s announcement also included a link to a website form with 26 options (including “other”) for the type of fraud to report as well as a long list of disaster events that could have been the subject of the underlying funding, some of which would appear to be long past any statute of limitations, but you never know.

All this is good as far as it goes. Nobody besides the US Department of Justice really has the ability to deal with a violation of civil or constitutional rights perpetrated against a person by a state or local government, and getting information to the United States is a good thing. One cannot expect the sorting of so many kinds of complaints to be easy.

Yet all this is another reason why I’m disappointed that nowhere in the announcement nor in the first three sets of prompts (none of which led me to a human being) is there any mention of whistleblower rights or the idea that a person can also seek counsel, let alone an award. Much is made of lawyers and fees, but in this area, the entire anti-fraud bar will speak to people initially for nothing to see if they have a case. That helps the whistleblower see what they have, and it helps the government get solid information.

Fighting fraud takes real information, the kind of information only a whistleblower has, and there are laws designed both to reward such a person and to make it possible for such a person to report legally. It bothers me that a person could report contractor fraud on the DOJ form and make it more difficult to collect an award if that person later realizes they have a case under the SEC whistleblower program, but aside from that long-shot possibility, the fact is individuals who want to report fraud to the government should be able to do so, but they should also contact competent counsel.

Recognition of whistleblowers and whistleblower awards as a legitimate part of this process would help the public and the DOJ itself understand who provides the key information and why they deserve those awards. It would also mean real information about real fraud would get a real hearing sooner.

Still, it is always good when the government tries to do something about fraud. It will be difficult to fight fraud in this area, as much of the money related to COVID-19 came with almost no restrictions, but fraud is fraud and merits some effort at accountability. Hopefully the DOJ is going to follow through.