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Whistleblowers

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Scope

This article describes provisions of law granting job-related protections against reprisal for private sector employee “whistleblowers” whose firms are parties to federal government contracts or grants. The laws examined in this article provide safeguards for employees who make protected reports or disclosures to uncover gross mismanagement, fraud, waste of government resources, abuses of authority, substantial danger to public health or safety, and other violations of law, in connection with those federal contracts and grants. The provisions of federal law which are the focus of this article are now codified at 10 U.S.C.A. §4701 (herein sometimes called the “Title 10 Provisions”) and 41 U.S.C.A. §4712 (sometimes herein referred to as the “Title 41 Provisions”).

The Title 10 Provisions apply only to contracts and grants of the U.S. Department of Defense, and of the National Aeronautics and Space Administration (“NASA”). The Title 41 Provisions apply to contracts and grants of most other executive departments and agencies of the federal government. The only individuals granted “whistleblower” protections under either the Title 41 or the Title 10 Provisions, however, are employees of the contractor or grantee firms. Neither the Title 10 nor the Title 41 Provisions grant rights to civil service workers, i.e., to those in the direct employ of the federal government.

Roger’s detailed practice guide on this topic was first published in 2024, in book form and online, by Thomson Reuters (West Publishing Co.) in the company’s Causes of Action (2d) series, and is regularly updated online. For purposes of citation in law-related materials, it is cited as:

Cause of Action for Breach of Federal Contractor Employees’ Whistleblower Protections Under 10 U.S.C.A. § 4701 and 41 U.S.C.A. § 4712, 111 Causes of Action 2d 99 (2024).

Table of Contents

I. Introduction

  • § 1. Scope
  • § 2. Background
  • § 3. Related or alternative actions

II. Substantive Law Overview

  • A. Prima Facie Case
    • § 4. Prima Facie Case: Elements, Generally
    • § 5. Prima Facie Case – – Employee of federal contractor, subcontractor, grantee, subgrantee, or personal services contractor
    • § 6. Prima Facie Case – – Employee of federal contractor, subcontractor, grantee, subgrantee, or personal services contractor – – applicability to subject contract or grant
    • § 7. Prima Facie Case – – Protected activity, generally
    • § 8. Prima Facie Case – – Protected activity – – substance of protected communications, generally
    • § 9. Prima Facie Case – – Protected activity – – communications – – gross mismanagement of federal contract or grant
    • § 10. Prima Facie Case – – Protected activity – – communications – – gross waste of federal agency funds
    • § 11. Prima Facie Case – – Protected activity – – communications – – abuse of authority
    • § 12. Prima Facie Case – – Protected activity – – violation of law, rule or regulation
    • § 13. Prima Facie Case – – Protected activity – – communications – – substantial and specific danger to public health or safety
    • § 14. Prima Facie Case – – Protected disclosure – – reasonableness of belief
    • § 15. Prima Facie Case – – Protected activity – – authorized recipients
    • § 16. Prima Facie Case – – Prohibited forms of reprisal, generally
    • § 17. Prima Facie Case – – Prohibited forms of reprisal – – discharge
    • § 18. Prima Facie Case – – Prohibited forms of reprisal – – demotion
    • § 19. Prima Facie Case – – Prohibited forms of reprisal – – other discrimination constituting prohibited reprisal
    • § 20. Prima Facie Case – – Causation, generally
    • § 21. Prima Facie Case – – Causation – – Contributing factor test – – statutory basis
    • § 22. Prima Facie Case – – Contributing factor – – Marano case
    • § 23. Prima Facie Case – – Contributing factor – – knowledge-timing test
    • § 24. Prima Facie Case – – Contributing factor – – knowledge-timing test – – knowledge element
    • § 25. Prima Facie Case – – Contributing factor – – knowledge-timing test – – temporal proximity
    • § 26. Prima Facie Case – – initiating or providing evidence in official proceeding – – rule of construction
  • B. Defenses
    • § 27. Defenses, generally
    • § 28. Defenses – – lack of subject matter jurisdiction
    • § 29. Defenses – – failure to exhaust administrative remedies
    • § 30. Defenses – – arbitrability
    • § 31. Defenses – – sovereign immunity, generally
    • § 32. Defenses – – sovereign immunity – – of nonconsenting state to suit in its own (state) courts
    • § 33. Defenses – – sovereign immunity – – of nonconsenting state to suit in federal courts
    • § 34. Defenses – – statute of limitations – – three years after date of reprisal
    • § 35. Defenses – – statute of limitations – – two years after exhaustion of administrative remedy
    • § 36. Defenses – – “nondiscretionary directive” from agency official within requesting official’s authority
    • § 37. Defenses – – lack of knowledge of protected activity prior to adverse action
    • § 38. Defenses – – lack of causal connection
    • § 39. Defenses – – pre-emption of State law claims
  • C. Parties
    • § 40. Parties, generally
    • § 41. Parties – – United States as plaintiff
    • § 42. Parties – – individual complaining of prohibited reprisal, as plaintiff
    • § 43. Parties – – contractor, subcontractor, grantee, subgrantee, or personal services contractor as defendant

III. Practice and Procedure

  • A. Procedural Matters
    • § 44. Individual’s complaint with agency, generally
    • § 45. Pleading standards – – F.R.Civ.P. Rule 8(a) – – generally
    • § 46. Pleading standards – – F.R.Civ.P. Rule 8(a) – – use of incorporation by reference
    • § 47. Pleading standards – – F.R.Civ.P. Rule 8(a) – – use of judicial notice
    • § 48. Pleading standards – – motion to dismiss under F.R.Civ.P. Rule 12(b)
    • § 49. Pleading standards – – motion to strike under F.R.Civ.P. Rule 12(f)
    • § 50. Judgment upon motion under F.R.Civ.P. Rules 50(a), 50(b)
    • § 51. Interlocutory review of trial court orders
  • B. Proof
    • § 52. Plaintiff’s Proof, generally
    • § 53. Plaintiff’s Proof – – burden of proof [from 5 U.S.C.A. § 1221(e)]
    • § 54. Plaintiff’s Proof – – witnesses
    • § 55. Plaintiff’s Proof – – deposition and trial examination of witnesses
    • § 56. Plaintiff’s Proof – – varieties of evidence
    • § 57. Defendant’s Proof, generally
    • § 58. Defendant’s Proof – – witnesses
    • § 59. Defendant’s Proof – – deposition and trial examination of witnesses
    • § 60. Defendant’s Proof – – varieties of evidence
  • C. Remedies and Relief
    • § 61. Remedies and relief, generally
    • § 62. Remedies and relief – – affirmative steps to abate reprisal
    • § 63. Remedies and relief – – reinstatement
    • § 64. Remedies and relief – – compensatory damages, generally
    • § 65. Remedies and relief – – compensatory damages – – back pay
    • § 66. Remedies and relief – – compensatory damages – – emotional distress
    • § 67. Remedies and relief – – compensatory damages – – employment benefits
    • § 68. Remedies and relief – – other terms and conditions of employment
    • § 69. Remedies and relief – – payment to complainant the aggregate of costs and expenses incurred, inclusive of attorney’s fees and expert witnesses’ fees
    • § 70. Remedies and relief – – enforcement of orders by agency, generally
    • § 71. Remedies and relief – – enforcement of orders – – forms of relief
    • § 72. Remedies and relief – – enforcement of orders – – right of complainant to commence civil action in U.S. district court or join in civil enforcement action filed by agency
    • § 73. Remedies and relief – – standards of judicial review – – claimant’s de novo action
    • § 74. Remedies and relief – – standards of judicial review – – petition in U.S. Court of Appeals for direct review of agency head’s order granting or denying relief
    • § 75. Notifications, generally
    • § 76. Notifications – – duty of agency head to ensure contractors, grantees notify employees of rights and remedies
    • § 77. Notifications – – duty of contractors, grantees to notify employees of rights and remedies
    • § 78. Exceptions to reprisal prohibition for elements of intelligence community
  • D. Damages Awards Survey
    • § 79. Damages Awards Survey
  • E. Attorneys’ fees and costs
    • § 80. Attorneys’ fees and costs

IV. PRACTICE CHECKLISTS

  • § 81. Information from clients – – Plaintiff
  • § 82. Information from clients – – Defendant
  • § 83. Discovery – – Plaintiff
  • § 84. Discovery – – Defendant

V. APPENDIX

  • § 85. Sample Opinion – – Synopsis
  • § 86. Sample Complaint – – DCWPA Cause of Action (“Title 10/Section 827”)
  • § 87. Sample Complaint – – Civilian Agency-related Cause of Action (“Title 41/Section 828”)
  • § 88. Sample Answer
  • § 89. Statutory Authority