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November 08, 2019

Prosecuting whistleblower lawsuits brought pursuant to the federal False Claims Act


A qui tam lawsuit, typically called a whistleblower lawsuit, is brought under the False Claims Act, [FCA], 31 U.S.C. §3729, et. seq. The FCA authorizes bringing an action against any person or entity who knowingly submitted a false or fraudulent claim for payment to the federal government. The FCA also provides for rewarding whistleblowers successful in cases where the government recovers funds lost to fraud.

The United States government may bring the FCA action, or a private citizen, known as a “Relator,” may bring a qui tam action “for the person and for the United States Government,” and “in the name of the Government.”

In this action the Relator, proceeding pro se,* brought the qui tam action on behalf of the United States and California, Connecticut, Florida, and New York under color of the FCA.**

The federal district court dismissed the qui tam action because Relator, who was not an attorney, was not represented by counsel. Relator appealed the ruling to the U.S. Circuit Court of Appeals, Second Circuit.

Limiting its review to the dismissal of Realtor's action by the district court for failure to retain counsel, the Circuit Court opined:

1. "The right to appear pro se in civil litigation in federal court is guaranteed by 28 U.S.C. §1654, which provides that 'parties may plead and conduct their own cases personally or by counsel.'

2. "A person who is not an attorney and is not represented by an attorney 'may not appear on another person’s behalf in the other’s cause.'

3. "A non-attorney relator in an FCA qui tam action cannot proceed pro se because 'the United States remains the real party in interest in qui tam actions, the case, albeit controlled and litigated by the relator, is not the relator’s own case as required by 28 U.S.C. §1654, nor one in which he has an interest personal to him.'"

4. "The district court therefore did not err in dismissing this action after Relator failed to retain counsel, despite being granted ample opportunity to do so.

Although Relator argued on appeal that appointment of counsel by the district court was warranted, the Circuit Court of Appeals observed that Relator did not move for the appointment of counsel in the district court, and the district court was not required to sua sponte appoint counsel.

* A person who appears before the Court without an attorney to represent him is appearing pro se.

** The Circuit Court's decision notes that the Relator "did not move for appointment of counsel in the district court, and the court was not required to sua sponte appoint counsel."

The decision is posted on the Internet at:


November 07, 2019

Application for renewal of a certification rejected on the grounds that the applicant made material false statements and demonstrated poor moral character


New York City Department of Buildings denied the request submitted by an applicant [Petitioner] to renew his Site Safety Coordinator (SSC) certification on the ground that Petitioner made material false statements and demonstrated poor moral character in his original application for certification.

In his initial application, Petitioner was required to disclose whether any "licenses/certifications/registrations issued to [him]" had ever been revoked.

Petitioner failed to report that he had been authorized as an OSHA outreach trainer and that his authorization had been revoked because he failed to comply with OSHA requirements and falsified safety certificates.

The Appellate Division sustained the Department's determination explaining that although Petitioner's OSHA credentials "may not have been labeled a license, certification, or registration," his OSHA responsibilities were substantially similar to those of an SSC. Accordingly, said the court, the Department rationally concluded that Petitioner was required to disclose the revocation of those credentials.

The Appellate Division further opined that the Department rationally concluded that Petitioner exhibited poor moral character by failing to disclose OSHA's determination that he falsified agency documents.

The decision is posted on the Internet at:


November 06, 2019

New York State Comptroller Thomas P. DiNapoli issues audits and examinations


On November 6, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations had been issued.

Click on the text highlighted in color to access to access the full report

The audit identified $20.1 million in Medicaid payments made by DOH for therapy services and drugs that should have been paid for by Medicare.

An audit issued in September 2018 found that a transportation provider did not maintain the required documentation to support claims prior to 2016, totaling $1.4 million. In a follow-up, auditors found DOH made some progress in addressing the problem identified in the initial report. The Office of the Medicaid Inspector General opened an investigation into the provider; which remained ongoing at the time of the follow-up review.

An initial audit released in September 2018 identified $770,935 in Medicaid overpayments for Medicare Part C cost-sharing. In a follow-up, auditors found DOH made some progress in addressing the problems identified. However, no action had been taken to recover the inappropriate payments.

An audit issued in June 2018 concluded that inspectors did not always perform thorough elevator inspections. As a result, hazardous and other unsafe conditions were not always identified and corrected. In a follow-up, auditors found that of the prior recommendations, DOB implemented three, partially implemented four, and did not implement two.

CVS Health did not seek rebates from drug manufacturers on claims that were, in fact, rebate-eligible. Auditors identified $428,958 in rebate revenue that is due to the state Department of Civil Service for rebate-eligible claims in the account for the period Jan. 1, 2014through Dec. 31, 2018

An earlier report found that, while the TBTA makes efforts to collect unpaid tolls, $11.3 million in tolls were either written off or uncollected. In addition, TBTA had more than $72 million in unpaid fees for the Henry Hudson Bridge from 2013 through 2015. In a follow-up, auditors found TBTA officials have made progress in addressing the issues identified. However, additional improvements are needed.

An audit issued in September 2017 found the SED was not completing investigations, particularly for complaints that pose a substantial danger to public health and safety, in a timely manner. In a follow-up, auditors found SED made some progress in addressing the issues identified in the initial audit.

A report issued in December 2017, determined that the department deposited all funds received into the General Fund, as required. However, it did not assess penalties on 39 deposit initiators that failed to file required quarterly reports, nor did it assess penalties on those who filed late, and took little action to improve compliance. In a follow-up, auditors found the department has made significant progress in addressing the issues identified in the audit.



Employee Organization Leave


Employee organization leave has been an issue since the adoption of the Taylor Law. In response to demands that State employees elected to a leadership position of an employee organization representing state employees be provided with "paid organization leave," the State agreed to provide for “Employee Organization Leave” and enacted §46 of Chapter 283 of the Laws of 1972 to this end.

This law provides that a State employee organization may obtain approval for paid full or part-time leaves of absence of its representatives provided it agrees to fully reimburse the State for the salary and other compensation paid to the individual and, in addition, for all employer contributions for fringe benefits made on behalf of the individual while he or she is on Employee Organization Leave. The individual would continue as a State employee, on the State’s payroll, during this time. 

Another element affecting State employees on Employee Organization Leave: The State Ethics Commission has advised that “State employees on Employee Organization Leave or State employees on leave without pay who serve as employee organization representatives for CSEA … who have terminated their State service and are now employed by CSEA are subject to the "revolving door" provisions of the Public Officers Law and the corresponding restrictions on post-employment activities” [see Advisory Opinion #90-a ].

Presumably this opinion would be applied with respect to State employees on employee organization leave serving with other employee organizations.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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