Many whistleblower attorneys when faced with retaliation against a government contractor client default to claims of retaliation in violation of the anti-retaliation provision of the False Claims Act (FCA), codified at 31 U.S.C. § 3730(h). But doing this may leave a client’s strongest tool on the table. Here’s how counsel might deploy the National Defense Authorization Act (NDAA) alongside the FCA to maximize a client’s recovery in a retaliation case.
This article by
TELG managing principal R. Scott Oswald and TELG senior associate Austin Szabo was published by The Employment Law Group, P.C. on October 29, 2026.
Win More Whistleblower Retaliation Cases: How to Pair the NDAA and the FCA
By R. Scott Oswald and Austin Szabo
IMPORTANT: The following article is intended as a general summary of facts and law and not as individual legal advice upon which you should rely or act. Every case is unique and specific. This article represents our firm’s best knowledge as of October 2026.
When a client is targeted for reporting fraud to the government, many employment attorneys reach for the False Claims Act (FCA) and stop there. That can be a costly mistake. The anti-retaliation provision of the National Defense Authorization Act (NDAA) offers powerful, complementary protections that, when paired with the FCA, can give a plaintiff a decisive legal advantage.
The two statutes are different in important ways, but those differences are precisely what makes them powerful together, as the statutes’ respective strengths cover the other one’s weaknesses. For many whistleblowers seeking protection from retaliation, a dual approach may not be just a good option — it could be the right one.
The False Claims Act’s Anti-Retaliation Provision
Congress enacted the FCA to prevent fraud, waste, and abuse involving federal funds. The FCA also protects whistleblowers who speak up about suspected fraud, but before 2009, protections under the FCA were narrowly limited to those who were taking steps toward filing a whistleblower lawsuit (known as a qui tam action). This created a gap in protection for employees who had opposed suspected fraud through their company’s internal systems.
The gap was filled with the Fraud Enforcement and Recovery Act of 2009 (FERA), which broadened the definition of protected activity under the FCA. With the FERA amendments, employees are not only legally protected from retaliation when preparing to file a whistleblower lawsuit but also when they:
- Report suspected fraud to a supervisor;
- Raise concerns with a compliance department;
- Participate in an internal investigation;
- Refuse to take part in conduct they believe is fraudulent; or
- Take other lawful steps to stop violations of the FCA.
Post-FERA, an employee has engaged in protected activity under the FCA’s anti-retaliation provision if it can be reasonably concluded that their actions could make their employer afraid of being reported to the government for fraud or sued in a qui tam action.
The Employment Law Group had the opportunity to test the statute’s expanded whistleblower protections with Huang v. UVA — one of the first cases tried to a verdict after FERA. The jury instructions at trial were clear: The plaintiff didn’t have to prove that he had filed or planned to file an FCA lawsuit. He didn’t even have to be aware of the FCA at all. He only had to show that he had opposed false claims and that his actions could’ve reasonably led to litigation or a viable FCA claim.
The jury came back with a favorable verdict and over $819,000 awarded to our client.
The National Defense Authorization Act’s Anti-Retaliation Provision
The NDAA is perhaps best known as the annual legislation that funds all defense agencies, but it has also become a powerful anti-retaliation statute for whistleblowers. In Fiscal Year 2013, it was used to significantly expand whistleblower protections for federal contractors.
Congress used the NDAA to add an amendment to the Defense Contractor Whistleblower Protection Act (DCWPA) — itself an offshoot of the Whistleblower Protection Act (WPA) — that created a private right of action protecting whistleblowers who report fraud in the defense contracting space. Crucially, this amendment came with a pilot program expanded to cover all government contracts, not just defense contracts. The pilot program was made permanent in the 2016 NDAA.
Now, the NDAA’s anti-retaliation protections reach beyond the defense space and apply to whistleblowers who report fraud in a broad range of entities that have contracts with the federal government.
Medicare fraud, for example, has typically been thought of as an FCA claim, but the 2013 expansion means that the NDAA can equally apply because healthcare providers maintain contractual relationships with the federal government through their enrollment agreements with the Centers for Medicare & Medicaid Services (CMS). Providers participating in Medicare sign forms agreeing to comply with Medicare billing requirements and applicable statutes and regulations. These agreements can provide the contractual connection necessary to support an NDAA claim alongside an FCA claim.
The same principle applies to organizations operating under Corporate Integrity Agreements (CIAs) and other government agreements.
Using the FCA to Build an NDAA Case
The NDAA can be a powerful statute for whistleblowers, but it comes with challenges that can make it difficult to use successfully, at least at the outset of a case.
The Disadvantages of an NDAA Claim
The NDAA presents three challenges that can make an attorney initially overlook its value.
The first challenge is that the whistleblower must first file a complaint with the appropriate Office of Inspector General (OIG) within two years of the retaliatory action. They must then wait 210 days for the agency’s OIG to investigate the claim before the whistleblower can be granted the right to file their claim in federal court.
The second challenge is that the OIG’s determination at the end of its investigation is admissible in court. This isn’t necessarily a problem, but it can be if the OIG determines that there is no cause to proceed — a result that could weaken the case in the eyes of the court or a jury.
The third — and most significant — challenge is that the NDAA requires more information regarding the underlying fraud when alleging protected activity than the FCA (which requires pleading with particularity when it comes to fraud allegations but not with retaliation claims). Courts frequently find that at least identifying the contract at issue is necessary to state a claim under the NDAA, although you’re not required to provide it during the initial pleading stage and you’re also not required to prove that the fraud took place.
By the end of discovery, however, you should have the contract at issue or stipulate to its contents. A government-contract relationship is a required element of an NDAA claim, and the lack of a contract (or at least a stipulation of its terms) can make it difficult for a case to survive summary judgment.
How the FCA Overcomes the Challenges of an NDAA Claim
The obstacles for an NDAA claim are real — but each one may be solved by filing an FCA retaliation claim alongside the NDAA. This is because the FCA retaliation provision comes in with:
- The ability to enter into federal court right away rather than waiting 210 days;
- A broader scope for protected activity without the need to identify a contract or qui tam claim; and
- As a bonus, double back-pay damages.
The strategy is straightforward: File an FCA retaliation claim immediately to get into federal court, use the resulting discovery to obtain the contract at issue, and then amend the complaint to add the NDAA claim once it has been administratively exhausted. This solution uses the immediate deployability of FCA retaliation claims to build a case for the NDAA (i.e., finding the contract at issue in discovery) while waiting for that claim to mature.
To preserve this option, alert the court to the plan at the Rule 16 Conference so the later amendment is accepted under the joinder rules.
Using the NDAA to Win an FCA Case
You might wonder why you would even want to have an NDAA claim if it seems like the FCA has all the benefits. The FCA’s strong suit here is in getting the case off the ground immediately and opening an avenue for collecting the necessary evidence for an NDAA claim.
But from there, it’s the NDAA’s strengths that can push the case over the finish line to a successful resolution.
The Advantages of an NDAA Claim
The NDAA inherited the WPA’s employee-friendly “contributing factor” standard rather than the traditional “but-for” standard used in most retaliation cases. Under the NDAA, a whistleblower need only show that the protected activity was a contributing factor in the employer’s decision to take an adverse action, such as termination, demotion, or suspension. The whistleblower doesn’t have to prove that the protected activity was the sole reason — or even the primary reason — for the adverse action.
Critically, the NDAA also uses the WPA’s burden-shifting mechanism: Once a plaintiff shows that the protected activity was a contributing factor, the burden shifts to the defendant to prove by “clear and convincing evidence” that it would have taken the same adverse action even if the protected activity had not occurred. That is a heavy lift for any employer.
By contrast, the FCA’s anti-retaliation provision has a higher burden of proof for the plaintiff without any burden shifting to the defendant.
How the NDAA Makes it Easier to Win a Whistleblower Case
The strategic value of pleading both statutes is that it reshapes how a jury is instructed to weigh evidence. In Cody v. ManTech, The Employment Law Group used the NDAA’s burden-shifting scheme to prevail at trial in a complex case.
The firm represented a married couple who claimed they were demoted and then fired after raising concerns about fraudulent pricing related to a major government contract for mine-resistant vehicles.
The court instructed the jury that the plaintiffs first had to prove, by a preponderance of the evidence, that the protected disclosure was a contributing factor in the decision to terminate their employment.
The plaintiffs provided enough evidence for that, and so it became the defendant’s task to prove otherwise: that they would’ve fired the couple even if they hadn’t reported fraud. However, the NDAA claim meant that the defendant had to show more solid evidence than the plaintiffs did.
The NDAA’s burden-shifting framework translated directly into a favorable jury instruction — and the verdict form tracked that same framework, walking the jury step-by-step toward a verdict (and $2.1 million) for the plaintiffs.
The plaintiffs in Cody v. ManTech benefitted from pursuing both claims because the NDAA provided its favorable burden-shifting scheme that made it easier for them to prove their case and the FCA provided its double-backpay damages that brought them a greater award in the end.
The bottom line: Filing an FCA retaliation claim alone may leave your client exposed. The NDAA’s burden-shifting scheme may be the difference between a verdict and a dismissal. Using both statutes when applicable may give your client the strongest possible chance of prevailing.
Frequently Asked Questions
Q: What if my client has a qui tam claim?
Asserting a qui tam claim while also asserting retaliation claims is extremely difficult due to simple differences in timing. You can reach federal court right away with an FCA retaliation claim — or in 210 days with an NDAA retaliation claim — but an FCA qui tam claim can take many years to resolve, much of that time waiting for possible government intervention under seal.
Further, the seal is a problem for potentially settling an FCA or NDAA retaliation case because the settlement would require complete release from qui tam claims and confirming that none currently exist under seal.
You can include the retaliation claims in the complaint to preserve them while waiting out the qui tam process. You can also still administratively exhaust the NDAA claim and later amend the complaint while it is under seal. Once the qui tam claim is either settled or dropped, you can concentrate on proceeding with the retaliation claims.
Q: When should I file an NDAA claim without an FCA claim?
An instance where you should file a NDAA retaliation claim without also filing FCA retaliation is if the whistleblower/plaintiff identifies a violated law, rule, or regulation relating to the contract but not relating to a false claim for government payment.
Q: Can the jury find against my client on one claim but not the other?
Yes. Juries are usually asked to find liability under each law separately. This means that the jury may reach different verdicts for different claims.
However, in Cody, we stipulated with the other side that if the jury found for the plaintiff on one claim, it would necessarily also find for the plaintiff on the other claim. The parties agreed to this because the facts of the case suggested that the result of both claims was linked. The plaintiffs claimed protected activity was undisputed on both claims, and finding causation in one claim would mean finding it for the other.
—–
R. Scott Oswald is the managing principal at The Employment Law Group, P.C., a law firm that represents employees in disputes with their employers. Austin Szabo is a senior associate at the firm.
