Blog · June 4, 2026 · 16-minute read

Qui tam attorney time tracking: FCA fee petition mechanics, the sealed investigation billing gap, and § 3730(d) records-quality analysis

Q: Why is the sealed investigation period the highest-risk phase for FCA billing records?

Under 31 U.S.C. § 3730(b)(2), a qui tam complaint is filed under seal while the government investigates, typically 1–3 years (frequently extended). During this period the attorney works intensively — building the relator's disclosure statement, coordinating with DOJ Civil Division and agency IG investigators, preparing the relator for government interviews, counseling the relator on § 3730(h) retaliation risks — but no client invoice is being sent. The relator typically agreed to a contingency arrangement against the relator's share under § 3730(d)(1), so there is no billing cycle creating contemporaneous-record-keeping discipline. In a complex healthcare FCA case, sealed-phase attorney time ranges from 200 to 600 hours. At $350/hr that is $70,000–$210,000 of fee-petition exposure concentrated in the phase where reconstruction accuracy is lowest — 35–45% — because the work occurred across a long window with no external recording anchors: no invoice, no opposing-counsel calendar, no court docket to generate billing triggers.

Q: What is the relator-share calculation and how does it interact with the fee petition?

Under § 3730(d)(1), when the government intervenes, the relator receives 15%–25% of the government's recovery based on how substantially the relator's information contributed to the investigation. Under § 3730(d)(2) for declined cases, the range is 25%–30%. The relator-share information-value argument and the § 3730(d) fee petition both rest on the same billing record: sealed-phase hours documented with contemporaneous precision demonstrate that counsel invested 200+ hours in disclosure statement preparation and DOJ coordination, supporting the claim that the relator's information was an indispensable investigative contribution. An attorney who reconstructed those hours at 40% accuracy — logging 95 hours out of 200 worked — simultaneously weakens the fee petition and the relator-share argument, because the billing record is evidence of investigative depth for both proceedings.

The § 3730(d) fee petition is litigated at the end of a 2–5 year False Claims Act case against DOJ fee-litigation counsel who know exactly where the billing records will be weakest. The sealed investigation period — the 1–3 years of relator contact calls, DOJ and IG coordination, and disclosure statement preparation that occurs before any public docket number exists — produces the largest structural billing gap in any fee-shifting practice context. No client invoice is going out. No billing cycle is creating contemporaneous-records discipline. The attorney is working on contingency against a relator share that arrives at settlement. In a complex healthcare FCA case, that sealed phase accumulates 200–600 hours of attorney time that must survive a Hensley records-quality challenge years after it was performed.

TL;DR

ClaimHour's passive capture layer — iOS call metadata (duration, timestamp, counterparty), email-compose activity, and Word/Pages document-edit time — builds a contemporaneous record for every relator contact call, DOJ coordination call, and disclosure statement drafting session from the first day of representation. The result satisfies the Hensley standard for § 3730(d) fee petitions, documents the sealed-phase billing timeline without reconstruction gaps, and establishes the record depth that supports both the fee award and the relator-share information-value argument at settlement. $29–$59/mo. No PMS required.

§ 3730(d) fee-shifting framework: why FCA fee petitions have records stakes no other practice creates

31 U.S.C. § 3730(d) provides two fee-shifting paths for qui tam relator's counsel. Under § 3730(d)(1), when the government intervenes and the action proceeds, the defendant is liable for the relator's reasonable expenses, attorneys' fees, and costs incurred by the relator — separately from the government's damages recovery. Under § 3730(d)(2), when the government declines to intervene and the relator prevails independently, the court awards reasonable expenses and attorneys' fees from the proceeds of the action. In both scenarios, the lodestar method under Hensley v. Eckerhart, 461 U.S. 424 (1983) governs: reasonable hours multiplied by a reasonable hourly rate.

Three structural features make § 3730(d) fee litigation harder to win on records-quality grounds than civil rights or employment fee-shifting contexts.

First, the § 3730(b)(2) sealed complaint period creates an isolation layer that removes every external system that would otherwise generate contemporaneous records. In civil rights practice, the Monell investigation phase occurs before filing but after a matter file has opened and the attorney-client relationship has formed — there is at minimum a conflict-check entry and a matter-coding structure. In ERISA litigation, the administrative exhaustion phase occurs before the case is filed but the relator is submitting claims and receiving denial letters that create a paper trail anchoring the attorney's time. In qui tam practice, the sealed complaint period removes: (1) the client invoice cycle — no invoice goes to the relator because the arrangement is contingency on the relator's share; (2) the opposing-counsel calendar — no defense counsel knows the matter exists, so no motion deadlines or discovery requests create billing triggers; (3) the court management schedule — no judge is managing the case, so no case management conference orders, pretrial schedules, or court-generated dates anchor the billing record. The attorney is working in isolation, on contingency, without any external system creating the discipline that normally produces contemporaneous records.

Second, the government is typically both the fee-award obligor and the adversary of the relator's counsel in the fee petition proceeding. In an intervened FCA case, DOJ's Civil Frauds Section negotiates the defendant's settlement and then, separately, reviews the relator's counsel's fee application under § 3730(d)(1). The DOJ fee-litigation counsel reviewing the petition has institutional knowledge — from litigating the same type of case repeatedly — of exactly where sealed-phase records will be weakest: the relator contact calls that happened on evenings and weekends, the DOJ coordination calls that were initiated by the government without advance scheduling, the disclosure statement revision cycles that accumulated hours across weeks of non-consecutive editing sessions.

Third, the sealed-phase hours are simultaneously the most valuable hours for relator-share purposes and the most vulnerable hours for fee-petition purposes. The relator's share under § 3730(d)(1) is between 15% and 25% of the government's recovery, calibrated by statute to reflect how substantially the relator's information contributed to the investigation. An attorney who documented 180 hours of sealed-phase disclosure statement preparation and DOJ coordination can argue that the relator was an indispensable investigative partner. An attorney who reconstructed those 180 hours at 40% accuracy — contemporaneous records for 72 hours, reconstruction for the remaining 108 — makes a weaker information-value argument at exactly the moment the relator-share percentage is being negotiated. The records quality problem is a dual-record problem: the same inadequacy that reduces the fee petition also undercuts the relator-share claim.

Failure mode 1: sealed investigation architecture — why the most intensive phase generates the worst records

The sealed investigation period under § 3730(b)(2) is not merely a records gap — it is a structural billing problem created by the architecture of qui tam practice. Understanding why the sealed phase produces poor records is prerequisite to understanding what contemporaneous capture changes.

The relator's counsel in a complex healthcare FCA case (Medicare upcoding, pharmaceutical kickbacks, durable medical equipment false billing) typically structures the engagement as a contingency arrangement against the relator's share: no monthly retainer, no interim invoice, no billing cycle. The rationale is straightforward — the relator is a hospital billing specialist or pharmaceutical sales representative who discovered the fraud, not a paying client with an ongoing legal budget. The contingency structure aligns incentives but eliminates every billing-cycle-generated record-keeping discipline that would otherwise apply.

The practical consequence: an attorney who works 300 hours on a complex FCA case during the sealed period has no natural contemporaneous recording mechanism. The FOIA requests go out to HHS-OIG, the DOJ Civil Division attorney calls to ask for supplemental evidence, the relator calls to report that additional fraudulent claims have been discovered — and the attorney's record of these events consists of whatever the attorney happened to write down at the time, in whatever format, with whatever level of specificity the attorney had the discipline to maintain across 30 months of case management without a billing system running.

Courts applying Hensley to § 3730(d) petitions do not distinguish between the structural reasons for inadequate records and the practical result. The records-quality standard is the same: contemporaneous entries showing the date, hours spent, and nature of work, with sufficient particularity to allow the court to assess the reasonableness of the claimed time. A reconstructed sealed-phase time sheet — 300 entries written three years after the work was performed — is subject to the same block-billing, vague-descriptor, and inflation challenges as reconstructed entries in any other fee-shifting context.

The arithmetic for sealed-phase reconstruction accuracy: attorneys reconstructing complex matter time from memory at month-end capture 40–55% of actual hours worked across typical fee-shifting practice contexts. For sealed-phase work specifically, the reconstruction accuracy is lower — 35–45% — because the work occurred across a longer window (30 months vs. a single billing period), with no client invoice anchoring specific dates to specific deliverables, and with the most granular work (relator contact calls, DOJ status calls) being the hardest to reconstruct from memory.

For a complex healthcare FCA case with a 30-month sealed period and 300 hours of total sealed-phase attorney time: at 40% reconstruction capture, the attorney logs 120 hours contemporaneously and reconstructs 180 hours from memory. Of the 180 reconstructed hours, 25–35% (45–63 hours) are reduced under Hensley block-billing and vague-descriptor challenges. Net reduction: $15,750–$22,050 at $350/hr from reconstruction-based cuts alone, before government proportionality objections and rate challenges.

Failure mode 2: relator contact calls and § 3730(h) retaliation counseling

The relator in a complex FCA case is typically still employed at the defendant organization during the entire sealed investigation period. The attorney's role is not only to build the legal case but to counsel the relator on maintaining normal employment behavior while the investigation proceeds — advice directly implicated by the § 3730(h) anti-retaliation provision, which creates a separate cause of action if the employer takes adverse employment action against an employee engaged in protected qui tam activity.

This dual role — investigative counsel and retaliation-risk advisor — generates recurring attorney-client calls throughout the sealed phase. In a complex healthcare case involving an employed billing specialist or compliance officer, the pattern of relator contact breaks into three categories:

Monthly status calls: the relator reports on new events at the defendant organization — additional fraudulent billing activity discovered, changes in management that affect the investigation, concerns about potential discovery of the relator's cooperation. These calls average 25–35 minutes each and occur monthly across the sealed period. For a 30-month sealed phase: 30 calls × 30 min avg = 15 hours of relator contact.
Event-triggered retaliation counseling calls: when the relator experiences an adverse employment event — a performance review, a department reorganization, a supervisor change — the attorney provides immediate § 3730(h) counseling on how to respond, what to document, and whether the event is potentially retaliatory. These calls are unscheduled, occur on short notice, and average 20–40 minutes. For a high-intensity case with significant organizational changes: 12–18 additional unscheduled calls × 30 min avg = 6–9 hours.
Government interview preparation: before the relator meets with DOJ Civil Division attorneys and federal investigators, the attorney conducts preparation sessions averaging 4–8 hours each. For a complex investigation with two government interviews: 8–16 hours of preparation time.

Total relator contact time across a 30-month sealed investigation: 29–40 hours across these three categories. At a 35–40% reconstruction capture rate — relator contact calls occur on personal devices at irregular hours without billing-system triggers — 17–26 hours are untracked per case → $5,950–$9,100 at $350/hr.

The specific records problem with relator contact calls in the § 3730(d) fee petition: courts reviewing § 3730(d) petitions apply the same vague-descriptor standard as in civil rights and employment petitions. An entry reading "telephone conference with relator — 0.5 hours" raises the same question as "telephone conference" in a § 1988 petition: what was the substance of the call? Courts have reduced FCA fee petitions for generic relator-contact entries that do not identify the specific legal issues discussed, the specific events at the defendant organization that precipitated the call, or the specific advice provided. The attorney who reconstructed 30 monthly calls from memory and described each as "relator call" or "client update" has created a block-billing target across the most frequent line-item category in the sealed-phase petition.

Failure mode 3: DOJ coordination and disclosure statement preparation — the core sealed-phase records gap

The two largest work streams in the sealed investigation phase — DOJ and agency IG coordination calls, and disclosure statement drafting and revision — together account for 150–500 hours of the total sealed-phase attorney time in a complex case, and they are the components most susceptible to systemic underrecording.

DOJ Civil Division and agency IG coordination

Under 31 U.S.C. § 3730(a)–(b), the government's investigation of the relator's allegations is managed by DOJ's Civil Frauds Section in coordination with the relevant agency's Office of Inspector General — HHS-OIG in healthcare cases, DoD-OIG in defense contractor cases, EPA-OIG in environmental FCA cases. The relator's counsel coordinates with these investigators throughout the sealed period to produce supplemental evidence, schedule the relator's investigative interview, respond to specific inquiries about the disclosure statement's claims, and monitor the government's assessment of case strength.

This coordination generates three types of attorney work:

DOJ status calls: the Civil Division attorney calls every 4–6 weeks to update on the investigation's progress and to request supplemental evidence or information. These calls average 20–30 minutes each. For a 30-month investigation: 5–7 calls/year × 2.5 years = 12–18 calls × 25 min avg = 5–7.5 hours of DOJ coordination call time.
Supplemental evidence transmittal: after each DOJ inquiry, the attorney works with the relator to identify, organize, and transmit supplemental documents — additional false claims records, organizational charts showing the fraud's scope, internal communications establishing knowledge. Each transmittal cycle generates 2–6 hours of document-organization work and 30–60 minutes of email correspondence per cycle, distributed across 3–5 transmittal rounds. Total: 7.5–33 hours of transmittal work.
Agency IG coordination: in healthcare FCA cases, HHS-OIG typically conducts a parallel investigation generating its own coordination calls (3–6 calls across the sealed period × 25 min = 1.25–2.5 hours) and may conduct in-person interviews at the defendant organization requiring attorney coordination and preparation (4–10 hours per in-person event).

Combined DOJ and agency coordination work: 14–53 hours per complex healthcare case. At 35–40% reconstruction capture for coordination calls and 45–55% for document-transmittal work: 7–29 hours untracked → $2,450–$10,150 per case.

Disclosure statement preparation

The § 3730(b)(2) disclosure statement is the evidentiary foundation of the government's investigation. In a complex healthcare FCA case — Medicare upcoding across 50,000 claims spanning 5 years — the disclosure statement runs 30–80 pages and includes: a narrative describing the fraudulent scheme, supporting documentation organized by claim type, a damages estimate based on the attorney's analysis of the false claims data, identification of witnesses with first-hand knowledge, and the legal theory connecting the defendant's conduct to FCA liability.

Initial disclosure statement preparation accounts for 40–120 hours in a complex case: legal research (FCA case law, regulatory requirements violated), damages analysis (statistical sampling of false claims), document organization (indexing the relator's internal documents into categories the government can use), and the drafting and revision cycle itself — typically 4–8 rounds of revisions with relator review. At 40–50% reconstruction capture for document-drafting sessions: 20–60 hours untracked in the initial disclosure statement phase alone.

Supplemental submissions add to this total. As the investigation proceeds and the government requests additional information, the attorney prepares 2–5 supplemental submissions averaging 15–30 pages each. Each supplemental cycle generates 15–40 hours of additional attorney work. For three supplemental submissions: 45–120 additional hours. At 40–50% reconstruction capture: 22–60 hours untracked.

Total disclosure statement and supplemental work: 85–240 hours. Untracked component at 40–50% capture: 42–120 hours → $14,700–$42,000 per complex healthcare case at $350/hr.

The specific records problem: disclosure statement drafting sessions are the type of sustained work that should be well-documented — but in practice they are the most frequently reconstructed inaccurately. The reason is the non-consecutive drafting pattern: a complex disclosure statement is drafted across 20–40 separate editing sessions over 6–8 weeks, with the attorney returning to the document for 30 minutes here, 90 minutes there, inserting a paragraph based on a new document the relator provided, revising the damages analysis after consulting with an accountant expert. Each session is independent, often short, and the attorney has no time-entry prompt at the start or end because no billing system is running. The billing record that reconstructs this cycle from memory three years later — "disclosure statement preparation — 40 hours" — is a block-billing entry covering 20–40 discrete sessions, and courts reduce it on exactly those grounds.

Failure mode 4: post-intervention monitoring, relator-share negotiation, and the consistent-methodology inference

When the government intervenes under § 3730(c)(1), the qui tam relator's counsel enters the phase of lowest billing discipline in the entire case. The attorney is no longer the primary litigator. The role has shifted to monitoring the government's prosecution, protecting the relator's interests, and positioning for the relator-share and fee-petition phase at settlement. This transition coincides with the period when no client invoice is creating billing-cycle discipline, and when the specific compensable activities are discrete events (deposition attendance, settlement review) interspersed with extended monitoring periods (reviewing government-filed motions, tracking the investigation progress) that reconstruct poorly.

Post-intervention monitoring work

Courts have awarded post-intervention fees for hours that served the relator's distinct interests — opposing settlement terms that undervalue the relator's information contribution, arguing against the government's settlement amount as inadequate, protecting the relator from adverse employment consequences during the government's investigation of co-workers. But these compensable monitoring activities are embedded in a background of non-compensable status maintenance, and the billing record must distinguish the two.

In a 24-month government prosecution phase following intervention, the distinctly compensable monitoring work includes: 3–4 depositions attended to protect the relator's interests (8–15 hours each including travel and preparation = 24–60 hours total); 2–3 settlement negotiating rounds requiring relator-share analysis (5–15 hours each = 10–45 hours); and ongoing § 3730(h) retaliation counseling as the government's investigation of co-workers proceeds (2–4 hours per month × 24 months = 48–96 hours). Total: 82–201 hours of post-intervention compensable attorney work. At 40–50% reconstruction capture for monitoring calls and 55–65% for settlement analysis: 33–90 hours untracked → $11,550–$31,500 per case.

Relator-share negotiation

The relator's share under § 3730(d)(1) is calculated within the 15–25% statutory range based on a multi-factor analysis: how substantially the relator's information contributed to the government's case, whether the relator planned and initiated the fraud before disclosing it, and the government's independent knowledge of the fraud before the qui tam complaint was filed. This calculation is litigated by DOJ against the relator's counsel — DOJ typically arguing for the lower end (15–17%) and relator's counsel arguing for the higher end (22–25%).

The relator's information-value argument rests directly on the billing record. Counsel who documented 200 hours of sealed-phase investigation can show that the relator's information was developed through sustained attorney-guided investigation that substantially aided the government. Counsel who reconstructed those 200 hours and claims contemporaneous records for 80 of them weakens the information-value argument with the same evidence that weakens the fee petition. The dual-record consequence: every hour gap in the fee petition is simultaneously an hour gap in the relator-share information-value argument.

The relator-share negotiation itself generates 15–30 hours of research and conference time — comparable relator-share percentages from prior cases in the same industry, the government's declination-or-intervention calculus analysis, settlement conference preparation and attendance. At 40% reconstruction capture: 6–12 hours untracked → $2,100–$4,200 per case.

Fees-on-fees and the consistent-methodology inference

A contested § 3730(d) fee petition generates 25–55 hours of fees-on-fees work under Missouri v. Jenkins, 491 U.S. 274 (1989): fee application drafting and the hours table compilation (10–20 hours), supporting declarations on prevailing rates (5–10 hours), response to DOJ's objections to the petition (5–15 hours), and potential reply and hearing preparation (5–10 hours). These fees-on-fees hours are fully recoverable at the full lodestar rate with contemporaneous records, subject to an 8–12% voluntary billing-judgment reduction.

The consistent-methodology inference applies to § 3730(d) fee petitions identically to § 1988 civil rights petitions: courts that have already applied block-billing and vague-descriptor reductions to the sealed-phase merits hours do not treat the fee petition preparation as a separately documented record. The inference is that an attorney who reconstructed 300 hours of sealed-phase work used the same methodology when reconstructing the 35 hours of fee petition preparation — and the court applies the same percentage reduction to both. For a § 3730(d) petition that received a 30% merits-hours reduction for block billing: the fees-on-fees reduction at the same rate = $3,675 of additional unrecoverable fee-petition preparation time at $350/hr (35 hours × 30% × $350). For a larger petition with 50 hours of fees-on-fees work and a 25% reduction: $4,375 additional gap.

Full arithmetic for a complex healthcare FCA case at $350/hr

The four failure modes compound across a single complex healthcare FCA case with a 30-month sealed period and government intervention:

Failure mode	Untracked hours	Per-case gap
Sealed-phase architecture: reconstruction-based Hensley cuts (300 hrs total, 40% capture, 30% cut on reconstructed hrs)	54	$18,900
Relator contact calls + § 3730(h) retaliation counseling (29–40 hrs total, 37% gap)	11–15	$3,850–$5,250
DOJ/agency coordination + disclosure statement preparation (99–293 hrs total, 45% gap)	45–132	$15,750–$46,200
Post-intervention monitoring + relator-share negotiation (97–231 hrs total, 40% gap)	39–92	$13,650–$32,200
Fees-on-fees consistent-methodology inference (35 hrs × 30% merits reduction = 10.5 hrs)	10–14	$3,500–$4,900
Total per-case billing gap	159–307	$55,650–$107,450

The qui tam attorney time tracking guide frames the exposure range as $70,000–$210,000 for the sealed phase alone, because the extremes span from a small, straightforward FCA case (simple single-count Medicare upcoding, short sealed period, efficient disclosure statement preparation) to a complex multi-defendant healthcare or defense contractor case with a 36-month investigation, five supplemental submissions, and a significant post-intervention monitoring phase. The table above represents a mid-complexity healthcare FCA case — the most common profile in solo relator's-counsel practice — with 300 total sealed-phase hours and a 24-month post-intervention government prosecution.

For a declined case where the relator independently prosecutes the full FCA action over 4 years — adding discovery, summary judgment, and potentially trial to the sealed-phase hours — the total per-case billing gap expands further. The litigation-phase components (expert coordination calls, FCA damages analysis with the statistical expert, government witness depositions) add billing failure modes analyzed in the contingency-fee solo leak post. The FCA-specific elements unique to declined cases — relator contact calls continuing through the full 4-year litigation, expert statistical-sampling consultation for proving damages at scale (3 experts × 4–6 calls/year × 30 min × 40% gap × 4 years = 28.8 untracked hours = $10,080), and the relator-share calculation argument at the 25–30% declined-case range — add $15,000–$35,000 to the per-case gap relative to the intervened-case baseline.

For comparison: a contemporaneously documented FCA practice covering the same sealed-phase work — the same relator contact calls, DOJ coordination calls, and disclosure statement drafting sessions — produces a § 3730(d) fee petition lodestar 25–35% larger than one built from reconstructed records, and a relator-share argument that the billing record substantiates rather than contradicts. The gap is not the attorney's hourly rate or the number of hours worked. It is whether the hours that were worked are documented in a form that survives a professional fee-litigation challenge from the government counsel who opposed the FCA case.

How ClaimHour fits FCA qui tam practice

If you represent FCA relators on contingency — with a 2–5 year timeline from sealed complaint to § 3730(d) fee petition — ClaimHour addresses the architectural problem of sealed-phase records: passive capture from the day of engagement, before any billing system would otherwise be running.

For relator contact calls: iOS CallKit metadata captures duration, timestamp, direction, and counterparty for every call placed or received from the attorney's iPhone, without audio. Each call appears in the evening digest with the captured metadata ready for matter attribution. The attorney marks the call to the relevant FCA matter and adds a task-specific descriptor — "§ 3730(h) retaliation counseling: performance review documentation advice" — at review time, producing a contemporaneous entry that satisfies Hensley's particularity requirement for the most frequent line item in the sealed-phase petition.

For DOJ and agency IG coordination calls: the same iOS call metadata mechanism captures every incoming DOJ Civil Division or HHS-OIG call with the federal counterparty's number, duration, and timestamp. Email-compose tracking captures the supplemental document transmittal correspondence — the time spent drafting each cover letter and transmittal memo — in the form of compose-duration events that produce contemporaneous records without accessing email content.

For disclosure statement preparation: document-edit monitoring (Word and Pages focus-duration events) captures every editing session on the disclosure statement with session start, end, and document identity. A drafting cycle distributed across 30 separate editing sessions over six weeks appears in the billing record as 30 captured events with timestamps, not one reconstructed block entry — and produces a time sheet that survives Hensley scrutiny on both the hours total and the task-level specificity required to distinguish drafting from revision from regulatory research within the same document.

No audio. No call contents. No email bodies. Privilege is preserved throughout the sealed period and beyond. Join the waitlist for early access.

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