By Clayton Wire, Esq of Ogborn Mihm, LLP
The False Claims Act (FCA) provides important protections for whistleblowers who take steps to expose or stop potential fraud on the government. As discussed in a prior Fraud in America Blog post , the FCA allows a private individual to bring a claim on behalf of the government against a person or company that has defrauded the government, which is called a “qui tam” claim. However, this provision is meaningless if would-be whistleblowers are so afraid of losing their job that they never come forward in the first place. That’s where the Act’s anti-retaliation protections come in, ensuring that whistleblowers cannot be retaliated against for their protected acts.
The Basic Protections of the False Claims Act’s Anti-Retaliation Provision
Protected activity under the FCA takes two forms. The Act first protects “lawful acts done … in furtherance of an action under” the FCA.[i] Second, the Act bars retaliation for lawful acts done in furtherance of “other efforts to stop 1 or more violations of” the FCA.[ii]
Under the first prong, an employee’s lawful acts are in “furtherance of an action under this section” if she “investigat[es] matters that reasonably could lead to,” or have a “distinct possibility” of leading to, a “viable False Claims Act case.”[iii] Courts have said that this also includes “preparing for ‘a private qui tam action or assisting in an ... action brought by the government.’”[iv]
The second prong is not tied to the prospect of a FCA proceeding. Instead, the plain statutory text focuses on the whistleblower’s “efforts to stop” violations of the statute before they happen or recur.[v]
The 2009 Expansion of the FCA’s Anti-Retaliation Whistleblower Protections
Prior to 2009, the FCA’s anti-retaliation provision only protected would-be whistleblowers if their actions were in furtherance of a qui tam action, which many courts interpreted as a narrow scope of protection. However, in 2009, Congress amended the Act to include within its protections efforts to stop one or more violations of the FCA, which expanded the FCA’s whistleblower protections. This second prong was added by amendments to the statute in 2009 as part of the Fraud Enforcement and Recovery Act of 2009 (FERA).
Under the current version of the FCA’s anti-retaliation provision, in order to fall under either category of protected activity “a plaintiff need not allege that the defendant actually defrauded or attempted to defraud the United States; instead, a plaintiff may state an FCA retaliation claim even if the defendant's conduct would not have violated the FCA.”[vi]
The focus of the second prong is on the plaintiff’s “efforts,” and what such efforts were intended to do. Consequently, while “the second prong (like the first prong) requires that the employee’s efforts pertain to fraud in connection with the submission of a claim for federal government funds … that test is met as long as the employee has an objectively reasonable belief that the employer is violating, or will violate, the False Claims Act.”[vii] The second prong “seems to sweep within its scope all conduct, complaints and reports intended to stop a FCA violation.”[viii]
What is a “Reasonable Belief”?
As discussed, an employee need only have a “reasonable belief” that fraud may be occurring to be protected under the FCA’s anti-retaliation provision. This means that whether the employee may have been mistaken regarding whether the actions she reported could or would result in a viable qui tam or other FCA claim is not determinative of whether she engaged in protected activity.[ix] This means that, so long as a reasonable person in the employees shoes would have believed that a potential fraud may have occurred, been occurring, or was likely to occur in the future, the whistleblower is protected if they report their concerns or engage in efforts to stop what they believe to be the fraudulent conduct.
Clayton “Clay” Wire is a Partner at the law firm Ogborn Mihm, LLP, in Denver, Colorado. The majority of his practice is representing whistleblowers in retaliation, qui tam, and bounty claims under a variety of state and federal statutes and claims, including the False Claims Act. For more on Clay’s practice, visit www.whistleblower-attorney.com, or email him at email@example.com.
[i] 31 U.S.C. § 3730(h)(1). [ii] Id. [iii] Hoyte v. American Nat’l Red Cross, 518 F.3d 61, 66, 68–69 (D.C. Cir. 2008) (internal quotation marks omitted). [iv] United States ex rel. Reed v. KeyPoint Gov't Sols., 923 F.3d 729, 764–65 (10th Cir. 2019) (quoting United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir. 1996)). [v] See United States ex rel. Grant v. United Airlines, Inc., 912 F.3d 190, 201 (4th Cir. 2018) (“The apparent purpose of the [second prong] is to untether these … protected efforts from the need to show that [a False Claims Act] action is in the offing. Indeed, we and other circuits have recognized that the amended language broadens the scope of protected activity.”); United States ex rel. Chorches v. American Med. Response, Inc., 865 F.3d 71, 97 (2d Cir. 2017) (the second prong “broaden[s] the universe of protected conduct under [Section] 3730(h), at least with respect to ‘efforts to stop’ [False Claims Act] violations”). [vi] Weslowski v. Zugibe, 14 F.Supp.3d 295, 310 (S.D.N.Y. Mar. 31, 2014). [vii] Singletary v. Howard Univ., 939 F.3d 287, 295–97 (D.C. Cir. 2019) (citations omitted); see Townsend v. Bayer Corp., 774 F.3d 446, 457-58 (8th Cir. 2014) (applying “objectively reasonable belief” standard in an “efforts to stop” case); Grant, 912 F.3d at 201 (“[A]n act constitutes protected activity where it is motivated by an objectively reasonable belief that the employer is violating, or soon will violate, the [False Claims Act].”); see Chorches, 865 F.3d at 96 (second prong encompasses a plaintiff’s “refusal to engage in the fraudulent scheme, which * * * reasonably could be expected to prevent the submission of a false claim to the government”); see also Fanslow v. Chi. Mfg. Ctr., Inc., 384 F.3d 469, 480 (7th Cir. 2004) (“the relevant inquiry to determine whether an employee's actions are protected under § 3730(h) is whether: (1) the employee in good faith believes, and (2) a reasonable employee in the same or similar circumstances might believe, that the employer is committing fraud against the government.”); Wilkins v. St. Louis Hous. Auth., 314 F.3d 927, 933 (8th Cir. 2002); Moore v. California Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838, 845 (9th Cir. 2002); United States ex rel. Todd v. Fidelity Nat'l Fin., Inc., No. 1