How the False Claims Act Protects Whistleblowers From Retaliation
By Clayton Wire, Esq of Ogborn Mihm, LLP
Are You Required to Bring a Qui Tam Claim or Prove a False Claims Act Violation to Bring a Retaliation Claim under the False Claims Act’s Whistleblower Protections?
Generally, the answer is “no,” a whistleblower is not required to file a qui tam action or prove the elements of a False Claims Act (FCA) violation to be protected under the statute’s anti-retaliation provisions. 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. Additionally, as discussed previously in this blog, the FCA protects whistleblowers from retaliation for engaging in protected activity.
A Qui Tam Claim is Not Required to Bring a Retaliation Claim
The majority of courts have concluded that a retaliation claim under the FCA can be maintained even if no FCA action is ultimately successful or even filed.[i] This is because “[r]equiring an employee to actually file a qui tam suit would blunt the incentive to investigate and report activity that may lead to viable False Claims Act suits.”[ii]
Moreover, broad public policy favors allowing retaliation claims to be brought separate from qui tam claims because “[t]he False Claims Act was enacted to encourage parties to report fraudulent activity and was intended to ‘protect employees while they are collecting information about a possible fraud, before they have put all the pieces of the puzzle together.’”[iii] What this means is that the FCA provides strong anti-retaliation protection that covers whistleblowing employees, regardless of whether that employee possesses sufficient information to bring a qui tam claim.
Most Courts Say that a Whistleblower is Not Required to Prove the Elements of a False Claims Act Violation to Succeed on a Retaliation Claim
Additionally, not only is a whistleblower not required to bring a qui tam lawsuit to have a claim under the FCA’s anti-retaliation, but generally the whistleblower is also not required to prove an actual violation of the substantive anti-fraud provisions of the FCA, or satisfy the elements of such a claim.
Helpfully, the U.S. Supreme Court has weighed in on whether a whistleblower must prove a substantive violation of the False Claims Act to be protected from retaliation, stating that “proving a violation of [the False Claims Act’s substantive provisions] is not an element of a [retaliation] cause of action.”[iv] The Court went further, stating that a whistleblower need not even prove that a false claim was submitted; instead, the False Claims Act “protects an employee’s conduct even if the target of an investigation or action to be filed was innocent.”[v]
[i] See e.g. U.S. ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir. 1996); U.S. ex rel Yesudian v. Howard Univ., 153 F.3d 731, 740 (D.C. Cir. 1998) (despite dismissal of qui tam claims, relator had alleged and established sufficient facts for a reasonable jury to find a violation of the FCA’s retaliation provision because the relator was “investigating matters that reasonably could lead to a viable [FCA] case.”); Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 188 (3d Cir.2001) (“Requiring an employee to actually file a qui tam suit would blunt the incentive to investigate and report activity that may lead to viable False Claims Act suits.”); U.S. ex rel. Karvelas v. Melrose–Wakefield Hosp., 360 F.3d 220, 236 (1st Cir.2004); Schuhardt v. Washington Univ., 390 F.3d 563, 567 (8th Cir. 2004); McKenzie v. BellSouth Telecommunications, Inc., 219 F.3d 508, 516 (6th Cir. 2000) (“An employee, however, need not expressly know that the FCA allows qui tam actions to be filed against their employer, or have already filed such an action to be protected from retaliation under § 3730(h).”). [ii] Hutchins, 253 F.3d at 188. [iii] Id. (quoting Yesudian, 153 F.3d at 740). [iv] Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 416 n.1 (2005). [v] Id. at 416; see also id. at 426 (Breyer J., dissenting) (“Here, the retaliation victim need not prove that her employer did in fact violate federal false claims law, but only that she believed that there was such a violation.”).