SYLVIA SINGLETARY, D.V.M., APPELLANT v. HOWARD UNIVERSITY, APPELLEE
No. 18-7158
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 26, 2019 Decided September 20, 2019
Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-01198)
James H. Shoemaker Jr. argued the cause and filed the briefs for appellant.
Jennifer L. Curry argued the cause for appellee. With her on the brief was Donna M. Glover.
Before: SRINIVASAN, MILLETT, and KATSAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
Dissenting opinion filed by Circuit Judge KATSAS.
I
A
As a voluntary recipient of funding from the federal government for research activities involving live animals, Howard University is subject to several regulatory regimes. Two are rеlevant here.
The Animal Welfare Act of 1966,
The Health Research Extension Act of 1985 (“Extension Act“),
As relevant here, the Care Standards Guide specifies that laboratory animals are
The Animal Welfare and Extension Acts, and their accompanying regulations, together impose an internal compliance infrastructure to enforce the animal-care standards. The keystone of that infrastructure is the requirement that each research institution have an Institutional Animal Care and Use Committee (“Committee“). See
To assist in performing those tasks, each Committee‘s membership includes an “Attending Veterinarian” who is entrusted with the authority to “ensure the provision of adequate veterinary care and to oversee the adequacy of other aspects of animal care and use[.]”
In addition to mandating internal compliance procedures, the Animal Welfare and Extension Acts, and their corresponding regulations, call for periodic external reporting. On an annual basis, each institution must file a report with the Department of Agriculture and the NIH, respectively, certifying compliance with all required animal welfare standards. See
More frequent reporting is necessary in the event animal care standards are not met and remedial measures are undertaken. Under the Humane Care Policy, the Institutional Official must, among other things, “promptly” provide the NIH with a “full explanation” of the “circumstances and actions taken” to remedy (i) “any serious or continuing noncompliance with [the Humane Care Policy,]” or (ii) “any serious deviations from the * * * Guide[.]” Humane Care Policy § IV.F.3. That includes “mechanical failures * * * resulting in actual harm or death to animals[.]” Office of Laboratory Animal Welfare, NIH, Guidance on Prompt Reporting to OLAW under the PHS Policy on Humane Care and Use of Laboratory Animals 2-3 (Feb. 24, 2005) (“Prompt Reporting Notice“).
All of those requirements come with teeth. If animal care deviations persist after an opportunity to cure, governmental funding agencies including the NIH “shall” revoke financial support for the institution‘s research activities.
B
Congress enacted the False Claims Act in the 1860s in response to widespread
To enhance enforcement of the law, the False Claims Act offers protection to whistleblowers who seek to expose or to prevent government fraud. Specifically, Section 3730(h) entitles “any employee” to:
all relief necessary to make that employee * * * whole, if that employee * * * is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee * * * in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.
To make out a claim of retaliation under Section 3730(h), a plaintiff must plead facts showing (i) that she engaged in protected activity, (ii) “because of” which she was retaliated against. United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998). To satisfy the second element, a plaintiff must further allege (a) that the employer knew she was engaged in protected activity, and (b) that the retaliation was motivated “at least in part” by her protected activity. Id. (internal quotation marks omitted).
C
In January 2013, Howard University retained Dr. Sylvia Singletary for a thirty-month appointment as the “Attending Veterinarian” at its Medical School. See
Singletary reported directly to Dr. Thomas Obisesan, who was both the University‘s Vice President for Regulatory Research and Compliance and the Institutional Official responsible for certifying animal-welfare compliance with federal agencies. See
Over an approximately nine-month period between Summer 2013 and Spring 2014, Singletary repeatedly warned Obisesan that the air temperature in the laboratory animals’ living quarters was too high. She explained that the conditions, which
Singletary then took her concerns to Heinbockel and Dr. Mark Johnson, the Dean of the University‘s Medical School. Both proved unresponsive. Over the same time period that Singletary was registering complaints and warnings with those University officials, the University “made certifications to the [NIH] and other federal agencies that the laboratory animals * * * were being maintained and cared for under certain federally mandated ambient living conditions.” Proposed Complaint ¶ 43, J.A. 137.
Things came to a head when, in mid-April 2014, Singletary arrived at work to find 21 mice dead from heat exhaustion. Because Obisesan had not acted in response to her prior complaints, Singletary took matters into her own hands. She emailed the NIH—her only written communication with the agency during her twenty-month tenure at the University—to report the rodents’ deaths. Singletary‘s message, on which Obisesan and Heinbockel were copied, explained that:
At 10:45 am, April 15, 2014[,] I found 21 mice dead from heat exhaustion. [A r]oom * * * which houses animаls on a[n] [individually ventilated cage] lost power over night. In addition, we have been having difficulty with receiving condition air [sic] in the facility. A more detailed report will be submitted after I have briefed the [Committee] and [Institutional Official].
J.A. 101-102.
In response, the NIH thanked Singletary for her report and directed the Institutional Official, Obisesan, to submit a corrective plan of action. That prompted the University to finally solve the air temperature problem.
Shortly thereafter, in late April or early May, an “incensed” Obisesan “excoriated” Singletary at a faculty meeting, “accusing her of a lack of professionalism and integrity” for “humiliat[ing]” the University before the NIH. Proposed Complaint ¶¶ 25-26, J.A. 131-132. Then on June 20, 2014, the University notified Singletary that it was cutting her appointment short by six months, terminating her employment as of December 2014. Finding her conditions of employment to have become “intolerable,” Singletary resigned in August 2014.
D
Singletary filed suit against the University in the United States District Court for the District of Columbia in June 2017. Her initial and first amended complaints asserted (as relevant here) that she was terminated in retaliation for engaging in activity protected by the False Claims Act,
Singletary filed a timely notice of appeal.
II
The district court exercised subject matter jurisdiction under
Leave to amend a complaint should be “freely give[n]” when “justice so requires.”
We review de novo the denial of a motion for leave to amend on grounds of futility. See Scahill v. District of Columbia, 909 F.3d 1177, 1181 (D.C. Cir. 2018).
III
To adequately state a claim of retaliation under the False Claims Act, Singletary had to plausibly allege facts showing that (i) she engaged in protected activity, and (ii) the University retaliated against her because of that activity. See Yesudian, 153 F.3d at 736. Singletary has made each of those threshold showings, so the district court erred in concluding that her proposed complaint would not withstand a motion to dismiss.
A
Protected activity under the False Claims Act‘s anti-retaliation provision takes two forms. The Act first protects “lawful acts done * * * in furtherance of an action under this section“—that is, steps taken antecedent to a False Claims Act proceeding.
Under the first prong of that test, 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 leаding to, a “viable False Claims Act case.” Hoyte v. American Nat‘l Red Cross, 518 F.3d 61, 66, 68-69 (D.C. Cir. 2008) (internal quotation marks omitted). Dissatisfaction with one‘s treatment on the job is not enough. See Shekoyan v. Sibley Int‘l, 409 F.3d 414, 423 (D.C. Cir. 2005). Nor is an employee‘s “investigation of nothing more than his employer‘s non-compliance with federal or state regulations.” Hoyte, 518 F.3d at 66 (quoting Yesudian, 153 F.3d at 740). Instead, “[t]o be covered by the False Claims Act, the plaintiff‘s investigation must concern ‘false or fraudulent’ claims” submitted for federal funding. Yesudian, 153 F.3d at 740 (quoting
A plaintiff may also demonstrate protected activity under Section 3730(h)(1)‘s second prong, which, unlike
To put it simply, the focus of the second prong is preventative—stopping “violations“—while the first prong is reactive to an (alleged) actual violation of the statute. See, e.g., Carlson v. DynCorp Int‘l LLC, 657 F. App‘x 168, 171 (4th Cir. 2016) (“It would be nonsensical to say that these efforts only become protected activity if a lawsuit under the [False Claims Act] becomes a distinct possibility—the second prong is explicitly untethered from any such action.“).
To be sure, by covering only efforts to stop “violations of this subchapter,”
In that way, the False Claims Act‘s whistleblower provision mirrors other federal whistleblower protection laws. See Yesudian, 153 F.3d at 741-742 & n.9 (looking to interpretations of other whistleblower protection provisions to interpret the False Claims Act). Whether expressly called for in the statutory text, or the product of judicial or administrative interpretation, many whistleblower protection provisions cover employees who report or oppose what they reasonably believe to be unlawful conduct.2 That is because “a layperson
not be burdened with the ‘sometimes impossible task’ of correctly anticipating how a given court will interpret a particular statute.” Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981) (quoting Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045-1046 (7th Cir. 1980)).3
To summarize, Singletary can establish that she engaged in protected activity under Section 3730(h)‘s second prong if she plausibly alleges facts showing that she took lawful measures to stop or avert what she reasonably believed would be a violation of the False Claims Act. See Grant, 912 F.3d at 201-202.
B
Singletary‘s proposed complaint sufficiently alleges protected activity under the second prong of Section 3730(h)(1).
For starters, there is no dispute that Singletary‘s actions protesting the overheated conditions in which the laboratory animals were kept and, ultimately, her email to the NIH, were “lawful[.]” See
The question, then, is whether the proposed complaint sufficiently alleges that her actions were undertaken to try to prevent what she reasonably believed would be the presentation of false claims by the University. It does.
First, the proposed complaint alleges that, between mid-Summer 2013 and Spring 2014, Singletary repeatedly informed Obisesan “that the conditions in which the Howard laboratory animals were being held were too warm, not in compliance with NIH * * * standards, and that the ambient air temperature constituted violations of the terms and conditions under which Howard received grant money from NIH and the federal government.” Proposed Complaint ¶¶ 18-19, J.A. 129. As the Attending Veterinarian charged with supervising the care of laboratory animals, Singletary knew that federal law mandated their proper care, including the maintenance of appropriate ambient air temperatures in their living quarters.
Second, Singletary had an objectively reasonable belief that the University was or would soon be submitting false certifications of its compliance with animal welfare requirements in connection with funding claims. According to Singletary, the University made annual certifications “to [the NIH] and other federal agencies that the laboratory animals in question * * * were being maintained and cared for under certain federally mandated ambient living conditions.” Proposed Complaint ¶ 43, J.A. 137; see
Singletary‘s proposed complaint also indicates that her objections coincided with a reporting period. See Proposed Complaint ¶ 43, J.A. 137. Her assertedly protected activity occurred over a nine-month period between the Summer of 2013 and Spring 2014. Annual compliance certifications are due to the Department of Agriculture and the NIH by December 1 and January 31, respectively, and “may be synchronized[.]” Office of Laboratory Animal Welfare, NIH, Dep‘t of Health & Human Servs., Institutional Animal Care and Use Committee Guidebook 177 (2d ed. 2002) (“Guidebook“);
Third, Singletary‘s actions matched her words of protest. See Grant, 912 F.3d at 201-202. Singletary reported the overheated conditions time and again to Obisesan, Heinbockel, and Johnson, and “exhorted” them to take “remed[ial]” action, which would have headed off any false claim. Proposed Complaint ¶¶ 18-22, 24, 26, J.A. 129-132. Singletary also repeatedly urged them to repоrt the temperature deviations to regulators, as required by law if funding claims are to be submitted. See
To be sure, Singletary‘s communications within Howard University and her email to the NIH did not accuse the University of fraud in terms. But that is beside the point. All that is necessary at this stage of the inquiry is that Singletary‘s proposed complaint plausibly allege an objectively reasonable factual basis for the belief that her email was an effort (i) to correct or counteract false submissions that had previously been made or (ii) to provide the NIH the information needed to enforce its animal-welfare requirements before any more funding was granted. See Proposed Complaint ¶ 23, J.A. 131 (“Dr. Singletary, fully recognizing that the [Institutional Official],
The district court came to thе opposite conclusion, and in doing so committed multiple errors.
First, the district court defined protected activity as requiring the plaintiff to have “investigat[ed] matters that reasonably could lead to a viable [False Claims Act] case.” J.A. 226 (internal quotation marks omitted). See J.A. 229 (“Nothing in her proposed amended complaint undermines the Court‘s original description of this report as a far cry from the grist of [a False Claims Act] allegation.“) (formatting modified). But that criterion only applies to Section 3730(h)(1)‘s first prong. See Hoyte, 518 F.3d at 66. The plain text of Section 3730(h)(1)‘s second prong omits that requirement and focuses exclusively on preventing or abating violations of law in the first place. See Grant, 912 F.3d at 201; Chorches, 865 F.3d at 97; Carlson, 657 F. App‘x at 171.
Second, the district court wrongly required Singletary to allege that her efforts were outside the scope of her responsibilities as Attending Veterinarian. See J.A. 226-228. That factor pertains only to Section 3730(h)(1)‘s causal inquiry, which asks whether the University was on notice of her protected activity. See United States ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1261 (D.C. Cir. 2004).
In short, when looked at through the proper legal lens, the proposed complaint plausibly alleges that Singletary undertook lawful acts in furtherance of her “efforts to stop 1 оr more violations” of the False Claims Act.
IV
Singletary‘s work is not done yet. To state a claim for retaliation, her complaint must also plausibly allege (i) a qualifying retaliatory employment action, (ii) the University‘s knowledge that she was engaged in protected activity, and (iii) facts showing that the employment action was caused by her engagement in that activity. See
A
Singletary alleges that within weeks of her email to the NIH about air-temperature problems, the University cut short her appointment by six months, ending it in December 2014 rather than June 2015. Discharge plainly qualifies as a retaliatory employment action under Section 3730(h).
The University resists that conclusion by arguing that Singletary‘s departure was, as a matter of law, a “voluntary resignation” as opposed to a discharge. See University Br. 35-39. This is so, the University
That argument is wrong in two respects. First, there was nothing “voluntary” about Singletary‘s exit. She left only after she was told that she was being terminated effective December 2014. Plus, the proposed complaint alleges that the University‘s appointments are “evergreen,” meaning that, absent the discharge, Singletary would have been able to “remain[] in the position of Attending Veterinarian for a lengthy period of time beyond June * * * 2015.” Proposed Complaint ¶¶ 10, 37, J.A. 127, 135.
Second, and in any event, the mere notice of termination is a cognizable adverse employment action regardless of whether the employer follows through. See Schultz v. Congregation Shearith Israel of the City of N.Y., 867 F.3d 298, 305-306 (2d Cir. 2017) (“[N]otice of termination itself
constitutes an adverse employment action, even when the employer later rescinds the termination.“); Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1177 (10th Cir. 2011) (Gorsuch, J.) (listing “notice of termination with a grace period before actual firing occurs” as an “adverse employment action“). That is because wrongful discharge claims accrue, and limitation periods begin to run, at the time the employer notifies thе employee that she is fired, not later on the last day of her employment. Green v. Brennan, 136 S. Ct. 1769, 1782 (2016); Chardon v. Fernandez, 454 U.S. 6, 8 (1981); see Weslowski v. Zugibe, 14 F. Supp. 3d 295, 303 (S.D.N.Y. 2014) (applying Chardon to hold that the limitations period for a False Claims Act retaliation claim was triggered when plaintiff was notified of his termination). So the University‘s retaliatory action occurred in June 2014 when Singletary was notified that she was being terminated.
B
Singletary‘s proposed complaint also rises to the task of alleging that she was discharged because of her protected activity. Specifically, the proposed complaint plausibly shows both that the University was aware of Singletary‘s protected activities and that those activities motivated her discharge.
1
Common sense teaches that an employer cannot retaliate against conduct of which it was unaware. See Schweizer, 677 F.3d at 1239; cf. Williams, 389 F.3d at 1260-1261 (Under
Singletary‘s proposed complaint clears that hurdle. Singletary alleges that she repeatedly urged her superiors to rectify the animals’ living conditions. In doing so, she stressed not only the medical and humanitarian need for changes, but also that the continuing failure to remedy the situation violated funding requirements.
Singletary also urged them in advance not to submit false annual compliance certifications and to rectify pending false certifications of compliance. See Proposed Complaint ¶¶ 18-19, 21 (alleging that Dr. Singletary exhorted Drs. Obisesan, Heinbockel, and Johnson to take “corrective action“); id. ¶ 22 (Singletary “noted that the conditions and problems that Howard was encountering with respect to ambient air temperature should be reported to [the NIH].“); id. ¶ 26 (“Dr. Singletary[] insist[ed] that Howard was in violation of the terms and conditions of federal grants, that the violations should be reported, and that the matter should be remediated.“), J.A. 129-132.
The University objects that it nonetheless lacked notice because, in complaining, Singletary was just doing her job as Attending Veterinarian. See, e.g., Williams, 389 F.3d at 1261 (“[P]laintiffs alleging that performance of their normal job responsibilities constitutes protected activity must ‘overcome the presumption that they are merely acting in accordance with their employment obligations’ to put their employers on notice.“) (quoting Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 568 (6th Cir. 2003)); see also Dissenting Op. at 5 (characterizing Singletary‘s complaints as falling “squarely within her job as an attending veterinarian“).
Singletary did more than perform her ordinary caretaking duties. Her complaints also “expressly noted that Howard was out of compliance with the terms and conditions under which it was receiving grant money from the federal government,” and she objected that, under the terms of the grant program, “the conditions and the problems that Howard was encountering with respect to the ambient air temperature should be reported” to the NIH. Proposed Complaint ¶ 22, J.A. 130-131; see id. ¶ 26, J.A. 131-132. As the University acknowledges, policing compliance with grant conditions was not one of Singletary‘s responsibilities. See Oral Arg. Tr. 43:19-44:20.
In addition, she went “outside the usual chain of command[.]” Williams, 389 F.3d at 1261. After her direct supervisor, Obisesan, proved unresponsive to her repeated complaints, Singletary went over his head to Dr. Heinbockel, the Chair of the Committee, and to Dr. Johnson, the Dean of the Medical School. Those reports were outside her professional wheelhouse.
And certainly Singletary‘s email tо the NIH went above and beyond her assigned duties as she attempted to cut short the University‘s allegedly fraudulent prior certifications. See Proposed Complaint ¶ 24, J.A. 131 (alleging that communication with the NIH “was not within the ambit of Dr. Singletary‘s duties or job description“); see
The Humane Care Policy corroborates the proposed complaint‘s alleged division of responsibilities. It instructs the Committee, “through the Institutional Official,” to provide the NIH with information about non-compliance with the Humane Care Policy and/or the Care Standards Guide. Humane Care Policy § IV.F.3; see also Prompt Reporting Notice at 1 (“The Institutional Official signing the Assurance, in concert with the [Committee], is responsible fоr this reporting.“). So by copying Obisesan and Heinbockel on her email to the NIH, Singletary put the University on notice that she was singlehandedly attempting to address the certification problem to which they had proven unresponsive.
The district court came to the contrary conclusion, pointing to a statement in the NIH‘s Guidebook—a document provided to regulated parties for “informational purposes only” (Guidebook, Inside Cover)—that the care of animals “necessitates a partnership among the Institutional Official, [the Committee], the veterinarian and the investigators,” which may only be achieved “when all of the players [including] the veterinary staff” contribute to a “shared goal.” J.A. 227-228 (quoting Guidebook at 19). From that, the district court inferred that “communicating with NIH” was a “normal part of the veterinarian‘s job.” J.A. 228.
That was error. At this procedural stage, all reasonable inferences from the proposed complaint‘s factual allegations must be drawn in support of, not against, Singletary. See Interbank Funding, 629 F.3d at 216 (plaintiff seeking leave to amend is entitled to the benefit of “all inferences that can be derived from the facts alleged“) (formatting modified). Because the Guidebook‘s description of the Attending Veterinarian‘s role is fully consistent with Singletary‘s allegations about Obisesan‘s sole responsibility for reporting to the NIH, the district court crossed the line into adverse factfinding.
For its part, the Dissenting Opinion‘s central objection is that Howard University officials could have viewed Singletary‘s complaints as just “grumbling” about “regulatory compliance,” not as “efforts to prevent fraud against the government.” Dissenting Op. at 6-7, 8 (quoting Yesudian, 153 F.3d at 743). Maybe. But the question at the pleading stage is not whether the facts could be read differently than the plaintiff does. Instead, we must take all reasonable inferences in favor of Singletary. See Ashcroft, 556 U.S. at 678. The complaint need not conclusively foreclose any alternative reading. Given Singletary‘s repeated statements to higher-ups that the animals’ housing conditions not only endangered their welfare, but also violated the promises made (and being made) to obtain federal funding, it is at least an equally reasonable inference that Howard University knew that she was concerned about putting a stop to misrepresentations and material omissions in the University‘s grant filings with the government.
Finally, the Dissenting Opinion tries to reduce Singletary‘s repeated calls for Howard University to take corrective actions in its representations to the government as just seeking to fix the animals’ living conditions. Dissenting Op. at 8-9. Not so. Obisesan criticized Singletary for “insist[ing]” both that (i) Howard University‘s “violations should be reported” to the NIH per the grant‘s requirements, (ii) “and that the matter should be remediated.” Proposed Complaint ¶ 26, J.A. 132.
2
Lastly, the proposed complaint adequately alleges—and the University does not dispute—that as a matter of law Singletary‘s discharge was “motivated, at leаst in part,” by her protected activity. Yesudian, 153 F.3d at 736. After all, her discharge followed shortly on the heels of Obisesan excoriating her for communicating with the NIH about the laboratory‘s climate-control problems and their fatal consequences. See Proposed Complaint ¶¶ 26, 28, J.A. 131-132. And that dressing down itself came just a few weeks after Singletary‘s communication with the NIH. Id. ¶¶ 24, 26, J.A. 131-132; see Williams, 389 F.3d at 1262 (“By claiming that his suspension and termination occurred just after he disclosed * * * to his superior” that he had alerted the government to possible False Claims Act violations, “Williams has satisfactorily alleged that his protected activity caused Martin-Baker‘s retaliation.“); see also Harrington v. Aggregate Indus. Northeast Region, Inc., 668 F.3d 25, 32 (1st Cir. 2012) (“To clear the low bar required to establish a prima facie case, the fact that [defendant] learned of the [plaintiff‘s] whistleblowing several months before his firing suffices[.]“).
The district court also suggested that, even assuming Singletary‘s allegations were sufficient, the proposed complaint might still fall short of
V
Singletary‘s proposed complaint states a claim for retaliation under the False Claims Act. Granting leave to amend, therefore, would not have been futile. The district court committed reversible error in concluding otherwise. For that reason, the district court‘s judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
So ordered.
I
The Falsе Claims Act prohibits knowingly presenting to the federal government “a false or fraudulent claim for payment.”
These cases analyzed an earlier version of
Our cases indicate what kind of conduct provides such notice. The employee in Yesudian, acting outside his normal job responsibilities, told superiors that a colleague “had falsified time and attendance records, accepted bribes from vendors, permitted payments to vendors who did not provide services, and taken University property home for personal use.” 153 F.3d at 743. The employee in Williams, who we assumed was acting outside his normal job responsibilities as a contract negotiator, told “the government—the opposing negotiating party—to continue challenging the pricing data underlying his employer‘s contract.” 389 F.3d at 1262. The employee in Schweizer, acting outside her normal chain of command, “alleged a variety of specific False Claims Act violations” to superiors in her company. 677 F.3d at 1239-40. In each case, the employee‘s activity provided clear notice to the emplоyer of a concern about fraud on the government.
At the same time, we approved a line of cases indicating what kind of conduct does not provide an employer with notice of a fraud-related concern. Those cases featured two distinct “problems“—the employee “made no allegations of fraud,” or the protected conduct “was part of his job.” Yesudian, 153 F.3d at 744; see Williams, 389 F.3d at 1261. For example, the Fifth Circuit affirmed summary judgment against an employee who had complained to superiors about unsubstantiated charges to the government, but “never characterized his concerns as involving illegal, unlawful, or false-claims investigations.” Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 952 (5th Cir. 1994). The Ninth Circuit ordered judgment as a matter of law against a special education teacher who complained to superiors about alleged regulatory violations under the Individuals with Disabilities Education Act. United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1268-70 (9th Cir. 1996). And the Tenth Circuit affirmed the dismissal of a claim by an employee who, as part of her job, reported widespread violations of Medicaid regulations to her superiors. United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1522-23 (10th Cir. 1996).
In 2009, Congress broadened
Other circuits have continued to recognize Yesudian‘s core insight that employers are unlikely to have the requisite notice if the employee “made no allegations of fraud” or the protected conduct was “part of his job.” 153 F.3d at 744. In United States ex rel. Strubbe v. Crawford County Memorial Hospital, 915 F.3d 1158 (8th Cir. 2019), the Eighth Circuit affirmed the dismissal of claims brought by hospital employees who complained that the hospital had violated Medicare payment requirements, but not that the hospital‘s “behavior was fraudulent or potentially subjected it to FCA liability.” Id. at 1168. The court reasoned that the complaints were not sufficiently connected to “fraudulent” activity to support a plausible inference of employer knowledge. Id. This approach still makes good sense, for “efforts to stop” FCA violations, like efforts “in furtherance of” an FCA action, share the same underlying concern about fraud against the government. In Reed, the Tenth Circuit affirmed the dismissal of a retaliation claim after concluding that the alleged protected conduct involved the plaintiff‘s ordinary job responsibilities. See 923 F.3d at 767-71. This too still makes sense: employers are unlikely to know that ordinary job activities are “efforts to stop” FCA violations, just as they are unlikely to
In sum, the amended version of
II
Singletary fails to state аn FCA retaliation claim under these governing standards. She alleges two categories of protected activity—repeated complaints to superiors that the University was housing laboratory animals in excessively warm conditions, and one external email reporting the death of nearly two dozen laboratory mice. Charitably construing the proposed complaint, I am willing to credit Singletary‘s allegations regarding her own intent—i.e., that she undertook these activities in part to stop fraud against the government, rather than simply to improve the treatment of animals under her care or to bring the University into compliance with animal-care regulations. But Singletary does not claim to have raised fraud concerns with the University, and her activities fell squarely within her job as an attending veterinarian. The allegations thus do not support a plausible inference that the University knew Singletary was trying to stop FCA violations.
Singletary‘s alleged complaints within the University addressed four related topics. First, she voiced concerns that “ambient air temperature” was too high for laboratory animals. E.g., Proposed Second Amended Complaint (“Compl.“) ¶ 18, J.A. 129. Doing so fell squarely within Singletary‘s job duty, set forth in the offer letter attached to her proposed complaint, to “promot[e] . . . animal care, health and welfare including but not limited to proper animal quarters.” J.A. 165. It is hardly surprising that Singletary—a veterinarian—raised this concern, which would not have suggested that she was seeking to stop fraud against the government.
Second, Singletary complained that the University, by not maintaining proper air temperatures, was violating regulations promulgated under the
Third, Singletary protested that the University “was out of compliance with the terms and conditions under which it was receiving grant money from the federal government.” E.g., Compl. ¶ 22, J.A. 130-31. But under the terms of her employment contract, Singletary was required to act “as a consultant for grants . . . requiring [her] expertise.” J.A. 165. The grant
Fourth, Singletary advised superiors that “the problems that Howard was encountering with respect to the ambient air temperature should be reported.” Compl. ¶ 22, J.A. 131. This was another facet of her job duties. As the Attending Veterinarian, Singletary was required to serve on the University‘s Institutional Animal Care and Use Committee (IACUC). Compl. ¶¶ 15-16, J.A. 128; see
In sum, Singletary‘s claim suffers from the same “problems” noted in Yesudian: she never told the University that she was “concerned about possible fraud,” and her actions were “part of [her] job.” 153 F.3d at 744. Treating animals inhumanely, violating NIH regulations and grant conditions, and failing to report the violations may be improper, but they do not amount to fraud. And complaints on these matters would have indicated only that Singletary was performing her contractual and regulatory duties as аn Attending Veterinarian. To be sure, violations of regulations or grant conditions may become violations of the False Claims Act, but only if a grantee makes false or misleading representations to receive money from the government. Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 1999-2001 (2016). And no case suggests that complaints about regulatory violations give notice of further, unexpressed anti-fraud concerns. To the contrary, Yesudian and its progeny make clear that “[m]erely grumbling” about “regulatory violations” does not give such notice. 153 F.3d at 743.
My colleagues read the proposed complaint to allege that Singletary urged her superiors “not to submit false annual compliance certifications and to rectify pending false certifications of compliance.” Ante at 22. Likewise, they say that Singletary urged the University not to “assert a fictional compliance” with grant conditions. Ante at 26. Such allegations might well establish the requisite notice, but the proposed complaint does not make them. In support of their reading of the proposed complaint, my colleagues note that Singletary urged the University to take “corrective action.” Compl. ¶¶ 18-19, 21, J.A. 129-30.
Indeed, far from even hinting that Singletary conveyed any fraud-related concern, the proposed complaint states that “[t]he issue of poor air quality for laboratory animals was the sole source of tension between Dr. Singletary and her superiors.” Compl. ¶ 27, J.A. 132. After performing their own independent research into compliance certifications, about which the complaint is silent, my colleagues posit that Singletary‘s objections “coincided with a reporting period.” Ante at 17. Perhaps so, but that bears at most on whether Singletary had the requisite intent to stop FCA violations. The proposed complaint nowhere suggests that Singletary communicated to the University any concerns about false certifications, which is what matters for notice.
My colleagues further reason that Singletary complained not only to her immediate supervisor, Dr. Thomas Obisesan, but also to Dr. Thomas Heinbockel, the chairman of her animal-care committee, and Dr. Mark Johnson, the dean of the medical school. Ante at 24. We have recognized that when an employee “alerts a party outside the usual chain of command, such action may suffice to notify the employer that the employee is engaging in protected activity.” Williams, 389 F.3d at 1261 (emphasis added); see also Reed, 923 F.3d at 769. But the ultimate question remains one of the employer‘s notice of protected activity, and we have never held that any action outside the normal chain of command, no matter how unrelated to fraud prevention, puts the employer on notice. To the contrary, we have held that an employee‘s breaking the chain of command helps prove notice only where the employee‘s activity itself warns of fraud. See Schweizer, 677 F.3d at 1239-40 (employee “alleged a variety of specific False Claims Act violations“); Williams, 389 F.3d at 1262 (negotiator told “the government—the opposing negotiating party—to continue challenging the pricing data underlying his employer‘s contract“). Singletary did no such thing. By her own reckoning, she made “the same complaints” to Heinbockel and Johnson that she made to Obisesan. Compl. ¶ 19, J.A. 129. Because those complaints involved animal-treatment issues as opposed to fraud issues, the mere fact that Singletary conveyed them
The same is true of Singletary‘s single email to NIH. The body of that email states:
At 10:45 am, April 15, 2014, I found 21 mice dead from heat exhaustion. Room number [redacted] which houses animals on [an individually ventilated cage] lost power over night. In addition, we have been having difficulty with receiving conditioned air in the facility. A more detailed report will be submitted after I have briefed the IACUC and [Dr. Obisesan].
J.A. 102 (cleaned up). My colleagues recognize that this email “did not accuse the University of fraud in terms.” Ante at 18. Far from it. The email reported to regulators that mice died when an air conditioner failed, noted an ongoing problem with air conditioning, and promised more details to follow. Nothing in it would have alerted the University that Singletary was seeking to stop fraud against the government. My colleagues disagree with the district court about whether Singletary broke protocol by sending this email herself, rather than urging Obisesan to do so. Ante at 24-25. But because the email had nothing to do with stopping fraud against the government, that dispute is immaterial to the question whether the email provided the University with the requisite notice.
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Singletary‘s proposed second amended complaint does not allege faсts supporting a plausible inference that the University knew she was engaged in efforts to stop FCA violations. Therefore, I would affirm the dismissal of this case and the denial of her motion to amend as futile.