A recent decision denying a motion for summary judgment in a False Claims Act retaliation case highlights the broad and robust whistleblower protection afforded to employees of government contractors and grantees.
Broad Scope of Protected Whistleblowing Under the False Claims Act’s Whistleblower Protection Provision
Andrea Marbury sued her former employer Talladega College under the False Claims Act’s whistleblower protection provision, alleging that Talladega terminated her employment because she opposed requests to use Title III funds for advertising expenses (an unlawful use of Title III funds). Talladega argued that Marbury did not engage in protected conduct under the False Claims Act because she never took any concrete steps towards bringing a qui tam action and could not point to a specific false claim that Talladega submitted to the government.
The court rejected Talladega’s narrow construction of the FCA’s whistleblower protection provision and instead found that Marbury’s internal opposition to using Title III funds for advertising and her refusal to complete requisition forms for unauthorized uses of Title III funds could qualify as protected whistleblowing.
In addition, the court rejected Talladega’s argument that Marbury cannot be deemed to have engaged in protected conduct because she failed to show that Title III funds were misapplied. The court noted that the whistleblower protection provision of the False Claims Act does not require a showing that federal funds were actually expended for an unlawful purpose and that the whistleblower protection provision is “intended to prevent the filing of false claims and to discourage fraud.” Had the court adopted Talladega’s argument, employees that stick their necks out to stop fraud would not be protected against reprisal.
The opinion contains a good discussion of the scope of protected conduct under the False Claims Act’s anti-retaliation provision, including the following two principles:
- The False Claims Act whistleblower protection provision protects not only steps taken in furtherance of a potential or actual qui tam action, but also steps taken to remedy fraudulent activity or to stop an FCA violation.
- Internal reporting of fraudulent activity to a supervisor can be a step in furtherance of uncovering fraud, and is therefore protected under the False Claims Act.
Cat’s Paw Doctrine Can Prove Causal Connection Between Protected Conduct and Retaliatory Personnel Action
Marbury is a good illustration of how whistleblowers can use the cat’s paw doctrine to prove causation. Using a common tactic to try to avoid liability for whistleblower retaliation, Talladega assigned an official who was unaware of Marbury’s disclosures to make the decision whether to terminate her employment, and then argued in its motion for summary judgment that the decision to terminate Marbury’s employment could not have been motivated by retaliation. Whistleblowers can surmount that tactic by using the “cat’s paw” theory, i.e., by showing that the decision-maker followed the biased recommendation of a subordinate without independently investigating the reason or justification for the proposed adverse personnel action.
In this case, the supervisor who initiated the recommendation to terminate Marbury’s employment was aware of Marbury’s protected conduct and the decision-maker simply accepted that recommendation. Applying the cat’s paw doctrine, the court concluded that there was sufficient evidence of causation to permit Marbury to prove to a jury that her whistleblowing motivated the decision to terminate her employment.
NDAA Federal Contractor Whistleblower Protection Law
To learn more about the NDAA whistleblower protection law, see our post Congress Strengthens Whistleblower Protections for Federal Employees and our Practical Law Practice Note: Whistleblower Protections Under the National Defense Authorization Act.
Experienced False Claims Act and NDAA Whistleblower Protection Attorneys
The experienced whistleblower attorneys at Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees. To schedule a free preliminary consultation, click here or call us at 202-262-8959.
Our experience includes representing whistleblowers in NDAA retaliation claims before the Department of Defense, and Department of Homeland Security, Department of Justice Offices of Inspectors General.
In addition, we have substantial experience representing whistleblowers under the Whistleblower Protection Act (WPA) and enforcing the WPA, the law that the NDAA whistleblower provisions are based upon. Two of the attorneys on our team served in senior position at the U.S. Office of Special Counsel overseeing investigations of whistleblower retaliation claims and whistleblower disclosures.
- Eric Bachman served as Deputy Special Counsel, Litigation and Legal Affairs, OSC, where he spearheaded an initiative to combat whistleblower retaliation at the Department of Veterans Affairs. During Bachman’s tenure at OSC, the number of favorable actions for whistleblowers increased by over 50% agency-wide.
- Jason Zuckerman served as Senior Legal Advisor to the Special Counsel at OSC, where he worked on implementation of the Whistleblower Protection Enhancement Act and several high-profile investigations.
Before hiring a lawyer for a high-stakes whistleblower case, assess the lawyer’s reputation, prior experience representing whistleblowers, knowledge of whistleblower laws and prior results. And consider the experience of other whistleblowers working with that attorney. See our client testimonials by clicking here.
- U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.
- Both Eric Bachman and Jason Zuckerman served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protections.
- Firm Principal Jason Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015, 2009, and 2007 selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2017), and selected by his peers to be listed in SuperLawyers (2012 and 2015-2017) in the category of labor and employment law. is rated 10 out of 10 by Avvo, based largely on client reviews, and rated AV Preeminent® by Martindale-Hubbell based on peer reviews.
- Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.
- The firm has published extensively on whistleblower rights and protections, and speaks nationwide at seminars and continuing legal education conferences. We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Blog.
- The firm is routinely quoted in the media about whistleblower rights and protections.
Zuckerman Law has written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:
- Boosting Contractor Employee Whistleblower Protections, Law 360 (December 2016)
- New Tools to Combat Whistleblower Retaliation, Taxpayers Against Fraud Education Fund Quarterly Review, Vol. 57 (October 2010)
- GAO Report Calls for Improvements in Government Contractor Whistleblower Protections
- False Claims Act Retaliation Decision Underscores Broad Scope of FCA Whistleblower Protection
- NDAA Provides Robust Whistleblower Protection
- FAR Amendment Bars Agencies from Subsidizing Whistleblower Retaliation
- NDAA Contractor Whistleblower Protection Law Highly Effective in Rooting Out Fraud
- Congress Enacts Anti-Gag Provision in Cromnibus Spending Bill
- Whistleblower Lawyer Jason Zuckerman Will Speak About False Claims Act Litigation at Taxpayers Against Fraud Conference
- Whistleblower Protections Under the Whistleblower Protection Act, Practical Law (October 2016)
- Whistleblower Lawyer Jason Zuckerman Quoted in National Law Journal
- Whistleblower Lawyer Jason Zuckerman Quoted About Federal Employee Whistleblower Rights
- Washington Post Quotes Whistleblower Attorney Jason Zuckerman About Chilling Effect of Insider Threat Program
- How to foster a more ethical culture
- Whistleblower Lawyer Jason Zuckerman Quoted About MacLean Whistleblower Protection Act Case
- Trump Questionnaire Raises Concerns About Retaliation Against Energy Department Staff
- CFPB official wants to silence a whistleblower before he can talk to Congress