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False Claims Act Retaliation Decision Underscores Broad Scope of FCA Whistleblower Protection

False Claims Act Whistleblower Retaliation

A recent decision in Mikhaeil v. Walgreens Inc., a False Claims Act retaliation case, establishes helpful precedent on the broad scope of False Claims Act protected conduct.

Mikhaeil had worked as a staff pharmacist at Walgreens in July 2012 and alleged that her employment was terminated for raising concerns about potential Medicare fraud. Walgreens moved for summary judgment, and in an opinion denying the motion, Judge Edmunds held that the False Claims Act protects lawful acts taken in furtherance of an action under the FCA, and also protects “employees from being fired for undertaking other efforts to stop violations of the Act, such as reporting suspected misconduct to internal supervisors.”

Whistleblowing in the Course of Performing Job Duties is Protected Under False Claims Whistleblower Retaliation Law

Judge Emunds also rejected Walgreen’s “duty speech” argument, i.e., Walgreen’s contention that Mikhaeil’s internal disclosure failed to provide notice of a potential FCA claim because her job duties already required her to alert the company to potential false-claims liability:

As stated previously, the FCA no longer requires that conduct be “in furtherance of an action under this section” to be protected. Rather, the FCA protects any “effort to stop 1 or more violations of this subsection.” 31 U.S.C. 3730(h)(1). This includes internal reporting to supervisors “whether or not such steps are clearly in furtherance of a potential or actual qui tam action.” 155 Cong Rec. E1295-03, at E1300. If an employee does not need to take steps clearly in furtherance of a potential or actual qui tam action to engage in protected activity, the employee, even if charged with investigating potential fraud, also does not need to “make clear their intentions of bringing or assisting in an FCA action,” Yuhasz, 341 F.3d at 568, to satisfy the notice requirement. See Jones-McNamara v. Holzer Health Sys., Inc., No. 13-616, 2014 WL 1671495, at *4 (S.D. Ohio Apr. 28, 2014) (“What does not remain correct in regard to the May 2009 version of the statutory scheme is Yuhasz‘s requirement that the employer knew that the employee was doing more than her job by bringing or furthering an FCA case.”); Manfield v. Alutiiq Int’l Solutions, Inc., 851 F. Supp. 2d 196, 204 (D. Me. 2012) (“Since a plaintiff now engages in protected conduct whenever he engages in an effort to stop an FCA violation, the act of internal reporting itself suffices as both the effort to stop the FCA violation and the notice to the employer that the employee is engaging in protected activity.”). By reporting her concerns directly to Yadmark, Plaintiff satisfied the notice element of her prima facie case.

Mikhaeil underscores the broad scope of protected conduct under the False Claims Act’s whistleblower protection provision.

For more information about False Claims Act whistleblower protection, click here.

FAQs About False Claims Act Whistleblower Protection Law

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Experienced False Claims Act Whistleblower Retaliation Lawyers

The experienced whistleblower attorneys at leading whistleblower law firm Zuckerman Law have substantial experience representing whistleblowers disclosing fraud and other wrongdoing at government contractors and grantees.  In 2017, Washingtonian magazine named two of our attorneys top whistleblower lawyers.  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.
  • Litigating False Claims Act retaliation cases.
  • Representing qui tam relators in False Claims Act cases.
  • Representing whistleblowers disclosing fraud on the government in Congressional investigations.
  • Training judges, senior Office of Inspector General officials, and federal law enforcement about whistleblower protections.

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.

Zuckerman Law has written extensively about whistleblower protections for employees of government contractors and grantees, including the following articles and blog posts:

Guide to NDAA Whistleblower Protection Law

For more information about whistleblower protections for employees of government contractors and grantees, including Department of Defense contractors, see our Practical Law Practice Note titled Whistleblower Protections Under the National Defense Authorization Act. This Practice Note surveys the legal protections for employees of federal contractors, subcontractors, and grantees that receive federal funds who report waste, fraud, or abuse involving federal funds, a violation of law, rule, or regulation related to a federal contract, or a substantial and specific danger to public health or safety.

In addition, the outline explains the procedures that govern the filing, investigation and adjudication of National Defense Authorization Act (NDAA) whistleblower retaliation claims.

Topics covered include:

  • Protected whistleblowing under the NDAA.
  • The scope of coverage of the NDAA’s whistleblower protection provisions.
  • The reasonable belief standard governing NDAA protected whistleblowing.
  • Proving “contributing factor” causation
  • The same-decision affirmative defense
  • Remedies or damages available to prevailing NDAA whistleblowers.


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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.