Sylvia Singletary v. Howard University

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 26, 2019 Decided September 20, 2019
No. 18-7158
SYLVIA SINGLETARY, D.V.M.,
APPELLANT
v.
HOWARD UNIVERSITY,
APPELLEE
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.
2
MILLETT, Circuit Judge: Howard University fired Dr.
Sylvia Singletary allegedly for objecting both internally and
externally to the University’s failure to maintain the humane
laboratory animal living conditions on which its receipt of
federal funding was conditioned. Singletary claims that her
termination violated the False Claims Act’s anti-retaliation
provision, 31 U.S.C. § 3730(h). The district court dismissed
the case for failure to state a claim and denied Singletary’s
motion for leave to amend her complaint as futile. In light of
the proposed amended complaint’s particular factual
allegations, the district court’s decision reflected too narrow a
view of the False Claims Act’s protection for whistleblowers.
For that reason, we reverse and remand for further proceedings.
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 relevant here.
The Animal Welfare Act of 1966, 7 U.S.C. §§ 2131–2159,
requires that research institutions receiving federal funds meet
prescribed standards for the care and monitoring of animals
used in their work, see id. §§ 2132(e), 2143(a); see also 9
C.F.R. § 2.38(k). The Animal Welfare Act’s accompanying
regulations mandate that, among other things, the temperature
of indoor animal housing facilities be “sufficiently regulated by
heating or cooling to protect the animals from the extremes of
temperature,” and “to provide for their health and to prevent
their discomfort.” 9 C.F.R. § 3.126(a); see id. (“The ambient
temperature shall not be allowed to fall below nor rise above
temperatures compatible with the health and comfort of the
3
animal.”); see also 7 U.S.C. § 2143(a)(2)(A) (specifying that
regulations shall “include minimum requirements” for
“housing, * * * [and] shelter from extremes of weather and
temperatures, * * * [as] the Secretary [of Agriculture] finds
necessary for humane handling, care, or treatment of animals”);
9 C.F.R. § 2.33(b)(1) (“Each research facility shall establish
and maintain programs of adequate veterinary care that
include * * * [t]he availability of appropriate facilities * * * to
comply with the provisions of this subchapter[.]”).
The Health Research Extension Act of 1985 (“Extension
Act”), 42 U.S.C. § 289d, authorizes the National Institutes of
Health (“NIH”) to establish guidelines for the proper care of
animals used in biomedical research. See id. § 289d(a). To
that end, the NIH has produced a Humane Care Policy
requiring research institutions to meet the laboratory animal
care standards set forth in (i) the Animal Welfare Act and
accompanying regulations, and (ii) the National Academies of
Sciences’ Guide for the Care and Use of Laboratory Animals
(“Care Standards Guide”). See Office of Laboratory Animal
Welfare, NIH, Dep’t of Health & Human Servs., Public Health
Service Policy on Humane Care and Use of Laboratory
Animals (2015) (“Humane Care Policy”); National Research
Council of the Nat’l Academies of Sciences, Eng’g, & Med.,
Guide for the Care and Use of Laboratory Animals (8th ed.
2011); see also Laboratory Animal Welfare: Adoption and
Implementation of the Eighth Edition of the Guide for the Care
and Use of Laboratory Animals, 76 Fed. Reg. 74,803, 74,803
(Dec. 1, 2011) (making the Care Standards Guide the
foundation on which research institutions must base their
animal care and use programs).
As relevant here, the Care Standards Guide specifies that
laboratory animals are to be housed within temperature and
humidity ranges “appropriate for the species, to which they can
4
adapt with minimal stress and physiologic reaction.” Care
Standards Guide at 43; see also id. (“Maintenance of body
temperature within normal circadian variation is necessary for
animal well-being.”).
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 7 U.S.C. § 2143(b); 42 U.S.C.
§ 289d(b). The Committee’s duties include evaluating the
institution’s research programs, inspecting facilities, preparing
semiannual internal compliance evaluations, and reviewing
proposed activities involving animals for compliance with the
Animal Welfare and Extension Acts. See 7 U.S.C.
§ 2143(b)(3)–(4); 42 U.S.C. § 289d(b)(3)(A); 9 C.F.R.
§ 2.31(c); Humane Care Policy § IV.B.
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[.]” 9 C.F.R. § 2.33(a)(2);
accord 7 U.S.C. § 2143(b)(1); 42 U.S.C. § 289d(b)(2); 9
C.F.R. § 2.31(a)–(b); see Humane Care Policy § IV.A.3.b.1;
Care Standards Guide at 14. The Committee ultimately reports
to the “Institutional Official,” who is the individual authorized
to commit to the government on behalf of the institution that it
will comply with applicable regulations. See 9 C.F.R. § 1.1;
Humane Care Policy § III.G.
In addition to mandating internal compliance procedures,
the Animal Welfare and Extension Acts, and their
corresponding regulations, call for periodic external reporting.
5
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 7 U.S.C. § 2143(a)(7); 42 U.S.C.
§ 289d(b)(3)(A), (C); 9 C.F.R. § 2.36(b)(3). Those
certifications are “necessary” for research institutions “to
receive and retain * * * grant monies.” Proposed Second Am.
Complaint (“proposed complaint”) ¶ 43, J.A. 137. See
generally 7 U.S.C. § 2143(f); 42 U.S.C. § 289d(d).
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. 7 U.S.C.
§ 2143(f); 42 U.S.C. § 289d(d).
B
Congress enacted the False Claims Act in the 1860s in
response to widespread fraud perpetrated by Civil War
contractors. United States v. Bornstein, 423 U.S. 303, 305 n.1,
6
309 (1976); United States v. McNinch, 356 U.S. 595, 599
(1958). As it currently stands, the Act imposes civil penalties
and treble damages upon any person who, among other things,
“knowingly presents, or causes to be presented, a false or
fraudulent claim for payment or approval” to the federal
government, or “knowingly makes, uses, or causes to be made
or used, a false record or statement material to a false or
fraudulent claim[.]” 31 U.S.C. § 3729(a)(1)(A)–(B).
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.
31 U.S.C. § 3730(h)(1).
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).
7
C
In January 2013, Howard University retained Dr. Sylvia
Singletary for a thirty-month appointment as the “Attending
Veterinarian” at its Medical School. See 9 C.F.R. § 2.33. She
was to dedicate 70% of her time and effort to “Administrative
Activities” including (i) directing an animal care quality
control program, (ii) establishing standard operating
procedures for ensuring proper animal welfare, including
animal housing and maintenance, (iii) consulting on grants, and
(iv) collaborating with other University employees on “all
phases of the handling and care of experimental animals[.]”
Proposed Complaint Ex. 1, J.A. 165.1
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 9 C.F.R. § 1.1. As Attending
Veterinarian, Singletary was a member of the University’s
Animal Care and Use Committee, along with Obisesan and Dr.
Thomas Heinbockel, the Committee’s Chair.
Over an approximately nine-month period between
Summer 2013 and Spring 2014, Singletary repeatedly warned
Obisesan that the air temperature in the laboratory animals’
1
As is appropriate at this procedural stage, these facts are taken
from the proposed complaint, documents attached to or incorporated
by reference in that complaint, and matters of which the court may
take judicial notice. See Williams v. Lew, 819 F.3d 466, 473 (D.C.
Cir. 2016) (citing Farah v. Esquire Magazine, 736 F.3d 528, 534
(D.C. Cir. 2013)). We construe the facts, and reasonable inferences
drawn from them, in the light most favorable to Singletary. See In
re Interbank Funding Corp. Sec. Litig., 629 F.3d 213, 216 (D.C. Cir.
2010).
8
living quarters was too high. She explained that the conditions,
which were “caused by equipment failures” and “physical plant
deficiencies,” were “not in compliance with [NIH] standards”
and “constituted violations of the terms and conditions” of the
University’s grants from the NIH. Proposed Complaint ¶¶ 17–
18, J.A. 129. Singletary urged Obisesan to take corrective
action for which only he had authority: to remedy the
temperature deviations and to report the University’s non-
compliance to the federal government. He did not do either.
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
animals 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
9
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. Id. ¶ 34, J.A. 134.
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, 31 U.S.C.
§ 3730(h). The district court granted the University’s motion
to dismiss Singletary’s first amended complaint. Singletary
then sought leave to amend her complaint a second time.
Concluding that Singletary’s proposed complaint also would
not withstand a motion to dismiss, the district court denied the
motion as futile. The district court reasoned that Singletary’s
nine months of complaints about animal mistreatment within
10
the University and, eventually, her email to the NIH were not
“protected activity” under the False Claims Act because they
were part and parcel of her role as Attending Veterinarian. J.A.
226–228. The court also ruled that Singletary had failed to
allege that the University was aware of her purportedly
protected activity.
Singletary filed a timely notice of appeal.
II
The district court exercised subject matter jurisdiction
under 28 U.S.C. § 1331. This court’s jurisdiction arises under
28 U.S.C. § 1291.
Leave to amend a complaint should be “freely give[n]”
when “justice so requires.” FED. R. CIV. P. 15(a)(2). Leave
may properly be denied if the proposed amendment is
“futil[e],” Foman v. Davis, 371 U.S. 178, 182 (1962), such that
it would not withstand a motion to dismiss, Hettinga v. United
States, 677 F.3d 471, 480 (D.C. Cir. 2012). A complaint will,
in turn, survive a motion to dismiss if it contains “sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted). A claim is facially
plausible when “the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
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).
11
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. 31 U.S.C. § 3730(h)(1). Second, the Act insulates
from retaliation lawful acts done in furtherance of “other
efforts to stop 1 or more violations of” the False Claims Act.
Id.
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 leading 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’
12
claims” submitted for federal funding. Yesudian, 153 F.3d at
740 (quoting 29 U.S.C. § 3729(a)).
A plaintiff may also demonstrate protected activity under
Section 3730(h)(1)’s second prong, which, unlike the first, is
not tied to the prospect of a False Claims Act proceeding.
Instead, the plain statutory text focuses on the whistleblower’s
“efforts to stop” violations of the statute before they happen or
recur. 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”).
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,” 31 U.S.C. § 3730(h)(1) (emphasis added), 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. See Yesudian, 153 F.3d at
740. But that test is met as long as the employee has an
13
objectively reasonable belief that the employer is violating, or
will violate, the False Claims Act. 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”).
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 should
2
Federal whistleblower provisions expressly covering
employees who oppose or report what they reasonably believe
to be unlawful employer practices include the Affordable Care
Act, 29 U.S.C. § 218C(a)(2), the Consumer Products Safety
Act of 2008, 15 U.S.C. § 2087(a)(1), the National Defense
Authorization Act for Fiscal Year 1987, 10 U.S.C.
§ 2409(a)(1), the FDA Food Safety Modernization Act, 21
U.S.C. § 399d(a)(1), the Sarbanes-Oxley Act, 18 U.S.C.
§ 1514A(a)(1), and the Whistleblower Protection Act, 5 U.S.C.
§ 2302(b)(8)(A)(i). Federal whistleblower provisions
otherwise interpreted as covering employees who oppose or
report what they reasonably believe to be unlawful employer
practices include the Age Discrimination in Employment Act,
29 U.S.C. § 623(d); Heggemeier v. Caldwell County, 826 F.3d
14
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
861, 869 (5th Cir. 2016), the Americans with Disabilities Act,
42 U.S.C. § 12203(a); Lenzen v. Workers Comp. Reinsurance
Ass’n, 705 F.3d 816, 821 (8th Cir. 2013), the Family Medical
Leave Act, 29 U.S.C. § 2615(a)(2); Lott v. Not-for-Profit Hosp.
Corp., 319 F. Supp. 3d 277, 282 (D.D.C. 2018); 29 C.F.R.
§ 825.220(e), the Federal Mine Safety and Health Act, 30
U.S.C. § 815(c); Gilbert v. Federal Mine Safety & Health
Review Comm’n, 866 F.2d 1433, 1439 (D.C. Cir. 1989), the
Pipeline Safety Improvement Act, 49 U.S.C. § 60129(a)(1);
Rocha v. Air Util. Corp., No. 07-112, 2009 WL 1898237, at *6
(DOL Adm. Rev. Bd. June 25, 2009); 70 Fed. Reg. 17,889,
17,890–17,891 (April 8, 2005), Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-3(a); Grosdidier v.
Broadcasting Bd. of Governors, 709 F.3d 19, 24 (D.C. Cir.
2013), and the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century, 49 U.S.C. § 42121(a)(1);
Benjamin v. Citation Shares Mgmt., LLC, No. 12-029, 2013
WL 6385831, at *4 (ARB Nov. 5, 2013). Indeed, other circuits
have held, and we have suggested, that an objectively
reasonable belief suffices even under Section 3730(h)(1)’s first
prong. See Hoyte, 518 F.3d at 68–69; Fanslow v. Chicago Mfg.
Ctr., Inc., 384 F.3d 469, 480 (7th Cir. 2004); Wilkins v. St.
Louis Housing 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).
3
In a qui tam action, a misrepresentation about
compliance with a statutory, regulatory, or contractual
15
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 31 U.S.C. § 3730(h)(1).
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.
requirement is only actionable if it is material. Universal
Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct.
1989, 1996 (2016); United States ex rel. Kasowitz Benson
Torres LLP v. BASF Corp., No. 18-7123, 2019 WL 2896005,
at *4 (D.C. Cir. July 5, 2019). We need not decide whether a
materiality requirement similarly applies to an employer’s false
claims under the whistleblower provision because the
University has not argued that its alleged misrepresentations
were immaterial as a matter of law. See Al-Tamimi v. Adelson,
916 F.3d 1, 6 (D.C. Cir. 2019).
16
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.
Id. ¶¶ 17–18, J.A. 129; see 9 C.F.R. §§ 2.33(b)(1), 2.38(k)(1),
3.126(a); Care Standards Guide at 43. She also knew that the
heightened temperatures deviated from those standards, and
that the University was obligated to report the deviations to the
NIH. Proposed Complaint ¶¶ 20, 22, 26, J.A. 130–132; see
Humane Care Policy § IV.F.3; Prompt Reporting Notice at 2–
3.
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 7 U.S.C. § 2143(a)(7);
42 U.S.C. § 289d(b)(3)(A); 9 C.F.R. § 2.36(b)(3). And those
certifications, Singletary reasonably believed, “were necessary
for Howard to receive and retain the grant monies that they in
fact received from the United States and retained throughout
the relevant time period.” Proposed Complaint ¶ 43, J.A. 137.
See generally 7 U.S.C. § 2143(f); 42 U.S.C. § 289d(d).
17
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”); 9 C.F.R. § 2.36(a); Annual Report to OLAW,
Office of Laboratory Animal Welfare, NIH,
https://olaw.nih.gov/resources/documents/annual-report.htm
(last visited Aug. 1, 2019). So, as counsel for Howard
University acknowledged at oral argument, Oral Arg. Tr.
34:15–35:6, Singletary has alleged facts supporting her
objectively reasonable belief that, during the relevant time
period, the University was or would be making false
compliance certifications in connection with the submission of
requests for federal funding. See 31 U.S.C. § 3729(a)(1)(B).
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 report the temperature deviations to
regulators, as required by law if funding claims are to be
submitted. See 7 U.S.C. § 2143(a)(7); 42 U.S.C.
§ 289d(b)(3)(A), (C); 9 C.F.R. § 2.36(b)(3). Several months
later, Singletary even tried to bring the University into at least
partial compliance with the law by directly reporting to the NIH
the animal deaths and the overheated conditions that caused
18
them. See J.A. 101–102 (“[W]e have been having difficulty
with receiving condition air [sic] in the facility.”).
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], Dr. Obisesan, had never reported Howard’s ambient
air deviations to [the NIH], decided that leaving the matter
solely in Dr. Obisesan’s hands would not be prudent.”).
The district court came to the 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.
19
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 or more
violations” of the False Claims Act. 31 U.S.C. § 3730(h)(1).4
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 31 U.S.C. § 3730(h)(1)
(affording “all relief necessary” to make an employee “whole”
if she is “discharged, demoted, suspended, threatened,
harassed, or in any other manner discriminated against in the
terms or conditions of employment because of” her
engagement in protected activity); Yesudian, 153 F.3d at 736.
Singletary’s proposed complaint fits the bill. She adequately
alleges termination of her position, the University’s awareness
4
Because denying leave to amend was in error under the second
prong, we need not decide at this early juncture whether the proposed
complaint also adequately alleges protected activity under Section
3730(h)(1)’s first prong. See Chorches, 865 F.3d at 97 n.31.
20
of her protected activity, and facts connecting her termination
to that protected activity.
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). 31
U.S.C. § 3730(h)(1); see United States ex rel. Schweizer v. Océ
N.V., 677 F.3d 1228, 1240 (D.C. Cir. 2012).
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 says, because after being
informed of her pending termination, Singletary left the
University in August 2014.
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
21
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 the 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
Section 3730(h)(1)’s first prong, “[u]nless the employer is
aware that the employee is investigating fraud, the employer
could not possess the retaliatory intent necessary to establish a
violation.”) (formatting modified). So to adequately allege that
she was discharged because of her protected activity,
22
Singletary must first allege that the University had knowledge
or notice that she was engaged in protected activity. See
Yesudian, 153 F.3d at 736. In this case, that means Singletary
must allege that the University was aware she was engaging in
lawful acts aimed at preventing the University’s submission of
false or fraudulent claims. See United States ex rel. Reed v.
KeyPoint Gov’t Sols., 923 F.3d 729, 767 (10th Cir. 2019).
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. See Proposed Complaint ¶ 18 (“Dr.
Singletary informed Dr. 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.”); id. ¶ 19 (“Dr. Singletary
told [Drs. Heinbockel and Johnson] that Howard was not in
compliance with the terms and conditions under which it was
receiving grant money from NIH.”); id. ¶ 21 (Dr. Singletary
“told both Dr. Heinbockel and Dr. Johnson that the ambient air
temperature deviations from acceptable standards constituted
violations of the terms and conditions of Howard’s federal
grants.”); id. ¶ 22 (“In a majority of [her] conversations [with
Obisesan] she expressly noted that Howard was out of
compliance with the terms and conditions under which it was
receiving grant money from the federal government.”), J.A.
129–131.
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–
23
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.
24
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 to 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 id. ¶ 24, J.A. 131
(responsibility for communicating with the NIH rested with
Obisesan, the Institutional Official); Oral Arg. Tr. 24:16–23
(University’s concession that Obisesan “was designated for the
communication[]” with NIH). Indeed, that email was the only
written communication Singletary sent to the NIH during her
twenty-month tenure at the University. And if Singletary’s
actions were just part of her job, see Dissenting Op. at 5–8,
there would have been no reason for Obisesan to “excoriate[]”
her in front of other faculty members for being unprofessional
and lacking “integrity,” Proposed Complaint ¶ 26, J.A. 132.
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 for this reporting.”). So by
copying Obisesan and Heinbockel on her email to the NIH,
Singletary put the University on notice that she was
25
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
26
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.
Singletary also went far beyond grumbling about
regulatory violations. Howard University made certifications
to the NIH that “were necessary for Howard to receive and
retain” federal grant money. Proposed Complaint ¶ 43, J.A.
137. Singletary repeatedly complained to her supervisors that,
as a consequence of the regulatory violations, the University
also was not complying with conditions included in those
certifications. And she urged them to report the problems to
the NIH, rather than assert a fictional compliance. When her
complaints went unaddressed, Singletary took the
unprecedented step of reaching out directly to the NIH.
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.
27
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 least 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 Federal Rule of Civil
Procedure 9(b)’s heightened pleading standard for fraud
claims. See FED. R. CIV. P. 9(b) (plaintiffs alleging fraud “must
state with particularity the circumstances constituting fraud or
mistake”). That is incorrect. Rule 9(b) applies to False Claims
Act qui tam actions. But it does not extend to retaliation claims
because such claims do not themselves assert or seek to prove
actual fraud. See United States ex rel. Sanchez v. Lymphatx,
Inc., 596 F.3d 1300, 1304 (11th Cir. 2010); Williams, 389 F.3d
28
at 1256, 1259; see also Oral Arg. Tr. 23:3–5 (University’s
acknowledgement that Rule 9(b) is inapplicable).
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.
KATSAS, Circuit Judge, dissenting: Dr. Sylvia Singletary
alleges that Howard University retaliated against her for trying
to stop violations of the False Claims Act. To make out that
claim, Singletary must plead and ultimately prove that the
University, when it fired her, knew that she was trying to stop
FCA violations. But the activities that allegedly caused the
firing—Singletary’s repeated complaints that laboratory
animals were housed in overly warm conditions—did not
involve allegations of fraud and fell squarely within her job
duties as an attending veterinarian. The proposed second
amended complaint thus does not support a plausible inference
that the University knew Singletary was trying to stop FCA
violations. Accordingly, I would affirm the dismissal of this
case and denial of leave to amend.
I
The False Claims Act prohibits knowingly presenting to
the federal government “a false or fraudulent claim for
payment.” 31 U.S.C. § 3729(a)(1)(A). Either the Attorney
General, id. § 3730(a), or private individuals, id. § 3730(b),
may sue for violations. The FCA also makes it unlawful for an
employer to discriminate against an employee “because of
lawful acts done by the employee … in furtherance of an action
under [the FCA] or other efforts to stop 1 or more violations of
[the FCA].” Id. § 3730(h)(1). This text creates two distinct
intent elements: the employee must act to further an FCA action
or stop an FCA violation, and the employer must discriminate
because the employee is so acting. To form the prohibited
retaliatory intent, the employer therefore must know something
about the employee’s intent—that she was acting to further an
FCA action or stop an FCA violation. See United States ex rel.
Schweizer v. Océ N.V., 677 F.3d 1228, 1238 (D.C. Cir. 2012);
United States ex rel. Williams v. Martin-Baker Aircraft Co.,
389 F.3d 1251, 1260–61 (D.C. Cir. 2004); United States ex rel.
Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998).
2
These cases analyzed an earlier version of section
3730(h)(1), which prohibited retaliation only for acts “in
furtherance of an action” under the FCA. Construing that
provision, we held that an employer cannot possess the
necessary retaliatory intent “unless it is aware that the
employee is investigating fraud.” Schweizer, 677 F.3d at 1238
(quotation marks omitted). Moreover, an employee’s
“grumbling to the employer about job dissatisfaction or
regulatory violations” does not provide the requisite notice.
Yesudian, 153 F.3d at 743. Furthermore, “plaintiffs 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.” Williams, 389 F.3d at 1261
(quotation marks omitted).
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 employer
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
3
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 section 3730(h) to prohibit
retaliation “because of” conduct “in furtherance of … efforts to
stop” FCA violations. Fraud Enforcement and Recovery Act
of 2009, Pub. L. No. 111–21, § 4(d), 123 Stat. 1617, 1625.
That amendment preserved the key words “because of,” which
require an employer to know that “the employee was engaged
in protected activity.” See Yesudian, 153 F.3d at 736. As the
Tenth Circuit explained, “[o]nce Congress expanded the scope
of protected activity, the universe of conduct that a plaintiff
could allege to show notice also necessarily expanded.” United
States ex rel. Reed v. KeyPoint Gov’t Sols., 923 F.3d 729, 766
(10th Cir. 2019). Or as we had previously explained, “the kind
of knowledge the [employer] must have mirrors the kind of
activity in which the plaintiff must be engaged.” Yesudian, 153
F.3d at 742. Post-amendment, this means that an employer
4
must know that its employee either tried to further an FCA
action or “tried to stop its alleged [FCA] violations.” Reed, 923
F.3d at 766.
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 know that
those activities are “in furtherance of” an FCA action.
In sum, the amended version of section 3730(h) requires
an employee to prove that her employer was “on notice that she
had tried to stop its alleged False Claims Act violations.” Reed,
923 F.3d at 766. And an employer is unlikely be on notice
when an employee does not raise concerns about fraud or
simply does her job. Yesudian, 153 F.3d at 744. On a motion
to dismiss, the question is whether the employee has “pleaded
5
facts that plausibly show” such notice. Reed, 923 F.3d at 766;
see Ashcroft v. Iqbal, 556 U.S. 662, 667–84 (2009).
II
Singletary fails to state an 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
6
promulgated under the Animal Welfare Act and the Health
Research Extension Act. E.g., Compl. ¶¶ 12–13, 18, J.A. 127–
29; see 9 C.F.R. § 3.126(a). Again, this fell well within her
contractual duty to promote appropriate animal care.
Moreover, Singletary alleges that she was an “Attending
Veterinarian” as defined in the regulations. Compl. ¶ 16, J.A.
128. That position required Singletary “to ensure the provision
of adequate veterinary care and to oversee the adequacy of
other aspects of animal care and use,” 9 C.F.R. § 2.33(a)(2), in
part by providing “appropriate facilities, personnel, equipment,
and services,” id. § 2.33(b)(1). Singletary’s job thus required
her to ensure that laboratory animals were housed in
permissible temperature ranges. Her pressing the University
about “regulatory violations” in this area would hardly have
suggested anti-fraud efforts. Yesudian, 153 F.3d at 743.
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 conditions at issue involved satisfying the regulatory
requirements regarding ambient air temperature. Singletary’s
proposed complaint repeatedly equates the two. E.g., Compl.
¶ 18, J.A. 129 (“the ambient air temperature constituted
violations of the terms and conditions under which Howard
received grant money”); id. ¶ 21, J.A. 130 (“the ambient air
temperature deviations from acceptable standards constituted
violations of the terms and conditions of Howard’s federal
grants”). The Health Research Extension Act similarly
requires “assurances” that grantees will satisfy animal-care
rules promulgated by the National Institutes of Health. 42
U.S.C. § 289d(c)(1). In context, Singletary’s concerns about
grant compliance equate to her concerns about regulatory
7
compliance. And raising those concerns fell within her duties
as a grant consultant and an architect of the University’s
animal-care compliance programs.
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 9 C.F.R.
§ 2.31(b)(3). By law, that Committee was required to report
certain violations of the Animal Welfare Act to the University
and the Department of Agriculture, 7 U.S.C. § 2143(b)(4)(A),
(C), and to report to NIH any violations of its animal-care
regulations, 42 U.S.C. § 289d(b)(3)(C). And as a member of
the Committee, Singletary herself was required to report any
dissenting views. 7 U.S.C. § 2143(b)(4)(A)(iii); 42 U.S.C.
§ 289d(b)(3)(C). Moreover, these obligations arose under
animal-welfare laws, so complaining about “regulatory
violations” in this area would not have signaled efforts to
prevent fraud against the government. See Yesudian, 153 F.3d
at 743.
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 an Attending Veterinarian.
To be sure, violations of regulations or grant conditions may
become violations of the False Claims Act, but only if a grantee
8
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. True enough, but the
“corrective action” involved lowering air temperatures. It had
nothing to do with avoiding or correcting false certifications—
a different concern that Singletary never claims to have raised.1
1
See Compl. ¶ 18, J.A. 129 (“Dr. Singletary informed Dr.
Obisesan … that the conditions in which the Howard laboratory
animals were being held were too warm, not in compliance with
NIH/OLAW 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.
On virtually every one of these occasions, Dr. Singletary exhorted
Dr. Obisesan to initiate corrective action.”); id. ¶ 19, J.A. 129–30
(“Dr. Singletary had numerous discussions with Dr. Obisesan in
which she expressed these concerns that the laboratory animals’
living area was too hot. When, after several conversations with Dr.
9
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
Obisesan in which she informed him of Howard’s non-compliance
and sought corrective action, Dr. Obisesan did not act on Dr.
Singletary’s concerns, she made the same complaints to Dr.
Heinbockel and Dr. Mark Johnson …. Dr. Singletary told them that
Howard was not in compliance with the terms and conditions under
which it was receiving grant money from NIH. Dr. Singletary also
made her concerns known to these men in IACUC meetings. As with
Dr. Obisesan, she requested that corrective action be taken. No
corrective action was taken.”); id. ¶ 21, J.A. 130 (“As noted above,
she told both Dr. Heinbockel and Dr. Johnson that the ambient air
temperature deviations from acceptable standards constituted
violations of the terms and conditions of Howard’s federal grants.
She urged corrective action.”).
10
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 to higher-ups does not advance her retaliation claim.
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
11
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.
* * * *
Singletary’s proposed second amended complaint does not
allege facts 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.