Better to Analyze a Statute Than to Psychoanalyze Congress? Eleventh Circuit Widens Circuit Split Over Proper Causation Standard in False Claims Act Retaliation Cases
| Publication year | 2021 |
Better to Analyze a Statute than to Psychoanalyze Congress? Eleventh Circuit Widens Circuit Split over Proper Causation Standard in False Claims Act Retaliation Cases
Douglas E. Comin
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"You're fired!" Employees across America hear these words every day.1 Usually, the federal government has no interest in whether or why an employee is fired. But when companies that do business with the federal government improperly fire employees for reporting fraud, the interests of the federal government and the general public are directly implicated.2 The implications are clear: employees suffer the tribulations of wrongful
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termination, the government feels the strain on its resources, and American taxpayers ultimately foot the bill.3
Healthcare providers and defense contractors are some of the federal government's largest business partners.4 Because the federal government is a deep-pocketed and reliable payer, some providers seek to grow their business by billing the federal government as much and as often as possible. Sometimes, contractors and providers abuse their billing privileges and cross the line into fraud.5 Well aware of this phenomenon, Congress has relied on the False Claims Act (FCA)6 to combat fraud and recover ill-gotten gains.7 To aid its effort in enforcing the FCA, Congress encourages employees to report fraud and allows them to share in any money that is successfully recovered.8
Congress recognizes that employees who report fraud to their employers will often face backlash.9 To protect these employees, the FCA allows them to sue employers that retaliate against them for engaging in protected activity to uncover and report fraud.10 Employees who sue their
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employers for retaliation can be reinstated and receive double back pay.11 To prevail, employees must prove that an employer fired them "because of" their engagement in protected conduct.12
Whether an employee's complaints must be essential to or merely a consideration in an employer's decision to retaliate is frequently disputed in FCA retaliation cases. Courts are split on the issue.13 In 2020, the United States Court of Appeals for the Eleventh Circuit decided Nesbitt v. Candler Cnty., in which the court held that an employee must prove that her complaints were essential to her employer's retaliation decision.14 In doing so, the court widened a circuit split on how to interpret the antiretaliation provision of the FCA.15 As a result, the geographic location in which employees happen to work will often affect the protections afforded to them for reporting fraud against the federal government.16
Jamie Nesbitt began working for the Candler County ambulance service (the County) in 2006. He was an emergency medical technician (EMT). Several years into his tenure, Nesbitt's colleague, Donald Greer, was promoted from EMT to deputy director of the ambulance service. Following Greer's promotion, Nesbitt noticed problems and clashed with his supervisors.
As EMTs, Nesbitt and his coworkers had to complete "trip reports," which had to be filled out following each ambulance ride. The trip reports contained information about the condition of the patient and the medical
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necessity of the ambulance service. Based on the contents of the narrative section of each trip report, Medicare determines whether to reimburse ambulance providers for their services.17
As deputy director, Greer ordered Nesbitt and other EMTs under his direction to write in their trip report narratives that patients were non-ambulatory, regardless of whether or not the patients could walk. This practice would enable the County to bill Medicare for the trips. Nesbitt believed this practice was fraudulent, so he complained to Greer and other County officials.
Following the complaints, Greer reduced Nesbitt's work schedule. Normally, EMTs were scheduled to work two twenty-four-hour shifts per week. In addition, they would be on call for two more twenty-four-hour shifts. The on-call shifts allowed EMTs to work overtime and, thus, earn higher pay. Greer limited Nesbitt's on-call shifts to twelve hours instead of twenty-four, which reduced Nesbitt's income.
After the County reduced Nesbitt's hours and pay, Nesbitt took a second job, working as an EMT at a private ambulance company called Meddixx.18 Although Greer approved Nesbitt's taking a second job, a County policy forbade employees to have side jobs without approval from the ambulance service director.19 Nesbitt assumed that David Moore, the ambulance service director, knew and approved of his Meddixx job, but Moore claimed he knew nothing about it.
Greer and Moore recommended to the County Administrator, William Lindsey, that Nesbitt be fired.20 They said that Nesbitt refused to follow orders and that he "violated the County's policy on side jobs."21 The Board of Commissioners voted to fire Nesbitt.22 Thereafter, Greer and Moore summoned Nesbitt to Greer's office, where they gave him a letter that provided two reasons for firing him.23 First, he took an unauthorized side
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job with Meddixx, and second, Nesbitt refused to "fill out trip reports in 'the proper way.'"24
In August 2014, after the County fired him, Nesbitt sued under the FCA and the Georgia False Medicaid Claims Act, O.C.G.A. §§ 49-4-168-168.6,25 alleging that the County fraudulently billed for ambulance services and fired him in retaliation for whistleblowing. In June 2016, the United States intervened. The parties reached a settlement in which Nesbitt and the government voluntarily dismissed the fraud claims. However, Nesbitt's retaliation claim proceeded.26 The United States District Court for the Southern District of Georgia granted summary judgment for the County.27 Although the district court acknowledged that Nesbitt had engaged in "protected conduct," it found that there was no genuine issue of material fact regarding whether the County fired Nesbitt for the reasons the County provided.28 Nesbitt appealed to the United States Court of Appeals for the Eleventh Circuit.29
A. False Claims Act
Congress enacted the FCA during the Civil War to combat fraud.30 As the federal government sought out private contractors to aid the war effort, unscrupulous suppliers sold the government raggedy uniforms, infantry boots made of cardboard, rotted ship hulls freshly painted to disguise their age, and gunpowder barrels filled with sawdust.31 Suppliers also sold the same mules "over and over again to Army quartermasters."32 In response, Congress enacted and President Lincoln
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signed the FCA33 on March 2, 1863 to "prevent and punish Frauds upon the Government of the United States."34 The FCA allowed anyone
to bring an action on behalf of the United States against a government contractor who knowingly submitted false claims for payment to the Government. If the suit was successful, the offending contractor was required to pay double damages and a $2,000 per false claim penalty. The successful relator would receive 50% of the amount recovered.35
The idea was to make the United States whole and allow the relator36 to share in the recovery.37
Although the FCA was successful for many years, Congress scaled back the provisions to allow private parties to sue on behalf of the United States during World War II, and its use declined sharply in the following four decades.38 In the 1980s, due to President Reagan's defense build-up against the Soviet Union, military spending rose dramatically.39 At the same time, alarming reports of government contractors perpetrating fraud against the United States surfaced.40 Congress acted. It passed the False Claims Amendments Act of 1986,41 which reinvigorated the private whistleblower provisions of the FCA.42
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B. Antiretaliation Provision
When Congress reinvigorated the whistleblower provisions in the 1986 Amendments to the FCA, it also added an antiretaliation provision.43 That provision, codified at 31 U.S.C. § 3730(h)(1), protects whistleblowers from retaliation by their employers:44
Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent 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, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop [one] or more violations of this subchapter.45
The Senate Judiciary Committee reported that Congress was seeking "to halt companies and individuals from using the threat of economic retaliation to silence 'whistleblowers,' as well as to assure those who may be considering exposing fraud that they are legally protected from retaliatory acts."46 The Committee was guided by whistleblower protection provisions in Federal safety and environmental statutes.47
The meaning of the words "because of" in the provision above are at the heart of the controversy in many FCA retaliation cases.48 Without explaining why, courts either find the language ambiguous and examine the legislative history of the Act to resolve that ambiguity or find the language unambiguous and refuse to consider the legislative history to confirm the ordinary meaning.49
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C. The Meaning of "Because Of"
Despite their differing interpretive approaches, courts uniformly agree that the language "because of" is a standard of causation.50 They disagree, however, on whether the language requires the "motivating factor" standard or the "but-for" standard of causation.51 The motivating factor standard is less stringent than the but-for standard.52 In...
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