By John M. Simpson.<\/p>\n
On September 20, 2019, the U.S. Court of Appeals for the District of Columbia Circuit reversed a district court judgment that had dismissed a retaliation case brought by a university veterinarian who was allegedly terminated for making internal and external complaints about the conditions in which laboratory animals were being maintained. Singletary v. Howard University<\/em>, No. 18-7158 (D.C. Cir. Sept. 20, 2019).<\/a> The appellate panel deciding the case split on the question of whether plaintiff was engaged in protected activity or was simply doing her job.<\/p>\n Plaintiff was a veterinarian employed by the defendant as the attending veterinarian of its medical school.\u00a0 She served on the defendant\u2019s Institutional Animal Care and Use Committee (IACUC).\u00a0 As a recipient of federal grant funds, the defendant was subject to the standards under the Animal Welfare Act, administered by the U.S. Department of Agriculture, and the Health Research Extension Act, administered by the National Institutes of Health (NIH), which govern the conditions for maintaining laboratory animals used in biomedical research.\u00a0 Plaintiff\u2019s complaint alleged that, on several occasions, she had complained internally about the ambient air temperatures in areas of the laboratory where mice were kept.\u00a0 Her complaints allegedly were not addressed within the university.\u00a0 When plaintiff discovered that certain mice had died from the heat, she complained about the conditions to NIH.\u00a0 Plaintiff\u2019s complaints did not expressly assert that fraud was occurring.\u00a0 However, during the time frame at issue, the university was making certifications to the federal agencies as to its compliance with animal welfare standards.\u00a0 As a result of her complaints, plaintiff alleged, her appointment was shortened and her employment with the university terminated.\u00a0 Plaintiff brought suit under the anti-retaliation provision of the False Claims Act, 31 U.S.C. \u00a7 3730(h).<\/p>\n To make out such a retaliation claim, a plaintiff must show that she was engaged in protected activity and suffered an adverse employment action because of that activity. The latter point requires that the employer know that the employee was engaged in protected activity. Typically, a plaintiff whose job duties include bringing matters of regulatory compliance to the attention of the employer is not engaging in protected activity.<\/p>\n The majority opinion (Millett, J.) found that plaintiff had stated a cause of action.\u00a0 Although plaintiff had not directly accused the university of fraud, she had an objective reasonable belief that her communications were an effort either to correct or counteract false submissions of compliance already made by defendant to the government or to provide NIH with the information necessary to enforce its animal welfare standards.<\/p>\n As to whether the university had been placed on notice that the plaintiff was complaining about or attempting to stop fraud, the majority disagreed with the district court that the plaintiff was just doing her job.\u00a0 According to the majority, plaintiff was doing more than performing her caretaking duties as an attending veterinarian.\u00a0 Plaintiff\u2019s complaints asserted that defendant was out of compliance with the conditions of its federal grants, and plaintiff went outside her chain of command by sending a complaint to NIH.<\/p>\n The dissenting opinion (Katsas, J.) saw the matter quite differently.\u00a0 The dissent concluded that the university was not on notice of fraud for two basic reasons.\u00a0 First, plaintiff never actually accused the university of fraud.\u00a0 Second, the allegations in plaintiff\u2019s complaint did not overcome the presumption that arises when an employee tries to characterize the performance of normal job duties as \u201cprotected activity.\u201d\u00a0 The complaints that plaintiff had made were all within the scope of her job as attending veterinarian.\u00a0 The complaints about ambient air temperature and compliance with animal welfare standards fell within her duties to oversee the animal welfare program of the university.\u00a0 Issues as to whether the university was in compliance with its grant conditions fell within her duties to consult about grants.\u00a0 And her complaints about animal welfare were part of her duties as a member of the defendant\u2019s IACUC.<\/p>\n The debate between the majority and dissenting opinions in Singletary<\/em> is an interesting example of a court drawing the line between protected activity covered by the anti-retaliation provision of the False Claims Act, and activity that is simply doing one\u2019s job and is beyond the reach of that provision.<\/p>\n Laboratory animal welfare issues in the higher education setting are increasingly becoming the focus of animal rights groups.\u00a0 For more information on animal law issues, visit the Duane Morris Animal Law Developments blog<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":" By John M. Simpson. On September 20, 2019, the U.S. Court of Appeals for the District of Columbia Circuit reversed a district court judgment that had dismissed a retaliation case brought by a university veterinarian who was allegedly terminated for making internal and external complaints about the conditions in which laboratory animals were being maintained. … <\/p>\n Continue reading “D.C. Circuit Revives False Claims Act Retaliation Case Against University”<\/span><\/a><\/p>\n","protected":false},"author":317,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[37,40,38,36,42,27,44,41,35,39],"ppma_author":[182],"class_list":["post-86","post","type-post","status-publish","format-standard","hentry","category-general","tag-animal-law","tag-animal-welfare-act","tag-anti-retaliation","tag-false-claims-act","tag-health-research-extension-act","tag-higher-education","tag-iacuc","tag-institutional-animal-care-and-use-commitee","tag-john-simpson","tag-protected-activity"],"authors":[{"term_id":182,"user_id":317,"is_guest":0,"slug":"jmsimpson","display_name":"John M. Simpson","avatar_url":"https:\/\/blogs.duanemorris.com\/updateeducation\/wp-content\/uploads\/sites\/44\/2019\/09\/simpsonjohn-125x150.jpg","author_category":"","last_name":"Simpson","first_name":"John M.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/johnmsimpson.html","description":"Read John's bio.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/updateeducation\/wp-json\/wp\/v2\/posts\/86","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/updateeducation\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/updateeducation\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/updateeducation\/wp-json\/wp\/v2\/users\/317"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/updateeducation\/wp-json\/wp\/v2\/comments?post=86"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/updateeducation\/wp-json\/wp\/v2\/posts\/86\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/updateeducation\/wp-json\/wp\/v2\/media?parent=86"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/updateeducation\/wp-json\/wp\/v2\/categories?post=86"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/updateeducation\/wp-json\/wp\/v2\/tags?post=86"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/updateeducation\/wp-json\/wp\/v2\/ppma_author?post=86"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}