In United States ex rel. Bias v. Tangipahoa Parish School Bd., — F.3d —-, 2016 WL 906227 (5th Cir. 2016), the Fifth Circuit provided guidance on the scope of individuals with standing to bring an FCA retaliation claim under 31 U.S.C. § 3730(h). In reversing the lower court’s dismissal, the circuit court explained that liability under § 3730(h) extends to defendants “by whom plaintiffs are employed, with whom they contract, or for whom they are agents,” and found that a school board could be liable under § 3730(h) even where the plaintiff was employed by a different entity because the complaint alleged the existence of an agency-like relationship between the plaintiff and school board.
Bias was employed by the Marine Corps and worked as an instructor for the JROTC program at Amite High School. Foster, a teacher at Amite High, worked with Bias and was a faculty adviser for the school’s cross-country team. In 2009, Foster attempted to use JROTC funds to pay for expenses associated with the cross-country team. Bias reported the conduct to Amite High’s principal, Stant, who assured Bias that JROTC funds would not be utilized. Bias subsequently discovered that Stant approved the use of JROTC funds to pay for the trip. Sometime thereafter, Bias reported a second misappropriation of JROTC funds to his JROTC Regional Director. Unsurprisingly, Bias’s relationship with Stant and Foster deteriorated and the Marine Corps attempted to transfer Bias to another school district.
Thereafter, Bias filed suit against Foster, Stant, and the school board alleging, in relevant part, an FCA retaliation claim under 31 U.S.C. § 3730(h). Bias contended that Foster and Stant hindered and disrupted his ability to carry out the JROTC program and had caused his transfer. The district court dismissed this claim, holding that only the Marine Corps (Bias’s employer) could have retaliated against him, and that the defendants’ conduct could not have been the cause of the purported retaliatory actions.
In reversing, the Fifth Circuit examined the pleading requirements and statutory history for a claim under 31 U.S.C. § 3730(h). The court explained that to survive a motion to dismiss, a FCA retaliation plaintiff must show that: (1) he engaged in a protected activity; (2) was retaliated against because of the protected activity; and (3) his employer, contractor, or principal knew about the protected activity. The circuit court’s analysis focused on this last element—whether the required statutory relationship existed between Bias and the school board.
The Fifth Circuit first noted that § 3730(h) was amended in 2009 and expanded the scope of culpable and aggrieved parties beyond the employer-employee relationship to also include the contractor-contractee and principal-agent relationships. The Fifth Circuit found, therefore, that liability under § 3730(h) extends to defendants “by whom plaintiffs are employed, with whom they contract, or for whom they are agents.” The court found that while the relationship between Bias and the school board was unclear, the fact that he was allegedly supervised by Stant, performed teacher-like functions, and participated in meetings with school officials sufficiently pled the existence of an agency type relationship between himself and the school board. Furthermore, the court found that Foster’s and Stant’s attempts to undermine Bias’s ability to perform his job constituted retaliatory acts.
Bias serves as a useful interpretation of the potential far-reaching scope of § 3730(h) since its most recent amendments. While FCA retaliation claims typically arise in the employer-employee relationship, Bias illustrates that courts are willing to get creative when it comes to establishing a statutorily protected relationship under the FCA.
