As we have stated in past issues, the False Claims Act (FCA) permits private individuals, called whistleblowers, to bring suit on behalf of the federal government when the government is being defrauded. In order to reward and protect the whistleblowers, the FCA provides monetary incentives as well as protection from retaliation.
The FCA incentivizes whistleblowing by providing 15 to 30 percent of the overall recovery by the government to the whistleblower and protects whistleblowers from retaliation. The whistleblower can seek the following relief under a retaliation claim:
Relief under paragraph (1) shall include reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees. An action under this subsection may be brought in the appropriate district court of the United States for the relief provided in this subsection.
31 U.S.C.A. § 3730 (West) (emphasis added).
The plain language of the statute allows compensation for “special damages,” which raises a question. Can one recover damages for emotional distress under a FCA retaliation claim?
Though the Eleventh Circuit has not ruled on whether a whistleblower could seek compensation for emotional distress as compensatory damages under 31 U.S.C. § 3730(h), five other circuits have either ruled on the issue or, at the very least, discussed the issue in dicta. Those five circuits are the Fourth, Fifth, Sixth, Seventh, and Eighth Circuits. Each of these circuits have either ruled, or expressed though dicta, that the “special damages” allowed in the anti-retaliation provision of the FCA includes emotional distress. Out of the seven circuits that have not had their circuit court rule or discuss the issue, three have had the issue discussed or ruled on by a district court. These district courts are located in the Second, Third, and Tenth Circuits and have also held that emotional distress damages are available under the Section 3730(h) FCA retaliation claim.
Whistleblowers have a wide variety of relief available to them – including recovery under an emotional distress claim – when it concerns retaliation against the whistleblower. The Middle District of Pennsylvania stated it this way:
[g]iven the wide variety of retaliation prohibited by § 3730(h) and conduct protected by the statute, a claim thereunder might be analogized to a tort action for wrongful discharge; a whistleblower cause of action; statutory causes of action prohibiting retaliation against employees for engaging in protected activities; common law torts such as assault, battery, intentional infliction of emotional distress, and defamation; or negligence theories such as negligent hiring, retention, training, supervision, and referencing. Campion v. Ne. Utilities, 598 F. Supp. 2d 638 (M.D. Pa. 2009).
Blowing the whistle can be extremely stressful and many whistleblowers are badly mistreated by their employers for simply standing up for compliance. Fortunately, the anti-retaliation cause of action in Section 3730(h) equips whistleblowers with the ability to seek emotional distress damages, double back-pay with interest, reinstatement with their employer to their prior position and benefits, along with costs and attorney’s fees.
Whistleblowers play a vital role in the government’s war against fraudsters; therefore, the FCA provides not only an avenue for one to become a whistleblower, it also provides incentives to urge ordinary citizens to become extraordinary by doing the right thing and blowing the whistle on fraud. These incentives include monetary rewards and protection against retaliation. Are you aware of fraud being committed against the federal government, or a state government? If so, the FCA can protect and reward you for reporting the fraud.
If you have any questions about whether you qualify as a whistleblower, please contact a lawyer at Beasley Allen for a free and confidential evaluation of your claim. There is a contact form on this website, or you may email one of the lawyers on our whistleblower litigation team: Andrew Brashier, Archie Grubb, Larry Golston, or Lance Gould at 800-898-2034 or by email at Andrew.Brashier@beasleyallen.com, Archie.Grubb@beasleyallen.com, Larry.Golston@beasleyallen.com or Lance.Gould@beasleyallen.com.
Sources: 31 U.S.C.A. § 3730(h). Leggins v. Orlando Hous. Auth., 2013 U.S. Dist. LEXIS 33021 (M.D. Fla. Mar. 11, 2013). Jones v. Southpeak Interactive Corp. of Delaware, 777 F.3d 658 (4th Cir. 2015). Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254 (5th Cir. 2014). Thompson v. Quorum Health Res., LLC, 485 F. App’x 783 (6th Cir. 2012). Brandon v. Anesthesia & Pain Mgmt. Associates, Ltd., 277 F.3d 936 (7th Cir. 2002). Neal v. Honeywell, Inc., 191 F.3d 827 (7th Cir. 1999). Hammond v. Northland Counseling Ctr., Inc., 218 F.3d 886 (8th Cir. 2000). Townsend v. Bayer Corp., 774 F.3d 446 (8th Cir. 2014). U.S. ex rel. Smith v. Yale Univ., 415 F. Supp. 2d 58 (D. Conn. 2006). McKenna on Behalf of U.S. v. Senior Life Mgmt., Inc., 429 F. Supp. 2d 695 (S.D.N.Y. 2006). Campion v. Ne. Utilities, 598 F. Supp. 2d 638 (M.D. Pa. 2009). Lipka v. Advantage Health Grp., Inc., No. 13-CV-2223, 2013 WL 5304013, at *1 (D. Kan. Sept. 20, 2013).
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