Fourth Circuit Court of Appeals Clarifies What “Protected Activities” Are Under a FCA Retaliation Claim

Posted on Health Care Law News by author

In Glynn v. Edo Corp., 710 F.3d 209 (4th Cir. 2013), the Fourth Circuit recently clarified what constitutes “protected activity” under the anti-retaliation provision of the False Claims Act, 31 U.S.C. § 3730 (h)(1). As background, to prove a FCA retaliation claim, a whistleblower must show, inter alia, that he was engaged in “protected activity” by acting in furtherance of a whistleblower lawsuit. Courts have historically grappled with the concept of what constitutes “protected activity,” and some courts have identified only a narrow class of conduct, while others have taken a more liberal point of view. In Glynn, the Fourth Circuit adopted the former approach and held that the Plaintiff had failed to prove that he was retaliated against for engaging in “protected activity” because his evidence failed to “raise a distinct possibility of a viable FCA action” or prove that any false certification was “material.” The court then affirmed summary judgment in the Defendant employer’s favor.

The relator in Glynn worked as an engineer for Impact Science & Technology (“IST”). IST designs and manufacturers Mobile Multi-Band Jammer systems (“MMBJs”), which are systems that are used to jam the frequencies used to detonate IEDs. Glynn alleged IST terminated him for reporting purportedly fraudulent conduct to the government, specifically that IST was “shipping systems that … were putting our troops in jeopardy” and that IST had failed to implement a quality assurance plan (“QAP”) as contractually required.

The Fourth Circuit rejected the whistleblower’s arguments that he was engaged in “protected activity” and explained that the insignificance of the defect identified by the whistleblower meant that the product still met the Government’s standards; that any false certifications of compliance were not material because the defect was so minor and because the failure to create a QAP was likely just an administrative failure; and that simply “perking” the Government’s ears by initiating an investigation was inadequate to constitute “protected activity.”