The Fourth Circuit U.S. Court of Appeals in Richmond, Virginia, issued an opinion yesterday that denies protection to employees who file retaliation claims under the False Claims Act (FCA). The three judges ignored the friend-of-the-court brief I submitted that argued how the plain language of the FCA protects all employees who file claims, including claims of retaliation, and how it is in the public interest to protect such whistleblowers.
Jason Mann began working for Heckler & Koch Defense, Inc. (HKD), in 2007 as Manager for Law Enforcement Sales. In 2008, HKD submitted a bid to sell rifles to the Secret Service. The job order called for rifles with “ambilevers” that would allow them to by used by right-handed or left-handed agents. HKD, however, did not have ambilevers, but submitted its bid anyway. HKD rifles also lacked a two-stage trigger. HKD stood to make over 30% profit on the sales. Mann expressed concern about the defects to his supervisor, and began investigating the issue. HKD’s general counsel then announced that Mann should not expect to continue working for HKD. HKD’s CEO ordered all personnel not to cooperate with Mann’s investigation. Mann was placed on administrative leave, denied access to the building, and lost access to his email. HKD’s own investigation found that management had violated federal acquisition rules. On June 11, 2008, Mann filed a complaint in federal court alleging that HKD engaged in retaliation against him in violation of the FCA. The Secret Service rejected HKD’s bid. On July 17, 2008, HKD claimed that Mann had helped a small police department acquire machine guns. It fired Mann using the machine gun issue as its basis.
The Fourth Circuit opinion initially concludes that since HDK had disclosed that its rifles did not meet the Secret Service requirements, HDK did not commit any fraud. It reached this conclusion, in part, by ignoring the language in the bid agreement that said, “The Contractor shall only tender for acceptance those items that conform to the requirements of this contract.” Since HDK disclosed that its rifles did not conform, the Court reasoned, Mann’s belief that there was a fraud was not “reasonable.”
Next, the Court said that the FCA does not protect whistleblowers from retaliation when they file retaliation lawsuits. At 31 U.S.C. § 3730(h), the FCA protects “lawful acts done by the employee . . . in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section.” In Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 415 (2005), the Supreme Court considered the phrase “[a] civil action under section 3730” in Section 3731(b), and held that it meant only qui tam actions under Sections 3730(a) and (b), and not retaliation claims under Section 3730(h). The result was that Karen Wilson’s retaliation claim was too late and had to be dismissed. The Fourth Circuit therefore concluded that the phrase “an action under this section” in Section 3730(h) does not include any action under Section 3730(h)! I pointed out that the words “this section” might mean something different when they appear in Section 3731(b). Certainly when Section 3730(h) says “this section,” it should include Section 3730(h). Moreover, it is in the public interest to recognize a whistleblower’s right to protection for assuring that the Secret Service gets only rifles that work as intended. The Fourth Circuit ignored my argument, and did not even discuss my amicus brief in its decision.
The decision is Mann v. Heckler & Koch Defense, Inc., Case No. 09-1847 (4th Cir. 12-27-2010). I filed the amicus brief on behalf of the Metropolitan Washington Employment Lawyers Association (MWELA) and the National Whistleblowers Center (NWC). Jason Mann now has two weeks to decide if he will ask the entire Fourth Circuit to rehear this case en banc.