Fifth Circuit Affirms False Claims Act's Anti-Retaliation Provision Cannot Be Used Against Individuals Who Did Not Employ Plaintiff

Summary

On July 1, 2016, the Fifth Circuit affirmed the district Court's dismissal of Plaintiff's False Claims Act ("FCA") retaliation claim against all individual defendants in the case. In Howell v. Town of Ball, 827 F.3d 515, 521 (5th Cir. 2016), the Plaintiff had brought claims under the FCA against his employer (the town of Ball) and several individuals with roles in town governance. In upholding the lower court's decision, the panel held that the FCA's retaliation provision, 31 U.S.C. s. 3130(h), applied to employers, and not to non-employer individual defendants. The decision addressed the 2009 amendments to Section 3130(h) of the FCA and held that they did not alter this long-standing limiting principle.

Background

Plaintiff Thomas Howell ("Howell"), a former police officer for the town of Ball, Louisiana, asserted two claims against the town of Ball and various individual defendants: (1) a claim under 42 U.S.C. § 1983, on the grounds that he was terminated in violation of the First Amendment for cooperating with an FBI investigation of public corruption, and (2) a retaliation claim under the FCA, on the grounds that he was terminated in violation of the Act's whistleblower protections.

Howell allegedly learned that the town of Ball's mayor had fraudulently obtained funds from the Federal Emergency Management Agency, and that other town officials, including Ball's police chief, were involved in the scheme. He shared this information with the FBI. After investigation, Ball's mayor, police chief, and others were indicted. Afterwards, the new police chief, Daniel Caldwell, heard about Howell's involvement in the investigation and allegedly began to harass him. Caldwell asked Howell in more than one conversation whether he was "wearing a wire," and on one occasion insisted that Howell unbutton his shirt to prove he was not. Howell heard rumors that Caldwell was investigating whether he had stolen a flash drive from a coworker's locker, and Howell confronted Caldwell at his home. Caldwell raised this to the attention of the Board of Aldermen, which held a hearing on Howell's employment status and then voted to terminate him. Howell sued the town, the former police chief, the mayor, Caldwell, and the Aldermen, alleging the claims described above.

The district court dismissed Howell's FCA claims against the individual defendants in 2012, and subsequently granted summary judgment to the town and to the individual defendants on Howell's...

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