On January 7, 2013, a Macon, Georgia, federal district court
refused to dismiss a whistleblower’s False Claims Act claims against Central Georgia
Foot and Ankle Center, P.C. The court also refused to dismiss the whistleblower’s
personal retaliation claims, holding that the whistleblower did not have
to plead those claims with particularity.
I am a qui tam attorney who represents whistleblowers, and in today’s
blog entry I will be discussing a Medicare and Medicaid fraud case that
was filed in Georgia. Nichol Salvo originally filed the suit sued under
the False Claims Act on behalf of the United States, saying that the federal
government had been defrauded by false claims made by the Defendant Central
Georgia Foot and Ankle. Ms. Salvo filed her case in the Middle District
of Georgia. Under the terminology used for the False Claims Act, Ms. Salvo
was the “relator”, more popularly known as the “whistleblower”
in the case. As a relator, Ms. Salvo sued on behalf of and in the shoes
of the Government, to recover money she said Central Georgia Foot and
Ankle had gotten from the Government via fraud. Ms. Salvo also filed personal
claims, saying that she had been retaliated against when she tried to
stop Central Georgia Foot and Ankle from cheating the Government.
The relator alleged that Central Georgia Foot and Ankle was making false
claims for payment to the Government. Central Georgia Foot and Ankle filed
a motion to dismiss, stating that the relator had not pled the claim sufficiently
under Fed. R. Civ. P. 9(b). Under Rule 9(b), the court
The court acknowledged that Rule 9(b) applied to the False Claims Act allegations
that Ms. Salvo had filed on behalf of the U.S. Under Rule 9(b), Ms. Salvo
had to plead her the charges of fraud “with particularity”:
“[i]n alleging fraud or mistake, a party must state with particularity
the circumstances constituting fraud or mistake. Malice, intent, knowledge,
and other conditions of a person’s mind may be alleged generally.”
Quoting from
United States ex rel. Clausen v. Laboratory Corp. of America, Inc., 290 F.3d 1301, 1308, 1310 (11th Cir. 2002), which in turn quoted from
United States ex rel. Cooper v. Blue Cross & Blue Shield of Fla., 19 F.3d 562, 566-68 (11th Cir. 1994)), the court explained that Ms. Salvo’s
claims would stand as long as they “‘include[d] facts as to
time, place, and substance of the [Defendants’] alleged fraud’,
specifically, “‘the details of the [D]efendants’ allegedly
fraudulent acts, when they occurred, and who engaged in them.'”
The Court pointed out that the Relator’s individual retaliation claims
did not have to meet the 9(b) standard. A whistleblower who takes acts
“to stop 1 or more violations of” the False Claims Act is
entitled to job protection. If an employer (subcontractor, etc.) fires
the whistleblower or discriminates against him “in the terms of
his employment,” the employer must pay the whistleblower twice the
amount of wages he lost plus other damages. Citing United States ex rel.
Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1303-04 (11th Cir. 2010), the
court said the relator merely had to allege that she protested what the
employer was doing “at a time when there was a ‘distinct possibility
that she or the government would sue the [Defendants] under the FCA,’
and (2) the Defendants’ retaliatory conduct happened after this
protest.”