Brett Strong V MedVance Institute Initial Brief Eleventh Circuit

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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CASE NO.: 11-11102-F
BRETT STRONG, Plaintiff/Appellant, v. KIMC INVESTMENTS, INC., Defendant/Appellee. __________________________________________/
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
APPELLANTS INITIAL BRIEF
Matthew Seth Sarelson, Esq. Florida Bar No. 888281 Sarelson Law Firm, P.A. 1200 Brickell Avenue, Suite 1440 Miami, Florida 33131 Telephone: (305) 379-0305 Facsimile: (800) 421-9954 msarelson@sarelson.com
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CERTIFICATE OF INTERESTED PERSONS Brett Strong v. KIMC Investments, Inc., No. 11-11102-FF
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Appellant files his Certificate: The following people and corporate entities are interested: 1. Angelini, Esq., Julie A. 2. Dimitrouleas, Honorable Judge William P. 3. Education Affiliates Inc. 4. Foley & Lardner LLP 5. Hamilton, Esq., John R. 6. Kennedy, Esq., Christina 7. KIMC Investments, Inc. 8. KIMC Investments, LLC 9. Lord, Esq., John S. 10. Losey, Esq., Adam C. 11. Nelson, Esq., Maxwell M. 12. Sarelson Law Firm, P.A. 13. Sarelson, Esq., Matthew S. 14. Snow, Honorable Magistrate Judge Lurana S. 15. Strong, Brett
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STATEMENT REGARDING ORAL ARGUMENT Strong requests oral argument because this is an issue of first impression in this Circuit. The anti-retaliation provision of the False Claims Act, 31 U.S.C. 3730(h) was amended and broadened on May 20, 2009, several months prior to the time of Strongs termination. Strong is unaware of any appellate case in any circuit that analyzes the amended version of section 3730(h). Strong is also
unaware of section 3730(h) ever reaching the Supreme Court on the merits. This area of law is, to say the least, murky and unsettled. Moreover, Strong requests oral argument because it will help clarify why the allegations made in the Second Amended Complaint state a cause of action.
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TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS.i STATEMENT REGARDING ORAL ARGUMENT...ii TABLE OF CONTENTS.....iii TABLE OF CITATIONS.. ..vi STATEMENT OF JURISDICTION.1 STATEMENT OF THE ISSUE....2 STATEMENT OF THE CASE.4 i) ii) Course of Proceedings and Disposition Below.5 Statement of the Facts...7 a. Strong Engaged in Protected Activity..8 b. Appellee was on Notice of the Protected Activity...9 c. Appellee Retaliated Because of Strongs Actions.........11 iii) Standard of Review.12
SUMMARY OF ARGUMENT...14 ARGUMENT. .19 I. SECTION 3730(h)s HISTORY AND ELEMENTS. .19
A. The history and purpose of the Act mandates that uncertainties be resolved in favor of the employee seeking the Acts protections 19 i. The case of the paranoid employer..22
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B. The most relevant cases from the Eleventh Circuit and elsewhere25 i. United States ex rel. Sanchez v. Lymphatx 26 ii. Childree v. UAP/GA Ag Chem, Inc. .. 27 iii. United States ex rel. Yesudian v. Howard University. 28 C. The elements of a section 3730(h) claim. .29 II. STRONGS ACTIONS.. . . . .30
A. MedVance submitted false claims within the meaning of the Act30 B. MedVance knew about Strongs investigation and objections. .40 III. STRONG SUFFERED AN ADVERSE EMPLOYMENT ACTION WHEN HE WAS TERMINATED . 47 IV. STRONGS TERMINATION AND HIS PROTECTED ACTIVITY ARE NOT WHOLLY UNRELATED BECAUSE HIS TERMINATION OCCURRED JUST DAYS AFTER HE ENGAGED IN PROTECTED ACTIVITY AND BECAUSE OF THE ODD CIRCUMSTANCES OF HIS TERMINATION MIDSEMESTER DESPITE EXCELLENT PERFORMANCE REVIEWS. 48
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CONCLUSION...50 CERTIFICATE OF COMPLIANCE..51 CERTIFICATE OF SERVICE51
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TABLE OF CITATIONS CASES Akins v. Fulton County, Ga., 420 F.3d 1293 (11th Cir. 2005) ......................... 47, 48 Bechtel Constr. Co. v. Secy of Labor, 50 F.3d 926 (11th Cir. 1995).....................24 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ...........................................13 Bell v. Dean, 2010 WL 1856086 (M.D. Ala. 2010) ...............................................35 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 54 (2006) ...........................48 *Childree v. UAP/GA Ag Chem, Inc., 92 F.3d 1140 (11th Cir. 1996) ................................................... 25, 27, 36, 41, 42 Edwards v. Prime, Inc., 602 F.3d 1276 (11th Cir. 2010) .......................................12 Graham Co. Soil & Water Cons. Dist. v. United States ex rel. Wilson, 545 U.S. 409 (2005) ....................................................................................32, 33 Gupta v. Fla. Bd. of Regents, 212 F.3d 571 (11th Cir. 2000).................................48 Higdon v. Jackson, 393 F.3d 1211 (11th Cir. 2004) ..............................................48 Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997) ................................................41 Laborde v. Rivera-Dueno, 719 F. Supp. 2d 198 (D.P.R. 2010) .............................24 Mack v. Augusta-Richmond County, Ga., 365 F. Supp. 2d 1362 (S.D. Ga. 2005) ...............................................................23 Mann v. Heckler & Koch Defense, Inc., 630 F.3d 338 (4th Cir. 2010) ..................27 Mann v. Olsten Certified Healthcare Corp, 49 F. Supp. 2d 1307 (M.D. Ala. 1999)................................................... 41, 42, 43
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Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 (2011) .............................12 Neal v. Honeywell, Inc., 33 F.3d 860 (7th Cir. 1994) ............................................45 Neitzke v. Williams, 490 U.S. 319 (1989) ..............................................................12 Onnen v. Sioux Falls Ind. School Dist. #49-5, 2009 WL 4891704 (D.S.D. 2009) ......................................................................39 Ramseyer v. Century Healthcare Corp., 90 F.3d 1514 (10th Cir. 1996) ................41 Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308 (11th Cir. 2008) ..............12 Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993) 25 Skinner v. Switzer, 131 S. Ct. 1289 (2011). 13 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ................................... 12, 13, 20 Thompson v. North American Stainless, L.P., 131 S. Ct. 863 (2011).. 23, 24 United States v. Bornstein, 423 U.S. 303 (1976) ...................................................39 United States v. Chapman Univ., 2006 WL 1562231 (C.D. Cal. 2006) .................38 United States v. Eghbal, 475 F. Supp. 2d 1008 (C.D. Cal 2007) ...........................39 United States v. Entin, 750 F. Supp. 512 (S.D. Fla. 1990).. ..... .37 United States v. Neifert-White Co., 390 U.S. 228 (1968).......................................32 United States v. R & F Props. of Lake County, Inc., 433 F.3d 1349 (11th Cir. 2005) .........................................................................35 United States v. Wehling, 676 F.2d 1053 (5th Cir. 1982) ................................ 38, 39 United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166 (9th Cir. 2006) ...........................................................................40
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United States ex rel. Howard v. Lockheed Martin Corp., 499 F. Supp. 2d 972 (S.D. Ohio 2007)...............................................................23 United States ex rel. Irwin v. Significant Education, Inc., 2009 WL 322875 (D. Ariz. 2009) ......................................................................38 *United States ex rel. Main v. Oakland City Univ., 426 F.3d 914 (7th Cir. 2005) ..................................................... 30, 31, 36, 37, 39 *United States ex rel. Sanchez v. Lymphatx, Inc., 596 F. 3d 1300 (11th Cir. 2010) ...................................................... 23, 26, 31, 41 United States ex rel. Vargas v. Lackmann Food Service, Inc., 510 F. Supp. 2d 957 (M.D. Fla. 2007) 23, 27, 37, 41, 44 *United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731 (D.C. Cir. 1998) .......... 24, 26, 28, 36, 38, 41, 42, 43, 44, 46, 48, 49 STATUTES AND OTHER AUTHORITIES 20 U.S.C. 1077...................................................................................................34 20 U.S.C. 1091...................................................................................................34 20 U.S.C. 1094...................................................................................................34 28 U.S.C. 1291.................................................................................................... 1 31 U.S.C. 3730............................................................................................passim 34 C.F.R. 600 .....................................................................................................34 34 C.F.R. 668 ...............................................................................................10, 34 34 C.F.R. 685 .....................................................................................................34 Fed. R. Civ. P. 8..............................................................................................12, 33
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Fed. R. Civ. P. 12 ................................................................................ 12, 13, 20, 26 S. Rep. No. 110-507, 2008 WL 4415147 (Sept. 25, 2008) ........................ 19, 32, 42 H.R. Rep. No. 111-97, 2009 WL 1227831 (May 5, 2009) ............................... 20, 32 Claire M. Sylvia, The False Claims Act: Fraud Against the Government, 5:17 (Thompson West 2004) ..........................................................................21
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STATEMENT OF JURISDICTION This Court has jurisdiction over this appeal pursuant to 28 U.S.C. 1291 because Brett Strong, Appellant/Plaintiff, appeals a final order granting KIMC Investments, Inc.s (KIMC), Appellee/Defendant, Motion to Dismiss the Second Amended Complaint entered by the Honorable William P. Dimitrouleas of the United States District Court for the Southern District of Florida. [D.E. 51].
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STATEMENT OF THE ISSUE In recent years the private, for-profit college industry has been under intense scrutiny by Congress and the media for lying to potential students about postgraduation employability and for providing substandard education to poor and minority students who rely almost exclusively on federally insured student loans to pay tuition. Student default rates are artificially high because of the fraudulent business practices of the schools. The American taxpayers then bail out the private lenders, thereby creating a moral hazard and a claim on the government. The Appellee here was specifically cited by the General Accounting Office for encouraging fraudulent practices and for deceptive or otherwise questionable statements. The Appellant, Brett Strong, was an instructor, Associate Director of Education and ultimately acting Director of Education. Midway through the semester in August 2009, and despite having excellent performance reviews, Strongs supervisor terminated him because he did things that the higher ups are not happy about and Strong was told that some things you did upset upper management. In the days leading up to his termination, he was reprimanded for dropping ten students who he believed had to be dropped for not meeting the schools policies and federal law. He was also ordered to reinstate an inactive student, but he told his supervisor he would not do so. He also discovered that students had written letters to the school indicating that classes were riot scenes,
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that they were being set up to fail and that they were forced to retake the same courses multiple times, thereby incurring even more federally insured student loan debt. Other similar objections were made throughout Strongs short, five-month tenure with the Appellee. The question presented is, under the facts stated above, did Brett Strong state a cause of action under the False Claims Acts broadened anti-retaliation provision, 31 U.S.C. 3730(h) (2009)?
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STATEMENT OF THE CASE Appellant/Plaintiff Brett Strong worked first as an instructor and then as Associate Director of Education at MedVance Institute, the fictitious name for Appellee KIMC Investments, Inc., between March and August 2009. [D.E. 36, 3, 10, 17].1 Strong had previously worked as a professor at nearby Palm Beach Community College. [D.E. 36, 11]. Given this background, Strong expected an environment that stressed education over profits at his new job. [D.E. 36, 11]. Instead, he investigated, made internal reports about and objected to MedVances practices of enrolling as many students as possible no matter their qualifications or interests, manipulating graduation date data in order to retain students and maximize profits, graduating students despite their failures to complete MedVances own graduation requirements, and refusing to drop students with excessive absences in violation of federal law governing student loan eligibility. [D.E. 36, 9-17]. By enrolling these students, and by not dropping students who failed to meet minimum requirements, MedVance committed a fraud on the government. [D.E. 36, 1]. MedVance also assisted and encouraged its students to submit applications for federally insured student loans, despite the fact that it
The Second Amended Complaints paragraphs are erroneously numbered. Paragraphs nine through twelve are followed by another set of paragraphs numbered nine through twelve. The second set of paragraphs numbered nine through twelve will be cited herein as 9[2], 10[2], 11[2] and 12[2].
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knew that it violated laws and regulations that must be followed by educational institutions that take part in Title IV student loan programs. [D.E. 36, 22]. During a two-week stint in August 2009 as acting Director of Education while his supervisor Louise Nicholson was on vacation, Strong dropped ten ineligible students and refused to reactivate an inactive student over the protests of Campus Director Brenda Green. [D.E. 36, 12[2]-14]. When Nicholson returned from vacation, she told Strong that he did things that the higher ups are not happy about, and upset upper management. [D.E. 36, 16]. Following Strongs investigation, complaints and refusal to take part in MedVances practice of retaining and refusing to drop ineligible students in order to maximize loan repayments, he was demoted and stripped of his teaching duties on August 24, 2009. [D.E. 36, 16]. On August 28, 2009, Strong was terminated without explanation. [D.E. 36, 17]. Strong was performing well and was terminated for doing things that upper management did not like. [D.E. 36, 22-23]. He knew, and was outspoken, that MedVances student retention practices were unethical and conflicted with his understanding of what higher education could and should be. [D.E. 36, 11, 13-17]. Strong was investigating and complaining about fraud and submission of false claims to the government, and was terminated for it. [D.E. 36, 1].
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The district court granted KIMCs Motion to Dismiss the Second Amended Complaint on February 9, 2011. [D.E. 51]. It reasoned that Strong failed to allege any activity by KIMC of making claims, false or not, to the federal government for funds. [D.E. 51 at 5]. It also reasoned that Strong failed to allege that KIMC retaliated against Strong for acts in furtherance of False Claims Act litigation in part because he did not allege that he complain[ed] to KIMC of making fraudulent claims to the government. [D.E. 51 at 6]. i) Course of Proceedings and Disposition Below
Brett Strong, as Relator to the United States, filed a five-count False Claims Act Complaint under seal on November 2, 2009. [D.E. 2]. The United States declined to intervene and the case was unsealed on May 20, 2010. [D.E. 11]. Strong filed an Amended Complaint on May 23, 2010. [D.E. 13]. The Amended Complaint was limited to a single count for retaliation pursuant to 31 U.S.C. 3730(h) (2009). [D.E. 13]. On June 10, 2010, the district court issued an Order on United States Notice of Consent to Plaintiffs Dismissal of False Claims Act Counts. [D.E. 18]. Defendant KIMC filed a Motion to Dismiss the Amended Complaint on July 19, 2010. [D.E. 21]. Strong filed a response on July 30, 2010. [D.E. 22]. KIMC filed its reply on August 9, 2010. [D.E. 26]. The district court heard oral argument
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on September 2, 2010. [D.E. 60]. The district court dismissed the Amended Complaint without prejudice on September 10, 2010. [D.E. 34]. Strong filed a Second Amended Complaint on September 28, 2010. [D.E. 36]. KIMC filed a Motion to Dismiss the Second Amended Complaint on October 14, 2010. [D.E. 38]. Strong responded to KIMCs Motion to Dismiss the Second Amended Complaint on November 1, 2010. [D.E. 41]. KIMC filed its reply on November 8, 2010. [D.E. 45]. The district court granted KIMCs Motion to Dismiss the Second Amended Complaint with prejudice on February 9, 2011. [D.E. 51]. Strong timely filed his Notice of Appeal on March 8, 2011. [D.E. 52]. It was docketed by this Court on March 14, 2011. ii) Statement of the Facts
MedVance is a private, for-profit postsecondary school that makes money by assisting and encouraging its students to take out federally insured student loans. [D.E. 36, 1, 7, 22]. MedVance recruits these students by making
misrepresentations concerning the quality and cost of education, and postgraduation employability. [D.E. 36, 7]. By failing to drop students with
excessive absences, and graduating students who fail to meet its minimum requirements, MedVance maximizes profits by remaining a beneficiary of loan payments, and in so doing, commits a fraud on the government. [D.E. 36, 1].
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The net effect of this fraudulent business practice is that the federal government loses money that it otherwise would not. [D.E. 36, 22]. a. Strong Engaged in Protected Activity
Strong began working at MedVances Palm Springs campus in March 2009 after serving as a professor at Palm Beach Community College. [D.E. 36, 2, 1011]. Given his employment background in a setting that stressed education over profits, MedVances policies clashed with Strongs understanding of what higher education should be. [D.E. 36, 11]. During his short tenure at MedVance, he served as an instructor and then on May 11, 2009, was promoted to Associate Director of Education. [D.E. 36, 10, 12]. After this promotion, Strongs curiosity was tweaked in June 2009 when he received an email with the subject line, grads with 0 attendance which concerned MedVance students who graduated even though they did not complete externships, a minimum requirement of graduation. [D.E. 36, 9[2]]. He also discovered that MedVance manipulated graduation dates in the registrars software to facilitate this practice. [D.E. 36, 10[2]]. Strong confronted his supervisor, Director of
Education Louise Nicholson about his concerns relating to intentionally altering and forward-dating graduation dates, the failing externship program and grads with 0 attendance. [D.E. 36, 10[2]]. She tersely responded that these issues were none of your business. [D.E. 36, 10[2]].
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When Nicholson went on vacation for two weeks in August 2009, Strong replaced her in the interim. [D.E. 36, 12[2]]. During this period, Strong dropped ten students who became ineligible to remain students pursuant to MedVance internal policy and federal law. [D.E. 36, 12[2]]. Also during this two week period, Campus Director Brenda Green told Strong to reactivate an inactive student and Strong refused to do so. [D.E. 36, 14]. Strong also learned that students complained about MedVances practice of forcing students to re-take classes several times, which caused them to incur additional student loan debt and feel that they were being set up to fail. [D.E. 36, 15]. When Nicholson returned from vacation, Strong was relieved of his teaching duties and terminated without explanation two weeks later. [D.E. 36, 16-17]. b. Appellee was on Notice of the Protected Activity While Strong was employed at MedVance in 2009, it was under investigation by federal authorities for engaging in deceptive business practices. [D.E. 36, 8]. Specifically, the General Accounting Office (now the Government Accountability Office) cited MedVance for deceptive recruitment practices, and encouraging students to load up on federal-backed student loans that they would likely be unable to repay in the future and that caused a loss to the government because it insured the loans. [D.E. 36, 8]. MedVance was aware that its
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practices were questionable and was on edge that one of its employees was cooperating with this government investigation. [D.E. 36, 9, 21].2 Strong said and did several things that made MedVance suspect that he was cooperating, or would eventually cooperate in the investigation. [D.E. 36, 21]. He confronted his supervisor, Director of Education Louise Nicholson concerning grads with 0 attendance and the manipulation of graduation dates. [D.E. 36, 10[2]]. Nicholson told Strong that it would be addressed and that it is none of your business. [D.E. 36, 10[2]]. Their relationship turned cold as a result. [D.E. 36, 10[2]]. Soon after, MedVances National Director of Education
Adrienne Predko questioned Strong at length about the actions he has taken to prevent students from dropping out. [D.E. 36, 11[2]]. While serving as acting Director of Education, Strong corresponded with Campus Director Brenda Green, who reprimanded him due to the unacceptable amount of drops. [D.E. 36, 13]. This was done even though Strong dropped about ten students who violated internal policy and federal law concerning attendance and student loan eligibility. [D.E. 36, 12[2]]. Green then instructed Strong to reactivate an inactive student, and Strong refused. [D.E. 36, 14]. When Nicholson returned from vacation on
In response to the GAO report and Senate hearings, the Department of Education published final regulations on July 13, 2011 that significantly overhaul the way private, for-profit colleges qualify for federally insured student loans. These regulations, commonly known as the Gainful Employment Rules, take effect July 1, 2012. See 34 C.F.R. 668 (2011).
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August 24, 2009, she confronted Strong and told him that he did things that the higher ups are not happy about and that he upset upper management. [D.E. 36, 16]. c. Appellee Retaliated Because of Strongs Actions Strong was demoted, and ultimately terminated because MedVance reasonably believed that Strongs actions would lead to a government investigation or a qui tam lawsuit. [D.E. 36, 1, 19, 22, 23]. As soon as his supervisor, Director of Education Louise Nicholson, returned from vacation on August 24, 2009, she told Strong that he did things that the higher ups are not happy about and that some things you did upset upper management. [D.E. 36, 16]. He was then demoted by being stripped of his teaching duties mid-semester and reduced to administrative work. [D.E. 36, 16]. Just four days later on August 28, 2009, Strong was terminated without explanation. [D.E. 36, 17]. Strong had been given positive performance reviews, and the timing of the termination, right after his supervisor returned from vacation and found that he dropped several ineligible students, is telling. [D.E. 36, 17]. Strong was terminated mid-semester because he did things upper management disliked, specifically, performing an investigation and making internal complaints concerning unethical and fraudulent student retention practices. [D.E. 36, 22-23].
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iii)
Standard of Review
An order granting a motion to dismiss pursuant to Rule 12(b)(6) is reviewed by this Court de novo. See Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). All factual allegations in the complaint are accepted as true, and construed in a light favorable to plaintiff. Id. (citing Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309 (11th Cir. 2008)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (What 12(b)(6) does not countenance are dismissals based on a judges disbelief of a complaints factual allegations.). Rather than looking at any one specific allegation, the complaints allegations must be viewed as a whole and must be placed in the appropriate context. See Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 (2011) (reversing Rule 12(b)(6) dismissal). In the employment context, a plaintiff need not allege a prima facie case of discrimination in order to satisfy Rule 8s pleading requirements. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-512 (2002) (reversing Rule 12(b)(6) dismissal). In Swierkiewicz, Justice Thomas, writing for a unanimous Court, expressly rejected the Second Circuits requirement that a plaintiff in an employment case must plead a prima facie case of discrimination in order to survive a Rule 12(b)(6) motion. Id. at 511-14 (noting that requiring pleading a
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prima facie case would be an improper heightened pleading standard). 3
The
question is whether the complaint is sufficient to cross the federal courts threshold, which is only a plausible short and plain statement of the plaintiffs claim, not an exposition of his legal argument. Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011) (citing Swierkiewicz and reversing Rule 12(b)(6) dismissal). For our purposes, the question is, taking the allegations as true, is it plausible that Brett Strong, who was fired midway through the semester despite having excellent performance reviews, was fired because MedVance feared that he had or was going to uncover fraud, feared that he had or was going to report fraud to the government, feared that he had or was going to cooperate with a government investigation, or was going to initiate his own qui tam action?
The Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) expressly rejected the argument that Iqbal/Twombly overrules Swierkiewicz, and thus Swierkiewicz remains the correct standard.
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SUMMARY OF ARGUMENT Brett Strongs termination from MedVance on August 28, 2009 was not wholly unrelated to his vocal, written concerns regarding the companys policy of enrolling unqualified students, encouraging students to lie on student loan applications, graduating students with zero attendance, altering graduation dates to fraudulently keep students enrolled, and of keeping students enrolled even when they clearly failed to meet the standards for continued enrollment. Strong was a long-time professor at Palm Beach Community College by the time he joined MedVance in March 2009 as an instructor. Upon his arrival, he noticed that the company was driven by profits, not education. He noticed that recruiters were rewarded with lucrative bonuses and fringe benefits. In May 2009 he was
promoted to Associate Director of Education. Immediately after his promotion, he started questioning MedVances policies when he received an email identifying MedVance graduates who had failed to meet the schools actual graduation requirements. Students were receiving federally insured financial aid for courses and externships that never existed. He investigated this and learned that
MedVance alters students graduation dates to a date in the future in an effort to keep students enrolled. (Federal student aid is premised, in part, on maintaining certain graduation rates). When Strong confronted his supervisor, the Director of Education, about these issues, he was told it was none of your business. Strong
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responded by telling her that he was uncomfortable manipulating graduation rates. In July 2009 he attended a meeting with MedVances National Director of Education where he was questioned about his efforts to prevent students from withdrawing. The National Director was so concerned about maintaining
enrollment levels that she coined the phrase Stop the Drops as a major them. It was clear that the Stop the Drops theme was not about reaching out to students about the value of education, but was rather merely about maintaining certain enrollment numbers. Strong then learned that administrators were financially
rewarded for the ability to keep students enrolled. Strongs gathering of information and general objections to MedVances practices began in May 2009 and came to a head between August 10 and 24, 2009, when he was acting Director of Education. Strong dropped 10 students whose excessive absenteeism violated both MedVance policy and federal law governing student loan eligibility. Campus Director Brenda Green reprimanded him by email for an unacceptable number of drops. She told him withdrawl [sic] . . . is not an option, find another way. On August 11, 2009 Green ordered Strong to
reactivate a student whose status was inactive. Strong refused. On August 19, 2009 Strong discovered that at least two students had written a letter to MedVance corporate because classes were so out of control it [was] nothing short of a riot scene. The students also referenced MedVances unfair practices, which forced
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students to re-take courses two or three times, each time incurring more student debt. On August 24, 2009, Strongs supervisor returned from her two week vacation. She met with him to discuss events which took place in her absence and told Strong that he did things that the higher ups are not happy about and some things you did upset upper management. No further explanation was given and he was immediately stripped of his teaching duties even through it was midway through the semester. Four days later he was fired without any further explanation. MedVances business model is inherently flawed because it takes advantage of a moral hazard, and is thus ripe for fraud. MedVance signs up as many students as possible qualified or not and keeps students enrolled even after they fail to meet their academic and graduation requirements. Virtually all of these students, mostly poor, minority students looking to a MedVance education as a means for upward social and economic mobility, pay their tuition by taking out nondischargeable student loans. These student loans originate with private lenders but are federally insured. If the student defaults, the private lender is compensated by the American taxpayers, hence the moral hazard. This is a government claim within the meaning of the False Claims Act, and this is exactly how MedVance makes money.
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At the time Brett Strong started with MedVance, MedVance, along with the entire private, for-profit college industry, was under intense government and media scrutiny. The General Accounting Office singled out MedVance for encouraging fraudulent practices and for deceptive or otherwise questionable statements. Strongs background was education, not business. He left a non-profit community college and took a better paying job at a private, for-profit trade school. But his tenure was short and it was clear that he was asking the wrong questions and refusing to go along with his supervisors orders. The timing and odd circumstances of Strongs termination create a strong inference that his refusal to play along with the MedVance way of doing business motivated MedVances decision to terminate. He started asking questions in May 2009 upon being promoted to administration; he was terminated three months later in August 2009 midway through the MedVance semester immediately after he spent two weeks as acting Director of Education. Despite having excellent performance reviews, no explanation for his termination was provided to him, except his supervisor told him he did things that the higher ups are not happy about and some things you did upset upper management. Given the allegations in the complaint, which are accepted as true given the procedural posture of the case, Strongs supervisors comments to him at the time of his termination indicate that his termination was not wholly unrelated to his questioning of MedVances
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fraudulent student enrollment and retention practices and his refusal to follow orders that he believed were both unethical and illegal.
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ARGUMENT I. Section 3730(h)s history and elements A. The history and purpose of the Act mandates that uncertainties be resolved in favor of the employee seeking the Acts protections
Under the applicable version of section 3730(h), [a]ny employee . . . shall be entitled to all relief necessary to make that employee . . . whole, if that employee . . . is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee . . . in furtherance of other efforts to stop 1 or more violations of this subchapter. 31 U.S.C. 3730(h)(1) (2009). 4 The prior version of section 3730(h) protected employees who took lawful acts 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. 31 U.S.C. 3730(h) (2006). Importantly, the 2009 Amendment to section 3730(h) was enacted, inter alia, to broaden the reach of the anti-retaliation provision of the Act and to reject numerous court decisions that prematurely dismissed FCA claims. See S. Rep. No. 110-507, 2008 WL 4415147, *7 (Sept. 25, 2008) (noting the bill strengthens antiretaliation protections for qui tam whistleblowers).
4
Congress correctly
The statute is, unfortunately, awkwardly worded. It is clear that the 2009 version was designed to go beyond that which was originally covered in the 2006 version.
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recognized that cases were being dismissed because the court wanted allegations far beyond the information readily available at the pleading stage to many qui tam relators with meritorious allegations. 1227831, *8 (May 5, 2009). More so than any other area of law, employment claims are filed with highly asymmetrical information. Terminated employees know very little, except that they have been terminated. Terminating employers know everything, including the true motivations behind the termination. It is this grossly asymmetrical See H.R. Rep. No. 111-97, 2009 WL
information that led to the Courts unanimous opinion in Swierkiewicz. Before discovery has unearthed relevant facts and evidence, it may be difficult to define the precise information of the required prima facie case in a particular case. Given that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases. 534 U.S. at 512. Here, the Appellees Motion to Dismiss the Second Amended Complaint was premised on Strongs inability to state a prima facie case. [D.E. 38]. But
Swierkiewicz makes clear that a Rule 12(b)(6) motion for failure to state a cause of action cannot be premised on a plaintiffs failure to plead a prima facie case the former is a pleading standard while the latter is an evidentiary standard. Even within the employment law arena, plaintiffs suing under section 3730(h) are at a particular disadvantage at the pleadings stage because the
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employer is engaged in fraud. Unlike sexual harassment or racial discrimination, which can be easily viewed and overheard by employees, companies engaged in fraud do so behind the scenes and with the intent of avoiding detection this is the nature of fraud. It is also why courts should be especially cautious when It is
dismissing claims under the False Claims Act at the pleadings stage.
unreasonable to fault an employee for not knowing details prior to discovery when the employer is actively concealing those details. The leading treatise on the Act explains the dilemma facing employees who are in the earliest stages of discovering a fraudulent claim: Whether an employees refusal to participate in allegedly unlawful activity constitutes protected activity presents a complicated question. Without more, a simple refusal to go along with a fraudulent scheme may not be an act in furtherance of any action under the False Claims Act. Such a refusal may simply reflect a moral statement by an employee who has no intention of reporting the matter. However, in some cases such a refusal may be the first step in recognizing a problem and taking action. From the employers perspective, concern about the latter scenario may be precisely the reason to terminate an employee who refused to participate in a fraudulent scheme. A refusal to participate in activity because of concerns about its legality is a fairly clear signal to the employer that a particular employee is aware of a problem and may not remain quiet about it. Claire M. Sylvia, The False Claims Act: Fraud Against the Government, 5:17 (Thompson West 2004). Here, Strongs investigation had progressed to the point where upper management took notice. Despite having excellent qualifications, work history, and performance reviews, he was expressly told by his supervisor he
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did things that the higher ups are not happy about and some things you did upset upper management. [D.E. 36, 16]. Who are these mysterious higher ups? What are these things he did that upset upper management? i. The case of the paranoid employer
Finally, any analysis of section 3730(h) would be incomplete without considering the hypothetical case of the paranoid employer. Suppose a public contractor that was overbilling the government hired a new employee in its invoicing department in month one. The new employee had a commendable work history, a strong belief in corporate and business ethics, and considered Mr. Smith Goes to Washington his all-time favorite movie. After a few months, one of the managers of the public contractor wrote an email to another manager of the public contractor expressing concern that the new employee was a Mr. Goody twoshoes who was bound to start asking questions. The managers decided to
terminate Mr. Goody two-shoes immediately to prevent him getting to the point where he would start asking questions. In fact, Mr. Goody two-shoes was
completely clueless about any illegal billing and never suspected anything at all. He did nothing and he knew nothing, yet he was fired by the government contractor because it suspected that he would eventually do or uncover something. Did the termination by the paranoid employer run afoul of section 3730(h)?
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For section 3730(h) to have any meaning, the answer has to be yes. [T]he employer could have feared being reported to the government for fraud or sued in a qui tam action by the employee . . . . See United States ex rel. Sanchez v. Lymphatx, Inc., 596 F. 3d 1300, 1304 (11th Cir. 2010). In fact, under this
hypothetical, the employer expressly feared being reported to the government or being sued by the employee, even though the employers fears were groundless. What the employee did or did not do becomes less important than the motivations behind what the employer did. See United States ex rel. Vargas v. Lackmann Food Service, Inc., 510 F. Supp. 2d 957, 967 (M.D. Fla. 2007) (Courts should focus on determining the employers motivation for the allegedly retaliatory action.) (citing Mack v. Augusta-Richmond County, Ga., 365 F. Supp. 2d 1362, 1379 (S.D. Ga. 2005), affd 148 F. Appx 894 (11th Cir. 2005); United States ex rel. Howard v. Lockheed Martin Corp., 499 F. Supp. 2d 972, 983 (S.D. Ohio 2007) (denying motion to dismiss and noting that an employee must supply sufficient facts from which a reasonable jury could conclude that the employee was discharged because of activities which gave the employer reason to believe that the employee was contemplating a qui tam action against it) (emphasis added). For example, in Thompson v. North American Stainless, L.P., 131 S. Ct. 863, 867-68 (2011), the Court concluded that an employee who engaged in no protected activity, i.e., he did nothing, could nevertheless sue for retaliation
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because the employer fired the employee to retaliate against a different employee. The two employees in Thompson were engaged, but the plaintiffs fiance, not the plaintiff himself, engaged in protected activity. Id. at 868. His inaction did not preclude him from seeking relief under Title VIIs anti-retaliation provision because he fell within the zone of interests Title VII seeks to protect. Id. at 870.5 If the answer to the hypothetical case of the paranoid employer is no, then the absurd result would be for employers to either (i) screen out scrupulous potential employees or (ii) prematurely fire employees who might, down the road, discover some information. In Bechtel Constr. Co. v. Secy of Labor, 50 F.3d 926 (11th Cir. 1995) (Carnes, J.), this Court recognized that denying whistleblower protection for internal complaints under the Energy Reorganization Act would encourage preemptive retaliation, thus rendering the anti-retaliation provision meaningless. Id. at 932 (affirming judgment for employee to avoid[ ] the
unwitting consequence of preemptive retaliation, which would allow the

5
It is important to be mindful that section 3730(h) is a corollary provision to the Act it exists solely to promote the underlying substantive goals of the FCA (i.e., preventing and discovering fraud on the government). Most fraud is brought to the attention of the government via employees, thus making a strong antiretaliation provision instrumental to furthering the governments goals. This explains why section 3730(h) has, on several occasions, been broadened to cover as many potential whistleblowers as possible. See United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 741 (D.C. Cir. 1998) (the legislative history indicates that protected activity should be interpreted broadly) (internal quotations omitted); see also Laborde v. Rivera-Dueno, 719 F. Supp. 2d 198, 205 (D.P.R. 2010) (denying motion to dismiss section 3730(h) claim because the phrase in furtherance of other efforts is a broad standard . . . .).
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whistleblowers to be fired or otherwise discriminated against with impunity for internal complaints before they have a chance to bring them before an appropriate agency). The unwitting consequence of preemptive retaliation avoided in
Bechtel should be avoided under section 3730(h) as well. See also Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir. 1993) (Action taken against an individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact . . . we hold that [ ] preemptive retaliation falls within the scope of Title VII). To close out the hypothetical, a Mr. Goody two-shoes who does nothing himself but is fired by a paranoid employer out of fear of a government report or a qui tam action falls within the zone of interests the Act seeks to protect. B. The most relevant cases from the Eleventh Circuit and elsewhere
Due to a rise in fraudulent claims made to the government especially in South Florida the FCA is frequently litigated. The anti-retaliation provision of the Act, section 3730(h), however, is rarely litigated in the circuit courts of appeal. The substance of section 3730(h) has never reached the Supreme Court. The Eleventh Circuit has issued only two published opinions concerning section 3730(h) the first time was in Childree v. UAP/GA Ag Chem, Inc., 92 F.3d 1140, 1146 (11th Cir. 1996) (Carnes, J.), where this Court reversed summary judgment because the terminated employee had evidence that FCA litigation was
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a distinct possibility. The second time was in United States ex rel. Sanchez v. Lymphatx, Inc., 596 F.3d 1300 (11th Cir. 2010), where this Court reversed a Rule 12(b)(6) dismissal for similar reasons. There are a handful of decisions from outside the Eleventh Circuit concerning section 3730(h), but the most relevant is United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731 (D.C. Cir. 1998), where the D.C. Circuit reversed summary judgment. Each of these decisions will be analyzed; notably, each of these decisions also reversed in favor of the terminated employee. i. United States ex rel. Sanchez v. Lymphatx
In Lymphatx, this Court reversed a Rule 12(b)(6) dismissal where the plaintiff complained again and again about the unlawful actions of the Defendants and told them that they were all incurring significant criminal and civil liability. See Lymphatx, 596 F.3d at 1304 (citing the complaint). Even under Iqbal/Twombly, these two bare allegations from the complaint were sufficient to put the employer on notice of at least a distinct possibility of litigation under the False Claims Act at the time of the employees actions. See id. This Court concluded that if an employees actions, as alleged in the
complaint, are sufficient to support a reasonable conclusion that the employer could have feared being reported to the government for fraud or sued in a qui tam
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action by the employee, then the complaint states a claim for retaliatory discharge under section 3730(h). Id. at 1304 (emphasis added). 6 ii. Childree v. UAP/GA Ag Chem, Inc.
In Childree, this Court reversed summary judgment for an employee who was fired one week after testifying about her employers fraudulent billing practices, including the falsification of documents and leases. 92 F.3d at 1146. At the time of the plaintiffs termination, there was at least a distinct possibility of FCA litigation. Id. This distinct possibility existed even though the plaintiff never considered bringing an FCA action, never heard of the FCA, id. at 1143, as was not motivated by it. Id. at 1146. The distinct possibility also existed even through the government never brought or threatened to bring an FCA action against the company. Id. This Court correctly rejected the district courts explanation that the plaintiff never performed any affirmative act to expose any alleged fraud. Id. at 1144.
The Fourth Circuit has further defined the distinct possibility standard as: [P]rotected activity occurs when an employees opposition to fraud takes place in a context where litigation is a distinct possibility, when the conduct reasonably could lead to a viable FCA action, or when litigation is a reasonable possibility. Mann v. Heckler & Koch Defense, Inc., 630 F.3d 338, 344 (4th Cir. 2010) (further noting that [t]hings muddy a bit when determining how to apply the test). In Vargas, Judge Fawsett similarly noted the difficulty in applying the distinct possibility test when the employee does not expressly indicate his intent for file a qui tam action. 510 F. Supp. 2d at 967-68 (denying summary judgment in section 3730(h) retaliation case).
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iii.
United States ex rel. Yesudian v. Howard University
In Yesudian, the D.C. Circuit reinstated a jury verdict for an employee in a section 3730(h) claim and held that the protected conduct element of such a claim does not require the plaintiff to have developed a winning qui tam action before he is retaliated against. 153 F. 3d at 739. Such a holding manifests Congress intent to protect employees while they are collecting information about a possible fraud, before they have put all the pieces of the puzzle together. Id. at 740 (emphasis in original). [I]t is sufficient that a plaintiff be investigating matters that reasonably could lead to a viable False Claims Act case. Childree). Id. (citing
The plaintiff there had evidence that the employer had, inter alia,
falsified time and attendance records . . . . Id. He also knew that 80% of [the employers] money came from the United States Government. Id. The evidence he obtained, combined with his knowledge that 80% of the budget was government funds, made it reasonable to conclude there was a distinct possibility he would find evidence of resubmission of the claims. Id. Importantly, the plaintiff lacked the details of his employers fraudulent practices, but the D.C. Circuit found that unsurprising because that is the kind of information a plaintiff normally cannot acquire until he files a suit and obtains the benefits of court-sanctioned discovery. Id.
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Here, Strong had evidence of falsified records (and a policy of falsifying enrollment records) that affected MedVances ability to qualify for federally insured student loans. Strong was reprimanded for dropping students that he
believed had to be dropped to comply with company policy and federal regulations, and he refused to reinstate an inactive student as required by his supervisor. The last two incidents occurred days before his termination. Strong also knew that virtually 100% of MedVances students paid their tuition through federally insured student loans. These allegations fall squarely within both
Yesudian and Childree, and both Yesudian and Childree had the benefit of discovery and were decided post-trial and at summary judgment, respectfully. C. The elements of a section 3730(h) claim
The Eleventh Circuit has never adopted specific elements necessary to satisfy section 3730(h). But in light of the cases cited above, and the general principles of a retaliatory discharge lawsuit under other employment statutes, it is reasonable to state the three elements as follows: (i) that the plaintiff either (a) did something in furtherance of the Act or (b) the employer believed the plaintiff did or was going to do something in furtherance of the Act, (ii) that the plaintiff suffered an adverse employment action, and (iii) that there is a causal link between
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the protected activity and the adverse employment action. sufficiently alleged each of the elements of the cause of action. 7 II. Strongs actions A.
Here, Strong has
MedVance submitted false claims within the meaning of the Act
The false claim that Strong investigated and reported involved two phases: 1) KIMCs false certification that it could participate in Title IV educational loan programs, and 2) KIMCs practice of, through agency principles, assisting and encouraging other people, i.e., its students, to file false claims in the form of federally insured student loan applications. [D.E. 36, 22]. This is more complex than the run-of-the-mill Medicare fraud or government contractor false claim but is identical to the theory the Seventh Circuit accepted in United States ex rel. Main v. Oakland City Univ., 426 F.3d 914 (7th Cir. 2005) (Easterbrook, J.) (reversing grant of motion to dismiss). There, a former recruiter and Director of Admissions alleged that the schools phase one certification to the federal government that it complied with Higher Education Act regulations was false because the school paid recruiters based on the amount of students enrolled. See id. at 916. Both a statute, 20 U.S.C. 1094, and a regulation, 34 C.F.R. 668.14(b)(22)(i), condition institutional eligibility to participate in federal grant, loan and scholarship
7
This is a particularly unclear area of section 3730(h). Every court has a slightly different explication of the elements, but they are all just a variation on a theme. Some courts treat the notice requirement as a distinct element, but this Court correctly treats the notice requirement as part of causation.
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programs on a commitment to refrain from paying recruiters contingent fees for enrolling students. See id. Like Oakland City University, MedVance, owned by KIMC, must sign program participation agreements that certify compliance with various federal laws and regulations intended to protect students and the government from fraud. In Main, Following this phase one false certification, the school was able to have its students apply for phase two applications for grants, loans, or scholarships with the federal government. See id. The district court granted the motion to dismiss because phase one did not request payment from the Treasury, and phase two did not repeat the [false] assurance that the University abides by the rule against paying contingent fees to recruiters. See id. Reversing, Judge
Easterbrook rightly noted that the False Claims Act requires a causal rather than a temporal connection between fraud and payment and that if the phase one false statement is integral to a causal chain leading to payment, it is irrelevant how the federal bureaucracy has apportioned the statements among layers of paperwork. See id. While the same basic two-phased educational loan fraud is alleged here, the plaintiff in Main had an added hurdle of actually alleging and proving fraud, not necessary in a whistleblower suit. See id. at 917; Lymphatx, 596 F.3d at 1304 (holding that it is enough that the school could have feared being reported to the government for fraud).
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Approval of the false claims theory set forth in Main makes practical sense: there is no reason why a multi-phased more elaborate scheme to defraud the government should be protected, while more simple and direct schemes are exposed. See United States v. Neifert-White Co., 390 U.S. 228, 232 (1968) (noting that the False Claims Act is intended to reach any fraud that results in a loss to the government). Clarification on this point was a driving force behind recent
legislation. See 31 U.S.C. 3730(h) (2009); False Claims Act Correction Act of 2008, Sen. Rep. No. 110-507, 110th Cong. (Sept. 25 2008) (stating that the False Claims Act protects all federal funds including those requested via Government-backed loan programs, and that there are no government programs that are immune from possible fraud); False Claims Act Correction Act of 2009, H.R. Rep. No. 111-97, 111th Cong. (May 5, 2009) (announcing that the intent of the False Claims Act Correction Act was to correct the effect of unduly restrictive judicial opinions by clarifying that Congress intends the law to reach all types of fraud concerning Federal funds, regardless of the form of the transaction). The short and plain statement of the claim in Strongs Second Amended Complaint did not cite all educational laws and regulations that KIMC violated, or explain in detail how the net effect of these violations was financial loss to the government. It did not have to because there is no obligation for Strong to prove that MedVance was actually violating the FCA. See Graham Co. Soil & Water
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Cons. Dist. v. United States ex rel. Wilson, 545 U.S. 409, 416 (2005) (holding that employee was protected even if the employer is ultimately found innocent of actually submitting false claims). The Second Amended Complaint alleges that MedVance commits a fraud on the government by retaining students who failed to meet the schools minimum requirements and federal law concerning minimum attendance requirements while enjoying students federally insured loans. [D.E. 36, 1, 9[2]-12[2], 21-22]. MedVance was aware that these are dubious
practices, and was therefore aware it falsely certified eligibility for federal loan programs, because it manipulated data in the registrars software in order to appear facially legitimate, and retaliated against Strong for resisting the implementation of these practices. [D.E. 36, 10[2], 12[2]-17]. The fraud was exacerbated because MedVance enrolls everyone and anyone by making misrepresentations concerning the quality and cost of education and employability of graduates, and keeps those students enrolled despite their wishes. [D.E. 36, 1, 7]. In the process, during phase two, it assist[s] and encourage[es] other people, i.e., its students, to file false claims via federally insured student loan applications. [D.E. 36, 22]. The short and plain statement should not be a treatise on federal student loan law. Fed. R. Civ. P. 8. These laws and regulations proscribing contingent compensation for recruiters, failure to comply with internal program requirements disclosed to the Department of Education, and failure to drop students with
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excessive absences exist regardless of whether Strong cites them in his pleadings. See, e.g., 20 U.S.C. 1077 & 34 C.F.R. 685.200 (stating federal loan programs are only available to eligible borrowers that comply with these laws and are actually enrolled); 20 U.S.C. 1091 (proscribing retention of ineligible students, requiring repayment of funds when students withdraw, and requiring that participating schools certify that federal funds are actually going towards education to the Secretary of Education); 34 C.F.R. 668.8(d) (stating attendance requirements, by hour, for proprietary school eligibility); 20 U.S.C. 1094(a)(2022) (proscribing compensation to recruiters based on number of students enrolled and requiring refunds for ineligible students); 34 C.F.R. 668.13-22 (describing program participation agreement procedures and requirement that institution actually provide educational services it claims and provide refunds when student withdraws or becomes ineligible to continue); 34 C.F.R. 600.5 (requiring that proprietary schools provide services consistent with their submissions to the Secretary of Education). Strong cannot be outside of the Acts protections just because the way in which MedVance steals taxpayer money is more sophisticated than a Medicare shop sending patients for unnecessary CAT-scans. At the district court, Appellee conceded that Strong alleged some impropriety, but relying exclusively on an unreported district court decision, concluded that the improprieties were mere misuse of funds that fell outside the
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FCAs protections. [D.E. 21 at 4]; [D.E. 38 at 7]; Bell v. Dean, 2010 WL 1856086, *4 (M.D. Ala. 2010). 8 In Bell, the former director of Title III programs at a state university alleged that he was retaliated against pursuant to 31 U.S.C. 3730(h) because he complained that the school expressed a desire to use the Title III funds in a manner not authorized by Title III. See id. at *1. Reasoning that misuse was not enough, that court stated that the Complaint does not allege that the original Title III grant application was itself false, but rather that a question subsequently arose as to how to use the funds acquired under it. Id. at *4. Even assuming arguendo that Bell is correct, Strongs complaint does not suffer from a similar defect; it alleges that Strong became aware, and complained of MedVances practice of refusing to drop students who were absent for ten days or more in violation of federal law government student loan eligibility. [D.E. 36, 12[2]]. Strong also alleged that through loan applications, MedVance was not submitting false claims directly, but it was assisting and encouraging other people, i.e., its students, to file false claims. [D.E. 36, 22]. The Second Amended Complaint alleges more than mere misuse. Knowingly violating laws that must
The Appellee argued that Bells conclusion about the misuse of federal funds was dictated by this Courts decision in United States v. R & F Props. of Lake County, Inc., 433 F.3d 1349 (11th Cir. 2005). But R & F does not state that misuse of federal funds is not a violation of the Act, and the word misuse does not appear at all. Bell was probably wrongly decided, was unpublished, is not binding, is not persuasive, and was settled by the parties without an appeal. The Appellees sole reliance on this case is telling.
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be followed to participate in student loan programs, and then assisting students apply for loans violates the False Claims Act. And all Strong must allege is that there was a distinct possibility of a future false claim action as a result of his investigation and objections. See Childree, 92 F.3d at 1146; Yesudian, 153 F.3d at 740 (collecting cases to support that it is sufficient that a plaintiff be investigating matters that reasonably could lead to a viable False Claims Act case). As in Main, the distinct possibility arose from Strongs protected conduct in connection with phase one false certification to the government, and phase two promissory fraud. See Main, 426 F.3d at 916. As an educational institution that avails itself of Title IV federal student loan programs, MedVance may not falsely certify its compliance with educational regulations in order to eventually obtain funds from the government. But Strongs objections to changing graduation dates, keeping students enrolled, and changing grades to artificially inflate enrollment and graduation rates implicates MedVances ability to maintain Title IV certification. [D.E. 36, 13-17]. The false certification theory is well recognized in cases under the purview of this Court. In a case involving a food concession that served NASA employees bad fish outside of Kennedy Space Center, because it had a contract with the government to comply with FDA regulations and the government did not get the full benefit of the contract, an employees false claims act and
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whistleblower claims survived summary judgment.
See United States ex rel.
Vargas v. Lackmann Food Service, Inc., 510 F. Supp. 2d 957, 963 (M.D. Fla. 2007) (collecting binding false certification cases and reasoning that Defendants denied the Government the full value of the contract by serving contaminated food and by falsely certifying that the food was healthy . . . [this was] sufficient to demonstrate Defendants alleged actions of making a false claim for payment on the Government.). The United States prevailed in an action where a bank and its agents took advantage of the federal Small Business Administration loan program by submitting a false application indicating that it held $500,000 in private capital. See United States v. Entin, 750 F. Supp. 512 (S.D. Fla. 1990). The false certification theory is also recognized in educational fraud cases from other circuits. See, e.g., Main, 426 F.3d at 914 (reversing grant of motion to dismiss where university falsely certified that it complied with student loan laws prohibiting payment of contingent payments to recruiters based on amount of students enrolled). When a school submits reports that it is graduating qualifying individuals in order to secure federal funding, it has submitted a false claim. With facts that parallel these, a conviction was affirmed where defendant operated a proprietary school participating in federal student loan programs that falsified student attendance records and failed to refund tuition money when a student left before the close of a semester. See United States v. Wehling, 676 F.2d 1053,
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1055-56 (5th Cir. 1982). The false certification false claim was also recognized where a relator alleged that a universitys false certification of the number of hours worked by its faculty and false certification that it provides supervised clinical instructions to its . . . students, are material and fundamental conditions of payment of government funds for tuition loan and grants . . . . See United States v. Chapman Univ., 2006 WL 1562231, *2 (C.D. Cal. 2006). Similarly, a former employee at Howard University prevailed on false claim and whistleblower claims where the department engaged in various financial and accounting improprieties even though Howards receipt of funds from the government was conditioned on its annual statement to the Secretary of Education showing the receipts of the institution and from what sources, and its disbursements, and for what objects. See Yesudian, 153 F.3d at 739. An educational institutions motion to dismiss was denied where relator, a former admissions employee, alleged that the school paid recruiters in violation of the Title IV incentive compensation ban for student recruitment. See United States ex rel. Irwin v. Significant Education, Inc., 2009 WL 322875, *2-3 (D. Ariz. 2009) (The issue is not whether the payment was directly transmitted from the government to Defendant, but whether the Defendant made a false statement or record to get the government to pay or approve the claim.). A former registrar prevailed in a contested motion to file an amended complaint where he alleged that the school bilked over $2 million from the
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government based on its false and fraudulent representations that [the school] was graduating qualified individuals who had taken the proper courses, and that qualified teachers were being hired. See Onnen v. Sioux Falls Ind. School Dist. #49-5, 2009 WL 4891704, *1 (D.S.D. 2009). These cases mirror Strongs central allegations concerning MedVances violation of federal educational requirements to fraudulently maximize payments from the government. [D.E. 36, 9[2]-15]. Strong sufficiently alleged how MedVance was submitting false claims to the government. MedVance also assists and encourages its students to load up on federally insured debt after making various misrepresentations to procure enrollment. See United States v. Bornstein, 423 U.S. 303, 309 (1976) (holding that a false claim may be presented through an innocent third party); United States v. Eghbal, 475 F. Supp. 2d 1008, 1014 (C.D. Cal 2007) (The FCA causation requirement is satisfied if the defendant caused a claim to be submitted to the government, even if he or she did not personally submit the claim.). Various courts have recognized that federal student loan applications can themselves be false claims. See Main, 426 F.3d at 916 (reasoning that following its false certification, the institution and its students submit additional [phase two] applications for specific grants, loans or scholarships). The granting of a motion to dismiss was reversed where former enrollment counselors at University of Phoenix sufficiently alleged promissory
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fraud because after the school violated the incentive compensation ban for student recruiting in phase one it then jointly submit[ted] an application to a private lender on behalf of the student, and a guaranty agency makes the eventual claim for payment to the United States only in the event of default. See United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1170-74 (9th Cir. 2006). Strongs promissory fraud allegations are short, plain and explicit: MedVance students . . . were taking out federally insured student loans for the sole benefit of MedVance. MedVance was not submitting false claims directly, but it was
assisting and encouraging other people, i.e., its students, to file false claims. [D.E. 36, 22]. Strong alleged that MedVance violated federal law that must be complied with in order for an institution to take part in federal student loan programs, and then assisted its students in applying for these loans. He properly alleged a viable false claim theory, explaining how MedVance allegedly submits false claims. Therefore, the investigatory and reporting activities Strong engaged were in furtherance of potential false claim litigation and protected. 31 U.S.C. 3730(h). B. MedVance knew about Strongs investigation and objections
The notice-to-employer requirement for whistleblower retaliation under the Act is not burdensome: An employee may put her employer on notice of a possible False Claims Act litigation by making internal reports that alert the
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employer to fraudulent or illegal conduct [if] an employees actions . . . are sufficient to support a reasonable conclusion that the employer could have feared being reported to the government for fraud or sued in a qui tam action by the employee. See Lymphatx, 596 F.2d at 1304 (emphasis added); see also Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir. 1996). A plaintiff must allege that the employer knew that the employee was doing something at the time the employer took the adverse employment action. See Mann v. Olsten
Certified Healthcare Corp, 49 F. Supp. 2d 1307, 1317 (M.D. Ala. 1999) (relying on Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997)). The employer does not have to actually violate the Act and the employee does not even have to allege that it violated the Act for the employer to be on notice and for the employee to be protected as a whistleblower. See Childree, 92 F.3d at 1146. An employee does not have to notice his employer with words to the effect of, youre submitting a false claim to the government. Yesudian, 153 F.3d at 739-40 (noting Congresss intent to protect employees while they are collecting information about a possible fraud, before they have put all the pieces of the puzzle together) (emphasis in original); see also Vargas, 510 F. Supp. 2d at 967 (denying summary judgment because it is reasonable to infer that [employer] contemplated the possibility that [employee/plaintiff] was collecting evidence for a FCA claim or would attempt to assist the Government if it brought a FCA claim). An
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employee does not even need to know that the Act exists in order to engage in protected activity that puts an employer on notice of possible litigation. See
Childree, 92 F.3d at 1145-46 (We recognize that there will be cases, such as this one, in which the employee was apparently unaware of the existence of the False Claim Act in general, and 3730(h) in particular, at the time the employee acted.). A contrary rule would be absurd. It would frustrate the Acts purpose if the federal government could only rely on insiders who were well versed in federal employment and procurement law: Complex economic wrongdoing cannot be detected or deterred effectively without the help of those was are intimately familiar with it. False Claims Act Correction Act of 2008, Sen. Rep. No. 110507, 110th Cong. (Sept. 25 2008) (expressing will to strengthen anti-retaliation protections for qui tam whistleblowers). As indicated above, a contrary rule would also permit a fraudulent yet perceptive employer to terminate an employee before he obtains enough evidence (or legal research) to file a false claim action. [T]he determinative issue simply will be whether the employer could have, based upon a reasonable interpretation of the employees conduct, feared that the employee was contemplating taking legal action under the FCA or reporting fraud to the government. Mann, 49 F. Supp. 2d at 1314 (noting similarity with
Yesudian, 153 F.3d at 741-45). Strong investigated, and was outspoken about MedVances student retention practices, and even refused to comply with a direct
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order from a supervisor to reactivate an ineligible student.
[D.E. 36, 14].
[W]hen an employee informs her employer about the discovery of suspected fraud and the employer takes no action to correct it, the employer has reason to fear that the employee will file a qui tam action or report suspected fraud to the government, unless the employee by words or actions affirmatively indicates otherwise. Mann, 49 F. Supp. 2d at 1315. In Mann, the employer was on notice even though the employees testimony was self-contradictory as to whether she notified the employers legal department. See id. Presumptive notice when an employee
complains and nothing is done to follow up makes sense: it would be unrealistic to expect an employee to accuse a supervisor of committing fraud when the supervisor has the power to demote or terminate her or to influence her advancement in the company. See id; see also Yesudian, 153 F.3d at 743 (noting that the Acts requirement that complaints should be filed in camera and remain under seal is intended to prevent tipping off the employer and to require a plaintiff to advise his employer of his intentions in order to enjoy whistleblower protection would frustrate this congressional concern). By not only reporting, but also refusing to participate in MedVances fraudulent student retention policies, Strong exceeded his burden to sufficiently allege that his employer was on notice. There is also no requirement that the employers awareness of a distinct possibility of qui tam litigation must purely originate from the employee seeking
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protection under the Act. A plaintiff may raise a viable whistleblower retaliation claim without telling his employer that he is contemplating reporting the purported fraud to the government, or other outside parties. See Yesudian, 153 F.3d at 74244. The context Strong added in his Second Amended Complaint buttressed notice allegations. MedVance was aware that the government was closing in, that its practices ranged from questionable to criminally fraudulent, that similarly situated institutions were being sued for submitting false claims, and that one of its employees was likely assisting with the investigation. [D.E. 36, 8, 9, 21]. In Vargas, plaintiffs complaints concerning the service of outdated fish to NASA workers occurred contemporaneously with the employers suspicions that one of its employees were complaining about its fraudulent practices. See Vargas, 510 F. Supp. 2d at 961 (When Lackmann [employer] supervisors found out about the complaints, Plaintiff alleges that they assumed she was the individual who spoke to NASA and began treating her unfavorably at work.). The relator in Vargas could not allege with certainty that her employer actually knew that she was the person complaining, or assisting with the investigation conducted by outside sources on behalf of the government. See id. at 967. Nevertheless, the temporal proximity between Plaintiffs complaints and her layoff provide a basis for inferring the requisite causal connection between Plaintiffs protected conduct and Lackmanns actions. Id. Similarly, Strong voiced complaints and refused to participate in
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MedVances practice of fraudulently keeping its students on the rolls. [D.E. 36, 9[2]-16]. This, combined with a simultaneous GAO investigation, made it so MedVance was on edge and had every reason to suspect that Strong was cooperating or was about to cooperate in some way with the federal government regarding fraudulent business practices, including and especially MedVances policy of maintaining student enrollment for the purpose of maintaining the flow of income from federally backed student loans. [D.E. 36, 9, 21]. Allegations concerning Strongs observations and thoughts support that MedVance was on notice, even if Strong did not communicate all of his thoughts and observations to his employer. See Neal v. Honeywell, Inc., 33 F.3d 860, 865 (7th Cir. 1994) (Easterbrook, J.) ( 3730(h) protects investigation as well as reports of fraud, and an investigation precedes communication.). The
investigatory phase was critical, and protected, and these factual allegations support that when Strong did come forward and confront his supervisors, the complaints were not baseless, exploratory musings that the employer could have reasonably shrugged off. Before ever complaining, Strong witnessed MedVances fraudulent recruiting practices and the grads with 0 attendance email chain, and what he witnessed clashed with his understanding of how educational institutions should operate. [D.E. 36, 7, 11-9[2]]. His subsequent complaints and resistance to also engage in these practices were fueled by observations of real impropriety
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that caused a financial loss to the government.
[D.E. 36, 10[2]-16].
In
Yesudian, the D.C. Circuit analyzed the employees investigation and internal thought process in painstaking detail, noting that because of this investigation, he had a good faith basis for complaining and potentially filing a false claims action. See Yesudian, 153 F.3d at 740. Indeed, the protected conduct itself is simply acts done . . . in furtherance of an action under this section, and even an investigation conducted without contemplation of-or knowledge of the legal possibility of-a False Claims act suit can end up being in furtherance of such an action. See id. at 741 (emphasis added). Strong struck a nerve when he raised his complaints to supervisors. He was terminated because he did things upper
management disliked, dropping ineligible students in compliance with federal law. [D.E. 36, 12[2], 16, 23]. The careful and discreet investigation that Strong undertook before raising serious internal complaints supports the notice prong. Strong pled facts in support of his allegation that MedVance had every reason to suspect that Strong was cooperating or was about to cooperate in some way with the federal government regarding fraudulent business practices. [D.E. 36, 21]. Strong went above and beyond by alleging that he directly confronted his supervisor about his concerns regarding MedVances practice of graduating students who intended to withdraw, who had excessive absences, and who did not fulfill graduation requirements. [D.E. 36, 10[2]-16]. He dropped 10 ineligible
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students despite MedVances disturbing stop the drops and grads with 0 attendance policies. [D.E. 36, 12[2]]. He refused to follow his supervisors instruction to reactivate an inactive student. [D.E. 36, 14]. MedVance was on notice that it was under regulatory scrutiny, was not ignorant of the law (even if that mattered) and knew that it engaged in questionable business practices. [D.E. 36, 9]. When Strong, who was vocal about stopping these practices, spoke up, he was told by a supervisor dismissively that it was none of your business. [D.E. 36, 10[2]]. When he dropped ineligible students, he was told by a supervisor that he did things that the higher ups are not happy about . . . some things you did upset upper management. [D.E. 36, 16]. A few days after being scolded, Strong was stripped of his teaching duties, then terminated. [D.E. 36, 16-17]. Because he was discharged midway through the semester because he did things upper management disliked, it is apparent that MedVance wished to thwart further investigatory and reporting activities, and was therefore on notice of potential false claims litigation. [D.E. 36, 23]. Strong sufficiently alleged that MedVance was on notice of protected activity. III. Strong suffered an adverse employment action when he was terminated Strong has satisfied the second element of the tort because he has alleged that he was terminated. [D.E. 36, 17]. Termination is an adverse employment action. See Akins v. Fulton County, Ga., 420 F.3d 1293, 1300-01 (11th Cir. 2005).
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Four days prior to his termination on August 28, 2009, he was demoted by being relieved as an instructor. [D.E. 36, 16]. This too is an adverse employment action. Id. (noting that a demotion is an adverse employment action). It is
doubtful Appellee will challenge this assertion. IV. Strongs termination and his protected activity are not wholly unrelated because his termination occurred just days after he engaged in protected activity and because of the odd circumstances of his termination mid-semester despite excellent performance reviews Strong has alleged a causal connection between his protected activity and his termination because of the close timing and odd circumstances of his termination. To establish a causal connection, a plaintiff must show that the decision-makers were aware of the protected conduct and that the protected activity and the adverse action were not wholly unrelated. For purposes of a prima facie case, close
temporal proximity may be sufficient to show that the protected activity and the adverse action were not wholly unrelated. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 54, 68 (2006). The causal link element is construed broadly in favor of the employee. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). 9 The D.C. Circuit defined the causation element under section 3730(h) as: the retaliation was motivated, at least in part, by the employees
9
Gupta, like most cases, discusses proving causation as part of a prima facie case at the summary judgment phase. As indicated above, establishing a prima facie case of causation is not required at the pleadings stage.
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engaging in protected activity. Yesudian, 153 F.3d at 736. 10 The motivated at least in part test is substantially equivalent to this Courts wholly unrelated standard. Either way, the facts alleged in the second amended complaint create a reasonable inference of a causal link. Strong was hired by the Appellee in March 2009 as an instructor, and, just two months later in May 2009, was promoted to Associate Director of Education reporting to Louise Nicholson, the Director of Education. [D.E. 36, 10, 12]. He started to become suspicious of the Appellees administrative practices in June 2009, shortly after his promotion into administration. [D.E. 36, 9[2]]. Strong replaced his supervisor, Nicholson, as acting director of education between August 10, 2009 and August 24, 2009 while she was on vacation. [D.E. 36, 12[2]]. Nicholson returned from vacation on August 24, 2009 and met with Strong to discuss events which took place in her absence. [D.E. 36, 16]. Nicholson told Strong that he did things that the higher ups are not happy about. Id. She also explained that some things [he] did upset upper management. Id. That same day, August 24, 2009, Strong was relieved as an instructor. Id. At the time he was removed as an instructor, he had outstanding student evaluations and faculty peer
In Yesudian, about a month after an employees complaints to his employer concerning improprieties in connection with procurement and use of funds acquired from the government, his supervisor told him, If you do this kind of stuff, youre not going to be in this department. See id. at 744. The employee was terminated shortly thereafter. See id. at 734-35; 744.
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reviews. Id. Four days later, on August 28, 2009, Strong was terminated without explanation. [D.E. 36, 17]. Strong was an outstanding instructor when he was abruptly fired in the middle of a semester. He was fired just four days after his supervisor removed him as an instructor because he did unspecified things that upper management did not like. Strongs various complaints about the Appellees policies started in June 2009 when he was promoted to administration and culminated a mere two months later in August 2009 while he was serving as the acting Director of Education. The timing and circumstances of his termination, taken as true, are sufficient for a fact finder to conclude that his termination was not wholly unrelated to his numerous objections to Appellees policies and procedures.
CONCLUSION For the reasons stated above, Strong requests that this Court reverse the district courts Order granting the motion to dismiss in favor of KIMC Investments, Inc., and grant any further relief deemed just and proper.
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Brett Strong V MedVance Institute Initial Brief Eleventh Circuit

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Brett Strong V MedVance Institute Initial Brief Eleventh Circuit

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Case: 11-11102

Date Filed: 07/19/2011

BRETT STRONG, Plaintiff/Appellant, v. KIMC INVESTMENTS, INC., Defendant/Appellee. __________________________________________/

APPELLANTS INITIAL BRIEF

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CONCLUSION...50 CERTIFICATE OF COMPLIANCE..51 CERTIFICATE OF SERVICE51

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prima facie case would be an improper heightened pleading standard). 3

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unwitting consequence of preemptive retaliation, which would allow the

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United States ex rel. Yesudian v. Howard University

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Here, Strong has

MedVance submitted false claims within the meaning of the Act

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whistleblower claims survived summary judgment.

See United States ex rel.

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