United States: Are FCA Retaliation Claims Against Supervisors, Executives Viable?

Last Updated: September 3 2015
Article by Lori Rubin

When the False Claims Act (FCA) retaliation provision was amended in 2009, the amendment was not explicit as to whether plaintiffs could only recover for retaliation claims against companies, or whether plaintiffs also could bring successful retaliation claims against the individuals within the company alleged to have retaliated, such as supervisors or executives. Federal courts are split on whether retaliation claims against individuals survive motions to dismiss, as most recently shown by two August 2015 federal court decisions that disagree on that issue – United States ex rel. Sibley v. A Plus Physicians Billing Service, Inc. (N.D. Ill.) (finding they could not) and Fitzsimmons v. Cardiology Associates of Fredericksburg (E.D. Va.) (finding the issue of individual liability was more appropriate for evaluation at the summary judgment stage).

While the majority of courts reject individual liability under the FCA retaliation provision and hold that the 2009 amendments were not intended to so extend retaliation liability, not all courts are bending to the weight of the law.

2009 Amendments to the FCA

The issue of whether individual liability for retaliation is permitted emerged due to amendments by the Fraud Enforcement and Recovery Act of 2009 (FERA). Prior to those amendments, the retaliation provision of the FCA provided an "employee" could recover from a retaliation claim against his or her "employer" for adverse employment action resulting from certain whistleblowing activities. The 2009 amendments expanded this provision beyond employee-plaintiffs to provide that "any employee, contractor or agent" could recover under the retaliation provision. The amendments deleted the word "employer" and did not expressly specify whether a suit may be brought against an employer, contracted party, or principal of the plaintiff. Because of this deletion and omission, plaintiffs have since attempted to argue that they could recover against their supervisors and other individuals, and that they were not limited to only suing the corporate entities.

United States ex rel. Sibley v. A Plus Physicians Billing Service, Inc. (August 2015)

Most recently, in the case of United States ex rel. Sibley v. A Plus Physicians Billing Service, Inc., No. 13-C-1733, 2015 U.S. Dist. LEXIS 110085 (N.D. Ill. Aug. 20, 2015), an Illinois federal district court dismissed a retaliation claim against the relator's supervisor at A Plus Physician Billing Service and against A Plus's president (who was also an A-Plus co-owner). The relator alleged her supervisor and the company president instructed her to bill for claims that lacked supporting documentation and to alter billing codes to maximize reimbursement. The relator refused, and the company president fired her. The district court granted the supervisor and president's motion to dismiss, finding there could be no individual liability for retaliation claims under the FCA, adding its voice to the growing chorus of cases holding the same.

Like most courts considering whether individual liability is available under the FCA retaliation provision, the Sibley decision cited Aryai v. Forfeiture Support Associates, LLC, 25 F. Supp. 3d 376 (S.D. N.Y. 2012). In Aryai, the court examined the legislative history of the retaliation provision and concluded Congress deleted the word "employer" via the amendment "not to provide for individual liability but as a grammatical necessity of expanding the statute's protections to cover a 'contractor' or 'agent' in addition to an 'employee.'"

The Aryai court reviewed the House Report on the 2009 amendments which explained the amendment was meant to expand coverage to those who were not technically "employees," such as contract workers. The court found the House Report contained no similar statement of intent to expand liability to cover individuals. The court presumed that Congress was aware that, prior to the 2009 amendments, courts uniformly rejected individual retaliation liability under the FCA. The court found it unlikely Congress would have sought to overturn precedent simply by negative implication, and it observed that, if Congress had meant to expand liability to individuals, it could have provided that "any person" is entitled to relief rather than any "employee, contractor, or agent," with Congress's chosen approach implying that retaliation suits could only be brought successfully by employees, contractors, or agents against their respective employers, contracted parties, or principals (and not against individuals).

Aryai has a growing progeny, signaling the weight of the law is that individual liability is not available under the FCA retaliation provision.

Fitzsimmons v. Cardiology Associates Of Fredericksburg (August 2015)

On the other side of the issue is Fitzsimmons v. Cardiology Associates of Fredericksburg, No. 3:15-cv-72, 2015 U.S. Dist. LEXIS 108925 (E.D. Va. Aug. 18, 2015). There, the plaintiff physician alleged he had complained about improper billing practices to various employees, offices, directors, and shareholders of his employer, Cardiology Associates of Fredericksburg. The plaintiff ultimately voluntarily withdrew his hospital privileges, resulting in his termination. According to the plaintiff, the defendants subsequently refused to provide him his appropriate termination pay per his employment agreement, in retaliation for his billing complaints. The court explained that no appellate court had yet considered whether individual liability was available, and concluded that, "[i]n the absence of binding precedent from the Fourth Circuit, given that courts within the Fourth Circuit disagree, and in the absence of a specific statutory analysis offered by either side . . . summary judgment will provide the most appropriate stage to evaluate this argument."

Notable is the court's reference in Fitzsimmons to the "absence of a specific statutory analysis offered by either side." Perhaps the inclusion of that reference was a nod to Aryai and the court's willingness to eventually side with that line of cases if defendants were to offer a compelling statutory analysis. However, given the current split of authority, it is yet to be seen if this purported ambiguity will be resolved conclusively in favor of the current weight of the law and against individual liability, so that individuals would be able to count on defeating FCA retaliation claims against them at the motion to dismiss stage.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions