[00:00:01] Speaker 02:
Case number 18-7158, Sylvia's Secretariat, EDM, Appellant, Howard University.

[00:00:08] Speaker 02:
Ms.

[00:00:08] Speaker 02:
Tremayor for the Appellant, Ms.

[00:00:10] Speaker 04:
Curry for the Appellant.

[00:00:28] Speaker 05:
May it please the court, good morning.

[00:00:30] Speaker 05:
My name is Jamie Shoemaker.

[00:00:32] Speaker 05:
I'm an attorney with the Patent Warnham, Hatton and Diamonstein of Newport News, Virginia.

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I represent Dr. Sylvia Singletary on this appeal.

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I would like to begin by focusing on the statutory standard governing this appeal.

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The retaliation provisions of the False Claims Act were amended very significantly in 2009 and 2010.

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It appears that Congress sat back and watched the case law develop under the furtherance of an action standard.

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The prior standard basically said that an employee had to be retaliated against

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because they acted in furtherance of an action under the False Claims Act.

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And the case law developed in such a way that it restricted the scope of protected activity that was applied in the protection of those seeking to stop fraud.

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And various courts interpreted it differently.

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But Judge McFadden, in this case, states it pretty succinctly at the top of page 6 of his decision, where he says, protected activity requires, quote, investigating matters that reasonably could lead to a viable false claims act case.

[00:01:51] Speaker 05:
Not simply lead to a false claims act case, but to a viable false claims act case.

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That standard is no longer the standard.

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Congress changed the statute as of 2010.

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There were some machinations.

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The 2009 amendment was incomplete.

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They changed again in 2010.

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Now the standard I assert is this.

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An employee is entitled to relief under the anti-retaliation provisions of the False Claims Act when they suffer retaliation because of any effort to stop fraud.

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Any effort.

[00:02:28] Speaker 03:
So they have to stop.

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actual fraud or we have to show that there was actually going to be or ongoing a violation.

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What's the standard?

[00:02:39] Speaker 05:
I talk about that in my brief.

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If they have a reasonable belief

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that what they are doing is stopping fraud.

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They are protected under this statute.

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That comports with the body of law that has developed in virtually all the other retaliation statutes.

[00:02:54] Speaker 00:
So let's talk about that for a second, whether there's a reasonable belief based on the allegations and the complaint that she was stopping fraud.

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And by stopping fraud, it's not just stopping fraud in the air.

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It's stopping the submission of false and fraudulent claims to the government.

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That's what the statute gets at.

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And I know fraud is just used as shorthand,

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It's not like if there was fraud that was entirely unrelated to the submission of a claim to the government, that would be enough.

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It has to be fraud connected to the submission of a claim to the government.

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And then the question becomes, do the allegations in the complaint get to that, the reasonable belief about the submission of a false or fraudulent claim to the government?

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And what you point to, I think understandably, are the allegations in the proposed complaint that speak in terms of her

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concern about Howard being out of compliance with the terms and conditions under which it was receiving grant money.

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And so in my mind, the question becomes, what's the gap between noncompliance with the terms and conditions under which Howard was receiving grant money, on one hand, and on the other hand, the submission of false or fraudulent claims by Howard to the federal government?

[00:04:08] Speaker 05:
Well, Judge, my complaint goes into the types of fraudulent claims, the types of violations of the False Claims Act.

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And among the types of violations of the False Claims Act, there is a specie of violation called an implied false certification and an express false certification.

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These were, Judge, certainly at least implied, but they were, I think, express.

[00:04:31] Speaker 05:
But Judge, I don't think... And where's that complaint?

[00:04:34] Speaker 06:
You don't allege...

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that they made false certifications, you allege that they weren't in compliance with grant conditions?

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Judge, I believe I did allege that there are false certifications in the proposed Second Amendment complaint.

[00:04:53] Speaker 00:
So where is that?

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Because the part that gets closest

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Because to me, this is where the action in the case is.

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Is there a gap between noncompliance with terms and conditions and submission of a false and fraudulent claim?

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And the part that got closest to submission of a false and fraudulent claim I thought was paragraph 43 that speaks in terms of certifications made.

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And that's where I'm, at least that's where I'm focused, and it sounds like.

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Me too.

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And the closest I get from that is the, you know,

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They made representations, they had to make representations to get grants, and the representations were false.

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False is different from fraudulent.

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Judge Katz, I...

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I think it's fairly clear in the body of case law that there's not a, with all respect to the assertion, there's not a talismanic standard here where we have to say fraud.

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And I don't even think there's a standard where she has to contemplate the False Claims Act when she makes an effort to stop fraud.

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That's definitely true.

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She doesn't have to contemplate that.

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So in my complaint, I do say this.

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Howard University made certifications to the National Institutes of Health and other federal agencies that the laboratory animals in question in this matter were being maintained and cared for under certain federally mandated ambient living conditions.

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These certifications were necessary for Howard to receive and retain grant monies that they, in fact, received from the United States and retained throughout the relevant time period.

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These representations and warranties by Howard included representations pursuant to which

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Howard promised NIH to maintain the laboratory animals in a humane and objectively identified temperature range.

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The representations ultimately made by Howard to NIH on this subject were false.

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So when you're talking about ultimately, what I'm trying to figure out is there was, I don't know how long was the period that she was complaining, at least internally,

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before the report to NIH?

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From mid-summer of 2013, approximately, to April of 2014.

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So eight or nine months or something like that.

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During that time period, when she was complaining internally, and up to and then including her complaint to NIH, during that time period, did Howard University submit a claim from the paperwork to the government in order to obtain or

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retain or continue to receive funds that made representations about animal welfare conditions, including this specific one.

[00:07:45] Speaker 05:
Judge, I don't know the answer to that question, but at the pleading stage, at the pleading stage of a False Claims Act retaliation case, you're almost imposing a 9b standard on... That's not a 9b standard.

[00:07:58] Speaker 03:
That's trying to find out whether

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During the time that this complaint alleges, because we don't know what happened before she got there, then your argument is that she remedied it.

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So during that time period, these conditions were not being maintained.

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And then don't you also need to show that there was some sort of false claim to the government that happened during that time period?

[00:08:21] Speaker 03:
I don't know if there's quarterly reports.

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I don't know what happens.

[00:08:24] Speaker 05:
Judge, first, I think it's reasonable to infer from the pleading that such claims were made.

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I think it's reasonable to infer from the allegations that they were.

[00:08:33] Speaker 03:
You just said you don't know.

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How can we infer if you don't know?

[00:08:37] Speaker 05:
Ma'am, it was a requirement that these certifications be made.

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And how often?

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just when they first got the grant money.

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That's what I'm struggling with here.

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I don't see it for the others, but that's what I'm struggling with.

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Right, because I think the problem is if there's a certification made at time one and then it turns out to be false, that doesn't mean there was a false certification made after that.

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All it's telling you is that there was a certification made at some point about temperatures that would be maintained.

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And then at some point, it turns out that condition is not being complied with.

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But that doesn't tell you that then there was a false certification made after that, which would be what's, I think, critical in determining whether there was a violation of the False Claims Act.

[00:09:23] Speaker 05:
There's also an assertion in the complaint that the institutional official has an obligation to report repeated inability to

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house these animals within the ambient temperature range to OLAW.

[00:09:37] Speaker 00:
Right, but that's not the submission of a false or fraudulent claim.

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I think the cases are pretty clear that a violation of federal law, federal expectations isn't enough.

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It has to relate to the submission of a false or fraudulent claim.

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It's not to say that you're necessarily not there.

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It's just to say that that seems to me to be where the potential gap is.

[00:09:56] Speaker 05:
Well, Judge, I would recur to what I said at the beginning, the amendment, any effort to stop fraud.

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I think when Congress saw these strictures developing in the body of case law, they said, wait a minute.

[00:10:13] Speaker 05:
We're going to make this real clear.

[00:10:15] Speaker 05:
Yeah, in furtherance of an action, can do it.

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But we are going to protect any effort, any effort to stop fraud.

[00:10:24] Speaker 06:
And I think it's not fraud, not to secure compliance with underlying regulatory schemes like the animal safety.

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But Judge, any fair interpretation of our complaint has to conclude that these certifications were a condition

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of getting and retaining federal money.

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And retaining federal money.

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That's important too.

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We don't know when they were made.

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We don't know whether it's an absolute compliance standard or a substantial compliance standard.

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We don't know anything about that.

[00:10:58] Speaker 05:
Judge, I think that is more appropriate.

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I don't think I'm required to plead to that level of detail.

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I think we have pled that certifications were required to get the grant money and that failing to maintain the ambient air conditions were in violation of those certifications.

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The Body of Law of False Claims Act clearly states, and we connected it to the money, the getting of the money and the retention of the money.

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I don't think we're obligated.

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to plead, the certification was made on September 1st, and they got money on September 15th.

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I think that is a pleading standard that is impractical for the typical whistleblower.

[00:11:49] Speaker 03:
I'm just trying to understand how this scheme works beside what the plaintiff has to allege or not.

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So you said retaining money is an important aspect of this.

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And that's what I'm trying to, can you just explain to me by pointing maybe to the guide or the handbook

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regulation or statute, how this works.

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At some point, Howard made these submissions and got money.

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And presumably this is something they do on a regular basis, but I don't know how regularly.

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Or do they have to make quarterly compliance reports or anything?

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Is there anything you can report to me just to help me understand how this money flow coincides with these representations and in particular to explain the

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The retention point that you said was so important.

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I want to make sure I understand that.

[00:12:37] Speaker 05:
There's a provision within 31 USC 3730 prior to the H section, I believe, that talks about it being a violation of the False Claims Act to retain monies to which the government contractor or the grantee is provided.

[00:13:03] Speaker 05:
when they retain those monies in contradiction of a certification made to the grant authority.

[00:13:11] Speaker 05:
It's toward the beginning, I believe.

[00:13:17] Speaker 03:
OK, maybe on rebuttal you can help point us to that.

[00:13:21] Speaker 03:
Or me, at least, for what it's worth.

[00:13:22] Speaker 00:
So your view is that any time

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a grant recipient finds out that they're out of compliance with a condition of receiving funds, they can't retain the funds.

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The false claims that bars retain, they have to give it back?

[00:13:41] Speaker 00:
Is that what happens or how does it work?

[00:13:44] Speaker 05:
Yes, Judge.

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As a practical matter, there is a materiality standard that governs the statute when it comes to recovering under a Ketam claim or the government DOJ coming in to recover money.

[00:14:00] Speaker 05:
But that materiality standard cannot apply to the retaliation provision or pleading the retaliation provision.

[00:14:07] Speaker 05:
Congress added any effort to stop fraud, and I think we've pled

[00:14:13] Speaker 06:
I don't think these strictures that apply to the underlying... You don't think fraud in the context of this statute means violation of the False Claims Act?

[00:14:27] Speaker 05:
I do, Judge.

[00:14:28] Speaker 06:
I do.

[00:14:30] Speaker 06:
the knowing submission of a false claim.

[00:14:33] Speaker 05:
Judge, the law, the law, retaliation law in every other statute that I know of with a retaliation provision says that if the whistleblower or the party engaging in protected activity had a reasonable belief that there was a knowing submission of a false claim.

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That there was fraud.

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I don't think the layman, I don't think Congress

[00:14:59] Speaker 05:
is requiring layman whistleblowers to have that level of understanding of what has occurred.

[00:15:06] Speaker 00:
Well, at least it has to be fraud in connection with the submission of a claim.

[00:15:10] Speaker 00:
That at least has to be.

[00:15:11] Speaker 00:
I mean, I take your point about reasonable belief.

[00:15:13] Speaker 00:
I think it's true that we don't expect

[00:15:16] Speaker 00:
laypersons to be lawyers who can parse their way through a statute.

[00:15:21] Speaker 00:
So there's a reasonable belief overlay for the retaliation claim.

[00:15:25] Speaker 00:
But it has to be fraud in connection with the submission of a claim.

[00:15:29] Speaker 05:
Judge, the phrase submission of a claim, I think, is too restrictive.

[00:15:36] Speaker 05:
I think in this case, when we allege that these false certifications were made to get money, and Sylvia Singletary went to her superiors and said, hey, we're in violation of these grants.

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We're telling NIH

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These animals are being housed within this ambient temperature ban, and we're not doing it.

[00:15:53] Speaker 05:
And accepting this money is wrong.

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That is a fair interpretation of our pleading.

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And that is a violation of the amended, we contend, the amended retaliation provisions.

[00:16:03] Speaker 06:
But just to go back to the language, the actual language is, the new language in the amended statute that you invoke is efforts to stop

[00:16:14] Speaker 06:
And then it doesn't say fraud in the air.

[00:16:17] Speaker 06:
It says one or more violations of this subchapter, subchapter being the False Claims Act.

[00:16:33] Speaker 05:
Judge, I think that using, when you review the False Claims Act in its entirety,

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I think it's clearly intended to stop fraud.

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But certain kinds of fraud.

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I don't think the layman whistleblower is required to make that distinction, to have the protections of the statute.

[00:17:02] Speaker 05:
I don't think Congress could possibly have intended that.

[00:17:04] Speaker 06:
The expanded definition of protected activity on its face speaks about violations of the statute.

[00:17:13] Speaker 06:
Yes.

[00:17:15] Speaker 06:
And it's one thing to say that you impose the

[00:17:20] Speaker 06:
reasonable belief overlay that Judge Sreenivasan mentioned, but it's quite another to say that the retaliation provision just picks up fraud or falsity in the air.

[00:17:33] Speaker 06:
It just doesn't say that.

[00:17:39] Speaker 05:
Well, Judge, first, I would contend that even if it is restrictive, as you say, we have pled that.

[00:17:45] Speaker 05:
We have pled that.

[00:17:46] Speaker 05:
We have pled these certifications are covered by the False Claims Act.

[00:17:50] Speaker 05:
I don't think we have to come in, chapter and verse, almost on a Rule 9 level.

[00:17:56] Speaker 06:
Do you have anything besides Paragraph 43 that you want to point us towards on that?

[00:18:05] Speaker 05:
Maybe talk about that one.

[00:18:07] Speaker 05:
What I am citing from is the Joint Appendix, page 137.

[00:18:14] Speaker 00:
Which is Paragraph 43.

[00:18:20] Speaker 06:
I thought that was your best paragraph.

[00:18:23] Speaker 06:
That's probably right, Judge.

[00:18:29] Speaker 03:
You've read the cases and you know that it's not every violation of a regulation or requirement that's incorporated in a federal contract is deemed to be a false claim for purposes of this provision or could it reasonably be believed that any violation

[00:18:50] Speaker 03:
of any condition or requirement was by itself going to be a false claim.

[00:18:57] Speaker 03:
So what I'm struggling with is how do we know?

[00:18:59] Speaker 03:
She certainly identified violations of contractual and regulatory requirements.

[00:19:06] Speaker 03:
She certainly identified that.

[00:19:07] Speaker 03:
And she certainly said, you all promised when you got this money that you were going to comply with these things, and we are not complying.

[00:19:15] Speaker 03:
But how do we know it moved from beyond?

[00:19:17] Speaker 03:
What is your argument as to how we know it moved beyond the realm of identifying regulatory violations to identifying or stopping what she thought was coming down the pike here, a submission of a false claim?

[00:19:34] Speaker 05:
Well, she clearly believed.

[00:19:36] Speaker 05:
A fair interpretation of our pleading is that Dr. Singletary clearly believed Howard received and retained money under false pretenses.

[00:19:46] Speaker 05:
that she clearly believed that.

[00:19:48] Speaker 05:
That was, I think that's a clear, fair reading of our pleading.

[00:19:54] Speaker 03:
And I think that is also a... I guess I'm having trouble saying, we don't know, she doesn't, we don't know when they got the money and we don't know when these, it could be that at the time they put in their application for the money, the conditions were as promised.

[00:20:08] Speaker 03:
And then things went awry while she was there.

[00:20:12] Speaker 03:
How do we know, how did she have a reasonable belief, or how do we know from your complaint that actually at the time Howard first got this money, their representations weren't accurate?

[00:20:29] Speaker 05:
Judge, the complaint doesn't address it to that level of detail.

[00:20:31] Speaker 05:
I concede that.

[00:20:34] Speaker 03:
All right.

[00:20:34] Speaker 03:
Well, maybe you can help with your pretension stuff on rebuttal.

[00:20:36] Speaker 03:
That might help.

[00:20:38] Speaker 00:
Thank you, counsel.

[00:20:39] Speaker 00:
Thank you all.

[00:20:46] Speaker 00:
Ms.

[00:20:46] Speaker 00:
Curry.

[00:20:47] Speaker 02:
Good morning.

[00:20:48] Speaker 02:
May it please the court?

[00:20:49] Speaker 02:
My name is Jennifer Curry.

[00:20:50] Speaker 02:
I'm with the law firm Baker Donaldson.

[00:20:52] Speaker 02:
I'm here on behalf of the appellee Howard University.

[00:20:55] Speaker 02:
To touch on what your honors and counsel were just speaking on, Singletary has failed to identify any purported FCA violation and the vague term... Well, explain to me how this works.

[00:21:14] Speaker 03:
Does Howard University

[00:21:16] Speaker 03:
What are the time periods for the money?

[00:21:18] Speaker 03:
Do they have to make quarterly or semi-annual or annual reports that say, here's what we're doing, we're in compliance?

[00:21:25] Speaker 02:
There are annual reports that are required to be made to the NIH.

[00:21:29] Speaker 02:
Was one of them made during this 11 or 9 treatment period?

[00:21:32] Speaker 03:
Not that we're aware of, Your Honor.

[00:21:34] Speaker 03:
Not that you're aware of?

[00:21:35] Speaker 03:
So I know it's not a complaint, I'm just asking you when you do it, because it covered the end of the year and the beginning of the year, and it covered

[00:21:44] Speaker 02:
fiscal year, so I'm trying to figure out why it wouldn't have encompassed.

[00:21:47] Speaker 02:
Well, there are several, frankly, NIH grants that the university receives.

[00:21:52] Speaker 02:
At this point, we're not even sure what grant Ms.

[00:21:55] Speaker 02:
Singletary was referring to in her complaint, and she hasn't alleged it.

[00:21:59] Speaker 02:
The only information that we really have of an incident that even occurred during the course of Ms.

[00:22:05] Speaker 02:
Singletary's employment was the April 15, 2014

[00:22:11] Speaker 02:
incident with the mice that were found dead by her on that morning.

[00:22:15] Speaker 02:
In that case, she filed... No more information than that.

[00:22:18] Speaker 03:
You have a lot of her complaining internally for months and months and months to no avail.

[00:22:25] Speaker 03:
And this must have been tied to funds, otherwise there would have been no reason for them then to fix things when things were reported to NIH.

[00:22:34] Speaker 03:
If they weren't, I don't understand your point that we didn't know if there's a relevant funding contract here, because why else?

[00:22:41] Speaker 03:
They've said to NIH, we're going to fix this and fix it after she made her report.

[00:22:45] Speaker 02:
I do not dispute that there was a requirement to report to the NIH in order to get the funds.

[00:22:49] Speaker 03:
All right, so these activities were covered by the maintenance of these animals was a condition of federal funds that Howard University had in hand, at least.

[00:22:58] Speaker 02:
Well, actually, if you look at the NIH's response to Ms.

[00:23:01] Speaker 02:
Singletary's email that she sent to them on April 15th,

[00:23:04] Speaker 02:
it indicates that they are not even clear whether or not the animals that were affected by the incident were covered by the NIH grant after the report was submitted to them.

[00:23:16] Speaker 02:
So it was unclear to even the NIH.

[00:23:18] Speaker 00:
That's getting down to a pretty final level of detail.

[00:23:20] Speaker 00:
I mean, the allegations in the complaint say violation of terms and conditions of the funding grant.

[00:23:25] Speaker 01:
Sure.

[00:23:25] Speaker 00:
So we have to take that as a given.

[00:23:27] Speaker 01:
Sure.

[00:23:28] Speaker 00:
Right.

[00:23:29] Speaker 00:
So suppose, for example, suppose that the allegations in the complaint covered 24 months.

[00:23:35] Speaker 00:
instead of eight or nine, and that they were annual grants.

[00:23:40] Speaker 00:
So then we know that what she's talking, she's giving complaints that cover two years and that every year there's a submission of a grant application that includes this condition about temperature.

[00:23:51] Speaker 00:
And she's saying, I've told you for two years,

[00:23:54] Speaker 00:
that the temperature condition in the funding application is not being complied with.

[00:24:00] Speaker 00:
And so then we know also that at some point during that time span a funding application was submitted.

[00:24:08] Speaker 00:
Would you still take the same position that even if it was a two-year period of complaints and there were annual grants that there's still not a reasonable belief

[00:24:18] Speaker 00:
of a violation of the False Claims Act?

[00:24:21] Speaker 02:
I don't know that I would still take the same tact in that instance, but I think the issue then becomes whether or not the behavior that she engaged in, the conduct that she engaged in, was actually protected activity and was outside the course of her normal job duties.

[00:24:39] Speaker 02:
There is a heightened standard that Miss Sickletary had to meet and overcome in order to make her case that she was actually engaging in protected activity.

[00:24:50] Speaker 01:
And time and again... What heightened standard?

[00:24:52] Speaker 02:
There's a heightened standard under... A 3-9-B does not apply.

[00:24:59] Speaker 02:
Correct.

[00:25:00] Speaker 02:
But there's a heightened standard under Yesudian that when an employee engages in reporting activities that, quote, could be mistaken for routine actions in accordance with her employment obligations and, quote, Her complaint is quite clear that reporting to NIH was not in her wheelhouse.

[00:25:18] Speaker 03:
That was not her job.

[00:25:19] Speaker 03:
That's her complaint.

[00:25:20] Speaker 03:
Now, maybe this will be disputed.

[00:25:21] Speaker 03:
That sounds like a question of fact, but that doesn't help you right now.

[00:25:24] Speaker 03:
But her complaint is quite clear that the one who had that job was Dr.

[00:25:29] Speaker 03:
Well, and I, Your Honor, to address that... So let's assume that's the case.

[00:25:35] Speaker 03:
Well, to address that point, they were all members of the IACUC, and as the sole veterinarian... But that is not, her allegations are, which we are taking as true, but I guess you don't seem to want to, is that, yes, I'm on these committees, and that's why I was talking to people internally, at least.

[00:25:54] Speaker 03:
But when it comes to, at least when it comes to talking to NIH, that was the institutional official, or whatever the title was, who had that job.

[00:26:02] Speaker 03:
And that was clearly identified as Dr. Sessian?

[00:26:05] Speaker 02:
Sorry.

[00:26:05] Speaker 02:
Oba Sessian.

[00:26:06] Speaker 03:
Oba Sessian, I apologize.

[00:26:08] Speaker 03:
So we just have to take that as a given.

[00:26:11] Speaker 02:
I don't deny that Dr. Oba Sessian was generally the one who was supposed to be in communication.

[00:26:16] Speaker 03:
Generally, or the one designated for that job?

[00:26:17] Speaker 02:
He was designated for the communication.

[00:26:20] Speaker 02:
However, I don't think,

[00:26:23] Speaker 02:
Dr. Singletary's email to the NIH could even come close to being something that would report fraud.

[00:26:31] Speaker 03:
That's a different argument.

[00:26:32] Speaker 03:
You were arguing for a heightened standard here.

[00:26:34] Speaker 03:
So let's just focus on that right now.

[00:26:36] Speaker 03:
I'm trying to say I don't understand, given the allegations of the complaint for purposes of a 12b6 motion, that we have that in front of us.

[00:26:45] Speaker 02:
Well, the guidelines for the NIH

[00:26:47] Speaker 02:
in these kinds of grants says that the IO, the chair of the IAC, the veterinarian are all supposed to be working together.

[00:26:57] Speaker 03:
And to me... That's not the same thing as who reports to the NIH.

[00:27:01] Speaker 03:
It's not the same thing, according to this complaint.

[00:27:03] Speaker 03:
I mean, this may be a fact dispute.

[00:27:04] Speaker 03:
I'm not saying that you may know how this works in practice.

[00:27:07] Speaker 03:
I'm confident you both know how this works in practice far more than I do.

[00:27:11] Speaker 03:
But according to the complaint, going to NIH was one person's job and it wasn't hers.

[00:27:16] Speaker 03:
We assume there's no height and pleading standard.

[00:27:20] Speaker 03:
I don't think.

[00:27:21] Speaker 03:
What happens then?

[00:27:22] Speaker 02:
Well, I still don't think that even if there's no heightened cleaning standard, even just the face of the email itself, and the NIH's reaction to the email does not indicate that it's a report of fraud.

[00:27:35] Speaker 02:
I mean, these are NIH grants.

[00:27:36] Speaker 02:
They deal with medical testing all of the time.

[00:27:39] Speaker 02:
There are incidents that occur just as a matter of course in scientific testing where those incidents have to be reported.

[00:27:48] Speaker 02:
And they were reported.

[00:27:50] Speaker 02:
And in this case, there's no indication in Dr. Singletary's email to the NIH.

[00:27:56] Speaker 02:
that there was anything other than, I found that this incident occurred at 1045 this morning, I'm reporting it to you now, I have to now go back to the IO and the ACUC and report the issue to them so that a report can then be submitted to you.

[00:28:13] Speaker 02:
There's nothing other than that and it's a very routine email.

[00:28:17] Speaker 00:
So that may be true of the email, the way you're describing it.

[00:28:20] Speaker 00:
I'm not

[00:28:21] Speaker 00:
I'm not necessarily sure that that matters at the end of the day, but if you look at the internal correspondence, so not the one at NIH, the allegations and the complaint are that the internal complaints that were made to her supervisors, the other people involved in the enterprise, did relate the allegations to funding.

[00:28:38] Speaker 00:
Because they talked about violating, she said that she told people that were not in compliance with the terms and conditions of the funding agreement.

[00:28:45] Speaker 02:
Sure, and she is the director of veterinary, or she was the director of veterinary services

[00:28:51] Speaker 02:
the University.

[00:28:52] Speaker 02:
She was the only attending veterinarian at the School of Medicine.

[00:28:57] Speaker 02:
Her sole duties were to take care of these animals.

[00:29:00] Speaker 00:
So I gotta say, I know that our cases in some cases say this.

[00:29:03] Speaker 00:
It's mystifying to me to some extent.

[00:29:05] Speaker 00:
So let's just put aside the part, just for me, for me, put aside the part of the cases that say it has to be outside your

[00:29:12] Speaker 00:
job responsibilities.

[00:29:14] Speaker 00:
Because if your job responsibility is reporting FCA violations, then I'm just not understanding why a complaint can't just say, what I told my supervisors was there's fraud going on in connection with funding agreements.

[00:29:25] Speaker 00:
And then somehow that's not enough under the complaint.

[00:29:27] Speaker 00:
I don't understand that.

[00:29:29] Speaker 00:
So just put that to one side and just look at the statute and what the allegations of the complaint say.

[00:29:34] Speaker 00:
And the allegations of the complaint say, I told people that we were not in compliance with terms and conditions of funding agreements.

[00:29:41] Speaker 00:
And then I think the question is, is that enough when the statute speaks in terms of violations of this sub-chapter, the False Claims Act?

[00:29:51] Speaker 02:
Well, that has to then go in connection with her allegations of saying, I reported this, and then there was an actual certification that was made to the NIH that we were in compliance.

[00:30:03] Speaker 02:
And I continue to report that.

[00:30:05] Speaker 00:
So that's set in paragraph 43.

[00:30:07] Speaker 02:
Right, but there's no indication that she made a complaint and then a certification was made.

[00:30:13] Speaker 02:
There's no evidence or no facts that she's ever pled about who certified, when they certified, how they certified, that Howard University was in compliance.

[00:30:22] Speaker 00:
And what if the complaint says, it doesn't, but what if the complaint had said, yeah, you know, I don't know those details.

[00:30:28] Speaker 00:
I have no way of knowing those details.

[00:30:29] Speaker 00:
I'm not the person who does the funding applications or anything.

[00:30:32] Speaker 00:
I was concerned about it, though.

[00:30:33] Speaker 00:
I thought there might well have been a problem with false claims submitted to the government, because what I saw was noncompliance.

[00:30:39] Speaker 00:
And I know that these things happen on a pretty regular basis.

[00:30:42] Speaker 00:
Would that be enough, or would that not be enough?

[00:30:44] Speaker 02:
I don't believe that would be enough, Your Honor.

[00:30:45] Speaker 02:
I think there has to be some connection to, I have at least some idea that generally the NIH grant was, it comes due every time this year.

[00:30:55] Speaker 02:
And we have to make a certification.

[00:30:57] Speaker 02:
I'm just talking in hypotheticals.

[00:30:59] Speaker 02:
But there has to be a certification made by the university in order to get the next set of funding.

[00:31:05] Speaker 02:
And I don't know when that might happen.

[00:31:07] Speaker 03:
The statute says stop, to stop something from happening.

[00:31:11] Speaker 03:
So she doesn't have to wait until it actually happens.

[00:31:14] Speaker 03:
Imagine another university, not your university, hypothetical university.

[00:31:19] Speaker 03:
submits its application for money and it has perfect temperature levels and everything.

[00:31:24] Speaker 03:
It gets the check, it gets the money, and Dr. Evil flips off the air conditioning as soon as they have the money and leaves it off until it's time to file for either an interim report or another request for money and flips it on.

[00:31:42] Speaker 03:
Would that be fraud under the False Claims Act?

[00:31:45] Speaker 03:
Well, Your Honor, let me put it this way.

[00:31:50] Speaker 03:
She alleges that... No, no, I don't want her allegations.

[00:31:52] Speaker 03:
I just want you to answer my hypothetical question.

[00:31:55] Speaker 03:
At the time the complaint was submitted, the air-conditioned temperatures were just right.

[00:32:00] Speaker 03:
Every time they ask for money or file a report, the temperatures are just right.

[00:32:04] Speaker 03:
Every other time in between, they're not.

[00:32:07] Speaker 03:
Is that fraud under the False Claims Act?

[00:32:11] Speaker 02:
I can see in that hypothetical it could potentially be fraud.

[00:32:16] Speaker 03:
And so if someone tried to stop that and say, look, you've got to cut this out, you're making a promise that you're going to keep them.

[00:32:24] Speaker 03:
As long as you've got this fun money and are using it, you're going to keep it at the level you promised.

[00:32:29] Speaker 03:
That would be an effort to stop fraud.

[00:32:32] Speaker 03:
Sure.

[00:32:33] Speaker 02:
But we don't have allegations like that here.

[00:32:35] Speaker 02:
Sounds a lot like her allegations.

[00:32:36] Speaker 02:
Well, I mean, her allegations are very broad.

[00:32:39] Speaker 02:
I mean, she says she made complaints.

[00:32:40] Speaker 02:
What part of the hypothetical I just gave you didn't you?

[00:32:42] Speaker 02:
Well, your hypothetical is not broad.

[00:32:44] Speaker 02:
But I think your hypothetical, frankly, is more detailed than the allegations in her complaint.

[00:32:50] Speaker 03:
Well, there's no dispute that Howard University obtained, submitted money, obtained funding, and made promises about maintaining

[00:33:01] Speaker 03:
healthy living conditions, including not inflicting heat stroke on helpless animals, during the time it was going to have those funds.

[00:33:09] Speaker 03:
And then after it got that money, while she was there, it was not complying with that.

[00:33:17] Speaker 03:
And either a new report is going to go in at some point in short order.

[00:33:22] Speaker 03:
It can't be that too long goes by.

[00:33:23] Speaker 03:
We're getting close to a year here.

[00:33:26] Speaker 03:
either a new claim is going to go in for more money or some sort of certification as to, yes, we are complying with our promises, it's going to be going in.

[00:33:34] Speaker 03:
And that's what she's trying to stop when she tells them, you made promises about these conditions and you didn't keep, you're not keeping them.

[00:33:42] Speaker 02:
I feel something exactly like this situation.

[00:33:44] Speaker 02:
Your Honor, I think part of the issue, just as a matter of practical speaking, we're talking about, she's, you know, originally her allegations, I think, in her First Amendment complaint was that her complaint started in early 2014.

[00:33:59] Speaker 02:
she turned back the clock and made them beginning and mid-2013.

[00:34:05] Speaker 03:
We're taking this post and the complaint is true, right?

[00:34:08] Speaker 02:
Sure.

[00:34:09] Speaker 02:
So if you look at the mid-2013 to the April 2014 timeline, that eight-month period, where she's alleging there was no air conditioning to the facility.

[00:34:21] Speaker 03:
Well, she's just alleging that you weren't maintaining, we don't know the details, but it doesn't matter.

[00:34:25] Speaker 03:
She says you were not keeping the conditions

[00:34:28] Speaker 03:
as promised.

[00:34:30] Speaker 03:
Too hot, too cold, any of them would be wrong.

[00:34:34] Speaker 02:
Well, I mean, her allegations have always been that there's not conditioned air to the facility to this entire period.

[00:34:42] Speaker 02:
She doesn't just say that it's the... She definitely thinks there's a violation of the terms and conditions of the agreement.

[00:34:52] Speaker 02:
Sure.

[00:34:52] Speaker 00:
So whether that's conditioned error or it's off by 0.4 degrees or it's off by 40 degrees, she is saying there's a violation of the conditions of the funding agreement.

[00:35:02] Speaker 00:
Sure.

[00:35:03] Speaker 00:
Right.

[00:35:03] Speaker 00:
So isn't that all that matters?

[00:35:04] Speaker 02:
Well, but I think her allegations have to at least give us an idea.

[00:35:08] Speaker 02:
There has to be something more than this vague allegation that you just weren't complying.

[00:35:13] Speaker 03:
There has to be some allegations to indicate that she... Would a reasonable person think that you're going to have to file something once a year to get these funds?

[00:35:23] Speaker 03:
Or would that be unreasonable to think?

[00:35:25] Speaker 03:
I think that would probably be unreasonable.

[00:35:26] Speaker 03:
Okay, and that if for the last eight months you haven't been complying with the promise you made last year,

[00:35:34] Speaker 03:
Is it reasonable to think that when you submit that claim, say, in a few months to the government, you're not going to be telling the truth?

[00:35:43] Speaker 03:
Sure.

[00:35:44] Speaker 02:
I would assume that that was reasonable.

[00:35:47] Speaker 02:
Sure.

[00:35:49] Speaker 00:
So if there were an allegation, if she had just rounded it out and added something that says, and therefore, I was concerned that in the next agreement, a representation would be made about compliance with the temperature condition, that's not true.

[00:36:03] Speaker 00:
that you agree would have been enough.

[00:36:05] Speaker 02:
That's all that's missing here?

[00:36:07] Speaker 02:
I think what's missing here is any indication that she thinks there was a certification that was wrongful or fraudulent that was made at some point.

[00:36:20] Speaker 02:
She has some idea.

[00:36:21] Speaker 00:
So if she made the representation that I just said, if she made the allegation that I just said, which has to do with the next cycle, then that would be enough.

[00:36:28] Speaker 02:
Probably, Your Honor, but she hasn't done that.

[00:36:31] Speaker 02:
And there has been plenty of opportunity for her to have done that over the last several years that this litigation has been pending.

[00:36:38] Speaker 03:
Well, for purposes of this case, this is just the second amended complaint.

[00:36:42] Speaker 02:
Right.

[00:36:44] Speaker 06:
Does your argument go to protected activity or the employer's knowledge or both?

[00:36:55] Speaker 06:
The thought you were primarily making the knowledge point from your brief, the way you're arguing it now, it seems like you're engaging mostly on a lack of protected activity.

[00:37:08] Speaker 06:
It's a tougher position for you, right?

[00:37:10] Speaker 06:
It could be a big difference between, she could be engaged in protected activity, but the employer has no reason to know it.

[00:37:19] Speaker 06:
Right, well, and I think... Are you making both points?

[00:37:21] Speaker 02:
Yeah, and I am making both points.

[00:37:23] Speaker 02:
I think, you know, I was attempting to address the way that the court was questioning already on the case, but I think the issue again for Dr. Singletary is that the allegations of her alleged protected activity, I know, Your Honor,

[00:37:38] Speaker 02:
has indicated his kind of- That was just perverse to my question, but- Sure, sure.

[00:37:43] Speaker 02:
But the case law does indicate that individuals who are engaging in activity that is within the scope of their job duties have to overcome a heightened standard in order to show that they were actually putting the employer on notice, that they were engaging in either investigating fraud- In trying to stop- Right, or stopping, attempting to stop fraud.

[00:38:04] Speaker 02:
And I would argue that

[00:38:08] Speaker 02:
Dr. Singletary's arguments or, not arguments, her complaints to Dr. Obasessin, her supervisor, to the other members of the IACUC, notifying them that there's an issue, would not be enough to satisfy that standard or put them on notice.

[00:38:23] Speaker 00:
Under the hypothetical complaint that we just had an exchange about where she has an allegation that says, and because of all of this, I was concerned that in the next cycle,

[00:38:33] Speaker 00:
a representation would be made in connection with funding about compliance with the temperature condition that would be false, you'd say, actually that's not enough, because there still wouldn't have been enough knowledge on the part of Howard University.

[00:38:45] Speaker 01:
Right, Your Honor.

[00:38:45] Speaker 00:
You'd still say that, even though she's, then what if she would have said, and I told people that,

[00:38:51] Speaker 02:
Again, I think even if she went to Dr. Obessessin and said, I don't think that the conditions are within the terms of our grant.

[00:39:03] Speaker 02:
She's the only veterinarian at the university.

[00:39:05] Speaker 00:
But she doesn't only say that.

[00:39:06] Speaker 00:
She says, and I'm worried about our representation that we're going to be making in the next cycle.

[00:39:13] Speaker 02:
That's still not knowledge?

[00:39:15] Speaker 02:
Well, that's still not enough to go outside of her... What more do they have to know?

[00:39:20] Speaker 00:
She's told them that I think we're violating the False Claims Act.

[00:39:24] Speaker 00:
How is that not knowledge?

[00:39:25] Speaker 03:
That's not normally a veterinarian's role.

[00:39:28] Speaker 03:
Sure, but her... It might be taking care of animals, but it's not monitoring the False Claims Act compliance.

[00:39:33] Speaker 02:
And I know she says that they might be in violation of the regulations, but there's nothing in it that she says

[00:39:41] Speaker 02:
Nothing in her pleadings that say she said specifically to them, I think there is a false claim here.

[00:39:47] Speaker 02:
I think anything like that.

[00:39:49] Speaker 03:
She specifically says you're in violation of allegations on which you get your funding, your funding conditions.

[00:39:57] Speaker 02:
Sure.

[00:39:58] Speaker 02:
But that's her, but that is, I mean, the reason she is at Howard University School of Medicine, she is the only veterinarian is to be the one to say,

[00:40:08] Speaker 02:
I think there's an issue here.

[00:40:09] Speaker 03:
I think there's a potential violation.

[00:40:11] Speaker 03:
Paragraph 22, and this is not a veterinarian's job, she expressly noted that Howard was out of compliance with the terms and conditions under which it was receiving grant money from the federal government.

[00:40:23] Speaker 03:
That can't be what you say is missing here.

[00:40:31] Speaker 03:
It's J 130 to 131, paragraph 22.

[00:40:41] Speaker 02:
I don't see why the sole, Dr. Obisessin is not a veterinarian.

[00:40:48] Speaker 02:
He is not charged with the care of these animals.

[00:40:50] Speaker 02:
Nobody else on the IACU would see.

[00:40:52] Speaker 03:
And she's not a false claims app.

[00:40:54] Speaker 03:
She doesn't do funding claims for Howard University.

[00:40:58] Speaker 03:
So she's going outside her orbit as well.

[00:41:01] Speaker 03:
But the point is here, we've said, you know what counts as notice?

[00:41:07] Speaker 03:
even under the heightened standards you want is when you go outside the chain of command, which she did after obsessing his name.

[00:41:14] Speaker 03:
I'm sorry, I keep forgetting.

[00:41:16] Speaker 03:
She went over his head to hire people, all right?

[00:41:19] Speaker 03:
and eventually went to NIH, so that factor is met under our case law.

[00:41:24] Speaker 03:
She kept repeatedly doing this over a long period of time.

[00:41:29] Speaker 02:
Is that false claims?

[00:41:31] Speaker 02:
But that would assume that Dr. Ovasessin is also an expert in false claims and fraud.

[00:41:39] Speaker 03:
I don't know what that has to do with anything.

[00:41:40] Speaker 02:
Well, Your Honor, you were saying that she is a veterinarian.

[00:41:45] Speaker 02:
She is not tasked with being an expert in this.

[00:41:47] Speaker 03:
No, but she went over his head, and she got nothing from him.

[00:41:48] Speaker 03:
She went over his head.

[00:41:49] Speaker 02:
And the case law says that simply going up the chain of command doesn't necessarily mean

[00:41:56] Speaker 02:
Well, first of all, whether she went up to the chain of command is one thing.

[00:42:00] Speaker 02:
I mean, frankly, Dr. Obessessin was her direct supervisor, but she was also a voting member of the IACUC.

[00:42:07] Speaker 02:
So reporting these issues to other members of the IACUC doesn't mean she's going outside the chain of her command.

[00:42:14] Speaker 06:
Doesn't this just go back to Judge Srinivasan's original framing of the case, right, which is,

[00:42:24] Speaker 06:
We have two clear data points in our case law on this point.

[00:42:28] Speaker 06:
One is it's not enough to raise concerns about compliance with an underlying scheme.

[00:42:41] Speaker 06:
So if she's just complaining internally about violating the Animal Welfare Act, that's not enough.

[00:42:48] Speaker 06:
The other clear point is it is enough

[00:42:52] Speaker 06:
if she's complaining internally about False Claims Act problems, if she had gone to them and said, this is a concern because certifications may be fraudulent and we're going to incur treble damages liability.

[00:43:08] Speaker 06:
That is enough.

[00:43:10] Speaker 06:
What she's done here is something in between

[00:43:14] Speaker 06:
according to the allegations, which is she's complaining about compliance with a grant requirement that they be in conformity with the underlying animal welfare statute.

[00:43:29] Speaker 06:
And that seems to me it's an intermediate case and it tees up the question, is that more a False Claims Act allegation about imminent fraud or is it more

[00:43:42] Speaker 06:
an issue of animal welfare.

[00:43:45] Speaker 02:
And I think that is the point here, Your Honor.

[00:43:48] Speaker 02:
The point here is that her position was to take care of and protect these animals.

[00:43:55] Speaker 02:
And in doing that, if there were issues that were

[00:44:00] Speaker 02:
that with the animal's care, with the animal's welfare, it was her responsibility internally at Howard.

[00:44:09] Speaker 02:
It was her responsibility under the regulations, under the Animal Welfare Act, and as a member of the IACUC, that she report those issues to try and address them.

[00:44:21] Speaker 03:
And frankly, if you look at her... Can you point me to anything in the record that shows that part of one of her duties was beyond caring for the animals?

[00:44:31] Speaker 03:
to disclose to anybody on this committee or higher up in Howard University when compliance with the terms of federal funding are not met.

[00:44:43] Speaker 03:
Is that in her wheelhouse or not?

[00:44:45] Speaker 02:
I think if you look at her job duties, she was, and that's part of the job offer that she submitted

[00:45:00] Speaker 02:
at 165 through 66.

[00:45:04] Speaker 02:
She had to establish and direct an in-house quality control program.

[00:45:09] Speaker 02:
She had to establish standard operating procedures to promote animal care, health and welfare, including the proper quarters and animal housing equipment.

[00:45:19] Speaker 02:
She was supposed to collaborate with research investigators and physicians on all handling of animal care and experimental animals, including on housing.

[00:45:32] Speaker 02:
And I would say that establishing these quality control programs, establishing procedures, collaborating with physicians is all a part of her obligation to make sure that the... So the answer would be no.

[00:45:46] Speaker 03:
Nothing in here says her job is to monitor compliance with federal funding conditions by Howard University.

[00:45:53] Speaker 06:
No, Your Honor.

[00:45:54] Speaker 06:
Well, how about Arabic 4, which you haven't quoted a couple of lines down, access consultant for grants,

[00:46:02] Speaker 06:
to federal, city, and national institutions.

[00:46:07] Speaker 03:
Right.

[00:46:08] Speaker 03:
And as well as other... Requiring your expertise.

[00:46:11] Speaker 03:
Her expertise, as you just said, was consulting on medical conditions, not on compliance with terms of federal grants.

[00:46:21] Speaker 02:
well, the only way she would know whether or not they were expertise and federal grants.

[00:46:26] Speaker 02:
No, but she had an expertise as to whether or not the animals were being kept in the conditions that were supposed to be and to report those.

[00:46:33] Speaker 02:
And she knew that as a member of the IACUC,

[00:46:36] Speaker 02:
that she was supposed to be making sure that the university was keeping those animals well conditioned and that was a part of their obligations as IACUC members and the reason they were IACUC members is because they had NIH grants.

[00:46:51] Speaker 02:
The only reason that you have an IACUC set up at Howard University is because you have an NIH grant.

[00:47:01] Speaker 02:
There's no basis for having that internal committee that's supposed to be monitoring the

[00:47:08] Speaker 02:
the actions of the university and how they handle their animals and their testing procedures and all of that.

[00:47:14] Speaker 02:
There's no purpose in having that committee unless there is an NIH grant.

[00:47:18] Speaker 02:
And the reason she's on that committee is to make sure that they're complying with the rules and regulations of NIH in order to maintain that grant.

[00:47:31] Speaker 06:
I'm sorry, none of that is required by the Animal Welfare Act?

[00:47:36] Speaker 02:
It is, it's part, I mean it's part of, it's all part of, it all kind of gets lumped in together.

[00:47:41] Speaker 06:
Suppose they weren't taking grant money.

[00:47:43] Speaker 06:
Would they have to have the committee and the reporting official and the veterinarian and all of that?

[00:47:49] Speaker 02:
Not, to be honest with you, Your Honor, I don't know.

[00:47:52] Speaker 02:
Not that I'm aware of, but I don't want to submit to anything that's incorrect.

[00:47:57] Speaker 00:
So then, so the debate then is what's all the bucket of stuff that was within her normal job responsibilities and what's

[00:48:06] Speaker 00:
potentially a peripheral layer that's outside of it.

[00:48:08] Speaker 00:
But just to get back to one question, I'm going to make sure I'm clear on your answer.

[00:48:11] Speaker 00:
So we know the allegation in paragraph 22, which says that in her internal conversation, she expressly noted that Howard was out of compliance with the terms and conditions under which it was receiving grant money from the federal government.

[00:48:22] Speaker 00:
So we take that as a given.

[00:48:24] Speaker 00:
And if there were an extra allegation that perfected the point by saying, and in those internal discussions, I express concerns that

[00:48:34] Speaker 00:
And because we've been out of compliance in the past, we'll make a representation in the future that's not true in a funding agreement.

[00:48:44] Speaker 00:
That would be enough.

[00:48:45] Speaker 00:
Even if you assume that all this stuff is within our job responsibilities, that would still be enough.

[00:48:51] Speaker 00:
Or would you say even in that situation, it still wouldn't be enough?

[00:48:55] Speaker 01:
I think if you could rephrase it.

[00:48:59] Speaker 00:
Yeah, so she has the allegation in here about terms and conditions and what she says is that's what we're talking about here.

[00:49:06] Speaker 00:
I expressed concern that in light of the ongoing noncompliance, we would make a representation in a future funding cycle of compliance that is not true.

[00:49:18] Speaker 02:
I still don't think that would be enough, Your Honor, within the scope of her job duties.

[00:49:23] Speaker 00:
Because it's within the scope of her job duties, so the employer would need, they could retaliate against her for that, and it still wouldn't be enough under the retaliation.

[00:49:32] Speaker 02:
Well, I don't think it's necessarily that.

[00:49:34] Speaker 02:
I think it's just that the university wouldn't necessarily, I mean, the purpose of requiring that heightened standard for people who are acting within the scope of their duties is that it's just like a compliance officer at just a regular company.

[00:49:50] Speaker 02:
who's reporting, I think there might be fraud issues, I think there might be issues that if we certify for our grant or for whatever it might be down the road, we're going to have an issue here and I know that certification is coming up.

[00:50:04] Speaker 02:
That's their job, that's their job to notify their employer of that.

[00:50:10] Speaker 02:
And so just because

[00:50:12] Speaker 02:
she made those reports internally doesn't make it enough to meet that standard.

[00:50:18] Speaker 06:
I thought the point of the job description inquiry was to help frame the inquiry about employer notice.

[00:50:32] Speaker 06:
So if

[00:50:33] Speaker 06:
If the job description, if she were an FCA compliance officer and clearly within the scope of her job, she went to the university and said, we're at risk for FCA liability, that would be clearly within the scope of her responsibility, but clearly put them on notice.

[00:50:55] Speaker 02:
Well, clearly put them on notice that she could potentially be, I mean, if that's the case.

[00:51:02] Speaker 06:
That she's doing her job to stop FCA violations.

[00:51:08] Speaker 02:
Right, but the reason that entities have these individuals to do this work and make sure that they are complying and making sure that they are

[00:51:18] Speaker 02:
fulfilling both their job duties but also fulfilling the requirements of the entity, if every time the compliance officer comes to you and says, I think there's fraud and a violation, that the entity would then be on notice that they might be sued later on down the road or might have a complaint file against them, then it kind of

[00:51:39] Speaker 00:
It's just to get past the pleadings.

[00:51:41] Speaker 02:
Sure.

[00:51:42] Speaker 00:
I mean, it may well be the case that it wasn't retaliation because of that.

[00:51:45] Speaker 00:
It might be that the person was late every single day for six months in a row.

[00:51:49] Speaker 01:
Right.

[00:51:49] Speaker 00:
But it's just the only question is whether you get past the pleadings.

[00:51:53] Speaker 00:
Right.

[00:51:53] Speaker 00:
Even in a case of actual notice of a false claims act violation.

[00:51:56] Speaker 00:
But it sounds like your position is even in that situation, the plaintiff doesn't get past the pleadings.

[00:52:03] Speaker 00:
OK.

[00:52:03] Speaker 00:
All right.

[00:52:04] Speaker 00:
Thank you.

[00:52:05] Speaker 00:
Appreciate it.

[00:52:05] Speaker 00:
Thank you.

[00:52:12] Speaker 05:
The statute says any effort to stop a violation of this subchapter.

[00:52:25] Speaker 05:
In Yesudian, the court said, and this is before the amendments, this court said that the FCA's anti-retaliation provision protects employees while they are collecting information

[00:52:40] Speaker 05:
about a possible fraud before they have put all the pieces of the puzzle together.

[00:52:48] Speaker 05:
The court clearly said that in Yesudian.

[00:52:50] Speaker 05:
So the language of the statute is any effort to stop a violation of the subchapter.

[00:52:57] Speaker 05:
That could be an inchoate, nascent, unformed.

[00:53:01] Speaker 05:
It could not have occurred yet.

[00:53:04] Speaker 05:
And Yesudian drives that home.

[00:53:07] Speaker 05:
And it's interesting that they drove that home before the amendment.

[00:53:13] Speaker 05:
So with respect to the issue, stop any effort from this subchapter, I think we clear that hurdle.

[00:53:24] Speaker 05:
With respect to employer notice, what better proof of notice is there than their reaction to Dr. Singletary's email to NIH?

[00:53:36] Speaker 05:
She is excoriated in a faculty meeting.

[00:53:39] Speaker 05:
She is told she has humiliated Howard.

[00:53:43] Speaker 05:
Dr. Obisison is incensed.

[00:53:46] Speaker 05:
All that is pled.

[00:53:48] Speaker 05:
Howard immediately acts to stop the violation after the email.

[00:53:56] Speaker 05:
The problem is stopped immediately and almost as immediately

[00:54:00] Speaker 05:
Dr. Singletary's contract is terminated.

[00:54:03] Speaker 05:
It's shortened by six months.

[00:54:05] Speaker 05:
The retaliatory act is taken.

[00:54:08] Speaker 00:
I know you're at the end of your time, but can I just follow up on this?

[00:54:12] Speaker 00:
If all you had was the email and you didn't have any internal discussions at all, if all you had was the email, it sounds like you'd be making the argument you just made.

[00:54:20] Speaker 00:
But with the email itself, it does seem like there's a gap between noncompliance with expectations about temperature and anything having to do with the certification made to the government about

[00:54:34] Speaker 00:
in connection with funding.

[00:54:37] Speaker 00:
So the email just doesn't say anything about it.

[00:54:38] Speaker 05:
I would agree with you on that, Judge, but in totality, when you take the allegations in their totality, and as we must, the picture of unlawful retaliation in violation of 3730H we submit is clear.

[00:54:56] Speaker 03:
Thank you, Count.

[00:55:01] Speaker 03:
When she was, in your allegations, she was telling, why I can't retain the same Dr. Obsesion, about violations of SEA and I think she may have said that to the people when she went over his head.

[00:55:24] Speaker 03:
Judge Shreve, not Dr. Shreve, Judge Shreve suggested that, you know, another allegation that would say, and I was worried that there were gonna be filings to get money, given this pattern of violations.

[00:55:48] Speaker 03:
I'm trying to figure out, he offered that hypothetical, and you have allegations that she said y'all are violating

[00:55:54] Speaker 03:
your conditions for getting this funding, if those two connect up in your mind or are they different things?

[00:56:01] Speaker 03:
That may not make any sense at all.

[00:56:03] Speaker 03:
I don't think that point is dispositive of... If it were, if there needed to be some indication that she was actually concerned that a false claim for money or a false representation

[00:56:21] Speaker 03:
about retained and continued use of money was going to be made.

[00:56:24] Speaker 03:
Do you see that in this complaint now?

[00:56:29] Speaker 03:
I'm just asking the question.

[00:56:30] Speaker 03:
I'm not saying that's the right answer.

[00:56:32] Speaker 03:
I'm just saying if that were what was required.

[00:56:34] Speaker 05:
I think it can be reasonably inferred from these allegations, which is fair on the 12b6 motion.

[00:56:41] Speaker 05:
I think it can absolutely be reasonably inferred from these allegations, that this concern is ongoing and it's continuing.

[00:56:47] Speaker 05:
She doesn't see an end to the concern until she sacrifices her career, sends the email to OLAW, is excoriated, and is fired.

[00:56:59] Speaker 05:
Judge, I'd add, she clearly saw

[00:57:02] Speaker 05:
The future problem, that was the reason for the sending of the email.

[00:57:06] Speaker 00:
Thank you, counsel.

[00:57:07] Speaker 00:
Thank you, counsel.

[00:57:09] Speaker 00:
Case is submitted.

[00:57:10] Speaker 05:
Stand please.