The U.S District Court for the Eastern District of Virginia issued a ruling this week interpreting the anti-retaliation provisions of 3730(h).  The case is  Mann v. Heckler & Koch Defense, Inc., 1:08cv0611 (Cacheris, J.)  You can read the opinion here.

In his official capacity as an HKD employee, Jason Mann was involved in the bidding on a Secret Service contract for HKD rifles.  Mann learned about what he believed might be false claims in relation to the bidding, and initiated an internal investigation. 

Shortly thereafter, Plaintiff began to experience retaliation at work, and filed a two count complaint in the U.S. District Court in June, 2008 alleging one count of retaliation under 3730(h) and one count of common law defamation.  

After his complaint was filed in U.S. District Court, Mann was terminated from his job, which led to the filing of an amended complaint.  In the amended complaint, Mann alleged that his termination was in retaliation for his filing the lawsuit in federal court.    

The question before the court was whether the filing of a lawsuit alleging 3730(h) retaliation was, in and of itself, protected activity under the FCA.  Judge Cacheris reasoned that it was, and ruled that 3730(h) must be interpreted broadly with regards to the interpretation of "protected activity."  

There is a circuit split on the reading of "protected activity" under 3730(h)—with the Fourth, Seventh, and D.C. Circuits following a broad interpretation of "protected activity" and the Sixth, Third, and Fifth Circuits following a narrow interpretation. The Fourth Circuit's standard is set forth in Eberhardt v. Integrated Design, 167 F.3d 861 (4th Cir. 1999). 

Congratulations to Jason Zuckerman of the Employment Law Group for this win.

Zachary A. Kitts
Cook & Kitts, PLLC