A ruling by the U.S. Court of Appeals for the 4th Circuit found that whistleblower provisions in the False Claims Act protect an individual from retaliation even if a lawsuit is not a distinct possibility. Originally, individuals were protected when they took action to further a claim under the act. However, the distinct possibility criteria was added prior to 2009, and it held that a retaliation suit was only merited if a viable action was to be taken under the FCA.
In 2009 and 2010, two amendments to the FCA were added to clarify what was considered a protected activity. The second of the two amendments offered expanded protection to whistleblowers who were taking action to stop one or more violations. In its ruling, the 4th Circuit said that Congress had intended to create a new and broader form of protection. However, it dismissed the plaintiff's claim, as the practice being complained about was underbilling the government, and thus the plaintiff could not have reasonably believed that this was an FCA violation.
Because of this, the court found that the distinct possibility criteria could not be the only standard to identify protected activity. Contractors are advised to avoid any activity that may be seen as discriminatory or retaliatory in nature even if a claim may not result in any action taken under the False Claims Act.
Workers who believe that they have been discriminated against or wrongfully terminated for reporting employer wrongdoings may be entitled to certain protections under the FCA or other federal statutes. They may wish to meet with an attorney to see what rights they have.