Posts

Fourth Circuit Adopts ‘But-For’ Causation For False Claims Act Retaliation Cases

By Andrew J. Henson
Earlier this month in United States ex rel. Cody v. ManTech, Int’l, Corp., 2018 WL 3770141 (4th Cir. 2018), the Fourth Circuit determined that a “but-for” causation standard should apply to retaliation claims under the Federal False Claims Act (“FCA”). 31 U.S.C. § 3729, et seq.

The Fourth Circuit’s opinion scrutinized the FCA’s retaliation protections, which apply in part if an employee is discharged, “because of lawful acts done by the employee, . . . in furtherance of an action under [the FCA] or other efforts to stop 1 or more violations of [the FCA].” 31 U.S.C. § 3730(h)(1) (emphasis added). The court reviewed this statute in conjunction with two significant Supreme Court cases construing similar federal employment statutes, Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (finding “but-for” causation under the ADEA where the statute utilized the phrase “because of”), and Univ. of Texas Southwest Med. Center v. Nassar, 570 U.S. 338 (2013) (finding the phrase “on the basis of” in Title VII retaliation claims required but-for causation). Moreover, by this decision, the Fourth Circuit joins the opinions of the Seventh, Fifth, and Third Circuits on that same issue. See DiFiore v. CSL Behring, LLC, 879 F.3d 71 (3d Cir. 2018) (finding but-for causation under FCA retaliation claims); United States ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318 (5th Cir. 2017) (same); United States ex rel. Marshall v. Woodward, Inc., 812 F.3d 556 (7th Cir. 2015) (same).

Read more