December 8th, 2022 by Rieders Travis in Miscellaneous

United States ex rel. Ascolese v. Shoemaker Constr. Co., 2022 U.S. App. LEXIS 33142 (November 30, 2022) (Restrepo, C.J.)  Appellant Don Ascolese, a compliance officer, challenges the District Court’s dismissal of his False Claims Act (“FCA”) retaliation claim against his former employer, Appellee McDonough Bolyard Peck (“MBP”), in connection with a qui tam action involving a federally funded public housing construction project for the Philadelphia Housing Authority (“PHA”). In 2009-2010, Congress amended the FCA to expand the scope of protected conduct shielded from retaliation and the type of notice an employer must have of the protected conduct. Here, the District Court denied Ascolese leave to file a Second Amended Complaint, applying both the old and new standards for retaliation under the FCA. This Court has not yet had the opportunity to address the statutory changes to the FCA retaliation standard. We take the occasion to do so now and adopt the new post-amendment standard. We will vacate and remand to the District Court for further proceedings. Employees seeking to report from within an organization might be reluctant to use these qui tam provisions for fear of employer backlash, thus the act also shields whistleblowers from retaliation “because of” conduct protected by the FCA. 31 U.S.C. § 3730(h)(1). Prior to 2009, protected activity included only “lawful acts done by the employee . . . in furtherance of an action under this section [i.e., a qui tam suit].” 31 U.S.C. § 3730(h) (2008). This was known as the “distinct possibility” standard since it required plaintiffs to show that their employer had notice of the distinct possibility that the plaintiff was contemplating the filing of an FCA lawsuit. Hutchins, 253 F.3d at 179 (holding that “a retaliatory discharge cause of action under 31 U.S.C. § 3730(h) requires proof that the employee engaged in ‘protected conduct’ and that the employer was on notice of the ‘distinct possibility’ of False Claims Act litigation and retaliated against the employee”).  In 2009, however, Congress expanded the universe of protected conduct to whistleblowers who lawfully try to stop one or more violations of the Act, without regard to whether their conduct advances a qui tam suit under the Act:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.

31 U.S.C. § 3730 (emphasis added). Congress amended these whistleblower protections once again in 2010, now expressly protecting “lawful” acts “in furtherance of” either “an action” under the FCA or “other efforts to stop 1 or more violations of” the Act. 31 U.S.C. § 3730(h)(1)see, e.g.United States ex rel. Reed v. KeyPoint Gov’t Sols., 923 F.3d 729, 765 (10th Cir. 2019) (adopting these two amendments to the Act).  Accordingly, we recognize that  the 2009-2010 FCA amendments expanded the anti-retaliation standard to protect “lawful” acts “in furtherance of” either “an action” under the FCA or “other efforts to stop 1 or more violations of” the Act. 31 U.S.C. § 3730(h)(1).

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]



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