Dissent

On September 17, 2015, the 4th U.S. Circuit Court of Appeals issued a decision reviving cases that were originally filed in September of 2011 and then a second filed in January 2013 by a former employee of Norfolk Southern Railway Company (NS).  

In the first lawsuit, the whistleblower claimed that NS suspended him due to his race.  After the district court sided in favor of NS, he filed a second lawsuit. This complaint alleged that NS suspended him for reporting rail safety offenses, in violation of the whistleblower protection provision of the Federal Railroad Safety Act (FRSA). The district court again granted summary judgment in favor of NS, asserting that the whistleblower's second lawsuit was barred by the FRSA's “Election of Remedies” provision, which provides that “[a]n employee may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier.” 49 U.S.C. § 20109(f).

In July 2011, NS suspended the whistleblowing employee without pay for six months. Neither party agreed to the factual basis of the suspension. NS claims it suspended the employee because he drank a beer on duty and then operated a company-owned automobile in violation of company policy. The plaintiff, who is African–American, claims the suspension was motivated both by his race and in retaliation for federal rail safety whistleblowing. 

Less than two months after filing his first lawsuit, Lee filed a complaint with the Occupational Safety and Health Administration (OSHA) under the FRSA's whistleblower provision, 49 U.S.C. § 20109. That provision prohibits railroad carriers from, among other things, discriminating against employees who “refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security.” Id. § 20109(a)(2). According to Lee, federal law required him to identify—or “bad order”—defective rail cars for repair. NS capped the number of cars he could tag with such orders, however, effectively requiring him to violate federal law. When he refused to comply with the caps, Lee alleges that NS suspended him in July 2011.

First, the district court concluded that, to the extent Lee's claims were based on the collective bargaining agreement, they were preempted by the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq., which requires arbitration of such claims. The court further concluded that NS was not vicariously liable for the individual instances of racial harassment by Lee's co-workers.

Less than a month after the district court granted NS summary judgment in the first lawsuit, Lee filed his FRSA retaliation lawsuit. The allegations in this second lawsuit largely track those in Lee's OSHA complaint. Lee again alleged that he was tasked with tagging defective train cars with “bad orders,” but that NS capped the number of cars he could tag. In doing so, Lee contends NS pressured him to “violate federal rail safety regulations and laws and violate NS's own safety and mechanical department rules.” 

On May 20, 2014, the district court granted summary judgment to NS on Lee's FRSA claims, concluding that Lee's first lawsuit for racial discrimination under Section 1981 constituted an election of remedies under FRSA Section 20109(f) that barred Lee's subsequent FRSA retaliation action. Lee then timely noted this appeal.

A former city employee who claimed she was fired for acting as a whistleblower on official misconduct filed a complaint in April 2011.  Her specific accusations were that the city was in violation of New Jersey's Conscientious Employee Protection Act when it fired her for whistleblowing during her employment. The details of the settlement were not disclosed.

Between 1995 until her dismissal in 2011, the whistleblower served as the city's principal personnel clerk. She was barred from asserting several pieces of evidence if the case went to trial. The barred evidence included her claim the city fired her for cooperating with FBI agents conducting an investigation in 2005 during Operation Bid Rig.

Operation Bid Rig was the state's largest federal corruption sting, targeting dozens of politicians and officials in Monmouth and Ocean counties and elsewhere in the state.

A settlement has been reached in a whistleblower class action lawsuit brought against North Broward Hospital District who is accused of engaging in improper financial relationships with referring physicians.

The whistleblower will receive $12,045,655.51 from the recovery. 

The whistleblower case, filed in 2010, alleged that the hospital district provided compensation to nine employed physicians that exceeded the fair market value of their services.  The United States contended that these agreements violated the Stark Statute and the False Claims Act.  The Stark Statute restricts the financial relationships that hospitals may have with doctors who refer patients to them.

A settlement has been reached in relation to two whistleblower class action lawsuits brought against Columbus Regional Healthcare System (Columbus Regional) and Dr. Andrew Pippas.  They are accused of submitting claims in violation of the Stark Law and submitting claims for payment to federal health care programs that misrepresented the level of services they provided. 

Under the settlement agreement, of the $25.425 million that Columbus Regional and Pippas have agreed to pay to resolve their respective civil claims, they will pay $24,666,040 to the federal government for federal healthcare program losses and $758,960 to the state of Georgia for the state share of its Medicaid losses, plus additional contingent payments not to exceed $10 million, for a maximum settlement amount of $35 million.The whistleblower's recovery amount was not disclosed.

The first of the two lawsuits was filed in May 2012.  The lawsuits alleged that that from May 2006 through May 2013, Columbus Regional submitted claims to federal health care programs for services at higher levels than supported by the documentation, and between 2010 and 2012, they submitted claims to federal health care programs for radiation therapy at higher levels than the therapy that was provided.

A settlement has been reached in a whistleblower class action lawsuit brought against Fluor Hanford LLC who is accused of using federal funds for lobbying.

The whistleblower will receive $200,000 of the government’s settlement.

The case, filed in February 2011, alleged that Fluor used Department of Energy (DOE) funds to lobby Congress and other federal officials to increase funding for the HAMMER Center, in violation of a federal law known as the Byrd Amendment, which prohibits the use of federal funds for lobbying.

Between 2005 and 2009, Fluor contracted with the DOE to manage and operate the Hazardous Materials Management and Emergency Response (HAMMER) Center. The HAMMER Center provides homeland security and emergency response training to first responders and law enforcement personnel.

A settlement has been reached in a whistleblower class action lawsuit brought against Hencorp Becstone Capital LC  who is accused of making false statements and claims to the Export-Import Bank of the United States (Ex-Im Bank) in order to obtain loan guarantees.

The whistleblowers will receive $608,000 of the settlement. 

The case, filed in February 2013, alleged that Ricardo Maza, a Peruvian-based former Hencorp business agent, created false documentation to obtain Ex-Im Bank guarantees on fictitious transactions on which no products were sold or exported, and that Hencorp acted recklessly by outsourcing key credit review functions to Maza without adequate supervision or oversight.  The government alleged that Maza then diverted the proceeds of the loans to himself and to his friends and business associates in Peru, and that the transactions resulted in losses to the Ex-Im Bank when the loans were not repaid.  In 2012, Mario Mimbella, 64, of Miami, Florida, the purported U.S.-based exporter on three of the fraudulent transactions, pled guilty to making false records for his participation in the scheme and was later sentenced to prison.

A settlement has been reached in a whistleblower class action lawsuit brought against US Investigations Services Inc (USIS) and its parent company, Altegrity, who are accused of failing to perform required quality control reviews in connection withbackground investigations that USIS held with the U.S. Office of Personnel Management (OPM).

According to the settlement details, the companies have agreed to forgo their right to collect payments that they claim were owed by OPM, valued at least at $30 million, in exchange for a release of liability under the False Claims Act.  

The whistleblower's portion of the recovery has not been determined.

The case, originally filed in July 2011, alleged that beginning in at least March 2008 and continuing through at least September 2012, USIS deliberately circumvented contractually required quality reviews of completed background investigations in order to increase the company’s revenues and profits.  Specifically, USIS allegedly devised a practice referred to internally as “dumping” or “flushing,” which involved releasing cases to OPM and representing them as complete when, in fact, not all the reports of investigations comprising those cases had received a contractually-required quality review.  The government contended that, relying upon USIS’ false representations, OPM issued payments and contract incentives to USIS that it would not otherwise have issued had OPM been aware that the background investigations had not gone through the quality review process required by the contracts.

A settlement has been reached in a whistleblower class action lawsuit brought against Jackson-Madison County General Hospital who is accused of overbilling Medicare and Medicaid for certain cardiac procedures.

The whistleblower's portion of the settlement was not disclosed.

The lawsuit, filed in 2007, alleged that Jackson-Madison County General Hospital placed cardiac stents in patients when the procedure was not required, together with other cardiac procedures that were deemed not medically necessary. The hospital, according to allegations stemming from an investigation and a whistleblower healthcare fraud lawsuit, then billed Medicare and Medicaid.

A settlement has been reached in a whistleblower class action lawsuit brought against Eon Labs Inc who is accused of submitting false quarterly reports to the government. 

The settlement resolves allegations against Eon in a multi-defendant whistleblower action. The whistleblower will receive approximately $525,000 in relation to this particular settlement.

The originally filed lawsuit originated in 2002.  The United States alleged that, from April 1999, and continuing through September 2008, Eon submitted false quarterly reports to the government that misrepresented Nitroglycerin SR's regulatory status and failed to advise that Nitroglycerin SR no longer qualified for Medicaid coverage. As a result, the government contends, Eon knowingly caused false Medicaid claims to be submitted for Nitroglycerin SR.

In April 1999, the Food & Drug Administration (FDA) determined that Nitroglycerin SR lacked substantial evidence of effectiveness and published a notice proposing to withdraw approval of the product. The government contends that, after the FDA notice, Nitroglycerin SR no longer was legally eligible for reimbursement by government health care programs such as Medicaid.

A settlement has been reached to resolve False Claims Act allegations against University of Phoenix who is accused of student recruitment policies that violated the False Claims Act.

The two whistleblowers will receive $19 million from the settlement.

This case began as a whistleblower action against another company. Though the United States did not intervene in this action, the Government provided support and assistance to the whistleblowers at many stages of the case.