Fifth Circuit upholds summary judgment against whistleblower in construction case

by Ben Vernia | March 21st, 2011

In an unpublished opinion issued on March 17, the Fifth Circuit Court of Appeals upheld a district court’s grant of summary judgment on qui tam and wrongful retaliation claims brought by a construction worker. The worker alleged that his former employer, a contractor on a Louisiana state project partly funded by the federal government, alleged that the company had violated the False Claims Act by using substandard construction techniques.

The district court found, and the Court of Appeals agreed, that the relator’s proposed standards of workmanship were not found in the contract, as required to establish a violation of the Act. In addition, the court reasoned, the relator had no evidence that false claims were presented for payment to the federal government, or that the company had acted with the scienter required for a violation.

The court likewise rejected the whistleblower’s retaliation claims, finding that although he had complained of the work being performed, he had not complained of alleged fraud; his complaints were not, therefore, in furtherance of a qui tam action, as required to establish a violation of the Act’s antiretaliation provision, 31 U.S.C. 3730(h).

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