Pro se whistleblower's qui tam dismissed along with wrongful retaliation claims

by Ben Vernia | April 18th, 2011

On April 14, in U.S. ex rel. Malone v. Omaha Housing Auth’y, District Judge Richard G. Kopf of Nebraska granted the defendants’ motions to dismiss a qui tam and wrongful retaliation suit brought against a housing authority and its employees by a landlord whistleblower.

After the Department of Justice declined to intervene in the case, the relator’s lawyer withdrew, and Judge Kopf followed the Eighth Circuit’s 60-year-old decision in U.S. v. Onan (8th CIr. 1951) barring pro se qui tam suits.

Judge Kopf also dismissed the wrongful retaliation claims (the landlord had alleged that the housing authority had denied contracts to his properties and sent inspectors in retaliation for his complaints about their alleged false claims). Prior to the 2009 amendments of the FCA by the Fraud Enforcement and Recovery Act, he noted, the antiretaliation provision, 31 U.S.C. 3730(h) only applied to employees, and not contractors. Although the FERA amendments changed that, the court found that the provision was not retroactive, and the contractor had not alleged any wrongful conduct after FERA’s passage.

Judge Kopf also dismissed state tortious interference with contract claims on state sovereign immunity grounds.

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