Whistleblower's transportation qui tam, wrongful retaliation claims dismissed

by Ben Vernia | April 25th, 2011

On April 8, Northern District of Illinois Judge Sharon Johnson Coleman, in U.S. ex rel. Bragg v. SCR Medical Transp. dismissed the qui tam and antiretaliation (31 USC 3730(h)) claim of a former manager of a transportation service, who had alleged that the firm – a contractor to federally-funded city and regional transportation agencies – had falsified on-time trip reports to improve its reimbursement.

After the government and state of Illinois declined to intervene in the case, the company moved to dismiss the False Claims Act counts for lack of particularity under Fed. R. Civ. P. 9(b). The court agreed with the company that the relator’s complaint was inadequate under the rule; the relator alleged only a general scheme to defraud the government, and had not even provided examples of allegedly false trip reports. Judge Coleman rejected the relator’s argument that the requirement should be relaxed, noting that the relator – who alleged that he had daily access to trip reports and monitored the rate and progress of their falsification – was not prevented from obtaining the information he needed to satisfy the requirement.

Judge Coleman also granted the defendant’s motion to dismiss the whistleblower protection claim, finding that the relator’s allegations that he objected to the fraud and expressed an unwillingness to participate did not rise to the level of protected activity: “A refusal to comply with fraudulent conduct does not, without more, constitute protected activity.” She also found that the relator had failed to allege that his former employer was aware that he was engaging in protected activity.

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