KINI v. TATA CONSULTANCY SERVICES, LTD
Filing
47
MEMORANDUM OPINION re 24 Motion to Dismiss. Signed by Judge Tanya S. Chutkan on 2/7/24. (lce)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA ex rel.
ANIL KINI,
Plaintiff,
Civil Action No. 17-cv-2526 (TSC)
v.
TATA CONSULTANCY SERVICES, LTD.,
Defendant.
MEMORANDUM OPINION
Relator Anil Kini filed this action against Tata Consultancy Services, alleging that
Defendant violated the False Claims Act (“FCA”) by failing to obtain H-1B visas for, and pay
the proper H-1B wage rate to, employees who were engaged in H-1B visa work, as well as
retaliating against Relator for investigating the scheme. Relator’s allegations, however, do not
state a claim for relief because Defendant was not obligated, within the meaning of the FCA, to
pay higher payroll taxes for its employees or pay application fees for applications it never
sought. Relator, in turn, was not engaged in an investigation that could reasonably lead to a FCA
case, and therefore failed to state a retaliation claim as well.
Thus, having considered the record and the parties’ briefing, the court will GRANT
Defendant’s Motion to Dismiss, ECF No. 24.
I.
BACKGROUND
Relator Anil Kini is a U.S. permanent resident who worked for Defendant for over a
decade. Am. Compl., ECF No. 39-1, ¶¶ 4, 29–30. Relator initially worked for Defendant in
India, but in 2012, was relocated to the United States on an L-1A visa to serve as a consultant
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and was eventually promoted to Business Relationship Manager. Id. ¶¶ 29, 31. Defendant is a
multinational corporation that provides IT-related services headquartered in India with 22 offices
in the United States. Id. ¶¶ 5, 12. Most of Defendant’s U.S.-based workers have H-1B, L-1 or
B-1 visas. Id. ¶¶ 11, 14. H-1B visas are for foreign workers in specialty occupations requiring
theoretical or technical expertise, id. ¶ 15, L-1 visas are for management-level employees and
subject matter experts, id. ¶ 22, and B-1 visas are for consulting with business associates,
traveling for business meetings and conventions, and other temporary business activities, id.
¶ 26.
To apply for an H-1B visa, an employer must submit a Labor Condition Application
(“LCA”), attesting that the job actually exists and that it will pay the employee a required wage
rate, id. ¶ 17, and pay application fees of approximately $6,460 per visa, id. ¶ 21. Because H-1B
visas are limited and highly sought after, companies must compete for them through a lottery
system. Id. ¶ 19. L-1 visas are not similarly capped and an application for an L-1 visa costs
approximately $1,000 less than an H-1B visa. Id. ¶¶ 23, 25.
Relator alleges that Defendant engages in two related fraudulent schemes. First, to
quickly staff “cheap visa employees” in U.S. jobs, Defendant “submits far more petitions for H1B visas than it has open positions” to maximize its chances of securing the highest number of
visas through the lottery system, id. ¶ 34, and then “pays these workers less than the required
wage, in violation of the U.S. visa laws,” id. ¶ 36. Consequently, Defendant pays significantly
lower payroll taxes to the U.S. government than it would have to if it paid its H-1B visa
employees at the proper rate. Id. ¶ 44, 89.
Second, Defendant “improperly secures” L-1 and B-1 visas for IT employees working in
non-managerial roles and positions that do not require specialized knowledge of the company.
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Id. ¶¶ 45, 60. Put another way, Defendant uses L-1 and B-1 visas—which are easier to obtain—
for employees that require harder to obtain H-1B visas. To do so, Defendant “falsifies
individuals’ job titles and work responsibilities” on their visa applications, id. ¶ 45, and takes
steps to mask its deception from United States Customs and Immigration Services during visits,
id. ¶ 48. Relator alleges that this scheme wrongfully deprives the government “of significant
visa application fees,” because L-1 and B-1 visas fees are less expensive than H-1B visas. Id.
¶¶ 59, 61, 90.
On May 1, 2017, Relator submitted an initial whistleblower report to Defendant’s CEO
detailing the fraudulent visa practices. Id. ¶ 63. Over the course of the next year, Relator
submitted three follow-up reports and discussed his reports with an independent investigator
Defendant retained to assist in verifying the allegations. Id. ¶¶ 64–72. Relator alleges that
Defendant retaliated against him starting on May 1, 2017, by cutting his pay, stalling his
promotion, removing him from projects, and eventually terminating him. Id. ¶¶ 73–81.
Relator filed the initial Complaint under seal on November 22, 2017. See Compl., ECF
No. 1. The United States declined to intervene. See Notice of Election to Decline Intervention,
ECF No. 15. Accordingly, the court unsealed the Complaint. Order, ECF No. 16. While
awaiting the United States’ decision on intervention, Relator was terminated from his position.
Am. Compl. ¶ 30. He therefore filed an Amended Complaint, see ECF No. 39-1.
In the Amended Complaint, Relator alleges two violations of the FCA: (1) that Defendant
falsely attested and falsified wage information in LCAs for H-1B visas and fraudulently applied
for cheaper L-1 and B-1 visas for work it knew required an H-1B visa, thus decreasing its payroll
tax obligation, underpaying H-1B visa employees, and fraudulently directing employees to
perform work that required an H-1B visa who did not have that visa, in violation of 31 U.S.C.
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§ 3729; and (2) that Defendant retaliated against Relator for reporting its fraudulent conduct and
refusing to participate in subsequent acts of visa fraud, in violation of 31 U.S.C. § 3730(h). Am.
Compl. ¶¶ 97–106. Defendant moved to dismiss, ECF No. 24.
II.
A.
LEGAL STANDARD
Federal Rule of Civil Procedure 9(b)
A plaintiff alleging fraud “must state with particularity the circumstances constituting”
the fraud. Fed. R. Civ. P. 9(b). To plead fraud with particularity, the plaintiff must “set[] forth
in sufficient detail the time, place, and manner” of the fraudulent scheme, U.S. ex rel. Heath v.
AT&T, Inc., 791 F.3d 112, 123 (D.C. Cir. 2015), including “who precisely was involved in the
fraudulent activity,” U.S. ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1257
(D.C. Cir. 2004). If the plaintiff fails to plead fraud with particularity, the court will dismiss the
claim. See, e.g., id. at 1256–59 (affirming dismissal of fraud claim under the FCA pursuant to
Federal Rule of Civil Procedure 9(b) where the plaintiff failed to plead fraud with particularity).
B.
Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citation omitted). In other words, the plaintiff must plead “factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citation omitted).
In deciding a motion to dismiss, the court presumes the truth of the factual allegations in
the complaint and affords the plaintiff “every favorable inference that may be drawn from the
allegations of fact.” Laughlin v. Holder, 923 F. Supp. 2d 204, 208–09 (D.D.C. 2013) (citing
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Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The court does not, however, “accept as true ‘a
legal conclusion couched as a factual allegation,’ nor inferences that are unsupported by the facts
set out in the complaint.” Id. at 209 (citation omitted).
III.
A.
ANALYSIS
Count One
Count One alleges that Defendant falsely attested and falsified wage information in LCAs
for H-1B visas and fraudulently applied for cheaper L-1 and B-1 visas for work it knew required
an H-1B visa, thus decreasing its payroll tax obligation, underpaying H-1B visa employees, and
fraudulently directing employees without H-1B visas to perform work that required an H-1B
visa, in violation of 31 U.S.C. § 3729 (a “reverse false claim”). Am. Compl. ¶¶ 97–101.
i.
Pleading requirements for a reverse false claim
The FCA punishes any person who “knowingly makes, uses, or causes to be made or
used, a false record or statement material to an obligation to pay or transmit money or property to
the government, or knowingly conceals or knowingly and improperly avoids or decreases an
obligation to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G).
A “reverse false claim is any fraudulent conduct that results in no payment to the government
when a payment is obligated.” U.S. ex rel. Scott v. Pac. Architects & Eng’rs, 270 F. Supp. 3d
146, 155 (D.D.C. 2017) (citation omitted). As relevant here, to state a reverse false claim, the
relator must allege with particularity that the defendant’s actions affected an “obligation” to pay
or transmit money or property to the government. See 31 U.S.C. § 3729(a)(1)(G); Fed. R. Civ.
P. 9(b).
The FCA defines the term “obligation” as “an established duty, whether or not fixed,
arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship,
from a fee-based or similar relationship, from statute or regulation, or from the retention of any
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overpayment.” 31 U.S.C. § 3729(b)(3). In construing this definition, the D.C. Circuit has held
that “an unassessed potential penalty for regulatory noncompliance does not constitute an
obligation that gives rise to a viable FCA claim.” Hoyte v. Am. Nat’l Red Cross, 518 F.3d 61, 67
(D.C. Cir. 2008); accord U.S. ex rel. Schneider v. JPMorgan Chase Bank, 878 F.3d 309, 315
(D.C. Cir. 2017) (potential exposure to penalties is not an “obligation”). Nor does the
government’s ability to pursue reimbursement for overpayments or fraudulently induced
payments. U.S. ex rel. Morsell v. NortonLifeLock, Inc., 651 F. Supp. 3d 95, 189–90 (D.D.C.
2023).
The FCA, moreover, “does not apply to claims, records, or statements made under the
Internal Revenue Code.” 31 U.S.C. § 3729(d). The Second Circuit applies this “tax bar”
provision to a FCA claim if the “case depends entirely on a purported violation of the Tax Code”
and “the IRS has authority to recover the precise amounts [the plaintiff] is seeking.” U.S. ex rel.
Lissack v. Sakura Glob. Cap. Mkts., Inc., 377 F.3d 145, 153 (2d Cir. 2004). That test is in
keeping with the tax bar’s intent to “reserve[] discretion to prosecute tax violations to the IRS
and bar[] FCA actions based on tax violations.” Id. at 152–53 (citations omitted). Defendant
argues that courts in this district have adopted a broader reading of the tax bar than the Second
Circuit, but that is not the case. See Def.’s Mot. to Dismiss, ECF No. 24 at 19 (“Motion”).
Rather, courts in this district have merely recognized that obligations to pay taxes arising from
the Internal Revenue Code cannot support a viable FCA claim. See, e.g., Canen v. Wells Fargo
Bank, N.A., 118 F. Supp. 3d 164, 170 (D.D.C. 2018) (citing 31 U.S.C. § 3729(d)); accord
Ananiev v. Freitas, 37 F. Supp. 3d 297, 307 (D.D.C. 2014). Although its decision is not binding,
the Second Circuit’s test for determining whether the tax bar provision applies is well-founded,
and the court finds it persuasive.
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ii.
Relator failed to plead a reverse false claim with particularity
Relator claims that Defendant “falsely attested and falsified wage information in LCAs
for H-1B visas,” “wrongfully decreased its obligation to pay the U.S. government payroll taxes
by fraudulently and unlawfully underpaying H-1B visa employees,” and “decreased its
obligation to pay H-1B visa application[] fees by fraudulently applying for cheaper” visas and
for H-1B visa work. Am. Compl. ¶¶ 98–99. Those claims fail because Defendant did not have
an “obligation” under the FCA to pay its employees higher wages. Accordingly, the court need
not reach the issue of whether Relator properly alleged that Defendant acted “knowingly.”
The D.C. Circuit has clearly stated that “an unassessed potential penalty for regulatory
noncompliance does not constitute an obligation that gives rise to a viable FCA claim.” Hoyte,
518 F.3d at 67. Thus, even though Relator alleges that Defendant took unlawful actions—
underpaying employees and failing to obtain the proper visa for those employees—those actions
are regulatory violations that may give rise to potential penalties, not “established dut[ies].” 31
U.S.C. § 3729(b)(3). As in Hoyte, Defendant did not have “an obligation to pay or transmit
money to the Government,” but rather, engaged in “mere regulatory noncompliance.” 518 F.3d
at 68.
Relator’s arguments to the contrary are unpersuasive. First, he argues that unassessed
penalties are “obligations” under the FCA if their assessment do not require the exercise of
government discretion. Relator’s Opp’n to Def.’s Mot. to Dismiss, ECF No. 32 at 16–18
(“Opp’n”). But that argument is inconsistent with Hoyte, which emphasized the need for a
present “obligation to pay or transmit money” to the government. 518 F.3d at 68. Nor does
Relator’s argument that unassessed penalties can be “obligations” if they do not involve
government discretion align with the FCA’s purpose. As the D.C. Circuit has recognized, a 2009
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amendment to the FCA “modified its language to require that an obligation be ‘established,’”
thus confirming that “unassessed” penalties do not give “rise to a viable FCA claim.” Schneider,
878 F.3d at 315 (citations omitted). And as the Supreme Court has explained, the FCA is not a
“vehicle for punishing garden-variety . . . regulatory violations.” Universal Health Servs., Inc. v.
U.S. ex rel. Escobar, 579 U.S. 176, 194 (2016). Extending an “obligation” under the FCA to
non-discretionary fees, fines, or penalties would undermine the purpose of the 2009 amendment
and render “garden-variety” regulatory violations FCA cases.
Second, Relator contends that Defendant owed a payroll tax obligation because although
it owed and paid these taxes, it underpaid them. Opp’n at 18–19. But Relator does not allege
that Defendant’s payroll tax contribution did not accord with the wages it paid its employees.
See Am. Compl. ¶ 89 (“[B]y fraudulently certifying and failing to pay its H-1B employees the
required wage rate, [Defendant] has reduced the amount of federal payroll tax it otherwise would
have been required to pay the federal government.”); Opp’n at 35–40 (explaining that Defendant
did not violate the Tax Code, but rather, underpaid its employees, indirectly resulting in tax
underpayment). Thus, any obligation to pay higher payroll taxes was contingent on Defendant
paying its employees at higher rates. At bottom, Relator’s claim is that Defendant violated
immigration laws by failing to pay its employees at the required H-1B visa rate; not that
Defendant engaged in a fraudulent scheme to underpay the government in violation of the FCA.
Finally, Relator argues that Defendant had an “obligation” to apply for H-1B visas, and
thus, had an obligation to pay the fees for those applications. Opp’n at 20–28 (citing U.S. ex rel.
Bahrani v. Conagra, Inc., 465 F.3d 1189 (10th Cir. 2006); Franchitti v. Cognizant Tech. Sols.
Corp., 555 F. Supp. 3d 63 (D.N.J. 2021)). Once again, Relator’s theory is too attenuated. “The
lesson of Hoyte is that, in the absence of acknowledged liability, whether an ‘obligation’ exists
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depends entirely on what the relevant legal instrument . . . requires a party to do” in a “selfexecuting” manner. U.S. ex rel. Landis v. Tailwind Sports Corp., 160 F. Supp. 3d 253, 272
(D.D.C. 2016). In other words, had Defendant applied for H-1B visas, regulations would have
created an obligation for it to pay the application fees. But here, Defendant did not owe
application fees because it did not apply for H-1B visas; it applied for L-1 and B-1 visas.
Conagra and Franchitti do not tip the balance in Relator’s favor. First, Conagra is
distinguishable. The Tenth Circuit there held that the defendant had an “obligation” to pay fees
for replacement certificates once the government determined its original certificates contained
major errors and that replacement certificates would be necessary. 465 F.3d at 1202–03. Here,
in contrast, the government did not determine that Defendant needed to apply for H-1B visas
rather than L-1 or B-1 visas. In any event, to the extent that Conagra held that application fees
are “obliged” for certificates the defendant did not apply for, “Conagra” is “flatly inconsistent
with the D.C. Circuit’s reasoning in Hoyte.” Landis, 160 F. Supp. 3d at 272.
Franchitti is likewise unpersuasive. In that case, the District of New Jersey held that
there was “implied contractual” relationship between the government and the defendant because
the defendant “desired” an H-1B visa, despite obtaining L-1 and B-1 visas instead, and thus was
required to “pay the appropriate fee for” the H-1B visa. 555 F. Supp. 3d at 71. But the notion
that Defendant “desired” H-1B visas rests on a legal fiction, not Relator’s allegations. Relator
did not allege that Defendant sought H-1B visas or hoped to receive H-1B visas when it applied
for L-1 and B-1 visas. Rather, Relator alleged that Defendant sought and received L-1 and B-1
visas where, according to statutes and regulations, Defendant should have instead sought H-1B
visas. Those allegations do not support a conclusion that Defendant here “desired” H-1B visas.
Indeed, Franchitti reached a different conclusion than Lesnik v. Eisenmann SE, 374 F. Supp. 3d
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293, 940 (N.D. Cal. 2019), which also addressed a similar fact pattern and held that “the
obligation to pay the government only arises upon applying for a visa.” The court concurs with
Lesnik.
The court, however, declines Defendant’s invitation to apply the tax bar. Defendant
argues that the court should apply the FCA’s tax bar provision to dismiss Relator’s reverse false
claim because it relates to payroll taxes. Motion at 19–21. That argument is unpersuasive
because Relator’s claim does not rest on a violation of the Tax Code and the IRS does not have
authority to recover the amount Relator seeks. See Lissack, 377 F.3d at 152–53. As Relator
explained, the Immigration and Nationality Act (“INA”)—not the Tax Code—obliges Defendant
to pay H-1B visa holders a required wage rate. See Opp’n at 39. Thus, Relator does not allege
that Defendant violated the Tax Code by underpaying payroll taxes for H-1B visa employees, but
rather, that Defendant underpaid H-1B visa employees, thus making its tax obligations lower
than they otherwise would have been if it had complied with the INA. And the INA’s wagerequirement provision is enforced by the Secretary of Labor, not the IRS. See 8 U.S.C.
§ 1182(n)(2)(A), (D), (G). Consequently, the tax bar is inapplicable.
In sum, Relator failed to state a reverse false claim because, tax bar aside, he did not
allege that Defendant had an “obligation” to pay higher payroll taxes or H-1B visa application
fees to the government. The court will therefore grant Defendant’s motion to dismiss Count
One.
B.
Count Two
Count Two alleges that Defendant retaliated against Relator for reporting its fraudulent
behavior and refusing to take part in its fraudulent acts. Am. Compl. ¶¶ 102–06.
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i.
Stating a retaliation claim
To state a claim for retaliation under 18 U.S.C. § 3730(h)(1), a relator must allege that
they (1) “engaged in protected activity,” and (2) “experienced discrimination ‘because of’” that
activity. Shekoyan v. Sibley Int’l, 409 F.3d 414, 422 (D.C. Cir. 2005) (quoting 31 U.S.C.
§ 3730(h)). “The purpose of this provision” is “to ‘assure those who may be considering
exposing fraud that they are legally protected from retaliatory acts.’” U.S. ex rel. Yesudian v.
Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998) (quoting S. Rep. No. 99-345 at 34 (1986)).
First, to plead engagement in protected activity, a plaintiff must allege they were
“investigating matters that reasonably could lead to a viable [FCA] case.” Hoyte, 518 F.3d at 66
(formatting modified). This element “does not require the plaintiff to have developed a winning
qui tam action before he is retaliated against,” but their investigation “must concern false or
fraudulent claims,” not just “his employer’s non-compliance with federal or state regulations.”
Yesudian, 153 F.3d at 739–40. This inquiry is “fact specific.” Shekoyan, 409 F.3d at 423
(citation omitted).
The D.C. Circuit in Yesudian, for example, concluded that the relator was engaged in an
investigation that reasonably could lead to a viable FCA case because he repeatedly told his
supervisors at Howard University that he had evidence of an employee falsifying time and
attendance records, providing inside information to vendors to aid them in bidding, accepting
bribes from vendors, paying vendors who did not provide services to the university, and taking
property home for personal use. 153 F.3d at 740. Even though there was no direct evidence of
submitting false claims to the government, the court concluded that the relator would have had a
“good faith basis” to bring a FCA claim because he “knew that 80% of Howard’s money came
from the United States Government.” Id.
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By contrast, the D.C. Circuit concluded that an employee was not engaged in protected
activity where the complaints he raised with his supervisor were based on being denied the use of
project vehicles, not that others were engaged in fraudulent conduct by using these vehicles for
personal reasons. Shekoyan, 409 F.3d at 423. Similarly, in Hoyte, the D.C. Circuit concluded
that the employee’s “investigation was into mere regulatory noncompliance,” not false claims.
518 F.3d at 68.
Second, to plead that they experienced discrimination “because of” their protected
activity, a relator must show that their “employer had knowledge” that they were “engaged in
protected activity” (the intent requirement) and that “retaliation was motivated, at least in part,
by the employee’s engaging in that protected activity” (the causation requirement). Yesudian,
153 F.3d at 736 (formatting modified). “[T]he kind of knowledge the defendant must have” to
fulfill the intent requirement “mirrors the kind of activity in which the plaintiff must be
engaged.” Id. at 742. And to fulfill the causation requirement, the relator must allege that their
protected activity was a motivating factor in an adverse employment action. See Hamilton v.
Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (citing Woodruff v. Peters, 482 F.3d 521, 529
(D.C. Cir. 2007)) (applying the causation standard used for Title VII, the Americans with
Disabilities Act, and the Rehabilitation Act to the FCA’s retaliation provision).
ii.
Relator failed to state a claim for retaliation
Relator’s retaliation claim under the FCA fails because Relator was not engaged in
protected activity. He alleges three instances of protected activity: (1) investigating the reports
in his Complaint and reporting them to Defendant; (2) assisting his counsel in preparing the
Complaint; and (3) preparing to disclose Defendant’s scheme to government officials. Am.
Compl. ¶ 103. But all of these activities concerned potential statutory and regulatory violations,
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which do not give rise to a FCA action. Supra Section III.A.ii. Thus, because the conduct
Relator was investigating “could not have reasonably led to a viable claim under section 3729 of
the FCA,” his “investigation of it was not protected activity” that could “support a retaliation
claim” under § 3730. Hoyte, 518 F.3d at 68.
Relator claims that Singletary v. Howard University, 939 F.3d 287, 296 (D.C. Cir. 2019),
supports his claim that he was engaged in protected activity because he had “an objectively
reasonable belief that” Defendant was violating the FCA. Opp’n at 42–44. Relator’s argument,
however, refers to a different “prong” of the protected activity analysis than his Amended
Complaint does—that is, Relator argues he was seeking to prevent future violations of the FCA,
rather than investigating existing violations. See id.; Singletary, 939 F.3d at 236 (explaining that
this “prong” “is met as long as the employee has an objectively reasonable belief that the
employer is violating, or will violate, the False Claims Act”). Thus, the allegations in the
Amended Complaint do not support the theory that Relator was trying to prevent Defendant from
violating the FCA rather than investigating violations. See Am. Compl. ¶¶ 102–06. In any
event, Singletary held that the relator’s complaints “went far beyond grumbling about regulatory
violations” because she was attempting to prevent Howard from submitting false claims of
animals’ conditions to the government that would be “necessary for Howard to receive and
retail” federal funding. 939 F.3d at 302–03. Relator’s allegations, however, do not go “far
beyond” “regulatory violations.” Thus, that Singletary had an “objectively reasonable belief”
that her employer was violating the FCA does not say the same for Relator in this case.
In sum, Relator failed to allege that he was engaged in protected activity under the FCA.
Thus, he cannot state a retaliation claim.
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IV.
CONCLUSION
For the foregoing reasons, the court will GRANT Defendant’s Motion to Dismiss, ECF
No. 24. An Order will accompany this Memorandum Opinion.
Date: February 7, 2024
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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