Jottings By An Employer's Lawyer

Wednesday, August 20, 2003

6th Cir. Rejects Both False Act Claim and Related Whistleblowing

It wasn't a good pleading day for the plaintiff when he failed to allege with sufficient specificity the fraudulent certifications that he claims his employer had made to the government. Holding that a plaintiff under the False Claims Act has the same level of pleading required by FRCP 9(b), the court affirmed the dismissal of his claim for failure to state a cause of action. Yuhasz v. Brush Wellman, Inc. (6th Cir. 8/20/03). He had no better luck on his whistleblowing claim since the Court found he had not sufficiently alleged his employer was aware of his protected activity when he was terminated. Noting the difference between advising the employer that its conduct was improper and could lead to penalties under the False Claims Act, with advising the employer that he intended to bring a claim under the FCA, the Court held that since he was the one most responsible for monitoring and notifying the employer of problems, he was only doing his job by bringing this to the employer's attention. For someone whose job it is to monitor compliance, it must be clear to his employer that he is pursuing a complaint against the company in order to raise the protection of the whistleblower statute.

Adding salt to the wound, the Court found that plaintiff's claim that he had not been allowed to amend his complaint in response to the 12(b)(6) motion to dismiss was invalid because it was unnecessary. Since the Rule 12(b)(6) motion was not an answer, and an answer was never filed, he retained the right to replead without permission of the court pursuant to Rule 15(a).

In the era of whistleblower as hero, this might be viewed as an unusually tight reading of the generally liberal pleading requirements.

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