Mann v. Heckler & Koch Defense, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

JASON MANN, 
Plaintiff-Appellant,
v.
HECKLER & KOCH DEFENSE,
INCORPORATED,
Defendant-Appellee,
and
HECKLER & KOCH GMBH,  No. 09-1847
Defendant.

METROPOLITAN WASHINGTON
EMPLOYMENT LAWYERS
ASSOCIATION; NATIONAL
WHISTLEBLOWERS CENTER,
Amici Supporting Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(1:08-cv-00611-JCC-TCB)

Argued: October 28, 2010

Decided: December 27, 2010

Before TRAXLER, Chief Judge, WILKINSON, Circuit
Judge, and Bobby R. BALDOCK, Senior Circuit Judge of
the United States Court of Appeals for the Tenth Circuit,
sitting by designation.
2 MANN v. HECKLER & KOCH DEFENSE
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Senior Judge
Baldock joined.

COUNSEL

ARGUED: Jason Mark Zuckerman, THE EMPLOYMENT
LAW GROUP, PC, Washington, D.C., for Appellant. C.
Allen Foster, GREENBERG TRAURIG, LLP, Washington,
D.C., for Appellee. ON BRIEF: R. Scott Oswald, THE
EMPLOYMENT LAW GROUP, PC, Washington, D.C., for
Appellant. Robert P. Charrow, Laura Metcoff Klaus,
GREENBERG TRAURIG, LLP, Washington, D.C., for
Appellee. Richard R. Renner, NATIONAL WHISTLE-
BLOWER LEGAL DEFENSE AND EDUCATION FUND,
Washington, D.C., for Amici Supporting Appellant.

OPINION

WILKINSON, Circuit Judge:

Jason Mann brought a False Claims Act ("FCA") retaliation
action against Heckler & Koch Defense, Inc. ("HKD"). He
argued that HKD took adverse employment action against
him because he investigated and opposed HKD’s attempts to
defraud the United States. But Mann’s actions fall outside the
scope of FCA protection. The FCA shields employees from
retaliation when they oppose fraud. And the conduct Mann
opposed involved nothing more than non-fraudulent state-
ments made by HKD during the course of a contractual bid-
ding process. The district court rejected Mann’s claim, and we
now affirm.

I.

HKD is in the business of selling firearms to United States
military and law enforcement agencies. On November 23,
 MANN v. HECKLER & KOCH DEFENSE 3
2007, the Secret Service issued a contract solicitation for
rifles for its counterassault team. Wayne Weber, Mann’s
supervisor, believed that the Statement of Work ("SOW")
detailing the specifications of the rifle matched up well with
HKD’s HK-416 rifle. But the SOW required two components
that were not available on the HK-416, ambilevers, which are
devices that allow left-handed personnel to operate the rifle,
and two-stage match triggers. Nevertheless, HKD submitted
its bid along with sample HK-416 rifles on February 28, 2008.
HKD noted that while it did not currently meet the ambilever
and two-stage match trigger requirements, it would be able to
provide these components if it won the bid.

Around that same time, Weber received aftermarket
ambilevers for the HK-416 from consultant Larry Vickers.
Mann and another HKD employee, Robbie Reidsma, thought
that the ambilevers did not fit the HK-416 and did not meet
HKD’s typical quality standards. Vickers echoed these con-
cerns. But Weber overruled them. In order to demonstrate that
the sample HK-416 could conform to the SOW, Weber
arranged to deliver the ambilevers to Jim Galvin, a friend at
the Secret Service. He sent Reidsma to deliver the ambilevers
to Galvin on March 3, 2008, which was after the official close
of bidding.

When Weber informed Mann of this delivery, Mann
expressed disapproval of Weber’s handling of the bid. Mann
told Weber that he should not have submitted the bid in the
first place because it did not meet the SOW specifications and
that he should not have delivered the ambilevers after the
deadline. Mann also began investigating whether Weber’s
conduct violated federal contracting regulations or other laws.
In early April 2008, Mann expressed his concerns about
Weber’s conduct to numerous HKD employees, who then
relayed his concerns to HKD management.

Martin Newton, CEO of HKD, and the rest of HKD man-
agement took prompt action when they learned of Mann’s
4 MANN v. HECKLER & KOCH DEFENSE
concerns. Newton immediately ordered HKD personnel to
halt their informal investigation of Mann’s allegations and
instead retained John Einwechter, an attorney specializing in
these matters, to conduct a formal investigation. HKD also
put Mann on administrative leave for approximately one week
starting on April 9, 2008. During the ensuing investigation,
Mann relayed his concerns about Weber’s conduct to Ein-
wechter. Einwechter concluded that while Weber may have
violated regulatory procedures by contacting Galvin outside
of proper channels, he did not violate the FCA because there
was no fraud. Weber did not conceal his actions during the
bid process, and, therefore, any regulatory violation was open
and apparent on its face.

As for the bid, Weber’s strategy proved to be ineffective.
HKD began receiving complaints from the Secret Service in
April 2008 about the deficiencies in the HK-416 rifles. This
was to be expected because HKD’s bid submission made
plain that the bid was nonconforming. The Secret Service ulti-
mately rejected HKD’s bid on May 21, 2008.

On June 11, 2008, Mann filed a complaint against HKD,
asserting that HKD retaliated against him for engaging in pro-
tected activity under the False Claims Act ("FCA") ("Count
I") and defamed him under Virginia law. HKD placed Mann
on administrative leave again on June 24, 2008 and termi-
nated his employment the next month. Mann contends he was
dismissed because of his efforts to stop HKD’s attempts to
defraud the United States and his filing of a retaliation claim.
HKD, however, asserts that Mann’s termination stemmed
from his involvement in an unlawful scheme to procure
machine guns for a small police force. Mann later amended
his complaint to assert an additional claim of retaliation on the
theory that HKD retaliated against him for filing his initial
retaliation claim ("Count II").

HKD filed a motion to dismiss all claims, which the district
court granted with respect to Count II. HKD later moved for
 MANN v. HECKLER & KOCH DEFENSE 5
summary judgment on the remaining claims, and the district
court granted that motion on July 1, 2009. Mann v. Heckler
& Koch Defense, Inc., 639 F. Supp. 2d 619 (E.D. Va. 2009).
The district court noted that Mann never identified any
instance of HKD making a false statement or engaging in
fraudulent conduct. Id. at 632-33. Without evidence of a false
or fraudulent claim against the United States, the district court
reasoned, there was no reasonable possibility that HKD was
violating the FCA. Id. Therefore, Mann did not qualify for
FCA protection. Id. Mann now appeals the district court’s rul-
ings with respect to his claims of retaliation under the FCA.

II.

In this appeal, Mann contends that HKD retaliated against
him for his investigation of and opposition to HKD’s attempt
to defraud the United States. Mann also asserts that HKD
retaliated against him for his filing of the initial retaliation
claim. We shall first set forth the framework for addressing
anti-retaliation claims under the FCA and then proceed to
address Mann’s particular contentions.

A.

The FCA is a statutory scheme designed to discourage
fraud against the federal government. Robertson v. Bell Heli-
copter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994). Its
roots lie in the rampant fraud perpetrated by contractors
against the government during the Civil War, and it has
served ever since as a safeguard against unscrupulous govern-
ment contractors. Wilkins v. St. Louis Hous. Auth., 314 F.3d
927, 933 (8th Cir. 2002). The cornerstone provision of the
FCA prohibits any person from presenting "a false or fraudu-
lent claim for payment or approval" to the United States. 31
U.S.C. § 3729(a).

There are two enforcement mechanisms to police this pro-
hibition. First, the Attorney General can bring a civil action
6 MANN v. HECKLER & KOCH DEFENSE
to remedy violations of § 3729. 31 U.S.C. § 3730(a). Second,
a private party can bring a qui tam action, which is an action
brought in the name of the United States. 31 U.S.C.
§ 3730(b); Graham County Soil & Water Conservation Dist.
v. United States ex rel. Wilson, 545 U.S. 409, 412 (2005).

Congress amended the FCA in 1986, adding an anti-
retaliation provision to protect whistleblowers. False Claims
Amendments Act of 1986, Pub. L. No. 99-562, § 4, 100 Stat.
3153, 3157-58. The relevant part of this provision states:

Any employee who is discharged, demoted, sus-
pended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of
employment by his or her employer because of law-
ful acts done by the employee on behalf of the
employee or others in furtherance of an action under
this section, including investigation for, initiation of,
testimony for, or assistance in an action filed or to be
filed under this section, shall be entitled to all relief
necessary to make the employee whole.

31 U.S.C. § 3730(h).*

The purpose of § 3730(h) is to promote enforcement of the
FCA by "assur[ing] those who may be considering exposing
fraud that they are legally protected from retaliatory acts." S.
Rep. No. 99-345, at 34 (1986). Congress "recognize[d] that
few individuals will expose fraud if they fear their disclosures
will lead to harassment, demotion, loss of employment, or any
other form of retaliation," and, accordingly, sought "to halt

*Congress amended § 3730(h) in 2009 to include contractors and agents
within its scope of protection, but it explicitly stated that the amendments
"shall take effect on the date of enactment of this Act and shall apply to
conduct on or after the date of enactment." Fraud Enforcement and Recov-
ery Act of 2009, Pub. L. No. 111-21, § 4(f). The relevant conduct in the
instant case occurred in 2008, well before the May 20, 2009 date of enact-
ment. Id. Therefore, the amendments do not apply to the instant case.
 MANN v. HECKLER & KOCH DEFENSE 7
companies and individuals from using the threat of economic
retaliation to silence ‘whistleblowers.’" Id. In furtherance of
this goal, § 3730(h) creates a cause of action for employees
who suffer retaliation for taking measures to prevent contrac-
tor fraud against the United States.

B.

Employees seeking to bring a cause of action under
§ 3730(h) must meet three elements derived from the statu-
tory text. Zahodnick v. Int’l Business Machines Corp., 135
F.3d 911, 914 (4th Cir. 1997). An "employee must prove that
(1) he took acts in furtherance of a qui tam suit; (2) his
employer knew of these acts; and (3) his employer [took
adverse action against] him as a result of these acts." Id. Only
the first element, referred to as the "protected activity" prong,
is at issue in the instant case.

An employee need not actually file a qui tam suit to engage
in protected activity, however. Eberhardt v. Integrated Design
& Constr., Inc., 167 F.3d 861, 867 (4th Cir. 1999). Protected
activity encompasses measures taken "in furtherance of an
action . . . filed or to be filed under this section." 31 U.S.C.
§ 3730(h) (emphasis added). The "to be filed" language "man-
ifests Congress’ intent to protect employees while they are
collecting information about a possible fraud, before they
have put all the pieces of the puzzle together." United States
ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 740 (D.C.
Cir. 1998).

Accordingly, the protected activity element includes "situa-
tions in which litigation could be filed legitimately" and
excludes those in which "an employee . . . fabricates a tale of
fraud to extract concessions from the employer, or . . . just
imagines fraud but lacks proof." Neal v. Honeywell Inc., 33
F.3d 860, 864 (7th Cir. 1994), abrogated on other grounds by
Graham County, 545 U.S. at 416-17. Thus, employees engage
in protected activity when they meet what has been called the
8 MANN v. HECKLER & KOCH DEFENSE
"distinct possibility" standard. Under this standard, protected
activity occurs when an employee’s opposition to fraud takes
place in a context where "litigation is a distinct possibility,
when the conduct reasonably could lead to a viable FCA
action, or when . . . litigation is a reasonable possibility."
Eberhardt, 167 F.3d at 869 (internal quotation marks and cita-
tions omitted).

The distinct possibility standard is an objective one. It
enjoys widespread support among the circuits because it
focuses attention on the ills the statute is designed to prevent.
See, e.g., Eberhardt, 167 F.3d at 867-69; Yesudian, 153 F.3d
at 740; United States ex rel. Hopper v. Anton, 91 F.3d 1261,
1269 (9th Cir. 1996); Neal, 33 F.3d at 864, abrogated on
other grounds by Graham County, 545 U.S. at 416-17. And
the consensus view is that this standard requires that protected
activity relate to company conduct that involves an objec-
tively reasonable possibility of an FCA action. See Eberhardt,
167 F.3d at 867-69. Things muddy a bit when determining
how to apply the test. Some courts take the perspective of the
employee, considering only those facts known by the
employee during the course of the protected conduct. See
Yesudian, 153 F.3d at 740-42. Others adopt the employer’s
perspective, taking into account the facts known by the
employer at the time of the retaliation. See United States ex
rel. Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1304 (11th Cir.
2010).

This apparent disagreement is illusory. Courts who take the
employer’s perspective are merely combining the first ele-
ment of § 3730(h), that the employee engaged in protected
activity, with the second element, that the employer is aware
of the employee’s conduct. For example, in Sanchez, the 11th
Circuit posed the dispositive question as whether "an employ-
ee’s actions . . . are sufficient to support a reasonable conclu-
sion that the employer could have feared being . . . sued in a
qui tam action." Id.
 MANN v. HECKLER & KOCH DEFENSE 9
Combining the protected activity and notice elements is a
perfectly reasonable approach when both elements are in dis-
pute. But where, as in the instant case, only the protected
activity element is at issue, viewing the distinct possibility
standard from the employer’s perspective makes little sense.
Such an interpretation would render the second element of a
§ 3730(h) claim superfluous because the definition of pro-
tected activity would include notice to the employer. And
"[w]e cannot interpret a statute in a manner that would render
some of its language meaningless." Etape v. Chertoff, 497
F.3d 379, 384 (4th Cir. 2007).

Furthermore, this interpretation would deny protection to
an employee who acted reasonably if the employer happened
to know additional facts that defeat the possibility of an FCA
action. Such a result would certainly not be consistent with
Congress’s intent that the FCA shield employees who take
reasonable measures to oppose fraud. Therefore, when the
sole question relates to an employee’s protected activity, we
apply the distinct possibility standard from the perspective of
the facts known by the employee at the time of the protected
conduct.

III.

A.

Mann contends that he engaged in protected activity by
opposing and investigating HKD’s attempts to defraud the
United States. But Mann cannot meet the distinct possibility
standard because of one undeniable fact: there was no fraud.
Therefore, based on the facts known to Mann at the time of
his conduct, there was no reasonable possibility that his
efforts could lead to a viable FCA action.

First we consider Mann’s actions opposing HKD’s bid
efforts. These fall into three categories: Mann opposed HKD
(1) submitting the bid, (2) using aftermarket ambilevers, and
10 MANN v. HECKLER & KOCH DEFENSE
(3) delivering the ambilevers after the close of bidding. First
turning to Mann’s opposition to HKD’s bid submission,
Mann’s admission that he never read the final version of the
bid until the onset of this litigation casts some doubt upon his
claims. The relevant bid language states, "Ambidextrous fire
control/safety lever currently not available for delivery date
timeline of test weapons. It will be available if bidder is suc-
cessful." Mann views this straightforward language as an
attempt to fraudulently induce the United States into accept-
ing a nonconforming bid. That may well be his sincere belief,
but it is not an objectively reasonable one.

The FCA covers only "false or fraudulent" claims, and the
bid language demonstrates that HKD’s conduct was open and
straightforward, not fraudulent. 31 U.S.C. § 3729(a)(1)(A).
HKD made no effort to hide the defects in its bid. Rather, it
took care to point them out so as not to deceive the United
States. Indeed, the bid explicitly stated that HKD could not,
at that time, meet the ambilever and trigger specifications.
Thus, HKD submitted a bid free of false statements or efforts
to camouflage defects. It was unreasonable, to say the least,
to expect opposition to such a bid to lead to a viable FCA
action.

Mann also takes exception to bid language indicating that
while the ambilevers are "currently in production and avail-
able, [they] will not be available for the initial delivery date
of the test weapons." Mann claims that this statement is false,
a contention HKD disputes. In any event, the relevant facts
under the distinct possibility standard are not what Mann now
knows. Rather, they are what Mann knew at the time of the
protected conduct. And Mann has failed to produce any evi-
dence on appeal that he ever raised this issue with anyone
prior to the instant litigation. Indeed, he might not even have
been aware of this bid language before his termination
because he had not read the final version of the bid at that
time. Accordingly, Mann’s newfound concerns over the "in
production" language are not helpful to his claim.
 MANN v. HECKLER & KOCH DEFENSE 11
Mann’s actions regarding the bid submission are best char-
acterized not as opposing fraud, but as voicing disagreement
concerning the bid strategy. He entertained business concerns
regarding a bid that did not meet all the requirements. But the
FCA does not empower courts to adjudicate strategic business
decisions and to protect the dissenters from these decisions
from all consequences. See United States ex rel. Owens v.
First Kuwaiti General Trading & Contracting Co., 612 F.3d
724, 734 (4th Cir. 2010). The FCA’s scope is commensurate
with its purpose. It covers only fraudulent claims against the
United States; without fraud, there can be no FCA action.
Accordingly, while Mann may or may not have been correct
as a matter of business strategy, his conduct falls outside the
scope of the FCA.

Turning to the procurement of aftermarket ambilevers,
Mann expressed concern over the quality of the ambilevers.
Specifically, Mann thought the ambilevers fit too loosely on
the HK-416. But HKD management disagreed and deemed
the ambilevers to be of acceptable quality. Accordingly, there
was a disagreement between HKD management and Mann
about what component part features were most suitable for
purposes of the bid.

These sorts of disagreements occur all the time, but they do
not rise to the level of fraud unless there is a claim made on
the public fisc that misrepresents the quality of a product in
an effort to achieve an unwarranted payment for inferior
goods. See Luckey v. Baxter Healthcare Corp., 183 F.3d 730,
731-33 (7th Cir. 1999). Mann never identifies any instance
where HKD misrepresented the quality of the ambilevers or
in any way overbilled. Indeed, HKD’s bid submission does
not even discuss the quality of the ambilevers. Without such
a misrepresentation, Mann opposed nothing more than a non-
fraudulent business decision, and this cannot form the basis of
an FCA action. See Owens, 612 F.3d at 734. If it did, FCA lit-
igation would extend to innumerable business judgment calls
that involve no fraudulent misrepresentations. And the result-
12 MANN v. HECKLER & KOCH DEFENSE
ing legal morass would serve as an impediment to productive
government contracting, just as fraudulent practices unques-
tionably do. Id.

As for Mann’s opposition to the delivery of the ambilevers
after the close of bidding, Mann once again fails to demon-
strate the existence of fraud. HKD’s conduct was certainly
unconventional. Indeed, it submitted the ambilevers outside of
normal channels, opting to utilize a Secret Service contact and
make a personal delivery. And it is undisputed that HKD
made this submission after the close of bidding. Given these
circumstances, HKD may have violated federal bidding regu-
lations.

But the FCA is not concerned with bidding regulations:
"Correcting regulatory problems may be a laudable goal, but
one not actionable under the FCA in the absence of actual
fraudulent conduct." Hopper, 91 F.3d at 1269; see also United
States ex rel. Conner v. Salina Regional Health Center, Inc.,
543 F.3d 1211, 1219 (10th Cir. 2008) (holding that non-
fraudulent regulatory violations are not actionable under the
FCA); United States ex rel. Siewick v. Jamieson Science &
Engineering, Inc., 214 F.3d 1372, 1376 (D.C. Cir. 2000)
(same); United States ex rel. Lamers v. City of Green Bay,
168 F.3d 1013, 1019 (7th Cir. 1999) (same). HKD’s actions
were not fraudulent. It made no false statements or misrepre-
sentations about the ambilevers during the course of the deliv-
ery. There was no effort to mislead the United States into
thinking that the ambilevers were submitted on time with the
bid. Indeed, HKD’s bid plainly stated that the ambilevers
were not available at the time it was submitted, but that they
would be supplied if it won the bid.

HKD’s delivery sought to demonstrate to the Secret Service
that it had the ability to meet the ambilever requirement. And
although recovery on a claim is not necessary to bring an
FCA action, 31 U.S.C. § 3729(a)(1)(A), it is worth noting that
HKD did not win the bid in question. It could not have helped
 MANN v. HECKLER & KOCH DEFENSE 13
HKD’s application that its submission materials forthrightly
made the government aware of the nonconforming character
of the bid.

It is important to refer, in the final analysis, to the purpose
of the statute. As its name implies, the FCA prohibits only
presenting "false or fraudulent claims for payment to the
United States." Rockwell Int’l Corp. v. United States, 549
U.S. 457, 463 (2007). The FCA is simply not an all all-
purposive directive aimed at any and every form of employ-
ment dispute. Whatever Mann’s disagreements with his
employer and company policy may have been, he simply fails
to tie his opposition to fraudulent behavior on HKD’s part.
Because HKD’s conduct involved no fraudulent behavior, at
least insofar as this record reveals, there was no reasonable
possibility that HKD’s submission of the ambilevers could
give rise to an FCA action.

B.

Having found Mann’s conduct opposing HKD’s efforts
inadequate to qualify as protected activity, we now consider
Mann’s investigatory activities, which include both Mann’s
own investigation and his participation in HKD’s internal
investigation.

Mann is correct that the FCA protects "investigation for" a
potential FCA action. 31 U.S.C. § 3730(h). But the reason for
our rejection of Mann’s claim is again simple: There was no
fraud. His investigatory activities, ranging from researching
federal contracting regulations to asking questions of his
coworkers to cooperating with HKD’s internal investigation,
all revolved around the very same HKD conduct that he
opposed. As discussed above, during this course of conduct,
HKD never made any false statements, never attempted to
conceal deficiencies in its bid, and, as a result, never
approached the threshold for fraud.
14 MANN v. HECKLER & KOCH DEFENSE
While it is true that protected activity takes place when
"conduct reasonably could lead to a viable FCA action,"
Mann’s investigatory activities had no reasonable prospect of
uncovering fraud. Eberhardt, 167 F.3d at 869 (internal quota-
tion marks and citations omitted). On the contrary, all indica-
tions were that while HKD may have proceeded maladroitly
in preparing its bid, it did not conduct itself fraudulently in
doing so.

As we have noted, Mann might have had a reasonable pos-
sibility of uncovering evidence that HKD violated federal
contracting regulations. But even if HKD did violate these
regulations by submitting a nonconforming bid and delivering
the ambilevers after the close of bidding, Mann still would not
qualify for FCA protection because the FCA requires fraud,
not mere regulatory violations. See Hopper, 91 F.3d at 1269.
Federal contracting regulations have their own enforcement
mechanisms, and these do not include the FCA. See id. The
penalties for violating these regulations include outright rejec-
tion of the bid and, in the event the bid is successful, termina-
tion of any contract. 4 C.F.R. § 21.8(a). HKD in fact paid a
price for any violation it committed when the Secret Service
rejected its bid.

IV.

We now consider Mann’s contention that the act of filing
a § 3730(h) retaliation action itself qualifies as protected con-
duct, regardless of the nature or merits of the underlying
claim. Mann insists that the text of § 3730(h) compels this
conclusion. But a closer examination reveals that Mann’s
argument is nothing more than an attempt to skirt the defi-
ciencies of his first § 3730(h) claim. As discussed above,
Mann has not met the protected activity element of that claim,
and we cannot indulge his efforts to open the back door when
he could not gain entry at the front.
 MANN v. HECKLER & KOCH DEFENSE 15
A.

Mann bases his argument on what he believes to be the
plain text of § 3730(h), which protects "lawful acts done by
the employee . . . in furtherance of an action under this sec-
tion, including investigation for, initiation of, testimony for,
or assistance in an action filed or to be filed under this sec-
tion." 31 U.S.C. § 3730(h). According to Mann, this language
conclusively resolves the matter because a § 3730(h) retalia-
tion action is "an action under this section." Id. But Mann
reaches this interpretation only by focusing on an isolated
phrase and ignoring the statutory context. The Supreme Court
has made plain that "[s]tatutory language has meaning only in
context," Graham County Soil & Water Conservation Dist. v.
United States ex rel. Wilson, 545 U.S. 409, 415 (2005), and,
when read in proper context, the statute fails to support
Mann’s contention.

Mann relies on cases interpreting Title VII and other civil
rights statutes to bolster his interpretation. See, e.g., Kubicko
v. Ogden Logistics Servs., 181 F.3d 544 (4th Cir. 1999);
Glover v. South Carolina Law Enforcement Div., 170 F.3d
411 (4th Cir. 1999). But transpositional interpretation is dan-
gerous here, all the more so because the FCA, unlike most
civil rights statutes, is aimed at protecting the public fisc
rather than redressing personal injuries. Add to this the fact
that the Supreme Court has offered guidance on nearly identi-
cal statutory language in the FCA in Graham County, and we
are obliged to follow the teachings of the Supreme Court
interpreting this same statute.

The issue in Graham County was whether the statute of
limitations in § 3731(b) applied to retaliation actions brought
under § 3730(h). 545 U.S. at 411. Section 3731(b) provides
that "[a] civil action under section 3730 may not be brought
. . . more than 6 years after the date on which the violation of
section 3729 [which prohibits the submission of a false claim]
is committed." 31 U.S.C. § 3731(b). Much like Mann does in
16 MANN v. HECKLER & KOCH DEFENSE
the instant case, the Graham County plaintiff focused on a
single phrase in the statute, arguing that the statute of limita-
tions unambiguously applies because a § 3730(h) retaliation
action is "[a] civil action under section 3730." Graham
County, 545 U.S. at 415.

But the Court disagreed, explaining that "[s]ection
3731(b)(1) is ambiguous, rather than clear, about whether a
§ 3730(h) retaliation action is ‘a civil action under section
3730.’" Id. A sound reading, the Court explained, was that
§ 3731(b)(1) applied only to §§ 3730(a) and (b) actions, that
is, actions brought by the Attorney General and qui tam
actions, respectively, and not to retaliation actions under
§ 3730(h). Id. at 415-17. The statutory language directing the
limitations period to begin running on the date of the § 3729
violation supported this view. Id. at 415-16. Because a § 3729
violation was not a prerequisite to a § 3730(h) retaliation
action, the statute offered no starting point for the limitations
period in many § 3730(h) cases, implying that § 3731(b) was
never intended to be applied to § 3730(h) actions. Id.

The Court resolved the matter by construing "[a] civil
action under section 3730" to refer only to actions under
§§ 3730(a) and (b) and not to retaliation actions under
§ 3730(h). Id. at 417. It came to this conclusion in part
because Congress had shown elsewhere in § 3730 that it used
the phrase "under section 3730" imprecisely. Id. at 417-18.
Section 3731(c), for example, provided that "[i]n any action
brought under section 3730, the United States shall be
required to prove all essential elements of the cause of action,
including damages, by a preponderance of the evidence." But
the United States could only participate in §§ 3730(a) and (b)
actions, and Congress certainly did not intend for the United
States to have to prove the elements of a § 3730(h) retaliation
cause of action in which it could not even participate. Graham
County, 545 U.S. at 417-18. Therefore, Congress had demon-
strated in § 3731(c) that it sometimes used the phrase "under
section 3730" to refer only to actions under §§ 3730(a) and
 MANN v. HECKLER & KOCH DEFENSE 17
(b), and the Court adopted this interpretation for the identical
language in § 3731(b). Id.

B.

Graham County is plainly applicable here. Similar to the
provision at issue in Graham County, the text of § 3730 sug-
gests that the "action under this section" language refers only
to actions under §§ 3730(a) and (b), which authorize actions
by the Attorney General and qui tam actions, respectively. In
fact, Congress used this same phrase in § 3730(f), explaining
that "[t]he Government is not liable for expenses which a per-
son incurs in bringing an action under this section." Section
3730(f) appears to contemplate plaintiffs seeking reimburse-
ment for expenses incurred during qui tam litigation under
§ 3730(b), and our sister circuits have certainly applied it in
that manner. See United States ex rel. Eisenstein v. City of
New York, 540 F.3d 94, 98 (2d Cir. 2008); United States ex
rel. Sharma v. Univ. of Southern California, 217 F.3d 1141,
1143 (9th Cir. 2000). Accordingly, Congress used the phrase
"under this section" in § 3730(f) when it intended to refer to
qui tam actions.

Furthermore, § 3730(h) provides a list of examples of the
type of conduct that is protected. 31 U.S.C. § 3730(h). These
include "investigation for, initiation of, testimony for, or
assistance in an action . . . under this section." Id. These cate-
gories of actions are tailored to §§ 3730(a) and (b) actions,
which typically involve an employee investigating fraud, initi-
ating a qui tam action under § 3730(b), testifying in support
of that action, or assisting the United States in a § 3730(a)
action. Accordingly, much like in Graham County, "action
under this section" is best read to refer primarily to actions
under §§ 3730(a) and (b).

We draw additional support from the purpose of the statute.
The purpose of the FCA is to prevent fraud against the United
States. Robertson, 32 F.3d at 951. And the purpose of its anti-
18 MANN v. HECKLER & KOCH DEFENSE
retaliation provision is to protect those employees who take
actions to uncover fraud. Id. Courts have derived the pro-
tected activity element and its accompanying distinct possibil-
ity standard from the FCA as a way to identify those
employees who oppose and investigate fraud, and not some
lesser matter. See, e.g., Dookeran v. Mercy Hosp. of Pitts-
burgh, 281 F.3d 105, 108 (3d Cir. 2002); Eberhardt, 167 F.3d
at 867-69; Yesudian, 153 F.3d at 740; Hopper, 91 F.3d at
1269; Neal, 33 F.3d at 864, abrogated on other grounds by
Graham County, 545 U.S. at 416-17.

But the interpretation Mann urges would eviscerate this
large body of law and open the floodgates to FCA litigation
concerning a whole host of employment disputes that have lit-
tle or nothing to do with fraud. In every § 3730(h) action, the
employee would automatically meet the protected activity ele-
ment simply by filing the anti-retaliation action. No longer
would an employee need to meet the distinct possibility stan-
dard by opposing or investigating conduct that could lead to
a viable FCA action. Rather, under Mann’s reading of the
statute, virtually any conduct could form the basis of pro-
tected activity. At a minimum, disputes over business strategy
or regulatory compliance, both of which clearly fall outside
the scope of the FCA, would be transformed into protected
activity simply by the act of filing a § 3730(h) claim. Such a
result would plainly undercut Congress’s intent that the FCA
remain focused upon the particular evil of fraud against the
United States.

The problems with of Mann’s interpretation do not end
there. Under his view, a plaintiff could bring an infinite
sequence of § 3730(h) claims, each one citing the filing of the
previous claim as the protected conduct. The potential of such
an endless and recursive chain of claims would expose
employers to perpetual litigation. And because Mann’s inter-
pretation does not require even an inkling of fraud, the
employee’s initial retaliation action that gave rise to this liti-
gation could be entirely baseless or even frivolous. It is
 MANN v. HECKLER & KOCH DEFENSE 19
incumbent on courts to avoid outcomes this far afield of Con-
gress’s intent. See Aremu v. Dep’t Of Homeland Security, 450
F.3d 578, 583 (4th Cir. 2006). Given these deficiencies, it is
hardly surprising that Mann points to no court that has
adopted his view that filing a retaliation action always quali-
fies as protected activity.

While Mann’s interpretation is too broad, HKD and the dis-
trict court counter with an equally sweeping reading of the
statute, claiming that filing a retaliation action can never qual-
ify as protected conduct. Although this interpretation avoids
the problems under Mann’s reading, it creates a new set of
difficulties. Under HKD’s view, an employer could use even
the filing of a successful retaliation action as a contrived rea-
son for termination because the act of filing a retaliation
action could never be protected conduct. It would make a
mockery of the FCA to have an employee prevail on the
underlying retaliation action only to then be fired for the act
of filing the action. More importantly, HKD’s interpretation
would strip § 3730(h) of any meaningful promise of protec-
tion from retaliation. And this would undermine the whole
purpose of the provision, which is to encourage employees to
prevent and uncover fraud against the United States.

Both Mann and HKD offer overly broad readings of the
statute, framing the issue as an all or nothing proposition. But
we must interpret the statute in a way that captures its mean-
ing. To do so, it is imperative that the protected activity ele-
ment remains consistent, whether the conduct at issue is the
underlying opposition to fraud or the filing of the retaliation
action. Therefore, if at any point an employee succeeds in
showing that his actions were aimed at conduct raising a dis-
tinct possibility of fraud against the United States, then that
employee will be shielded from retaliation. In this way, we
keep the statute within its proper bounds, ensuring that the
river does not leap its banks but, also, that the river does not
run dry.
20 MANN v. HECKLER & KOCH DEFENSE
This is the same standard of protection from retaliation that
courts across the country have been applying for years. See,
e.g., Dookeran, 281 F.3d at 108; Eberhardt, 167 F.3d at 867-
69; Yesudian, 153 F.3d at 740-41. And it is faithful to the text
and intent of § 3730(h). Employees who oppose fraud against
the United States will find protection in the FCA, but those
who invent frivolous actions or wander far afield may not
cloak themselves in FCA protection.

V.

For the foregoing reasons, the judgment of the district court
is

AFFIRMED.