United States Court of Appeals, District of Columbia Circuit
April 26, 2019
from the United States District Court for the District of
Columbia (No. 1:17-cv-01198)
H. Shoemaker Jr. argued the cause and filed the briefs for
Jennifer L. Curry argued the cause for appellee. With her on
the brief was Donna M. Glover.
Before: Srinivasan, Millett, and Katsas, Circuit Judges.
MILLETT, CIRCUIT JUDGE
University fired Dr. Sylvia Singletary allegedly for
objecting both internally and externally to the
University's failure to maintain the humane laboratory
animal living conditions on which its receipt of federal
funding was conditioned. Singletary claims that her
termination violated the False Claims Act's
anti-retaliation provision, 31 U.S.C. § 3730(h). The
district court dismissed the case for failure to state a
claim and denied Singletary's motion for leave to amend
her complaint as futile. In light of the proposed amended
complaint's particular factual allegations, the district
court's decision reflected too narrow a view of the False
Claims Act's protection for whistleblowers. For that
reason, we reverse and remand for further proceedings.
voluntary recipient of funding from the federal government
for research activities involving live animals, Howard
University is subject to several regulatory regimes. Two are
Animal Welfare Act of 1966, 7 U.S.C. §§
2131–2159, requires that research institutions
receiving federal funds meet prescribed standards for the
care and monitoring of animals used in their work, see
id. §§ 2132(e), 2143(a); see also 9
C.F.R. § 2.38(k). The Animal Welfare Act's
accompanying regulations mandate that, among other things,
the temperature of indoor animal housing facilities be
"sufficiently regulated by heating or cooling to protect
the animals from the extremes of temperature," and
"to provide for their health and to prevent their
discomfort." 9 C.F.R. § 3.126(a); see id.
("The ambient temperature shall not be allowed to fall
below nor rise above temperatures compatible with the health
and comfort of the animal."); see also 7 U.S.C.
§ 2143(a)(2)(A) (specifying that regulations shall
"include minimum requirements" for "housing, *
* * [and] shelter from extremes of weather and temperatures,
* * * [as] the Secretary [of Agriculture] finds necessary for
humane handling, care, or treatment of animals"); 9
C.F.R. § 2.33(b)(1) ("Each research facility shall
establish and maintain programs of adequate veterinary care
that include * * * [t]he availability of appropriate
facilities * * * to comply with the provisions of this
Health Research Extension Act of 1985 ("Extension
Act"), 42 U.S.C. § 289d, authorizes the National
Institutes of Health ("NIH") to establish
guidelines for the proper care of animals used in biomedical
research. See id. § 289d(a). To that end, the
NIH has produced a Humane Care Policy requiring research
institutions to meet the laboratory animal care standards set
forth in (i) the Animal Welfare Act and accompanying
regulations, and (ii) the National Academies of Sciences'
Guide for the Care and Use of Laboratory Animals ("Care
Standards Guide"). See Office of Laboratory
Animal Welfare, NIH, Dep't of Health & Human Servs.,
Public Health Service Policy on Humane Care and Use of
Laboratory Animals (2015) ("Humane Care
Policy"); National Research Council of the Nat'l
Academies of Sciences, Eng'g, & Med., Guide for
the Care and Use of Laboratory Animals (8th ed. 2011);
see also Laboratory Animal Welfare: Adoption and
Implementation of the Eighth Edition of the Guide for the
Care and Use of Laboratory Animals, 76 Fed. Reg. 74,803,
74,803 (Dec. 1, 2011) (making the Care Standards Guide the
foundation on which research institutions must base their
animal care and use programs).
relevant here, the Care Standards Guide specifies that
laboratory animals are to be housed within temperature and
humidity ranges "appropriate for the species, to which
they can adapt with minimal stress and physiologic
reaction." Care Standards Guide at 43; see also
id. ("Maintenance of body temperature within normal
circadian variation is necessary for animal
Animal Welfare and Extension Acts, and their accompanying
regulations, together impose an internal compliance
infrastructure to enforce the animal-care standards. The
keystone of that infrastructure is the requirement that each
research institution have an Institutional Animal Care and
Use Committee ("Committee"). See 7 U.S.C.
§ 2143(b); 42 U.S.C. § 289d(b). The Committee's
duties include evaluating the institution's research
programs, inspecting facilities, preparing semiannual
internal compliance evaluations, and reviewing proposed
activities involving animals for compliance with the Animal
Welfare and Extension Acts. See 7 U.S.C. §
2143(b)(3)–(4); 42 U.S.C. § 289d(b)(3)(A); 9
C.F.R. § 2.31(c); Humane Care Policy § IV.B.
assist in performing those tasks, each Committee's
membership includes an "Attending Veterinarian" who
is entrusted with the authority to "ensure the provision
of adequate veterinary care and to oversee the adequacy of
other aspects of animal care and use[.]" 9 C.F.R. §
2.33(a)(2); accord 7 U.S.C. § 2143(b)(1); 42
U.S.C. § 289d(b)(2); 9 C.F.R. § 2.31(a)–(b);
see Humane Care Policy § IV.A.3.b.1; Care
Standards Guide at 14. The Committee ultimately reports to
the "Institutional Official," who is the individual
authorized to commit to the government on behalf of the
institution that it will comply with applicable regulations.
See 9 C.F.R. § 1.1; Humane Care Policy §
addition to mandating internal compliance procedures, the
Animal Welfare and Extension Acts, and their corresponding
regulations, call for periodic external reporting. On an
annual basis, each institution must file a report with the
Department of Agriculture and the NIH, respectively,
certifying compliance with all required animal welfare
standards. See 7 U.S.C. § 2143(a)(7); 42 U.S.C.
§ 289d(b)(3)(A), (C); 9 C.F.R. § 2.36(b)(3). Those
certifications are "necessary" for research
institutions "to receive and retain * * * grant
monies." Proposed Second Am. Complaint ("proposed
complaint") ¶ 43, J.A. 137. See
generally 7 U.S.C. § 2143(f); 42 U.S.C. §
frequent reporting is necessary in the event animal care
standards are not met and remedial measures are undertaken.
Under the Humane Care Policy, the Institutional Official
must, among other things, "promptly" provide the
NIH with a "full explanation" of the
"circumstances and actions taken" to remedy (i)
"any serious or continuing noncompliance with [the
Humane Care Policy,]" or (ii) "any serious
deviations from the * * * Guide[.]" Humane Care Policy
§ IV.F.3. That includes "mechanical failures * * *
resulting in actual harm or death to animals[.]" Office
of Laboratory Animal Welfare, NIH, Guidance on Prompt
Reporting to OLAW under the PHS Policy on Humane Care and Use
of Laboratory Animals 2–3 (Feb. 24, 2005)
("Prompt Reporting Notice").
those requirements come with teeth. If animal care deviations
persist after an opportunity to cure, governmental funding
agencies including the NIH "shall" revoke financial
support for the institution's research activities. 7
U.S.C. § 2143(f); 42 U.S.C. § 289d(d).
enacted the False Claims Act in the 1860s in response to
widespread fraud perpetrated by Civil War contractors.
United States v. Bornstein, 423 U.S. 303, 305 n.1,
309 (1976); United States v. McNinch, 356 U.S. 595,
599 (1958). As it currently stands, the Act imposes civil
penalties and treble damages upon any person who, among other
things, "knowingl y presents, or causes to be presented,
a false or fraudulent claim for payment or approval" to
the federal government, or "knowingly makes, uses, or
causes to be made or used, a false record or statement
material to a false or fraudulent claim[.]" 31 U.S.C.
enhance enforcement of the law, the False Claims Act offers
protection to whistleblowers who seek to expose or to prevent
government fraud. Specifically, Section 3730(h) entitles
"any employee" to:
all relief necessary to make that employee * * * whole, if
that employee * * * is discharged, demoted, suspended,
threatened, harassed, or in any other manner discriminated
against in the terms and conditions of employment because of
lawful acts done by the employee * * * in furtherance of an
action under this section or other efforts to stop 1 or more
violations of this subchapter.
31 U.S.C. § 3730(h)(1).
out a claim of retaliation under Section 3730(h), a plaintiff
must plead facts showing (i) that she engaged in protected
activity, (ii) "because of" which she was
retaliated against. United States ex rel. Yesudian v.
Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998). To
satisfy the second element, a plaintiff must further allege
(a) that the employer knew she was engaged in protected
activity, and (b) that the retaliation was motivated "at
least in part" by her protected activity. Id.
(internal quotation marks omitted).
January 2013, Howard University retained Dr. Sylvia
Singletary for a thirty-month appointment as the
"Attending Veterinarian" at its Medical School.
See 9 C.F.R. § 2.33. She was to dedicate 70% of
her time and effort to "Administrative Activities"
including (i) directing an animal care quality control
program, (ii) establishing standard operating procedures for
ensuring proper animal welfare, including animal housing and
maintenance, (iii) consulting on grants, and (iv)
collaborating with other University employees on "all
phases of the handling and care of experimental
animals[.]" Proposed Complaint Ex. 1, J.A.
reported directly to Dr. Thomas Obisesan, who was both the
University's Vice President for Regulatory Research and
Compliance and the Institutional Official responsible for
certifying animal-welfare compliance with federal agencies.
See 9 C.F.R. § 1.1. As Attending Veterinarian,
Singletary was a member of the University's Animal Care
and Use Committee, along with Obisesan and Dr. Thomas
Heinbockel, the Committee's Chair.
approximately nine-month period between Summer 2013 and
Spring 2014, Singletary repeatedly warned Obisesan that the
air temperature in the laboratory animals' living
quarters was too high. She explained that the conditions,
which were "caused by equipment failures" and
"physical plant deficiencies," were "not in
compliance with [NIH] standards" and "constituted
violations of the terms and conditions" of the
University's grants from the NIH. Proposed Complaint
¶¶ 17– 18, J.A. 129. Singletary urged
Obisesan to take corrective action for which only he had
authority: to remedy the temperature deviations and to report
the University's non-compliance to the federal
government. He did not do either.
then took her concerns to Heinbockel and Dr. Mark Johnson,
the Dean of the University's Medical School. Both proved
unresponsive. Over the same time period that Singletary was
registering complaints and warnings with those University
officials, the University "made certifications to the
[NIH] and other federal agencies that the laboratory animals
* * * were being maintained and cared for under certain
federally mandated ambient living conditions." Proposed
Complaint ¶ 43, J.A. 137.
came to a head when, in mid-April 2014, Singletary arrived at
work to find 21 mice dead from heat exhaustion. Because
Obisesan had not acted in response to her prior complaints,
Singletary took matters into her own hands. She emailed the
NIH-her only written communication with the agency during her
twenty-month tenure at the University- to report the
rodents' deaths. Singletary's message, on which
Obisesan and Heinbockel were copied, explained that:
At 10:45 am, April 15, 2014[,] I found 21 mice dead from heat
exhaustion. [A r]oom * * * which houses animals on a[n]
[individually ventilated cage] lost power over night. In
addition, we have been having difficulty with receiving
condition air [sic] in the facility. A more detailed
report will be submitted after
I have briefed the [Committee] and [Institutional Official].
response, the NIH thanked Singletary for her report and
directed the Institutional Official, Obisesan, to submit a
corrective plan of action. That prompted the University to
finally solve the air temperature problem.
thereafter, in late April or early May, an
"incensed" Obisesan "excoriated"
Singletary at a faculty meeting, "accusing her of a lack
of professionalism and integrity" for
"humiliat[ing]" the University before the NIH.
Proposed Complaint ¶¶ 25–26, J.A.
131–132. Then on June 20, 2014, the University notified
Singletary that it was cutting her appointment short by six
months, terminating her employment as of December 2014.
Finding her conditions of employment to have become
"intolerable," Singletary resigned in August 2014.
Id. ¶ 34, J.A. 134.
filed suit against the University in the United States
District Court for the District of Columbia in June 2017. Her
initial and first amended complaints asserted (as relevant
here) that she was terminated in retaliation for engaging in
activity protected by the False Claims Act, 31 U.S.C. §
3730(h). The district court granted the University's
motion to dismiss Singletary's first amended complaint.
Singletary then sought leave to amend her complaint a second
time. Concluding that Singletary's proposed complaint
also would not withstand a motion to dismiss, the district
court denied the motion as futile. The district court
reasoned that Singletary's nine months of complaints
about animal mistreatment within the University and,
eventually, her email to the NIH were not "protected
activity" under the False Claims Act ...