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Singletary v. Howard University

United States Court of Appeals, District of Columbia Circuit

September 20, 2019

Sylvia Singletary, D.V.M., Appellant
v.
Howard University, Appellee

          Argued April 26, 2019

          Appeal from the United States District Court for the District of Columbia (No. 1:17-cv-01198)

          James H. Shoemaker Jr. argued the cause and filed the briefs for appellant.

          Jennifer L. Curry argued the cause for appellee. With her on the brief was Donna M. Glover.

          Before: Srinivasan, Millett, and Katsas, Circuit Judges.

          OPINION

          MILLETT, CIRCUIT JUDGE

         Howard 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.

         I

         A

         As a voluntary recipient of funding from the federal government for research activities involving live animals, Howard University is subject to several regulatory regimes. Two are relevant here.

         The 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 subchapter[.]").

         The 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).

         As 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 well-being.").

         The 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.

         To 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 § III.G.

         In 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. § 289d(d).

         More 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").

         All of 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).

         B

         Congress 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. § 3729(a)(1)(A)–(B).

         To 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).

         To make 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).

         C

         In 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. 165.[1]

         Singletary 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.

         Over an 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.

         Singletary 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.

         Things 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].

J.A. 101–102.

         In 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.

         Shortly 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.

         D

         Singletary 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 ...


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