Fifth Circuit Holds Non-Employee Agent Is Protected By False Claims Act's Retaliation Provision

On March 9, 2016, the Fifth Circuit issued an important ruling addressing the type of relationship that is required between a relator and a defendant for the relator to have a right to bring a retaliation claim against the defendant under the False Claims Act ("FCA"). In United States ex rel. Bias v. Tangipahoa Parish School Board, 816 F.3d 315 (5th Cir. 2016), the Fifth Circuit reversed the district court's dismissal of relator's retaliation claim because the defendants had not been his employer. In its decision, the panel recognized that the 2009 amendments to the FCA's anti-retaliation provision, 31 U.S.C. § 3730(h), expanded the class of defendants who can be sued beyond employers, and established a framework for how to determine what other kinds of "employer-like" relationships can bring a defendant within the scope of the provision. Id. at 324.