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Supreme Court Is Poised to Endorse ‘Implied Certification’ in FCA Cases

By R. Scott Oswald
Managing Principal, The Employment Law Group, P.C.

If a government supplier quietly ignores vital rules but still bills taxpayers as if it had complied, can it be held liable under the federal False Claims Act — even if it never directly lies about its compliance?

In today’s arguments in Universal Health Services Inc. v. United States ex rel. Escobar, the U.S. Supreme Court heard two diametrically opposed views. There was little doubt about which side the justices preferred; their resulting debate was limited to sorting out the details.

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What’s It Like to Be a Whistleblower? An Interview with Dr. Ting

THIS POST CONCERNS A CLIENT OF THE EMPLOYMENT LAW GROUP® LAW FIRM. THE RESULTS OF ALL CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST SUCCESSES DO NOT PREDICT OR GUARANTEE FUTURE RESULTS.

Our Founding Fathers called whistleblowing “the duty of all persons in the service of the United States,” and Abraham Lincoln signed the False Claims Act to foster the practice. But while federal laws reward people who report fraud against the government, whistleblowing isn’t always easy.

On March 8, 2016, the U.S. Department of Justice announced that it would award whistleblower Joseph Ting more than $7 million for his role in a settlement under which 21st Century Oncology, the cancer-care giant, will return $34.7 million to taxpayers to resolve allegations that it overbilled government insurance programs including Medicare.

The outcome was a long-awaited vindication for Dr. Ting, who was represented in the case by The Employment Law Group® law firm. (Read more about our firm’s involvement in the case.) In this candid Q&A, Dr. Ting talks about the experience of being a whistleblower.

Do you remember the moment you decided to take this action against your employer?

I don’t remember an exact time, but it started in March 2014 — shortly after 21st Century took over South Florida Radiation Oncology, the cancer treatment center where I worked. 21st Century was pushing us to implement its so-called Gamma project as fast as possible. This was a huge undertaking and I did not see any medical benefit. 21st Century seemed to be concerned about maximizing its profits, not patient care. I knew I could not be part of that, so I had to do something.

What was the problem with Gamma, exactly?

I am a medical physicist; part of my job deals with calibrating radiation therapy for cancer patients. With Gamma, 21st Century was demanding that an extra measurement be taken for every radiation dose given to every patient — and that each extra measurement be billed to the patient’s insurance. They said it was to confirm proper dosing.

Precision is important, so I did everything I could to understand what Gamma does. But the more I looked into it, the more I had doubts about the whole thing. In my opinion the extra measurement provided no medical value. People were not properly trained to use Gamma, it did not work properly in many cases, and no one looked at the results anyway. Plus it made treatment sessions longer, which is unfair to patients. Later I found out it was being billed improperly, too.

Did you raise these concerns internally?

Yes. I talked to my immediate supervisor. His attitude was that there was nothing he could do about it — it was 21st Century policy. But he shared my concerns with the technology director of 21st Century, and the three of us had a meeting. The technology director said something like, “Oh, we don’t charge for that, it’s just for the patients’ benefit.” But I knew that was not true.

So you decided to file a whistleblower lawsuit on behalf of the taxpayers who were paying for this via Medicare. Did that make your work uncomfortable?

The lawsuit did not impact my work directly because no one knew I had blown the whistle. The process is kept secret from the defendant for a period of time. But I did feel more stressed at work. I avoided doing any Gamma work because I was not comfortable with it, so I felt separate from the rest of the group. I really believed they were doing something wrong, and I felt like I had alienated myself. No one said anything, but that was a significant part of my reason to depart in July 2014. I couldn’t be part of the group anymore. I could not be a silent participant.

Do you have any regrets about blowing the whistle?

No. It was the right thing to do. I suppose that if news had broken before I found a new job, then maybe I would have had trouble finding employment — I don’t know. I could retire if necessary, but I enjoy my work and I’m not willing to retire yet. If I were younger, maybe I would have thought this was more of a risk. But it is important to listen to your conscience.

Tell us a little about your new job.

It’s a relief from the stress I experienced at South Florida Radiation Oncology. Where I work now is a very friendly environment and everybody is part of the culture together. We’re transparent and open and talk about things. I am part of the group again.

Is your employer abusing Medicare? The Employment Law Group can help you to take action.

First Amendment Protection: The Start of a Comeback?

NOTE: A version of this post first appeared on Law360.com. The author, R. Scott Oswald, is managing principal of The Employment Law Group, P.C.

With Lane v. Franks, the U.S. Supreme Court has backed off slightly from the absolutism of a 2006 decision that limited the free-speech rights of public employees — and, in the process, has created a framework that may allow more moderation in future cases.

At one level the Court’s holding yesterday — that the First Amendment can protect government workers from punishment for testifying under oath about job-related matters — was unremarkable, even obvious.

But while Justice Sonia Sotomayor offered her 9-0 opinion mainly as a clarification of Garcetti v. Ceballos, which denies government employees constitutional protection for “speech made pursuant to [their] official duties,” she also added two new considerations that promise to bring more workplace speech under the First Amendment’s shield:

  • Whether an employee is acting on a civic obligation to “society at large”
  • Whether allowing retaliation would discourage important types of whistleblowing

In so doing, Lane hearkened back to the more employee-centric balancing test of 1968’s Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., which had stood mostly undisturbed until the 5-4 ruling in Garcetti.

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Supreme Court Says SOX Can Fit Almost Anyone

NOTE: A version of this post first appeared on Law360.com.  The author, R. Scott Oswald, was counsel of record on an amicus curiae brief filed in this case.

In deciding Lawson v. FMR LLC, the first whistleblower case they have heard under the Sarbanes-Oxley Act (SOX), the justices of the U.S. Supreme Court agreed that the law’s ambiguous anti-retaliation provision offered two alternatives, both somewhat unappealing:

  • Either it doesn’t protect a large class of whistleblowers — in many cases, the people most likely to discover financial wrongdoing;
  • Or it protects virtually anyone hired by a publicly traded company or by its employees, either directly or indirectly, and forbids reprisal for a huge range of fraud reports.

Led by Justice Ruth Bader Ginsburg, a 6-3 majority unflinchingly chose the broader interpretation, instantly giving SOX “a stunning reach,” in the words of a dumbfounded dissent by Justice Sonia Sotomayor.

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Burrage v. U.S. — Can a Heroin Dealer Help to Clarify Whistleblower Law?

By R. Scott Oswald

It’s rare for a criminal appeal — let alone the appeal of a heroin dealer’s sentence for his client’s ill-fated drug binge — to guide our understanding of whistleblower protection laws.

Yet there, on January 27, was the U.S. Supreme Court’s unanimous judgment in Burrage v. United States, a mandatory-minimum drug case that ended up parsing the retaliation provisions of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and more.

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Savanna Unger

Savanna Unger is a part-time law student at Stetson University College of Law, where she is pursuing her Juris Doctor and expects to graduate in December 2026. She is also an alumnus of the University of South Florida, where she earned a Bachelor of Arts in Mass Communications with a minor in Political Science.

Before joining The Employment Law Group® law firm as a law clerk, Ms. Unger gained experience as a bankruptcy legal assistant, helping guide clients through one of the most stressful circumstances to be in from the start of the process to closing.

Outside of her professional pursuits, Ms. Unger enjoys painting, singing with her church choir, working out, and spending time with family and friends.

Michael Voor

Michael Voor is a part-time law student at Stetson University College of Law, with an expected graduation date of May 2028. He is a two-time graduate of Florida State University, where he earned a Juris Master and a Bachelor of Science in hospitality and tourism management, graduating summa cum laude.

Before joining The Employment Law Group® law firm, Mr. Voor spent five years working as a paralegal at law firms specializing in mass tort litigation and legal ethics.

Aryeh Kalender

Aryeh Kalender is a part-time law student at the George Washington University Law School, where he is pursuing his Juris Doctor and expects to graduate in May 2028. Mr. Kalender is a DMV native, growing up in Fairfax Virginia, and attending the University of Maryland where he earned a Bachelor of Arts in Jewish studies with a minor in global poverty.

Before joining The Employment Law Group® law firm as a law clerk, Mr. Kalender worked for Fairfax County Supervisor Dalia A. Palchik in the Providence District as a community outreach director and then transportation aide.

Outside of his professional pursuits, Mr. Kalender is an avid reader of novels, obsessively watches and plays basketball, and loves to golf (poorly) and bowl (slightly less poorly).

False Claims Act Gives Trump ‘Sledgehammer’ To Battle DEI

The U.S. Department of Justice’s vow to invoke the False Claims Act to police alleged civil rights violations tees up a powerful weapon for the Trump administration to wield against contractors and federal grantees with diversity, equity and inclusion programs it claims are discriminatory, experts say.

Deputy U.S. Attorney General Todd Blanche issued a two-page memo on May 19 establishing the “Civil Rights Fraud Initiative,” described as a collaborative effort among federal prosecutors to use the False Claims Act to investigate and “aggressively pursue” civil rights-related claims. Colleges and universities were explicitly referenced as potential enforcement targets, but the DOJ in its memo said the initiative will pursue FCA allegations against “any recipient of federal funds that knowingly violates federal civil rights laws.”

[…]

“The FCA is an extraordinarily powerful statute because of its remedies: treble damages plus penalties that can be enormous,” said R. Scott Oswald, managing principal of The Employment Law Group PC. “Defendants who try to fight a meritorious FCA case are taking a huge risk — sometimes an existential risk — and that’s why so many of these cases settle. If you’re going to weaponize the DOJ, a sledgehammer is a great weapon.”

[…]

Oswald, who is a former chair of the Federal Bar Association’s qui tam section, said there will “absolutely” be more qui tam cases asserting civil rights fraud since “anytime the DOJ says it ‘strongly encourages’ a certain type of whistleblower action, that type of action will surge.”

“Because of the FCA’s unique structure, the DOJ’s support is a crucial factor in getting a monetary recovery for taxpayers — and for the whistle-blower,” Oswald said. “If the DOJ will stand behind these cases, whistleblowers will emerge.”

While Oswald believes the legal theory laid out in the DOJ memo is questionable, his firm represents whistleblowers “who identify knowing efforts to defraud U.S. taxpayers,” and he said those claiming to have identified civil rights fraud will be given due consideration.

[…]

Oswald similarly said the Justice Department “is spread thin” and “many FCA actions already take years to investigate and move toward resolution.”

“The meetings alone will be a big distraction, and the requirement to ‘aggressively pursue’ the initiative likely means that they’ll try for a few quick wins,” Oswald said. “Meanwhile my firm’s whistleblower clients, who have identified real losses for taxpayers, may get less attention, even though their cases have more merit. It’s early days, but simple math says that we’ll see slower investigations, fewer interventions, and more dismissals. That’s bad for the U.S. Treasury.”

Nancy Salazar

Nancy B. Salazar is a project assistant at The Employment Law Group® law firm, where she supports the legal team with various projects and administrative tasks. She is currently enrolled in the paralegal studies certification program at The Catholic University of America in Washington, D.C, where she is delving deep into topics such as criminal law and procedure, intellectual property, torts, and contract law.

Ms. Salazar attended Trinity Washington University, majoring in human relations. As part of her undergraduate studies, she spent two months studying abroad at the University of the Sacred Heart in San Juan, Puerto Rico, where all her coursework was conducted in Spanish. This immersive experience strengthened her communication skills, cultural fluency, and attention to details — qualities she now brings to her work in the legal field.

Outside of work, Ms. Salazar is a member of a professional Latin dance team and enjoys performing across different cities. She enjoys swimming, traveling, and has a passion for collecting handmade artisan goods from around the world.