Singletary v. Howard Univ.
| Decision Date | 20 September 2019 |
| Docket Number | No. 18-7158,18-7158 |
| Citation | 939 F.3d 287 |
| Parties | Sylvia SINGLETARY, D.V.M., Appellant v. HOWARD UNIVERSITY, Appellee |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
James H. Shoemaker Jr., Newport News, VA, argued the cause and filed the briefs for appellant.
Jennifer L. Curry, Baltimore, MD, argued the cause for appellee. With her on the brief was Donna M. Glover, Baltimore, MD.
Before: Srinivasan, Millett, and Katsas, Circuit Judges.
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.
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. (); see also 7 U.S.C. § 2143(a)(2)(A) (); 9 C.F.R. § 2.33(b)(1) ().
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) ().
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. ().
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).
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, 96 S.Ct. 523, 46 L.Ed.2d 514 (1976) ; United States v. McNinch , 356 U.S. 595, 599, 78 S.Ct. 950, 2 L.Ed.2d 1001 (1958). As it currently stands, the Act imposes civil penalties and treble damages upon any person who, among other things, "knowingly 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).
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
...
To continue reading
Request your trial
-
Chi. Teachers Union v. Bd. of Educ. of Chi.
...accrue ... at the time the employer notifies the employee that she is fired, not later on the last day of her employment." 939 F.3d 287, 300 (D.C. Cir. 2019) (citing Shultz , 867 F.3d at 305-06, Green , 136 S. Ct. at 1782, and Almond v. Unified Sch. Dist. No. 501 , 665 F.3d 1174, 1177 (10th......
-
Mwimanzi v. Wilson, Case No. 20-cv-79 (CRC)
...other things, "the proposed amendment is futil[e], ... such that it would not withstand a motion to dismiss." Singletary v. Howard Univ., 939 F.3d 287, 295 (D.C. Cir. 2019) (internal citation and quotation marks omitted). "A complaint will, in turn, survive a motion to dismiss if it contain......
-
Lewis v. Mutond
...motion to dismiss stage, we can take judicial notice of facts incorporated by reference into the complaint. See Singletary v. Howard Univ., 939 F.3d 287, 293 n.1 (D.C. Cir. 2019); see also Williams v. Lew, 819 F.3d 466, 473 (D.C. Cir. 2016) (citing Farah v. Esquire Magazine, 736 F.3d 528, 5......
-
Harris v. Trs. of the Univ. of the Dist. of Columbia
...alleged retaliatory actions unpled, unsupported, or both. See supra III.A. Harris analogizes her facts to those in Singletary v. Howard University, see Pl.’s Opp'n at 40, but that does not help her. That case concerned sufficient pleading standards at the motion to dismiss stage, not the ev......
-
Is There a Private Cause of Action for Violations of §508 of the Rehabilitation Act?
...and we “construe the facts, and reasonable inferences drawn from them, in the light most favorable” to Orozco. Singletary v. Howard Univ., 939 F.3d 287, 293 n.1 (D.C. Cir. 2019). 6 on the safe side, Orozco sent copies of his administrative complaint to both the FBI’s Equal Employment Opport......
-
Better to Analyze a Statute Than to Psychoanalyze Congress? Eleventh Circuit Widens Circuit Split Over Proper Causation Standard in False Claims Act Retaliation Cases
...945 F.3d at 1357.60. Id.61. See Nesbitt, 945 F.3d at 1360; DiFiore, 879 F.3d at 76-78; King, 871 F.3d at 333; Singletary v. Howard Univ., 939 F.3d 287, 293 (D.C. Cir. 2019); Ziebell, 806 F.3d at 953; McKenzie v. Bellsouth Telecomms., Inc., 219 F.3d 508, 518 (6th Cir. 2000).62. 153 F.3d 731,......