CACI 4600 False Claims Act: Whistleblower Protection—Essential Factual Elements (Gov. Code, § 12653)
California Civil Jury Instructions CACI
4600 False Claims Act: Whistleblower Protection—Essential Factual Elements (Gov. Code, § 12653)
[Name of plaintiff] claims that [name of defendant] [discharged/specify other adverse action] [him/her/nonbinary pronoun] because [he/she/nonbinary pronoun] acted [in furtherance of a false claims action/to stop a false claim by [name of false claimant]]. A false claims action is a lawsuit against a person or entity that is alleged to have submitted a false claim to a government agency for payment or approval. A false claim is a claim for payment with the intent to defraud the government. In order to establish this claim, [name of plaintiff] must prove all of the following:
1.That [name of plaintiff] was an employee of [name of defendant];
2.That [name of false claimant] was alleged to have defrauded the government of money, property, or services by submitting a false or fraudulent claim to the government for payment or approval;
3.That [name of plaintiff] [specify acts done in furthering the false claims action or to stop a false claim];
4.That [name of plaintiff] acted [in furtherance of a false claims action/to stop a false claim];
5.That [name of defendant] [discharged/specify other adverse action] [name of plaintiff];
6.That [name of plaintiff]’s acts [in furtherance of a false claims action/to stop a false claim] were a substantial motivating reason for [name of defendant]’s decision to [discharge/other adverse action] [him/her/nonbinary pronoun];
7.That [name of plaintiff] was harmed; and
8.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.
[An act is “in furtherance of” a false claims action if
[[name of plaintiff] actually filed a false claims action [himself/herself/nonbinary pronoun].]
[or]
[someone else filed a false claims action but [name of plaintiff] [specify acts in support of action, e.g., gave a deposition in the action], which resulted in the retaliatory acts.]
[or]
[no false claims action was ever actually filed, but [name of plaintiff] had reasonable suspicions of a false claim, and it was reasonably possible for [name of plaintiff]’s conduct to lead to a false claims action.]
The potential false claims action need not have turned out to be meritorious. [Name of plaintiff] need only show a genuine and reasonable concern that the government was being defrauded.]
New December 2012; Revoked June 2013; Restored and Revised December 2013; Renumbered from CACI No. 2440 and Revised June 2015
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Directions for Use
The whistleblower protection statute of the False Claims Act (Gov. Code, § 12653) prohibits adverse employment actions against an employee who either (1) takes steps in furtherance of a false claims action or (2) makes efforts to stop a false claim violation. (See Gov. Code, § 12653(a).)
The second sentence of the opening paragraph defines a false claims action in its most common form: a lawsuit against someone who has submitted a false claim for payment. (See Gov. Code, § 12651(a)(1).) This sentence and element 2 may be modified if a different prohibited act is involved. (See Gov. Code, § 12651(a)(2)–(8).)
In element 3, specify the steps that the plaintiff took that are alleged to have led to the adverse action.
The statute reaches a broad range of adverse employment actions short of actual discharge. (See Gov. Code, § 12653(a).) If the case involves an adverse employment action other than termination, specify the action in elements 5 and 6. These elements may also be modified to allege constructive discharge. See CACI No. 2509, “Adverse Employment Action” Explained, and CACI No. 2510, “Constructive Discharge” Explained, for instructions under the Fair Employment and Housing Act that may be adapted for use with this instruction.
Element 6 uses the term “substantial motivating reason” to express both intent and causation between the employee’s actions and the discharge. “Substantial motivating reason” has been held to be the appropriate standard under the Fair Employment and Housing Act to address the possibility of both discriminatory and nondiscriminatory motives. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason” Explained.) Whether the FEHA standard applies to cases under the False Claims Act has not been addressed by the courts.
Give the last part of the instruction if the claim is that the plaintiff was discharged for acting in furtherance of a false claims action.
Sources and Authority
•False Claims Act: Whistleblower Protection. Government Code section 12653.
•“The False Claims Act prohibits a ‘person’ from defrauding the government of money, property, or services by submitting to the government a ‘false or fraudulent claim’ for payment.” (Cordero-Sacks v. Housing Authority of City of Los Angeles (2011) 200 Cal.App.4th 1267, 1273 [134 Cal.Rptr.3d 883].)
•“To establish a prima facie case, a plaintiff alleging retaliation under the CFCA must show: ‘(1) that he or she engaged in activity protected under the statute; (2) that the employer knew the plaintiff engaged in protected activity; and (3) that the employer discriminated against the plaintiff because he or she engaged in protected activity.’ ” (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 455 [152 Cal.Rptr.3d 595].)
•“ ‘As a statute obviously designed to prevent fraud on the public treasury, [Government Code] section 12653 plainly should be given the broadest possible construction consistent with that purpose.’ ” (McVeigh, supra, 213 Cal.App.4th at p. 456.)
•“The False Claims Act bans retaliatory discharge in section 12653, which speaks not of a ‘person’ being liable for defrauding the government, but of an ‘employer’ who retaliates against an employee who assists in the investigation or pursuit of a false claim. Section 12653 has been ‘characterized as the whistleblower protection provision of the [False Claims Act and] is construed broadly.’ ” (Cordero-Sacks, supra, 200 Cal.App.4th at p. 1274.)
•“[T]he act’s retaliation provision applies not only to qui tam actions but to false claims in general. Section 12653 makes it unlawful for an employer to retaliate against an employee who is engaged ‘in furthering a false claims action, including investigation for, initiation of, testimony for, or assistance in, an action filed or to be filed under Section 12652.’ ” (Cordero-Sacks, supra, 200 Cal.App.4th at p. 1276.)
•“Generally, to constitute protected activity under the CFCA, the employee’s conduct must be in furtherance of a false claims action. The employee does not have to file a false claims action or show a false claim was actually made; however, the employee must have reasonably based suspicions of a false claim and it must be reasonably possible for the employee’s conduct to lead to a false claims action.” (Kaye v. Board of Trustees of San Diego County Public Law Library (2009) 179 Cal.App.4th 48, 60 [101 Cal.Rptr.3d 456], internal citation omitted.)
•“We do not construe Kaye’s requirement that it be ‘reasonably possible for [the employee’s conduct] to lead to a false claims action’ to mean that a plaintiff is not protected under the CFCA unless he or she has discovered grounds for a meritorious false claim action. … [T]he plaintiff need only show a genuine and reasonable concern that the government was possibly being defrauded in order to establish that he or she engaged in protected conduct. Any more limiting construction or significant burden would deny whistleblowers the broad protection the CFCA was intended to provide.” (McVeigh, supra, 213 Cal.App.4th at pp. 457–458, original italics.)
•“Qui tam claims based on certain categories of publicly disclosed information are barred unless the plaintiff is an original source of the information. This prohibition, known as the public disclosure bar, is intended to prevent ‘ “parasitic or opportunistic actions by persons simply taking advantage of public information without contributing to or assisting in the exposure of the fraud.” ’ In light of CFCA’s purpose of protecting the public fisc, ‘the public disclosure bar should be applied only as necessary to preclude parasitic or opportunistic actions, but not so broadly as to undermine the Legislature’s intent that relators assist in the prevention, identification, investigation, and prosecution of false claims.’ ” (State ex rel. Bartlett v. Miller (2016) 243 Cal.App.4th 1398, 1407 [197 Cal.Rptr.3d 673], footnote and internal citations omitted.)
•“There is a dearth of California authority discussing what constitutes protected activity under the CFCA. However, because the CFCA is patterned on a similar federal statute (31 U.S.C. § 3729 et seq.), we may rely on cases interpreting the federal statute for guidance in interpreting the CFCA. (Kaye, supra, 179 Cal.App.4th at pp. 59–60.)