Gail D. ZirkelbachJason M. Crawford

Last month, in Gierer v. Rehab Medical, the U.S. District Court for the Eastern District of Missouri granted the defendant’s motion to dismiss the portions of the whistleblower’s complaint that alleged punitive damages against her former employer pursuant to her § 3730(h) FCA retaliation claim.

Courts have routinely held that Congress did not intend for a prevailing employee to receive punitive damages under the FCA.  See e.g., Leggins v. Orlando Housing Auth., 2013 WL 937739, at *2-3 (M.D. Fla. Mar. 11, 2013) (finding Congress did not intend for punitive damages to be available under the anti-retaliation section of the FCA). Gierer attempted to distinguish these cases because they had arisen in the context of a plaintiff attempting to recover punitive damages against a state entity whereas Gierer was attempting to recover against a private entity, a supplier of various electric-motorized wheelchairs.

The court rejected Gierer’s argument holding that: (1) Congress chose not to enact the FCA with a punitive damages provision—the original Senate version of the 1986 amendment to the FCA provided for an award of punitive damages, however, the version ultimately enacted omitted this language—and (2) the plain meaning of the FCA does not authorize punitive damages.

The Gierer ruling thus clarifies that although double back pay, interest on back pay, and compensation for special damages including legal fees are available in a § 3730(h), punitive damages are not available regardless of whether the defendant is a public or private entity.