# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 26, 2019 Decided S e p t e m b e r 2 0

, 2 0 1 9

No. 18

- 7158

S YLVIA S INGLETARY
, D.V.M.,
A PPELLANT

v.

H OWARD U NIVERSITY
, A PPELLEE

Appeal from the United States District Court
for the District of Columbia (No. 1:17

- cv

- 01198)

James H. Shoemaker Jr. argued the cause and filed the briefs for appellant.

Jennifer L. Curry argued the cause for appellee. With her
on the brief was Donna M. Glover

.

Before: S RINIVASAN
, M ILLETT
, and K ATSAS
, Circuit Judges

.

Opinion for the Court filed by Circuit Judge M ILLETT

.

Dissenting opinion filed by Circuit Judge K ATSAS

.2

M ILLETT
, Circuit Judge : 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 c laims that her
termination violated the False Claim s 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

. I n light of
the proposed amended complaint’s particular factua l allegations, the district court ’s decision reflected too narrow a view of the False Claims Act ’s protection for whistleblowers

. For that reason, w e reverse and remand for further proceedings

.

I

A

As a voluntary recipient of fund ing 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. (“The ambient temperature shall not be allowed to fall below nor rise above temperatures compatible with the health and comfort of the3

animal.”); see also 7 U.S.C. § 2143(a)(2)(A) (specifying tha t regulations shall “include minimum requirements” for “housing, * * * [and] shelter from extremes of weather and temperatures, * * * [as] the Secretary [of Agriculture] finds necessary for humane handlin g , care, or treatment of animals”);
9 C.F.R. § 2.33( b)(1) (“Each research facility shall establish and maintain programs of adequate veterinary care that
include * * * [t]he availability of appropriate facilities * * * to comply with the provisions of this subchapter[.]”)

.

The Health Research Extension Ac t 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). T o that end, t he 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 S tandards Guide”)

. See Office of Lab oratory 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 Acad emie s of Sc i ences , 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) ( making the Care Standards Guide the
foundation on which research institutions must base their animal care and use programs)

.

As relevant here, t he Care Standards Guide specifies that laboratory animals are to be housed within temperature and humidity ranges “appropriate for the species, to which they can4

adapt with minimal stress and physiologic reaction.” Care
Standards Guide at 43 ; see also id. (“Maintenance of body temperature within normal c ircadian variation is necessary for
animal well

- being.”).

The Animal Welfare and Extension Act s , and their accompanying regulations, together impose an internal compliance infrastructure to en force 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
institutio n’s research program s , inspecting facilities, preparing semiannual internal compliance evaluations, and reviewing proposed activities involving animals for compliance with the
Animal Welfare and Extension Act s

. See 7 U.S.C. § 2143(b)(3)

– (4); 42 U.S.C. § 2 89d(b)(3)(A); 9 C.F.R. § 2.31(c); Humane Care Policy § IV.B.

To assist in performing th o se tasks, each Committee ’s membership includes an “Attending Veterinarian” who is entrusted with the authority to “ensure the provision of adequate veterinary care a nd 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.5

On an annual basis, each institution must file a report with the Department of Agric ulture 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)

. Th o se certifications are “necessary” for research institution s “to
receive and retain * * * grant monies

. ” Proposed Second Am. Complaint (“ p roposed c omplaint”) ¶ 43, J.A. 1 3 7

. See generally 7 U.S.C. § 2143(f); 42 U.S.C. § 289d (d)

.

More frequent reporting is necessary i n the event animal
care standards are not me t 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 continui ng 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,
N IH

, 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 th o se requirements come with teeth. If animal care
devi ations 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).

B

Congress enacted t he 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.1,6

309 (1976); United States v. McNinch

, 356 U.S. 595, 599 (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, suspend ed, 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 ac tivity

, and (b) that the retaliation
was motivated “at least in part” by her protected activity. Id. (internal quotation marks omitted).7

C

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 procedure s 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

Singletary reported directly to Dr. Thomas Obisesan, who was both the University’s Vice President for Regulatory Research and Compliance and the Institutional Official responsible for certifying animal

- welfare compliance with federal agencies

. See 9 C.F.R. § 1.1

. As Attending Veterinarian, Singletary was a member of the University’s
Animal Care and Use Committee, along with Obisesan and Dr. Thomas Heinbockel, the Committee’s C hair.

Over a n approximately nine

- month period between
S ummer 2013 and S pring 2014

, Singletary repeatedly warned
Obisesan t hat the air temperature in the laboratory animals ’

1 As is appropriate at this procedural stage, these facts are taken from the proposed complaint, documents attached to or incorporated by reference in that complaint, and matters of which the court may take judicial notice. See Williams v. Lew

, 819 F.3d 466, 473 (D.C. Cir. 2016) (citing Farah v. Esquire Magazine , 736 F.3d 528, 534 (D.C. Cir. 2013)). We construe the facts, and reasonable inferences drawn from them, in the light most favorable to Singletary. See In re Interbank Funding Corp. Sec. Lit ig. , 629 F.3d 213, 216 (D.C. Cir. 2010).8

living quarters was too high

. She explained that the conditions,
which were “ caused by equipment failures ” and “ physical plant
deficienci es , ” were “ not in compliance with [ NIH ] standard s ” and “constituted violations o f the terms and conditions ” of the University’s grants from the NIH

. Proposed Complaint ¶¶ 17

– 18, J.A. 129

. Singletary urged Obisesan to take corrective action for which only he had authority: to remedy the temperature deviations and to report the U niversity’s non

compliance to the federal government

. H e did not do either

.

Singletary then took her concerns to Heinbockel and Dr. Mark Johnson, the Dean of the University’s Medical School

. B oth proved unresponsive. Over the same time period that Singletary was registering complaints and warnings with th o se University officials, the University “made certifications to the [NIH] and other federal agencies that the laboratory
animals * * * were being maintained and cared for under certain federally mandated ambient living conditions.” Proposed Complaint ¶ 43, J.A. 137.

Things came to a head when, in mid

- April 201 4

, Singletary arrived at work to find 21 mice dead from heat
exhaustion. Because Obisesan ha d not acted in response to her prior complaints , Singletary took matters into her own hands.
She emailed the NIH

—her only written communication with
the agency during her twenty

- month tenure at the University

— to report the rodents’ deaths

. Singletary’s message, on which Obisesan and Heinbockel were copied, explained that:

At 10:45 am, April 15, 2014 [

, ] I found 21 mice dead
from heat exhaustion. [A r] oom * * * which houses
animal s on a [n] [individually vent ilated cage] lost power over night. In addition, we have been having difficulty with receiving condition air [ sic ] in the facility. A more detailed report will be submitted after9

I have briefed the [Committee] and [Institutional Official].

J.A. 101

– 102.

In response, t he NIH thanked Singletary for her report and directed the Institutional Official, Obisesan, to submit a corrective plan of action. That prompted the University t o finally solve the air temperature problem.

S hortly thereafter

, in late April or early May, an “incensed” Obisesan “excoriated” Singletary at a faculty meeting, “ accusing her of a lack of professional ism and integrity” for “humiliat[ing]” the University before the NIH

. Proposed Complaint ¶¶ 25

– 26, J.A. 131

– 132. Then on June 20, 2014, the University notified Singletary that it was cutting
her a ppointment short by six months, terminating her employment as of December 2014. Finding her conditions of employment to have become “intolerable,” Singletary resigne d in August 2014. Id. ¶ 3 4 , J.A. 134.

D

Singletary filed suit against the University in the United
States District Court for the District of Columbia in June 2017

. Her initial and first amended complaints asserted (as relevant here) that she was terminated in retaliation for engaging in activity protected by the False Claims Act

, 31 U.S.C. § 3730(h)

. The district court granted the University’s motion to dismiss Singletary’s first amended complaint. Singletary
then sought leave to amend her complaint a second time

. Concluding that Singletary’s p roposed c omplaint also would not withstand a motion to dismiss, the district court denied the
motion as futile. T he district court reasoned that Singletary’s
nine months of complaints about animal mistreatment within10

the University and

, eventually, her email to the NIH were not “protected activity” under the False Claims Act because they

were part and parcel of her role as Attending Veterinarian

. J.A.
226

– 228

. The court also ruled that Singletary had failed to allege that the University was aware of her purportedly protected activity.

Singletary filed a timely notice of appeal.

II

The district court exercised subject matter jurisdiction
under 28 U.S.C. § 133 1. This court’s jurisdiction arises under
28 U.S.C. § 1291.

Leave to amend a complaint should be “freely give[n]” when “justice so requires.” F ED

. R. C IV

. P. 15(a)(2). L eave may properly be denied if the proposed amendment is “futil[e],” Foman v. Davi s , 371 U.S. 178, 182 (1962), such that it would not withstand a motion to dismiss, Hettinga v. United
States , 677 F.3d 471, 480 (D.C. Cir. 2012). A complaint will

, in turn, survive a motion to dismiss if it contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) ( internal quotation marks omitted ). A claim is facially plausible when “the plaintiff pleads factual con tent that allow s the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

We review de novo the denial of a motion for leave to amend on grounds of futility. See Scahill v. District of
Columbia , 909 F.3d 1 177, 1181 (D.C. Cir. 2018).11

III

To adequately state a claim of retaliation under the False Claims Act, Singletary had to plausibly allege facts showing that ( i ) she engaged in protected activity, and ( ii ) the University retaliated against her because of that activity. See Yesudian

, 153 F.3d at 736. Singletary has made each of those threshold showings, so the district court erred in concluding that her

p roposed c omplaint would not withstand a motion to dismiss

.

A

P rotected activity under the False Claims Act’s anti

retaliation provision takes two forms. The Act first protects “lawful acts done * * * in furtherance of an action under this section”

— that is, steps taken antecedent to a False Claims Act proceeding . 31 U.S.C. § 3730(h)(1). Second, t he Act insulates
from retaliation lawful acts done in furtherance of “ other efforts to stop 1 or more violations of ” the False Claims Act.
Id

.

Under the first prong of that test, a n employee ’s lawful acts

are in “furthe rance of an action under this section” if she “investigat[e s ] matters that reasonably could lead to ,” or have a “distinct possibility” of leading to

, a “ viable False C laims Act
case.” Hoyte v. American Nat’l Red Cross , 518 F.3d 61, 66

, 68

– 69 (D.C. Cir. 20 08) (internal quotation marks omitted)

. D issatisfaction with one’s treatment on the job is not enough. See Shekoyan v. Sibley Int’l , 409 F.3d 414, 423 (D.C. Cir. 2005) . Nor is an employee’s “investigation of nothing more than his employer’s non

- compliance with federal or state regulations.” Hoyte , 518 F.3d at 66 (quoting Yesudian , 153 F.3d at 740) . Instead, “[t]o be covered by the False Claims Act, the plaintiff’s in vestigation must concern ‘false or fraudulent’12

claims” submitted for federal funding

. Yesudian , 153 F.3d at
740 (quoting 29 U.S.C. § 3729(a))

.

A plaintiff may also demonstrate protected activity under Section 3730(h)(1)’s second prong

, which, unlike th e first, is not tied to the prospect of a False Claims Act proceeding

. Instead, the plain statutory text focuses on the whistleblower’s “efforts to stop” violations of the statute before they happen or

recur. See United States ex rel. Grant v. United Air lines, Inc.

, 912 F.3d 190, 201 (4th Cir. 2018) (“The apparent purpose of the [second prong] is to untether these * * * protected efforts from the need to show that [ a False Claims Act] action is in the offing. Indeed, we and other circuits have recognized that the amended language broad ens the scope of protected activity.”) ; United States ex rel. Chorches v. American Med. Response,
Inc. , 865 F.3d 71, 97 (2d Cir. 2017) ( the second prong “broaden[s] the universe of protected conduct under [Section] 3730(h), at least with respect to ‘efforts to stop’ [False Claims Act] violations”)

.

To put it simply, t he focus of the second prong is preventative

— stopping “violations”

— while the first prong is
reactive to an (alleged) actual violation of the statute

. See, e.g.

, Carlson v. DynCorp Int’l LLC , 657 F. App’x 168, 171 (4th Cir. 2016) (“It would be nonsensical to say that these efforts only become protected activity if a lawsuit under the [False Claims Act] b ecomes a distinct possibility

— the second prong is explicitly untethered from any such action .”).

To be sure, b y covering only efforts to stop “violations of this subchapter ,” 31 U.S.C. § 3730(h)(1) (emphasis added), the second prong (like the first pro ng) require s that the employee’s
efforts pertain to fraud in connection with the submission of a
claim for federal government funds

. See Yesudian , 153 F.3d at
740 . But that test is met as long as the employee ha s an13

objectively reasonable belief that the employer is violating

, or will violate, the False Claims Act. Grant , 912 F.3d at 201 (“[A]n act constitutes protected activity where it is motivated by an objectively reasonable belief that the employer is violating, or soon will violate, the [False Clai ms Act].”) ; see Chorches , 865 F.3d at 96 ( second prong encompasse s a plaintiff’s “refusal to engage in the fraudulent scheme, which

* * * reasonably could be expected to prevent the submission of a false claim to the government ”).

In that way, the False Claims Act’s whistleblower provision mirrors other federal whistleblower protection laws

. See Yesudian , 153 F.3d at 741

– 742 & n.9 (looking to interpretations of other whistleblower protection provision s to interpret the False Claims Act)

. Whether expressly called for in the statutory text, or the product of judicial or administrative interpretation, many whistleblower protection provisions cover employee s who report or oppose what they reasonabl y believe
to be unlawful conduct. 2 Th at is because “ a layperson should

2 Federal whistleblower provisions expressly covering employees who oppose or report what they reasonably believe to be unlawful employer practices include the Affordable Care Act, 29 U.S.C. § 218C(a)(2), the Cons umer Products Safety Act of 2008, 15 U.S.C. § 2087(a)(1), the National Defense Authorization Act for Fiscal Year 1987, 10 U.S.C. § 2409(a)(1), the FDA Food Safety Modernization Act, 21 U.S.C. § 399d(a)(1), the Sarbanes

- Oxley Act, 18 U.S.C. § 1514A(a)(1), a nd the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8)(A)(i). Federal whistleblower provisions otherwise interpreted as covering employees who oppose or report what they reasonably believe to be unlawful employer practices include the Age Discriminati on in Employment Act, 29 U.S.C. § 623(d); Heggemeier v. Caldwell County , 826 F.3d14

not be burdened with the ‘sometimes impossible task’ of correctly anticipating how a given court will interpret a particular statute.” Parker v. Baltimore & Ohio R.R. Co. , 652 F.2d 1012, 1020 (D.C. Cir. 1981) ( quoting Ber g v. La Crosse
Cooler Co. , 612 F.2d 1041, 1045

– 1046 (7th Cir. 1980)). 3

861, 869 (5th Cir. 2016), the Americans with Disabilities Act, 42 U.S.C. § 12203(a); Lenzen v. Workers Comp. Reinsurance
Ass’n , 705 F.3d 816, 821 (8th Cir. 2013), the Family Medical Leave Act, 29 U.S.C. § 2615(a)(2); Lott v. Not

- for

- Profit Hosp. Corp. , 319 F. Supp. 3d 277, 282 (D.D.C. 2018); 29 C.F.R. § 825.220(e), the Federal Mine Safety and Health Act, 30 U.S.C. § 815(c); Gilbert v. Federal Mine Safety & Health
Review Comm’n , 866 F.2d 1433, 1439 (D.C. Cir. 1989), the Pipeline Safety Improvement Act, 49 U.S.C. § 60129(a)(1); Rocha v. Air Util. Corp. , No. 07

- 112, 2009 WL 1898237, at *6 (DOL Adm. Rev. Bd. June 25, 2009); 70 Fed. Reg. 17,889, 17,890

– 17,891 (April 8, 2005), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

- 3(a); Grosdidier v. Broadcasting Bd. of Governors , 709 F.3d 19, 24 (D.C. Cir. 2013), and the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. § 42121(a)(1); Benjamin v . Citation Shares Mgmt.

, LLC , No. 12

- 029, 2013 WL 6385831, at *4 (ARB Nov. 5, 2013). Indeed, other circuits have held, and we have suggested, that an objectively reasonable belief suffices even under Section 3730(h)(1)’s first

prong. See Hoyte , 518 F.3d at 68

– 69; Fanslow v. Chicago Mfg. Ctr., Inc. , 384 F.3d 469, 480 (7th Cir. 2004); Wilkins v. St.
Louis Housing Auth. , 314 F.3d 927, 933 (8th Cir. 2002); Moore v. California Inst. of Tech. Jet Propulsion Lab. , 275 F.3d 838, 845 (9th Cir. 2002).

3 In a qui tam action, a misrepresentation about compliance with a statutory, regulatory, or contractual15

To summarize, Singletary can establish that she engaged
in protected activity under Section 3730(h)’s second prong if she plausibly alleges facts showing that she took lawful measures to stop or avert what she reasonably believed would
be a violation of the False Claims Act. See Grant , 912 F.3d at
201

– 202.

B

Singletary’s p roposed c omplaint sufficiently allege s protected activity under the second prong of Section 3730(h)(1)

.

For starters, there is no dispute that Singletary’s actions protesting the overheated conditions in which the laboratory animals were kept and, ultimately, her email to the NIH

, were “lawful [

. ] ” See 31 U.S.C. § 3730(h)(1).

The question, then, is whether the p roposed c omplaint sufficiently alleges that her actions were undertaken to try to prevent what she reasonably believed would be the presentation of false claims by the University . It does.

requirement is only actionable if it is material. Universal Health Servs., Inc. v. United States ex rel. Escobar , 136 S. Ct. 1989, 1996 (2016) ; United States ex rel. Kasowitz Benson Torres LLP v. BASF Corp. , No. 18

- 7123, 2019 WL 2896005, at *4 (D.C. Cir. July 5, 2019)

. We need not decide whether a materiality requirement similarly applies to an employer’s false
claims under th e whistleblower provision b ecause the University has not argued that its alleged misrepresentations
were immaterial as a matter of law. See Al

- Tamimi v. Adelson

, 916 F.3d 1, 6 (D.C. Cir. 2019).16

First

, t he p roposed c omplaint alleges that , between mid

Summer 2013 and Spring 2014, Singletary repeatedly informed Obisesan “that the conditions in whi ch the Howard laboratory animals were being held were too warm, not in compliance with NIH * * * standards, and that the ambient air temperature constituted violations of the terms and conditions under which Howard received grant money from NIH and the
fed eral government.” Proposed Complaint ¶¶ 18

– 19 , J.A. 129

. As the Attending Veterinarian charged with supervising the care of laboratory animals, S ingletary knew that federal law
mandated the ir proper care , includ ing the maintenance of appropriate ambient air temperatures in their living quarters.
Id. ¶¶ 17

– 18, J.A. 129; see 9 C.F.R. § § 2.33(b)(1), 2.38(k)(1)

, 3.126(a); Care Standards Guide at 43 . She also knew that the heightened temperatures deviated from those standards, and
that the University was obligated to report the deviations to the
NIH. Proposed Complaint ¶¶ 20, 22, 26

, J.A. 130

– 132; see Humane Care Policy § IV.F.3; Prompt Reporting Notice at 2

– 3

.

Second , Singletary had an objectively reasonable belief
that the University was or would soon be submitting false
certifications of its compliance with animal welfare requirements in connection with funding claims. According to Singletary, the Univ ersity made annual certifications “to [the NIH] and other federal agencies that the laboratory animals in question * * * were being maintained and cared for under certain federally mandated ambient living conditions.” Proposed Complaint ¶ 43, J.A. 137 ; se e 7 U.S.C. § 2143(a)(7);
42 U.S.C. § 289d(b)(3)(A); 9 C.F.R. § 2.36(b)(3)

. And those
certifications , Singletary reasonably believed

, “were necessary for Howard to receive and retain the grant monies that they in fact received from the United States and retained throughout the relevant time period.” Proposed Complaint ¶ 43, J.A. 137

. See generally 7 U.S.C. § 2143(f); 42 U.S.C. § 289d ( d)

.17

Singletary’s proposed complaint also indicates that her objections coincided with a reporting period

. See Proposed Complaint ¶ 43, J.A. 137. Her a ssertedly protected activity
occurred over a nine

- month period between the Summer of 2013 and Spring 20 14. Annual compliance certifications are due to the Department of Agriculture and the NIH by December 1 and January 31, respectively, and “may be synchronized[.]” Office of Lab oratory Animal Welfare

, NIH

, Dep’t of Health & Human Servs.

, Institutional Ani mal Care
and Use Committee Guidebook 1 77 (2d ed. 2002) (“Guidebook”) ; 9 C.F.R. § 2.36(a); Annual Report to OLAW

, Office of Lab oratory Animal Welfare, NIH

, https://olaw.nih.gov/resources/documents/annual

- report.htm (last visited Aug. 1 , 2019 ). So , as counsel for Howard University acknowledged at oral argument , Oral Arg. Tr.
34:15

– 35:6

, Singletary has alleged facts supporting her objectively reasonable belief that, during the relevant time period, the University was or would be making false compliance certifications in connection with the submission of requests for federal funding

. See 31 U.S.C. § 3729(a)(1)(B).

Third

, Singletary ’s actions matched her wo rds of protest.
See Grant , 912 F.3d at 201

– 202. Singletary reported the overheated conditions time and again to Obisesan , Heinbockel,
and Johnson

, and “exhorted” them to take “remed[ial]” action

, which would have headed off any false claim

. Proposed Complaint ¶¶ 18

– 22, 24, 26, J.A. 129

– 132

. S ingletary also repeatedly urged them to report the temperature deviations to regulators , as required by law if funding claims are to be
submitted

. S ee 7 U.S.C. § 2143(a)(7); 42 U.S.C. § 289d(b)(3)(A), ( C); 9 C.F.R. § 2.36(b)(3)

. S everal months later, Singletary even t ried to bring the University into at least partial compliance with the law by directly reporting to the NIH
the animal deaths and the overheated conditions that caused18

them

. See J.A. 101

– 102 (“[W]e have been having difficulty with receiving condition air [ sic ] in the facility.”).

To be sure, Singletary ’s communications within Howard University and her email to the NIH did not accuse the University of fraud in terms

. But that is beside the point. All that is necessary at this stage of the inquiry is that Singletary ’s proposed complaint plausibly allege an objectively reasonable
factual basis for the belief that her email was an effort (i) to

correct or counteract false submiss ions that had previously
been made or (ii) to provide the NIH the information needed to
enforce its animal

- welfare requirements before any more funding was granted

. See Proposed Complaint ¶ 23, J.A. 131 (“Dr. Singletary, fully recognizing that the [Instit utional Official], Dr. Obisesan, had never reported Howard’s ambient air deviations to [the NIH], decided that leaving the matter solely in Dr. Obisesan’s hands would not be prudent.”).

The district court came to the opposite conclusion, and in doing so committed multiple errors.

First

, the district court defined protected activity as requiring the plaintiff to have “investigat[ed] matters that reasonably could lead to a viable [False Claims Act] case.” J.A. 226 (internal quotation marks omitted). See J.A. 229 (“Nothing in her proposed amended complaint undermines the Court’s original description of this report as a far cry from the grist of [a False Claims Act] allegation.”) (formatt ing modified). But that criterion only applies to Section 3730(h)(1)’s first prong. See Hoyte , 518 F.3d at 66. The plain text of Section 3730(h)(1)’s second prong omits that requirement and focuses exclusively on preventing or abating
violations of law in the first place. See Grant , 912 F.3d at 201;
Chorches , 865 F.3d at 97; Carlson , 657 F. App’x at 171.19

Second , t he district court wrongly required Singletary to allege that her efforts were outside the scope of her responsibilities as Attending Veteri narian. See J.A. 226

– 228

. T hat factor pertains only to Section 3730(h)(1)’s causal inquiry, which asks whether the University was on notice of her protected activity. See United States ex rel. Williams v.
Martin

- Baker Aircraft Co. , 389 F.3d 1251, 1261 (D.C. Cir. 2004).

In short, when looked at through the proper legal lens, t he

p roposed c omplaint plausibly alleg e s that Singletary undertook
l awful acts in furtherance of her “ efforts to stop 1 or more violations ” of the False Claim s Act. 31 U.S.C. § 3730(h)(1). 4

IV

Singletary’s work is not done yet. To state a claim for retaliation, her complaint must also plausibly allege ( i ) a qualifying retaliatory employment action, ( ii ) the University ’s knowledge that she was engaged in protected activity

, and ( iii ) facts showing that the employment action was caused by her engagement in that activity. See 31 U.S.C. § 3730(h)(1) ( affording “all relief necessary” to make an employee “whole” if she is “discharged, demoted, suspended, threatened,
har assed, or in any other manner discriminated against in the terms or conditions of employment because of ” her engagement in protected activity ) ; Yesudian , 153 F.3d at 736

. Singletary’s p roposed c omplaint fits the bill . She adequately alleges termination o f her position , the University’s awareness

4 Because denying leave to amend was in error under the second prong, we need not decid e at this early juncture whether the proposed complaint also adequately allege s protected activity under Section 3730(h)(1)’s first prong. See Chorches , 865 F.3d at 97 n.31.20

of her protected activity, and facts connecting her termination

to that protected activity

.

A

Singletary alleges that within weeks of her email to the
NIH about air

- temperature problems, the University cut short
her appointment by six months, ending it in December 2014
rather than June 2015. D ischarge plainly qualifies as a retaliatory employment action under Section 3730(h). 31
U.S.C. § 3730(h)(1) ; se e United States ex rel. Schweizer v. Océ
N.V. , 677 F.3d 1228, 1240 (D.C. Cir. 2012).

The University resists th at conclusion by arguing that Singletary’ s departure was, as a matter of law, a “voluntary resignation” a s opposed to a discharge

. See Univers ity Br. 35

– 3 9 . This is so, the University says, because after being informed of her pending termination, Singletary left the University in August 2014.

That argument is wrong in two resp e cts. First , t here was nothing “ voluntary ” about Singletary’s exit

. She left only after
she was told that she was being terminated effective December
2014

. Plus, the p roposed c omplaint alleges that the University ’s appointments are “evergreen,” meaning that, absent the discharge, Singletary woul d have been able to

“ remain [] in the position of Attending Veterinarian for a lengthy period of time beyond June * * * 2015.” Proposed Complaint ¶

¶ 10, 37, J.A. 127, 135.

Second , and in any event, the mere notice of termination
is a cognizable adverse employment action regardless of whether the employer follows through

. See Schultz v. Congregation Shearith Isr ael of the City of N.Y. , 867 F.3d 298,
305

– 306 (2d Cir. 2017) (“[N]otice of termination itself21

constitutes an adverse employm ent action, even when the employer later rescinds the termination.”) ; Almond v. Unified
Sch. Dist. No. 501 , 665 F.3d 1174, 1177 (10th Cir. 2011) (Gorsuch, J.) ( listing “notice of termination with a grace period before actual firing occurs” as an “adverse e mployment action”)

. That is because wrongful discharge claims accrue, and limitation periods begin to run

, at the time the employer notifies the employee that she is fired, not later on the last day of her employment. Green v. Brennan , 136 S. Ct. 1769, 1 782 (2016); Chardon v. Fernandez , 454 U.S. 6, 8 (1981) ; see Weslowski v. Zugibe , 14 F. Supp. 3d 295, 303 (S.D.N.Y. 2014) ( applying Chardon to hold that the limitations period for a False Claims Act retaliation claim was triggered when plaintiff

was notified of his termination). So the University ’s retaliatory
action occurred in June 2014 when Singletary was notified that
she w as being terminated.

B

Singletary ’s p roposed c omplaint also rises to the task of alleging that she was discharged because of her protected activity. Specifically, the p roposed c omplaint plausibly shows
both that the University was aware of Singletary’s protected
activit ies and that those activities motivated her discharge.

1

Common sense teaches that an employer cannot retaliate against conduct of which it was unaware. See Schweizer , 677
F.3d at 1239 ; cf. Williams

, 389 F.3d at 1260

– 1261 (U nder Section 3730(h)(1)’s first prong, “[u]nless the employer is aware that the employee is investigating fraud, the employer could not possess the retaliatory intent necessary to establish a
violation

. ”) (formatting modified) . So to adequately allege that she was discharged because of her protected ac tivity,22

Singletary must first allege that the University had knowledge

or notice that she was engaged in protected activity. See
Yesudian , 153 F.3d at 736. In this case, that means Singletary must allege that the University was aware she was engaging in
lawful acts aimed at preventing the University’s submission of
false or fraudulent claims. See United States ex rel. Reed v

. KeyPoint Gov’t Sols. , 923 F.3d 729, 76 7 (10th Cir. 2019)

.

Singletary’s p roposed c omplaint clears that hurdle. Singletary alleges that she repeatedly urged her superiors to rectify the animal s’ living conditions . In doing so, she stressed not only the medical and humanitarian need for changes, but also that the continuing failure to remedy th e situation violated funding requirements. See Proposed Complaint ¶ 18 (“Dr. Singletary informed Dr. Obisesan * * * that the conditions in which the Howard laboratory animals were being held were too warm, not in compliance with NIH * * * standards, and t hat the ambient air temperature constituted violations of the terms and conditions under which Howard received grant money from NIH and the federal government.”); id. ¶ 19 (“Dr. Singletary told [Drs. Heinbockel and Johnson] that Howard was not in complianc e with the terms and conditions under which it was receiving grant money from NIH.”); id. ¶ 21 ( Dr. Singletary “told both Dr. Heinbockel and Dr. Johnson that the ambient air temperature deviations from acceptable standards constituted
violations of the ter ms and conditions of Howard’s federal grants.”) ; id. ¶ 2 2 (“In a majority of [her] conversations [with Obisesan] she expressly noted that Howard was out of compliance with the terms and conditions under which it was receiving grant money from the federal government.”), J.A.
129

– 131.

S ingletary also urged them in advance not to submit false
annual compliance certifications and to rectify pending false certifications of compliance. See Proposed Complaint ¶¶ 18

–23

19 , 21 (alleging that Dr. Singletar y exhorted Drs. Obisesan, Heinbockel, and Johnson to take “ corrective action”); id. ¶ 22 (Singletary “noted that the conditions and problems that Howard was encountering with respect to ambient air temperature should be reported to [the NIH] .”); id. ¶ 26 ( “Dr. Singletary[] insist[ed] that Howard was in violation of the terms and conditions of federal grants, that the violations should be reported, and that the matter should be remediated.”)

, J.A. 129

– 132

.

The University objects that it nonetheless lacked notice
because , in complaining, Singletary was just doing her job as Attending Veterinarian. See, e.g.

, Williams , 389 F.3d at 1261 ( “[P]laintiffs alleging that performance of their normal job responsibilities constitutes protected activity must ‘overcome the presumption that they are merely acting in accordance with their employment obligations’ to put their employers on
notice.” ) (quoting Yuhasz v . Brush Wellman, Inc. , 341 F.3d 559, 568 ( 6 th Cir. 200 3 )) ; see also Dissenting Op. at 5 (characterizing Singletary’s complaints as falling “squarely within her job as an attending veterinarian”).

Singletary did more than perform her ordinary caretaking
duties. Her complaints also “expressly noted that Howard was out of compliance with the terms and conditions under which it was receiving grant money from the federal government

, ”
and she objected that, under the terms of the grant program,

“ the condition s and the problems that Howard was encountering with respect to the ambient air temperature should be reported” to the NIH. Proposed Complaint ¶ 22, J.A.
130

– 131 ; see id. ¶ 26, J.A. 131

– 132 . As the University acknowledges, policing compliance with grant conditions was

not one of Singletary’s responsibilities. See Oral Arg. Tr.
43:19

– 44: 20

.24

In addition, she went “outside the usual chain of
command [

. ] ” Williams , 389 F.3d at 1261. After her direct supervisor, Obisesan , proved unresponsive to her repeated complaints, Singletary went over his head to Dr. Heinbockel, the Chair of the Committee, and to Dr. Johnson, the Dean of
the Medical School. Those reports were outside her professional wheelhouse.

And certainly Sing letary’s email to the NIH went above and beyond her assigned duties as she attempted to cut short the University’s allegedly fraudulent prior certifications. See Proposed Complaint ¶ 24, J.A. 131 (alleging that communication with the NIH “was not within t he ambit of Dr. Singletary’s duties or job description”); see id. ¶ 24, J.A. 131 (r esponsibility for communicating with the NIH rested with Obisesan, the Institutional Official ) ; Oral Arg. Tr. 24: 16

– 23 ( University’s concession that Obisesan “was designated for the communication[]” with NIH)

. Indeed, that email was the only written communication Singletary sent to the NIH during her twenty

- month tenure at the University. And if Singletary’s actions were just part of her job, see Dissentin g Op. at 5

– 8

, there would have been no reason for Obisesan to “excoriate[]” her in front of other faculty members for being unprofessional and lacking “integrity,” Proposed Complaint ¶ 26, J.A. 132.

The Humane Care Policy corroborates th e p roposed

c omplaint ’s alleg ed division of responsibilities

. It instructs the Committee, “ through the Institutional Official ,” to provide the
NIH with information about non

- compliance with the Humane
Care Policy and/or the Care Standards Guide. Humane Care Policy § IV.F.3; see also Prompt Reporting Notice at 1 (“The Institutional Official signing the Assurance, in concert with the [Committee], is responsible for this reporting.”). So by copying Obisesan and Heinbockel on her email to the NIH

, Singletary put the University on notice that she was25

singlehandedly attempting to address the certification problem to which they had proven unresponsive.

T he district court came to the contrary conclusion

, pointing to a statement in the NIH’s Guidebook

— a document

pro vided to regulated parties for “informational purposes only” ( Guidebook , I nside C over )

— that the care of animals “necessitates a partnership among the Institutional Official, [ the Committee], the veterinarian and the investigators,” which may only be achiev ed “when all of the players [including] the veterinary staff” contribute to a “shared goal

. ” J.A. 227

– 228 (quoting Guidebook at 19). From that, the district court
inferred that “communicating with NIH” was a “normal part of the veterinarian’s job.” J.A. 228

.

That was error. At this procedural stage, all reasonable
inferences from the p roposed c omplaint ’s factual allegations must be drawn in support of, not against, Singletary. See Interbank Funding

, 629 F.3d at 216 (plaintiff seeking leave to amend is entitled to the benefit of “all inferences that can be derived from the facts alleged”) (formatting modified)

. Because the Guidebook’s de scription of the Attending Veterinarian’s role is fully consistent with Singleta ry’s allegations about Obisesan’s sole responsibility for reporting to
the NIH, the district court crossed the line into adverse factfinding.

For its part, the Dissenting Opinion’s central objection is that Howard University officials could have viewed Singletary’s complaints as just “ ‘ grumbling ’ ” about “regulatory compliance,” not as “efforts to prevent fraud against the government.” Dissenting Op. at 6

– 7, 8 (quoting
Yesudian , 153 F.3d at 743). Maybe. But the question at the pleading stage is not whe ther the facts could be read differently than the plaintiff does. Instead, we must take all reasonable26

inferences in favor of Singletary. See Ashcroft , 556 U.S. at
678. The complaint need not conclusively foreclose any alternative reading. Given Single tary’s repeated statements to higher

- ups that the animals’ housing conditions not only endangered their welfare, but also violated the promises made (and being made) to obtain federal funding, it is at least an equally reasonable inference that Howard Univ ersity knew that she was concerned about putting a stop to misrepresentations and material omissions in the University’s grant filings with the
government.

Singletary also went far beyond grumbling about regulatory violations. Howard University made cert ifications to the NIH that “were necessary for Howard to receive and retain” federal grant money. Proposed Complaint ¶ 43, J.A. 137. Singletary repeatedly complained to her supervisors that, as a consequence of the regulatory violations, the University

a lso was not complying with conditions included in those certifications. And she urged them to report the problems to the NIH, rather than assert a fictional compliance. When her complaints went unaddressed, Singletary took the unprecedented step of reach ing out directly to the NIH.

Finally, the Dissenting Opinion tries to reduce Singletary’s repeated calls for Howard University to take corrective actions in its representations to the government as just seeking to fix the animals’ living conditions. D issenting Op. at 8

– 9. Not so. Obisesan criticized Singletary for “insist[ing]” both that ( i ) Howard University’s “violations should be reported” to the NIH per the grant’s requirements, (ii) “and that the matter should be remediated.” Proposed Complaint ¶ 26, J.A. 132.27

2

Lastly, the p roposed c omplaint adequately alleges

— and the University does not dispute

— that as a matter of law Singletary’s discharge was “motivated, at least in part, ” by her protected activity. Yesudian , 153 F.3d at 736. After all, her discharge followed shortly on the heels of Obisesan excoriating her for communicating with the NIH about the laboratory’s
climate

- control problems and their fatal consequences. See Proposed Complaint ¶¶ 26, 28, J.A. 131

– 132. And that
dress ing down itself came just a few weeks after Singletary’s
communication with the NIH. Id. ¶¶ 24, 26 , J.A. 131

– 132; see Williams , 389 F.3d at 1262 ( “By claiming that his suspension and termination occurred just after he disclosed * * * to his superior ” that he had alerted the government to possible False Claims Act violations, “ Williams has satisfactorily alleged that his protected activity caused Mar tin

- Baker’s retaliation.”) ; see also Harrington v. Aggregate Indus. N ortheast Region, Inc.

, 668 F.3d 25, 32 (1st Cir. 2012) (“To clear the low bar required to establish a prima facie case, the fact that [defendant] learned of the [plaintiff’s] whistleblowi ng several months before his firing suffices[.]”).

The district court also suggested that, even assuming Singletary ’s allegations were sufficient , the p roposed

c omplaint might still f

a ll short of Federal Rule of Civil
Procedure 9(b)’s heightened pleading standard for fraud
claims. See F ED

. R. C IV

. P. 9(b) (plaintiffs alleging fraud “must state with particularity the circumstances constituting fraud or mistake”). That is incorrect

. Rule 9(b) applies to False Claims
Act qui tam actions . But it does not extend to retaliation claims
because such claims do not themselves assert or seek to prove
actual fraud

. See United States ex rel. Sanchez v. Lymphatx,
Inc. , 596 F.3d 1300, 1304 (11th Cir. 2010); Williams , 389 F.3d28

at 1256, 1259 ; see also Oral Arg. Tr. 23:3

– 5 ( University ’s acknowledgement that Rule 9(b) is inapplicable).

V

Singletary ’s p roposed c omplaint states a claim for
retaliation under the False Claims Act. Granting leave to amend, therefore, would not have be en futile. The district court committed reversible error in concluding otherwise. For th at reason, the district court’s judgment is reversed and the case is remanded for further proceedings consisten t with this opinion.

So ordered

.K ATSAS
, Circuit Judge , dissenting: Dr. Sylvia Singletary alleges that Howard University retaliated against her for tryin g to stop violations of the False Claims Act. To make out that claim, Singletary must plead and ultimately prove that the University, when it fired her, k new that she was trying to stop FCA violations. But the activities that allegedly caused the firing—Singletary’s repeated c omplaints that laboratory animals were housed in overly warm conditions—did not involve allegations of fraud an d fell squarely within her job duties as an attending veterinarian. The proposed second amended complaint thus does not support a plausible inference that the University knew Singletary was trying to stop FCA violations. Accordingly, I would affirm the dismissal of this
case and denial of leave to amend.

I

The False Claims Act prohibits knowingly presenting to the federal government “a false or fraudulent claim for payment.” 31 U.S.C. § 3729(a)(1)(A). Either the Attorney General, id. § 3730(a), or private individuals, id. § 3730(b), may sue for violations. The FCA also makes it unlawful for an employer to discriminate against an employee “because of lawful acts done by the employee ... in furtherance of an action under [the FCA] or other efforts to stop 1 or more violations o f [the FCA].” Id. § 3730(h)(1). This text creates two distinct
intent elements: the employee must act to further an FCA action or stop an FCA violation, and the employer must discriminate because the employee is so acting. To form the prohibited retaliatory intent, the employe r therefore must know something about the employee’s intent—that she was acting to further an FCA action or stop an FCA violation. See United States ex rel.
Schweizer v. Océ N.V. , 677 F.3d 1228, 1238 (D.C. Cir. 2012); United States ex rel. Williams v. Martin-Baker Aircraft Co.

, 389 F.3d 1251, 1260–61 (D.C. Cir. 2004); United States ex rel.
Yesudian v. Howard Univ. , 153 F.3d 731, 736 (D.C. Cir. 1998).2

These cases analyzed an earlier version of section 3730(h)(1), which prohibited re taliation only for acts “in
furtherance of an action” unde r the FCA. Construing that provision, we held that an employer cannot possess the necessary retaliatory intent “unless it is aware that the employee is investigating fraud.” Schweizer , 677 F.3d at 1238 (quotation marks omitted). Moreover, an employee’s “grumbling to the employer about job dissatisfaction or regulatory violations” does not p rovide the requisite notice.
Yesudian , 153 F.3d at 743. Furthermo re, “plaintiffs alleging that performance of their normal job responsibilities constitut es protected activity must overcome the presumption that they are merely acting in accordance with their employment obligations to put their employers on notice.” Williams , 389 F.3d at 1261 (quotation marks omitted).

Our cases indicate what kind of conduct provides such notice. The employee in Yesudian , acting outside his normal job responsibilities, told supe riors that a colleague “had falsified time and attendance records, accepted bribes from vendors, permitted payments to vendors who did not provide services, and taken University p roperty home for personal use.” 153 F.3d at 743. The employee in Williams , who we assumed was acting outside his normal j ob responsibilities as a contrac t negotiator, told “the government—the opposing negotiating party—to continue challenging th e pricing data underlying his employer’s contract.” 389 F.3d at 1262. The employee in
Schweizer , acting outside her normal chain of command, “alleged a variety of specific Fa lse Claims Act violations” to superiors in her company. 677 F.3d at 1239–40. In each case, the employee’s activity provided clear notice to the employer of a concern about fraud on the government.

At the same time, we approved a line of cases indicating
what kind of conduct does not provide an employer with notice3

of a fraud-related concern. Thos e cases featured two distinct “problems”—the employee “made no allegations of fraud,” or the protected conduct “was part of his job.” Yesudian , 153 F.3d at 744; see Williams , 389 F.3d at 1261. For example, the Fifth Circuit affirmed summary judgment against an employee who had complained to superiors about unsubstantiated charges to the government, but “never characterized his concerns as involving illegal, unlawful, or false-claims investigations.” Robertson v. Bell Helicopter Textron, Inc. , 32 F.3d 948, 952 (5th Cir. 1994). The Ninth C ircuit ordered judgment as a matter of law against a sp ecial education teacher who complained to superiors about a lleged regulator y violations
under the Individuals with Di sabilities Education Act. United States ex rel. Hopper v. Anton , 91 F.3d 1261, 1268–70 (9th Cir. 1996). And the Tenth Circuit affirmed the dismissal of a claim by an employee who, as part of her job, reported widespread violations of Medicaid regul ations to her superiors. United States ex rel. Ramseyer v. Century Healthcare Corp. , 90 F.3d 1514, 1522–23 (10th Cir. 1996).

In 2009, Congress broadened section 3730(h) to prohibit
retaliation “because of” conduct “i n furtherance of ... efforts t o stop” FCA violations. Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111–21, § 4(d), 123 Stat. 1617, 1625. That amendment preserved the key words “because of,” which require an employer to know that “the employee was engaged in protected activity.” See Yesudian , 153 F.3d at 736. As the Tenth Circuit explained, “[o]n ce Congress expanded the scope of protected activity, the unive rse of conduct that a plaintiff could allege to show notice also necessarily expanded.” United States ex rel. Reed v. KeyPoint Gov’t Sols. , 923 F.3d 729, 766 (10th Cir. 2019). Or as we had previously explained, “the kind of knowledge the [employer] must have mirrors the kind of activity in which the plaintiff must be engaged.” Yesudian , 153 F.3d at 742. Post-amendment, this means that an employer4

must know that its employee either tried to further an FCA action or “tried to stop its alleged [FCA] violations.” Reed , 923 F.3d at 766.

Other circuits have continued to recognize Yesudian ’s core insight that employers are unlik ely to have the requisite notic e if the employee “made no allegations of fraud” or the protected conduct was “part of his job.” 153 F.3d at 744. In United
States ex rel. Str ubbe v. Crawford Count y Memorial Hospital

, 915 F.3d 1158 (8th Cir. 2019), the Eighth Circuit affirmed the dismissal of claims brought by hospital employees who complained that the hospital had violated Medicare payment requirements, but not that the hospital’s “behavior was fraudulent or potentially subjected it to FCA liability.” Id. at 1168. The court reasoned that the complaints were not sufficiently connected to “fraudulent” activity to support a plausible inference of employer knowledge. Id. This approach still makes good sense, for “efforts to stop” FCA violations, like efforts “in furtherance of” an FCA action, share the same underlying concern about fraud against the government. In
Reed , the Tenth Circuit affirmed the dismissal of a retaliation claim after concluding that th e alleged protected conduct involved the plaintiff’s ordi nary job responsibilities. See 923 F.3d at 767–71. This too still makes sense: employers are unlikely to know that ordinary j ob activities are “efforts to stop” FCA violations, just as they are unlikely to know that
those activities are “in furth erance of” an FCA action.

In sum, the amended version of section 3730(h) requires an employee to prove that her employer was “on notice that she had tried to stop its alleged False Claims Act violations.” Reed

, 923 F.3d at 766. And an employer is unlikely be on notice when an employee does not raise concerns about fraud or simply does her job. Yesudian , 153 F.3d at 744. On a motion to dismiss, the question is whether the employee has “pleaded5

facts that plausibly show” such notice. Reed , 923 F.3d at 766; see Ashcroft v. Iqbal , 556 U.S. 662, 667–84 (2009).

II

Singletary fails to state an FCA retaliation claim under these governing standards. She alleges two categories of protected activity—repeated complaints to superiors that the University was housing laboratory animals in excessively warm conditions, and one external email reporting the death of nearly two dozen laboratory mice. Charitably construing the proposed complaint, I am willing to credit Singletary’s allegations regarding her own intent— i.e. , that she undertook these activities in part to st op fraud against the government, rather than simply to improve the treatment of animals under her care or to bring the University into compliance with animal

care regulations. But Singletar y does not claim to have raised fraud concerns with the University, and her activities fell squarely within her job as an attending veterinarian. The allegations thus do not support a plausible inference that the University knew Singletary was trying t o stop FCA violations.

Singletary’s alleged complain ts within the University addressed four related topics. First , she voiced concerns that “ambient air temperature” was too high for laboratory animals. E.g. , Proposed Second Amended Complaint (“Compl.”) ¶ 18, J.A. 129. Doing so fell squarely within Singletary’s job duty, set forth in the offer letter attached to her proposed complain t, to “promot[e] ... animal care, h ealth and welfare including but not limited to proper animal quarters.” J.A. 165. It is hardl y surprising that Singletary—a veterinarian—raised this concern, which would not have suggested that she was seeking to stop fraud against the government.

Second , Singletary complained th at the University, by not maintaining proper air temperatur es, was violating regulations6

promulgated under the Animal Welfare Act and the Health
Research Extension Act. E.g. , Compl. ¶¶ 12–13, 18, J.A. 127– 29; see 9 C.F.R. § 3.126(a). Again, this fell well within her contractual duty to promote appropriate animal care. Moreover, Singletary alleges that she was an “Attending
Veterinarian” as defined in the regulations. Compl. ¶ 16, J.A. 128. That position required Singletary “to ensure the provisio n 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), i n part by providing “appropriate f acilities, personnel, equipment

, and services,” id. § 2.33(b)(1). Singletary’s job thus required
her to ensure that laborat ory animals were housed in permissible temperature ranges. Her pressing the University about “regulatory violations” in this area would hardly have suggested anti-fraud efforts. Yesudian , 153 F.3d at 743.

Third , Singletary protested that the University “was out of compliance with the terms and conditions under which it was receiving grant money from the federal government.” E.g.

, Compl. ¶ 22, J.A. 130–31. But under the terms of her employment contract, Singletar y was required to act “as a consultant for grants ... requiring [her] expertise.” J.A. 165. The grant conditions at issue involved satisfying the regulator y requirements regarding ambient air temperature. Singletary’s proposed complaint repeatedly equates the two. E.g. , Compl. ¶ 18, J.A. 129 (“the ambient air temperature constituted
violations of the terms and conditions under which Howard received grant money”); id. ¶ 21, J.A. 130 (“the ambient air temperature deviations from acceptable standards constituted
violations of the terms and conditions of Howard’s federal grants”). The Health Research Extension Act similarly requires “assurances” that grantees will satisfy animal-care rules promulgated by the National Institutes of Health. 42 U.S.C. § 289d(c)(1). In context, Singletary’s concerns about grant compliance equate to her concerns about regulatory7

compliance. And raising those c oncerns fell within her duties as a grant consultant and an architect of the University’s animal-care compliance programs.

Fourth , Singletary advised superiors that “the problems that Howard was encountering with respect to the ambient air temperature should be repor ted.” Compl. ¶ 22, J.A. 131. This was another facet of her job duties. As the Attending Veterinarian, Singletary was required to serve on the University’s Institutional Animal Care and Use Committee (IACUC). Compl. ¶¶ 15–16, J.A. 128; see 9 C.F.R. § 2.31(b)(3). By law, that Committee was required to report certain violations of the Animal Welfare Act to the University and the Department of Agricult ure, 7 U.S.C. § 2143(b)(4)(A), (C), and to report to NIH any violations of its animal-care regulations, 42 U.S.C. § 289d(b)(3)(C). And as a member of the Committee, Singletary herself was required to report any dissenting views. 7 U.S.C. § 2143(b)(4)(A)(iii); 42 U.S.C. § 289d(b)(3)(C). Moreover, these obligations arose under animal-welfare laws, so complaining about “regulatory violations” in this area would not have signaled efforts to prevent fraud agains t the government. See Yesudian , 153 F.3d
at 743.

In sum, Singletary’s claim suffers from the same “problems” noted in Yesudian : she never told the University that she was “concerned about po ssible fraud,” and her actions were “part of [her] job.” 153 F.3d at 744. Treating animals inhumanely, violating NIH regul ations and grant conditions, and failing to report the violations may be improper, but they do not amount to fraud. And complaints on these matters would have indicated only that Singletary was performing her contractual and regula tory duties as an Attending Veterinarian. To be sure, violations of regulations or grant conditions may become violations of the False Claims Act, but only if a grante e8

makes false or misleading representations to receive money from the government. Universal Health Servs., Inc. v. United
States ex rel. Escobar , 136 S. Ct. 1989, 1999–2001 (2016). And no case suggests that complaints about regulatory violations give notice of further, unexpressed anti-fraud concerns. To the contrary, Yesudian and its progeny make clear that “[m]erely grumbling” about “regulatory violations” does not give such notice. 153 F.3d at 743.

My colleagues read the proposed complaint to allege that Singletary urged her superiors “not to submit false annual compliance certifications and to rectify pending false certifications of compliance.” Ante at 22. Likewise, they say that Singletary urged the Univer sity not to “assert a fictional compliance” with grant conditions. Ante at 26. Such allegations might well establish the requisite notice, but the proposed complaint does not make them. In support of their reading of the proposed complaint, my colleagues note that Singletary urged the University to take “corrective action.” Compl. ¶¶ 18–19, 21, J.A. 129–30. True enough, but the
“corrective action” involved lowering air temperatures . It had nothing to do with avoiding or co rrecting false certifications— a different concern that Singletary never claims to have raised

. 1

1 See Compl. ¶ 18, J.A. 129 (“Dr. Singletary informed Dr. Obisesan ... that the conditions in which the Howard laboratory animals were being held were too warm, not in compliance with NIH/OLAW standards, and that t he ambient air temperature
constituted violations of the te rms and conditions under which Howard received grant money from NIH and the federal government

. On virtually every one of these occasions, Dr. Singletary exhor ted Dr. Obisesan to initiate corrective action.”); id. ¶ 19, J.A. 129–30 (“Dr. Singletary had numerous discussions with Dr. Obisesan in which she expressed these concerns that the laboratory animals’ living area was too hot. When, after several conversations wit h Dr.9

Indeed, far from even hinting that Singletary conveyed any fraud-related concern, the propos ed complaint states that “[t]h e issue of poor air quality for laboratory animals was the sole
source of tension between Dr. Si ngletary and her superiors.” Compl. ¶ 27, J.A. 132. After performing their own independent research into compliance certifications, about which the complaint is silent, my colleagues posit that Singletary’s objections “coincide d with a reporting period.”
Ante at 17. Perhaps so, but that bears at most on whether Singletary had the requisite intent to stop FCA violations. Th e proposed complaint nowhere suggests that Singletary communicated to the University any concerns about false certifications, which is what matters for notice.

My colleagues further reason that Singletary complained not only to her immediate supervisor, Dr. Thomas Obisesan, but also to Dr. Thomas Heinbockel, the chairman of her animal-care committee, and Dr. Mark Johnson, the dean of the
medical school. Ante at 24. We have recognized that when an employee “alerts a party outside the usual chain of command,
such action may suffice to notify the employer that the employee is engaging in protected activity.” Williams , 389

Obisesan in which she informed h im of Howard’s non-compliance and sought corrective action, Dr. Obisesan did not act on Dr. Singletary’s concerns, she made the same complaints to Dr.
Heinbockel and Dr. Mark Johnson ... . Dr. Singletary told them th at Howard was not in compliance with the terms and conditions unde r which it was receiving grant money from NIH. Dr. Singletary al so made her concerns known to these men in IACUC meetings. As wit h Dr. Obisesan, she requested tha t corrective action be taken. N o corrective action was taken.”); id. ¶ 21, J.A. 130 (“As noted above,
she told both Dr. Heinbockel and Dr. Johnson that the ambient a ir temperature deviations from ac ceptable standards constituted
violations of the terms and cond itions of Howard’s federal gran ts. She urged corrective action.”).10

F.3d at 1261 (emphasis added); see also Reed , 923 F.3d at 769. But the ultimate question remains one of the employer’s notice of protected activity, and we have never held that any action
outside the normal chain of co mmand, no matter how unrelated to fraud prevention, puts the employer on notice. To the contrary, we have held that an employee’s breaking the chain of command helps prove notice only where the employee’s activity itself warns of fraud. See Schweizer , 677 F.3d at 1239– 40 (employee “alleged a variety of specific False Claims Act violations”); Williams , 389 F.3d at 1262 (ne gotiator told “the government—the opposing negotiating party—to continue challenging the pricing dat a underlying his employer’s contract”). Singletary di d no such thing. By her own reckoning, she made “the same complaints” to Heinbockel and Johnson that she made to Obisesan. Compl. ¶ 19, J.A. 129. Because those complaints involved animal-treatment issues as opposed to fraud issues, the mere fact that Singletary conveyed them to higher-ups does not advan ce her retaliation claim.

The same is true of Singletary’s single email to NIH. The body of that email states:

At 10:45 am, April 15, 2014, I found 21 mice dead from heat exhaustion. Room number [redacted] which houses animals on [an individually ventilated cage] lost power over night. In addition, we have been having difficulty with receiving conditioned air in the facility. A more detailed report will be submitted after
I have briefed the IACUC and [Dr. Obisesan].

J.A. 102 (cleaned up). My colleagues recognize that this email “did not accuse the University of fraud in terms.” Ante at 18. Far from it. The email reported to regulators that mice died
when an air conditioner faile d, noted an ongoing problem with air conditioning, and promised more details to follow. Nothing11

in it would have alerted the U niversity that Singletary was seeking to stop fraud against the government. My colleagues disagree with the district court about whether Singletary broke protocol by sending this email herself, rather than urging
Obisesan to do so. Ante at 24–25. But because the email had nothing to do with stopping fraud a gainst the government, that dispute is immaterial to the question whether the email provided the University w ith the requisite notice.

* * * *

Singletary’s proposed second amended complaint does not allege facts supporting a plausible inference that the Universi ty knew she was engaged in efforts to stop FCA violations. Therefore, I would affirm the dismissal of this case and the
denial of her motion to amend as futile.