United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 26, 2019 Decided September 20, 2019

No. 18-7158

SYLVIA SINGLETARY, D.V.M.,

APPELLANT

v.

HOWARD UNIVERSITY,

APPELLEE

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: SRINIVASAN, MILLETT, and KATSAS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

Dissenting opinion filed by Circuit Judge KATSAS.
2

MILLETT, 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 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.

I

A

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. (“The ambient 

temperature shall not be allowed to fall below nor rise above 

temperatures compatible with the health and comfort of the 
3

animal.”); see also 7 U.S.C. § 2143(a)(2)(A) (specifying that 

regulations shall “include minimum requirements” for 

“housing, * * * [and] shelter from extremes of weather and 

temperatures, * * * [as] the Secretary [of Agriculture] finds 

necessary for humane handling, 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 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) (making the Care Standards Guide the 

foundation on which research institutions must base their 

animal care and use programs). 

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 
4

adapt with minimal stress and physiologic reaction.” Care 

Standards Guide at 43; see also id. (“Maintenance of body 

temperature within normal circadian variation is necessary for 

animal well-being.”).

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.
5

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).

B

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, 
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, 

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).
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 

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

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 Chair.

Over an approximately nine-month period between

Summer 2013 and Spring 2014, Singletary repeatedly warned

Obisesan that 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. Litig., 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 

deficiencies,” were “not in compliance with [NIH] standards” 

and “constituted violations of 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 University’s noncompliance to the federal government. He did not do either.

Singletary then took her concerns to Heinbockel and Dr. 

Mark Johnson, the Dean of the University’s Medical School. 

Both proved unresponsive. Over the same time period that 

Singletary was registering complaints and warnings with those 

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 2014, 

Singletary arrived at work to find 21 mice dead from heat 

exhaustion. Because Obisesan had 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 

animals on a[n] [individually ventilated 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 after 
9

I have briefed the [Committee] and [Institutional 

Official].

J.A. 101–102. 

In response, the NIH thanked Singletary for her report and 

directed the Institutional Official, Obisesan, to submit a 

corrective plan of action. That prompted the University to 

finally solve the air temperature problem. 

Shortly thereafter, in late April or early May, an 

“incensed” Obisesan “excoriated” Singletary at a faculty 

meeting, “accusing her of a lack of professionalism 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 appointment short by six months, terminating her 

employment as of December 2014. Finding her conditions of 

employment to have become “intolerable,” Singletary resigned 

in August 2014. Id. ¶ 34, 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 proposed complaint also would

not withstand a motion to dismiss, the district court denied the

motion as futile. The district court reasoned that Singletary’s

nine months of complaints about animal mistreatment within
10

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. § 1331. 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.” FED. R. CIV. P. 15(a)(2). Leave 

may properly be denied if the proposed amendment is 

“futil[e],” Foman v. Davis, 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 content that allows

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 1177, 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 

proposed complaint would not withstand a motion to dismiss.

A

Protected activity under the False Claims Act’s antiretaliation 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, the 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, an employee’slawful acts

are in “furtherance of an action under this section” if she

“investigat[es] matters that reasonably could lead to,” or have 

a “distinct possibility” of leading to, a “viable False Claims Act 

case.” Hoyte v. American Nat’l Red Cross, 518 F.3d 61, 66, 

68–69 (D.C. Cir. 2008) (internal quotation marks omitted). 

Dissatisfaction 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 investigation 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 the 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 Airlines, 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 broadens 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, the 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] becomes a distinct possibility—the second prong is 

explicitly untethered from any such action.”). 

To be sure, by covering only efforts to stop “violations of 

this subchapter,” 31 U.S.C. § 3730(h)(1) (emphasis added), the 

second prong (like the first prong) requires 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 has an 
13

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 Claims Act].”); see 

Chorches, 865 F.3d at 96 (second prong encompasses 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 provisions 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 

employees who report or oppose what they reasonably believe 

to be unlawful conduct.2 That 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 Consumer 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), and 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 Discrimination in Employment Act,

29 U.S.C. § 623(d); Heggemeier v. Caldwell County, 826 F.3d
14

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 Berg 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 contractual 
15

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 proposed complaint sufficiently alleges 

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 proposed complaint

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 the whistleblower provision because 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, the proposed complaint alleges that, between midSummer 2013 and Spring 2014, Singletary repeatedly 

informed Obisesan “that the conditions in which 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 

federal government.” Proposed Complaint ¶¶ 18–19, J.A. 129. 

As the Attending Veterinarian charged with supervising the 

care of laboratory animals, Singletary knew that federal law 

mandated their proper care, including 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 University 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; see 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 assertedly protected activity 

occurred over a nine-month period between the Summer of 

2013 and Spring 2014. 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 Laboratory Animal Welfare, NIH, 

Dep’t of Health & Human Servs., Institutional Animal Care 

and Use Committee Guidebook 177 (2d ed. 2002) 

(“Guidebook”); 9 C.F.R. § 2.36(a); Annual Report to OLAW, 

Office of Laboratory 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 words 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. Singletary also 

repeatedly urged them to report the temperature deviations to 

regulators, as required by law if funding claims are to be 

submitted. 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). Several months 

later, Singletary even tried 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 caused 
18

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 submissions 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 [Institutional 

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.”) (formatting 

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, the district court wrongly required Singletary to 

allege that her efforts were outside the scope of her 

responsibilities as Attending Veterinarian. See J.A. 226–228. 

That 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, the 

proposed complaint plausibly alleges that Singletary undertook 

lawful acts in furtherance of her “efforts to stop 1 or more 

violations” of the False Claims 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, 

harassed, 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 proposed complaint fits the bill. She adequately 

alleges termination of her position, the University’s awareness 

4

 Because denying leave to amend was in error under the second 

prong, we need not decide at this early juncture whether the proposed 

complaint also adequately alleges 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. Discharge plainly qualifies as a 

retaliatory employment action under Section 3730(h). 31 

U.S.C. § 3730(h)(1); see United States ex rel. Schweizer v. Océ 

N.V., 677 F.3d 1228, 1240 (D.C. Cir. 2012).

The University resists that conclusion by arguing that 

Singletary’s departure was, as a matter of law, a “voluntary 

resignation” as opposed to a discharge. See University Br. 35–

39. 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 respects. First, there was 

nothing “voluntary” about Singletary’s exit. She left only after

she was told that she was being terminated effective December 

2014. Plus, the proposed complaint alleges that the 

University’s appointments are “evergreen,” meaning that, 

absent the discharge, Singletary would 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 Israel of the City of N.Y., 867 F.3d 298, 

305–306 (2d Cir. 2017) (“[N]otice of termination itself 
21

constitutes an adverse employment 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 employment 

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, 1782 

(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 was being terminated.

B

Singletary’s proposed complaint also rises to the task of 

alleging that she was discharged because of her protected 

activity. Specifically, the proposed complaint plausibly shows 

both that the University was aware of Singletary’s protected 

activities 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 (Under 

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 activity, 
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, 767 (10th Cir. 2019).

Singletary’s proposed complaint clears that hurdle. 

Singletary alleges that she repeatedly urged her superiors to 

rectify the animals’ living conditions. In doing so, she stressed 

not only the medical and humanitarian need for changes, but 

also that the continuing failure to remedy the 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 that 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 

compliance 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 terms and conditions of Howard’s federal 

grants.”); id. ¶ 22 (“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. 

Singletary 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. Singletary 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 (6th Cir. 2003)); 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 conditions 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 Singletary’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 the ambit of Dr. 

Singletary’s duties or job description”); see id. ¶ 24, J.A. 131 

(responsibility 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 Dissenting 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 the proposed 

complaint’s alleged 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 was 
25

singlehandedly attempting to address the certification problem 

to which they had proven unresponsive.

The district court came to the contrary conclusion, 

pointing to a statement in the NIH’s Guidebook—a document 

provided to regulated parties for “informational purposes only”

(Guidebook, Inside Cover)—that the care of animals 

“necessitates a partnership among the Institutional Official, 

[the Committee], the veterinarian and the investigators,” which 

may only be achieved “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 proposed complaint’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 description of the Attending 

Veterinarian’s role is fully consistent with Singletary’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 whether the facts could be read differently 

than the plaintiff does. Instead, we must take all reasonable 
26

inferences in favor of Singletary. See Ashcroft, 556 U.S. at 

678. The complaint need not conclusively foreclose any 

alternative reading. Given Singletary’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 University 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 certifications 

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 

also 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 reaching 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. Dissenting 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 proposed complaint 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 

dressing 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 Martin-Baker’s retaliation.”); see 

also Harrington v. Aggregate Indus. Northeast 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] whistleblowing several months before his

firing suffices[.]”). 

The district court also suggested that, even assuming 

Singletary’s allegations were sufficient, the proposed 

complaint might still fall short of Federal Rule of Civil 

Procedure 9(b)’s heightened pleading standard for fraud 

claims. See FED.R.CIV. 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.3d 
28

at 1256, 1259; see also Oral Arg. Tr. 23:3–5 (University’s

acknowledgement that Rule 9(b) is inapplicable).

V

Singletary’s proposed complaint states a claim for 

retaliation under the False Claims Act. Granting leave to 

amend, therefore, would not have been futile. The district court 

committed reversible error in concluding otherwise. For that 

reason, the district court’s judgment is reversed and the case is 

remanded for further proceedings consistent with this opinion.

So ordered.
KATSAS, Circuit Judge, dissenting: Dr. Sylvia Singletary 

alleges that Howard University retaliated against her for trying 

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, knew that she was trying to stop

FCA violations. But the activities that allegedly caused the 

firing—Singletary’s repeated complaints that laboratory 

animals were housed in overly warm conditions—did not 

involve allegations of fraud and 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 of 

[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 employer 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 retaliation only for acts “in 

furtherance of an action” under 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 provide the requisite notice. 

Yesudian, 153 F.3d at 743. Furthermore, “plaintiffs 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.” 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 superiors 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 property home for personal use.” 

153 F.3d at 743. The employee in Williams, who we assumed 

was acting outside his normal job responsibilities as a contract 

negotiator, told “the government—the opposing negotiating 

party—to continue challenging the 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 False 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 notice 
3 

of a fraud-related concern. Those 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 Circuit ordered judgment as a 

matter of law against a special education teacher who 

complained to superiors about alleged regulatory violations 

under the Individuals with Disabilities 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 regulations 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 “in furtherance of ... efforts to 

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]nce Congress expanded the scope 

of protected activity, the universe 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 employer 
4 

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 unlikely to have the requisite notice 

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. Strubbe v. Crawford County 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 the alleged protected conduct 

involved the plaintiff’s ordinary job responsibilities. See 923 

F.3d at 767–71. This too still makes sense: employers are 

unlikely to know that ordinary job activities are “efforts to 

stop” FCA violations, just as they are unlikely to know that 

those activities are “in furtherance 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 “pleaded 
5 

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 stop fraud against the government, 

rather than simply to improve the treatment of animals under 

her care or to bring the University into compliance with animalcare regulations. But Singletary 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 to stop FCA violations. 

Singletary’s alleged complaints 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 complaint, 

to “promot[e] ... animal care, health and welfare including but 

not limited to proper animal quarters.” J.A. 165. It is hardly 

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 that the University, by not 

maintaining proper air temperatures, was violating regulations 
6 

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 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), in 

part by providing “appropriate facilities, personnel, equipment, 

and services,” id. § 2.33(b)(1). Singletary’s job thus required 

her to ensure that laboratory 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, Singletary was required to act “as a 

consultant for grants ... requiring [her] expertise.” J.A. 165. 

The grant conditions at issue involved satisfying the regulatory 

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 regulatory 
7 

compliance. And raising those concerns 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 reported.” 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 Agriculture, 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 against 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 possible fraud,” and her actions 

were “part of [her] job.” 153 F.3d at 744. Treating animals 

inhumanely, violating NIH regulations 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 regulatory 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 grantee 
8 

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 University 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 correcting 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 the ambient air temperature 

constituted violations of the terms and conditions under which 

Howard received grant money from NIH and the federal government. 

On virtually every one of these occasions, Dr. Singletary exhorted 

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 with Dr. 
9 

Indeed, far from even hinting that Singletary conveyed any 

fraud-related concern, the proposed complaint states that “[t]he 

issue of poor air quality for laboratory animals was the sole 

source of tension between Dr. Singletary 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 “coincided 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. The 

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 him 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 that 

Howard was not in compliance with the terms and conditions under 

which it was receiving grant money from NIH. Dr. Singletary also 

made her concerns known to these men in IACUC meetings. As with 

Dr. Obisesan, she requested that corrective action be taken. No 

corrective action was taken.”); id. ¶ 21, J.A. 130 (“As noted above, 

she told both Dr. Heinbockel and Dr. Johnson that the ambient air 

temperature deviations from acceptable standards constituted 

violations of the terms and conditions of Howard’s federal grants. 

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 command, 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 (negotiator told “the 

government—the opposing negotiating party—to continue 

challenging the pricing data underlying his employer’s 

contract”). Singletary did 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 advance 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 failed, noted an ongoing problem with 

air conditioning, and promised more details to follow. Nothing
11 

in it would have alerted the University 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 against the government, that 

dispute is immaterial to the question whether the email 

provided the University with the requisite notice. 

* * * * 

Singletary’s proposed second amended complaint does not 

allege facts supporting a plausible inference that the University 

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.