Skip to content

Menu

LexBlog, Inc. logo
NetworkSub-MenuBrowse by SubjectBrowse by PublisherJoin the NetworkGet StartedSubscribeSupportContact
Search
Close

Tenth Circuit Rules that False Claims Act (FCA) Does Not Cover Post-Employment Retaliation

By David R. Jimenez, Richard J. Cino & Alyssa M. Toft on November 13, 2018
Email this postTweet this postLike this postShare this post on LinkedIn

In a win for employers, the Tenth Circuit Court of Appeals recently held that “…the False Claims Act’s anti-retaliation provision unambiguously excludes relief for retaliatory acts occurring after the employee has left employment.” Potts v. Center for Excellence in Higher Education, Inc., No. 17-1143 (10th Cir. Nov. 6, 2018) (emphasis added).

Background

Debbi Potts, a campus director at an educational organization, resigned her employment in July 2012. In September 2012, Potts and the organization entered into an agreement whereby Potts promised not to disparage the organization or “contact[] any governmental or regulatory agency with the purpose of filing any complaint or grievance.”

In February 2013, several months after her resignation and agreement, Potts sent a complaint to the organization’s accreditor regarding “alleged deceptions in maintaining its accreditation.” (After entering into the agreement, Potts also sent a disparaging email.)

The organization sued Potts for breach of contract, citing Potts’s complaint to the accreditor. Potts, in turn, filed a lawsuit in federal court, claiming the organization retaliated against her in violation of the False Claims Act (“FCA”) when it sued her. The organization moved to dismiss Potts’s FCA lawsuit, which the district court granted.

Conclusions

The Tenth Circuit Court of Appeals affirmed the dismissal of Potts’s FCA retaliation claim, engaging in extensive statutory interpretation to support its conclusion that “employees” under the False Claims Act are limited to “persons who were current employees when their employers retaliated against them.” (emphasis added). In contrasting the False Claims Act with Title VII’s anti-retaliation provision, the Tenth Circuit concluded that “…the False Claims Act, by its list of retaliatory acts, temporally limits relief to employees who are subjected to retaliatory acts while they are current employees.” The Tenth Circuit ultimately held that “[b]ecause Potts alleges that the [organization] retaliated against her after she resigned her employment, she cannot have a cognizable claim under the statute.”

Photo of Alyssa M. Toft Alyssa M. Toft

Alyssa M. Toft is a Principal in the Minneapolis, Minnesota office of Jackson Lewis P.C. She defends employers in single and multi-plaintiff actions in state and federal court, including cases involving claims of discrimination, retaliation, harassment, whistleblowing, hostile work environment, defamation, and drug…

Alyssa M. Toft is a Principal in the Minneapolis, Minnesota office of Jackson Lewis P.C. She defends employers in single and multi-plaintiff actions in state and federal court, including cases involving claims of discrimination, retaliation, harassment, whistleblowing, hostile work environment, defamation, and drug testing violations.

Ms. Toft also represents clients in non-competition, non-solicitation, and trade secrets lawsuits. She litigates cases at the appellate level and has served as an adjunct professor for an appellate legal writing course at the University of St. Thomas School of Law. In addition to her litigation practice, Ms. Toft regularly advises clients on a wide range of employment and compliance issues.

During law school, Ms. Toft served as an intern in the Minnesota Governor’s Office. Following law school, Ms. Toft clerked for Justice Christopher J. Dietzen at the Minnesota Court of Appeals. Ms. Toft also served one year as an AmeriCorps volunteer at the Center for Alternative Sentencing and Employment Services (CASES), a nonprofit in New York City, where she provided policy and strategic planning guidance.

Read more about Alyssa M. ToftEmail
Show more Show less
  • Posted in:
    Government Contracts
  • Blog:
    Corporate Governance & Internal Investigations Advisor
  • Organization:
    Jackson Lewis P.C.

Call us at 1-800-913-0988 or email sales@lexblog.com.

Facebook LinkedIn Twitter RSS
The Library at LexBlog
  • About LexBlog
  • The Field We Built
  • Library at LexBlog
  • Our Beliefs
  • Our Team
  • Contact LexBlog
  • Disclaimer
  • Editorial Policy
  • Terms of Service
  • Get Started
  • Publishing Solutions
  • Compass
  • Submit a Request
  • Support Center
  • System Status
Copyright © 2026, LexBlog, Inc. All Rights Reserved.
Law blog design & platform by LexBlog LexBlog Logo