Fired Air Base Tech Gets New Shot at Pleading Retaliation

A C-17 Globemaster III prepares to take off from the flight line at Joint Base Charleston, S.C., on Sept. 11, 2018. In anticipation of Hurricane Florence, more than 20 aircraft were evacuated from Charleston to designated safe locations in order to continue their global airlift operations. (U.S. Air Force photo by Tech. Sgt. Jonathan Lovelady)

RICHMOND, Va. (CN) – A technician who was critical of how United Airlines serviced military-transport planes persuaded the Fourth Circuit this week to let his retaliation claim take flight. 

While the federal appeals court affirmed dismissal of David Grant’s claims under the False Claims Act, it found Wednesday that United Airlines could still be liable for firing Grant after he made his grievances known.

United Airlines fired Grant in May 2014, about two months after officials caught him snapping pictures at the Charleston Air Force Base of a radiometer that is supposed to be used during engine inspections.

For months leading up to his dismissal, Grant had complained that the company’s failure to use the radiometer contravened federal regulations.

A federal judge dismissed Grant’s suit, saying he failed to tie any allegedly fraudulent conduct to a false claim to the government for payment, but the Fourth Circuit found Wednesday that Grant could still have faced improper retaliation without having blown the whistle on an actual fraud.

“Taking the facts alleged as true, it was objectively reasonable for Grant to believe that United had committed fraud,” U.S. Circuit Judge Allyson Duncan wrote for the three-judge panel in Richmond, Virginia.

Quoting Grant’s second amended complaint, Wilkinson said the technician sufficiently alleged that he was working to stop violations of the False Claims Act. 

“Grant alleges that he observed United coercing investigators to falsify engine repairs, which he believed harmed their ‘customer the US Air Force,’ and that he raised concerns about this practice to management in an email that included supporting documents,” the ruling states. “As in Halasa (a 2012 Seventh Circuit ruling), this is sufficient to permit a trier of fact to find that Grant engaged in ‘efforts to stop’ a potential FCA violation.”

Grant was represented by William Stephen Norton with Motley Rice in Mt. Pleasant, South Carolina. The lawyer did not respond to a request for comment, nor did Keith Harrison, an attorney for United with the firm Crowell & Moring in Washington, D.C.

Though the court was unanimous in reviving Grant’s retaliation claim, U.S. Circuit Judge Barbara Keenan said she would have revived Grant’s fraud claim as well.

“By declining to review claims by relators like Grant, we close the courthouse doors to allegations of dangerous misconduct, including in this case the egregious example of military aircraft allegedly receiving sub-standard or nonexistent maintenance services,” Keenan wrote. “Without relators like Grant, such fraudulent schemes might never be brought into the light of day, contrary to the intent of Congress in enacting the FCA.”

Keenan said the majority held Grant’s claims to too high a bar, arguing that whistleblowers should be allowed to “rely on circumstantial evidence to raise a plausible inference that a false claim was presented.”

U.S. Circuit J. Harvie Wilkinson rounded out the panel Wednesday.

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