A False Claims Act (“FCA”) qui tam action may be barred by res judicata because of a prior employment retaliation action, the Eleventh Circuit held in Milner v. Baptist Health Montgomery, 132 F.45h 1354 (11th Cir. 2025).
A physician brought suit against his former employer-hospital, alleging that he was fired for whistleblowing on a scheme to overprescribe opioids. The hospital moved to dismiss, which the district court granted with prejudice. The district court determined that the physician had not engaged in protected conduct under the FCA, and even if he did, he failed to demonstrate the plausibility of his allegation that his termination was due to protected conduct. After his case was dismissed, the physician filed a qui tam action. The district court dismissed the complaint as barred by his prior retaliation action.
In an opinion written by Judge Lagoa and joined by Judges Branch and Luck, the court held that the physician’s claims were barred by res judicata. Res judicata has four elements: the prior decision (1) was rendered by a court of competent jurisdiction; (2) was final; (3) involved the same parties or their privies; and (4) involved the same causes of action. The physician disputed only that the final two elements were met. First, the court decided whether the actions involved the same parties. The only issue was whether the physician was a party to the qui tam lawsuit because of his status as a relator. In a prior case, the Eleventh Circuit held that a plaintiff that first brought a FCA qui tam action and later an FCA retaliation action was the same party in both cases. Faced with the mirror image here, the court held that the physician was a party in the relator action. The court reasoned that relators have “unrestricted participation” in the litigation and thus that involvement is sufficient to make the relator individually a party. The court then addressed whether the lawsuits involved the same cause of action. The court explained that generally, if a case arises out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former action, the two cases are really the same “claim” or “cause of action.” The court held that an employment retaliation action and FCA qui tam action generally arise from the same nucleus of operative fact, and here, that was the case – both lawsuits involved the same factual predicate of the physician’s reporting of alleged overprescriptions. Accordingly, the court affirmed the district court’s dismissal of the action with prejudice.