United States District Court, W.D. Louisiana, Shreveport Division
UNITED STATES OF AMERICA, STATE OF ARKANSAS, STATE OF LOUISIANA, and STATE OF TEXAS ex rel. TIFFANY KAGEBEIN
ALLEGIANCE HEALTH MANAGEMENT, INC, ET AL.
MAGISTRATE JUDGE HORNSBY
ELIZABETH FOOTE, JUDGE
Tiffany Kagebein ("Relator") brings this qui
tam action on behalf of the United States, the State of
Arkansas, the State of Louisiana, and the State of Texas
against Allegiance Health Management, Inc., Allegiance
Healthcare, LLC, and Allegiance Hospital of North Little
Rock, LLC d/b/a North Metro Medical Center ("North
Metro") for alleged violations of the Federal False
Claims Act, 31 U.S.C. §§ 3729-3733
("FCA"). Now pending before the Court is
Defendants' Motion to Dismiss for Failure to State a
Claim upon Which Relief can be Granted, pursuant to Federal
Rule of Civil Procedure 12(b)(6). [Record Document 15].
Kagebein has filed an Opposition. [Record Document 17].
Defendants have filed a Reply. [Record Document 18]. For the
reasons discussed below, the motion is
January of 2016 until January of 2017, Relator worked for
North Metro as the Program Director for the Transitions Unit,
the hospital's Geriatric Behavioral Unit. Record Document
1, ¶ 6. Relator asserts that her employment at North
Metro was terminated after she raised concerns to her
superiors that Defendants were submitting fraudulent claims
to Government-funded healthcare programs for geriatric
psychiatry services, in violation of the FCA and similar
state laws in Arkansas, Louisiana, and Texas. Id. at
¶s 1 & 6. According to Relator, Defendants
improperly admitted and retained patients in order to
maintain an elevated level of patient occupancy (id.
at ¶s 44-47) and billed for services that were not
rendered and/or unreasonable or unnecessary (id. at
¶s 48-59). Relator alleges that this conduct exposed
patients to harm. Id. at ¶ 60. Relator claims
that her employment at North Metro was terminated by the
hospital's CEO Bill Bledsoe ("Bledsoe") because
she "repeatedly raised her concerns to him and others
regarding the improper conduct." Id. at ¶
64. The United States and the States of Arkansas, Louisiana,
and Texas declined to intervene in this action. Record
Document 4. Relator voluntarily dismissed all of her claims
against Defendants, with the exception of her retaliation
claim under § 3730(h)(1) of the FCA. Record Documents 8
& 14. The United States and the States of Louisiana,
Arkansas, and Texas consented to the partial dismissal.
Record Document 13. Defendants now move for the dismissal of
Relator's remaining claim pursuant to Rule 12(b)(6).
Record Document 15.
order to survive a motion to dismiss brought under Rule
12(b)(6), a plaintiff must "state a claim to relief that
is plausible on its face." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). "A claim has facial
plausibility 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. "Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice." Id. The court must accept as true
all of the factual allegations in the complaint in
determining whether plaintiff has stated a plausible claim.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007); In re Katrina Canal Breaches Litig., 495
F.3d 191, 205 (5th Cir. 2007). However, a court is "not
bound to accept as true a legal conclusion couched as a
factual allegation." Papasan v. Allain, 478
U.S. 265, 286 (1986). If a complaint cannot meet this
standard, it may be dismissed for failure to state a claim
upon which relief can be granted. Iqbal, 556 U.S. at
678-79. A court does not evaluate a plaintiffs likelihood for
success, but instead determines whether plaintiff has pleaded
a legally cognizable claim. U.S. ex rel. Riley v. St.
luke 's Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.
2004). A dismissal under 12(b)(6) ends the case "at the
point of minimum expenditure of time and money by the parties
and the court." Twombly, 550 U.S. at 558.
purpose of the [FCA] ... is to discourage fraud against the
government, and the whistleblower provision is intended to
encourage those with knowledge of fraud to come
forward." Robertson v. Bell Helicopter Textron,
Inc., 32 F.3d 948, 951 (5th Cir. 1994). The
"whistleblower" provision of the FCA provides:
Any employee . . . shall be entitled 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
31 U.S.C. § 3730(h)(1). For an FCA retaliation claim to
survive a motion to dismiss, a plaintiff must show that (1)
he engaged in protected activity, (2) his employer knew about
the protected activity, and (3) he was retaliated against
because of his protected activity. U.S. ex rel. Bias v.
Tangipahoa Parish School Bd., 816 F.3d 315, 323 (5th
Cir. 2016) (citing Robertson, 32 F.3d at 951). For
an employee's internal complaint to a superior to qualify
as protected activity, the complaint must concern "false
or fraudulent claims for payment submitted to the
government." US. ex rel. Patton v. Shaw Servs.,
L.L.C., 418 Fed.Appx. 366, 372 (5th Cir. 2011) (citing
Robertson, 32 F.3d at 952). Without knowledge that
an employee was investigating fraud, an employer cannot
possess the "retaliatory intent" that would
establish a violation of § 3730(h)(1). Id.
Although some circuits have adopted a broader interpretation
of § 3730(h)(1)'s "protected activity"
requirement, the Fifth Circuit continues to require a showing
that an employee was attempting to expose fraud against the
government. McKenzie v. BellSouth Telecomms., Inc.,
219 F.3d 508, 515 (6th Cir. 2000); see Patton, 418
Fed.Appx. at 372; U.S., ex rel Johnson v. Kaner Med.
Grp., P.A., 641 Fed.Appx. 391, 395 (5th Cir. 2016);
US. ex rel. Ligai v. ESCO Tech., Inc., 611 Fed.Appx.
219, 220-21 (5th Cir. 2015) (citing Robertson, 32
F.3d at 951).
an employer had knowledge that a plaintiff was engaged in
protected activity depends in part on the employee's job
description. In Robertson v. Bell Helicopter, the
Fifth Circuit found that the defendants could not have known
that the plaintiff was engaged in protected activity because
the plaintiffs actions were consistent with the performance
of his job duties. 32 F.3d at 952. Plaintiff did not identify
any change in his conduct that might have given the
defendants notice of his intentions to report fraud upon the
government. Id. To prove that an employee's
engagement in protected activity caused a retaliatory action,
a plaintiff cannot rely solely on temporal proximity of the
retaliatory action to the protected activity. U.S. ex
rel. King v. Solvay Pharm., Inc., 871 F.3d 318, 334 (5th
Cir. 2017). However, allegations of temporal proximity may be
sufficient to overcome a motion to dismiss. See Id.
(quoting Shackleford v. Deloitte & Touche, LLP,
190 F.3d 398, 409 (5th Cir. 1999) ("Indeed, the
combination of suspicious timing with other significant
evidence of pretext, can be sufficient to survive summary