Court of Appeals Clarifies Procedural Hurdles to Whistleblower Protection Under TPFCA

July 24, 2015

The Court of Appeals recently explored the procedural and immunity implications of the Taxpayer Protection and False Claims Act (TPFCA) with respect to state universities and their officers and employees. In Fuciarelli v. McKinney, No. A15A0223, 2015 WL 4313845 (Ga. Ct. App. July 16, 2015), the Court held that a state university and its officers and employees – as public employees – are entitled to sovereign immunity in their official capacities when sued under the TPFCA. On the other hand, the Court clarified that a public employee is not required to obtain approval from the Attorney General before filing a retaliation suit under the TPFCA against other public employees in their individual capacities.

Fuciarelli, a tenured faculty professor, assistant vice president for research, and dean of graduate school employed at a state university by the Board of Regents of the University System of Georgia, brought a claim against the university, the Board of Regents, and various university officials in their individual capacities – for False Claims Whistleblower Retaliation (FCWR) under the TPFCA O.C.G.A. § 23-3-122, and for Public Employee Whistleblower Retaliation (PEWR) O.C.G.A. § 45-1-4 – after his administrative duties as vice president and dean were terminated following his complaint to school administration regarding the university’s “noncompliance with laws, rules, and regulations.” The superior court dismissed Fuciarelli’s FCWR claims due to Fuciarelli’s failure to obtain written approval from the Attorney General prior to bringing suit under the TPFCA.

On appeal, the Court affirmed the dismissal of Fuciarelli’s FCWR claims, explaining that sovereign immunity extended to all defendants in their official capacities, and that “[n]othing in the TPFCA expressly or impliedly waives the government’s immunity from suit.” The Court explained that the TPFCA, rather than creating a cause of action against the state for retaliation, merely “authorize[s] the State of Georgia, through the Attorney General or a designee, to bring civil actions to recoup losses that the state or a local government has suffered as a result of false claims presented to the state or a local government by others.” Accordingly, the Court affirmed on sovereign immunity grounds.

However, the Court explicitly reversed the superior court’s dismissal to the extent it was based on Fuciarelli’s failure to obtain written approval from the Attorney General prior to bringing suit under the TPFCA against university officials in their individual capacities. Noting that the TPFCA allows private persons to bring qui tam actions on behalf of the government, the Court clarified that the TPFCA’s requirement to obtain Attorney General approval applies only to an “action under the TPCFA that a private person brings in the name of the government for the benefit of the government.” Since “[r]etaliation claims [] are personal to the plaintiff and are meant to afford proper plaintiffs with all relief necessary to make them whole,” Fuciarelli’s retaliation claims against the defendant university officials in their individual capacities did not require Attorney General approval.

Claims brought against or on behalf of the State of Georgia can entail significant and complex procedural barriers that can determine the outcome of a lawsuit. The attorneys at Parks, Chesin & Walbert have extensive knowledge and experience handling cases involving Sovereign Immunity and can help properly maneuver your claim through these obstacles. Contact our firm today at 404-873-8048 or firm@pcwlawfirm.com.