Eleventh Circuit Rules False Claims Act Qui Tam Claims Barred by Prior Whistleblower Retaliation Claims Under Res Judicata 

A recent decision by the Eleventh Circuit Court of Appeals affirmed the district court’s dismissal of a False Claims Act (FCA) qui tam action as barred under the doctrine of res judicata due to the whistleblower’s previously filed and dismissed retaliation case. The court’s opinion highlights the importance of bringing both FCA qui tam and retaliation claims in the same action to avoid one set of claims later being barred by res judicata.  

The opinion also addresses an argument FCA defendants sometimes make at the dismissal stage—that a whistleblower’s non-qui tam claims (e.g., FCA retaliation or common law claims) must be dismissed for failure to comply with Federal Rule of Civil Procedure 4(m)’s 90-day service requirement while the complaint containing qui tam claims was statutorily under seal. 

In the qui tam case, United States ex rel. Milner v. Baptist Health Montgomery, 132 F.4th 1354 (11th Cir. 2025) (Milner), the relator, who had worked as an ER physician at a hospital owned and operated by the defendants, alleged that the defendants were forcing their physicians to overprescribe opioids to patients and fraudulently billing Medicare and Medicaid for the overprescriptions. In his separate retaliation case, brought four months before the qui tam case, the relator alleged that the defendants terminated him for reporting the opioid overprescribing and overbilling practices to his superiors. 

In Milner, the defendants filed a motion to dismiss the qui tam claims arguing, among other things, that because the relator’s prior FCA retaliation claims had been dismissed with prejudice, his qui tam claims were subject to dismissal on res judicata grounds.  

Applying the doctrine of res judicata to preclude a subsequent case requires that the prior decision: (1) was rendered by a court of competent jurisdiction, (2) was final, (3) involved the same parties, and (4) involved the same causes of action.1 On appeal, the parties contested only the third and fourth elements.  

FCA Relators and FCA Retaliation Plaintiffs Are the Same Parties for Res Judicata Purposes

As to whether the lawsuits involved the same parties, the primary issue was whether the plaintiff appearing in his individual capacity in the first retaliation case was the same party when he appeared as a relator on behalf of the United States in the second case. The court concluded that under its precedent in Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235 (11th Cir. 1999), a qui tam realtor and an individual suing for FCA retaliation in a personal capacity are the same party for res judicata analysis under the rationale that a qui tam relator can participate in the litigation, just as an individual party can, irrespective of whether the United States intervenes.2 

FCA Qui Tam Claims and FCA Retaliation Claims Are the Same Cause of Action for Res Judicata Purposes

Regarding the issue of whether the two cases involved the same causes of action, the court analyzed whether the two lawsuits arose out of the same nucleus of operative facts or were based upon the same factual predicate.3 The relator argued that the two lawsuits did not involve the same causes of action because the factual underpinnings for his retaliation case were the reasons for his termination, while the factual predicate for the qui tam claims was the defendants’ alleged knowing submission of false or fraudulent claims for unnecessary opioid prescriptions to the government.4  

The court rejected the relator’s argument and concluded that although the claims did not require proof of the same elements, the causes of action were the same in both cases because the legal theories and claims generally arose from a common nucleus of operative facts—involving the same time period, the same location, and the same basic facts about billing for opioid overprescribing and the whistleblower’s reports to his supervisors regarding same.  

Implication for FCA Defendants’ Rule 4(m) Dismissal Argument Regarding Lawsuits Containing Qui Tam and Non-Qui Tam Claims

FCA defendants sometimes argue at the motion-to-dismiss stage that where a complaint brought under seal contains both qui tam and non-qui tam causes of action, the non-qui tam claims (e.g., employment-based claims or common law claims) are subject to dismissal under Federal Rule of Civil Procedure 12(b)(5) for failure to effectuate service of process under Rule 4(m) within 90 days.5  

This defense argument acknowledges that pursuant to the FCA’s requirements at 31 U.S.C. § 3730(b)(2), a relator is prohibited from serving the qui tam complaint until the court orders service, and courts have interpreted Rule 4(m)’s 90-day service window to begin to run from the date of such an order. FCA defendants contend, however, that non-qui tam claims brought within a qui tam action are not included in this service exception, and some courts have accepted this argument, and dismissed the non-qui tam claims for untimely service.6  

Along these lines, some courts have even found that because of Rule 4(m)’s service deadline, among other differences, qui tam and non-qui tam claims cannot successfully be brought in one action.7  

Milner now makes clear that all claims arising out of the same factual predicate whether qui tam, retaliation, or otherwise should be brought in one lawsuit to avoid the unforgiving application of res judicata to subsequent claims. Milner thus directly undermines this FCA defense Rule 4(m) argument. 

Key Takeaways for Practice in the Eleventh Circuit

• If a client has both qui tam and retaliation claims (or other claims arising out of the same factual predicate), counsel should bring them in the same lawsuit or risk a ruling that later claims are barred by res judicata. 

• Bringing both qui tam claims and non-qui tam claims in the same lawsuit does not run afoul of the Rule 4(m) requirement to serve defendants within 90 days of filing a complaint as to the non-qui tam claims.  

If you know of a company or person that has committed fraud against the Government or you have been retaliated against for reporting such fraud, contact the attorneys at RKJ at 561-659-7878.  

7 United States ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 852‒53 (7th Cir. 2009).