Rebecca Musser v. Paul Quinn College ( 2019 )


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  •      Case: 19-10042   Document: 00515230038     Page: 1   Date Filed: 12/10/2019
    REVISED December 10, 2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 19-10042                       FILED
    December 9, 2019
    Lyle W. Cayce
    REBECCA MUSSER,                                                     Clerk
    Plaintiff - Appellant
    v.
    PAUL QUINN COLLEGE,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Northern District of Texas
    Before CLEMENT, ELROD, and DUNCAN, Circuit Judges.
    EDITH BROWN CLEMENT, Circuit Judge:
    After she was fired, Rebecca Musser sued her former employer, Paul
    Quinn College, for retaliation under the False Claims Act. The college
    maintains that it had legitimate reasons for terminating Musser’s
    employment, including that her position was eliminated. But Musser claims
    that the college retaliated against her for internally reporting allegedly
    fraudulent practices by the college’s chief financial officer in securing federal
    grants. The district court granted summary judgment to Paul Quinn College
    Case: 19-10042    Document: 00515230038     Page: 2   Date Filed: 12/10/2019
    No. 19-10042
    because Musser failed to establish that the stated reason for her termination
    was pretext for retaliation. We affirm the district court’s judgment.
    FACTS AND PROCEEDINGS
    Paul Quinn College (“PQC”) is a private, historically black college in
    Dallas, Texas. A major source of PQC’s funding is federal grants authorized by
    Title III of the Higher Education Act of 1965, as amended, 20 U.S.C. §§ 1051
    et seq., which provides financial assistance to historically black colleges and
    universities. In 2007, during a period of financial and organizational difficulty
    for the college, PQC hired Michael Sorrell as president and tasked him with
    turning things around. One of Sorrell’s first actions was to hire Antwane
    Owens and his company, Excellence Through Insight, Inc. (“ETI”), to manage
    and oversee the college’s finances. Owens became the acting chief financial
    officer of the college, but his position was only temporary while PQC searched
    for a permanent CFO.
    ETI hired Musser as an independent contractor in March 2010. Although
    Musser was not a certified public accountant and had no experience with
    federal grants or nonprofit educational institutions, she was tasked with
    providing financial and accounting services to PQC as the college’s interim
    controller. Her job duties included overseeing the business office, providing
    information for grant applications, handling accounts payable, reviewing grant
    reports, and preparing information for auditors. In performing her duties,
    Musser worked with employees of eCratchit, an accounting firm utilized by
    PQC to assist with bookkeeping functions. After Musser’s contract with ETI
    ended, PQC hired her directly as its full-time controller, and she continued to
    work under the supervision of Owens.
    Almost immediately after Musser’s employment began, there were
    problems with her performance. Between September 2011 through early
    November     2011,   Owens     repeatedly    counseled    Musser    about    her
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    communicating directly with staff and students without his approval, her
    failure to supervise an employee in the business office who was submitting
    inaccurate timesheets, her inability to explain financial issues clearly and
    concisely, and her failure to accomplish assigned tasks. These issues were no
    secret to Sorrell and his chief of staff, Lori Price.
    Owens’s problems with Musser eventually became mutual. On
    November 10, 2011, Musser sent an e-mail to Owens questioning whether he
    performed federal grant drawdowns properly. Musser admits that she did not
    expressly accuse Owens of fraud or illegal activity in this e-mail. Meanwhile,
    Owens and Sorrell were attending an out-of-town conference. While at the
    conference, Owens and Sorrell discussed Musser’s poor performance. And on
    November     11,   2011,    Owens    submitted     a    memorandum      to   Sorrell
    recommending that Musser be fired at the end of the year. Sorrell agreed.
    That same day, Musser requested a meeting with Sorrell so she could
    share some “important information” with him. Sorrell did not immediately
    respond to her request. A few days later, on November 14, Musser e-mailed
    Owens explaining that there appeared to be a discrepancy in the amount of
    grant money that PQC was claiming versus the amount that PQC was
    spending. Owens asked Musser to prepare a spreadsheet showing the
    discrepancy, but he could not understand the spreadsheet that she created.
    On November 15, Musser followed up on her request for a meeting with
    Sorrell. She explained that she wanted to alert his attention to something that
    could be a “very serious risk for the college.” Sorrell was out of town, but he
    told her that she could meet with Price in the meantime. Later that day,
    Musser and Owens agreed to meet for coffee the following morning. During
    their meeting on the morning of November 16, Owens informed Musser that
    her employment would be terminated at the end of the year.
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    On November 17, Musser met with Price and expressed her
    apprehensions about Owens’s performance of his duties as CFO. Musser then
    drafted a memorandum to Sorrell setting out all of her concerns. She delivered
    the memorandum to Sorrell on November 18. Unlike her previous
    communications, Musser’s memorandum explicitly accused Owens of
    defrauding the federal government to secure federal funds.
    Upon receiving Musser’s report, Sorrell immediately notified PQC’s
    Board of Trustees, and the Board hired a law firm to conduct an independent
    investigation into her allegations. On November 20, at the Board’s directive,
    Sorrell placed both Owens and Musser on administrative leave with full pay
    and benefits pending the results of the investigation. Sorrell was not involved
    in the investigation, but he learned in January 2012 that the investigation had
    concluded and no further action in response to Musser’s report was
    recommended. The Board directed Sorrell to continue the search for a new CFO
    and maintain Musser on paid administrative leave for the time being.
    Shortly after the investigation concluded, litigation between Owens and
    Musser ensued. On February 13, 2012, Owens sued Musser for falsely accusing
    him of criminal conduct and violating federal law. In response, Musser
    asserted counterclaims for defamation against Owens. Owens later added PQC
    as a defendant, alleging that PQC was vicariously liable for Musser. The trial
    court granted summary judgment to Musser on all of Owens’s claims in
    October 2013, and Owens settled Musser’s counterclaims a few months later.
    The court entered a final judgment against Owens and in favor of Musser and
    PQC on April 21, 2014. Musser remained on paid administrative leave for the
    duration of the Owens litigation. And because she was an employee, PQC paid
    her legal bills.
    Four months later, on August 19, 2014, Price sent Musser a letter
    informing her that her administrative leave had ended and that her
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    employment would be terminated at the end of the month. The letter stated
    that Musser’s services were no longer needed because “the business office has
    been reorganized and the position of controller has been eliminated.”
    Musser filed this lawsuit against PQC on August 16, 2017. She advanced
    a single claim for retaliation in violation of the False Claims Act, challenging
    the August 2014 decision to terminate her employment. The district court held
    that Musser failed to establish that the proffered reason for her termination
    was pretext for retaliation and granted summary judgment to PQC. Musser
    now appeals.
    STANDARD OF REVIEW
    We review a district court’s grant of summary judgment de novo. Bridges
    v. Empire Scaffold, L.L.C., 
    875 F.3d 222
    , 225 (5th Cir. 2017). “Summary
    judgment is appropriate if ‘there is no genuine dispute as to any material fact
    and the movant is entitled to judgment as a matter of law.’” 
    Id. (quoting Fed.
    R. Civ. P. 56(a)). A court should enter summary judgment “against a party who
    fails to make a showing sufficient to establish the existence of an element
    essential to that party’s case, and on which that party will bear the burden of
    proof at trial.” Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322 (1986).
    DISCUSSION
    The False Claims Act (“FCA”) makes it illegal to knowingly present to
    the federal government a false or fraudulent claim for payment. 31 U.S.C.
    § 3729(a)(1)(A). To encourage those with knowledge of fraud to come forward,
    the FCA contains a “whistleblower” provision. Robertson v. Bell Helicopter
    Textron, Inc., 
    32 F.3d 948
    , 951 (5th Cir. 1994). In particular, the statute
    provides a cause of action for employees who experience adverse employment
    actions “because of lawful acts done by the employee . . . in furtherance of an
    action under [the FCA] or other efforts to stop [one] or more violations of [the
    FCA].” 31 U.S.C. § 3730(h)(1).
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    We apply the familiar McDonnell Douglas burden-shifting framework to
    FCA retaliation claims. Garcia v. Prof’l Contract Servs., Inc., 
    938 F.3d 236
    , 240
    (5th Cir. 2019); see also McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802–
    04 (1973). “Under this framework, the employee must first establish a prima
    facie case of retaliation by showing: (1) that he engaged in protected activity;
    (2) that the employer knew about the protected activity; and (3) retaliation
    because of the protected activity.” 
    Garcia, 938 F.3d at 241
    . If the employee
    establishes a prima facie case, “the burden shifts to the employer to state a
    legitimate, non-retaliatory reason for its decision.” 
    Id. (quoting United
    States
    ex rel. King v. Solvay Pharm., Inc., 
    871 F.3d 318
    , 332 (5th Cir. 2017) (per
    curiam)). After the employer articulates a legitimate reason, “the burden shifts
    back to the employee to demonstrate that the employer’s reason is actually a
    pretext for retaliation.” 
    Id. (quoting Solvay,
    871 F.3d at 332).
    Like the district court, we assume without deciding that Musser
    established a prima facie case of retaliation. The burden thus shifts to PQC to
    proffer a legitimate, non-retaliatory reason for Musser’s termination. “This
    burden is one of production, not persuasion,” and it involves no credibility
    assessment. Reeves v. Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    , 142
    (2000). PQC may meet this burden by setting forth, through admissible
    evidence, “reasons for its actions which, if believed by the trier of fact, would
    support a finding that unlawful [retaliation] was not the cause of the
    employment action.” St. Mary’s Honor Ctr. v. Hicks, 
    509 U.S. 502
    , 507 (1993).
    PQC offered evidence of a legitimate, non-retaliatory reason for Musser’s
    termination: a reorganization of the college’s business office resulting in the
    elimination of Musser’s position. Elimination of an employee’s position as a
    result of a reorganization or a reduction-in-force is a legitimate, non-retaliatory
    reason for the employee’s termination. See, e.g., Diaz v. Kaplan Higher Educ.,
    L.L.C., 
    820 F.3d 172
    , 176 (5th Cir. 2016) (holding company-wide reduction-in-
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    force was a legitimate, non-retaliatory reason for termination); Berquist v.
    Wash. Mut. Bank, 
    500 F.3d 344
    , 356–57 (5th Cir. 2007) (holding reorganization
    of a department that resulted in elimination of the plaintiff’s position was a
    legitimate, non-discriminatory reason for termination). PQC also produced
    evidence of an additional reason for Musser’s termination that is not
    inconsistent with the first: her poor performance. “Job performance is a
    legitimate, non-retaliatory reason for termination.” LeMaire v. La. Dep’t of
    Transp. & Dev., 
    480 F.3d 383
    , 391 (5th Cir. 2007) (citing Perez v. Region 20
    Educ. Serv. Ctr., 
    307 F.3d 318
    , 326 (5th Cir. 2002)).
    Because PQC articulated legitimate, non-retaliatory reasons for its
    decision, the burden shifts back to Musser to establish that PQC’s proffered
    reasons are actually pretext for retaliation, which Musser “accomplishes by
    showing that the adverse action would not have occurred ‘but for’ [PQC’s]
    retaliatory motive.” Feist v. La., Dep’t of Justice, Office of the Att’y Gen., 
    730 F.3d 450
    , 454 (5th Cir. 2013) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar,
    
    570 U.S. 338
    , 360 (2013)). In order to avoid summary judgment, Musser must
    show that there is a “conflict in substantial evidence” on this ultimate issue.
    Hernandez v. Yellow Transp., Inc., 
    670 F.3d 644
    , 658 (5th Cir. 2012) (quoting
    Long v. Eastfield Coll., 
    88 F.3d 300
    , 308 (5th Cir. 1996)). “Evidence is
    ‘substantial’ if it is of such quality and weight that reasonable and fair-minded
    men in the exercise of impartial judgment might reach different conclusions.”
    
    Id. (quoting Long,
    88 F.3d at 308).
    A review of our prior decisions in retaliation cases sheds light on the
    quality of evidence needed to survive summary judgment at the pretext stage.
    In Solvay, for example, we held that the plaintiffs’ evidence of being terminated
    three-and-a-half months after making complaints of FCA violations combined
    with their positive performance reviews prior to their terminations was not
    enough to create a dispute of material fact regarding pretext. Solvay, 
    871 F.3d 7
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    at 334; see also Strong v. Univ. Healthcare Sys., L.L.C., 
    482 F.3d 802
    , 808 (5th
    Cir. 2007) (affirming the district court’s grant of summary judgment because
    the plaintiff’s only evidence of pretext was temporal proximity).
    On the other hand, in Garcia, we held that the plaintiff pointed to enough
    evidence of pretext to survive summary judgment. 
    Garcia, 938 F.3d at 244
    . The
    plaintiff’s evidence in that case consisted of temporal proximity between his
    protected activity and termination, his dispute of facts leading up to his
    termination, disparate treatment of a similarly situated employee, harassment
    from his supervisor after the company knew of his protected activity, the stated
    reason for the termination had been known to the company for years, and the
    company stood to lose millions of dollars if its conduct was discovered. Id.; see
    also Shackelford v. Deloitte & Touche, LLP, 
    190 F.3d 398
    , 409 (5th Cir. 1999)
    (holding that evidence of tight temporal proximity, unfounded performance
    concerns, warnings from other employees not to engage in the protected
    activity, and disparate treatment was enough to create an issue of fact
    regarding pretext). 1
    Musser’s evidence falls far short of the body of evidence described in
    Garcia. On appeal, she argues that the following evidence demonstrates that
    PQC’s explanation for terminating her was pretext for retaliation: (1) her
    position was eliminated while she was on administrative leave as a result of
    her protected activity; (2) PQC’s proffered explanation is unworthy of credence
    because there is conflicting testimony regarding who assumed her job duties
    and no evidence that eliminating her position saved the college money;
    (3) Sorrell had a retaliatory motive because he was friends with Owens;
    1  In determining whether Musser has produced sufficient evidence of pretext to
    survive summary judgment, cases involving retaliation claims under Title VII and the Age
    Discrimination in Employment Act inform our analysis because such claims involve the same
    but-for causation requirement at issue in FCA retaliation claims. See 
    Solvay, 871 F.3d at 334
    n.17 (citing 
    Nassar, 570 U.S. at 350
    –52).
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    (4) PQC presented shifting reasons for her termination; and (5) temporal
    proximity between the finality of the litigation against Owens and her
    termination. Taking this evidence in its totality and in the light most favorable
    to Musser, we find that Musser fails to create a genuine dispute as to whether
    she would not have been fired but for PQC’s alleged retaliation.
    First, Musser attempts to establish causation by arguing that PQC
    would not have eliminated her position had she not engaged in protected
    activity. Essentially, Musser argues that because PQC discovered that her
    position was unnecessary while she was on leave, and because she was initially
    placed on leave to allow the Board to investigate her report of suspected FCA
    violations, she was fired “because of” her protected activity. Musser cites no
    authority to support such an attenuated theory of causation in retaliation
    cases. 2 And an examination of the purpose of the FCA’s whistleblower
    provision reveals the flaw in Musser’s argument.
    The purpose of the whistleblower provision is to promote enforcement of
    the FCA by “assur[ing] those who may be considering exposing fraud that they
    are legally protected from retaliatory acts.” S. Rep. No. 99-345, at 34 (1986), as
    reprinted in 1986 U.S.C.C.A.N. 5266, 5299. For this reason, the statute
    prohibits an employer from retaliating against an employee because of the
    employee’s protected activity; it does not prevent the employer from taking
    2 Other circuit courts have rejected similar arguments. See, e.g., Schaaf v. Smithkline
    Beecham Corp., 
    602 F.3d 1236
    , 1242–43 (11th Cir. 2010) (employer did not violate the Family
    and Medical Leave Act by demoting employee for professional deficiencies discovered while
    employee was on leave, even if employer would not have discovered those deficiencies had
    employee not been on leave); Kohls v. Beverly Enters. Wis., Inc., 
    259 F.3d 799
    , 806 (7th Cir.
    2001) (“The fact that the leave permitted the employer to discover the problems can not
    logically be a bar to the employer’s ability to fire the deficient employee.”); Smith v. F.W.
    Morse & Co., 
    76 F.3d 413
    , 424–25 & 425 n.9 (1st Cir. 1996) (rejecting employee’s argument
    that “Title VII prohibits an employer from dismissing an employee while she is on maternity
    leave even if the employer, in the process of rationalizing its work force, discovers that her
    position is redundant and eliminates it for that reason”).
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    adverse employment actions for legitimate reasons unrelated to the protected
    activity. In the latter situation, the employer’s decision is motivated not by the
    protected activity, but by other reasons that would have prompted the adverse
    action regardless of whether the employee engaged in protected activity. Put
    simply, the fact that Musser’s position was eliminated while she was on leave
    after reporting suspected FCA violations does not create a dispute as to
    whether PQC’s “desire to retaliate was the but-for cause of the challenged
    employment action.” 
    Nassar, 570 U.S. at 352
    (emphasis added).
    Second, Musser fails to cast doubt on PQC’s explanation that her position
    was eliminated as part of a legitimate reorganization. There is no conflict in
    testimony regarding the reallocation of Musser’s job duties. Sorrell testified
    that Musser’s job “was capable of being absorbed in several places, one of them
    being eCratchit,” the outside accounting firm used by PQC throughout the
    course of Musser’s employment. Price testified that she began working with
    eCratchit in Musser’s place. Together, Price and eCratchit assumed Musser’s
    job duties. There is no dispute that PQC has not hired a new controller to
    replace Musser. See Dulin v. Dover Elevator Co., 
    139 F.3d 898
    (5th Cir. 1998)
    (unpublished) (“[A]pplicable case law holds that when an employee’s position
    has been eliminated and the job duties reassigned to existing employees, that
    employee has not been replaced.”).
    Musser also faults Sorrell for being uncertain whether the decision to
    eliminate her position and redistribute her duties saved the college any money.
    But PQC never claimed to eliminate Musser’s position solely for financial
    reasons. In the years immediately before and after Musser’s tenure, PQC was
    in the midst of a financial and organizational overhaul. Sorrell and the Board
    regularly discussed restructuring the college’s business office—not only to
    “save money” but also to increase efficiency by “streamlining the staff.” And
    even if the sole reason for PQC’s decision was to save money, Musser’s
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    argument is unsound because it challenges the wisdom of PQC’s decision
    rather than the sincerity of its stated motivation. “Our job as a reviewing court
    conducting a pretext analysis is not to engage in second-guessing of an
    employer’s business decisions.” 
    LeMaire, 480 F.3d at 391
    . Evidence that the
    decision to eliminate Musser’s position did not ultimately achieve cost savings
    “would establish only that the proffered justification was mistaken, not
    dishonest, which is the key to pretext.” Easterling v. Tensas Par. Sch. Bd., 682
    F. App’x 318, 323 (5th Cir. 2017) (citing Waggoner v. City of Garland, 
    987 F.2d 1160
    , 1166 (5th Cir. 1993)).
    Third, Musser asserts that Sorrell had a retaliatory motive because he
    was friends with Owens. The only evidence Musser cites to support this
    argument is an e-mail conversation between Owens and Sorrell, in which
    Sorrell agreed to waive any conflict of interest to allow PQC’s outside counsel
    to represent Owens in his lawsuit against Musser. This waiver is insufficient
    to demonstrate that Sorrell harbored a retaliatory motive against Musser.
    Fourth, Musser argues that PQC’s “shifting reasons” for her termination
    support an inference of pretext. It is true that “[a]n employer’s inconsistent
    explanations for an employment decision” may give rise to an inference of
    pretext in some cases. Caldwell v. KHOU-TV, 
    850 F.3d 237
    , 242 (5th Cir. 2017);
    accord Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 
    482 F.3d 408
    , 412
    n.11 (5th Cir. 2007). But in those cases, the employers gave fundamentally
    different reasons for their decisions on appeal than they did in the district court
    or before litigation commenced. See Hassen v. Ruston La. Hosp. Co., 
    932 F.3d 353
    , 356–57 (5th Cir. 2019) (citing 
    Caldwell, 850 F.3d at 242
    ; 
    Burrell, 482 F.3d at 413
    ). In contrast, PQC’s story has not changed during the course of this
    litigation. Both at the district court and on appeal, PQC explained that Sorrell
    initially decided to fire Musser in November 2011 for poor performance, and
    Musser was ultimately terminated in August 2014 after PQC determined that
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    her position was unnecessary and eliminated it. These reasons are not
    inconsistent or contradictory. Indeed, Musser’s history of poor performance
    could have contributed to PQC’s decision to eliminate the controller position.
    Finally, Musser’s temporal-proximity argument is unavailing. We have
    previously acknowledged that “temporal proximity between protected activity
    and alleged retaliation is sometimes enough to establish causation at the
    prima facie stage.” Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs,
    
    810 F.3d 940
    , 948 (5th Cir. 2015). But “[t]emporal proximity alone is
    insufficient” to survive summary judgment at the pretext stage in the absence
    of “other significant evidence of pretext.” 
    Solvay, 871 F.3d at 334
    (first quoting
    
    Strong, 482 F.3d at 808
    , and then quoting 
    Shackelford, 190 F.3d at 409
    ).
    As explained above, Musser has not provided “other significant evidence
    of pretext.” 
    Shackelford, 190 F.3d at 409
    . “Thus, [she] is left with no evidence
    of retaliation save temporal proximity.” 
    Strong, 482 F.3d at 808
    . Even if she
    were to establish “suspicious timing of [her] termination in tight proximity to
    her protected activity,” 3 
    Shackelford, 190 F.3d at 409
    , temporal proximity
    standing alone is insufficient to satisfy her burden at the pretext stage, see
    
    Strong, 482 F.3d at 808
    . Therefore, we need not consider the merits of her
    temporal-proximity argument.
    3 For her temporal-proximity argument, Musser relies on the timing between the
    conclusion of the Owens litigation and the date PQC notified her of her termination in 2014.
    But even if we were to consider Musser’s defense of Owens’s lawsuit against her and
    prosecution of her counterclaims against him as “protected activity” under the FCA, which is
    dubious, the date to which her termination must be temporally proximate is the date when
    PQC first learned that she had engaged in some protected activity. See Harville v. City of
    Houston, 
    935 F.3d 404
    , 414 (5th Cir. 2019). “[T]he temporal clock does not ‘re-start’ with each
    protected activity.” 
    Id. (quoting Alkhawaldeh
    v. Dow Chem. Co., 
    851 F.3d 422
    , 429 n.23 (5th
    Cir. 2017)). Thus, the relevant protected activity here is Musser’s internal reporting of
    suspected FCA violations, which occurred when she delivered her memorandum to Sorrell on
    November 18, 2011.
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    CONCLUSION
    To sum up, Musser failed to show that a reasonable juror could conclude
    that PQC fired her in retaliation for engaging in protected activity. Because
    PQC offered a non-retaliatory explanation for Musser’s termination, and
    because Musser presented no evidence of pretext, the district court’s decision
    granting summary judgment in favor of PQC is AFFIRMED. 4
    4 Because we conclude that Musser failed to produce sufficient evidence of pretext to
    survive summary judgment, we need not and do not address PQC’s additional argument that
    Musser’s suit is barred by the three-year statute of limitations applicable to FCA retaliation
    claims. See 31 U.S.C. § 3730(h)(3).
    13