Statutory Antiretaliation Remedy Preempts Common-Law Public-Policy Wrongful Discharge Claims under the FCA

Introduction

This commentary examines the Nebraska Supreme Court’s decision in Dibbern v. York Surgical Associates, P.C., 318 Neb. 928 (2025). The case arose when Terri Dibbern, a Medicare‐billing specialist employed by a small surgical practice, York Surgical Associates, was terminated shortly after expressing her intention to cooperate with U.S. Office of Inspector General (OIG) investigators in a Medicare upcoding audit. Dibbern sued for wrongful termination in violation of public policy; the trial court submitted that claim to a jury, which awarded her lost wages. On appeal, the Nebraska Supreme Court considered whether a common‐law tort remedy for wrongful discharge is available when the public policy at issue is already enforced—and remedied—by a federal statute, namely the False Claims Act’s antiretaliation provision, 31 U.S.C. § 3730(h). The court held that because the FCA provides its own “comprehensive and adequate” remedy, Nebraska courts will not recognize a parallel public‐policy wrongful discharge tort.

Summary of the Judgment

The Supreme Court of Nebraska reversed the jury’s verdict and directed entry of judgment in favor of York Surgical Associates. Key holdings include:

The termination‐at‐will doctrine permits an employer to discharge an at‐will employee for any or no reason, subject only to narrow exceptions grounded in statute or clear public policy.
Nebraska recognizes a limited public‐policy exception, but it applies only where “a very clear mandate of public policy has been violated” and no statutory remedy exists.
The False Claims Act, 31 U.S.C. § 3729 et seq., embodies the public policy against upcoding and provides a cause of action and damages remedy for retaliation (31 U.S.C. § 3730(h)).
Where a statute both articulates the public policy and furnishes its own enforcement mechanism, a separate common‐law wrongful‐discharge tort is unnecessary and therefore unavailable.

Analysis

Precedents Cited

Ambroz v. Cornhusker Square Ltd. (226 Neb. 899, 416 N.W.2d 510 (1987)) – Established that the public‐policy exception to at‐will employment is limited to violations of a “very clear mandate of public policy.”
Coffey v. Planet Group (287 Neb. 834, 845 N.W.2d 255 (2014)) – Reaffirmed the rule that at‐will employees may be discharged for any reason, except where prohibited by constitution, statute, or contract.
Wendeln v. Beatrice Manor (271 Neb. 373, 712 N.W.2d 226 (2006)) – Applied the public‐policy exception to protect employees mandated by statute to report patient abuse.
Malone v. American Bus. Info. (262 Neb. 733, 634 N.W.2d 788 (2001)) – Refused to extend the exception to violations of a remedial wage‐payment statute that provided its own enforcement scheme.
Federal decisions interpreting the False Claims Act’s protections, including U.S. ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220 (1st Cir. 2004), which confirm that a plaintiff need not invoke the FCA by name to invoke its antiretaliation safeguard.

Legal Reasoning

The court’s reasoning unfolded in three steps:

Scope of the public‐policy exception. Nebraska law permits an exception to at‐will employment only where a “very clear” public policy is violated, and no other statutory or contractual remedy exists. Broad notions of fairness are insufficient to expand the exception.
Identification of the relevant public policy. Dibbern’s allegation—that she was fired for intending to cooperate with an OIG investigation into Medicare upcoding—rested on the public policy codified in the False Claims Act, which prohibits submitting false claims to the government.
Preemption by the FCA’s remedial scheme. Title 31 U.S.C. § 3730(h) provides employees with reinstatement, double back pay, attorneys’ fees, and other damages for retaliation “because of lawful acts . . . in furtherance of” FCA enforcement. Because Congress supplied “comprehensive and adequate” remedies, Nebraska courts will not create a separate common‐law tort for the same conduct.

Impact

This decision clarifies that Nebraska will not recognize new wrongful‐discharge torts whenever a legislative enactment declares a public policy, at least where that statute includes its own enforcement mechanism. Key consequences include:

Plaintiffs alleging retaliation for blowing the whistle on Medicare or Medicaid fraud must bring their claims under 31 U.S.C. § 3730(h), not under a separate state common‐law theory.
Employers gain greater certainty that compliance with federal statutes and statutorily prescribed enforcement schemes shields them from parallel state tort liability.
Other jurisdictions may look to this decision when balancing statutory remedies against common‐law expansions in employment‐law exceptions.

Complex Concepts Simplified

At-Will Employment: An arrangement where either the employer or employee may end the relationship at any time, for any or no reason, unless limited by contract or law.
Public-Policy Exception: A narrow carve‐out allowing an at‐will employee to sue for wrongful termination if firing the employee contravenes a clear, fundamental public policy.
False Claims Act (FCA): A federal law that prohibits submitting fraudulent claims for government payment, and includes a “qui tam” provision letting private citizens sue on the government’s behalf.
Antiretaliation Provision (31 U.S.C. § 3730(h)): The FCA’s clause protecting employees who report or assist in investigations of fraud, offering reinstatement, back pay, and other damages if they are discharged or mistreated.

Conclusion

In Dibbern v. York Surgical Associates, the Nebraska Supreme Court reaffirmed the narrow scope of the public‐policy exception to at‐will employment and held that where a statute—in this case the False Claims Act—expressly codifies a public policy and furnishes its own remedy for retaliation, no independent state‐law tort for wrongful discharge in violation of that public policy exists. This decision ensures that whistleblower claims are funneled through the FCA’s established enforcement framework and avoids duplicative or inconsistent remedies under state common law.