US ex rel. Sargent v. Collins

• Court: Court of Appeals for the First Circuit
• Decided: January 22, 2026
• Docket: 25-1153
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 25-1153

UNITED STATES, ex rel. ERIK K. SARGENT,

Plaintiff, Appellant,

UNITED STATES, ex rel.,

Plaintiff,

v.

DOUGLAS A. COLLINS, in his official capacity as Secretary of the Department of Veterans Affairs,

Defendant, Appellee,

TRACYE B. DAVIS; TODD STAPLEY,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Stacey D. Neumann, U.S. District Judge]

Before

Gelpí, Rikelman, and Dunlap, Circuit Judges.

Cynthia A. Dill on brief for appellant.

Brett A. Shumate, Assistant Attorney General, Craig M. Wolff, Acting United States Attorney, and Michael S. Raab, Charles W. Scarborough, and Maxwell A. Baldi, Attorneys, Appellate Staff, Civil Division, U.S. Department of Justice, on brief for appellees. January 22, 2026 DUNLAP, Circuit Judge. Plaintiff-Appellant Erik K.

Sargent appeals from the district court's dismissal of his

retaliation claim under the False Claims Act ("FCA"), 31 U.S.C.

§ 3730(h), for lack of subject-matter jurisdiction. Mr. Sargent,

a federal employee, sued the Secretary of the Department of

Veterans Affairs (the "Secretary") in his official capacity.1

Mr. Sargent alleged that he had suffered on-the-job retaliation at

Veterans Affairs Maine Healthcare System after refusing to

cooperate with fraudulent acts by his supervisors and reporting

those acts. The district court determined, sua sponte, that

Congress had not expressly waived federal sovereign immunity for

retaliation claims under Section 3730(h), and so "the FCA d[id]

not authorize [Mr. Sargent] to pursue his FCA-derived retaliation

claim against the United States." United States ex rel. Sargent

v. McDonough, No. 1:23-cv-00328-SDN, 2024 WL 5159170, at *2 (D. Me.

Dec. 18, 2024). The court thus granted the motion to dismiss.

Id. at *4. Upon review, we affirm the district court's judgment

and hold that federal sovereign immunity bars Mr. Sargent's

retaliation claim under 31 U.S.C. § 3730(h).

1 Mr. Sargent's amended complaint named as a defendant Denis R. McDonough, in his official capacity as the Secretary, but Douglas A. Collins has since assumed the role.

- 3 - I.

When reviewing a district court's grant of a motion to

dismiss, we accept the amended complaint's well-pleaded factual

allegations as true. Better Way Ford, LLC v. Ford Motor Co., 142

F.4th 67, 77 (1st Cir. 2025). We also "draw all reasonable

inferences in favor of the non-moving party." Id. (quoting Cheng

v. Neumann, 51 F.4th 438, 443 (1st Cir. 2022)). "We do

not . . . credit legal labels or conclusory statements, but rather

focus on the complaint's non-conclusory, non-speculative factual

allegations and ask whether they plausibly narrate a claim for

relief." Id. (quoting Cheng, 51 F.4th at 443). Applying this

familiar standard, we draw the facts summarized below from the

amended complaint.

A. Relevant Facts

Mr. Sargent worked for the Veterans Affairs Maine

Healthcare System ("VA Maine"), a local organization of the

Veterans Health Administration, which is in turn an agency of the

U.S. Department of Veterans Affairs. One of his responsibilities

was to approve overtime worked by a family nurse practitioner who

performed physical-therapy consults. In August 2021, Mr. Sargent

learned that the nurse practitioner had reached her overtime cap

for the year and was not eligible for any further overtime unless

it was COVID-related -- which the consults were not. Around two

months later, Mr. Sargent learned the nurse practitioner had not

- 4 - been logging on to her computer when she claimed to be performing

overtime consults, indicating she had not actually worked

overtime.

Knowing these facts, Mr. Sargent's

supervisors -- Tracye Davis (the Medical Center Director) and Todd

Stapley (the VA Maine Chief of Staff) -- allegedly created and

signed a false waiver indicating that the nurse practitioner had

worked overtime that was mission essential to COVID, when she had

not. This waiver resulted in a payment of approximately $95,000

in unearned overtime compensation, according to Mr. Sargent.

Mr. Sargent alleges that he refused to sign the waiver to override

the overtime cap and falsely state that the nurse practitioner's

overtime claims should be coded as COVID-related. When he

subsequently disclosed what he believed was a violation of the

law, gross mismanagement of funds and abuse of authority to the VA

Office of Inspector General, his employer and supervisors

allegedly targeted him with a campaign of harassment and

discrimination in retaliation, which included a reprimand and

demotion.

B. Procedural History

Mr. Sargent brought a qui tam action in the federal

district court for the District of Maine. On behalf of the United

States, he accused his direct supervisors, Ms. Davis and

Mr. Stapley, of submitting a false claim and conspiring to commit

- 5 - a violation of the FCA, 31 U.S.C. § 3729(a)(1)(A)-(C). On his own

behalf, he alleged that unspecified "defendants" -- presumably,

Ms. Davis, Mr. Stapley, and the Secretary (in his official

capacity) -- had retaliated against him in violation of 31 U.S.C.

§ 3730(h). The government intervened and moved to dismiss the

false claim and conspiracy count against Ms. Davis and

Mr. Stapley, and the district court granted that motion to dismiss.

United States ex rel. Sargent v. McDonough, No. 1:23-cv-00328-LEW,

2024 WL 809902, at *2 (D. Me. Feb. 26, 2024).2

Subsequently, the government moved to dismiss the

remaining retaliation count. The government argued that the court

lacked subject-matter jurisdiction because Mr. Sargent, as a

federal employee, had not availed himself of the exclusive remedies

for retaliatory personnel decisions prescribed in the

Whistleblower Protection Act ("WPA"), 5 U.S.C. §§ 1214, 1221,

2302(b)(8)-(9), and so could not pursue an FCA-based retaliation

claim. United States ex. rel. Sargent v. McDonough,

No. 1:23-cv-00328-SDN, Dkt. No. 12 at 4-6 (Mot. Dismiss). On

December 18, 2024, the district court dismissed the retaliation

2Because qui tam actions are brought in the name of the United States, the government "may dismiss the action notwithstanding the objections of" the relator as long as the relator "has been notified by the [g]overnment of the filing of the motion and the court has provided the [relator] with an opportunity for a hearing on the motion." 31 U.S.C. § 3730(c)(2)(A).

- 6 - count, but primarily on a basis different than that briefed by the

government.

On its own initiative, the district court determined

that because "a judgment against the Secretary [in his official

capacity] 'would expend itself on the public treasury or domain,'"

Mr. Sargent's suit amounted to "one against the sovereign -- the

United States," which "is immune from suit unless it consents to

be sued." Sargent, 2024 WL 5159170, at *2 (quoting Dugan v. Rank,

372 U.S. 609, 620 (1963)). Given that such consent "must be

unequivocally expressed," the district court considered whether

Congress had authorized FCA actions against the government via an

express waiver of sovereign immunity. Id. at *2-3 (quoting United

States v. Testan, 424 U.S. 392, 399 (1976)). It held that there

is no such waiver in the FCA, concluding that "the FCA allows a

person to file suit on behalf of the federal government -- not

against it." Id. at *3 (quoting Nance v. United States,

No. 22-cv-03861, 2023 WL 5211606, at *7 (N.D. Ill. Aug. 14, 2023)).

After the court granted the government's second motion to dismiss,

this appeal followed.

II.

On appeal, the government argues that the district court

lacked jurisdiction under either of two rationales: (1) exclusive

channeling -- that is, the government's position that the WPA

furnishes Mr. Sargent's exclusive remedies -- and (2) sovereign

- 7 - immunity. The sovereign immunity inquiry, on which the district

court focused, is dispositive, so we do not reach the government's

first argument.

As a preliminary matter, we note the district court acted

appropriately in assessing sovereign immunity sua sponte.

Although federal "courts are generally limited to addressing the

claims and arguments advanced by the parties," they nevertheless

"have an independent obligation to ensure that they do not exceed

the scope of their jurisdiction, and therefore they must raise and

decide jurisdictional questions that the parties either overlook

or elect not to press." Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428, 434 (2011). Sovereign immunity is a jurisdictional

issue. See United States v. Miller, 604 U.S. 518, 527

(2025)(citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)). Thus, it

matters not that the government advanced no sovereign-immunity

defense. The district court correctly fulfilled its "obligation

to inquire sua sponte into its subject matter jurisdiction, and to

proceed no further" after determining that "such jurisdiction

[wa]s wanting." Godin v. Schencks, 629 F.3d 79, 83 (1st Cir. 2010)

(quoting In re Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir.

1988)).

- 8 - A. Legal Standards

1. Standard of Review

We have jurisdiction over this appeal under 28 U.S.C.

§ 1291, and we review the district court's decision to dismiss for

lack of subject-matter jurisdiction de novo. See Davallou v.

United States, 998 F.3d 502, 504 (1st Cir. 2021). Although, as

noted above, "we take all well-pleaded allegations as true" and

give Mr. Sargent "the benefit of all reasonable inferences,"

ultimately "the burden of demonstrating the existence of federal

jurisdiction . . . lies with [him], as he is the party seeking to

invoke federal jurisdiction." Perales-Muñoz v. United States, 151

F.4th 1, 6 (1st Cir. 2025).

2. The False Claims Act

The FCA, codified at 31 U.S.C. §§ 3729-3733, "imposes

civil liability on any person who presents false or fraudulent

claims for payment to the Federal Government." United States ex

rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 423 (2023);

see also 31 U.S.C. § 3729(a)(1). Through qui tam actions, private

persons -- called "relators" -- may bring civil actions for false

claims "in the name of the United States . . . against those who

they believe have defrauded the Federal Government." United States

ex rel. Schutte v. SuperValu Inc., 598 U.S. 739, 743 (2023); see

also 31 U.S.C. § 3730(b)(1). Relators in successful false claims

actions receive a percentage of any monies recovered by the

- 9 - United States, plus reasonable attorneys' fees and costs.

31 U.S.C. § 3730(d).

"To encourage the filing of qui tam actions and protect

whistle-blowers . . . the FCA imposes liability on employers who

retaliate against employees who pursue, investigate, or contribute

to an action exposing fraud against the government." Maturi v.

McLaughlin Rsch. Corp., 413 F.3d 166, 172 (1st Cir. 2005). Section

3730(h)(1) of the FCA provides:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent 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, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop [one] or more violations of this subchapter.

31 U.S.C. § 3730(h)(1). An employee who faces retaliation can

seek "reinstatement . . . , [two] times the amount of back pay,

interest on the back pay, and compensation for any special damages

sustained as a result of the discrimination." Id. § 3730(h)(2).

3. The Whistleblower Protection Act

The FCA is not the only mechanism potentially available

to employees who complain of retaliatory conduct. Enacted as an

amendment to the Civil Service Reform Act of 1978 ("CSRA"), see

generally Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended

- 10 - in scattered sections of 5 U.S.C.), the WPA protects federal

employees from adverse employment actions. The CSRA generally

allows civilian employees to appeal major adverse actions to the

Merit Systems Protection Board. See 5 U.S.C. §§ 7512, 7513(d),

7701. As part of the remedies available under the CSRA, the WPA

allows an employee who has suffered from a "prohibited personnel

practice" -- which includes retaliation for disclosing what the

employee reasonably believes to be evidence of any violation of

law or waste of funds -- to obtain reinstatement, as well as back

pay (but not double back pay), consequential damages, and

compensatory damages. Id. § 1221(g)(1)(A); see id. § 2302(b)(8);

see generally Mount v. Dep't of Homeland Sec., 937 F.3d 37, 41-42

(1st Cir. 2019) (discussing the WPA's relationship to the CSRA and

our court's jurisdiction over whistleblower claims). Under the

WPA, certain exhaustion requirements must be met prior to bringing

suit in federal court. See 5 U.S.C. § 1214(a)(3), (c); see also

Mount, 937 F.3d at 44-45. Mr. Sargent did not bring his

retaliation claim under the WPA; instead, his claim sounds in the

FCA's retaliation provision only.

B. Sovereign Immunity

1. Suit Against the United States

Mr. Sargent's suit is, in effect, a suit against the

federal government. Mr. Sargent sues the Secretary in his official

capacity, not his personal capacity. Our court has long held that

- 11 - official-capacity suits are "in all respects other than name, to

be treated as . . . suit[s] against the [government] entity,"

Goldstein v. Galvin, 719 F.3d 16, 23 (1st Cir. 2013) (quoting

Kentucky v. Graham, 473 U.S. 159, 166 (1985)). This is true "even

when pondering jurisdictional and quasi-jurisdictional issues."

Am. Policyholders Ins. Co. v. Nyacol Prods., Inc., 989 F.2d 1256,

1260 (1st Cir. 1993). Thus, Mr. Sargent's suit is "not a suit

against the [Secretary] personally," Kentucky, 473 U.S. at 166,

but rather "against the governmental entity which the [Secretary]

heads": the Department of Veterans Affairs. Nyacol Prods., 989

F.2d at 1259. And ultimately it is "a suit against the United

States," because the "relief sought nominally against" the

Secretary -- double back pay, interest, and special damages -- "is

in fact against the sovereign." State of Hawaii v. Gordon, 373

U.S. 57, 58 (1963). It would "expend itself on the public

treasury." Muirhead v. Mecham, 427 F.3d 14, 18 (1st Cir. 2005)

(quoting Dugan, 372 U.S. at 620).

We observe that Mr. Sargent appeals from the district

court's dismissal of his retaliation claim only as to the

Secretary, abandoning any retaliation claim against his

supervisors. In his amended complaint, Mr. Sargent asserted the

retaliation count against unspecified "defendants" -- presumably

all three -- and argued that defendants' wrongful acts caused him

substantial harm. The district court, however, relied on

- 12 - persuasive guidance from other circuits to note that the "FCA does

not authorize claims against individual supervisors for their role

in FCA-related retaliation, so [the Secretary] would be the only

viable defendant on the § 3730 claim." Sargent, 2024 WL 5159170,

at *1 n.1.

This court has not yet addressed conclusively whether

the FCA retaliation provision, in its current form, subjects

individual supervisors to suit.3 But Mr. Sargent does not pursue

this issue on appeal, framing his second claim (for retaliation)

as "against VA Secretary Denis McDonough," while failing to

meaningfully argue that the district court erred by interpreting

Section 3730(h) not to reach his individual supervisors.4 In this

3Before 2009, Section 3730(h) expressly limited liability to employers, but Congress deleted the word "employer" when it amended the provision in 2009. See Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4(d), 123 Stat. 1617, 1624-25. Two of our sister circuits reason that this was "to account for the broadening of the class of FCA plaintiffs to include 'contractors' and 'agents,' not to provide liability for individual, non-employer defendants," and that the provision continues to "create[] a cause of action against only a plaintiff's employer." Howell v. Town of Ball, 827 F.3d 515, 530 (5th Cir. 2016); see also United States ex rel. Strubbe v. Crawford Cnty. Mem'l Hosp., 915 F.3d 1158, 1167 (8th Cir. 2019). District courts in our circuit have relied on this guidance. See, e.g., United States ex rel. Karvelas v. Tufts Shared Servs., Inc., 433 F. Supp. 3d 174, 180–81 (D. Mass. 2019); Sargent, 2024 WL 5159170, at *1 n.1. Because Mr. Sargent does not clearly reprise his retaliation claim against Ms. Davis or Mr. Stapley on appeal, we need not resolve the issue here. 4Mr. Sargent does generally assert that Davis and Stapley are not the types of federal employees against which FCA claims are barred, and that actions against all other government employees

- 13 - circuit, "[w]e do not decide an argument not presented to us." In

re Fin. Oversight & Mgmt. Bd. for P.R., 948 F.3d 457, 476 n.18

(1st Cir. 2020). Accordingly, the Secretary is the only defendant

relevant to this appeal, and the suit is solely against the United

States.

Herein lies the problem for Mr. Sargent. "Absent a

waiver, sovereign immunity shields the Federal Government and its

agencies from suit," Dolan v. U.S. Postal Serv., 546 U.S. 481, 484

(2006) (quoting Meyer, 510 U.S. at 475), including in the FCA

context. See, e.g., Wood ex rel. U.S. v. Am. Inst. in Taiwan, 286

F.3d 526, 528, 530-32, 535 (D.C. Cir. 2002) (holding that a

consular-services institute acting as an "agency or

instrumentality" of the United States "enjoy[ed] sovereign

immunity" from suit under the FCA). The government's sovereign

immunity bars Mr. Sargent's suit unless Congress has waived its

immunity to FCA-based retaliation claims. As discussed below, it

has not.

like Davis and Stapley are not barred. But here and elsewhere, Mr. Sargent seems to be discussing his underlying Section 3729(a) claim against Ms. Davis and Mr. Stapley or providing background on the retaliation for which he ultimately blames the Secretary. Because "[i]t is not our task to devise alternative arguments that have not been pressed on appeal," we need not consider whether to disrupt the district court's conclusion that the Secretary was the only viable defendant. In re RJF Int'l Corp. for Exoneration from or Limitation of Liab., 354 F.3d 104, 107 (1st Cir. 2004).

- 14 - 2. Express Waiver

Waivers of federal sovereign immunity "must be

'unequivocally expressed' in statutory text." FAA v. Cooper, 566

U.S. 284, 290 (2012) (quoting Lane v. Peña, 518 U.S. 187, 192

(1996)). A waiver "cannot be implied." Franconia Assocs. v.

United States, 536 U.S. 129, 141 (2002) (quoting United States v.

King, 395 U.S. 1, 4 (1969)). Consequently, Mr. Sargent's claim

can only survive if Section 3730, or some other provision,

expressly waives the U.S. government's sovereign immunity.5 Our

sister circuits have reached the conclusion that "[t]here is no

express waiver of sovereign immunity in the FCA." Shaw v. United

States, 213 F.3d 545, 548 (10th Cir. 2000); see also King v. United

States, 878 F.3d 1265, 1267 (11th Cir. 2018); Wood, 286 F.3d at

534-35; LeBlanc v. United States, 50 F.3d 1025, 1030 (Fed. Cir.

1995). We agree.

i. Section 3730(h)

To start, nothing in the operative provision of the FCA

waives the federal government's sovereign immunity. The specific

section governing relief from retaliatory actions,

5 Mr.Sargent asserts that the district court had jurisdiction over his claim pursuant to 28 U.S.C. § 1331, a general jurisdictional statute. But this court has previously explained that Section 1331 "do[es] not waive sovereign immunity and therefore cannot be the basis for jurisdiction over a civil action against the federal government." Berman v. United States, 264 F.3d 16, 20 (1st Cir. 2001).

- 15 - Section 3730(h), simply provides that employees are "entitled to

all relief necessary" if they face retaliation "in the terms and

conditions of employment because of lawful acts done . . . in

furtherance of" an FCA action or to stop FCA violations. 31 U.S.C.

§ 3730(h)(1). It does not specify that federal employees can

obtain such relief, nor does it expressly indicate that employees

can sue the federal government.

Mr. Sargent argues that the "any employee" language in

Section 3730(h)(1) includes him and, therefore, allows his claim.

To be sure, this language does not exclude federal employees and

seems, in a vacuum, broad enough to include them. Without more,

however, the "any employee" language in Section 3730(h) is too

generic to constitute an "unequivocally expressed" waiver of

sovereign immunity, which is a "quite stringent" standard that

requires construing language "strictly . . . in favor of the

sovereign." See In re Rivera Torres, 432 F.3d 20, 23-24 (1st Cir.

2005) (first quoting Dep't of the Army v. Blue Fox, Inc., 525 U.S.

225, 261 (1999); and then quoting Orff v. United States, 545 U.S.

596, 601-602 (2005)). To the extent the "any employee" language

introduces an ambiguity, we construe such ambiguities "against

waiver." Id. at 24; see Cooper, 566 U.S. at 290 ("Any ambiguities

in the statutory language are to be construed in favor of

immunity."); see also LeBlanc, 50 F.3d at 1030 (concluding that

while the "any employee" language in Section 3730(h) creates "a

- 16 - substantive right to relief from" an employer, "the mere existence

of a right is not enough" to create "by implication" an

FCA-specific remedy for federal employees, beyond the remedies

provided by the WPA, absent a "waiver of sovereign immunity").

Further, we do not read this language in a vacuum: we

read it in the statutory context of the FCA. The Supreme Court

has observed that the FCA is designed to "protect the funds and

property of the Government," Polansky, 599 U.S. at 424 (quoting

Rainwater v. United States, 356 U.S. 590, 592 (1958)) -- not to

allow judgments against the federal government that necessarily

deplete those resources via suits against federal employers.

Though the retaliation provision "encourage[s] the filing of qui

tam actions and protect[s] whistle-blowers," Maturi, 413 F.3d at

172, that provision must be read within the broader context of the

FCA. See generally West Virginia v. EPA, 597 U.S. 697, 721 (2022)

(explaining that construing statutes in context is fundamental);

Dolan, 546 U.S. at 486 (explaining that "[i]nterpretation of a

word or phrase depends upon reading the whole statutory text," and

"considering . . . context"). We fail to see how Mr. Sargent's

suit, which seeks double back pay from the government's coffers

via the Department of Veterans Affairs, would protect the

government's funds. See Polansky, 599 U.S. at 424. On the

contrary, it would deplete those funds. In this overall context,

it makes the most sense to interpret the FCA anti-retaliation

- 17 - provision to "prevent companies from discouraging potential

relators from coming forward" -- a construct that applies to the

private sector. Harrington v. Aggregate Indus. Ne. Region, Inc.,

668 F.3d 25, 30 (1st Cir. 2012) (emphasis added). Under our

interpretation, Section 3730(h) will continue to dissuade

private-sector companies from retaliating against relators even as

federal employers remain immune from suit under the FCA and federal

employees can continue to seek relief under the WPA.

ii. Section 3730(e)

We look next to Section 3730(e). That provision

expressly states that courts lack jurisdiction over some asserted

WPA claims, namely, certain actions brought by military personnel

or against members of Congress, members of the judiciary, or senior

executive branch officials, as defined by 5 U.S.C. § 13103(f).

31 U.S.C. § 3730(e)(1)-(2). Mr. Sargent argues that, per the

expressio unius est exclusio alterius principle of statutory

interpretation, we should read Section 3730(e) as barring

retaliation claims against only those government employees

expressly identified in that subsection while permitting courts to

exercise jurisdiction over claims against all other government

employees.

We disagree. First, the plain text of Section 3730(e)

makes clear that it only relates to courts' jurisdiction over qui

tam actions for false claims "brought in the name of the

- 18 - Government" under Section 3730(b), and not retaliation suits

brought under Section 3730(h). See 31 U.S.C. § 3730(b), (e).

Whereas Section 3730(e) does not reference Section 3730(h) or

retaliation, it repeatedly tethers its jurisdiction-stripping

provisions to Section 3730(b). Id. § 3730(e)(1) ("No court shall

have jurisdiction over an action . . . under subsection (b) of

this section against a member of the armed forces . . . .")

(emphasis added); see also id. § 3730(e)(2)(A) ("No court shall

have jurisdiction over an action brought under subsection (b)

against a Member of Congress, a member of the judiciary, or a

senior executive branch official . . . .") (emphasis added).

Second, though useful in other contexts, the expressio unius maxim

is ill-suited to identifying an express waiver of sovereign

immunity. Were we to apply the maxim as Mr. Sargent invites us to

do, we would in effect be inferring that Congress waived sovereign

immunity for all government employees it did not identify in

Section 3730(e). This we cannot do. See Skwira v. United States,

344 F.3d 64, 73 (1st Cir. 2003) ("[A]ny waiver of sovereign

immunity 'cannot be implied but must be unequivocally expressed.'"

(quoting King, 395 U.S. at 4)).

For these reasons, we decline to adopt Mr. Sargent's

interpretation of Section 3730(e)(2)(A). Instead, like one of our

sister circuits, we reject the premise that Section

3730(e)(2)(A)'s "exemption of certain officials from

- 19 - liability . . . implies that all other government entities are

suable" and instead interpret Section 3730(e)(2)(A)'s "explicit

but limited immunity for individuals holding specified offices" as

being "completely consistent with an assumed immunity for

government entities themselves." Galvan v. Fed. Prison Indus.,

Inc., 199 F.3d 461, 467 (D.C. Cir. 1999).

iii. Other FCA Provisions

Considering the FCA more broadly, 31 U.S.C.

§§ 3729-3733, we see no other basis to find a waiver of sovereign

immunity. The first section, Section 3729, describes the types of

conduct that can make someone "liable to the United States

Government for a civil penalty," and the ways in which damages may

be reduced, id. § 3729(a)(1)–(2); no waiver language appears. Id.

§ 3729. The section relevant to Mr. Sargent's action, Section

3730, assigns responsibility to the Attorney General for

investigating violations of Section 3729; empowers private persons

to bring civil actions "in the name of the Government"; outlines

the process for the government to intervene in and dismiss FCA

actions; describes awards for qui tam plaintiffs; expressly strips

jurisdiction over false claims suits against certain individuals;

states that the government is not liable for relators' expenses in

bringing qui tam actions; and describes relief for retaliatory

actions. Id. § 3730. Nowhere in Section 3730 has Congress

expressly waived sovereign immunity or invited suit against the

- 20 - government. And no such language appears in subsequent sections,

either, which describe procedure, venue, and civil investigative

demands, respectively. See id. §§ 3731-3733.

Mr. Sargent attempts to overcome the lack of waiver

language in the statute by pointing out that nothing in

Section 3730 mentions a requirement for federal employees to file

their related FCA retaliation claims elsewhere. But the government

need not expressly "mention" its immunity from suit, which exists

by default -- it need only expressly waive it, and it has not done

so here. Similarly, Mr. Sargent protests that the FCA does not

suggest that federal whistleblowers should get a lesser remedy

than double back pay. But we do not find it relevant that Congress

did not expressly discuss federal employers in the FCA,

because -- by default -- they cannot be sued. Instead, what

matters is that Congress did not state that federal employers could

be sued. As the government aptly observes, Mr. Sargent gets the

clear-statement rule for sovereign immunity precisely backwards.

iv. Other Statutes

Contrasting Section 3730's language with that of other

statutes that do expressly waive federal sovereign immunity

highlights the lack of any express waiver here. For example, the

Public Vessels Act and the Suits in Admiralty Act both include

waivers of sovereign immunity. See Thames Shipyard & Repair Co.

v. United States, 350 F.3d 247, 253 (1st Cir. 2003). They

- 21 - explicitly state that "[a] civil action . . . may be

brought . . . against the United States" for "damages" or

"compensation," 46 U.S.C. § 31102(a), and "a civil action in

admiralty . . . may be brought against the United States,"

46 U.S.C. § 30903(a). Other statutes do likewise. See, e.g.,

5 U.S.C. § 702 ("An action in a court of the United States [for

wrongful agency action] . . . shall not be dismissed . . . on the

ground that it is against the United States . . . ."); 28 U.S.C.

§ 2674 ("The United States shall be liable . . . in the same manner

and to the same extent as a private individual under like

circumstances . . . ."); 28 U.S.C. § 1491(a)(1) ("The United

States Court of Federal Claims shall have jurisdiction to render

judgment upon any claim against the United States

founded . . . upon any express or implied contract with the United

States . . . ."). These waivers are specific and unequivocal. By

contrast, as discussed, Section 3730 includes no such unmistakable

language.

Mr. Sargent mentions several other statutes on which he

claims the FCA whistleblower section was based. But he provides

no support for this claim, and even if it were true, "[l]egislative

history cannot supply a waiver that is not clearly evident from

the language of the statute." Cooper, 566 U.S. at 290.

Mr. Sargent does not even attempt to analogize to the statutes he

cites -- which makes sense, because they contain the sort of

- 22 - express waivers that the FCA retaliation provision lacks. See,

e.g., 42 U.S.C. § 7604 (expressly allowing citizen suits

"against . . . the United States" to enforce the Clean Air Act

(emphasis added)); 33 U.S.C. § 1365 (same, for the Clean Water

Act). We see no reason to construe the FCA differently based on

these statutes.

v. Policy

Finally, we address Mr. Sargent's policy arguments.

Mr. Sargent argues that it makes no sense that the FCA would

incentivize employees to bring attention to false claims, but that

he -- as a federal employee -- would be limited to single back pay

under the WPA, rather than the double back pay allowed for others

under the FCA itself, as recompense for any retaliatory actions

taken against him. This policy argument does not change our

conclusion given the plain text of the FCA.

Ultimately, Mr. Sargent's criticism takes aim at the

logic, or illogic, of Congress's drafting. But that is beyond the

purview of this court. Our role, prescribed by Article III of the

Constitution, is to "declare what the law is, not what we think

the law should be" or could be, had Congress drafted the FCA

differently. Oklahoma v. Castro-Huerta, 597 U.S. 629, 656 (2022).

"Our task in deciding this case . . . is not to fashion the rule

we deem desirable but to identify the rule that Congress

fashioned." Green v. Bock Laundry Mach. Co., 490 U.S. 504, 508

- 23 - (1989). Mr. Sargent's policy arguments are "better directed to

those who make the laws than those charged with following them,"

as it is Congress who provided different remedies and opted not to

waive sovereign immunity under the FCA. Ysleta Del Sur Pueblo v.

Texas, 596 U.S. 685, 706 (2022). While we "appreciate

[Mr. Sargent's] concerns," ultimately, "they do not persuade us,"

because it "is not our place to question whether Congress adopted

the wisest or most workable policy, only to discern and apply the

policy it did adopt." Id.6

III.

For all these reasons, we hold that Congress has not

expressly waived the federal government's sovereign immunity to

permit retaliation suits against federal employers under Section

3730(h) of the FCA. We affirm the district court's judgment

dismissing the action for lack of subject-matter jurisdiction.

6 Finally, we note that Mr. Sargent seems to suggest that the district court should exercise supplemental jurisdiction over his retaliation claim because it is tied to an FCA claim against Davis and Stapley in their individual capacities. This claim, however, has already been dismissed. Sargent, 2024 WL 809902, at *2. Moreover, the supplemental jurisdiction statute, 28 U.S.C. § 1367, does not waive sovereign immunity and therefore would not change our analysis in any event. See Wilkerson v. United States, 67 F.3d 112, 119 n.13 (5th Cir. 1995) ("Section 1367(a) . . . does not operate as a waiver of the United States sovereign immunity.").

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