A federal judge has certified for immediate appeal the first impression issue of whether anti-retaliation provisions in the False Claims Act apply to an employee who filed a whistleblower suit against a former, unrelated employer.

Although U.S. District Chief Judge Joy Flowers Conti of the Western District of Pennsylvania denied Mylan Pharmaceuticals' motion to dismiss a retaliation claim brought by a fired Mylan employee, who had pursed a qui tam action against his previous employer, Cephalon, she further decided to certify the issue for appeal to the U.S. Court of Appeals for the Third Circuit.

Conti said there was substantial ground for a difference of opinion on whether the anti-retaliation language in the FCA applied only to an employer that was the subject of a whistleblower action, or if it also related to an employer that fired an employee after discovering the employee was a whistleblower against a former, unrelated employer.