The opinion
Reversed by Supreme Court, June 20, 2005
Certiorari granted, January 7, 2005
FILED: May 25, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1122
(CA-01-19-2)
UNITED STATES OF AMERICA ex rel. KAREN T.
WILSON,
Plaintiff - Appellant,
versus
GRAHAM COUNTY SOIL & WATER CONSERVATION
DISTRICT; CHEROKEE COUNTY SOIL & WATER
CONSERVATION DISTRICT; RICHARD GREENE;
WILLIAM TIMPSON; KEITH ORR; RAYMOND WILLIAMS;
DALE WIGGINS; GERALD PHILLIPS; ALLEN DEHART;
LLOYD MILLSAPS; JERRY WILLIAMS; BILLY BROWN;
LYNN CODY; BILL TIPTON; C. B. NEWTON; EDDIE
WOOD; GRAHAM COUNTY,
Defendants - Appellees,
and
GRAHAM COUNTY BOARD OF COUNTY COMMISSIONERS;
CHEROKEE COUNTY BOARD OF COUNTY
COMMISSIONERS; CHERIE GREENE; RICKY STILES;
BETTY JEAN ORR; JOYCE LANE; JIMMY ORR; EUGENE
MORROW; CHARLES LANE; CHARLES LANEY; GEORGE
POSTELL; LLOYD KISSLEBURG; TED ORR; BERNICE
ORR; JOHN DOE; JOHN DOE CORPORATIONS, and
defendant; GOVERNMENT ENTITIES 1-99
Defendants.
O R D E R
The court further amends its opinion filed April 29, 2004, and
amended May 10, 2004, as follows:
On page 11, footnote 10, line 2, “Post at 18.” is added after
the first sentence. On page 12, line 1 of the footnote,
“Certainly, arrangement that follows” is corrected to read
“Certainly, the arrangement that follows.”
For the Court - By Direction,
/s/ Patricia S. Connor
Clerk
FILED: May 10, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-1122
(CA-01-19-2)
UNITED STATES OF AMERICA ex rel. KAREN T.
WILSON,
Plaintiff - Appellant,
versus
GRAHAM COUNTY SOIL & WATER CONSERVATION
DISTRICT; CHEROKEE COUNTY SOIL & WATER
CONSERVATION DISTRICT; RICHARD GREENE;
WILLIAM TIMPSON; KEITH ORR; RAYMOND WILLIAMS;
DALE WIGGINS; GERALD PHILLIPS; ALLEN DEHART;
LLOYD MILLSAPS; JERRY WILLIAMS; BILLY BROWN;
LYNN CODY; BILL TIPTON; C. B. NEWTON; EDDIE
WOOD; GRAHAM COUNTY,
Defendants - Appellees,
and
GRAHAM COUNTY BOARD OF COUNTY COMMISSIONERS;
CHEROKEE COUNTY BOARD OF COUNTY
COMMISSIONERS; CHERIE GREENE; RICKY STILES;
BETTY JEAN ORR; JOYCE LANE; JIMMY ORR; EUGENE
MORROW; CHARLES LANE; CHARLES LANEY; GEORGE
POSTELL; LLOYD KISSLEBURG; TED ORR; BERNICE
ORR; JOHN DOE; JOHN DOE CORPORATIONS, and
defendant; GOVERNMENT ENTITIES 1-99,
Defendants.
O R D E R
The court amends its opinion filed April 29, 2004, as
follows:
On page 8, footnote 6, in line 1 of paragaph 1 and lines 1
and 5 of paragraph 2: the word “canons” replaces “cannons.”
For the Court - By Direction,
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA ex rel.
KAREN T. WILSON,
Plaintiff-Appellant,
v.
GRAHAM COUNTY SOIL & WATER
CONSERVATION DISTRICT; CHEROKEE
COUNTY SOIL & WATER
CONSERVATION DISTRICT; RICHARD
GREENE; WILLIAM TIMPSON; KEITH
ORR; RAYMOND WILLIAMS; DALE
WIGGINS; GERALD PHILLIPS; ALLEN
DEHART; LLOYD MILLSAPS; JERRY
WILLIAMS; BILLY BROWN; LYNN
CODY; BILL TIPTON; C. B. NEWTON;
EDDIE WOOD; GRAHAM COUNTY, No. 03-1122
Defendants-Appellees,
and
GRAHAM COUNTY BOARD OF COUNTY
COMMISSIONERS; CHEROKEE COUNTY
BOARD OF COUNTY COMMISSIONERS;
CHERIE GREENE; RICKY STILES; BETTY
JEAN ORR; JOYCE LANE; JIMMY ORR;
EUGENE MORROW; CHARLES LANE;
CHARLES LANEY; GEORGE POSTELL;
LLOYD KISSLEBURG; TED ORR;
BERNICE ORR; JOHN DOE; JOHN DOE
CORPORATIONS, and defendant;
GOVERNMENT ENTITIES 1-99,
Defendants.
2 UNITED STATES v. GRAHAM COUNTY SOIL
Appeal from the United States District Court
for the Western District of North Carolina, at Bryson City.
Lacy H. Thornburg, District Judge.
(CA-01-19-2)
Argued: October 28, 2003
Decided: April 29, 2004
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Vacated and remanded by published opinion. Judge Duncan wrote the
opinion, in which Judge Michael joined. Judge Wilkinson wrote a dis-
senting opinion.
COUNSEL
ARGUED: Mark Tucker Hurt, Abingdon, Virginia, for Appellant.
Ben Oshel Bridgers, BRIDGERS & RIDENOUR, Sylva, North Caro-
lina, for Appellees. ON BRIEF: Brian S. McCoy, Rock Hill, South
Carolina, for Appellant. Scott D. MacLatchie, WOMBLE, CAR-
LYLE, SANDRIDGE & RICE, Charlotte, North Carolina; Jill
Hickey, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellees.
OPINION
DUNCAN, Circuit Judge:
Karen Wilson brought a qui tam action under the Federal False
Claims Act, 31 U.S.C. §§ 3729-3733 (2000) ("the FCA" or "the
Act"), alleging that her coworkers had submitted false claims to the
federal government in violation of the FCA and that she was con-
structively discharged in retaliation for reporting these activities.
Deciding that the six-year limitations period of the FCA did not apply
UNITED STATES v. GRAHAM COUNTY SOIL 3
to the retaliation claim, the district court applied North Carolina’s
three-year limitations period for wrongful discharge actions and dis-
missed Wilson’s claim as untimely. Because we conclude that the six-
year limitations period of the FCA does apply to retaliation claims
under the Act, we reverse the district court’s dismissal and remand for
further proceedings.
I.
Wilson is a former part-time secretary at the Graham County Soil
& Water Conservation District ("the Conservation District"). On Jan-
uary 25, 2001, Wilson filed a qui tam action pursuant to § 3730(b) of
the FCA, alleging that several of her former coworkers at the Conser-
vation District had intentionally submitted false claims for reimburse-
ment from three programs created or funded by the federal
government. Wilson’s complaint further alleged that after she
reported her concerns in a letter to federal authorities, her supervisors
and coworkers initiated a pattern of harassment that precipitated her
resignation on March 7, 1997.
The Appellees moved to dismiss Wilson’s claims under Federal
Rule of Civil Procedure 12(b)(6). The Appellees argued that the
FCA’s statute of limitations did not apply to retaliation, and thus the
timeliness of Wilson’s claim should be controlled by North Carolina’s
three-year statute of limitations for wrongful discharge. The district
court concluded that applying the FCA’s limitations provision to
retaliation claims could lead to absurd results, and that the timeliness
of Wilson’s claim should be controlled by North Carolina law. Agree-
ing with the Appellees that the closest analogous limitations period
was the three-year period applicable to claims of wrongful discharge,
see N.C. Gen. Stat. § 1-52(5) (1999), the district court concluded that
the retaliation claim in Wilson’s complaint of January 25, 2001, based
on her constructive discharge of March 7, 1997, was untimely.
Wilson filed a motion for reconsideration of the statute of limita-
tions issue. The district court denied Wilson’s request for reconsidera-
tion, but certified its order for interlocutory appeal pursuant to 28
U.S.C. § 1292(b) (2000). We granted Wilson’s timely petition for
authorization to pursue this appeal.
4 UNITED STATES v. GRAHAM COUNTY SOIL
II.
We review de novo the district court’s order granting the Appel-
lees’ Rule 12(b)(6) motion to dismiss, Franks v. Ross, 313 F.3d 184,
192 (4th Cir. 2002), as well as its statutory construction of the FCA,
see United States v. Jefferson-Pilot Life Ins. Co., 49 F.3d 1020, 1021
(4th Cir. 1995). It is axiomatic that when interpreting a statute, the
starting point is the language employed by Congress, Am. Tobacco
Co. v. Patterson, 456 U.S. 63, 68 (1982), and where "the statute’s lan-
guage is plain, ‘the sole function of the courts is to enforce it accord-
ing to its terms,’" United States v. Ron Pair Enter., Inc., 489 U.S.
235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470,
485 (1917)). In determining whether the language is plain, courts
must look to "‘the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole.’"
Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). If the language
of the statute is ambiguous, in that it lends itself to more than one rea-
sonable interpretation, our obligation is "to find that interpretation
which can most fairly be said to be imbedded in the statute, in the
sense of being most harmonious with its scheme and with the general
purposes that Congress manifested." Comm’r v. Engle, 464 U.S. 206,
217 (1984) (internal quotation omitted). A departure from the literal
text of a statute is also appropriate if "a literal application would frus-
trate the statute’s purpose or lead to an absurd result." Nat’l Coalition
for Students with Disabilities Educ. & Legal Def. Fund v. Allen, 152
F.3d 283, 288 (4th Cir. 1998) (quoting Robinson, 519 U.S. at 340).
Three sections of the FCA determine whether the timeliness of
Wilson’s retaliation claim is governed by the Act itself or state law.
The FCA’s limitations period, § 3731(b), provides that
[a] civil action under section 3730 may not be brought —
(1) more than 6 years after the date on which the violation
of section 3729 is committed . . . .
§ 3731(b)(1).1 Section 3730 creates three causes of action arising
1
Section 3731(b)(2) states that, in the alternative, a civil action under
§ 3730 may not be filed "more than 3 years after the date when facts
UNITED STATES v. GRAHAM COUNTY SOIL 5
under the FCA: an action for compensation filed by the Attorney
General, see § 3730(a); a qui tam action filed by an individual, see
§ 3730(b); and an action for retaliatory conduct predicated on identi-
fied protected activity, see § 3730(h). Section § 3729 creates and
defines the parameters of liability for presenting a false claim to the
Government. Hence, the effect of the language as written is to provide
that an action under § 3730, which necessarily includes an action for
retaliation under § 3730(h), may be brought no more than six years
after the date on which the underlying violation was committed.
Both the retaliation provision of § 3730(h) and the limitations pro-
vision of § 3731(b)(1) are relatively recent additions to the FCA. Prior
to 1986, the FCA did not specifically include a cause of action for
retaliation. Section § 3731(b) stated simply that "‘a civil action under
Section 3730 of this title must be brought within six years from the
date the violation is committed.’" United States ex rel. Lujan v.
Hughes Aircraft Co., 162 F.3d 1027, 1034 (9th Cir. 1998) (discussing
the 1986 amendments). Congress’s stated intent in amending the FCA
was "not only to provide the Government’s law enforcers with more
effective tools, but to encourage any individual knowing of Govern-
ment fraud to bring that information forward." S. Rep. No. 99-345, at
1-2 (1986) (hereinafter "S. Rep."), reprinted in 1986 U.S.C.C.A.N.
5266, 5267. Toward that end, Congress also added § 3730(h),2 which
material to the right of action are known or reasonably should have been
known by the official of the United States charged with responsibility to
act in the circumstances, but in no event more than 10 years after the date
on which the violation is committed." However, because neither party
advances this alternative limitations period as controlling, and "there is
no ‘official of the United States charged with responsibility to act in the
circumstances’ that are presented in a typical retaliation case," Storey v.
Patient First Corp., 207 F. Supp. 2d 431, 444 n.20 (E.D. Va. 2001), we
limit our analysis to § 3731(b)(1).
2
In full, this subsection provides that:
"Any employee who is discharged, demoted, suspended, threat-
ened, harassed, or in any other manner discriminated against in
the terms and conditions of employment by his or her employer
because of lawful acts done by the employee on behalf of the
employee or others in furtherance of an action under this section,
including investigation for, initiation of, testimony for, or assis-
tance in an action filed or to be filed under this section, shall be
entitled to all relief necessary to make the employee whole."
§ 3730(h).
6 UNITED STATES v. GRAHAM COUNTY SOIL
provides a remedy for any employee who "is discharged, demoted,
suspended, threatened, harassed, or in any other manner discriminated
against" as a result of lawful acts by the employee in furtherance of
an action under the FCA.
The proper interpretation of these provisions has divided both our
sister circuits and courts within this circuit.3 In United States ex rel.
Lujan v. Hughes Aircraft Co., the Ninth Circuit held that § 3731(b)(1)
did not apply to retaliation claims under the FCA. 162 F.3d at 1034-
36. The Lujan court reasoned that the 1986 amendments, "while
adding a provision for retaliation claims under § 3730(h), narrowed
the application of the six-year statute of limitations to violations of
§ 3729," such that the amendments "created the retaliation claim but
provided no specific statute of limitations for such claims." Id. In
view of this perceived absence of a congressionally prescribed statute
of limitations, the Ninth Circuit concluded that "the most closely anal-
ogous statute of limitations under state law" must fill the void. Id. at
1035 (citing Reed v. United Transp. Union, 488 U.S. 319, 323
(1989)).
In contrast, in an earlier decision which the court in Lujan failed
to distinguish or cite, the Seventh Circuit found no difficulty in apply-
ing § 3731(b)(1) to retaliation claims under § 3730(h). See Neal v.
Honeywell, Inc., 33 F.3d 860, 865-66 (7th Cir. 1994).4 The employer
in Neal made the same argument accepted by the district court (and
propounded by the dissent). Expressing a concern for the rights of
employees generally (although, similar to the dissent here, not the
employee who filed the complaint at issue), the employer contended
that § 3731(b)(1) could not apply to retaliation claims, as a literal
application of its terms would lead to absurd results. The Neal court
disagreed, concluding that the revised language of § 3731(b)(1)
reflected Congress’s decision to prioritize "simplicity of administra-
3
Compare Storey, 207 F. Supp. 2d at 444 (applying § 3731(b)(1) to
retaliation claims under § 3730(h)), with United States ex rel. Ackley v.
IBM, 110 F. Supp. 2d 395, 401-05 (D. Md. 2000) (assuming, without
deciding, that § 3731(b)(1) did not apply to retaliation claims under
§ 3730(h) for the reasons described by the court below).
4
Like the court in Lujan on which so much of its reasoning relies, the
dissent does not address Neal or its analysis.
UNITED STATES v. GRAHAM COUNTY SOIL 7
tion," and that the employer had mischaracterized the consequences
of a literal reading of the statute.5 Id. at 865. Against this backdrop,
we consider Wilson’s contention that the district court erred in declin-
ing to apply § 3731(b)(1) to her retaliation claim under § 3730(h).
III.
Starting, as we must, with the text of the FCA, we find no ambigu-
ity undermining the conclusion that Congress intended the revised
limitations period of § 3731(b)(1) to apply to all claims under § 3730,
including retaliation claims under § 3730(h). We are unpersuaded that
Congress’s addition of language referring to "the date on which the
violation of section 3729 is committed" was intended to exclude
§ 3730(h) from the ambit of § 3731(b)(1), and that the consequences
of the resulting statutory scheme are not absurd, but are in keeping
with the FCA’s purpose.
The dissent, like the Appellees, argues that the text of § 3731(b)(1)
"could not be more plain. The six-year period is tied to a ‘violation
of section 3729’ and nothing else." Post at 20. As explored below,
however, this assertion is demonstrably inaccurate. Section 3731(b)
could have provided that a "civil action under section 3730(a) or (b)
may not be brought more than six years from the date the violation
of § 3729 is committed." This Congress did not do. Despite its Hercu-
lean effort, the dissent cannot disguise the fact that it is asking us to
ignore what Congress expressly says: that an action under § 3730(h)
protesting retaliation is "[a] civil action under § 3730."
A.
The threshold inquiry when interpreting the text of a statute is
whether the language at issue "has a plain and unambiguous meaning
with regard to the particular dispute in the case," for if the language
is unambiguous and the "statutory scheme is coherent and consistent,"
no further inquiry is required. Robinson, 519 U.S. at 340. Indeed,
"[t]here is, of course, no more persuasive evidence of the purpose of
5
The United States’ brief in Neal, filed as an amicus curiae at the invi-
tation of the court, "concluded that the statute supports Neal without a
thumb on the scales of justice." 33 F.3d at 863.
8 UNITED STATES v. GRAHAM COUNTY SOIL
a statute than the words by which the legislature undertook to give
expression to its wishes." United States v. Am. Trucking Assns., Inc.,
310 U.S. 534, 543 (1940); see also Consumer Prod. Safety Comm’n
v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) ("Absent a clearly
expressed legislative intention to the contrary, that language must
ordinarily be regarded as conclusive."). A term in a section is ambigu-
ous only if, when considered in the larger context of the statute as a
whole, it is amenable to more than one reasonable interpretation.
Engle, 464 U.S. at 217.6
6
The dissent draws on two additional canons of statutory construction
that we find to be inapplicable to this situation. The first is that "‘[w]hen
Congress alters the wording of a statute, we must presume Congress
intended a change in the law.’" Post at 21 (quoting Lackey v. Johnson,
116 F.3d 149, 152 (5th Cir. 1997). However, the authority cited by
Lackey, Brewster v. Gage, 280 U.S. 327, 337 (1930), makes clear that
this doctrine is relevant when Congress uses language "so differing from
that used in the earlier act" that it could not but demonstrate Congress’s
intent to work a change in the law. The dissent’s reliance on Lackey is
circular, as the few newly added words on which it is predicated are so
equivocal that we must discern Congress’s intent from the remainder of
the section and its context, as we have attempted to below; the simple
fact of revision does not demonstrate intent, the text does. See United
States v. Sepulveda, 115 F.3d 882, 885 n.5 (11th Cir. 1997) (finding the
amended language of a statute to be "inconclusive" as to Congress’s
intent and analyzing the statute based on its plain language and legisla-
tive purpose).
The second is the canon "expressio unius est exclusio alterius"; that
the explicit inclusion of one or more of an obvious set signals Congress’s
intent to exclude the remainder of that set. See, e.g., United States v.
Vonn, 535 U.S. 55, 65 (2002). As the dissent acknowledges, however,
this canon is less a directive than a guide, id., and in this instance the
doctrine appears to be of dubious use. Cf. Chevron U.S.A. Inc. v. Echaza-
bal, 536 U.S. 73, 81-84 (2002) (identifying "statutory language suggest-
ing exclusiveness" and an "established series . . . from which Congress
appears to have made a deliberate choice" as two requirements that must
be met in order to justify application of the "expressio unius" doctrine,
neither of which are clearly present in the amended FCA).
UNITED STATES v. GRAHAM COUNTY SOIL 9
B.
Applying these principles to sections 3730(h) and 3731(b), we con-
clude that § 3731(b)(1) plainly applies to retaliation claims under
§ 3730(h). As noted above, the text of § 3731(b) does not exclude
§ 3730(h). Rather, the language of § 3730(b) states broadly that it
applies to "[a] civil action under section 3730." § 3730(b). Because
Congress elected not to modify this language in 1986 while adding a
third cause of action to § 3730, we conclude that Congress intended
§ 3731(b) to continue to apply to all actions under § 3730, including
the newly added cause of action for retaliation.
In contrast, we find the Appellees’ competing interpretation of
§ 3731(b)(1) to be unpersuasive, and for reasons in addition to the
fact that it requires the eliding of a provision to which the language
would otherwise apply. The Appellees point to the differences in the
provisions of § 3730 to which the six year limitations period of
§ 3731(b)(1) appears to apply. The Appellees argue that § 3730(a),
involving an action by the Attorney General, and § 3730(b), authoriz-
ing actions by individuals, are based entirely on violations of § 3729,
whereas retaliation claims under § 3730(h) are not. They reason that
because § 3731(b)(1) begins the limitations period on the "date on
which the violation of § 3729 is committed," Congress cannot have
intended § 3731(b)(1) to include § 3730(h).
This interpretation of the FCA is artificial, however, as § 3730(h)
subsumes a violation of § 3729, even if it does not do so explicitly.
By its terms, § 3730(h) protects any "lawful acts done by the
employee on behalf of the employee or others in furtherance of an
action under this section." Id. (emphasis added). Because an action
under § 3730 will not lie absent an alleged violation of § 3729, it is
clear that Congress has elected to identify a single, readily identifiable
point at which to begin the limitations periods for all actions under
§ 3730. See Neal, 33 F.3d at 865 (noting the "simplicity of adminis-
tration" afforded by the approach codified in § 3731(b)(1)). Indeed, as
noted by Judge Easterbrook, "[i]t is easier to determine the date of a
false claim than to pin down the time of retaliatory acts; the claim is
a document, but arguments about retaliation depend on oral
exchanges and are subject to failure of memory as well as the risk of
prevarication." Id. Rather than signaling by implication Congress’s
10 UNITED STATES v. GRAHAM COUNTY SOIL
intent to exclude retaliation claims from § 3731(b)(1), the amended
text of § 3731(b)(1) simply directs that the limitations period for retal-
iation claims under the FCA begins when the violation of § 3729, to
which such violations of § 3730(h) must be tethered,7 is found to have
occurred.
C.
Even if it were unclear whether Congress intended the language of
§ 3731(b)(1) to apply to actions under § 3730(h), the review of the
legislative history required by that ambiguity reinforces the conclu-
sion that the section applies to retaliation claims under the FCA. In
discussing the provisions created by the 1986 amendments, the legis-
lative history discusses "a new section 3734 under the False Claims
Act to provide ‘whistleblower’ protection." S. Rep. at 34, reprinted
in 1986 U.S.C.C.A.N. at 5299. This new section was to "provide[ ]
‘make whole’ relief" for anyone discharged for engaging in activity
protected under the Act, including anyone who is "‘discharged,
demoted, suspended, threatened, harassed, or in any other manner dis-
criminated against.’" Id. However, no such completely new section
was added. Instead, Congress added this provision to § 3730 as sub-
paragraph (h). See False Claims Amendment Act of 1986, Pub. L. No.
99-562, § 4, 100 Stat. 3153, 3157-58 (1986).8 Had § 3730(h) been
enacted as a separate section as originally contemplated by the legis-
7
Although we believe this fact to be self-evident, the dissent contends
that the filing of a false claim in violation of § 3729 and a retaliatory dis-
charge actionable under § 3730(h) are "independent" events, post at 18,
an assertion we find puzzling. If an employee’s termination is "indepen-
dent" of a violation of § 3729 and the employee’s decision to report it,
at the very least, it would not be retaliatory. Alternatively, if the termina-
tion could fairly be described as "retaliatory," but could not be tied to the
reporting of a violation of § 3729, it would be actionable not under the
FCA and § 3730(h) but under Title VII or some other statute prohibiting
employment discrimination. The events that trigger the statute of limita-
tions may precede the final event that gives rise to an action for retalia-
tion, post at 20, but that fact does not render the events "independent" of
one another.
8
In the version of the amendments proposed by the House of Represen-
tatives, the retaliation provision was to be included as § 3730(g). See
H.R. Rep. No. 99-660, at 12-14 (1986).
UNITED STATES v. GRAHAM COUNTY SOIL 11
lative history to the 1986 amendments, a claim of retaliation under the
FCA would not constitute "[a] civil action under § 3730," and thus
Congress’s intent to have courts apply the most analogous state stat-
ute of limitations would be clear. See Reed v. United Transp. Union,
488 U.S. 319, 323-24 (1989). Hence, Congress’s relocation of the
retaliation provision to § 3730 reinforces the conclusion that Congress
intended the six-year limitations provision of § 3731(b)(1) to apply.
Cf. Russello v. United States, 464 U.S. 16, 23-24 (1983) ("Where
Congress includes limiting language in an earlier version of a bill but
deletes it prior to enactment, it may be presumed that the limitation
was not intended.").9
IV.
As an alternative basis to facial ambiguity for exempting Wilson’s
retaliation claim from the six-year limitations period of the FCA, the
Appellees press the district court’s conclusion that a literal application
of the text of § 3731(b)(1) to retaliation claims under § 3730(h) would
lead to absurd results. The Appellees posit two variations on this
theme. The first arises from the fact that § 3731(b)(1) effectively
begins the limitations period for retaliation claims before the act of
retaliation occurs. The second arises from the Appellees’ reading the
term "violation" in § 3731(b)(1) to require an actual and substantiated
violation of § 3729. We consider in turn whether either of these hypo-
thetical situations constitutes an absurd result.10
9
We note that Lujan did not consider this legislative history in con-
cluding that "[i]n the absence of some meaningful indication to the con-
trary, we must therefore presume that, in amending section 3731(b) . . .
Congress did not intend that the statute apply to section 3730(h)." 162
F.3d at 1035 (emphasis added).
10
The dissent describes this discussion as an attempt to advance "a
number of policy rationales to support [our] result." Post at 18. The dissent neglects
to point out that these purported "policy rationales" are merely an explo-
ration of the consequences that flow directly from the text of the FCA
itself, and are offered to demonstrate only that the statute means pre-
cisely what the statute says. In contrast, the dissent offers a number of
policy rationales for its competing construction of § 3731(b), which con-
siders only a part of the language added by Congress in 1986. More
importantly, the dissent’s dissertation fails to demonstrate that any of the
12 UNITED STATES v. GRAHAM COUNTY SOIL
A.
In support of their argument that § 3731(b)(1) may, in certain cir-
cumstances, foreclose a claim for retaliation before it accrues, the
Appellees offer two specific examples. First, an employer may, if the
whistle-blowing employee has reported a false claim that the
employer submitted several years earlier, elect to wait-out the limita-
tions period before terminating or otherwise retaliating against that
employee. Or, an employee may report a § 3729 violation that is so
old that the limitations period expires shortly after the employee
reports the violation, effectively leaving the employee unprotected.
However, neither result is necessarily absurd.
As a threshold matter, we note that statutes of repose have the same
effect. Yet we find no absurdity in Congress’s prerogative to limit the
rights it creates in this manner. "Statutes of repose, increasingly com-
mon in tort cases, have the potential to block litigation before the tort
occurs." Neal, 33 F.3d at 865. Assuming that this is indeed "what
Congress had intended to accomplish by way of the limitation period
contained in the False Claims Act, ‘that would not condemn [those
provisions] as absurd. It would show only that Congress had opted for
simplicity of administration.’" Storey v. Patient First Corp., 207 F.
Supp. 2d 431, 444 (E.D. Va. 2001) (alteration in original) (quoting
Neal, 33 F.3d at 865).
consequences identified here are absurd. Certainly, the arrangement that fol-
lows from the plain text of the § 3731(b) is a departure from the limita-
tions periods generally applicable to claims of retaliation, and the dissent
points out the merit of the usual scheme. Nevertheless, when Congress’s
intent to endorse the benefits and consequences of one statutory scheme
over another is clear from the text of the statute, as we conclude it is
here, "[t]he wisdom of Congress’ action . . . is not within our province
to second guess." Eldred v. Ashcroft, 537 U.S. 186, 222 (2003).
To the extent the dissent cannot fathom why "the majority go[es] to
such extraordinary lengths" to resist his views, post at 23, we can only
proffer our obligation to apply Congress’s language as written. Congress
has the discretion to designate the starting point for the running of the
statute of limitations period it imposes. When it does so, as it has here,
we do not feel it appropriate to substitute one we prefer. Eldred, 537 U.S.
at 222.
UNITED STATES v. GRAHAM COUNTY SOIL 13
Second, courts have recognized that there is, as a practical matter,
a close temporal relationship between a protected act and the retalia-
tory conduct based on it. See Neal, 33 F.3d at 865-66; Storey, 207 F.
Supp. 2d at 446 (citing Grand ex rel. United States v. Northrop Corp.,
811 F. Supp. 333, 336 (S.D. Ohio 1986)). As a result, there would be
few instances in which several years would pass between the viola-
tion, the protected conduct, and the retaliatory act. Additionally, the
length of the limitations period in § 3731(b)(1) lessens the likelihood
that the purportedly absurd consequences advanced by the Appellees
would occur. Moreover, the six years provided from the date of the
violation should be sufficient to encompass the protected act and the
retaliation, lest they both face challenges for attenuation and stale-
ness.
Even assuming the hypothetical circumstances described by the
Appellees occur, the doctrines of equitable tolling or equitable estop-
pel may provide relief. Neal, 33 F.3d at 866. These doctrines are
"based primarily on the view that a defendant should not be permitted
to escape liability by engaging in misconduct that prevents the plain-
tiff from filing his or her claim on time." English v. Pabst Brewing
Co., 828 F.2d 1047, 1049 (4th Cir. 1987). In those instances where
the employer has delayed a retaliatory termination until the statute of
limitations has run, the employee’s failure to file in timely fashion
may fairly be described as "the consequence . . . of a deliberate design
by the employer," such that the employer could be barred from raising
the limitations period as a defense under the doctrine of equitable
estoppel. Id. (internal quotation omitted).11 Ultimately, the speculation
11
As an additional matter, we note that none of the various potentially
absurd outcomes identified by the Appellees’ brief would arise under the
facts presented in this case. This too counsels against adopting the
Appellees’ construction of the FCA here. This court’s function in inter-
preting a statute is "to determine whether the language at issue has a
plain and unambiguous meaning with regard to the particular dispute in
the case." Robinson, 519 U.S. at 340 (emphasis added). While we are not
convinced that any of the consequences advanced by the Appellees as a
result of applying § 3731(b)(1) to retaliation claims under the Act are
absurd, the fact that none of these consequences arise in the context of
Wilson’s retaliation claim reinforces our conclusion that these arguments
in favor of applying the North Carolina statute should not be dispositive
on appeal.
14 UNITED STATES v. GRAHAM COUNTY SOIL
that a plain-text application of the FCA’s amended language could
yield an absurd result in a limited category of hypothetical cases
stands in stark contrast to the decidedly unfavorable result that inter-
pretation would have on the retaliation claim at issue here. The result
which would flow from the interpretation advanced by the Appellees
and the dissent would comport with neither Congress’s stated intent
in amending the FCA ". . . to encourage any individual knowing of
Government fraud to bring that information forward," S. Rep. at 1-2,
reprinted in U.S.C.C.A.N. at 5267, nor with the liberal interpretation
to be accorded to remedial legislation, Neal, 33 F.3d at 862.
B.
Nor are we convinced by the Appellees’ contention that, if courts
must look to when "the violation of section 3729 is committed,"
applying § 3731(b)(1) to a retaliation claim under the Act would have
the absurd result of withholding retaliation protection until an action
under § 3730(a) or (b) proves that such a violation actually occurred.
While subparagraph 1 of § 3731(b), when read in isolation, is suscep-
tible to a reading that begins the limitations period with a proven vio-
lation rather than an alleged violation, see Ackley, 110 F. Supp. 2d at
402, we are not persuaded this construction is appropriate, particu-
larly when read in the broader context of the FCA.
As a threshold matter, the Appellees’ construction of "violation,"
even when read in isolation, arguably reduces § 3731(b)(1) to surplus-
age. If the term "violation" in § 3731(b)(1) is read to require a judi-
cially substantiated violation of § 3729 as the Appellees contend, that
provision could not serve as the limitations period for the very actions
under § 3730(a) or § 3730(b) necessary to prove such a violation. So
read, § 3730(b)(1) would not apply to any action under § 3730.
Expanding the inquiry to include other provisions of the FCA rein-
forces the conclusion that the Appellees’ reading of "violation" is
inappropriate. In Neal, the Seventh Circuit concluded that § 3730(h)
applied to retaliation claims even in the absence of a judicially vindi-
cated violation of § 3729. See 33 F.3d at 863-64. It did so in light of
the breadth of activities protected by § 3730(h), which includes sup-
plying "information during the ‘investigation’ of a suit ‘to be filed’
in the future." Id. (quoting § 3730(h)). More importantly, Neal also
concluded based on this language that it was inappropriate to read the
UNITED STATES v. GRAHAM COUNTY SOIL 15
term "violation" as "a condition subsequent, necessary to perfect the
protection for activities that were sheltered at the moment of their
commission." Id. at 864. Rather, it should be assessed "according to
how things stood at the time of the investigatory activity." Id.
We note too that the Appellees’ interpretation of "violation" is
equally incompatible with the fact that retaliation provisions do not
generally require the plaintiff to engage in activity that is actually pro-
tected. An objectively reasonable "good faith" belief that the activity
is protected is sufficient to satisfy the prima facie requirement for
retaliation claims. Cf. Peters v. Jenney, 327 F.3d 307, 321 (4th Cir.
2003) (noting that in order to make out a prima facie claim of retalia-
tion under the Civil Rights Act of 1964, a plaintiff need only demon-
strate a subjective "good faith" belief that the activity she engaged in
was protected that is objectively reasonable, rather than proving con-
clusively that the activity was protected as a matter of law). In light
of the tension created by the Appellees’ narrow definition of violation
when considered in light of the other language in § 3731(b) and the
FCA as a whole, we decline to apply that construction, as "its invoca-
tion would result in a construction of the statute which . . . is at odds
with the language of the section in question and the pattern of the stat-
ute taken as a whole." SEC v. Sloan, 436 U.S. 103, 121 (1978).
V.
Finally, we are not convinced that applying § 3731(b)(1) to Wil-
son’s retaliation claim would yield a result that is at odds with Con-
gress’s intent in amending the FCA. To the contrary, we find the
purposes of the FCA are well-served by application of § 3731(b)(1)
to retaliation actions under § 3730(h), for three reasons. First, as the
Supreme Court recently noted, one of the intended effects of Con-
gress’s 1986 amendments to the FCA was to "enhance[ ] the incen-
tives for relators to bring suit." Cook County v. United States ex rel.
Chandler, 538 U.S. 119, 133 (2003). Significantly, we note that
recourse to the generally shorter limitations periods provided by state
law inherently affords employees less protection than the six-year
limitations period of the FCA, as Karen Wilson’s experience attests.
While North Carolina’s statute of limitations for wrongful discharge
actions is three years, some state retaliation statutes provide for limi-
tations periods as short as 180 days. See, e.g., Tex. Health & Safety
16 UNITED STATES v. GRAHAM COUNTY SOIL
Code Ann. §§ 161.132, 161.134 (Vernon 2002) (imposing 180-day
period in which to file action alleging retaliation against health-care
worker for reporting "conduct that is or might be illegal, unprofes-
sional, or unethical and that relates to the operation of the facility");
Grand, 811 F. Supp. at 336 n.2 (noting terminating employer’s con-
tention that Ohio’s 180-day limitations period governs retaliation
claims under the FCA should § 3731(b)(1) not apply). Such an abbre-
viated limitations period may be too short for an employee to ade-
quately marshal the evidence necessary to support a claim that her
termination was predicated on protected activity. Cf. Reed, 488 U.S.
at 323 n.2, 324, 326 (suggesting that a six-month limitations period
provides insufficient time for an aggrieved union member to "identi-
fy[ ] the injury, decid[e] in the first place to bring suit against and
thereby antagonize union leadership, and find[ ] an attorney"). Apply-
ing state law in lieu of the FCA’s limitations period would undermine
the very protection that Congress intended to confer by enacting
§ 3730(h). The dissent does not explain how the purposes of the FCA
are served by subjecting either the present or future relators who seek
to vindicate federal interests to the vagaries of a patch-work of state
limitations periods, some as short as six months.
Second, the uncertainty inherent in the process of identifying which
of several potentially applicable statutes in any given state is "most
analogous" would further undermine the protection afforded by
§ 3730(h). To make this determination, courts must first "characterize
the essence" of the plaintiff’s claim, then decide which state statute
provides "the most appropriate limiting principle." Wilson v. Garcia,
471 U.S. 261, 268 (1985). While we do not doubt the ability of the
district courts to follow these considerations to their logical conclu-
sion, we note the frequency with which states have enacted "multiple
statutes of limitations for personal injury actions," and the difficulties
that can arise in selecting which is most analogous. See Owens v.
Okure, 488 U.S. 235, 241, 243-44 & n.8 (1989) (noting that in "States
with multiple statutes of limitations for personal injury actions," it
may be difficult to ascertain which is most analogous, and that courts
of appeals had devised two different approaches when resolving this
issue in § 1983 actions). The collateral litigation necessary to resolve
this issue would exacerbate any uncertainty as to the time available
for filing a retaliation claim, and thereby reduce the employee’s
incentive to report a violation of § 3729. Cf. Reed, 488 U.S. at 326
UNITED STATES v. GRAHAM COUNTY SOIL 17
("Time-consuming litigation as to the collateral question of the appro-
priate statute of limitations for a § 101 claim . . . creates uncertainty
as to the time available for filing, and it would not be surprising if the
prospect of perhaps prolonged litigation against the union before ever
the merits are reached were to have a deterrent effect on would-be
§ 101(a)(2) plaintiffs.").
Third, the Appellees overlook the additional uncertainty that
choice-of-law issues would create for employees in deciding whether
to report violations of § 3729. Reference to state statutes of limita-
tions may require district courts to address choice of law issues in
determining which state’s law it must look to before selecting the
appropriate state statute. Cf. Ackley, 110 F. Supp. 2d at 402-03 & n.7
(disagreeing with defendant’s argument that Maryland’s lex loci
delicti choice-of-law rule applied and required recourse to New
York’s one-year limitations period, and collecting cases for and
against proposition that the most analogous statute is to be identified
from the forum state’s code, rather than following an application of
the forum state’s choice-of-law rules). Forcing an employee to con-
front complicated choice-of-law issues in deciding what protection, if
any, the FCA will provide should she disclose a violation of § 3729
further dilutes the incentive to report such violations that Congress
intended to create by adding § 3730(h). The importance of this con-
sideration is underscored by the legislative history of the 1986 amend-
ments, which note that much of the fraud against the government is
committed by large contractors with a presence in several states. See
S. Rep. at 2-3, reprinted in 1986 U.S.C.C.A.N. at 5267. Hence,
recourse to a single, consistent statute of limitations would be conso-
nant with the purposes of the FCA.
VI.
For the foregoing reasons, we conclude that § 3731(b)(1) provides
the limitations period for retaliation actions under § 3730(h). Accord-
ingly, we vacate the district court’s orders granting the Appellees’
motion to dismiss Wilson’s retaliation claim as time-barred as well as
denying reconsideration of that dismissal, and remand for further pro-
ceedings consistent with this opinion.
VACATED AND
REMANDED
18 UNITED STATES v. GRAHAM COUNTY SOIL
WILKINSON, Circuit Judge, dissenting:
I thank Judge Duncan for her fine opinion. This is not an easy case,
and there exists a square conflict between the Ninth Circuit, United
States ex rel. Lujan v. Hughes Aircraft Co., 162 F.3d 1027, 1035 (9th
Cir. 1998) (state statute of limitations for wrongful discharge applies
to anti-retaliation claims under section 3730(h)), and the Seventh Cir-
cuit, Neal v. Honeywell, Inc., 33 F.3d 860, 865 66 (7th Cir. 1994)
(six-year statute of limitations in section 3731(b) applies to claims
under section 3730(h)). In my judgment, the Lujan court advances the
better interpretation of the False Claims Act, 31 U.S.C. §§ 3729-3733
(2000). The sole issue in this interlocutory appeal is whether the dis-
trict court correctly held that North Carolina’s three-year statute of
limitations for wrongful discharge applies to complaints of retaliatory
conduct brought under section 3730(h) of the FCA. For reasons
expressed by both Lujan and the district court, I agree that the three-
year limitations period applies.
My colleagues, by contrast, hold that under section 3731(b) an
employer’s submission of false claims commences a six-year statute
of limitations for the independent event of retaliation against an
employee. The majority thus introduces an unprecedented oddity into
state and federal law by disconnecting the statute of limitations for
anti-retaliation claims from the actual retaliatory acts themselves. The
majority offers a number of policy rationales to support its result. But
these rationales are found nowhere in the text of the FCA and rest on
scant support in the legislative history.
The majority suggests its approach to the statute has this or that
advantage, but I do not think it acknowledges adequately all the debits
of its departure from the statutory text. Its approach fails to give
employees adequate notice concerning when the statute of limitations
begins. Worse still, it may preclude challenges to retaliatory acts
under section 3730(h) before that cause of action has even accrued.
The majority also undermines the entire basis for a statute of limita-
tions by counseling judges to exercise equitable tolling powers to rec-
ognize claims whenever the drawbacks of its interpretation of the
FCA become too apparent to ignore.
And, of course, six years is a long time. Deaths, departures, and
forgetfulness can occur in such a period, and the relevant evidence
UNITED STATES v. GRAHAM COUNTY SOIL 19
has often faded. That is not to say that Congress could not mandate
such a period, only that it has not chosen a time frame so far in excess
of analogous state provisions.
So I believe the majority is mistaken. In the absence of an express
federal statute of limitations, the district court properly applied the
statute of limitations for the most closely analogous state action of
wrongful discharge. See Reed v. United Transportation Union, 488
U.S. 319, 323-24 (1989). North Carolina’s three-year statute of limi-
tations for wrongful discharge affords a whistle-blowing employee
both adequate notice and a reasonable period of time to file anti-
retaliation claims.
I.
A.
The starting point for our inquiry must be the text of the statute.
The FCA’s sole statute of limitations provision states:
(b) A civil action under section 3730 may not be brought
—
(1) more than 6 years after the date on which the viola-
tion of section 3729 is committed, or
(2) more than 3 years after the date when facts material
to the right of action are known or reasonably should have
been known by the official of the United States charged with
responsibility to act in the circumstances, but in no event
more than 10 years after the date on which the violation is
committed,
whichever occurs last.
31 U.S.C. § 3731(b). Since anti-retaliation claims under section
3730(h) are part of section 3730, my colleagues contend a plain read-
ing suggests that the statute of limitations applies. But "[t]he answer
is not so simple." Lujan, 162 F.3d at 1034.
20 UNITED STATES v. GRAHAM COUNTY SOIL
Unfortunately, the majority’s purported plain language interpreta-
tion lops off half the statute. It overlooks the fact that both prongs of
the statute of limitations turn explicitly on events independent from
any alleged retaliatory actions. This fact alone suggests that the stat-
ute of limitations does not apply to anti-retaliation claims.
The first statutory limitations period begins with the occurrence of
a section 3729 violation. 31 U.S.C. § 3731(b)(1). The text of this pro-
vision could not be more plain. The six-year period is tied to a "viola-
tion of section 3729" and nothing else. Because an anti-retaliation
claim does not involve a "violation of section 3729" but instead a vio-
lation of section 3730(h), by its own terms section 3731(b)(1) cannot
apply. Section 3729 addresses only the submission of false claims to
the federal government. Section 3729 does not address retaliatory
actions by employers against whistle-blowing employees. Indeed, an
employer may wrongfully retaliate against a whistle-blowing
employee even in the absence of section 3729 violations, which
would leave this statute of limitations without a starting point. Retali-
ation by an employer may also occur more than six years after the
employer committed the false claims violations, which would leave
the employee without a cause of action. Therefore, it seems incongru-
ous to say the least that an employee’s ability to bring retaliatory
claims should turn on when or whether the employer has submitted
false claims to the government in violation of section 3729. See
United States ex rel. Ackley v. International Business Machines
Corp., 110 F. Supp. 2d 395, 401-03 (D.Md. 2000).
The second statutory limitations provision also has nothing to do
with anti-retaliation claims under section 3730(h). See 31 U.S.C.
§ 3731(b)(2). This alternative statute of limitations commences on the
date when federal officials charged with responsibility to act under
the FCA knew or reasonably should have known material facts con-
cerning the section 3730 claim. But this is a logical impossibility in
the case of section 3730(h) claims. No United States official is
responsible for anti-retaliation claims under section 3730(h), and no
official can even file an anti-retaliation action on behalf of an affected
employee. A whistle-blowing employee is the only individual
empowered to bring challenges to retaliatory actions under section
3730(h). Therefore, it would seem impossible to link the statute of
limitations for anti-retaliation claims to this provision.
UNITED STATES v. GRAHAM COUNTY SOIL 21
In sum, applying either of the section 3731(b) limitations periods
to section 3730(h) anti-retaliation actions is like cramming squares in
circles. In neither language nor logic do they fit.
B.
Prior to 1986, section 3731(b) stated that "[a] civil action under
section 3730 of this title must be brought within 6 years from the date
the violation is committed." 31 U.S.C. § 3731(b) (1982). This pre-
1986 provision clearly established that a six-year statute of limitations
applied to all section 3730 claims.
If Congress had retained this language when it added anti-
retaliation actions to the FCA, then our job would be simple. But
Congress in 1986 chose to amend the FCA, and we must "presume
that language added by amendment was not mere surplusage." Salo-
mon Forex, Inc. v. Tauber, 8 F.3d 966, 975 (4th Cir. 1993). Congress
introduced in 1986 a cause of action for retaliatory acts under section
3730(h). Simultaneously, Congress revised the statute of limitations
provision under section 3731(b) in two significant ways.
First, Congress narrowed the applicability of the statute of limita-
tions to "violations of section 3729." See 31 U.S.C. § 3731(b)(1). If
Congress had intended that a six-year statute of limitations apply to
section 3730(h) anti-retaliation actions, it would not have made an
employer’s false claims violations the thing that starts the statute run-
ning. Second, Congress would not have added the alternative provi-
sion that the statute of limitations for section 3730 runs three years
after an official knew or reasonably should have known of facts mate-
rial to the right of action. See 31 U.S.C. § 3731(b)(2). Both of these
changes mean that the statute of limitations applies only to section
3730 claims that concern the employer’s false claims violations under
section 3729 and not to challenges to retaliatory acts brought by an
employee under section 3730(h). To decide otherwise suggests that
this statutory change is meaningless and contravenes the well-
established rule that "[w]hen Congress alters the wording of a statute,
we must presume Congress intended a change in the law." Lackey v.
Johnson, 116 F.3d 149, 152 (5th Cir. 1997).
The majority asserts that "§ 3730(h) subsumes a violation of
§ 3729, even if it does not do so explicitly." Maj. op. at 9. This is an
22 UNITED STATES v. GRAHAM COUNTY SOIL
implicit argument, and we do not interpret cross-references in statutes
in this fashion. We must presume that when Congress incorporates
statutory cross-references, it is careful in laying out the provisions to
which the references occur. Here the references in section 3731(b)
include section 3729, but do not include section 3730(h). When Con-
gress includes one provision, it is safe to assume that it excludes oth-
ers, absent evidence to the contrary. Russello v. United States, 464
U.S. 16, 23 (1983). While this principle may not serve as an infallible
guide to statutory interpretation, it surely applies here.
My colleagues also point to a piece of legislative history, which
indicated the Senate’s initial intent to place whistle-blower protec-
tions under a separate section of the FCA. See Maj. op. at 10-11. The
majority claims that the ultimate inclusion of challenges to retaliatory
acts under section 3730(h) suggests that Congress somehow decided
that section 3731(b) would establish the statute of limitations for these
claims. This interpretation rests on a negative inference, and nothing
affirmatively suggests that Congress added anti-retaliation claims to
section 3730 with this purpose in mind.
In an effort to explain its conclusion, the majority states that Con-
gress was, in effect, enacting a statute of repose. Maj. op. at 12. But,
of course, Congress was doing nothing of the sort. Indeed, it is star-
tling for the majority to suggest that Congress was bent, in the FCA
no less, on establishing "repose" for employers who first defrauded
the government and then moved against the very persons who brought
that fraud to light. Section 3731(b) is self-evidently a statute of limita-
tions.
The majority implies that when it picked the point to start the limi-
tations period, Congress either did not know the difference between
sections 3729 and 3730, or that it inadvertently neglected to include
a reference to an immediately adjoining section of the statute. There
is another explanation, however — namely that Congress did not
include a reference to section 3730 because it did not wish to include
such a reference. The actual statutory changes that Congress did enact
underscore the point that Congress did not intend for section 3731(b)
to apply to section 3730(h) claims. As the Lujan court held, "[i]n the
absence of some meaningful indication to the contrary, we must
therefore presume that, in amending section 3731(b) so that the limi-
UNITED STATES v. GRAHAM COUNTY SOIL 23
tation runs only from the date of a violation of section 3729, Congress
did not intend that the statute apply to section 3730(h)." Lujan, 162
F.3d at 1035.
C.
The majority’s interpretation is at odds with all statutes of limita-
tions for wrongful discharge, which commence with the occurrence
of the retaliatory acts. See, e.g., N.C. Gen. Stat. § 1-52(5)(2003); Va.
Code Ann. § 8.01-248 (2003); W. Va. Code § 55-2-12 (2003). By
holding that the statute of limitations for anti-retaliation actions is set
in motion by some independent event, rather than by the retaliatory
acts themselves, the majority denies employees adequate notice of
when they can bring a claim. Indeed, the majority’s interpretation
may fail to provide any notice at all to employees as to when their
claims may commence or be foreclosed. There is a reason that statutes
of limitations for anti-retaliation actions begin with the alleged retal-
iatory event. Because the retaliation bears adversely on the affected
employee, it serves as the best possible notice that the employee may
henceforth seek redress.
This same reason suggests why Congress did not mandate a six-
year statute of limitations for section 3730(h) actions. Since false
claims themselves are acts of deception, it makes sense for a longer
statute of limitations to provide time to uproot the deception. But this
is simply not a concern for employees under section 3730(h) who will
feel the sting of the retaliatory actions at the moment they occur.
The matter seems almost second-nature. Statutes of limitations for
personal injury claims begin to run on the date of the injury. Statutes
of limitations for wrongful discharge claims begin to run on the date
of the discharge. In an action challenging a wrongful act, the limita-
tions period generally begins on the date of the act. In short, I am
unable to understand why my friends in the majority go to such
extraordinary lengths to resist such a thoroughly ordinary principle.
The majority’s interpretation also casts uncertainty over the ability
of affected employees to raise claims. For example, under its interpre-
tation a whistle-blowing employee could report on his employer’s
submission of a false claim some five years or more after the claims
24 UNITED STATES v. GRAHAM COUNTY SOIL
were submitted, yet be fired with apparent impunity just months later.
The problem is thus that the existence of an independent trigger for
the statute of limitations narrows the window of opportunity for
affected employees to make challenges to retaliatory actions under
section 3730(h). My colleagues summon judges to exercise their equi-
table tolling powers in such instances to override the limitations
period in the interests of justice. But the idea that a statute of limita-
tions could expire even before the cause of action comes into being
is not one that we should jump to conclude that Congress intended to
embrace. Reliance on equitable tolling in these circumstances under-
mines the value of having a statute of limitations in the first place and
vests courts with unpredictable discretion with regard to late claims.
The uncertainties of equitable tolling may make it more difficult for
discharged whistle-blowers to secure legal representation. Lawyers
may be reluctant to take on late challenges to retaliatory actions if
there is only a chance that judges will exercise equitable tolling pow-
ers to recognize them.
The majority chides the dissent for manifesting a concern about
future employees and not the employee in this case. But efforts to res-
cue a present plaintiff cannot justify creating problems for future
plaintiffs that Congress did not intend. My colleagues respond to
these problems with various policy pronouncements. The majority
posits that Congress chose to have section 3731(b) apply to anti-
retaliation actions under section 3730(h) to further "simplicity of
administration." Maj. op. at 9-10. Nowhere in the statute or legislative
history is Congress’ desire for simplicity of administration articulated.
Simplicity of administration is certainly not furthered by the majori-
ty’s exhortation for judges to use equitable tolling. Nor is simplicity
of administration advanced by the majority’s discussion of what actu-
ally constitutes a "violation" of section 3729. Maj. op. at 14-15. In
this connection, we are told we need not await a judicially determined
violation, but what other than that might suffice to set the statute run-
ning is left unclear. And to have all this in the course of a discussion
on administrative ease and convenience underscores the fact that the
majority’s interpretation will present us with anything but.
In support of its result, the majority claims there is generally a
close temporal relationship between protected acts and retaliatory
conduct, and that it is easier to know when fraud against the govern-
UNITED STATES v. GRAHAM COUNTY SOIL 25
ment occurs than when retaliatory actions occur. Maj. op. at 9. These
arguments are speculative. Whether false claims or retaliatory actions
are easier to identify will depend on which claim or which action one
happens to be talking about. And as for the "close temporal relation-
ship between a protected act and the retaliatory conduct based on it,"
Maj. op. at 13, an employer, and especially one aware of the majori-
ty’s limitations rule, could resolve not to "get mad," but in the longer
run "to get even." The majority finally argues that "the length of the
limitations period in § 3731(b)(1) lessens the likelihood that the pur-
portedly absurd consequences advanced by the Appellees would
occur." Maj. op. at 13. This too is hardly self-evident, because the dis-
covery of false claims, predicated on deceptive practices, may not
occur until late in the day. In all events, these sorts of judgments are
legislative, not judicial in nature, and they afford no basis for ignoring
the fact that Congress pegged the six-year limitations period to viola-
tions of section 3729, not section 3730(h), in the statute itself.
II.
"Congress not infrequently fails to supply an express statute of lim-
itations when it creates a federal cause of action. When that occurs,
‘[w]e have generally concluded that Congress intended that the courts
apply the most closely analogous statute of limitations under state
law.’" Reed, 488 U.S. at 323 (quoting DelCostello v. International
Brotherhood of Teamsters, 462 U.S. 151, 158 (1983)). Since Con-
gress enacted section 3730(h), but provided no statute of limitations,
we must apply state law where the retaliatory actions took place. The
North Carolina statute concerning wrongful discharge is the most
analogous provision for a retaliatory discharge under the FCA. See
Renegar v. R.J. Reynolds Tobacco Co., 549 S.E.2d 227, 229 (N.C. Ct.
App. 2001). The three-year statute of discharge should therefore
apply and begin at the time the discharge in this case took place. See
N.C. Gen. Stat. § 1-52(5) (2003). The challenge to the retaliatory
action here occurs almost four years after this point and should thus
be time-barred.
In applying state law, "‘[i]t is the duty of the federal courts to
assure that the importation of state law will not frustrate or interfere
with the implementation of national polices.’" Reed, 488 U.S. at 324
(quoting Occidental Life Ins. Co. of California v. EEOC, 432 U.S.
26 UNITED STATES v. GRAHAM COUNTY SOIL
355, 367 (1977)). Application of the state statute of limitations in this
context would not "frustrate or interfere with the implementation of
national policies" or "be at odds with the purpose or operation of fed-
eral substantive law." North Star Steel Co. v. Thomas, 515 U.S. 29,
34 (1995) (internal quotations and citations omitted). In fact, this stan-
dard would make it easier for affected employees to challenge retalia-
tory actions, because they would at least know when they could do
so. By contrast, the majority’s interpretation leaves in the dark plain-
tiffs who seek to bring the dealings of those who defraud the govern-
ment to light.
The majority points out that state statutes of limitations vary in
duration and that a few states, such as Ohio, have a statute of limita-
tions period for wrongful discharge as low as 180 days. But we are
not thereby entitled to abandon the statutory text whenever a federal
court perceives that a state steps "out of line." It is altogether plausible
that Congress chose to respect both the diverse views of states on the
length of limitations periods for wrongful discharge and the consen-
sus view of states that such periods, whatever their length, should run
from the date of the retaliatory acts themselves. Of course, Congress
could provide a uniform time-period for these actions anytime it
chooses to do so. But federal uniformity has never been thought an
indispensable feature of federal law. See, e.g., Federal Tort Claims
Act, 28 U.S.C. §§ 1346, 2671-2680. Other federal statutes, such as the
Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983, have
required courts to identify the most analogous state causes of action
and to apply state statutes of limitations to federal claims. See Owens
v. Okure, 488 U.S. 235, 239-40, 245-48 (1989) (section 1983 actions
are governed by state general or residual personal injury statutes of
limitations); see also Reed, 488 U.S. at 326-27 (claims under
§ 101(a)(2) of the Labor-Management Reporting and Disclosure Act
of 1959, 29 U.S.C. § 411(a)(2), prohibiting unions from interfering
with members’ right to free speech as to union matters, are governed
by state general or residual personal injury statutes).
Any difficulties with applying state law suffer in comparison to the
difficulties which the majority has created. In some cases, the majori-
ty’s new rule may be clear, but in others it will cause uncertainty, and
in still others it will discourage or prevent deserving whistle-blowers
from having their day in court. Congress may deem it necessary and
UNITED STATES v. GRAHAM COUNTY SOIL 27
appropriate to extend the time frame for anti-retaliation claims well
beyond those which individual states provide. But until it does so, I
would adhere to what I respectfully believe is its presently expressed
intent.