U.S. ex rel. David Felten v. William Beaumont Hosp.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0077p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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UNITED STATES OF AMERICA ex rel. DAVID FELTEN,

│

M.D., Ph.D.,

│

Plaintiff-Appellant, > No. 20-1002

│

│

v. │

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WILLIAM BEAUMONT HOSPITAL, │

Defendant- Appellee. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:10-cv-13440—Stephen J. Murphy, III, District Judge.

Argued: October 20, 2020

Decided and Filed: March 31, 2021

Before: McKEAGUE, GRIFFIN, and BUSH, Circuit Judges.

_________________

COUNSEL

ARGUED: Julie Bracker, BRACKER & MARCUS LLC, Marietta, Georgia, for Appellant.

Michael R. Turco, BROOKS WILKINS SHARKEY & TURCO, Birmingham, Michigan, for

Appellee. ON BRIEF: Julie Bracker, Jason Marcus, BRACKER & MARCUS LLC, Marietta,

Georgia, for Appellant. Michael R. Turco, Jason D. Killips, Steven M. Ribiat, BROOKS

WILKINS SHARKEY & TURCO, Birmingham, Michigan, for Appellee.

BUSH, J., delivered the opinion of the court in which McKEAGUE, J., joined.

GRIFFIN, J. (pp. 11–18), delivered a separate dissenting opinion.

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 2

_________________

OPINION

_________________

JOHN K. BUSH, Circuit Judge. David Felten appeals the district court’s partial

dismissal of his first amended complaint alleging that William Beaumont Hospital (“Beaumont”)

violated the anti-retaliation provision of the False Claims Act (“FCA”), 31 U.S.C. § 3730(h).

Felten claims that Beaumont blacklisted him after he filed a qui tam complaint, in which he

alleged that the hospital violated certain federal and state laws. Notably, the alleged blacklisting

occurred after Felten’s termination from Beaumont, and Felten’s anti-retaliation claim challenges

only Beaumont’s post-termination actions. The district court dismissed the claim because it held

that the FCA’s anti-retaliation provision covers only retaliatory actions taken during the course

of a plaintiff’s employment. The district court certified for interlocutory appeal the question

whether the FCA’s anti-retaliation provision protects a relator from a defendant’s retaliation after

the relator’s termination. That question is an issue of first impression in our circuit. Because we

hold that the FCA’s anti-retaliation provision protects former employees alleging post-

termination retaliation, we vacate the district court’s dismissal order and remand for further

proceedings consistent with this opinion.

I.

On August 30, 2010, Felten filed a qui tam complaint alleging that his then-employer,

Beaumont, was violating the FCA and the Michigan Medicaid False Claims Act. He alleged that

Beaumont was paying kickbacks to various physicians and physicians’ groups in exchange for

referrals of Medicare, Medicaid, and TRICARE patients. Felten also alleged that Beaumont had

retaliated against him in violation of 31 U.S.C. § 3730(h) and Mich. Comp. Laws § 400.610c by

threatening and “marginaliz[ing]” him for insisting on compliance with the law. After the

United States and Michigan intervened and settled the case against Beaumont, the district court

dismissed the remaining claims, except those for retaliation and attorneys’ fees and costs.

Felten subsequently amended his complaint to add allegations of retaliation that took

place after he filed his initial complaint. He alleged that he was terminated after Beaumont

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 3

falsely represented to him that an internal report suggested that he be replaced and that his

position was subject to mandatory retirement. Felten further alleged that he had been unable to

obtain a comparable position in academic medicine. This, he alleged, was because Beaumont

“intentionally maligned [him] . . . in retaliation for his reports of its unlawful conduct,”

undermining his employment applications to almost forty institutions.

The district court granted Beaumont’s motion to partially dismiss Felten’s first amended

complaint. In relevant part, the district court dismissed the allegations of retaliatory conduct

occurring after Felten’s termination, holding that the FCA’s anti-retaliation provision does not

extend to retaliation against former employees. The district court interpreted the qualifier “in the

terms and conditions of employment” in § 3730(h)(1) to mean that the provision’s coverage

encompasses only conduct occurring during the course of a plaintiff’s employment.

Upon Felten’s request to amend the dismissal order, the district court certified for

interlocutory appeal the question whether § 3730(h) applies to allegations of post-employment

retaliatory conduct. We granted Felten’s petition for permission to appeal.

We review de novo a district court’s order regarding a motion to dismiss. Binno v. Am.

Bar Ass’n, 826 F.3d 338, 346 (6th Cir. 2016). We accept a plaintiff’s factual allegations as true

without presuming the truth of conclusory or legal assertions; then we determine whether the

allegations state a facially plausible claim for relief. Id. at 345–46.

II.

At issue here is the temporal meaning of the word “employee” and the prohibited

employer conduct in the FCA’s anti-retaliation provision, 31 U.S.C. § 3730(h)(1). That

subsection states:

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 1 or more

violations of this subchapter.

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 4

§ 3730(h)(1). When this provision refers to an “employee” and proscribes certain employer

conduct, does it refer only to a current employment relationship, or does it also encompass one

that has ended?

To answer that question, we start with the statutory text. See Binno, 826 F.3d at 346. We

first “determine whether the language at issue has a plain and unambiguous meaning with regard

to the particular dispute in the case,” relying on “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, 340–41 (1997). That analysis ends our inquiry “if the statutory language is

unambiguous and ‘the statutory scheme is coherent and consistent.’” Id. at 340 (quotation

omitted). But if the text is unclear, we may look at the “[t]he broader context” of the statute and

statutory purpose together to resolve the ambiguity. Id. at 345–46.

The FCA does not explicitly say whether it pertains only to current employment.

However, Beaumont argues that the plain text of the FCA, when read according to relevant

canons of statutory interpretation, unambiguously excludes post-termination retaliation. It urges

us to adopt the approach of the Tenth Circuit—the only other court of appeals to decide the

issue—in Potts v. Center for Excellence in Higher Education, Inc., 908 F.3d 610, 614 (10th Cir.

2018). We respectfully disagree with Beaumont and our sister circuit’s conclusion that the

answer to the issue presented is clear. As explained below, the statutory text is in fact

ambiguous.

We usually interpret a statute according to its plain meaning, without inquiry into its

purpose. We also acknowledge the Supreme Court’s recent reminders to stay away from extra-

textual tools when ascertaining legislative intent. See Azar v. Allina Health Servs., 139 S. Ct.

1804, 1814 (2019); Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019). But

Robinson v. Shell Oil provides guidelines for determining when a statute’s meaning is not plain

in the context of protections for employees and what to do in the face of ambiguity, and we are

bound to follow Robinson. See McKnight v. General Motors Corp., 550 F.3d 519, 524 (6th Cir.

2008) (explaining that Robinson “laid out a roadmap for statutory interpretation”).

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 5

In Robinson, the Supreme Court held that the term “employees” in § 704(a) of Title VII

of the Civil Rights Act of 1964 is ambiguous and could be read to refer to both current and

former employees. 519 U.S. at 345. That conclusion flowed from three considerations. First,

Congress added “no temporal qualifier” to Title VII to clarify whether the statute includes only

current employees or both current and former employees. Id. at 341. Second, Title VII’s

definition of “employee” itself has no temporal qualifier and “is consistent with either current or

past employment.” Id. at 342. Third, Title VII includes other provisions that use the term

“employees” to encompass “something more inclusive or different than ‘current employees,’”

such as a provision authorizing “reinstatement or hiring of employees” as a remedy. Id. The

Court acknowledged that some sections of Title VII use “employee” to unambiguously mean a

“current employee,” but it reasoned that that fact shows only that the term “‘employees’ may

have a plain meaning in the context of a particular section—not that the term has the same

meaning in all other sections and in all other contexts.” Id. at 343.

Robinson’s reasoning applies with equal force to the FCA’s anti-retaliation provision,

31 U.S.C. §3730(h)(1). We address each consideration in turn.

First, there is no temporal qualifier accompanying the term “employee” in § 3730(h)(1),

and that provision’s explicit reference to “[a]ny employee,” id. (emphasis added), could mean

that it applies to any person who has ever been employed. Beaumont points to the noscitur a

sociis canon to argue that the list of actionable conduct in § 3730(h)(1) constitutes the temporal

limitation that distinguishes § 704(a) of Title VII from the FCA’s anti-retaliation provision.

True, the first three operative words on that list—“discharged, demoted, suspended”—refer to

harm against only current employees. A person cannot be discharged, demoted, or suspended

unless he or she first has a job to lose. However, current employment is not necessary for a

person to be “threatened,” “harassed,” or “discriminated” against—the last three types of

misconduct specified on the list. Thus, half of the terms on the list can refer to former

employees, thereby reducing the value of the noscitur a sociis canon in this case. Congress may

have included “threatened,” “harassed,” and “discriminated” in the statute to expand the

temporal scope of the anti-retaliation provision because the three terms are, by their plain

meaning, not restricted to a current employment relationship.

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 6

Beaumont also argues that the qualifier “in the terms and conditions of employment” at

the end of the list of sanctionable conduct eliminates any reading that § 3730(h)(1) could provide

relief to a former employee. In support, Beaumont notes that the Tenth Circuit held that the

qualifier modified the word “discriminated” to make “discriminated in the terms and conditions

of employment” a “catch-all phrase” that, under the ejusdem generis canon, restricted the

meaning of all listed misconduct in § 3730(h)(1) to only activities that occurred while the

plaintiff was still employed. See Potts, 908 F.3d at 615. With due respect to our sister circuit,

we are not convinced. Even if the phrase “terms and conditions of employment” is a catch-all

that applies to each listed type of misconduct in § 3730(h)(1), it does not necessarily restrict

misconduct to occurrences that take place only while the plaintiff is still employed. There are

many terms and conditions of employment that can persist after an employee’s termination. See,

e.g., Lantech.com v. Yarbrough, 247 F. App’x 769, 771–72 (6th Cir. 2007) (referencing a non-

compete agreement and confidentiality agreement); Hall v. Edgewood Partners Ins. Ctr., Inc.,

878 F.3d 524, 528–29 (6th Cir. 2017) (holding non-solicitation provisions enforceable against

employees terminated without cause); E.E.O.C. v. Cosmair, Inc., L’Oreal Hair Care Div.,

821 F.2d 1085, 1088–89 (5th Cir. 1987) (holding that a former employee was protected from his

employer’s discontinuance of severance pay under the ADEA’s anti-retaliation provision).

Moreover, straightforward application of the ejusdem generis canon cuts in favor of finding

ambiguity, not clarity, because the terms “threatened” and “harassed”—which can both occur

post-employment—are still specific terms that control that general catchall phrase. As in

Robinson, here, no temporal qualifier indicates that the statute applies only to current employees.

The second Robinson consideration—which directs our review to the statutory and

dictionary definition of “employee”—also shows that the FCA could cover former employees.

The FCA does not define “employee,” but in this case, dictionary definitions suffice. See Vander

Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1060 (6th Cir. 2014) (holding that an applicant

was not an “employee” under § 3730(h)’s plain meaning). Beaumont contends that the

dictionary definitions cited in Vander Boegh confine the plain meaning of “employee” to current

employees. But the Supreme Court rejected a similar argument in Robinson:

The argument that the term “employed” . . . is commonly used to mean

“[p]erforming work under an employer-employee relationship,” Black’s Law

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 7

Dictionary 525 (6th ed. 1990), begs the question by implicitly reading the word

“employed” to mean “is employed.” But the word “employed” is not so limited

in its possible meanings, and could just as easily be read to mean “was

employed.”

519 U.S. at 342.1 Also, that the FCA’s anti-retaliation provision excludes applicants—framed in

Vander Boegh as “potential employees”—does not mean that former employees are likewise

excluded from its purview. 772 F.3d at 1062. In order to be either a current or former employee,

an employment relationship must have formed. A job applicant has never performed work as an

employee for the employer; both current and former employees, by definition, have.

Third, here, as in Robinson, other aspects of the statutory framework also support a

reading that the FCA covers former employees. The FCA’s remedial provision allows former

employees to seek relief for post-termination retaliation.2 For example, a former employee can

obtain “reinstatement” as one type of relief under the statute. See 31 U.S.C. § 3730(h)(2)

(“Relief under paragraph (1) shall include reinstatement . . . .”). A plaintiff, by definition, must

be a former employee; after all, only someone who has lost a job can be reinstated.

Likewise, the provision for special damages can provide relief to former employees.

That provision explicitly remedies “discrimination”—misconduct that is not dependent on

whether the plaintiff is still an employee. See § 3730(h)(2) (“Relief . . . shall

include . . . compensation for any special damages sustained as a result of the

discrimination . . . .”).3

1

This Court in Vander Boegh and the Supreme Court in Robinson were using different editions of Black’s

Law Dictionary, but the principle applies equally to both editions.

2

The dissent notes that the term “employee” elsewhere in the FCA seems to refer only to current

employees. Dissent at 14. That possibility does not remove the ambiguity of the term as used in § 3730(h),

especially as Robinson acknowledges that the context of different sections of a statute can indicate that “the term

‘employee’ refers unambiguously to a current employee” without necessarily showing “that the term has the same

meaning in all other sections and in all other contexts.” 519 U.S. at 343. Ambiguity requires only “that the term

‘employees’ includes former employees in some sections, but not in others.” Id.

3

Indeed, courts have held that the provision for special damages under the FCA is broad and, therefore, can

include unlisted remedies such as front pay or noneconomic compensatory damages—remedies that are not

necessarily restricted to current employees. E.g., Brandon v. Anesthesia & Pain Mgmt. Assocs., Ltd., 277 F.3d 936,

944 (7th Cir. 2002); Hammond v. Northland Counseling Ctr., Inc., 218 F.3d 886, 893 (8th Cir. 2000) (“Damages for

emotional distress caused by an employer’s retaliatory conduct plainly fall with this category of ‘special

damages.’”); Wilkins v. St. Louis Hous. Auth., 198 F. Supp. 2d 1080, 1091 (E.D. Mo. 2001) (awarding front pay “to

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 8

Also, the catch-all wording of the relief provision can support application of the FCA to

former employees. The use of “shall include,” especially in combination with an employee’s

“entitle[ment] to all relief necessary to make that employee . . . whole,” demonstrates that the list

of remedies is not exhaustive. § 3730(h)(1), (2); see Samantar v. Yousuf, 560 U.S. 305, 317

(2010) (“It is true that use of the word ‘include’ can signal that the list that follows is meant to be

illustrative rather than exhaustive.”).4 This expansive catch-all language further shows that

remedies exist regardless of whether the plaintiff is still employed.

Beaumont argues that those remedies do not necessarily establish that former employees

are entitled to relief. It contends, for example, that reinstatement should be limited to people

who were employees when the wrongful conduct occurred. But the text does not contain that

limitation. Under § 3730(h)(1), a person out of a job can get the job back as a remedy for the

proscribed conduct, regardless of when the wrongful act occurred. Furthermore, the fact that the

FCA explicitly creates a cause of action for wrongful discharge, while Title VII prohibits

employment discrimination more broadly, is not a meaningful difference in this context. True,

reinstatement can be a remedy for wrongful discharge, but that does not change the fact that it

could be a remedy for post-termination retaliation as well. The Supreme Court in Robinson

explicitly invoked the likelihood of a former employee alleging wrongful discharge as support

for the proposition that Title VII encompasses former employees, recognizing that because the

remedy of reinstatement necessarily applied to former employees, former employees were

covered under Title VII whether they were suing in response to a discriminatory discharge or

post-employment retaliation. 519 U.S. at 342–43.

In short, we could read the statute in two ways: applying only to current employees or

reaching those who have lost their jobs. We think the latter is the more accurate reading.

effect the express Congressional intention that a claimant under § 3730(h) be made whole” even though “the FCA

does not specifically include front pay as a remedy”).

4

See also BellSouth Telecomms., Inc. v. Ky. Pub. Serv. Comm’n, 669 F.3d 704, 713 (6th Cir. 2012) (citing

Samantar); Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 337 (4th Cir. 2012) (“Courts have repeatedly

indicated that ‘shall include’ is not equivalent to ‘limited to.’”). Courts of Appeals have also held that similar

language in the Sarbanes-Oxley Act precedes a non-exhaustive list of available relief, empowering courts to award

relief for emotional distress. See Jones v. Southpeak Interactive Corp., 777 F.3d 658, 672 (4th Cir. 2015);

Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254, 264–65 (5th Cir. 2014); Lockheed Martin Corp. v. Admin.

Review Bd., 717 F.3d 1121, 1138 (10th Cir. 2013).

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 9

But given the Supreme Court’s guidance in Robinson, we ultimately hold that the term

“employee,” as used in the statute, is ambiguous.

When confronted with similar ambiguity, the Robinson Court looked to the “broader

context of Title VII and the primary purpose of § 704(a)” to hold that former employees were

covered by Title VII’s anti-retaliation protections. 519 U.S. at 345–46. The lack of statutory

clarity here compels an analogous approach. As discussed, the FCA’s remedial provision

indicates that former employees may sue under § 3730(h). And Robinson found it relevant that

excluding former employees from the protections of Title VII would “effectively vitiate much of

the protection afforded by [the statute]” because it would deter reporting to the government and

“provide a perverse incentive for employers to fire employees who might bring Title VII

claims.” Id. So too here. The FCA is designed to “discourage fraud against the government,”

Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994), and the purpose of

the Act’s anti-retaliation provision is to encourage the reporting of fraud and facilitate the federal

government’s ability to stymie crime by “protect[ing] persons who assist [in its] discovery and

prosecution,” Neal v. Honeywell Inc., 33 F.3d 860, 861 (7th Cir. 1994), abrogated on other

grounds by Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson,

545 U.S. 409 (2005)). If employers can simply threaten, harass, and discriminate against

employees without repercussion as long as they fire them first, potential whistleblowers could be

dissuaded from reporting fraud against the government. See Haka v. Lincoln Co., 533 F. Supp.

2d 895, 917 (W.D. Wis. 2008) (holding that the reasoning in Robinson applied equally to the

FCA and that including former employees “was necessary to effectuate the provision’s primary

purpose: ‘[m]aintaining unfettered access to statutory remedial mechanisms.’” (quoting

Robinson, 519 U.S. at 346)). We therefore hold that the anti-retaliation provision of the FCA

may be invoked by a former employee for post-termination retaliation by a former employer.

We acknowledge that our decision creates a circuit split. Our analysis differs from that of

the Tenth Circuit primarily with regard to Robinson’s first and third factors: whether the statute

includes a temporal qualifier and whether other provisions envision both current and former

employees. We deem it a better fit with all of Robinson’s considerations to construe

§ 3730(h)(1) to effectuate the statute’s broader context and purpose.

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 10

III.

Finally, Felten argues for the first time on appeal that the “terms and conditions of

employment” provision of § 3730(h) includes blacklisting. Although the district court invoked

the “terms and conditions of employment” qualifier as a reason why post-employment retaliatory

action did not fall within the FCA’s ambit, it did not address whether blacklisting is included as a

form of prohibited retaliatory action. Thus, we do not address the issue; instead, we remand for

the district court to consider the issue in the first instance. See Child Evangelism Fellowship of

Ohio, Inc. v. Cleveland Metro. Sch., 600 F. App’x 448, 453 (6th Cir. 2015) (“We generally do

not consider issues left unaddressed by the district court.”).

IV.

We vacate the district court’s order granting Beaumont’s motion to partially dismiss

Felten’s first amendment to his complaint and remand for further proceedings consistent with

this opinion.

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 11

_________________

DISSENT

_________________

GRIFFIN, Circuit Judge, dissenting.

This case asks if the word “employee,” when used in the False Claims Act (“FCA”),

refers to someone who is not an employee. To ask the question is to answer it. Instead of

applying tried-and-true tools of statutory interpretation to their logical end, the majority rushes to

find ambiguity then divines congressional intent from its own perception of which reading would

best serve the FCA’s “broader context and purpose.” As a result, the majority’s opinion creates a

circuit split and contradicts the decision of nearly every other federal court that has considered

whether the FCA’s anti-retaliation provision extends to former employees. Because the FCA

unambiguously reserves retaliation claims for only those plaintiffs who were employees when

they were retaliated against, I respectfully dissent.

I.

The only question before us is whether the FCA’s anti-retaliation provision prohibits

retaliation against former employees. “A matter requiring statutory interpretation is a question of

law requiring de novo review, and the starting point for interpretation is the language of the

statute itself.” Roberts v. Hamer, 655 F.3d 578, 582 (6th Cir. 2011) (internal quotation marks

and citation omitted). “If the words are plain, they give meaning to the act, and it is neither the

duty nor the privilege of the courts to enter speculative fields in search of a different meaning.”

Id. at 583 (citation omitted). The FCA’s anti-retaliation provision 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 1 or more

violations of this subchapter.

31 U.S.C. § 3730(h)(1). This is not the first time that we have examined the plain meaning of

“employee,” as used in this provision. We have said that, for the purposes of the FCA’s anti-

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 12

retaliation provision, an employee is “[s]omeone who works in the service of another person (the

employer) under an express or implied contract of hire, under which the employer has the right

to control the details of work performance,” Vander Boegh v. EnergySolutions, Inc., 772 F.3d

1056, 1060 (6th Cir. 2014) (quoting Black’s Law Dictionary 639 (10th ed. 2014)), or “‘[a]

person working for another person or a business firm for pay,’” id. (quoting Random House

Webster’s Unabridged Dictionary 638 (2001)). Id. at 1062.

Thus, under our precedent and the plain language of the statute, whether a former

employee falls within the definition of “employee” is a straightforward inquiry: does a former

employee work in the service of his former employer under a contract of hire or for pay? The

answer is “no,” otherwise he would not be a former employee. This alone mandates affirming

the district court.1

If our precedent and the statute’s plain language were not enough, the specific context in

which “employee” is used also compels the conclusion that former employees are beyond the

anti-retaliation provision’s scope. To have a cause of action, a plaintiff must have been

“discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated

against in the terms and conditions of employment.” 31 U.S.C. 3730(h)(1). Of these six

categories of retaliatory acts, four can be committed only during employment: only a current

employee can be discharged, demoted, suspended, or discriminated against in the terms and

conditions of employment.

True, a former employer could harass or threaten a former employee. But the canon of

noscitur a sociis requires us to temporally limit the scope of these undefined terms. This canon

instructs that “the meaning of an undefined term may be deduced from nearby words.” United

1

Felten argues that Vander Boegh supports his position that former employees may bring retaliation claims

based on post-employment conduct because there we observed that one portion of the FCA’s legislative history

“suggest[ed] that ‘employee’ extends to former employees, as well as present employees.” 772 F.3d at 1063. But

Felten concedes that this observation is dicta, and therefore nonbinding on this panel. See, e.g., Johnson v. City of

Cincinnati, 310 F.3d 484, 493 (6th Cir. 2002). Moreover, even if Vander Boegh’s observation regarding the FCA’s

legislative history is accurate, it is irrelevant. A court may look to legislative history only when “a plain reading

leads to ambiguous or unreasonable results.” United States v. Vreeland, 684 F.3d 653, 662 (6th Cir. 2012) (citation

omitted); see also Chrysler Corp. v. C.I.R., 436 F.3d 644, 654 (6th Cir. 2006). Here, a plain reading of the FCA

merely reserves retaliation claims for plaintiffs who were employees when they were retaliated against.

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 13

States v. Miller, 734 F.3d 530, 541 (6th Cir. 2013). This “associated-words” canon provides that,

when words “are associated in a context suggesting that the words have something in common,

they should be assigned a permissible meaning that makes them similar.” Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 195 (2012). Specifically, this

canon holds that “words grouped in a list should be given related meanings.” Id. (quoting Third

Nat’l Bank in Nashville v. Impac Ltd., 432 U.S. 312, 322 (1977)).

The meanings of “threatened” and “harassed” must therefore be consistent with their

neighbors, all of which are temporally limited to current employment. Thus, “threatened” and

“harassed” are likewise limited to existing employer-employee relationships, which places post-

employment retaliation against former employees beyond the reach of the anti-retaliation

provision.

A second canon of statutory interpretation, ejusdem generis, further confirms this

temporal limitation. Ejusdem generis dictates that “where general words follow specific words

in a statutory enumeration, the general words are construed to embrace only objects similar in

nature to those objects enumerated by the preceding specific words.” Miller, 734 F.3d at 541

(citation omitted). “[W]hen a drafter has tacked on a catchall phrase at the end of an enumeration

of specifics,” ejusdem generis implies the addition of the word “similar” between the last

specific and the catchall phrase. Scalia & Garner, supra., at 199.

The FCA’s anti-retaliation provision lists five specific categories of retaliatory conduct,

then includes a catchall phrase that applies to employees who have been “in any other manner

discriminated against in the terms and conditions of employment.” 31 U.S.C. § 3730(h)(1).

Ejusdem generis limits the catchall phrase’s scope to discriminations that are similar to

discharges, demotions, suspensions, threats, and harassment. And these general discriminations

are actionable only if they occur in the terms and conditions of employment. Id. To comply

with ejusdem generis, threats and harassment must also be prohibited only if they occur during

the employment relationship.

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 14

We should also look to other portions of the FCA. “A standard principle of statutory

construction provides that identical words . . . within the same statute should normally be given

the same meaning.” Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232 (2007).

The FCA is not a particularly long statute, and it uses the word “employee” in only a few other

provisions. None of these other uses can be reasonably read as “former employee.” For

example, the FCA provides that “[n]o court shall have jurisdiction over an action brought [by a

private person] against . . . a senior executive branch official if the action is based on evidence or

information known to the Government when the action was brought.” 31 U.S.C.

§ 3730(e)(2)(A). “[S]enior executive branch official” is in turn defined as “any . . . employee

listed in paragraphs (1) through (8) of section 101(f) of the Ethics in Government Act of 1978,”

31 U.S.C. § 3730(e)(2)(B), which includes a huge swath of the executive branch, from the

President, 5 U.S.C. App.4 § 101(f)(1), to the Social Security Administration’s many

administrative law judges, id. at § 101(f)(4). If, when used in the FCA, “employee” means

“former employee,” then thousands of executive branch officials receive lifetime immunity from

certain qui tam suits on their first day of work. This immunity, which makes it more difficult to

enforce the FCA, would not align with the statute’s purported goal of reducing fraud against the

government.

Or consider a provision at the very heart of the act: the definition of “claim.” The FCA

defines “claim” as “any request or demand . . . for money or property . . . that . . . is presented to

an officer, employee, or agent of the United States.” 31 U.S.C. § 3729(b)(2). Suppose a federal

employee quits her government job and starts her own business. If one of her vendors sends her

a false claim, has it violated the FCA? Of course not; she was not a United States employee

when the vendor presented her with the false claim. But under the majority’s interpretation of

the word “employee,” the vendor could be liable under the FCA for submitting a false claim to a

former United States employee.

Finally, persuasive case law supports affirming the district court. Nearly every federal

court that has considered whether the FCA’s anti-retaliation provision is temporally limited to

current employees—including a unanimous panel of the only other circuit court of appeals to

have examined that question—has reached the same conclusion: the FCA’s anti-retaliation

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 15

provision does not apply to post-employment retaliation. See Potts v. Ctr. for Excellence in

Higher Educ., 908 F.3d 610, 613–16 (10th Cir. 2018).2

II.

In response to this overwhelming authority, the majority contends that we are bound to

follow “guidelines,” purportedly established in Robinson v. Shell Oil, 519 U.S. 337 (1997), that

“determine[e] when a statute’s meaning is not plain in the context of protections for

employees[.]” I see nothing in Robinson that exempts the word “employee” from its plain

meaning or the tools of statutory interpretation that I apply above. Nor does anything in that case

suggest that the Supreme Court was inventing new theories of interpretation that apply only to

“protections for employees.” And it is odd that the majority cites McKnight v. General Motors

Corp., 550 F.3d 519 (6th Cir. 2008), for this remarkable assertion. The “roadmap” that we

described Robinson as laying out in that case related only to run-of-the-mill principles of

statutory interpretation, such as looking first to a statute’s plain language. See id. at 524–25. We

have never recognized Robinson as establishing special rules for employee protections. In fact,

we have explicitly concluded that “Robinson did not alter the rules of statutory interpretation,”

and have declined to extend Robinson’s reasoning beyond the Title VII context. Id. at 527–28.

Simply put, the majority’s belief that Robinson—a Title VII case—created employee-specific

interpretative “guidelines” that compel reversal in this FCA case is baseless.

Nor does Robinson’s reasoning “appl[y] with equal force to the FCA’s anti-retaliation

provision.” As the majority notes, Robinson relied on three considerations to find that Title

2

See also, e.g., United States ex rel. Head v. Kane Co., 798 F. Supp. 2d 186, 208 (D.D.C. 2011) (“The plain

language . . . clearly establishes that Section 3730(h) applies only to the employment context and, therefore, cannot

extend to claims for retaliatory action occurring solely after a plaintiff has been terminated from his job.”); United

States ex rel. Complin v. North Carolina Baptist Hosp., 2019 WL 430925, at *10 (M.D.N.C. Feb. 4, 2019);

Elkharwily v. Mayo Holding Co., 84 F. Supp. 3d 917, 927 n.7 (D. Minn. 2015), aff’d on other grounds, 823 F.3d

462 (8th Cir. 2016); United States ex rel. Tran v. Computer Scis. Corp., 53 F. Supp. 3d 104, 138 (D.D.C. 2014);

Weslowski v. Zugibe, 14 F. Supp. 3d 295, 306 (S.D.N.Y. 2014); Master v. LHC Group Inc., No. 07-1117, 2013 WL

786357, at *6 (W.D. La. March 1, 2013); Bechtel v. Joseph Med. Ctr., No. MJG-10-3381, 2012 WL 1476079, at *9–

10 (D. Md. Apr. 26, 2012); Poffinbarger v. Priority Health, No. 1:11-CV-993, 2011 WL 6180464, at *1 (W.D.

Mich. Dec. 13, 2011); United States ex rel. Davis v. Lockheed Martin Corp., 2010 WL 4607411, *8 (N.D. Tex.

2010); United States ex rel. Wright v. Cleo Wallace Ctrs, 132 F. Supp. 2d 913, 928 (D. Colo. 2000). The minority of

courts have, like my colleagues, mistakenly transplanted Robinson from the Title VII context to the FCA context.

See Ortino v. Sch. Bd. of Collier Cty, 2015 WL 1579460, at *3–4 (M.D. Fla. April 9, 2015); Haka v. Lincoln Cty.,

533 F. Supp. 2d 895, 917 (W.D. Wis. 2008).

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 16

VII’s anti-retaliation provision’s use of the word “employee” was ambiguous. First, the Court

noted that “there is no temporal qualifier in the statute such as would make plain that [42 U.S.C.

§ 20000e-3(a)] protects only persons still employed at the time of the retaliation.” Id. at 341.

Second, the Court noted that Title VII’s general definition of “employee” as “an individual

employed by an employer,” “likewise lacks any temporal qualifier and is consistent with either

current or past employment.” Id. at 342 (quoting 42 U.S.C. § 2000e(f)). The Court reasoned

that “employed” could just as easily be read to mean “was employed” as “is employed.” Id.

(emphases omitted). Third, the Court noted that “a number of other provisions in Title VII use

the term ‘employees’ to mean something more inclusive or different than ‘current employees.’”

Id. The Court then resolved this ambiguity in favor of including former employees into the anti-

retaliation provision’s definition of “employee.” The Court concluded that this interpretation

was more aligned with Title VII’s broader context and the anti-retaliation provision’s primary

purpose. Id. at 345–46.

None of the three Robinson considerations are present here. First, the FCA’s anti-

retaliation provision has a temporal limitation. To have a retaliation claim, a person must have

been “discharged, demoted, suspended, threatened, harassed, or in any other manner

discriminated against in the terms and conditions of employment.” 31 U.S.C. 3730(h).3 As

explained above, these categories limit plaintiffs to those people who were employees when they

were subject to retaliation. Second, the FCA does not contain a general definition for

“employee” (ambiguous or otherwise) so we must apply that word’s “ordinary and natural

meaning.” United States v. Lumbard, 706 F.3d 716, 723 (6th Cir. 2013). And the plain

meanings of “employee” that we have previously recognized have temporal limitations that

denote a present, continuing employer-employee relationship. Vander Boegh, 772 F.3d at 1060,

1062. Third, in contrast to Title VII, no other provision of the FCA uses the term “employee” to

mean anything different or more inclusive than its ordinary meaning.

3

In contrast, Title VII’s anti-retaliation provision provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his

employees . . . because he has opposed any practice made an unlawful employment practice by

this subchapter, or because he has made a charge, testified, assisted, or participated in any manner

in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a).

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 17

The majority contends that the anti-retaliation provision’s remedies section, § 3730(h)(2),

shows that Congress intended former employees to qualify for relief. In particular, the majority

highlights that the non-exhaustive list of remedies available to retaliated-against employees

includes reinstatement and special damages. But the majority’s consideration of this section

misses the point. Nobody disputes that former employees can obtain relief under the anti-

retaliation provision. For example, the FCA creates a specific cause of action for retaliatory

discharge, which can be brought only by discharged (former) employees. Or an employee might

quit or retire after their employer mistreats them because of their FCA-protected activity. These

former employees, however, would have been current employees when they were retaliated

against. The relevant consideration is not the employment status of the plaintiff at the time of

suit, but rather the employment status of the plaintiff at the time of retaliation. See Potts, 908

F.3d at 614 (“[W]hat matters is the employee’s employment status when the employer

retaliates.”). Thus, the remedies provision is perfectly consistent with the statute’s reservation of

claims to employees.

In sum, our precedent, dictionary definitions, the canons of statutory interpretation, and

persuasive case law indicate that “employee” does not mean “former employee,” and Robinson

neither compels nor supports a contrary conclusion. The word “employee,” as used in the FCA,

is not ambiguous. Because plaintiff was not an employee when he was allegedly blacklisted, we

should affirm the district court.

III.

One final note. After the majority finds ambiguity, it determines which result the FCA

should achieve. In doing so, it engages in unauthorized, unnecessary purposivism. See Scalia

& Garner, supra., at 18 (“Where purpose is king, text is not—so the purposivist goes around or

behind the words of the controlling text to achieve what he believes to be the provision’s

purpose.”). Purposivism “suggests courts can simply ignore the enacted text and instead attempt

to replace it with an amorphous ‘purpose’ that happens to match with the outcome one party

wants.” Arangure v. Whitaker, 911 F.3d 333, 345 (6th Cir. 2018). But Congress establishes a

statute’s purpose “by negotiating, crafting, and enacting statutory text,” and “[i]t is that text that

controls, not a court’s after-the-fact reevaluation of the purposes behind it.” Id. The majority is

No. 20-1002 United States ex rel. Felten v. William Beaumont Hosp. Page 18

well-aware of the dangers of purposivism yet proceeds to replace Congress’s judgment with its

own. Although attempting to discern a statute’s purpose might be permissible when, as in

Robinson, the text is ambiguous, the circumstances of this case do not authorize such an

amorphous inquiry. Congress unambiguously told us that the anti-retaliation provision applies

only to “employees,” so this Court lacks the authority to rewrite that term to define anything

broader, narrower, or different than its plain meaning. That task should be left to Congress.

IV.

For these reasons, I respectfully dissent.