# Petition for Writ of Certiorari — Graham County Soil & Water Conservation Dist. v. United States Ex Rel. Wilson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0033%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 545 U.S. 409 ## Text Onin Court, U.S TLER O4 169 JUL2 8 2004 No. IN THE Supreme Court of the United States GRAHAM COUNTY SOIL & WATER CONSERVAT’ON DISTRICT; CHEROKEE COUNTY SOIL & WATER CONSERVATION DISTRICT; GERALD PHILLIPS; ALLEN DEHART; LLOYD MILLSAPS; BILL TIrTON; C.B. NEWTON; EDDIE WOOD; GRAHAM COUNTY, Petitioners, Vv. UNITED STATES OF AMERICA EX REL. KAREN T. WILSON, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit _ PETITION FOR WRIT OF CERTIORARI ROY COOPER Ben O. Bridgers Attorney General of North Carolina BRIDGERS AND Christopher G. Browning, Jr.* RIDENOUR Solicitor General of North Carolina PO Box 248 Jill B. Hickey Sylva, N.C. 28779 Special Deputy Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, N.C. 27602 Telephone: (919) 716-6900 July 28, 2004 *Counsel of Record a llllllSSSSEeEEEeEeEeeee___Q_QW@®QOSQQNSQRNSH|="- tn et ne EO ie ve ere ~ i QUESTION PRESENTED WHETHER THE SIX YEAR LIMITATION PERIOD SET OUT IN 31 U.S.C. § 3731(b) SHOULD BE APPLIED TO RETALIATORY DISCHARGE ACTIONS UNDER THE FALSE CLAIMS ACT OR WHETHER COURTS SHOULD APPLY THE MOST CLOSELY ANALOGOUS STATE LIMITATION PERIOD. il LIST OF PARTIES TO THE PROCEEDINGS BELOW The parties to the proceedings in the court of appeals were as follows: United States of America ex rel. Karen T. Wilson was the plaintiff-appellant in the court of appeals. Graham County Soil & Water Conservation District, Cherokee County Soil & Water Conservation District, Gerald Phillips, Allen DeHart, Lloyd Millsaps, Bill Tipton, C.B. Newton, and Eddie Wood were defendant-appellees in the court of appeals and are the parties petitioning for certiorari. Raymond Williams, Dale Wiggins, Lynn Cody, Graham County were defendant-appellees in the court of appeals and are not petitioning for certiorari. Richard Greene, William Timpson, Keith Orr, Jerry Williams, Billy Brown, were listed in the caption of the court of appeals as defendant-appellees, but did not file notice of appearance, join the brief of the appellees or participate in the appeal and are not petitioning for certiorari. 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 were OO ape ee ee an = . - ili defendants in the district court but did not participate in the court of appeals proceeding-. TABLE OF AUTHORITIES ................-.-.---. vii OPINIONS BELOW ....... 20.0... -. cece cece eeeeee. JURISDICTION ...... 2... 0.0cccecccccececeececeees STATUTORY PROVISIONS INVOLVED ............. 2 STATEMENT OF THE CASE ................-.-.--. 2 REASONS FOR GRANTING THE PETITION ........... 4 L THE FOURTH CIRCUIT’S DECISION DEEPENS AN EXISTING CONFLICT AMONG THE CIRCUIT COURTS. ............. a I. THE FOURTH CIRCUIT’S OPINION RAISES AN IMPORTANT ISSUE OF FEDERAL LAW Il THE FOURTH CIRCUIT ERRED IN APPLYING A SIX YEAR LIMITATION PERIOD TO RETALIATORY DISCHARGE ACTIONS UNDER THE FALSE CLAIMS ACT vi 1. The Fourth Circuit’s construction of the False Claims Act is contrary to the ° language of that act ........... ~saceen 16 2. The Fourth Circuit’s decision misconstrues and ignores congressional intent ................+.. 19 3. The Fourth Circuit’s decision is illogical and creates an unmanageable scheme for ; am en the lmnitati EEE écccccccccccuceseess 25 GEE Cavconcccddccdececdcedcedecdsaceee 28 APPENDIX vii TABLE OF AUTHORITIES CASES Cada v. Baxter Healthcare Corp., 920 F.2d 446 St Ct idevtesccudupenesdeseesooees 21 Delaware State College v. Ricks, 449 U.S. 250 (1980) .. 21 Early v. Bankers Life & Casualty, 959 F.2d 75 GREG GUGED cecvcccccccccccecccccceseces 12 Grand ex rel. United States v. Northrop Corp., 811 F. Supp. 333 (S.D. Ohio 1992) ............ 6 United States ex rel. Lujan v. Hughes Aircraft Co., 162 F.3d 1027 (9th Cir. 1998) ....... 4,5,6,7,8,19 Neal v. Honeywell, Inc., 33 F.3d 860 (7th Cir. 1994) .. 4,8,9 Truitt v. County of Wayne, 148 F.3d 644 (6th Cir. 1998) . 21 United States of America ex rel. Wilson v. Graham County Soil & Water Conservation District, 367 F.3d 245 (4th Cir. 2004) ............ passim United States of America ex rel. Wilson v. Graham County Soil & Water Conservation District, 224 F. Supp. 2d 1042 (W.D.N.C. 2002) ......... l Vili United States ex rel. Cantekin v. University of Pittsburgh, 1997 U.S. Dist. LEXIS 22868 (W.D. Pa. 1997) ... 9 United States ex rel. Malloy v. Telephonics Corp., 68 Fed. Appx. 270 (3d Cir. 2003), cert. denied, 158 L. Ed. 24 469 (2004) ....... 5,9 STATUTES I i) dan is siticsiti ccccsdesin 2 31 U.S.C. § 3729 (2004) .........leceeeeeeeeeees 3,18 ed 31 U.S.C. § 3730(a) (2004) . 2.22... cece cece cece euees 3 31 U.S.C. § 3730(b) (2004) 2.22. ce cece cece cece eee 3 31 U.S.C. § 3730(h) (2004) ...... 0... e cece eee. passim 31 U.S.C. § 3731(b) (2004) .......... 00000. 1,3,17,18,27 31 U.S.C. § 3731(b)(1) (2004)... eee eee cece eee 2,6 ee 2 Aviation Investment and Reform Act, DUBE. COON cevcicciccccccccss itéveos 12 CERCLA, 42 U.S.C. § 9610 2.2.0... cece cece ee eee. 12 ix Clean Air Act, 42 U.S.C. § 7622 ..... 0... ce eee ee ees 12 Energy Reorganization Act, SEED oSdeSeecdececcdeveveses 11,12 BRIBA, 29 U.S.C. G 114 2. nrccccccccccvcccccccces 12 False Claims Act, 31 U.S.C. §§ 3729-3733 ............. 2 Federal Deposit Insurance Act, 12 U.S.C. § 1831j ...... 11 Federal Mine Safety and Health Act, PS EE Sb Seesevdcccccoesecces wages 12 Federal Surface Mining Act, 30 U.S.C. § 1293 ........ 11 Migrant and Seasonal Agricultural Workers Protection Act, 29 U.S.C. § 1855 ............. 11 National Labor Relations Act, SP PEED occcccccccccccccceeces 11 Se PE vo decccdccccvcccccceccecces 12 Safe Containers for International Cargo Act, 46 U.S.C. app. § 1506 2.0... eee eee ees 12 Safe Drinking Water Act, PEE? oc cdevversceceseseeooeces 12 Sarbanes-Oxley, 18 U.S.C.§ 1514A ...........0005. 12 xX Solid Waste Disposal Act, 42 U.S.C. § 6971 .......... 12 Surface Transportation Assistance Act, CP BOONE 60 ccdscaséacces 13. eeeties 10 Cs OP EEE © 6.0. cbc cede cneeatcccdenwas 12 TSCA (asbestos), 15 U.S.C. § 2651 ................. 12 Water Pollution Control Act, So We § TSGT oc kscens Perea 12 132 Cong. Rec. 22,332 & 28,576 (1986) ............. 24 132 Cong. Rec. 22,337 (1986) jan cniddtewnadenin Jkt 24 Boe CS, TROD. SRDS CROP 6 okies cccvccccccesce 24 S. Rep. No. 99-345 (1986), reprinted in 1986 U.S.C.C.A.N. 5266 .....: ~. +++ 19,20,22,23,26 OTHER Hearing on S. 1358 Before the Senate Gov’t Affairs Comm., 108 Cong. (Nov. 12, 2003) ..... 10 J. Boese, Civil False Claims and Qui Tam Actions § 4.11[A] (Supp. 2000) ................. 6,19,26 Press Release, United States Department of Justice, Justice Dept. Civil Fraud (Nov. 10, 2003) ....... 10 | Graham County Soil & Water Conservation District, Cherokee Soil & Water Conservation District, Bill Tipton, Eddie Wood, C.B. Newton, Gerald Phillips, Allen DeHart and Lloyd Millsaps respectfully petition for writ of certiorari to review the judgment of the United States Court of Appeals for the Fourth Circuit. OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-45a) is reported at United States of America ex rel. Wilson v. Graham County Soil & Water Conservation District, 367 F.3d 245 (4° Cir. 2004). The order denying rehearing is unreported (Pet. App. 122a-123a). The district court’s opinion granting Defendants’ motion to dismiss is not reported (Pet. App. 46a-71a). The district court’s denial of Plaintiff's motion for reconsideration and the district court’s certification that the matter is ripe for review pursuant to 28 U.S.C. § 1292(b) is reported at 224 F. Supp. 2d 1042 (Pet. App. 72a-88a). The Memorandum and Recommendation of the United States Magistrate Judge is unreported (Pet. App. 89a-121a). JURISDICTION The Court of Appeals entered its judgment on April 29, 2004 (Pet. App. la-41a) and rehearing was denied on June 28, 2004 (Pet. App. 122a-123a). The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). 2 STATUTORY PROVISIONS INVOLVED This case involves the False Claims Act, 31 U.S.C. §§ 3729-3733. The False Claims Act is set out in Petitioners’ Appendix at 124a-158a. STATEMENT OF THE CASE On March 7, 1997, Plaintiff Karen T. Wilson (hereinafter “Wilson”) resigned as a secretary at the Graham County Sail & Water Conservation District. Over three years and ten months later, Wilson filed the present action. Wilson alleges that she was harassed by Petitioners for exposing various false claims for reimbursement made to certain federally funded programs. Specifically, she claims that Petitioners retaliated against her in violation of 31 U.S.C. § 3730(h) of the False Claims Act. The jurisdiction of the District Court was based upon 31 U.S.C. § 3732(a) and 28 U.S.C. § 1331. Petitioners moved to dismiss Wilson’s retaliatory discharge claim in that it was barred by the applicable limitation period (three years under North Carolina law). The District Court agreed that Wilson’s retaliatory discharge claim was time barred and dismissed this claim. On April 29, 2004, a divided panel of the Fourth Circuit reversed the District Court. The panel concluded that claims under 31 U.S.C. § 3730(h) are governed by the limitation period set out in 31 U.S.C. § 3731(b)(1) (a six-year period). The Fourth Circuit opinions focuses upon the language of 31 U.S.C. § 3731(b) which provides: A civil action under section 3730 may not be brought - - 3 (1) more than 6 years after the date on which the violation of 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) (2004). The Fourth Circuit noted that Section 3730, creates three separate causes of action. 367 F.3d at 248 (Pet. App. 5a). Section 3730(a) creates a cause of action that may be brought by the Attorney General when the Government has been damaged by a false claim. Section 3730(b) provides for the filing of a qui tam action by an individual. Section 3730(h) creates a cause of action for retaliatory discharge when an empluyee has been discriminated against for pursuing a false claim action. As the Fourth Circuit noted, Section 3729 “creates and defines the parameters of iiability for presenting a false claim to the Government.” 367 F.3d at 248 (Pet. App. 5a). Relying upon the language of these sections, the Fourth Circuit concluded that Congress intended to bar any retaliatory discharge claim that is not brought within six years from the date the false claim was submitted to the Government: “[T]he effect of the language as written is to provide that an action under § 3730, which necessarily includes an action for retaliation under 4 § 3730(h), may be brought no more than six years after the date on which the underlying violation was committed.” 367 F.3d at 248 (Pet. App. 5a-6a). Recognizing that this issue has “divided both our sister circuits and courts within this circuit,” the Fourth Circuit rejected the rationale of the Ninth Circuit in United States ex rel. Lujan v. Hughes Aircraft Co., 162 F.3d 1027 (9 Cir. 1998). 367 F.3d at 249 (Pet. App. 8a). In Lujan, the Ninth Circuit concluded that 31 U.S.C. § 3731(b) does not provide a limitation period for retaliatory discharge claims, because the limitation period in this section only addresses violations of Section 3729 and Section 3729 has no bearing upon retaliatory discharge actions. In its decision, the Fourth Circuit expressly rejected the Ninth Circuit’s decision and instead adopted the rationale of the Seventh Circuit in Neal v. Honeywell, Inc., 33 F.3d 860 (7" Cir. 1994). Noting that this issue was difficult and divisive, Judge Wilkinson dissented. In his dissent, he reasoned that the Fourth Circuit’s opinion cannot be squared with the literal language of the False Claims Act and is not consistent with Congressional intent. Moreover, he concluded that the majority’s decision “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.” 367 F.3d at 257 (Wilkinson, J., dissenting) (Pet. App. 28a-29a). REASONS FOR GRANTING THE PETITION This petition provides the Court with an opportunity to resolve a split among the circuit courts as to the appropriate limitations period for retaliatory discharge actions under the False Claims Act. In the absence of a ruling by this Court, 5 employers and employees will face uncertainty and inconsistent outcomes as to what limitation period governs. Given the breadth and magnitude of litigation arising under the False Claims Act, the resolution of this issue is important to the Government, Government contractors and employees throughout the Country. The petition should be granted in order to resolve this significant issue and to correct the erroneous decision of the Fourth Circuit. I. THE FOURTH CIRCUIT’S DECISION DEEPENS AN EXISTING CONFLICT AMONG THE CIRCUIT COURTS. In holding that a six year limitation period applies to retaliatory discharge actions under the False Claims Act, the Fourth Circuit expressly disagreed with the decision of the Ninth Circuit in Lujan v. Hughes Aircraft Co., 162 F.3d 1027 (9" Cir. 1998) (applying most closely analogous state limitation period). In doing so, the Fourth Circuit has joined the Third and Seventh Circuit on this issue. Thus, four separate circuit courts have now addressed whether a six year statute of limitations or the most analogous state statute of limitation should be applied to retaliatory discharge actions under the False Claims Act. United States of America ex rel. Wilson v. Graham County Soil & Water Conservation District, 367 F.3d 245 (4" Cir. 2004); United States ex rel. Malloy v. Telephonics Corp., 68 Fed. Appx. 270 (3d Cir. 2003), cert. denied, 158 L. Ed. 2d 469 (2004); Lujan v. Hughes Aircraft Co., 162 F.3d 1027 (9" Cir. 1998); Neal v. Honeywell, Inc., 33 F.3d 860 (7" Cir. 1994). The division that exists among the circuit courts is unlikely to be resolved in the absence of a ruling by this Court. As Judge Wilkinson noted in 6 his dissent, “This is not an easy case, and there exists a square conflict between the [circuit courts].” 367 F.3d at 257 (Pet. App. 28a); Grand ex rel. United States v. Northrop Corp., 811 F. Supp. 333, 336 (S.D. Ohio 1992) (noting that this is a “difficult issue”). Numerous commentators have also recognized that given the split among the circuits and the various arguments that have been made on both sides, the ultimate resolution of this issue is far from clear. See, e.g., J. Boese, Civil False Claims and Qui Tam Actions § 4.11[A], at 4-204 (Supp. 2000). On the one hand, the Ninth Circuit has held that vecause the False Claims Act does not provide for a specific limitation period with respect to retaliation claims, courts must apply the most closely analogous statute of limitations under state law. Lujan v. Hughes Aircraft Co., 162 F.3d 1027 (9 Cir. 1998). In Lujan, the plaintiff relied upon the language of 31 U.S.C. § 3731(b)(1) which states that “a civil action under section 3730” may be brought within six years of the date “on which the violation of section 3729 is committed.” The plaintiff argued that because the retaliatory discharge provision is set out in 31 U.S.C. § 3730(h) and this subsection is within Section 3730, a six year period must be applied to retaliation claims. The Ninth Circuit rejected this reading of 31 U.S.C. § 3731(b)(1), noting that “[t]he answer is not so simple.” 162 F.3d at 1034. The Ninth Circuit concluded that the language and legislative history of the False Claims Act demonstrates that Congress did not intend for a six year limitation period to apply to retaliation claims. The Ninth Circuit noted that prior to 1986, when Congress first added a retaliatory discharge provision to the False Claims Act, Section 3731(b) provided that a “‘civil action under section 3730 of this title must be brought within 6 years from the date the violation is committed.’” 162 F.3d at 7 1034 (quoting 31 U.S.C.A. § 3731(b) (West 1983)). When the retaliatory discharge provision was added in 1986, Section 3731(b) was changed so as to tie the six years to the date “the violation of section 3729 is committed.”” Jd. (quoting 31 U.S.C.A. § 3731(b)(1) (West Supp. 1998)). Because Section 3729 relates solely to substantive violations of the False Claims Act and does not address retaliation, the Ninth Circuit concluded that Congress did not intend to apply a six year period to retaliation claims: If Congress had wanted to retain a six- year statute for all actions under section 3730, including retaliation claims, it would have left the pre-1986 amendments to the [False Claims Act]. Instead, Congress, while adding a provision for retaliation claims under 3730(h), narrowed the application of the six-year statute of limitations to violations of section 3729. Section 3729 specifically and strictly addresses false claims, not retaliation claims. That Congress was specifically concerned with false claims in its 1986 amendments to the statute of lim‘*»tions is further illustrated by its addition of section 3731(b)(2). This section provides an alternative to the six-year statute of limitations for false claims, namely a period of no more than three years after material facts should have been known by the relevant government official, but never longer than ten years after the violation was committed. 31 U.S.C. § 3731(b). The legislative history to this sectic= indicates that this change was enacted to “ensure the Government’s rights are not lost through a wrongdoer’s successful deception,” because “fraud is, by nature, deceptive .. . .” S. Rep. No. 99-345, at 15 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, £200. The same rationale is inapposite to a private claim for retaliation. There is nothing covert or deceptive about retaliation — the victim feels its sting immediately. In the absence of some meaningful indication to the contrary, we must therefore presume that, in amending section 3731(b) so that the limitation runs only from the date of a violation of section 3729, Congress did not intend that the statute apply to section 3730(h). 162 F.3d at 1034. On the other hand, the Seventh Circuit has rejected this rationale. In Neal v. Honeywell, Inc., 33 F.3d 860 (7 Cir. 1994), the Seventh Circuit concluded: Section 3731(b)(1) allows six years to file suit under § 3730 from “the date on which the violation of § 3729 is committed.” Section 3729 deals with making false claims. Neal filed this suit under § 3730 within six years of Honeywell’s false claims. It is therefore timely. Id. at 865. The Seventh Circuit proceeded to dismiss the employer’s argument that such a statutory construction is 9 illogical because it could lead, in certain circumstances, to The Seventh Circuit reasoned that this six year period was akin to a statute of repose and therefore concluded that there was “no absurdity in the statute.” Jd. : In addition to the Seventh Circuit, the Third Circuit has held that a six year limitation period is to be applied to retaliatory discharge claims under the False Claims Act. United States ex rel. Malloy v. Telephonics Corp., 68 Fed. Appx. 270 (3d Cir. 2003). In Malloy, however, the Third Circuit simply applied a six year limitation period without discussion of the issue. District courts in the Third Circuit have also applied a six False Claims Act. See United States ex rel. Cantekin v. University of Pittsburgh, 1997 U.S. Dist. LEXIS 22868 (W.D. Pa. 1997). . In the present action, the Fourth Circuit noted that the “proper interpretation of these provisions [of the False Claims circuit.” 367 F.3d at 249 (Pet. App. 8a). The Fourth Circuit expressly rejected the rationale of the Ninth Circuit and adopted that of the Seventh Circuit. The Fourth Circuit concluded: “we find no ambiguity undermining the conclusion that Congress intended the revised limitation period of § 3731(b) to apply to all claims under § 3730, including retaliation claims under § 3730(h).” Jd. at 250-51 (Pet. App. 9a-10a). In his dissent, Judge Wilkinson expressed his belief that the view of the Ninth Circuit’s decision was the better reasoned approach: “In my judgment, the Lujan court advances the better interpretation of the False Claims Act, 31 U.S.C. §§ 3729-3733 (2000).” 367 F.3d at 257 (Wilkinson, J., dissenting) (Pet. App. 28a). 10 The Fourth Circuit’s decision therefore deepens an existing split between the circuit courts. Review is warranted to resolve this conflict. IL. THE FOURTH CIRCUIT’S OPINION RAISES AN IMPORTANT ISSUE OF FEDERAL LAW Whether courts should apply a six year statute of limitations to retaliatory discharge claims under the False Claims Act or the most closely analogous state law limitation period is an important question of federal law. Few, if any, statutes have had a greater impact upon how our Government does business with private contractors than the False Claims Act. During the past year alone, the United States recouped $2.1 billion from government contractors under the False Claims Act. Press Release, United States Department of Justice, Justice Dept. Civil Fraud (Nov. 10, 2003). This legislation has been appropriately described as “the most effective single law in history for individual whistleblowers to have an impact against corruption.” Hearing on S. 1358 Before the Senate Gov’t Affairs Comm., 108 | Cong. (Nov. 12, 2003). Whether congressional intent is correctly applied by the courts with respect to the whistleblower protections created by this legislation has far-reaching impact upon the Government, private employers and employees who report fraud against the Government. The question as to what limitations period Congress intended with respect to retaliatory discharge claims under the False Claims Act is a recurring issue. As set out above, federal courts have divided on the issue of whether a six year limitation period or analogous state law limitation periods should be 11 applied to retaliatory discharge claims brought under the False Claims Act. Although numerous courts have already ruled upon this issue, this issue will continue to arise in qui tam proceedings. Since 1986, when Congress adopted the retaliatory discharge provisions of the False Claims Act, over 4,000 actions have been filed by qui tam plaintiffs. Press Release, United States Department of Justice, Justice Dept. Recovers Over $1 Billion in FY 2002 (Dec. 16, 2002). The sheer number of qui tam actions (and resulting retaliatory discharge claims) before the federal courts ensures that this issue will be litigated and argued in federal courts throughout the Country until definitively resolved by this Court. Moreover, this appeal has significant economic impact upon employers throughout the Country. Under the Fourth Circuit’s opinion, an employee who is discharged in violation of 31 U.S.C. § 3730(h) may sit on his or her rights and wait to file a complaint until six years from the underlying Fa'se Claims Act violation. Given the fact that 31 U.S.C. § 3730(h) provides for double recovery of back pay, the effect of the Fourth Circuit’s decision is to allow claimants to recover over twelve year’s worth of salary by manipulating when a complaint is filed. In sharp contrast to 31 U.S.C. § 3730(h), on the numerous other Congress has generally restricted the limitation period to two years or less.' When Congress has provided employees with a ! See Federal Deposit Insurance Act, 12 U.S.C. § 1831j (two year limitation period); National Labor Relations Act, 29 U.S.C. §§ 158, 160 (six months); Surface Transportation Assistance Act, 49 U.S.C. § 31105 (180 days); Migrant and Seasonal Agricultural Workers Protection Act, 29 U.S.C. § 1855 (180 days); Energy Reorganization Act, 42 U.S.C. § 5851 (180 12 remedy of reinstatement or back pay, Congress has consistently kept the limitation period short in order to offset the mounting back pay claims that employers and the Nation’s economy would otherwise face. See, e.g., Early v. Bankers Life & Casualty, 959 F.2d 75, 80-81 (7th Cir. 1992) (“The short statutes of limitations in employment cases have a purpose - - both backpay obligations and the difficulty of reintegrating a terminated worker into the workforce grow with each day that passes before an employment dispute is resolved - - and it is ill served when the employer does not receive prompt notice of the dispute.””). The Fourth Circuit’s employers significant potential liability — far beyond the burden Congress intended for American employers to bear. The Fourth Circuit’s interpretation of 31 U.S.C. § 3730(h) also constitutes a significant departure from every other whistleblower statute enacted by Congress in that it ties the commencement of the limitation period to the underlying statutory violation rather than the date of the discharge. As Judge Wilkinson vehemently argued in his dissent: days); TSCA (asbestos), 15 U.S.C. § 2651 (90 days); Sarbanes-Oxley, 18 U.S.C. § 1514A (90 days); Aviation Investment and Reform Act, 49 U.S.C. §42121 (90 days); Safe Containers for International Cargo Act, 46 U.S.C. app. § 1506 (60 days); Federal Mine Safety and Health Act, 30 U.S.C. § 815 (60 days); Federal Surface Mining Act, 30 U.S.C. § 1293 (30 days); Clean Au Act, 42 U.S.C. § 7622 (30 days); Safe Drinking Water Act, 42 U.S.C. § 300}-9 (30 days); Solid Waste Disposal Act, 42 U.S.C. § 6971 (30 days): Water Pollution Control Act, 33 U.S.C. § 1367 (30 days); CERCLA, 42 U.S.C. § 9610 (30 days); TSCA, 15 U.S.C. § 2622 (30 days); OSHA, 29 U.S.C. § 660 (30 days). On other occasions, Congress has declined to specifically adopt a limitation period. See ERISA, 29 U.S.C. § 1140. 13 The majority’s interpretation is at odds with all statutes of limitations for wrongful discharge, which commence with the occurrence of the retaliatory acts. 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 retaliatory event. Because the retaliation bears adversely on the affected employee, it serves as the best possible notice that the employee may henceforth seek redress. The 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 14 to run on the date of the discharge. In an action challenging a wrongful act, the limitations 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. 367 F.3d at 260 (Pet. App. 35a-36a) (citations omitted). The effect of the Fourth Circuit’s opinion is to replace a clear and definite date for the commencement of the limitations period (the employee’s date of discharge) with a commencement date that is fraught with uncertainty. Although an employee will always know his or her date of discharge, in many cases, the employee will not know when the alleged fraud upon the Government occurred. Because litigants can no longer look to the act of discharge and calculate the applicable limitations period from that date, both the employee and employer must conduct discovery and litigate the underlying False Claims Act violation before ever determining whether the retaliatory discharge claim is stale. Accordingly, the decision has a significant impact upon litigation costs (and judicial resources) in retaliatory discharge actions. Finally, the Fourth Circuit’s decision threatens to undermine the limitations periods for every other whistleblower statute enacted by Congress. The limitations periods for each of these statutes is significantly less than six years; many of these Statutes require the employee to act within 30 days of the discharge. See supra p. 11 n.1. With the decisions of the Third, Fourth and Seventh Circuits that a six year limitation period applies to 31 U.S.C. § 3730(h), employees who miss the filing deadlines under these other whistleblower statutes will simply 15 repackage their retaliation claim as one arising under the False Claims Act. To do so, the employee must merely assert that the alleged wrongdoing touches upon some aspect of Government spending. Given the Government’s pervasive presence as a purchaser of goods and services, virtually every whistleblower claim from the Aviation Investment and Reform Act to the Federal Deposit Insurance Act can be repackaged as a claim under the False Claims Act. Thus, the Fourth Circuit’s imposition of a six year statute of limitations has significant and far reaching implications upon every whistleblower statute enacted by Congress. Here, the plaintiff is seeking back pay from March 7, 1997. Given the double damage provision of the False Claims Act, she is effectively seeking to recover 15 years of salary. Despite her delay in filing this action, the Fourth Circuit has allowed her claim to go forward. Not only does that decision force the defendants before the Court to defend a stale claim in which back pay damages are mounting with each passing day, the decision has far-reaching implications upon all employers doing any form of business with the United States Government. Il. THE FOURTH CIRCUIT ERRED IN APPLYING A SIX YEAR LIMITATION PERIOD TO RETALIATORY DISCHARGE ACTIONS UNDER THE FALSE CLAIMS ACT. This Court should also grant certiorari in that the Fourth Circuit clearly erred in applying a six year limitation period to claims brought under 31 U.S.C. § 3730(h). The Fourth Circuit's 16 construction of this statute is contrary to the language of the False Claims Act, misconstrues congressional intent, and produces an illogical and unmanageable scheme for limiting stale claims. 1. The Fourth Circuit’s construction of the False Claims Act is contrary to the language of that Act. The retaliatory discharge provision of the False Claims Act is found at 31 U.S.C. § 3730(h). This sub-section provides: Any employee who is discharged, demoted, suspended, threatened, 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 assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole. Such relief shall include reinstatement with the same seniority status such employee would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees. 17 31 U.S.C. § 3730(h) (2004). Section 3729 of the False Claims Act, 31 U.S.C. § 3729, sets out the conduct that constitutes the submission of a false claim to the Government. Section 3729 speaks only to the underlying False Claims Act violation and contains no reference to wrongful discharge or any act that would constitute a violation of 31 U.S.C. § 3730(h). Section 3731 of the False Claims Act provides as follows: (b) A civil action under section 3730 may not be brought - - (1) more than 6 years after the date on which the violation of 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) (2004). The Fourth Circuit concluded that because the retaliatory discharge provision falls within Section 3730, the language of Section 3731 requires that a six-year limitation period be applied to such claim. Section 3731, however, only addresses the limitation period for an underlying 18 violation of the False Claims Act, not a retaliatory discharge claim. As judge Wilkinson explained in his dissent: The text of [31 U.S.C. § 3731(b)] could not be more plain. The six-year period is tied to a “violation of section 3729” and nothing else. Because an anti-retaliation claim does not involve a “violation of section 3729” but instead a violation 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 the statute of limitations without a starting point. Retaliation 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 incongruous 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. 367 F.3d at 258 (Wilkinson, J., dissenting). The limitation period in Section 3731(b) is directly tied to a “violation of section 3729.” Section 3729, in turn, “strictly addresses false 19 claims, not retaliation claims.” Lujan v. Hughes Aircraft Co., 162 F.3d at 1034. Thus, the language of the limitations period set out in Section 3731(b) “clearly speaks only to the underlying False Claims Act violation.” J. Boese, Civil False Claims and Qui Tam Actions § 4.11[A], at 4-204 (Supp. 2000). Accordingly, the structure and language of the False Claims Act make clear that Congress did not provide for a specific statute of limitations with respect to retaliatory discharge claims arising under the Act. 2. The Fourth Circuit’s decision misconstrues and ignores congressional intent. As set out in the legislative history of the 1986 amendments to the False Claims Act, the Act’s whistleblower provisions were modeled after eight other statutes that had been previously enacted by Congress: [T]he Committee seeks to halt companies and individuals from using the threat of economic retaliation to silence “whistleblowers,” as well as assure those who may be considering exposing fraud that they are legally protected from retaliatory acts. In forming these protections, the Committee was guided by the whistleblower protection provisions found in Federal safety and environmental statutes including the Federal Surface Mining Act, 30 U.S.C. 1293, Energy Reorganization Act, 42 U.S.C. 5851, Clean Air Act, 42 U.S.C. 7622, Safe Drinking Water Act 20 42 U.S.C. 300j-9, Solid Waste Disposal Act, 42. U.S.C. 6971, Water Pollution Control Act, 33 U.S.C. 1367, Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9610, and Toxic Substances Control Act, 15 U.S.C. 2622. S. Rep. No. 99-345, at 34 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5299. Like 31 U.S.C. § 3730(h), each of these eight whistleblower statutes provides that an employee who has suffered retaliation may be reinstated to his or her position and recover back pay. These statutes further provide that an employee loses his or her right to pursue a whistleblower claim unless the claim is asserted within a relatively short time period from the discharge. The longest period that any of these eight statutes allows for the filing of a claim is180 days from the discharge or discrimination. The vast majority of these statutes provides that a claim must be asserted within 30 days of the discharge. In contrast to these eight statutes, the Fourth Circuit has concluded that the time period for filing a retaliation claim under the False Claims Act is six years and that this period runs from the date of the underlying False Claims Act violation rather than the date of the retaliatory act. No other whistleblower statute enacted by Congress has ever had a limitations period even remotely approaching six years. Moreover, every one of these Statutes provides that the limitations period begins running upon the act of discharge or discrimination. Had Congress truly intended to make such a radical departure from other whistleblower statutes, this intent would have undoubtedly been discussed at length during congressional debate. No such debate 21 occurred. In fact, as set out below, infra pp. 21-25, the discussion of the 1986 amendment during congressional debate reflects that Congress believed that the six year limitation period does not apply to retaliatory discharge claims under 31 U.S.C. § 3730(h). Sound public policy reasons exist for Congress’ decision to enact relatively short limitation periods with respect to whistleblower statutes. When a statute provides for reinstatement, the longer an employee delays in asserting his or her rights, the more difficult it is for the employer to reinsert the employee into the same position. Moreover, when Congress provides for recovery of back pay, a lengthy limitation period may result in economic waste in that it encourages an employee to sit on his or her claim in order to recover the greatest possible damages. See, e.g., Truitt v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998) (Congress intended short limitation period when “damages such as backpay may be mounting”); see also Delaware State College v. Ricks, 449 U.S. 250, 256-57 (1980) (limitation periods “protect employers from the burden of defending claims arising from employment decisions that are long past”). As Judge Posner has noted, “The statute of limitations is short in . . . most employment cases because delay in the bringing of suit runs up the employer's potential liability; every day is one more day of backpay entitlements.” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 453 (7th Cir. 1990). Although the Fourth Circuit purports to base its decision on the legislative history of the 1986 Amendments to the False Claims Act, the Fourth Circuit utterly ignores debate on the floor of Congress that clearly shows that Congress never intended to apply a six year statute of limitation to claims brought under 31 U.S.C.§ 3730(h). In its opinion, the Fourth Circuit notes that the 22 original drafts of the House and Senate bills to amend the False Claims Act set out the retaliatory discharge provisions as a separate section of the statute (to be codified at 31 U.S.C. § 3734). See 367 F.3d at 252 (Pet. App. 15a-16a). Thereafter, Congress condensed the act by simply placing this proposed new section as a sub-section within 31 U.S.C. § 3730. The majority opinion concludes that this renumbering of the statute evidences Congress’ intent that a six year statute of limitations be applied to retaliatory discharges: Had § 3730(h) been enacted as a separate section as originally contemplated by the legislative 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 statute of limitations would be clear. 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. 367 F.3d at 252 (Pet. App. 16a) (citations omitted). The Fourth Circuit, however, ignores the fact that both before and after the renumbering of the statute, Congress clearly understood and believed that this six year limitation provision would only be applied to violations of the False Claims Act brought on behalf of the Government (as opposed to retaliatory discharge claims brought by an employee for the sole benefit of the employee). On December 12, 1985, the Senate Judiciary Committee reported favorably on the proposed amendments to the False 23 Claims Act (Senate Report No. 99-345, reprinted in 1986 U.S.C.C.A.N. 5266). As of that date, the retaliatory discharge provisions were to be set out as a separate section (31 U.S.C. § 3734) and had not yet been moved into 31 U.S.C. § 3730. In addition to adding whistleblower protection to the False Claims Act, the proposed amendments enlarged the limitations period with respect to claims brought on behalf of the Government. In its discussion of this change, the Senate Report makes clear that the six year statute of limitations (as amended by the proposed legislation) only relates to False Claims Act violations brought for the benefit of the Government: Seventh, the subcommittee added a modification of the statute of limitations to permit the Government to bring an action within 6 years of when the false claim is submitted (current standard) or within 3 years of when the Government learned of a violation, whichever is later. The subcommittee agreed that because fraud is, by nature, deceptive, such tolling of the statute of limitations is necessary to ensure the Government’s rights are not lost through a wrongdoer’s successful deception. _ S. Rep. No. 99-345, at 15 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5280 (emphasis added). As reflected by this Senate Report, the proposed amendments (as they existed as of December 12, 1985) were not intended to create a six year limitations period for retaliatory discharge claims. Rather, the six year limitation period and the new tolling provision were 24 limited to claims brought on behalf of the Government to “ensure the Government’s rights are not lost.” In September 1986, Congress altered the bill as it had been reported by the Senate and House Judiciary Committees. As part of those changes, the retaliatory discharge provision (proposed as a new section 31 U.S.C. § 3734) was moved into 31 U.S.C. § 3730. 132 Cong. Rec. 22,332 & 28,576 (1986). Following the renumbering of the statute, however, Congress continued to view the six year limitation period as being applicable only to False Claims Act violations brought on behalf of the Government. On September 9, 1986, Congressman Fish of New York, in discussing the revised bill, stated in floor debate: Section 5 amends the statute of limitations to permit the Government to bring an action within 6 years of when the false claim is submitted, the current standard, or within 3 years after the Government learns of the violations, whichever is later. 132 Cong. Rec. 22,337 (1986). Thus, even after the consolidation of the whistleblower provisions into Section 3730, Congress believed that the six year limitation period was only applicable to claims brought on behalf of the Government. The six year limitations period was not intended to apply to employees making a retaliation claim for their own personal benefit. Rather than supporting the position taken by the Fourth Circuit, the legislative history of the 1986 amendments to the False Claims Act demonstrates that Congress did not intend to 25 apply a six year statute of limitations to retaliatory discharge claims. 3. The Fourth Circuit’s decision is illogical and creates an unmanageable scheme for determining when the limitation period commences. Under the Fourth Circuit’s decision, the limitation period for a retaliatory discharge claim under the False Claims Act begins to run from the date of “the violation of Section 3729.” Thus, the Fourth Circuit ties the limitation period not to the act of retaliation, but to the date of the underlying False Claims Act violation. In doing so, the Fourth Circuit produces a result that is illogical and is contrary to every other whistle-blower statute enacted by Congress. First, the Fourth Circuit’s decision fails to provide employers and employees with adequate notice as to when the statute of limitations begins to run. Under every whistleblower statute in this Country, the limitations period begins to run upon the act of the discharge or retaliation. The reason is simple — employees know immediately when they have been fired. The injury resulting from the retaliatory act is open and obvious. In contrast, in many cases an employee will not know with specificity the date on which a violation of Section 3729 first occurred. Second, the Fourth Circuit’s interpretation of the False Claims Act leads to the absurd result that the retaliatory discharge claim of some whistleblowers will be time barred even before the act of discharge. Under the Fourth Circuit’s decision, the limitations period begins running six years from the time the 26 employer submits a false claim to the Government. If an employee discovers a false claim years after the claim was submitted and proceeds to blow the whistle, Section 3730(h) will not protect the employee from retaliation. As courts and commentators have noted, it would be a “bizarre result” if an employee who brings a false claim action immediately prior to the expiration of the six year period could be fired shortly thereafter and yet the employee’s retaliatory discharge claim would be time-barred. J. Boese, Civil False Claims and Qui Tam Actions § 4.11[A], at 4-205 to -206 (Supp. 2000). Third, the Fourth Circuit’s decision creates “an unprecedented oddity” in that while some employees will see their retaliation claim time barred even before the act of discharge, for other employees, their claim will never be time- barred. Graham County Soil & Water, 367 F.3d at 260 (Wilkinson, J., dissenting) (Pet. App. 35a). A retaliatory discharge claim may occur even when there has been no violation of Section 3729. S. Rep. No. 99-345, at 35 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5300. Thus, under the rationale adopted by the Fourth Circuit, when an employee incorrectly (but in good faith) blows the whistle on his or her employer, any retaliatory discharge claim brought by that employee will never be time barred. For such employees, the stop watch upon the limitations period is never started because there has been no “violation of Section 3729.” The Fourth Circuit decision imposes upon the False Claims Act a framework for determining whether a retaliatory discharge claim is time barred that is both illogical and inconsistent with congressional intent. Given the language of the Section 3730, the legislative history of the 1986 amendments and the bizarre outcomes that flow from tying the limitation 27 period to anything other than the date of the retaliatory act, it is clear that Congress did not intend for a six year period set out in 31 U.S.C. § 3731(b) to apply to retaliatory discharge claims. 28 CONCLUSION The petition for wnt of certiorari should be granted. Respectfully submitted, ROY COOPER Attorney General of North Carolina Christopher G. Browning, Jr.* Solicitor General of North Carolina jill B. Hickey Special Deputy Attorney General Counsel for Petitioners Cherokee County Soil and Water Conservation District, Bill Tipton, C.B. Newton and Eddie Wood Ben Oshel Bridgers Bridgers & Ridenour, PLLC Counsel for Petitioners Graham County Soil and Water Conservation District, _ Gerald Phillips, Allen DeHart and Lloyd Millsaps July 28, 2004 *Counsel of Record APPENDIX la PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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, 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. No. 03-1122 2a S PUBLISHED OPINION OF THE UNITED STATE COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 367 F.3d 245; 2004 U.S. App. LEXIS 8477; 21 LE.R. Cas. (BNA) 507 October 28, 2003, Argued April 29, 2004, Decided OPINION [*247] 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 constructively discharged in retaliation for reporting these activities. Deciding that the six-year limitations period of the FCA did [**2] not apply to the retaliation claim, the district court applied North Carolina's three-year limitations period for wrongful discharge actions and dismissed 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. ; Wilson is a former part-time secretary at the Graham County Soil & Water Conservation District ("the 3a | PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 Conservation District"). On January 25, 2001, Wilson filed a qui tam action pursuant to § 3730(b) of the FCA, alleging that several of her former coworkers at the Conservation District had intentionally submitted false claims for reimbursement 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 [**3] 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. Agreeing 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 limitations issue. The district court denied Wilson's 4a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 request for reconsideration, 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. tt We review de novo the district court's order granting the Appellees’ Rule 12(b)(6) motion [**4] 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, 71 L. Ed. 2d 748, 102 S. Ct. 1534 (1982), and where "the statute's language is plain, ‘the sole function of the courts is to enforce it according to its terms," United States v. Ron Pair (*248} Enters., 489 U.S. 235, 241, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485, 61 L. Ed. 442, 37 S. Ct. 192 (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, 136 L. Ed. 2d 808, 117 S. Ct. 843 (1997). If the language of the statute is ambiguous, in that it lends itself to more than one reasonable interpretation, our obligation is "to find that interpretation which can [**5] most fairly be said to be imbedded in the statute, in the sense of being most Sa PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 harmonious with its scheme and with the general purposes that Congress manifested." Comm'r v. Engle, 464 U.S. 206, 217, 78 L. Ed. 2d 420, 104 S. Ct. 597 (1984) (internal quotation omitted). A departure from the literal text of a Statute is also appropriate if "a literal application would frustrate 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). nl Section 3730 creates three causes of action arising under the FCA: an action for compensation filed by the Attorney General, see § 3730(a); a gui tam action filed by an individual, see § 3730(b); and an action [**6] for retaliatory conduct predicated on identified 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 6a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 brought no more than six years after the date on which the underlying violation was committed. nl 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 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). [**7]Both the retaliation provision of § 3730(h) and the limitations provision 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) 7a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 (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 Government fraud to bring that information forward." S. Rep. [*249] 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), n2 which 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. n2 In full, this subsection provides that: "Any employee who is discharged, demoted, suspended, threatened, 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 assistance 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). 8a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 [**8]The proper interpretation of these provisions has divided both our sister circuits and courts within this circuit. n3 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." Jd. In view of this perceived absence of a congressionally prescribed statute of limitations, the Ninth Circuit concluded that "the most closely analogous statute of limitations under state law" must fill the void. Jd. at 1035 (citing Reed v. United Transp. Union, 488 U.S. 319, 323, 102 L. Ed. 2d 665, 109 S. Ct. 621 (1989)). n3 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). [**9]In contrast, in an earlier decision which the court in Lujan failed to distinguish or cite, the Seventh Circuit found no difficulty in applying § 3731(b)(1) to retaliation claims 9a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 under § 3730(h). See Neal v. Honeywell, Inc., 33 F.3d 860, 865-66 (7th Cir. 1994). n4 The employer in Nea/ 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 administration," and that the employer had mischaracterized the consequences of a literal reading of the statute. n5 /d. at 865. Against this backdrop, we consider Wilson's contention that the district court erred in declining to apply § 3731(b)(1) to her retaliation claim under § 3730(h). n4 Like the court in Lujan on which so much of its reasoning relies, the dissent does not address Neal or its analysis. [**10] nS The United States’ brief in Neal, filed as an amicus curiae at the invitation of the court, "concluded that the statute supports Neal without a thumb on the scales of justice." 33 F.3d at 863. I. Starting, as we must, with the text of the FCA, we find no ambiguity undermining [*250] the conclusion that Congress intended the revised limitations period of 10a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 § 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 [**11] 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 Herculean effort, the dissent cannot disguise the fact that it is asking us to ignore what Congress expressly says: that an action uader § 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, "there is, of course, no more persuasive evidence of the purpose of lla PUBLISHED OPINION OF THE UNITED ST4“ES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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, 84 L. Ed. 1345, 60 S. Ct. 1059 (1940); see also Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980) ("Absent a clearly expressed legislative intention to the contrary, that [**12] language must ordinarily be regarded as conclusive."). A term in a section is ambiguous 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. n6 n6 The dissent draws on two additional canons of statutory construction that we find to be inapplicable to this situation. The first is that "when 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 (Sth Cir. 1997). However, the authority cited by Lackey, Brewster v. Gage, 280 U.S. 327, 337, 74 L. Ed. 457. 55 S. Ct. 115 (1930), makes clear that this doctrine is relevant when Cong:ess 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 12a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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 legislative 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, 152 L. Ed. 2d 90, 122 S. Ct. 1043 (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. Echazabal, 536 U.S. 73, 81-84, 153 L. Ed. 2d 82, 122 S. Ct. 2045 (2002) (identifying "statutory language suggesting 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 l3a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 the “expressio unius" doctrine, neither of which are clearly present in the amended FCA). [*251] B. Applying these principles to sections 3730(h) and 3731(b), we conclude 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), authorizing actions by individuals, are based entirely on violations of § 3729, whereas retaliation claims under § 3730(h) [**14] are not. They reason that because § 3731(b)(1) begins the limitations period on the "date on l4a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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 administration" afforded by the approach codified in § 3731(b)(1)). Indeed, as noted by Judge Easterbrook, "it 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. [**15] "Jd. Rather than signaling by implication Congress's intent to exclude retaliation claims from § 3731(b)(1), the amended text of § 3731(b)(1) simply directs that the limitations period for retaliation claims under the FCA begins when the violation of § 3729, to which such violations of § 3730(h) must be tethered, n7 is found to have occurred. n7 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 lSa PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 retaliatory discharge actionable under § 3730(h) are "independent" events, post at 18, an assertion we find puzzling. If an employee's termination is "independent" 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 termination 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 limitations may precede the final event that gives rise to an action for retaliation, post at 20, but that fact does not render the events "independent" of one another. [**16] [*252] C. Even if it were unclear whether Congress intended the language of § 3731(b)(1) to apply to action: under § 3730(h), the review of the legislative history required by that ambiguity reinforces the conclusion that the section applies to retaliation claims under the FCA. In discussing the provisions created by the 1986 amendments, the legislative 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 l6a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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 discriminated against." Jd. However, no such completely new section was added. Instead, Congress added this provision to § 3730 as subparagraph (h). See False Claims Amendment Act of 1986, Pub. L. No. 99-562, § 4, 100 Stat. 3153, 3157-58 (1986). n8 Had § 3730(h) been enacted as a separate section as originally contemplated by the legislative history to the 1986 amendments, a claim of retaliation under the FCA would not constitute "[a] [**17] civil action under § 3730," and thus Congress's intent to have courts apply the most analogous state statute of limitations would be clear. See Reed v. United Transp. Union, 488 U.S. 319, 323-24, 102 L. Ed. 2d 665, 109 S. Ct. 621 (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, 78 L. Ed. 2d 17, 104 S. Ct. 296 (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."”). n9 n8 In the version of the amendments proposed by the House of Representatives, the retaliation provision was to be included as § 3730(g). See H.R. Rep. No. 99-660, at 12-14 (1986). 17a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 n9 We note that Lujan did not consider this legislative history in concluding that "in the absence of some meaningful indication to the contrary, 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). [**18] 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 hypothetical situations constitutes an absurd result. n10 n10 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 exploration of the consequences that flow 18a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 directly from the text of the FCA itself, and are offered to demonstrate only that the statute means precisely what the statute says. In contrast, the dissent offers a number of policy rationales for its competing construction of § 3731(b), which considers only a part of the language added by Congress in 1986. More importantly, the dissent's dissertation fails to demonstrate that any of the consequences identified here are absurd. Certainly, the arrangement that follows from the plain text of the § 3731(b) is a departure from the limitations 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, "the wisdom of Congress’ action ...is not within our province to second guess." Eldred v. Ashcroft, 537 U.S. 186, 222, 154 L. Ed. 2d 683, 123 S. Ct. 769 (2003). To the extent the dissent cannot fathom why "the majority goes 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 19a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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. [**19] [*253]} A. In support of their argument that § 3731(b)(1) may, in certain circumstances, 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 limitations period before Or, an employee may report a § 3729 violation that is so old 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 common 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 [**20] 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). 20a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 Second, courts have recognized that there is, as a practical matter, a close temporal relationship between a protected act and the retaliatory 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 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 staleness. Even assuming the hypothetical circumstances described by the Appellees occur, [**21] the doctrines of equitable tolling or equitable estoppel 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 plaintiff 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 [*254] described as "the consequence ...of a deliberate design by the employer," such that the employer could be barred from raising the 2la PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 limitations period as a defense under the doctrine of equitable estoppel. /d. (internal quotation omitted). n11 Ultimately, the speculation 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 interpretation would have on the retaliation claim at issue here. The result which would flow from the interpretation advanced by the Appellees (**22] 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. nll 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 interpreting 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 22a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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 *hese arguments in favor of applying the North Carolina statute should not be dispositive on appeal. [**23] 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 susceptible to a reading that begins the limitations period with a proven violation rather than an alleged violation, see Ackley, 110 F. Supp. 2d at 402, we are not persuaded this construction is appropriate, particularly 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 surplusage. If the term "violation" in § 3731(b)(1) is read to require a judicially 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 [**24] inquiry to include 23a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 other provisions of the FCA reinforces 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 vindicated 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 supplying "information during the ‘investigation’ of a suit ‘to be filed’ in the future." /d. (quoting § 3730(h)). More importantly, Neal also concluded based on this language that it was inappropriate to read the term "violation" as "a condition subsequent, necessary to perfect the protection for activities that were sheltered at the moment of their commission." /d. at 864. Rather, it should be assessed "according to [*255] how things stood at the time of the investigatory activity.” Jd. 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 protected. An objectively reasonable "good faith” belief [**25] 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 retaliation under the Civil Rights Act of 1964, a plaintiff need only demonstrate a subjective "good faith" belief that the activity she engaged in was protected that is objectively reasonable, rather than proving conclusively that the activity was protected as a matter of law). In light of the 24a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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 invocation 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 statute taken as a whole." SEC v. Sloan, 436 U.S. 103, 121, 56 L. Ed. 2d 148, 98 S. Ct. 1702 (1978). V. Finally, we are not convinced that applying § 3731(b)(1) to Wilson's retaliation claim would yield a result that is at odds with Congress's intent in amending the FCA. To the contrary, we find the purposes of the FCA [**26] are well- served by application of § 3731(b)({1) te retaliation actions under § 3730(h), for three reasons. First, as the Supreme Court recently noted, one of the intended effects of Congress's 1986 amendments to the FCA was to "enhance[] the incentives for relators to bring suit." Cook County v. United States ex rel. Chandler, 538 U.S. 119, 133, 155 L. Ed. 2d 247, 123 S. Ct. 1239 (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 limitations periods as short as 180 days. See e. g., Tex. Health & Safety Code Ann. §§ 161.132, 161.134 (Vernon 2002) (imposing 180-day 25a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 period in which to file action alleging retaliation against health-care worker for reporting "conduct that is or might be illegal, unprofessional, or unethical and that relates to the operation of the facility"); Grand, 811 F. Supp. at 336 n. 2 [**27] (noting terminating employer's contention that Ohio's 180-day limitations period governs retaliation <:aims under the FCA should § 3731(b)(1) not apply). Such an abbreviated limitations period may be too short for an employee to adequately 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 "“identify[ the injury, decide in the first place to bring suit against and thereby antagonize union leadership, and find[{] an attorney"). Applying 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. [*256]Second, the uncertainty inherent in the process of identifying which of several potentially applicable statutes in any given state is "most [**28] analogous" would further undermine the protection afforded by § 3730(h). To make this determination, courts must first “characterize the essence" of the plaintiffs claim, then decide which state 26a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 statute provides "the most appropriate limiting principle.” Wilson v. Garcia, 471 U.S. 261, 268, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). While we do not doubt the ability of the district courts to follow these considerations to their logical conclusion, 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, 102 L. Ed. 2d 594, 109 S. Ct. 573 & 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 [**29] a violation of § 3729. Cf. Reed, 488 U.S. at 326 ("Time-consuming litigation as to the collateral question of the appropriate 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 limitations may require district courts to 27a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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 /ex 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 [**30] of the forum state's choice- of-law rules). Forcing an employee to confront 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 consideration is underscored by the legislative history of the 1986 amendments, 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 consonant 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). Accordingly, 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 28a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 that dismissal, and remand for further proceedings consistent with this opinion. VACATED AND REMANDED [*257] WILKINSON, Circuit Judge, dissenting: [**31] 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 Circuit, 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 district court correctly held that North Carolina's three-year statute of limitations for wrongful discharge applies to complaints of retaliatory conduct brought under sectioa 3730(h) of the FCA. 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 [**32] 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 . 29a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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 limitations by counseling judges to exercise equitable tolling powers to recognize 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 [**33] occur in such a period, and the relevant evidence 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 actior of wrongful discharge. See Reed v. United Transportation Union, 488 U.S. 319, 323-24, 102 L. Ed. 2d 665, 109 S. Ct. 621 (1989). North Carolina's three-year statute of limitations for wrongful discharge 30a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 affords a whistle-blowing employee both adequate notice and a reasonable period of time to file anti-retaliation claims. L 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 violation of section 3729 is committed, or [*258] (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 [**34] 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 reading suggests that the statute of limitations applies. But "the answer is not so simple.” Lujan, 162 F.3d at 1034. Unfortunately, the majority's purported plain language interpretation 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. 3la PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 This fact alone suggests that the statute 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 provision could not be more plain. The six-year period is tied to a "violation of section 3729" and nothing else. Because an anti-retaliation claim does not involve a "violation of section 3729" but instead a violation of [**35] 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. Retaliation by an employer may also occur more than six years after the employer committed the false claims violations, which would leave ‘he employee without a cause of action. Therefore, it seems incongruous 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 32a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 [**36] commences on the date when federal officials charged with responsibility to act under the FCA knew or reasonably should have known material facts concerning 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. 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 [*259] provision clearly established that a six-year statute of limitations applied to all [**37] 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.” Salomon Forex, Inc. v. Tauber, 8 F.3d 966, 975 33a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 (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 limitations 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 Congress would not have added the alternative provision that the statute of limitations for section 3730 runs three years after an official knew or reasonably should have known of facts material to the right of action. See 31 U.S.C. § 3731 [**38] (6)(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 "when 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 (Sth 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 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 34a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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 Congress includes one provision, it is safe to assume that it excludes others, absent evidence to the contrary. Russeilo v. United States, 464 U.S. 16, 23, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983). [**39] 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 protections 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 Congress 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 startling 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 35a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 fraud to light. Section 3731(b) is self-evidently a statute of limitations. [**40] The majority implies that when it picked the point to start the limitations period, [*260] 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 applyto section 3730(h) claims. As the Lujan court held, "in the absence of some meaningful indication to the contrary, we must therefore presume that, in amending section 3731(b) so that the limitation 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 limitations 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 [**41] (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 36a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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 retaliatory 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 [**42] 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 limitations 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 interpretation a whistle-blowing employee could report on his employer's submission of a false claim some five years or more after the claims were submitted, yet be 37a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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 equitable tolling powers in such instances to override the limitatic’)s period in the interests of justice. But the idea that a statute of limitations could expire even before the [**43] 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 undermines the value of having a statute [*261) 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 powers 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 rescue 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 38a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 the statute or legislative history is Congress’ desire for simplicity of administration [**44] articulated. Simplicity of administration is certainly not furthered by the majority's exhortation for judges to use equitable tolling. Nor is simplicity of administration advanced by the majority's discussion of what actually 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 running 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 government 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 relationship between a protected act and the retaliatory conduct based on it," Maj. op. [**45] at 13, an employer, and especially one aware of the majority'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 purportedly absurd consequences advanced by the Appellees 39a PUBLISHED OPINION OF THE UNITED ST ATES COURT OF APPEALS FOR THE FOURTH CUIT DECIDED APRIL 29, 2004 oe would occur." Maj. op. at 13. This too is hardly self-evident, because the discovery 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 violations of section 3729, not section 3730(h), in the statute itself. I. "Congress not infrequently fails to supply an express statute of limitations when it creates a federal cause of action. When that occurs, ‘we 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, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983)). [**46] Since Congress 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. [*262] R.J. Reynolds Tobacco Co. 145 N.C. App. 78, 549 S.E. 2d 227, 229 (N.C. Ct. pane 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. 40a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 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. 355, 367, 53 L. Ed. 2d 402, 97 S. Ct. 2447 (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 [**47] odds with the purpose or operation of federal substantive law." North Star Steel Co. v. Thomas, 515 U.S. 29, 34, 132 L. Ed. 2d 27, 115 S. Ct. 1927 (1995) (internal quotations and citations omitted). In fact, this standard would make it easier for affected employees to challenge retaliatory actions, because they would at least know when they could do so. By contrast, the majority's interpretation leaves in the dark plaintiffs who seek to bring the dealings of those who defraud the government 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 limitations 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 consensus 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 0 1 ~ : Oa ead VOIR RS UE, AR Cee ae on re a ie @ ng eee en ay 4 4 , y - 7 4la PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 these actions anytime [**48] 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, 102 L. Ed. 2d 594, 109 S. Ct. 573 (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 majority's new rule may be clear, but in others it will cause uncertainty, [**49] and in still others it will discourage or prevent deserving whistle-blowers from having their day in court. Congress may deem it necessary and appropriate to extend the time frame fer 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. 42a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 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, 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, 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; / 43a PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, DECIDED APRIL 29, 2004 JOHN DOE; JOHN DOE CORPORATIONS, and defendant; GOVERNMENT ENTITIES 1-99, Defendants. ORDER The court amends its opinior filed April 29, 2004, as follows: On page 8, footnote 6, in line 1 of paragraph 1 and lines 1 and 5 of paragraph2: the word “canons” replaces “cannons.” For the Court - By Direction, Clerk 44a ORDER (AMENDING PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT), DATED 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, Vv. 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; 45a ORDER (AMENDING PUBLISHED OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTPF CIRCUIT), DATED MAY 25, 2004 JOHN DOE; JOHN DOE CORPORATIONS, and defends at; GOVERNMENT ENTITIES 1-99, Defendants. ORDER The court further amends its opinion filed April 29, 2004, and amended May 10, 2904, 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. C Clerk 46a : 47a MEMORANDUM OF OPINION (COURT ALLOWING ‘ MEMORANDUM OF OPINION (COURT ALLOWING DEFENDANTS’ MOTION TO DISMISS), DATED DEFENDANTS’ MOTION TO DISMISS), DATED MAY 30, 2002 MAY 30, 2002 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH CAROLINA BRYSON CITY DIVISION CIVIL NO. 2:01CV19 UNITED STATES EX REL., KAREN T. WILSON Plaintiffs, v. GRAHAM COUNTY SOIL & WATER CONSERVATION DISTRICT; GRAHAM COUNTY BOARD OF COUNTY COMMISSIONERS; CHEROKEE COUNTY SOIL & WATER CONSERVATION DISTRICT; CHEROKEE COUNTY BOARD OF COUNTY COMMISSIONERS; RICHARD GREENE; CHERIE GREENE; WILLIAM TIMPSON; RICKY STILES; KEITH ORR; BETTY JEAN ORR; RAYMOND WILLIAMS; DALE WIGGINS; JOYCE LANE; GERALD PHILLIPS; ALLEN DEHART; JIMMY ORR; LLOYD MILLSAPS; JERRY WILLIAMS; BILLY BROWN; LYNN CODY; EUGENE MORROW; CHARLES LANE; CHARLES LANEY; GEORGE POSTELL; BILL TIPTON; LLOYD KISSELBURG; Cl. B. NEWTON; EDDIE WOOD; TED ORR; BERNICE ORR; JOHN DOE AND JOHN DOE CORPORATIONS; and GOVERNMENTAL ENTITIES 1-99, Defendants. MEMORANDUM OF OPINION THIS MATTER is before the Court on objections filed by Relator Karen T. Wilson (Wilson) to the memorandum and Recommendations of the United States Magistrate Judge Max O. Cogburn, Jr. Defendants Graham County Board of County Commissioners (the Graham County Board), Raymond Williams (Williams), Dale Wiggins (Wiggins), and Lynn Cody (Cody) (collectively “responding Defendants”) have filed timely responses to Wilson’s objections. Pursuant to standing orders of designation and 28 U.S.C. § 636, this Court referred the following motions to the Magistrate Judge for a recommendation as to disposition: (1) motion to dismiss filed by the Graham County Board, Williams, Wiggins, and Cody; (2) motions to dismiss and for a more definite statement filed b Defendants Cherokee county Soil & Water Conservation District (the Cherokee County District), Bill Tipton (Tipton), Eddie Wood (Wood), and C. B. Newton (Newton); (3) motion to dismiss filed by Defendants Cherokee County Board of County Commissioners (the Cherokee County Board), Charles Laney (Laney), Eugene Morrow (Morrow), and George Postell (Postell); (4) motion to dismiss of Defendants Graham County Soil & Water Conservation District (the 48a MEMORANDUM OF OPINION (COURT ALLOWING DEFENDANTS’ MOTION TO DISMISS), DATED MAY 30, 2002 Graham County District), Gerald Phillips (Phillips), Allen Dehart (Dehart), Jimmy Orr, and Lloyd Millsaps (Millsaps); and (5) motion to amend the complaint filed by Wilson. The Magistrate Judge filed a recommendation that the motions to dismiss the action filed by the Cherokee County Board, the Cherokee County District, the Graham County Board, the Graham County District (collectively “the municipal governmental entities” or “the municipal entities”), and those individuals who serve on those municipal entities at the relevant times be granted in part; the motions to dismiss filed by the municipal entities and the individual Defendants, in their official capacities, be allowed on the grounds of municipal immunity from punitive damages. The Magistrate Judge further recomincisied that the motions to dismiss the Defendants in their individual capacities be denied.' The Magistrate Judge recommended that Wilson’s motion to amend her complaint to comply with the requirements of F. R. Civ. P. 9(b) be granted. The district court conducts a de novo review of those portions of a Magistrate Judge’s Memorandum and ' The Magistrate Judge noted that the real parties in interest were not the County Boards, but rather Graham County and Cherokee County. If this Court determined that the municipal entities were not found to be allowing Wilson to amend her complaint to insert the counties themselves as Defendants in place of the Boards. The Magistrate Judge also recommended that these amendments would relate back to the date the 49a MEMORANDUM OF OPINION (COURT ALLOWING DEFENDANTS’ MOTION TO DISMISS), DATED MAY [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0033%3A02. Public record. Not legal advice.