Amicus Curiae Brief — Graham County Soil & Water Conservation Dist. v. United States Ex Rel. Wilson

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No. 04-169

In the Supreme Court of the United States

GRAHAM COUNTY SOIL & WATER CONSERVATION

DISTRICT, ET AL., PETITIONERS

UNITEDSTATES OF AMERICA EX REL.

KAREN T. WILSON

ON WRIT OF CERTIORARI

TOTHE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

\UL D. CLEMENT

secting Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

DOUGLAS HALLWARD-DRIEMEIER

Assistant to the Solicitor

General

DOUGLAS N. LETTER

MARK R. FREEMAN

Attorneys

Lh partment of Justice

Washington, D.C. 20530-0001

(202) 515-2217

QUESTION PRESENTED

Whether the limitations period provided in 31 U.S.C.

3731(b)(1) applies to a claim for retaliatory discharge under

the False Claims Act, 31 U.S.C. 3730(h).

(I)

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument:

The False Claims Act’s six-year statute of limitations

applies to any “action under Section 3730,” which, by

its terms, encompasses a retaliation action under

Section 3730(h) 10

A. The FCA’s text unambiguously provides that

retaliation claims under Section 3730(h) are

governed by the limitations period in Section

3731(b) 10

B. A uniform limitations period for all actions

under Section 3730 advances Congress’s pur-

poses in the False Claims Act 21

C. The purportedly absurd consequences peti-

tioners describe are both hypothetical and

ao =

avoidable 27

Conclusion 30

TABLE OF AUTHORITIES

Cases:

American Pipe & Constr. Co. v. Utah, 414 U.S.

538 (1974) 29

Bay Area Laundry & Dry Cleaning Pension Trust

Fund v. Ferbar Corp., 522 U.S. 192 (1997) 27

Clark v. lowa City, 87 U.S. (20 Wall.) 583 (1875) ............ 27

Connecticut Nat'l Bank v. Germain, 503 U.S. 249

(1992) 10, 19

Cook County v. United States ex rel. Chandler,

538 U.S. 119 (2003) 2

Crown, Cork & Seal Co. v. Parker, 462 U.S. 345

(1983) 29

(IIT)

Cases—Continued: Page

Engine Mfrs. Ass'n v. South Coast Air Quality

Mgmt. Dist., 541 U.S. 246 (2004) 14

Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231

(1959) . 28

Gozlon-Peretz v. United States, 498 U.S. 395 :

(1991) 13

Hartford Underwriters Ins. vy. Union Planters

Bank, N.A., 530 U.S. 1 (2000) 10

Jones v. R.R. Donnelly & Sons, 1248. Ct. 1836

(2004) 26

Lamie v. United States Tr., 540 U.S. 526 (2004) .......... 20, 28

Montells v. Haynes, 627 A.2d 654 (NJ. 1998) .........ccc0000 16

Neal v. Honeywell, Inc., 33 F.3d 860 (7th Cir. 1994) ..... 28

North Star Steel Co. v. Thomas, 515 U.S. 29 (1995) ........ 27

Ratzlaf v. United States, 510 U.S. 135 (1994) 2.0.0.0... 19

Russello v. United States, 464 U.S. 16 (1983) .................. 13

Schroeder v. Young, 161 U.S. 334 (1896) 29

Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004) ............ 11

United States v. Ron Pair Enters., Inc., 489 U.S.

235 (1989) 10

United States ex rel. Amin v. George Washington

Univ., 26 F. Supp. 2d 162 (D.D.C. 1998) 18

United States ex rel. Colunga v. Hercules, No. 89-CV-

954B, 1998 WL 310481 (D. Utah Mar. 6, 1998) ................. 19

United States ex rel. Hinden v. UNC/Lear Servs.,

No. Civ. 02-00107 ACK/BMK, 2005 WL 63979 (D.

Haw. Mar. 15. 2005) 24

United States ex rel. Hyatt v. Northrop Corp.,

91 F.3d 1211 (9th Cir. 1996) 19

United States ex rel. King v. Hillcrest Health Ctr.,

264 F.3d 1271 (10th Cir. 2001), cert. denied, 535

U.S. 905 (2002) ...... 26

United States ex rel. Lujan v. Hughes Aircraft

Co., 162 F.3d 1027 (9th Cir. 1998) 15

31 U.S.C. 3731(d)

Cases—Continued: Page

United States ex rel. Thistlethwaite v. Dowty

Woodville Polymer, Ltd., 6 F. Supp. 2d 263

(S.D.N.Y. 1998) 18

United States ex rel. Tillson v. Lockheed Martin

Energy Sys., Inc., No. Civ. A. 5:00 CV-39-M, 2004

WL 2403114 (W.D. Ky. Sept. 30, 2004) 24

Young v. United States, 535 U.S. 43 (2002) 29

Statutes:

False Claims Act, 31 U.S.C. 3729 et seq. ..... 1

31 U.S.C. 3729 passim

31 U.S.C. 3729%a) 2

31 U.S.C. 3729%a)(1) 2

31 U.S.C. 372%a)(2)-(7) 2

31 U.S.C. 3730 passim

31 U.S.C. 3730(a) 2, 7, 12, 14, 15, 16, 17, 21, 29

31 U.S.C. 3730(b) passim

31 U.S.C. 3730(b)(1) 2, 23

31 U.S.C. 3730(b)(2) 3, 23

31 U.S.C. 3730(b)(3) 3, 23

31 U.S.C. 3730(¢) 3

31 U.S.C. 3730(e(2C) 22

31 U.S.C. 3730(d) 3

31 U.S.C. 3730(e) 20

31 U.S.C. 3730(e)(4) 9

31 U.S.C. 3730(e)4)(A) 23, 25

31 U.S.C. 3730(e4)(B) 23, 25

31 U.S.C. 3730(h) passim

31 U.S.C. 3731 11

31 U.S.C. 3731(a) 12, 22

31 U.S.C. 3731(b) (1982) 20

31 U.S.C. 3731(b) passim

31 U.S.C. 3731(b)(1) passim

31 U.S.C. 3731(b)(2) 4, 17, 18, 19, 23

31 U.S.C. 3731(c) 13, 14, 18, 22

9, 11, 13

Statutes—Continued: Page

Sk ee _ 12, 22

31 U.S.C. 3732(b) ...... -_ susesesensnmaggansens 12, 14, 15, 22

ee ee 20

False Claims Amendments Act of 1986, Pub. L.

No. 99-562, 100 Stat. 3153 .0........ccccccsserees 7 1,2

BE, GEPGRER, GROG cen 2

DS, SE, SD crcnnssessemnscsnsenesnmmenmen 20

OM UU 13

ee 6

29 U.S.C. 1451(f)(1) ...... : 27

Fla. Stat. Ann. (West):

§ 68.088 (1997) ........ seemnamesennenennanes _ 24

§ 112.3187(8)(c) (1997& Supp. 2005) ............. - 24

NJ. Stat. Ann. § 2A:14-1 (West 1987) ............ccccccscceseeseesenees 16

Miscellaneous:

132 Cong. Rec. (1986):

pp. 22,330-22,335 - 7 20

OD 20

False Claims Act Amendments: Hearing Before

the Subcomm. on Administrative Law and

Governmental Relations of the House Comm. on the

Judiciary, 99th Cong., 2d Sess. (1986)

False Claims Reform Act: Hearing Before the

Subcomm. on Administrative Practice and

Procedure of the Senate Comm. on the Judiciary,

99th Cong., Ist Sess. (1985) 3

H.R. 3317, 99th Cong., Ist Sess. (Sept. 17, 1985) ................ 20

H.R. 4827, 99th Cong., 2d Sess. (May 15, 1986) .................. 20

H.R. Rep. No. 660, 99th Cong., 2d Sess. (1986) ........... 2, 20, 22

Http://www.eflorida.com/keysectors/homelandsecurity/

his.asp?levell=22level2=142&level3=370&region=tb ....

S. 1562, 99th Cong., Ist Sess. (Aug. 1, 1985)

S. Rep. No. 345, 99th Cong., 2d Sess. (1986) 2, 3, 4,

14, 17, 20, 25, 27

2A Norman J. Singer, Statutes and Statutory .

Construction (6th ed. 2000) 11

In the Supreme Court of the Gnited States

No. 04-169

GRAHAM COUNTY SOIL & WATER CONSERVATION

DISTRICT, ET AL., PETITIONERS

UNITED STATES OF AMERICA EX REL.

KAREN T. WILSON

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case concerns the limitations period for an employee

to bring a civil action for retaliation under the False Claims

Act, 31 U.S.C. 3730(h). Congress enacted the anti-retaliation

provisions of Section 3730(h) as part of the False Claims

Amendments Act of 1986, Pub. L. No. 99-562, 100 Stat. 3153.

A chief purpose of those amendments was to enlist private

individuals in the battle against fraud under federal pro-

grams, including by encouraging them to investigate fraud

and to bring meritorious qui tam actions on behalf of the

United States. Section 3730(h) promotes that purpose by

protecting those who help to ferret out fraud from retaliation

in their employment. The United States has a significant

interest in ensuring that the statute of limitations is con-

strued in a manner that furthers this important Congres-

siona} policy.

STATEMENT

1. The False Claims Act (FCA), 31 U.S.C. 3729 et seq., is

“the primary vehicle by the Government for recouping losses

(1)

suffered through fraud.” H.R. Rep. No. 660, 99th Cong., 2d

Sess. 18 (1986) (House Report). The FCA prohibits the

making of false or fraudulent claims to the United States, 31

U.S.C. 3729(a)(1), as well as a variety of related deceptive

practices involving government funds and property, 31

U.S.C. 3729(a)(2)-(7). The Act imposes civil penalties and

treble damages in the event of a violation. 31 U.S.C. 3729(a).

In 1986, Congress revised and updated the FCA in the

False Claims Amendments Act of 1986 (FCA Amendments),

Pub. L. No. 99-562, 100 Stat. 3153, to make the statute a

“more useful tool against fraud in modern times.” Cook

County v. United States ex rel. Chandler, 538 U.S. 119, 133

(2003) (quoting S. Rep. No. 345, 99th Cong., 2d Sess. 2 (1986)

(Senate Report)). One principal purpose of this legislative

overhaul was to “increase[] incentives, financial and other-

wise, for private individuals to bring suits on behalf of the

Government.” Senate Report 2; see Cook County, 538 U.S.

at 133 (FCA Amendments “enhanced the incentives for rela-

tors to bring suit”). Thus, the FCA Amendments expanded

the potential recovery available to relators, relaxed the bar

against qui tam actions based on information in the govern-

ment’s possession, and authorized relators to maintain an

active role in the litigation even if the government inter-

venes. See § 3, 100 Stat. 3154-3157.

As amended, Section 3730 of the FCA creates three

causes of action. Section 3730(a) provides that, if the Attor-

ney General finds that a person has violated or is violating 31

U.S.C. 3729—the section of the FCA that specifies sub-

stantive prohibitions regarding false claims and the resulting

liability for them—the Attorney General may bring a civil

action against the person. 31 U.S.C. 3730(a). Section 3730(b)

provides that a qui tam relator may bring a civil action for a

violation of Section 3729 “for the person and for the United

States Government.” 31 U.S.C. 3730(b)(1). Finally, Section

3730(h) provides a cause of action for an employee who is re-

taliated against by her employer for investigating, bringing,

or otherwise assisting in bringing an action under Section

3730. 31 U.S.C. 3730(h). In such an action, the employee is

entitled to all the relief necessary to make her whole, in-

cluding reinstatement, two times the amount of back pay

plus interest, any special damages, and ativrneys’ fees and

other litigation costs. bid.

When a relator files a qui tam action under Section

3730(b), as amended, the complaint must be filed under seal,

and the relator must provide a copy of the complaint and

supporting information to the United States, which has 60

days to decide whether to intervene in the suit, 31 U.S.C.

3730(b)(2), although that 60-day period may be extended for

good cause shown, 31 U.S.C. 3730(b)(3). If the government

intervenes, it shall have the primary responsibility for prose-

cuting the action, although the relator has a right to continue

as a party in the litigation, subject to certain limitations. 31

U.S.C. 3730(c). If a qui tam action results in a recovery of

damages and civil penalties, the recovery is divided between

the government and the relator, with the relator receiving a

maximum of 30% of the total award. 31 U.S.C. 3730(d).

The Act’s anti-retaliation provision was added in 1986. 31

U.S.C. 3730(h). In the hearings that preceded the 1986

amendments, the responsible committees of the House of

Representatives and the Senate heard extensive testimony

regarding the unwillingness of potential whistleblowers to

expose fraud against the government for fear of reprisal.’

Congress therefore provided the new federal right of action

“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

! See Senate Report 4-6; False Claims Reform Act: Hearing Before

the Subcomm. on Admininistrative Practice and Procedure of the Senate

Comm. on the Judiciary, 99th Cong., Ist Sess. 48-101 (1985); False Claims

Act Amendments: Hearing Before the Subcomm. on Administrative Law

and Governmental Relations of the House Comm. on the Judiciary, 99th

Cong., 2d Sess. 371-372, 387, 392-416 (1986).

they are legally protected from retaliatory acts.” Senate

Report 34. Section 3730(h) provides:

Any employee who is discharged, demoted, suspended,

threatened, harassed, or in any other manner discrimi-

nated 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 further-

ance of an action under this section, including investiga-

tion for, initiation of, testimony for, or assistance in an

action filed or to be filed under this section, shall be enti-

tled 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, in-

terest on the back pay, and compensation for any special

damages sustained as a result of the discrimination, in-

cluding litigation costs and reasonable attorneys’ fees.

An employee may bring an action in the appropriate dis-

trict court of the United States for the relief provided in

this subsection.

Congress also amended the FCA’s statute of limitations as

part of the 1986 revisions. As amended, Section 3731(b) pro-

vides that “{a] civil action under section 3730” must, as a

general matter, be brought within “6 years after the date on

which the violation of Section 3729 is committed.” 31 U.S.C.

3731(b)(1). The FCA also provides an alternative limitations

provision for circumstances in which the violation was ini-

tially concealed, allowing suit to be brought within “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.” 31 U.S.C.

3731(b)(2).

2.a. Respondent Karen T. Wilson was formerly employed

as a secretary for petitioner Graham County Soil and Water

Conservation District. J.A. 17. In December 1995, respon-

dent reported to the United States Department of Agricul-

ture (USDA) what she believed to be fraud by petitioners in

connection with a federal disaster relief program known as

the Emergency. Watershed Protection Program, adminis-

tered by the Natural Resources Conservation Service

(NRCS)—an agency of USDA. J.A. 17, 25-26. Shortly

thereafter, respondent met with agents of USDA’s Office of

Inspector General (OIG) and their state counterparts. J.A.

26-27. With respondent’s assistance, the federal and state

agencies undertook investigations of respondent’s allega-

tiens, which continued through 1998. J.A. 27.

o. On January 25, 2001, respondent filed suit against pe-

t.tioners in the United States District Court for the Western

District of North Carolina. J.A. 3, 11. The compiaint alleges

a qui tam claim, pursuant to Section 3730(b), for violations of

Section 3729, and a claim of retaliatory discharge under Sec-

tion 3730(h). J.A. 30-33. According to the allegations of the

complaint, petitioners made numerous false claims for pay-

ments funded by NRCS under the Emergency Watershed

Protection Program. J.A. 17. Among the false claims re-

spondent witnessed were claims for payment pursuant to no-

bid or non-existent contracts and for work that had not been

performed. J.A. 18-20. Petitioners allegedly made similar

false claims under agricultural programs administered by

the State of North Carolina that were subsidized by federal

funds. J.A. 20-24.

The complaint also alleges that respondent was subjected

to workplace retaliation from 1996 to 1997, resulting in her

constructive discharge. The Chairman of the Graham

County Commission threatened to terminate respondent’s

position if she did not stop assisting the federal investiga-

tion. J.A. 28. Respondent received numerous threats

against her and her family, and on one occasion a gun barrel

was left on the desk in her office. /bid. Those acts of har-

assment so disturbed respondent that she was forced to take

medical leave in 1996. J.A. 29-30. Although respondent re-

turned to work, the harassment continued, and she was ulti-

mately forced to resign on March 7, 1997. J.A. 30.

The United States declined to intervene in the qui tam ac-

tion, J.A. 3, and respondent proceeded with the litigation.

c. On petitioners’ motion, the district court dismissed re-

spondent’s retaliation claim as untimely. Pet. App. 67a-70a.

The court held that retaliation claims under Section 3730(h)

are not governed by the FCA’s six-year limitations period

but instead are subject to the most closely analogous state-

law statute of limitations. The court determined that North

Carolina’s three-year limitations period for wrongful dis-

charge was most analogous, id. at 69a, and held that respon-

dent’s retaliation claim, which had been filed three years and

ten months after her constructive discharge, was therefore

time-barred, id. at 70a. The district court certified its order

for interlocutory appeal under 28 U.S.C. 1292(b). Pet. App.

85a-S6a.

d. A divided panel of the Fourth Circuit reversed. Pet.

App. la-4la. The majority held that, because the phrase “an

action under § 3730 * * * necessarily includes an action for

retaliation under § 3730(h),” the “effect of the language [of 31

U.S.C. 3731(b)(1)] as written” is to require that a retaliation

action under Section 3730(h) be brought within six years of

the date on which the underlying violation of Section 3729

was committed. Pet. App. 5a-6a.

The court of appeals considered petitioners’ arguments

and found that none of them succeeded in rendering the text

of Section 3731(b)(1) ambiguous. Pet. App. 13a. According

to the court, Section 3731(b)(1)’s identification of the under-

lying substantive violation of Section 3729 as the triggering

event to commence the running of the limitations period did

not, as petitioners contended, impliedly limit its scope to ac-

tions by the Attorney General or a qui tam relator under

Section 3730(a) or (b) based on a substantive violation of the

Act, because an actual or potential Section 3729 violation is

also central to a retaliation suit under Section 3730(h). Id. at

14a. The court noted from the legislative history that Con-

gress had viewed the anti-retaliation protections of Section

3730(h) as closely related to the whistleblower provisions of

Section 3730(b), and that Congress had, in fact, rejected a

proposal to place the retaliation cause of action in a separate

section, in favor of locating it within Section 3730, where it

would be subject to the limitations provision in 31 U.S.C.

3731(b) applicable to a “civil action under section 3730.” Pet.

App. 15a-16a.

The court of appeals also rejected petitioners’ argument

that it would be absurd to apply Section 3731(b)(1) to retalia-

tion claims because the six-year period from the date of the

violation could end before the retaliation occurred and there-

fore before the cause of action for retaliation occurred. The

court noted that this could happen, for example, if the em-

ployee first reported the violation of Section 3729 shortly

before the six-year period expired, or the employer chose to

wait out whatever portion of the six-year period remained

before taking retaliatory action. Pet. App. 19a. The court

observed that such cases were certain to be the exception,

rather than the rule, id. at 20a, and that in particular circum-

stances—such as an employer’s deliberate delay in retaliat-

ing until after the limitations period had run—equitable doc-

trines of estoppel might apply, id. at 20a-21la. Nor, the court

said, would application of Section 3731(b)’s limitations period

require a retaliation plaintiff to prove an actual violation of

Section 3729 in order to assert a valid and timely retaliation

claim, because the timeliness of an action based on retalia-

tion depends on whether the suit was filed within six years

of the alleged violation of Section 3729, not on proof of an ac-

tual violation. Jd. at 22a-24a.

Finally, the court of appeals noted that the application of

state statutes of limitations to FCA retaliation claims, as ad-

vocated by petitioners, would undermine Congress’s pur-

poses in several respects. The court explained that shorter

state limitations periods, some as short as 180 days, would be

too abbreviated for a plaintiff to “marshal the evidence” nec-

essary to file a retaliation claim. Pet. App. 24a-25a. Indeed,

the court continued, uncertainty regarding which State’s

law, out of potentially numerous relevant jurisdictions, gov-

erned, and which of a particular State’s many statutory peri-

ods was most analogous, would make it very difficult for

many qui tam relators to determine the deadline for filing a

retaliation claim. /d. at 25a-27a. Thus, the court concluded,

the application of state law would undermine the protection

Congress intended Section 3730(h) to provide for whistle-

blowers. /bid.

Judge Wilkinson dissented. Pet. App. 28a-4la. He would

have held that Section 3731(b)(1)’s reference to the “violation

of section 3729” as the date on which the limitations period

starts to run impliedly excludes suits under Section 3730(h)

from the provision’s scope. /d. at 3la. The dissent also found ©

it incongruous that the limitations period could run before

the retaliatory act took place. /bid. Accordingly, Judge Wil-

kinson would have borrowed the most closely analogous pe-

riod under state law. /d. at 39a.

SUMMARY OF ARGUMENT

Section 3731(b) of the FCA provides the limitations period

for “[a} civil action under section 3730,” 31 U.S.C. 3731(b), a

phrase that, by its terms, plainly encompasses each of the

three causes of action created by Section 3730, including a

civil action under subsection (h) of Section 3730 for retalia-

tion. There is a strong presumption that Congress means

what it says in statutes, and there are no reasons to disre-

gard that presumption here. Rather, the broader context

and purposes of the FCA confirm that Section 3731(b) means

_ what it says.

Congress consistently used the phrase “action under sec-

tion 3730” throughout the provisions governing the jurisdic-

tional and procedural aspects of claims under the FCA. By

contrast, in the more substantive context of Section 3731(d),

Congress specifically limited the preclusive effect of guilty

and nolo contendere pleas in criminal prosecutions for false

or fraudulent claims to “any action * * * brought under

subsection (a) or (b) of section 3730.” 31 U.S.C. 3731(d) (em-

phasis added). Congress’s express exclusion of retaliation

claims from Section 3731(d), and the absence of such an ex-

clusion in Section 3731(b), confirms that Congress intended

Section 3731(b) to apply to retaliation claims.

Moreover, by making retaliation actions under Section

3730(h) subject to the same rules goverring actions under

the other subsections of Section 3730, Congress furnished a

mechanism for retaliation claims and substantive FCA viola-

tions to be litigated together. That practice furthers the

FCA’s statutory scheme, which is designed to allow poten-

tial relators and the government to engage in a full investi-

gation of the case without the defendant becoming aware of

it. In contrast, if short state limitation periods—some as

short as 90 days—were to apply, a relator would often have

to bring her retaliation claim separately, or to file her qui

tam complaint prematurely before her investigation was

complete. In either event, the enforcement mechanisms of

the FCA would be undermined. Moreover, prior disclosure

of the fraud allegations in a retaliatory discharge suit would

raise questions concerning the ability of the person to bring

a subsequent qui tam suit, due to the FCA’s bar against a

qui tam suit where there has been a public disclosure of the

underlying information, 31 U.S.C. 3730(e)(4). By establish-

ing a single statute of limitations for both retaliation and qui

tam claims, Section 3731(b) avoids these problems.

ARGUMENT

THE FALSE CLAIMS ACT’S SIX-YEAR STATUTE OF

LIMITATIONS APPLIES TO ANY “ACTION UNDER

SECTION 3730,” WHICH, BY ITS TERMS, ENCOM-

PASSES A RETALIATION ACTION UNDER SECTION

3730(h).

“[I]n interpreting a statute a court should always turn

first to one, cardinal canon before all others. * * * [CJourts

must presume that a legislature says in a statute what it

means and means in a statute what it says there.” Connecti-

cut Nat'l Bank v. Germain, 503 U.S. 249, 253-254 (1992).

This is not a case in which the statute does not plainly pro-

vide for a statute of limitations for an action, like respon-

dent’s, brought under Section 3730. Section 3731(b) of the

False Claims Act provides the limitations period for “[a] civil

action under section 3730,” 31 U.S.C. 3731(b), a phrase that

manifestly includes an action under subsection (h) of Section

3730. That should end the matter. “{W)hen ‘the statute’s

language is plain, the sole function of the courts’—at least

where the disposition required by the text is not absurd—‘is

to enforce it according to its terms.” Hartford Underwriters

Ins. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)

(quoting United States v. Ron Pair Enters., Inc., 489 U.S.

235, 241 (1989)). There is certainly nothing absurd about a

uniform federal limitations rule for all FCA actions, which

permits ease of application and ensures that an employee

retaliated against for investigating a false claim could bring

her retaliation action together with the related qui tam suit.

A. The FCA’s Text Unambiguously Provides That Re-

taliation Claims Under Section 3730(h) Are Gov-

erned By The Limitations Period In Section

3731(b)

The application of Section 3731(b)’s limitations period to

all actions under Section 3730, including retaliation claims

under Section 3730(h), could hardly be clearer. The burden

thus rests with petitioners to show why that uniform limita-

tions period is, in fact, absurd.

Petitioners urge several theories why, in their view, the

structure and context of the FCA suggest an implied limita-

tion on the scope of Section 3731(b). See Pet. Br. 11-15.

None of those arguments, however, overcomes the central

point that a retaliation action under 31 U.S.C. 3730(h) is “[{a]

civil action under section 3730,” and, thus, comes within the

plain text of the statute of limitations provided in Section

3731(b). And none comes close to the kind of showing of ab-

surdity required for a court to conclude that Congress, in

fact, provided no federal statute of limitations for a Section

3730(h) action, despite its apparent provision of a clear stat-

ute of limitations for all Section 3730 actions. There is no

reason why Congress would have used the various modes of

indication suggested by petitioners to signal an implied ex-

clusion of Section 3730(h) claims from the scope of Section

3731(b) when it could have done so succinctly and directly by

expressly limiting Section 3731(b) to an action “under sub-

section (a) or (b) of section 3730.” In fact, Congress used

precisely that limiting language in another subsection of Sec-

tion 3731. See 31 U.S.C. 3731(d) (limiting the preclusive ef-

fect of nolo contendere and guilty pleas in any criminal pro-

ceeding charging false or fraudulent statements to actions

brought “under subsection (a) or (b) of section 3730”).

Where, as here, Congress “uses certain language in one part

of the statute and different language in another, the court

assumes different meanings were intended.” Sosa v. Alva-

rez-Machain, 124 8S. Ct. 2739, 2754 n.9 (2004) (quoting 2A

Norman Singer, Statutes and Statutory Construction

§ 46:06, at 194 (6th ed. 2000)). None of petitioners’ theories

overcomes that presumption, let alone the plain text of Sec-

tion 3731(b).

1. Petitioners contend that it is permissible to read an

implied limitation into the text of Section 3731(b) because of

what they view as “Congress’ lack of precision in drafting.”

Pet. Br. 14. Petitioners maintain that “the phrase ‘an action

under section 3730’ means different things” in different pro-

visions of the FCA and that the phrase is therefore “am-

biguous.” /bid. It is true that some FCA provisions that use

the phrase “action under section 3730” may not have rele-

vance to an action under Section 3730(h). But that is because

of other language within those provisions that makes clear

that they do not apply. Thus, the use of the general phrase

“action under section 3730” in various places in the FCA

does not authorize the courts to read an implied exclusion of

Section 3730(h) actions into provisions that do, by their

terms, apply to such suits.

A review of the FCA’s use of the phrase “action under

section 3730” reveals that Congress consistently used that

general phrase when discussing jurisdictional or procedural

aspects of claims under the FCA. Congress’s reference to all

actions under Section 3730 when establishing the procedural

rules that would govern them reflects its recognition that,

because of the interrelatedness of the various causes of ac-

tion created by Section 3730, they would often be litigated

together. Thus, when Congress established a nation-wide

subpoena power, 31 U.S.C. 3731(a), a statute of limitations,

31 U.S.C. 3731(b), a standard of proof, 31 U.S.C. 3731(c), a

rule of venue, 31 U.S.C. 3732(a), and a rule of supplemental

jurisdiction, 31 U.S.C. 3732(b), for FCA actions, it uniformly

made those provisions applicable to all “action{s] under sec-

tion 3730.” The general applicability of those procedural

rules ensures that a qui tam relator will be able to litigate

her substantive FCA action under Section 3730(b) in the

same manner as the Attorney General may litigate his sub-

stantive FCA action under Section 3730(a), and that the re-

lator will be able to litigate any retaliation claim she may

have under Section 3730(h) together with and subject to the

same procedural rules as her action under Section 3730(b).

In contrast to Congress’s uniform extension of these pro-

cedural provisions to any “action under Section 3730,” when

Congress addressed the more substantive rule concerning

the collateral estoppel effect of a criminal conviction on a re-

lated claim under the FCA, Congress expressly limited the

preclusive effect to “any action * * * brought under swb-

section (a) or (b) of section 3730.” 31 U.S.C. 3731(d) (empha-

sis added). Like Section 3731(b), Section 3731(d) was e 1-

acted as part of the 1986 FCA Amendments. See § 5, 100

Stat. 3158. Section 3731(d)’s careful delineation of its scope

as reaching only an action under “subsection (a) or (b) of sec-

tion 3730,” in contrast to the Amendments’ use elsewhere of -

the broader phrase “action under section 3730,” demon-

strates both that Congress recognized that the causes of ac-

tion under subsections (a) and (b) are only a subset of those

available under Section 3730, and that Congress knew how

to exclude actions under Section 3730(h) when it wished to

do so. Because Congress expressly excluded retaliation

claims from Section 3731(d), but did not do so in Section

3731(b), the obvious inference is that Congress intended Sec-

tion 3731(b) to mean what it says. “[WJhere Congress in-

cludes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.” Gozlon-Peretz v.

United States, 498 U.S. 395, 404 (1991) (quoting Russello v.

United States, 464 U.S. 16, 23 (1983)).’

Petitioners note that Section 3731(c) provides that “[iJn

any action brought under section 3730, the United States

shall be required to prove all essential elements of the cause

of action, including damages, by a preponderance of the evi-

2 Of course, Congress presumably excluded retaliation actions under

subsection (h) of Section 3730 from the scope of Section 3731(d) because it

concluded that pleas in criminal cases involving false or fraudulent state-

ments would have no logical application in actions based on retaliatory

conduct by an employer. The absence of such an exception in Section

3731(b) thus reinforces the conclusion that Congress made no such judg-

ment about the FCA’s general statute of limitations.

dence.” Pet. Br. 12 (emphasis omitted). Petitioners reason

from this provision that because “(t]he only action that the

federal government can bring under the [FCA] is an action

by the Attorney General under section 3730(a),” the phrase

“action * * * under section 3730” in Section 3731(c) ex-

cludes retaliation claims, and the Court is therefore free to

read that phrase to exclude retaliation claims in other provi-

sions as well. /d. at 12-13. But Section 3731(c) is inapplicable

to retaliation claims not because the phrase “action * * *

under section 3730” actually means only a subset of Section

3730 actions, but rather because other language in Section

3731(c) refers solely to the United States’ obligations. Cf.

Engine Mfrs. Ass'n v. South Coast Air Quality Mgmt. Dist.,

541 U.S. 246, 253-254 (2004). As a result, Section 3731(c), by

its terms, applies only to Section 3730 actions that are

brought by the United States. Section 3731(c) therefore has

no application to qui tam actions brought by a relator under

Section 3730(b) or a retaliation claim under Section 3730(h).”

Yet that does not mean that the phrase “action under section

3730” actually means only Section 3730(a) claims elsewhere

in the FCA, including the statute of limitations in Section

3731(b).*

* Although, as discussed in the text, Section 3731(c) has practical con-

sequences only with respect to a suit brought by the United States, its

purpose was to bring uniformity to the procedural rules governing actions

under Section 3730, not to introduce disparities among them, as petition-

ers suggest (Br. 12-13). See Senate Report 31 (indicating that the purpose

of Section 3731(c) was to repudiate the view, which had been expressed by

some courts, that, unlike qui tam plaintiffs, the United States, as sover-

eign, must meet a heightened standard of proof of fraud in FCA actions).

4 Petitioners’ reliance on 31 U.S.C. 3732(b) suffers from the same flaw.

Section 3732(b) establishes supplemental jurisdiction over State and local

claims to recover for false claims “if the action arises from the same trans-

action or occurrence as an action brought under section 3730.” Petitioners

contend (Br. 13) that here the phrase “an action brought under section

3730” clearly does not encompass a retaliatory discharge action under Sec-

tion 3730(h) because retaliation is personal to the employee and thus

would not be part of the same transaction or occurrence that would give

2. Petitioners maintain that the identification of a “viola-

tion of section 3729” in Section 3731(b)(1) as the event that

commences the running of the limitations period excludes

actions under Section 3730(h) from Section 3731(b)’s scope

because “Section 3729 * * * ‘strictly addresses false claims,

not retaliation claims.’” Pet. Br. 9 (quoting United States ex

rel. Lujan v. Hughes Aircraft Co., 162 F.3d 1027, 1034 (9th

Cir. 1998)). While it is true that Section 3729 does not ad-

dress retaliation claims under Section 3730(h), the converse

is not true: Section 3730(h), which establishes the retaliatory

discharge cause of action, does have a nexus to—and in this

sense “subsumes” (Pet. App. 14a)—a violation of Section

3729. A necessary element of a retaliation claim under Sec-

tion 3730(h) is that the plaintiff was engaged in protected

conduct relating to “an action filed or to be filed under this

section.” 31 U.S.C. 3730(h). Thus, any “civil action under

section 3730,” including a retaliation action under Section

3730(h), must at some point involve at least an alleged or

suspected violation of Section 3729. In this respect, the

situation for a retaliation action is parallel to when the At-

torney General or a relator brings an action for a substantive

FCA violation under Section 3730(a) or (b). The require-

ment in Section 3731(b)(1) that the action be brought within

six years of the violation of Section 3729 must be understood

to refer to the conduct that is alleged to be a violation of Sec-

tion 3729. The fact that Congress identified a Section 3729 ~

violation as triggering the limitations period in Section

3731(b)(1) therefore does not imply that Section 3731(b) is

inapplicable to retaliation claims.

Petitioners further contend (Br. 19) that “{i]f Congress

had intended a retaliatory discharge action to be governed

rise to a state false claims action. Again, the likely inapplicability of Sec-

tion 3732(b) to most (or we may even assume all) retaliation actions under

Section 3730(h) stems not from an implied limitation in the phrase “action

brought under section 3730,” but from the other language in Section

3732(b) referring to the same “transaction or occurrence.”

by a six year limitations period, there would have been no

reason for Congress to have [amended the pre-1986] words

‘from the date the violation is committed.’” It is very odd to

think, however, that Congress chose to exclude retaliation

claims from Section 3731(b) in so cryptic a manner as adding

the words “of Section 3729” to Section 3731(b)(1) when it

could have accomplished that result more simply and clearly

by expressly limiting Section 3731(b) to actions “under sub-

section (a) or (b) of Section 3730,” as Congress did in Section

3731(d). See p. 13, supra.

Moreover, petitioners’ argument overlooks that leaving

the pre-1986 limitations period unchanged, without tying the

limitations period to the underlying violation of Section 3729,

would have created a different limitations period that would

allow FCA retaliation claims to be brought long after the

underlying fraud had grown stale. That would have frus-

trated Congress’s intent to have retaliation claims litigated

promptly, and to encourage that such claims be brought

within the framework of the action under Section 3730(a) or

(b) for a substantive violaiion of the Act. If an employee un-

covered a false claim three years after it was made and was

promptly fired for exposing the employer, the employee

would have had three years to file the qui tam action but

could wait another three years (until nine years after the

underlying fraud) to bring a retaliatory discharge claim.

Congress presumably had no intent in allowing retaliation

claims to be separated from the underlying qui tam action

and filed years after both that action and the violation. Peti-

tioners’ proposal to apply state law limitations periods,

starting at the.time of the retaliation, would suffer from the

same problem in some states.” On the other hand, Con-

5 Some states have lengthy limitations periods for wrongful discharge

claims, such as New Jersey’s six-year period. See Montells v. Haynes, 627

A.2d 654, 659 (NJ. 1993) (six-year period of NJ. Stat. Ann. § 2A:14-1

(West 1987) applies to actions for economic loss, rather than personal in-

gress’s adoption of a single statute of limitations period ap-

plicable both to an action brought by the Attorney General

or a qui tam relator and a retaliation action is consistent

with Congress’s uniform application of the FCA’s procedural

provisions to all claims under Section 3730 and increases the

likelihood that qui tam and retaliation claims would be re-

solved in the same litigation. See pp. 21-27, infra.

Petitioners correctly note (Br. 23) that a plaintiff may

have an actionable claim of retaliation “even when there has

been no violation of Section 3729.” See Senate Report 35

(“(T]he employer would not have to be proven in violation of

the False Claims Act in order for this section to protect the

employee’s actions.”). Petitioners point out that the six-year

limitations period in Section 3731(b)(1) begins to run from

“the date on which the violation of section 3729 was commit-

ted,” and then argue that because a retaliation action does

not depend on an actual violation of Section 3729, retaliation

“claims will never be time-barred” under Section 3731(b)(1).

See Pet. Br. 22-23. That argument is clearly mistaken. Un-

der petitioners’ strained reading, a defendant moving to dis-

miss even an action under Section 3730(a) or (b) action would

likewise first have to prove that a “violation of Section 3729

was committed” before it could successfully move to dismiss

on statute of limitations grounds. Plainly, that is not the law.

3. Petitioners’ reliance on the alternative limitations pe-

riod in Section 3731(b)(2) is also misplaced. Subsection (b)(2)

provides that an action under Section 3730 is timely if it is

brought within:

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 respon-

sibility to act in the circumstances, but in no event more

jury, such as a wrongful-discharge cause of action allowing recovery of lost

wages).

than 10 years after the date on which the violation is

committed.

31 U.S.C. 3731(b)(2). Petitioners contend that because there

is no “official of the United States charged with responsibil-

ity to act” in retaliation cases, Congress could not have in-

tended retaliation claims to come within Section 3731(b) at

all. Pet. Br. 10-'1. That argument is, too, mistaken.

In essence, petitioners argue that if a particular type of

claim wovid nct be covered by Section 3731(b)(2), then, by

implication, that type of claim is also excluded from the reach

of Section 3731(b)(1). That argument, however, proves too

much and suffers the same defect as their Section 3731(c)

argument. See pp. 13-14, supra. Following petitioners’

logic, a gui tam action pursuant to Section 3730(b) would also

be impliedly excluded from the scope of Section 3731(b):

Under the logic of petitioners’ argument, because the pri-

vate employee who learns of the fraud is not an “official of

the United States,” a qui tam suit by that individual is ex-

cluded from Section 3731(b)(2), and a qui tam claim is there-

fore also impliedly excluded from the scope of Section

3731(b)(1)). But even petitioners disavow such a conclusion.

See Pet. Br. 4 (“Section 3731(b) * * © establishes a limita-

tions period for an action * * * under section 3730(a) and *

* * under section 3730(b).”).°

® It is not clear that the first two steps in petitioners’ syllogism are

correct either. First, the lower courts are divided on the meaning of the

phrase “official of the United States” in 31 U.S.C. 3731(b)(2). At least two

district courts have held, as petitioners contend, that a private employee is

not an “official of the United States” when suing as a qui tam relator. See

United States ex rel. Amin v. George Washington Univ., 26 F. Supp. 2d

162, 170-73 (D.D.C. 1998); United States ex rel. Thistlethwaite v. Dowty

Woodville Polymer, Ltd., 6 F. Supp. 2d 268, 265 (S.D.N.Y. 1998). On that

basis, those courts have held that a qui tam action is not timely under Sec-

tion 3731(b)(2) if brought within three years of the employee's discovery of

the fraud. In contrast, the Ninth Circuit has held that such an employee is

an “official of the United States” when suing as a relator because Section

3730(b) authorizes the individual to bring suit on behalf of the United

4. Petitioners also urge the Court to adopt a narrowing

construction of Section 3731(b) in order to conform the text

to what petitioners believe was Congress’s intent, as re-

flected in the 1986 FCA Amendments’ legislative history.

Pet. Br. 18-21. It is well settled, however, that the Court

does “not resort to legislative history to cloud a statutory

text that is clear.” Ratzlaf v. United States, 510 U.S. 135,

147-148 (1994). In any event, petitioners’ argument from

legislative history is mistaken. To the extent that history is

relevant, it confirms that Section 3731(b) means what it says.

See Connecticut Nat’l Bank, 503 U.S. at 254.

Petitioners’ legislative history argument begins from the

mistaken factual premise that “the 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).” Pet. Br.

18. From that faulty premise, petitioners draw the incorrect

conclusion that when Congress “moved [the retaliation pro-

vision] into 31 U.S.C. § 3730,” the failure to amend Section

3731(b) to reflect that change was a mere oversight. Pet. Br.

21. :

States. See United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211,

1217 & n.8 (9th Cir. 1996).

Second, even if a private employee is not regarded as an “official of the

United States” when serving as a qui tam relator, it does not follow that

Section 3731(b)(2) is wholly inapplicable to suits by a relator. Section

3731(b)(2) provides an alternative limitations period that is triggered by

the date on which someone who is an “official of the United States” knows

or has reason to know of facts material to the right of action. If that condi-

tion is satisfied, then by the terms of Section 3731(b)(2), it would appear

that an action for a violation of Section 3729 could be brought within three

years by either the Attorney General or the relator. See United States ex

rel. Colunga v. Hercules, No. 89-CV-954B, 1998 WL 310481 (D. Utah Mar.

6, 1998). Similarly, if the six-year limitations period for a violation of Sec-

tion 3729 is extended by Section 3731(b)(2) because of the date on which an

official of the United States first knew or had reason to know of the viola-

tion, that extended limitations period should apply equally to a retaliation

action under Section 3730(h).

Such speculation in light of unambi uous text is legally ir-

relevant. See, e.g., Lamie v. United States Tr., 540 U.S. 526,

536 (2004). Petitioners’ recounting of the history of the 1986

amendments, moreover, contains a significant factual error.

In the earliest versions of what became the FCA Amend-

ments, Congress placed the retaliation cause of action within

section 3730. See S. 1562, 99th Cong., Ist Sess. § 4 (Aug. 1,

1985) (original Senate bill, proposing retaliation provision as

Section 3730(e)); H.R. 3317, 99th Cong., Ist Sess.

§ 4 (Sept. 17, 1985) (original House bill, proposing retaliation

provision as Section 3730(e)). Moreover, neither of those

original bills proposed amending the statute of limitations

provision in Section 3731(b), which, prior to the 1986

amendments, provided: “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). Even un-

der these early bills, therefore, the retaliation provision that

became Section 3730(h) would have come within the scope of

Section 3731(b)’s statute of limitation.

Petitioners are correct that the Senate version of the bill

was later revised to move the retaliation provision to a pro-

posed Section 3734. Senate Report 34-35. But the House

version of the bill was never modified in that manner. See

H.R. 4827, 99th Cong., 2d Sess. § 4 (May 15, 1986); 132 Cong.

Rec. 22,332 (Sept. 9, 1986). And, with respect to the retalia-

tion provision, it was the House version of the bill, both in

substance and placement, that Congress ultimately enacted

into law. Compare Pub. L. No. 99-562, § 4, 100 Stat. 3157-

3158, with House Report 4 and with Senate Report 34-35.

See 132 Cong. Rec. 28,570-28,571, 28,576 (Oct. 3, 1986) (Sen-

‘te adopting amendment to House version that retained

substance of House’s retaliation provision and its placement

within Section 3730).

Thus, to the extent the legislative history of the 1986

amendments is at all relevant to the Court’s inquiry, it indi-

cates that the placement of the retaliation provision in a new

subsection of Section 3730 was not the product of a last-

minute switch that might have led Congress to overlook the

consequence of bringing it under the FCA’s statute of limita-

tions.’ In any event, what the legislative history of the FCA

indisputably does show is that Congress considered a pro-

posal to put the FCA’s retaliation cause of action in a sepa-

rate section, where there would have been no statute of limi-

tations directly applicable to it, but rejected that approach in

favor of placing the provision with the FCA’s other causes of

action within Section 3730, which by the terms of the FCA

made it subject to the same rules (including the same statute

of limitations) that govern other actions under that Section.

Nothing in the legislative history suggests that Congress did

not intend what the text of the FCA clearly p: ovides as a

result of that choice.

B. A Uniform Limitations Period For All Actions Un-

der Section 3730 Advances Congress’s Purposes

In The False Claims Act.

Petitioners’ argument is, at heart, less that Section

3731(b) cannot be applied by its terms to retaliation claims

under Section 3730(h), than that, for various reasons of pub-

lic policy, it should not be applied to retaliation claims. Peti-

tioners contend that to provide a six-year limitations period

for Section 3730(h) claims, running from the date of the vio-

lation of Section 3729, would be inconsistent with statutes of

limitations generally and, more particularly, at odds with

7 The language of Section 3730(h) provides further evidence that the

placement of the retaliation provision within Section 3730 was not an

oversight. Section 3730(h) refers to retaliation by an employer based on

“lawful acts done by the employee * * * in furtherance of an action un-

der this section, including investigation-for * * * an action filed or to be

filed under this section.” (emphasis added). Those cross-references to

actions under Section 3730(a) and (b) show that Section 3730(h) was fully

integrated with those provisions. There accordingly is every reason to

believe that Congress meant to fully integrate Section 3730(h) with those

provisions for purposes of the statute of limitations as well, as the text of

Section 3731(b) provides.

other limitations provisions governing retaliatory diecharge

claims. That argument ignores the unique nature of the

FCA. The uniform limitations period provided by Section

3731(b) for all claims under Section 3730 serves the purposes

of the FCA, whereas application of other statutes of limita-

tion would frustrate those purposes.

Congress understood well the close relationship between

qui tam claims and retaliatory discharge claims. As noted

above, Congress specifically located the FCA’s retaliation

provision within Section 3730, with the qui tam provision,

and limited the prohibition on retaliation claims to ones

based on acts taken “in furtherance of an action under this

section.” 31 U.S.C. 3730(h). In fact, in the House Report,

the discussion of the retaliation provision is located under

the heading “QUI TAM ACTIONS.” House Report 22-23.

Moreover, as is evident from Congress’s establishment of

uniform jurisdictional and procedural rules for all “action|s]

under section 3730,” 31 U.S.C. 3731(a), (b) and (c); 31 U.S.C.

3732(a) and (b), Congress expected that retaliation claims

would typically be litigated together with the underlying qui

tam suit—an expectation that is fully borne out by experi-

ence.

In addition to general interests of judicial economy, liti-

gating retaliation and qui tam actions together also serves

interests particular to the FCA. Because a relator may re-

main an active participant in a qui tam action in which the

United States has intervened and assumed primary respon-

sibility for its prosecution, the FCA gives the court special

authority to manage the discovery process and thereby en-

sure that the private individual does not unduly interfere

with the government’s development of its case. See 31

U.S.C. 3730(c)(2)(C). That type of management coordination

would be significantly hampered if the relator’s retaliatory

discharge claim were proceeding independently of the action

under Section 3730(b).

Another important feature of the FCA is that it enables

the government to investigate the allegations of fraud before

the defendant is aware that it is a target. For instance, the

FCA requires that a qui tam relator must, simultaneously

with filing the complaint under seal, serve a copy on the gov-

ernment, together with a “written disclosure of substantially

all material evidence and information the person possesses.”

31 U.S.C. 3730(b)(2). The government then has 60 days,

which can be extended, to investigate and to decide whether

to intervene in the case. 31 U.S.C. 3730(b)(2) and (3). For

similar reasons, the FCA requires that, in order to avoid the

general jurisdictional bar against qui tam suits that are

based on already publicly disclosed information, 31 U.S.C.

3730(e)(4)(A), a relator must show that she had “voluntarily

provided the information to the Government,” 31 U.S.C.

3730(e)(4)(B), in order to permit the government an oppor-

tunity to investigate the allegations.”

The short limitations periods for wrongful discharge

claims under many state laws and other federal statutes

would frustrate these purposes. As the six-year limitations

provision in Section 3730(b)(1) reflects, Congress understood

that, because of the complexity of many Section 3729 viola-

tions, it could often take a relatively long time for the gov-

ernment or the relator to discover the possible fraud and

then investigate it and prepare to sue. And when the limita-

_tions period is extended beyond six years, Congress still al-

lowed three years after the discovery of the fraud to prepare

an FCA complaint. See 31 U.S.C. 3731(b)(2) (requiring

claims to be brought within “3 years after the date when

facts material to the right of action are known”). Because

® The facts alleged in this case exemplify the cooperative approach

that the FCA envisions. According to the complaint, respondent reported

the allegations of fraud to agents of the USDA OIG, assisted them with

their investigation, and refrained from filing a qui tam action until after

that investigation was completed without the filing of an FCA claim by

the government. J.A. 26-27.

many acts of retaliation will take place soon after a potential

relator first suspects and inquires into possible fraud, a short

limitations period for retaliation claims would force the em-

ployee either to severely truncate her investigation of the

fraud claim, so that she could file the two claims together, or

to sever the claims and file the retaliation claim first. Some

States’ analogous limitations periods are as short as 90 days.

E.g., United States ex rel. Hinden, vy. UNC/Lear Servs., Inc.,

No. Civ. 02-00107 ACK/BMK, 2005 WL 639679, *5-*6 (D.

Haw. Mar. 15, 2005) (holding FCA retaliation claim under

Section 3730(h) time-barred pursuant to 90-day limitations

period of the Hawaii Whistleblowers’ Protection Act);

United States ex rel. Tillson v. Lockheed Martin Energy

Sys., Inc., No. Civ. A 5:000CV-39-M & 5:99CV-170-M, 2004

WL 2403114 (W.D. Ky. Sept. 30, 2004) (declining to apply

Kentucky’s 90-day limitations period for whistleblower ac-

tions to claim of retaliation claim under Section 3730(h) in

favor of six-year period in Section 3731(b)(1)). Other States

also have very short statutory periods for some whistle-

blower retaliation actions that a court might determine are

applicable by analogy. Pet. App. 24a-25a (citing 180-day

limitations provisions for certain retaliatory discharge claims

under Texas and Ohio law).” It may, however, often be ex-

ceedingly difficult to prepare a gui tam complaint in a com-

* Florida likewise has a short 180-day limitations periods for analogous

retaliation claims. See Fla. Stat. Ann. § 68.088 (West 1997) (person retali-

ated against in connectic. with a state FCA activity “shall have a cause

of action under Section 112.3187"); id. § 112.3187(8)(c) (1997 &

Supp. 2005) (a claimant “may, after exhausting all available contractual or

administrative remedies, bring a civil action in any court of competent

jurisdiction within 180 days”). As Florida is the State with the fourth

largest volume of defense contracts in the nation, its statute would be par-

ticularly important if the Court were to adopt petitioners’ arguments

in favor of state law limitations periods. See http://www.

eflorida.com/keysectors/homelandsecurity/hls.asp?levell =22&level2=

142&level3=370&region=tb. Cf. NDIA Br. 17-18 (listing other States

with heavy concentrations of government contractors, but omitting Flor-

ida).

plex defense contractor case within 180 days of when the

employee was retaliated against. State wrongful discharge

periods may, in fact, be so short precisely because a wrongful

discharge claim, standing alone, is not particularly difficult to

prepare. Indeed, many statutes provide for such an action to

be initiated by an informal complaint to an administrative

body.” Short statutes of limitation applicable to such com-

plaints are not suited to the FCA, in which the retaliation

claimant must prepare a formal judicial complaint that in

many cases also wiil include a related qui tam claim.

The consequence of the position advanced by petitioners

therefore may be that relators would split their retaliation

and qui tam claims, or perhaps not bring them at all, thereby

undermining the purposes of the FCA. If the relator does

try to pursue both claims separately, prior disclosure of her

allegations in the retaliation suit would undermine the en-

forcement mechanisms of the FCA. Disclosure of the rela-

tor’s fraud allegations and the potential false claims suit be-

fore the United States has had an opportunity to conduct its

own investigation would frustrate the purpose of the FCA’s

requirement that a qui tam complaint initially be filed under

seal. Moreover, because the allegations of fraud will have

been disclosed in the wrongful discharge action, questions

would arise as to whether the employee is then barred from

even pursuing a qui tam action because of the FCA’s public

disclosure rule. See 31 U.S.C. 3730(e)(4)(A) (barring qui tam

action where allegations of fraud have been disclosed in a

prior civil hearing); United States ex rel. King v. Hillcrest

gress was “guided by” the whistleblower provisions in eight earlier fed-

eral statutes. See Senate Report 33. Petitioners emphasize that the long-

est limitations provision in any of those statutes is 180 days, and seven of

the eight allow only 30 days. Pet. Br. 15-16. Those examples, however,

are of limited relevance in determining the limitations period applicable to

claims under Section 3730(h). Unlike Section 3730(h), each of the whistle-

blower statutes cited in the legislative history provides that retaliation

claims are to be handled by an administrative process in the first instance.

Health Ctr., 264 F.3d 1271 (10th Cir. 2001) (prior wrongful

discharge action constituted a “public disclosure” that barred

a later qui tam suit on behalf of the United States by the

same plaintiff), cert. denied, 535 U.S. 905 (2002)."’ In prac-

tice, then, petitioners’ rule would frequently force employees

to choose between filing a retaliation claim alone and filing a

premature qui tam action.

Congress could have drafted elaborate provisions in an at-

tempt to address these competing incentives. Instead, it

chose a simpler approach by making retaliation claims sub-

ject to the same limitations rules that govern qui tam claims.

See 31 U.S.C. 3731(b). Relators therefore have no incentive

to bring retaliation claims independent of their underlying

qui tam claims or to rush their qui tam claim to court prema-

turely. :

Moreover, a uniform limitations period for all FCA claims

offers the benefit of certainty: a// claims under the False

Claims Act, regardless of the jurisdiction in which the action

is brought, are subject to a minimum limitations period of six

years under Section 3731(b). There are obvious benefits to

such a clear rule, not the least of which is avoiding threshold

litigation over which State’s limitations periods apply and

which of that jurisdiction’s provisions is the most closely

analogous to a Section 3730(h) retaliation action. See Jones

v. R.R. Donnelley & Sons, 124 S. Ct. 1836, 1842-1843 (2004).

In light of Congress’s explicit purpose in the 1986 FCA

1! A relator in such a circumstance might contend that she was the

“original source” of the fraud allegations, and thus that the bar against qui

tam suits based on publicly disclosed allegations does not apply. See 31

U.S.C. 3730(e4)B). The scope and application of the “original source”

exception in turn would create their own uncertainty.

The difficulty of such an endeavor is exemplified by the contradic-

tory assertions of the various courts and amici with respect to the most

analogous state limitations periods. Compare NDIA Br. 18 (Florida, un-

known; Utah, 1 year; Ohio, 4 years; Texas 2 years); EEAC Br. 17-18

(Florida, 4 years; Utah, 4 years; Ohio, less than 4 years); Pet. App. 24a-25a

(Ohio, 180 days; Texas, 180 days); note 9, supra (Florida, 180 days).

Amendments to encourage private enforcement of the FCA,

see Senate Report 23-24, it understandably chose to adopt a

uniform limitations period for all FCA claims, thereby

avoiding ambiguity in the applicable limitations period that

might deter employees from filing retaliation claims—or

even from coming forward at all.”

C. The Purportedly Absurd Consequences Peti-

tioners Describe Are Both Hypothetical And

Avoidable.

1. Notwithstanding the plain text of the FCA and the

evident advantages of a uniform limitations rule for all FCA

claims, petitioners argue that Congress could not have in-

tended Section 3731(b) to embrace retaliation claims be-

cause, in their view, it would lead to “absurd” results. Peti-

tioners point out that because the limitations period under

Section 3731(b)(1) begins to run on the date of the violation

of Section 3729, not the date of the retaliatory conduct itself,

the six-year period under Section 3731(b)(1) could conceiva-

bly expire before the retaliatory acts themselves occur."

Tellingly, however, petitioners and their amici cite only

hypothetical examples of such instances, and they do not cite

a single case in which such a result has occurred in the

13 Although petitioners contend (Br. 17) that Congress could not have

intended the six-year limitations period to apply to a retaliation action

under Section 3730(h) because six years is too long for employment related

claims, this Court has recognized that “six years[] is not long enough to

frustrate the interest in a ‘relatively rapid dispevition of labor disputes.’”

North Star Steel Co. v. Thomas, 515 U.S. 29, 36 (1995) (citation omitted).

4 Petitioners cite decisions of this Court to the effect that “{aJll stat-

utes of limitations begin to run when the right of action is complete.”

Clark v. lowa City, 87 U.S. (20 Wall.) 583, 589 (1875); Bay Area Laundry

& Dry Cleaning Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, 201

(1997). That is, indeed, the “standard rule” where, for example, Congress

states that the limitations period starts to run when “the cause of action

arose.” Ibid. (quoting 29 U.S.C. 1451(f(1)). But the Court has also made

clear that the “standard rule” does not apply if there is a statutory “indica-

tion that Congress intended to depart from the general rule.” /bid. Here,

the text of Section 3731(b) provides an express “indication” of such intent.

nearly two decades that have passed since Congress enacted

the FCA Amendments. See Pet. Br. 22-25; NDIA Br. 10-13;

EEAC Br. 12-14. Nor is the United States aware of any

such example. Surely something more than hypothetical ab-

surdity is required before a clear statutory provision will be

discarded. Even if some isolated examples of such instances

eventually emerge, their relative rarity demonstrates that

the purportedly absurd consequences for potential plaintiffs

of which petitioners and the amici FCA defendant organiza-

tions are so solicitous may have been appropriately dis-

counted by Congress. Congress is entitled to address itself

chiefly to the types of cases that will in the main arise and

may appropriately choose clarity and administrability over

competing concerns that may arise only in a small number of

eases. Cf. Lamie, 540 U.S. at 537 (rejecting an absurdity

challenge to the plain meaning of a statute in light of the

“apparent sound functioning of the [statutory regime] under

the plain meaning approach”).

2. Finally, as the court of appeals observed, if cases

should arise in which the six-year period in Section 3731(b)

expires before the employer commits a retaliatory act, tradi-

tional principles of equity could be interposed to prevent the

cause of action under Section 3730(h) from being time-

barred. See Pet. App. 20a-21la; Neal v. Honeywell, Inc., 33

F.3d 860, 866 (7th Cir. 1994).

For example, a court could consider whether an employer

who sought in bad faith to deny a whistleblowing employee

the benefit of Section 3730(h) by purposefully waiting until

the limitations period expired to exact revenge, should be

barred from relying on the statute of limitations. Glus v.

Brooklyn E. Dist. Terminal, 359 U.S. 231, 232-33 (1959) (ob-

serving that the doctrine that “no man may take advantage

of his own wrong” “has frequently been employed to bar in-

equitable reliance an statutes of limitations”); Schroeder v.

Young, 161 U.S. 334, 344 (1896) (defendant was “estopped to

insist upon the statutory period” because his conduct had

“lulled” the plaintiff “into a false security”).

Even without proof of such conduct by the employer, the

running of the limitations period for a retaliation action could

be deemed to be tolled upon the filing of an action by the At-

torney General or a qui tam relator under Section 3730(a) or

(b), just as the filing of a qui tam action automatically ren-

ders timely any subsequent intervention by the government,

even if an independent action by the Attorney General

pap me tata See Young v. United States, 535 US.

43, 49 (2002) (limitations periods are “customarily subject to

‘equitable tolling’, * * * unless tolling would be ‘inconsis-

tent with the text of the relevant statute’”) (citation omit-

ted); American Pipe & Constr. Co. v. Utah, 414 US. 538,

552-559 (1974) (claims of putative class members tolled dur-

ing pendency of class certification because defendants were

put on notice); see also Crown, Cork & Seal Co. v. Parker,

462 U.S. 345, 352 (1983). Under that_ approach, an action

could thereafter be brought based on any retaliation against

a relator or other employee subsequent to the filing of the

qui tam complaint for testifying or otherwise assisting in the

action while it is still in litigation. Alternatively, if a qui tam

plaintiff is discharged upon the unsealing of a complaint after

the period under Section 3731(b) has run, the court could al-

low the retaliation claim to relate back to the timely-filed qui

tam action.

Contrary to the concerns of petitioners and their amici,

the prospect of equitable tolling or similar principles being

applied to particular FCA retaliation does not create “the

prospect of perpetual liability” that “could bankrupt local

governments.” IMLA Br. 16-17. Of course, the prospect of

any liability can be avoided by the simple expedient of re-

fraining from retaliating, and the prospect of “perpetual”

liability is foreclosed by the equitable roots of those doc-

trines. In any case in which an equitable doctrine is raised,

the employer could invoke the doctrine of laches if the re-

taliation claim is not filed promptly after the discharge. The

defendant’s potential liability for back wages in such a situa-

tion would likely be less than in some applications of peti-

tioners’ theory, in which the discharged employee would, in

some States, have up to four, or even six, years after the dis-

charge to bring an FCA retaliation claim. Cf. NDIA Br. 17-

18; EEAC Br. 17-18. Indeed, a notable aspect of petitioners’

theory is that a retaliation claim could be brought no matter

how far in the past the purported fraud had taken place. Un-

der the statute Congress enacted, by contrast, if the em-

ployee undertakes an investigation after the time when a qui

tam suit or action by the Attorney General would be un-

timely, any retaliation suit would also be untimely. Thus, the

limitations period enacted by Congress in Section 3731(b)

serves the combination of purposes of this unique statute far

better than would the adoption of disparate state law ana-

logues that petitioners urge.

CONCLUSION

The judgment of the court of appeals should be affirmed.

PAUL D. CLEMENT

Acting Solicitor General