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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 409

## Text

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)

IV
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

VI

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
24
20

w

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

v.

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)

2

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,

3

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).

dq

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).

5

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

6

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

7

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-

8

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.

9

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.

10
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

11

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.”

12

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

13

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.

14

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

15

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.”

16

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-

17

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).

18

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

19

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).

20

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

21

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.

22

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).

23

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.

24

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).

25

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

© The Senate Report indicates that, in enacting Section 3730(h), Con-
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.

26

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).

27

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.

28

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-

30

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.

Respectfully submitted. ©

PAUL D. CLEMENT
Acting Solicitor General
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

MARCH 2005

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0033%3A08. Public record. Not legal advice.