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

rd

No. 04-169

In the

Supreme Court of the United States

GRAHAM COUNTY SOIL & WATER

CONSERVATION DISTRICT, et al.,

Petitioner,

UNITED STATES, ex rel. KAREN T. WILSON,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICI CURIAE OF TRE NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION AND THE TAXPAYERS AGAINST

FRAUD EDUCATION FUND IN SUPPORT OF RESPONDENT

MARISSA M. TIRONA, Esq.

NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION

44 Montgomery Street

Suite 2080

San Francisco, CA 94104

(415) 296-7629

JAMES MOOREMAN, Esq.

JOSEPH E. B. WHITE, Esq.

AMY WILKEN, Esq.

TAXPAYERS AGAINST FRAUD

EDUCATION FUND

1220 19th Street, N.W.

Washington, DC 20036

(202) 296-4826

ANN LUGBILL, Esq.

Counsel of Record

2406 Auburn Avenue

Cincinnati, Ohio 45219

(513) 784-1280

MARK KLEIMAN, Esq.

LAW OFFICE OF

MARK ALLEN KLEIMAN

12400 Wilshire Blvd., Suite 400

Los Angeles, CA 90025

(310) 442-4820

ROBIN POTTER, Esq.

ROBIN POTTER & ASSOCIATES

208 8. LaSalle Street, Suite 1615

Chicago, Illinois 60604

(312) 759-2500

Midwest Law Printing Company/Photex — Chicago — (312) 321-0220

i

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORTTIELDLZEZSEnnnnnnnne i

INTEREST OF AMICI CURIAE U¹EE 3

res ee s e 2

r. ed ee ene 3

I. THE FOURTH CIRCUIT CORRECTLY DECIDED

THAT THE RESPONDENT EMPLOYEE HAD SIX

YEARS WITHIN WHICH TO BRING AN ACTION

FOR “PROTECTED ACTIVITY” UNDER THE FALSE

CLAIMS ACT’S RETALIATION PROVISIONS IN 31

U.S.C. § 3730(H) WHEN THE FALSE CLAIMS ACT

STATUTE PROVIDES FOR A SIX-YEAR STATUTE

OF LIMITATIONS FOR “ALL CLAIMS BROUGHT

Den ccc ccccccccccsccsces 3

A. The False Claims Act’s Express Statutory

Language Supplies a Six-Year Statute of

Dr bees nee Oe AA 10

B. The Limitations Period Contained in 31 U.S.C.

§ 3731(b)(1) Applies to Employment Discrimi-

nation Actions Under 31 U.S.C. § 3730(h). ... 13

C. The Appellate Courts Have Applied the Text of

31 U.S.C. § 3731(b)(1) to § 3730(h). ......... 14

II. ACONSISTENT AND ESTABLISHED STATUTE OF

LIMITATIONS PERIOD IS CONSISTENT WITH

CONGRESSIONAL INTENT AND THE POLICY

OBJECTIVES OF THE FALSE CLAIMS ACT. ... 15

‘i

A. Consistency in Application of Statute of

Limitations is Faithful to Congressional

PPP!!! 16

B. Consistency in Section 3730(h) is Part of the

Overall Legislative Scheme of the False Claims

... „ „. 6 20 „%%% sane 17

C. Adoption of State Limitations Periods Is Con-

trary to Supreme Court Precedent. ......... 21

D. Adoption of State Limitations Periods Will

Create Inconsistent Time Periods and Intro-

duce Needless Uncertainty Into an Area Where

Congress Wanted and Supplied a Definite

Time Period Within Which to Bring Claims. . 23

e 30

—— —

—U— — — —. —

TABLE OF AUTHORITIES

Cases PAGE(S)

United States v. American Trucking Assns., Inc.,

eee eee 12

United States v. Bank of Farmington,

166 F.3d O63 (7th Cir. 1908) ....... ccc cccccees 19

United States ex rel. Barth v. Ridgedale Electric, Inc.,

PGE, MED occ cccccccecccceces 20

Board of Regents v. Tomanio,

r eee 21. 22

Buchanan v. Ameristar Casino Vicksburg, Inc.,

863 So. 3d 25 (Mies. 00 % /n n 25

United States, ex rel. Barbara Burch v. Piqua

Engineering, Inc.,

803 F. Supp. 115 (S.D. Ohio 1992) ............. 15

Cada v. Baxter Healthcare Corp.,

920 F. ad 446 (7th Cir. 1990) ................... 9

Caminetti v. United States,

J co cccccccccccocccccecs 11, 12

United States ex rel. Cantekin v. University of Pittsburgh,

1997 U.S. LEXIS 22868 (W.D. Pa., Aug. 27, 1997) 15

Chardon v. Fumero Soto,

r cc ccccccece 30

Childree v. UAP/GA AG Chem, Inc.,

92 F.3d 1140 (llth Cir. 1996) ............... 32e

iv

Commissioner v. Brown,

RE ES ee re epee 12

Davidson v. Western Illinois University,

920 F. ad 441 (7th Cir. 1990) ................... 9

DelCostello v. International Brothers of Teamsters.

re a i ha, ee ee 9,11

United States ex rel. Devlin v. California,

84 F.3d 358, 360 (9th Cir. 199 19

United States ex rel. Dhawan v. New York Medical College,

EI oc ccceducecessucéees 19

East Mississippi State Hospital v. Callens,

rehearing denied, 2004 Miss. LEXIS 361 (2004),

2005 Miss. LEXIS 119 (February 17, 2005)

(Mississippi Supreme Court) .................. 25

Eberhardt v. Integrated Designs & Construction, Inc.,

167 F.3d 861 (4th Cir. 1998) ................... 5

United States ex rel. Feingold v. Adminastar Federal, Inc.,

324 F.3d 492 (7th Cir. 2003) .................. 18

Goodman v. Lukens Steel Co.,

I I . 22

Grand ex rel. U.S. v. Northrop Corp.,

811 F. Supp. 333 (S.D. Ohio 1992) .......... 14, 16

Griffin v. Oceanic Contractors, Inc.,

r oc ncuicusienkeaeaden 12

*

United States ex rel. Hafter v. Spectrum Emergency

Care, Inc.,

190 F.3d 1156 (10th Cir. 199ù0))/õ

Hammond v. Northland Counseling Center, Inc.,

218 F.3d 886, 891-894 (8th Cir. 2000).........

United States ex rel. Hampton v. Columbia/HCA

Healthcare Corp.,

318 F.3d 214 (D.C. Cir. 2003) ...............

Harris v. Miss. Valley State University,

873 So. 2d 970, 985 (Mississippi 2004) ........

Harper v. Virginia Dept. of Taxation,

509 U.S. 86 (1983) .. 2... ccc eee cece eee:

Hartford Underwriters Ins. Co. v. Union Planters

Bank, N.A.,

996410

United States ex rel. Hays v. Hoffman,

325 F. 3d 982 (8th Cir. 2003) ................

Helvering v. Hammel,

311 U.S. 504, 510-511 (1941) ................

Holmberg v. Armbrecht,

327 U.S. 392 (196600)))))))) eee ee eeee

Hopper v. Anton,

91 F.3d 1261 (9th Cir. 1996) ................

Hughes Aircraft Co. v. United States,

520 U.S. 939 (1997) ... l.. „ä„

vi

Hutchens v. Wilentz, Goldman & Spitzer,

253 F.3d 176 (3d Cir. 2001) ................ 4, 5. 6

James B. Beam Distilling Co. v. Georgia,

D, ee i ee eee ani ie 29

United States ex rel. Jones v. Horizon Healthcare Corp.,

160 P. aa 336 (@th Cir. 1 %/% /r 19

Jones v. R. R. Donnelley & Sons Co.,

, re 16, 22, 23

Kowalski v. Alpha Kappa Alpha Sorority,

993 F. Supp. 619 (N. D. Ohio 1997) ............. 14

United States ex rel. Kent v. Aiello, :

836 F. Supp. 720 (E. D. Cal. 1993) .............. 15

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson,

ES ee sy er 9,12

Landreth Timber Co. v. Landreth,

el 11

United States ex rel. Lujan v. Hughes Aircraft Co.,

162 F.3d 1027 (9th Cir. 1998) .............. 13, 14

United States ex rel. Luckey v. Baxter Healthcare Corp.,

27 3 | f er 5

United States ex rel. Malloy v. Telephonics Corp.,

68 Fed. Appx. 270 (3d Cir. 2003) .............. 14

McArn v. Allied Terminix Co.,

626 So. 2d 603 (Miss. 1993) ................... 25

vii

United States ex rel. McKenzie v. BellSouth

Telecommunications, Inc.,

123 F.3d 935 (6th Cir. 1997) .............. 5, 6, 15

City of Midland v. O’Bryant, 18 S.W.3d 209,

43 Tex. Sup. J. 884 (2000: 25

United States ex rel. Mikes v. Strauss,

889 F. Supp. 746 (S.D.N.Y. 1995) .............. 15

United States ex rel. Minnesota Association of Nurse

Anesthetists v. Allina Health Systems Corp.,

276 F.3d 1032 (8th Cir. 2002) .............. 18-19

United States ex rel. Mistick PBT v. Housing Authority,

186 F.3d 376 (3d Cir. 1999ù0̃ß 19

United States v. Naftalin,

1 ͤ— 10

Neal v. Honeywell, Inc.,

33 F. 3d 860 (7th Cir. 1999)9ꝓ7)3 passim

Occidental Life Ins. Co. v. EEOC,

reer... ese eee eee 28, 30

United Parcel Service, Inc. v. Mitchell,

1 ?——— 11

laut v. Spendthrift Farm,

1 ?KͤKK 29

United States ex rel. Ramseyer v. Century

Healthcare Corp.,

90 F.3d 1514 (10th Cir. 1996) ............. 5, 6,19

vill

Reynoldsville Casket Co. v. Hyde,

Pe Ss PEGE cc eee eee eee 28

Robertson v. Bell Helicopter Textron, Inc.,

32 F.3d 948 (Seh Cir. 190 %ͥͥꝙ́hoc̊ůniuniinuniůů nn 6

Robertson v. Wegmann,

e ʒ 22

United States v. Fon Pair Enters..

r, a a a a 10

Sabine Pilot Service. Inc..

687 S.W.2d 733: 1985 Tex. LEXIS 755: 28 Tex.

Deren. eee see eee eee 24

United States ex rel. Shaw v. AAA Engineering

& Drafting, Inc., 213 F.3d

t ²· nn 5

United States ex rel. Siller v. Becton Dickinson & Co.,

21 F.3d 1339 (4th Cir. 1994) .................. 19

Smith v. Chicago,

769 F.2d 408 (7th Cir. 1980 9

United States ex rel. Springfield Terminal Railway

Co. v. Quinn,

14 F.3d 645 (D.C. Cir. 1994) .................. 19

United States ex rel. Stinson, Lyons, Gerlin & Bustamante,

P. A. b. Prudential Insurance Co.,

944 F.2d 1149 (3d Cir. 199 11 19

United States ex rel. Stone v. Rockwell International Corp.,

282 F.3d 787 (10th Cir. 200 0)))))) 18

— — — —

Storey v. Patient First Corp.,

207 F. Supp. 2d 431 (E. D. Va. 2002) ............ 15

Vermont Agency of Natural Resources v. United States

ex rel. Stevens,

rere eee ess sss 4

Wilkins v. St. Louis Housing Authority,

314 F. 3d 927 (8th Cir. 2002) ................... 6

Wilson v. Garcia.

SP LEE eee 21, 30

United States ex rel. Wilson v. Graham County Soil &

Water

Conservation District,

967 F.3d 246 (4th Cir. 00% /rnn 14

United States ex rel. Yesudian v. Howard University,

153 F.3d 731 (D.C. Cir. 1998) ............. 5, 6, 15

Zahodnick v. International Business Machines Corp.,

136 F.3d 91 (4th Cir. 1907) ͤůꝓůV6Uꝛ7IEInn¾ 5

Statutes and Legislative Materials

F ̃ 5

r iccccdbansbaecdsevensasaus 23

r TE Le a ORE Ree 23

31 U.S.C. § 3729 et seq. 2.6... eee e eee eecess passim

I passim

r ... ckeee 5, 29

r, 20

IL passim

e 20

inne 19

enen ccc ccccccccccces 20

rene . passim

,,, kone cnekeueseeunes as 7, 8, 23

eee 5

/ Suns canesaacnans 21

GE, BPD occ sccccccvancccccesecess 9

. C err ee 8

S. Rep. No. 619, 84th Cong., Ist Sess., 4-6 (1955) . 6, 16

S. Rep. No. 99-345, at 15 (1986ͥ᷑ 7 e e 30

Ar. Code Ann. § 20-77-902 (200 ⸗::: 24

Cal. Gov't Code § 12653(b) (200 h)))))))) 24

Cal Lab Code § 1102 et seg. (2005) ................ 25

Cal. Lab. Code §2699 et seq. (2005) ............. 25-26

xi

err... .es es 24

Del. Code. Ann. §§ 1201 et seq. (2004) .............. 24

Fla. Stat Ann. § 68.083(1) (200 hꝓhç)ʒ 24

Fla. Stat. § 448.103(1)(a)(2) (200 hç))ů : 26

Hi. Rev. Stat. Ann. §§ 661-21 et seq. (2004) ......... 24

Idaho St. §§ 6-2101 et seq. (2004).............4055- 24

740 Ill. Conip. Stat. Ann. §§ 175/4(b) (2004) ......... 24

Mass. Gen. Laws Ann. ch. 12, § 5C(2) (2004) ........ 24

BE BOG I oo ccc .es 27

oel... „ 27

eherne. eee e 26

Mich Comp. Laws §§ 15.361 (200 h)) 24

Minn. Stat. § 541.05 (200 )))j⸗⁸õꝶm: ::: 26

LL 26

Miss. Code Ann. § 25-9-173 (200 jj 25

Nev. Rev. Stat. § 357.070-080 (2004) ............... 24

LL 26

New York CLS Labor § 740. 4(a), (d) (200 ))) 26

xii

Ohio Rev. Code 4113.51 et seg. 24, 26

R. I. Gen. Laws § 28-50-4 (2004) .........5......... 27

Tenn. Code Ann. §§ 4-18-101 et seg. (200 h)) 24

Tex. Gov't Code § 554.002 (2004) .................. 27

Tex. Gov't Code § 554.005 (2004) .................. 27

Tex. Gov't Code § 554.006 (2004) .................. 27

Tex. Lab. Code § 451.001 (2004) .................. 27

Tex. Hum. Res. Code Ann. §§ 36.101 et seq. (2004) ... 24

Va. Code Ann. §§ 8.01-216. (200) 24

Miscellaneous

Lugbill, A., Section 2.85, False Claims Act Qui Tam

Suits and False Claims Act Employee Whistleblower

Protections, Litigating Wrongful Discharge Claims,”

,, ̃ ů r.... oe eee ae ae 18

McKnight, H. Vincent, et al., “Causes of Action by

Employee for Retaliation and Reprisal Pursuant to

the False Claims Act, 31 U.S.C.A. § 3730(H),” 22

Causes of Action 2d. 217, § 2 (West 2003). ........ 4

Sylvia, Claire M., “The False Claims Act: Fraud Against

the Government” § 2:9 (Thomson-West 2004). ..... 4

xiii

Muhl, Charles d., The Employment-At-Will Doctrine:

Three Major Exceptions, Monthly Lab. Rev., Jan.

2001, at 3, available at

http://www.bls.gov/opub/mir/ 2001 /01/artifull.pdf .....

1

Brief of Amici Curiae National Employment Lawyers

Association and Taxpayers Against Fraud Education

Fund in Support of Respondent

The National Employment Lawyers Association

(“NELA”) and Taxpayers Against Fraud Education Fund

(“TAFEF”) files this Brief as Amici Curiae in support of

Respondent. NELA and TAFEF request a/firmance of the

Fourth Circuit's decision applying the six-year limitations

period in 31 U.S.C. § 3730(b)(1) of the False Claims Act to

employment retaliation claims arising under 31 U.S.C. §

3730(h) of the False Claims Act. \

INTEREST OF AMICI CURIAE

NELA and TAFEF file this amici curiae brief with the

consent of all parties.’ NELA is the only professional

membership organization in the country comprised of

lawyers who represent employees in labor, employment

and civil rights disputes. NELA and its 67 state and local

affiliates have a membership of over 3,000 attorneys who

are committed to working on behalf of those who have been

illegally treated in the workplace. NELA strives to protect

the rights of its members’ clients and regularly supports

precedent-setting litigation affecting the rights of individu-

als in the workplace. NELA advocates for employee rights

and workplace fairness while promoting the highest

standards of professionalism, ethics and judicial integrity.

' The consents of the parties have been filed with the Clerk of

the Court. In compliance with Rule 37.6 of this Court, amici

curiae National Employment Lawyers Association (NELA) and

Taxpayers Against Fraud Education Fund (TAFEF) state that no

counsel for either party authored any portion of this brief. No

persons other than the amici curiae, its members, or its counsel

made a monetary contribution to the preparation and submission

of this brief.

2

Taxpayers Against Fraud Education Fund (“TAFEF”) is

a nonprofit public interest organization dedicated to

combating fraud against the federal government through

the promotion of the qui tam provisions of the False

Claims Act, 31 U.S.C. § 3729 et seq. and the support of

whistleblowers who use the Act. The qui tam provisions of

the Act permit a private relator to file suit on behalf of the

United States alleging violations of the Act. In addition,

the Act provides retaliation protection for the qui tam

relator who brought the case. Typically, relators ill file

their retaliation claim along with the underlying False

Claims Act claim, so as not to violate the public disclosure

and seal provisions of the Act. TAFEF therefore has a

strong interest in ensuring that the six-year statute of

limitations provision is correctly applied to both claims -

the retaliation claim and the False Claims Act claim - thus

preventing premature actions under the Act.

NELA and TAFEF are familiar with the questions

involved in this case and the scope of their presentation

and believe there is a necessity for additional argument on

these points. NELA and TAFEF feel that it would be

helpful to the Court, and important to the public, to file

this amici curiae brief in order to assist the Court in the

resolution of this case. NELA and TAFEF have a profound

and abiding interest in ensuring that the employment

retaliation protections in the False Claims Act are appro-

priately interpreted and applied.

SUMMARY

The Fourth Circuit's decision ensures that there will be

a uniform limitations period for all employee whistleblow-

er retaliation claims under the False Claims Act. A statute

of limitations that varies based upon (1) factual differences

in the type of retaliation that occurred, (2) the type of

employment (private or public), or (3) the state in which an

3

action is brought (where the plaintiff whistleblower

worked or where the fraud occurred), will impair the

strong federal interests in consistent enforcement of a

federal anti-fraud scheme, lead to inconsistent results,

create a patchwork quilt of time limitations and facilitate

forum-shopping in cases where time limits may have

otherwise run or may have been extended. Finally, a short

statute of limitations, like those common under closely

analogous state statutes prohibiting employment or other

whistleblower discrimination, will interfere with the False

Claims Act's qui tam provisions that require a filing under

seal and frequently spawn undercover or other criminal

investigations. Absent meaningful False Claims Act

employment protections with an adequate and certain time

period for bringing claims, many employees will fear to

“blow the whistle” on fraud, will be discouraged from

notifying employers of suspected wrongdoing and will not

come forward to assist the federal government in exposing

fraud or will be unwilling witnesses.

ARGUMENT

I. THE FOURTH CIRCUIT CORRECTLY DECIDED

THAT THE RESPONDENT EMPLOYEE HAD SIX

YEARS WITHIN WHICH TO BRING AN ACTION

FOR “PROTDCTED ACTIVITY” UNDER THE

FALSE CLAIMS ACT’S RETALIATION PROVI-

SIONS IN 31 U.S.C. § 3730(H) WHEN THE FALSE

CLAIMS ACT STATUTE PROVIDES FOR A SIX-

YEAR STATUTE OF LIMITATIONS FOR “ALL

CLAIMS BROUGHT UNDER THIS SECTION.”

In 1986, Congress enacted employee retaliation

protections as part of its comprehensive overhauling of the

False Claims Act, 31 U.S.C. § 3729 et seg. The so-called

“Lincoln Law,” a Civil War-era statute, now forms a vital

part of the federal enforcement scheme for identifying and

4

prosecuting financial fraud schemes perpetrated on the

United States,“ The 1986 Amendments reinvigorated the

law by, inter alia, increasing the ability of private persons

to bring actions “for themselves and the United States as

qui tam relators, clarifying the . ien of proof, increasing

penalties and amending the ¢s_aages provisions, and

otherwise making the Act a more effective mechanism to

ferret out schemes to defraud the Government and to

recover funds

An important element in the overall Congressional

strategy to incentivize insiders, frequently employees of

government contractors, were new provisions codified at 31

U.S.C. § 3730(h). Congress intended vigorous anti-retalia-

tion protections for employee whistleblowers who investi-

gated or otherwise disclosed illegal schemes that violate

the False Claims Act. Congress enacted the law after

whistleblowers testified about the need to bar employment

retaliation in order to encourage reporting of government

contracting fraud.

The Section 3730(h) whistleblower protection states:

Any employee who is discharged, demoted, sus-

pended, threatened, harassed, or in any other

manner discriminated against in the terms and

conditions of employment by his or her employer

* See Vermont Agency of Natural Resources v. United States ex

rel. Stevens, 529 U.S. 765, 768 n. 1 (2000); Hutchens v. Wilentz,

Goldman & Spitzer, 253 F.3d 176 (3d Cir. 2001).

* Sylvia, Claire M. “The False Claims Act: Fraud Against the

Government” § 2:9 (Thomson-West 2004).

* McKnight, H. Vincent, et al. “Causes of Action by Employee for

Retaliation and Reprisal Pursuant to the False Claims Act, 31

U.S.C.A. § 3730(H),” 22 Causes of Action 2d. 217, § 2at 226 (West

2003).

5

because of lawful acts done by the employee on

behalf of his employer or others in furtherance 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 entitled to all relief necessary to make the

employee whole.

The statute provides reinstatement with seniority, double

back pay, interest, special damages sustained as a result

of discriminatory treatment, and attorneys fees and costs.

Federal jurisdiction exists for whistleblower claims under

the False Claims Act, 31 U.S.C. §§3730(b) and 3732(a)-(b),

in addition to general federal question jurisdiction. 28

U.S.C. §1331.

To prove a Section 3730(h) retaliatory discharge claim,

the whistleblower must show that she or he engaged in

conduct protected by the False Claims Act. The courts also

31 USC. § 3730th); Hammond v. Northland Counseling

Center, Inc., 218 F.3d 886, 891-894 (8th Cir. 2000); United States

ex rel. Shaw v. AAA Engineering & Drafting, Inc., 213 F.3d 538,

544-545 (8th Cir. 2000); Neal v. Honeywell, Inc., 191 F.3d 827,

831-834 ( Cir. 1999) (other history omitted); Eberhardt v.

Integrated Designs & Construction, Inc., 167 F.3d 861, 872 (4th

Cir. 1998) (interest should be provided).

® Hutchens, supra; United States ex rel. McKenzie v. BellSouth

Telecommunications, Inc.,123 F.3d 935, 943-944 (6th Cir. 1997)

cert. denied 522 U.S. 1077 (1998), after remand, 219 F.3d 508,

513 (6th Cir. 2000); United States ex rel. Luckey v. Baxter

Healthcare Corp., 183 F.3d 730, 733 (7th Cir. 1999); United

States ex rel. Yesudian v. Howard University, 153 F.3d 731, 736

(D.C. Cir. 1998); Zahodnick v. International Business Machines

Corp., 135 F.3d 91 (4th Cir. 1997); Hopper v. Anton, 91 F.3d 1261,

1269 (9th Cir. 1996); United States ex rel. Ramseyer v. Century

Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir. 1996); Neal, 33

(continued...)

6

require a showing that the defendant has some notice of

the protected conduct that the whistleblower was either

taking action in furtherance of a qui tam action or assist-

ing in an investigation or actions brought by the Govern-

ment.’ Finally, the whistleblower must show that the

termination was in retaliation for the protected activities.

The protection against retaliation has been extended by

most courts to whistleblowers whose allegations could

legitimately support a False Claims Act case, even though

no case is ever filed by a relator, co-worker, or the Depart-

ment of Justice. Courts have also held that Section

3730(h) does not require that the plaintiff even have been

aware of the False Claims Act at the time he or she

engaged in the relevant activity.“

(continued)

F.3d at 864; Robertson v. Bell Helicopter Textron, Inc., 32 F.3d

948, 951 (5th Cir. 1994), cert. denied, 513 U.S. 1154 (1995) (citing

S. Rep. No. 345, 99" Cong. 2d Sess. 35 (1986), reprinted in, 1986

U.S.C.C.A.N. 5266, 5300).

” Hutchens, 253 F.3d at 186; United States ex rel. McKenzie,123

F.3d at 943-944; Eberhardt, 167 F. ad at 868; United States ex rel.

Yesudian, 153 F.3d at 744; Childree v. UAP/GA AG Chem, Inc.

92 F.3d 1140, 1146 (11% Cir 1996); Hopper, 91 F.3d at 1269-70;

United States ex rel. Ramseyer, 90 F.3d at 1522; Robertson, 32

F.3d at 951; Neal, 33 F.3d at 864.

* Wilkins v. St. Louis Housing Authority, 314 F. 3d 927, 932-933

(8th Cir. 2002); Hutchens, 253 F.3d at 186; United States ex rel.

Yesudian, 153 F.3d at 736; Hopper, 91 F.3d at 1269-70; United

States ex rel. Ramseyer, 90 F. ad at 1522.

United States ex rel. Yesudian, 153 F.3d at 736, 739; Childree,

92 F.3d at 1146; United States ex rel. Ramseyer, 90 F.3d at 1522:

Neal, 33 F.3d at 864-865.

"© United States ex rel. Yesudian, 153 F.3d at 741.

7

The False Claims Act's only limitations provision is

found in 31 U.S.C. § 3731(b) and applies to all civil actions

brought under 31 U.S.C. § 3730. The provision states:

(b) A civil action under section 3730 may not be brought -

() more than 6 years after the date on which the

violation of section 3729 is committed, or

(2) more than 3 years after the date when facts

material to the right of action are known or

reasonably should have been known by the

official of the United States charged with respon-

sibility to act in the circumstances, but in no

event more than 10 years after the date on which

the violation is committed, whichever occurs

last.

The 31 U.S.C. § 3730 provision, referred to in 31 U.S.C. §

3731(b) above, includes three types of civil actions:

1) acause of action brought by the United States under

31 U.S.C. § 3730(a);

2) a qui tam action under 31 U.S.C. § 3730(b) brought

by a whistleblowing relator on behalf of the relator

and the United States; and

3) an employment retaliation claim action under 31

U.S.C. § 3730(h) filed by an individual employee.

Therefore, an action under 31 U.S.C. § 3730, which

necessarily includes an action under 31 U.S.C. § 3730(h),

is to be brought within six years of the date on which the

underlying False Claims Act violation occurred. Indeed,

~

For purposes of this brief, amici will refer to the basic six-

year statute, not to the ten-year statute of repose that applies

“when facts material were not “reasonably. . known. .” 31

(continued...)

8

the legislative history explains that the False Claims Act

whistleblower provision protects those who report fraud

“in connection with false claims prosecutions.” 132 CONG.

REC. 22336.

Petitioner argues that, despite the Act's language, the

six-year limitations period applies to every 31 U.S.C. §

3730 cause of action except to employment retaliation

claims arising under 31 U.S.C. § 3730(h). Petitioner's

argument, however, was rejected in the seminal opinion on

31 U.S.C. § 3730(h) claims, Neal v. Honeywell, Inc., 33

F.3d 860, 865-866 (7th Cir. 1994) (other history omitted):

How absurd!, Honeywell rejoins, to read the

statute so that the time to file suit may expire

before the retaliation occurs. If a firm submits a

false claim early in 1991, an employee discovers

the falsity in 1995, and the employer fires the

whistleblower late in 1997, a suit under § 3730(h)

would be untimely. Ever-solicitous of its

ex- employees right to sue it, Honeywell contends

that § 3731(b)(1) cannot sensibly be applied to §

3730(h), and that we should therefore turn to state

law--which, Honeywell believes, supplies a term of

five years from the retaliation. Neal waited too

long and must lose, Honeywell submits. Unlike

Honeywell, however, we find no absurdity in the

statute. Statutes of repose, increasingly common in

tort cases, have the potential to block litigation

before the tort occurs. Suppose the law bars suits

filed more than ten years after the product's

9

Lampf, Pleva, Lipkind, Prupis & Petigrow v.

Gilbertson, 501 U.S. 350 (1991). If § 3731(b)(1) is

another exhibit in this list, that would not con-

demn it as absurd. It would show only that Con-

gress has opted for simplicity of administration. (It

is easier to determine the date of a false claim

than to pin down the time of retaliatory acts; the

claim is a document, but arguments about retalia-

tion depend on oral exchanges and are subject to

failure of memory as well as the risk of prevarica-

tion.) In most cases, of which this is an example,

the false claims, the reports, and the retaliation

will occur close in time, so starting the period of

limitations with the false claim rather than the

retaliation will leave employees ample time to

protect their rights. Claims of employment dis-

crimination under labor and civil rights laws must

be made in less than a year. See, e.g., DelCostello

v. Teamsters, 462 U.S. 151(1983); Smith v. Chi-

cago, 769 F.2d 408 (7th Cir. 1985); 42 U.S.C. §

2000e-5(e). Whistleblowers are likely to have much

more than that, as Neal did. It is possible, more-

over, that equitable tolling or estoppel would apply

to § 3731(b)(1) if the firm patiently waited until six

years from the false claim and then sacked the

troublesome employee. Cf. Cada v. Baxter

Healthcare Corp., 920 F.2d 446 (7th Cir. 1990);

Davidson v. Western Illinois University, 920 F.2d

441 (7th Cir. 1990)."”

Petitioner's argument that the statute’s plain language

should be ignored is in derogation of the nearly unanimous

rulings of the appellate courts, distorts the applicable

legislative history of the 1986 False Claims Act Amend-

delivery. Then a person injured by a defect ten

years and a day after sale lacks a remedy. The

statutes of repose in federal securities laws may

expire before a person discovers the fraud. See

„ (continued) | 2 Neal, 33 F.3d at 865-86.

U.S.C. § 3731(b)(2). :

10

ments and undermines the policy concerns that underlie

the Act. Petitioner's interpretation, which attempts to

remove 31 U.S.C. § 3730(h) from 31 U.S.C. § 3730, preju-

dices the individual employees and the Government by

discouraging whistleblowers from coming forward to

disclose fraud. Because the Fourth Circuit’s decision

respects the False Claims Act’s language, honors the

applicable legislative intent, and correctly protects whistle-

blowers from reprisals, the decision should be affirmed.

A. The False Claims Act’s Express Statutory

Language Supplies a Six-Year Limitations

Period.

Petitioner's suggested reading of 31 U.S.C. § 3731(b)(1)

excludes retaliation claims from the ambit of the only

limitations provision in the False Claims Act, rewriting the

language to state that “a civil action under Section

3730[(a) or (b)] may not be brought more than six years

after the date on which the violetion of Section 3729 is

committed” and that actions under 31 U.S.C. § 3730¢h)

may not be brought more than 90 days to six years from

when the allegedly discriminatory employment action

occurred depending on the state law where the relator is

or was employed.

First, contrary to Petitioner's argument that this Court

should disregard the statutory limitations period and

instead adopt an ever-changing landscape of state limita-

tions period, Congress and this Court do not cavalierly

adopt state statutory limitations periods for federal laws.

As this Court previously observed: “The short answer is

that Congress did not write the statute that way.” United

States v. Naftalin, 441 U.S. 768, 773 (1979). As stated in

United States v. Ron Pair Enters., 489 U.S. 235, 240-243

(1989):

11

Rather, as long as the statutory scheme is coherent

and consistent, there generally is no need for a

court to inquire beyond the plain language of the

statute. The task of resolving the dispute over the

meaning of § 506(b) begins where all such inqui-

ries must begin: with the language of the statute

itself. Landreth Timber Co. v. Landreth, 471 U.S.

681, 685 (1985). In this case it is also where the

inquiry should end, for where, as here, the stat-

ute’s language is plain, “the sole function of the

courts is to enforce it according to its terms.”

Caminetti v. United States, 242 U.S. 470, 485

(1917). The language before us expresses Congress’

intent -- that postpetition interest be available --

with sufficient precision so that reference to

legislative history and to pre-Code practice is

hardly necessary.

This Court further cautioned in a case involving the

federal securities laws:

under a statute that also contains an express

cause of action with its own time limitation, a

court should look first to the statute of origin to

ascertain the proper limitations period. We can

imagine no clearer indication of how Congress

would have balanced the policy considerations

implicit in any limitations provision than the

balance struck by the same Congress in limiting

similar and related protections. See DelCostello,

462 U.S. at 171; United Parcel Service, Inc. v.

Mitchell, 451 U.S. 56, 69-70, (1981) (opinion

concurring in judgment). When the statute of

origin contains comparable express remedial

provisions, the inquiry usually should be at an

end. Only where no analogous counterpart is

available should a court then proceed to apply

12

state-borrowing principles.“

When 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. Co. v. Union Planters Bank,

N.A., 530 U.S. 1, 6 (2000). It would be absurd here to

require the Court to set aside the language in a

Congressionally-enacted statute in favor of a potpourri of

inconsistent and, perhaps wholly inappropriate, state

limitations. As this Court stated several decades ago:

There is, of course, no more persuasive evidence of

the purpose of a statute than the words by which

the legislature undertook to give expression to its

wishes. United States v. American Trucking

Assns., Inc., 310 U.S. 534, 543 (1940). See

Caminetti v. United States, 242 U.S. 470, 490

(1917). Nevertheless, in rare cases the literal

application of a statute will produce a result

demonstrably at odds with the intentions of its

drafters, and those intentions must be controlling.

We have reserved “some ‘scope for adopting a

restricted rather than a literal or usual meaning of

its words where acceptance of that meaning

would thwart the obvious purpose of the statute.”

Commissioner v. Brown, 380 U.S. 563, 571 (1965)

(quoting Helvering v. Hammel, 311 U.S. 504,

510-511 (1941)). This, however, is not the excep-

tional case.

‘8 Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501

U.S. 350, 356 (1991) (other citations omitted).

'* Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982).

13

Every court of appeals decision, except for the Ninth

Circuit’s Lujan decision, infra, successfully applied the

plain text of the False Claims Act statute of limitations

provision to 31 U.S.C. § 3730(h) without producing an

“absurd disposition.” The issue before the Supreme Court

can be decided solely on the plain text of the Act.

Congress tied the retaliation claim to a date six years

after the last false claim was submitted by the defendant.

This is not an absurd result, but merely an effort to

establish ease of administering the statute, since the

“claim” is a document and not subject to faulty or created

memory. In addition, Petitioner's interpretation of 31

U.S.C. § 3730(h), which explicitly protects an employee

acting “in furtherance” of a 31 U.S.C. § 3729 action,

attempts to isolate the retaliation provision from the

underlying 31 U.S.C. § 3729 False Claims Act violation

provision. However, as the Fourth Circuit noted, no action

of any type under 31 U.S.C. § 3730, including one under 31

U.S.C. § 3730(h), can proceed unless there has been an

alleged violation of 31 U.S.C. § 3729. Thus, the language

of 31 U.S.C. § 3729 is the common thread linking both

provisions - 31 U.S.C. § 3730(h) and 31 U.S.C. § 3731(b)(1)

and undermines Petitioner's argument that 31 U.S.C.

§ 3729 has no bearing upon retaliatory discharge actions.

B. The Limitations Period Contained in 31 U.S.C.

§ 3731(b)(1) Applies to Employment Discrimina-

tion Actions Under 31 U.S.C. § 3730(h).

The Fourth Circuit's decision examined carefully the

Seventh Circuit’s decision in Neal v. Honeywell, supra. In

Neal, the Seventh Circuit held that a suit under 31 U.S.C.

§ 3730(h) is an action under 31 U.S.C. § 3730. Although

statutory language may create a burden for employers,

this is a matter to be resolved by the political process, not

the judiciary. Congress wanted to make employees feel

more secure in reporting misconduct.

14

The Fourth Circuit's decision below also found that the

statutory framework of the False Claims Act shows that

Congress intended retaliation claims to be tied to viola-

tions of 31 U.S.C. § 3729. Calling this a “trigger” mecha-

nism, the Fourth Circuit pointed out that a retaliation

action will not lie unless it is connected with an allegation

of a violation of 31 U.S.C. § 3729. Rather than signaling

Congressional intent to exclude retaliation claims from the

six-year statute, it merely ties an employee retaliation

claim to some colorable violation of the False Claims Act.

If plaintiffs-whistleblowers were required to show a

judicially substantiated violation of 31 U.S.C. § 3729

before suit could begin (as Petitioner argues) no action

could ever be perfected.

C. The Appellate Courts Have Applied the Text of

31 U.S.C. § 3731(b)(1) to 31 U.S.C. § 3730(h)

Petitioner’s portrayal of the Fourth Circuit’s decision as

“deepen[ing] an existing conflict among the circuit courts”

seizes upon language in the Ninth Circuit's Lujan decision

as proof that statutory ambiguity demands a review of the

legislative history. See United States ex rel. Lujan v.

Hughes Aircraft Co., 162 F.3d 1027 (9th Cir. 1998) (holding

that, in retaliation claims under Section 3730(h), the

applicable statute of limitations is taken from the “most

closely analogous state statute,” not the False Claims Act’s

statute of limitations provision). However, every court

outside the Ninth Circuit that has addressed this issue has

applied the False Claims Act’s limitations provision

without finding any statutory ambiguity. United States ex

rel. Wilson v. Graham County Soil & Water Conservation

District, 367 F.3d 245 (4th Cir. 2004); United States ex rel.

Malloy v. Telephonics Corp., 68 Fed. Appx. 270 (3d Cir.

2003), cert. denied, 158 L. Ed. 2d 469 (2004); Neal, supra;

accord, Kowalski v. Alpha Kappa Alpha Sorority, 993 F.

Supp. 619, 620-2 (N.D. Ohio 1997); Grand ex rel. U.S., 811

15

F. Supp. at 335-337; Storey v. Patient First Corp., 207 F.

Supp. 2d 431, 444 (E.D. Va. 2002); United States ex rel.

Mikes v. Strauss, 889 F. Supp. 746, 753-754 (S.D.N.Y.

1995); United States ex rel. Kent v. Aiello, 836 F. Supp.

720, 723-724 (E.D. Cal. 1993); United States ex rel.

Cantekin v. University of Pittsburgh, 1997 U.S. LEXIS

22868 (W.D. Pa., August 27, 1997).

II. A CONSISTENT AND ESTABLISHED STATUTE

OF LIMITATIONS PERIOD IS CONSISTENT

WITH CONGRESSIONAL INTENT AND THE

POLICY OBJECTIVES OF THE FALSE CLAIMS

ACT.

Even if the Court were to review the applicable legisla-

tive history, the Court would discover that the defendants’

proposed statutory interpretation undermines the policy

concerns behind the Act, especially the False Claims Act

retaliation provision. In its 1986 amendments to the Act,

Congress stressed “that few individuals will expose fraud

if they fear their disclosures will lead to harassment,

demotion, loss of employment or any other form of retalia-

tion.” United States ex rel. McKenzie v. Bell South Telecom-

munications, Inc., 123 F.3d 935, 943-44 (6th Cir. 1997)

(quoting S. Rep. No. 345, 99th Cong., 2d Sess. 35 (1986),

reprinted in 1986 U.S. Code Cong. & Ad. News 5266,

5300). The statute, therefore, was enacted to assure a

person who may wish to expose fraud that there will be

protection from retaliation. United States ex rel. Yesudian

v. Howard University, 153 F.3d 731, 736 (D.C. Cir. 1998).

Indeed, a relator’s qui tam claim is often interrelated to

his claim for retaliation. See generally, United States, ex

rel. Barbara Burch v. Piqua Engineering, Inc., 803 F.

Supp. 115 (S.D. Ohio 1992) (noting that qui tam plaintiffs

have standing because of the potential ramifications to

their employment status by initiating an action under the

False Claims Act). “Given the interrelatedness of the two

16

actions, Congress rationally concluded that the two actions

should have identical statutes of limitation. Therefore,

based upon the plain meaning of the statute, we conclude

that [plaintiff] has filed a timely cause of action under 31

U.S.C. § 3730(h) for retaliation.” Grand ex rel. U.S., 811 F.

Supp. at 336.

A. Consistencv in Application of Statute of Limita-

tions is Faithful to Congressional Intent.

Congress has demonstrated a clear preference for a

consistent, easily administered statute of limitations. As

this Court explained in Jones v. R.R. Dennelley & Sons

Co., 541 U.S. 369 (2004):

The practice of borrowing state statutes of limita-

tion also forced courts to address the “frequently

present problem of a conflict of laws in determin-

ing which State statute [was] controlling, the law

of the forum or that of the situs of the injury.” S.

Rep. No. 619, 84th Cong., Ist Sess., 4-6 (1955)

(discussing problems caused by borrowing state

statutes of limitations for antitrust claims). Even

when courts were able to identify the appropriate

state statute, limitation borrowing resulted in

uncertainty for both plaintiffs and defendants, as

a plaintiff alleging a federal claim in State A would

find herself barred by the local statute of limita-

tions while a plaintiff raising precisely the same

claim in State B would be permitted to proceed.

Ibid.

By short-circuiting the False Claims Act's statute

of limitations provision, Petitioner’s recommended alterna-

tive of the “most closely analogous state limitations period”

creates a disincentive for relators to file suit, particularly

in states with limitation periods as short as 90 days. In

addition, the uncertainty inherent in choice-of-law issues

17

and in the process of identifying which of several poten-

tially applicable statutes is “most analogous” would further

undermine the protection Congress intended in enacting

31 U.S.C. § 3730(h), by creating a difficult maze of state

employment law to navigate, simply in order to determine

whether an individual could assert retaliation protections

for reporting or investigating financial and contracting

fraud violations by a federal contractor or grantee.

B. Consistency in Section 3730 (h) is Part of an

Overall Legislative Scheme.

The protections under 31 U.S.C. § 3730(h) are central to

a coherent fraud enforcement scheme. Although a handful

of qui tam relators have achieved substantial financial

success as a result of their whistleblowing activities, most

individuals involved in assisting the United States in False

Claims Act actions will not be so fortunate—most will not

even be qui tam relators. Thus, the Government needs to

be able to point to consistent statutory employment

protections for witnesses and others who cooperate and

assist them in their investigative efforts. Government

agents investigating False Claims Act violations should

not be expected to become experts in the nuances of state

employment and whistleblower law simply in order to

assure a witness or other person that they have meaning-

ful job protections if they assist the United States. The

consequences of a cooperating witness being misadvised,

and then losing the anti-retaliation protections, could lead

to the unintended and unfortunate result of a withdrawal

of cooperation.

Even as to qui tam relators, the employment protections

afforded under the False Claims Act may provide far more

important relief than the prospect of future monetary

damages. The False Claims Act is fraught with procedural

and practical obstacles that can diminish a qui tam rela-

18

tor's recovery, even though the claims asserted under 31

U.S.C. § 3729 are meritorious and liability against the

defendant is established. Relators have no assurance of

a substantial recovery, but the provisions of 31 U.S.C. §

3730(h) were intended to assure that no matter the

outcome of the qui tam claims, the relators should remain

employed, their mortgages paid, and their families fed

during the litigation.

The risks for the whistleblower, in cooperating with the

United States or in filing a qui tam action, cannot be

understated. As a result of the 1986 Congressional amend-

ments to the False Claims Act, qui tam actions are subject

to several statutory bars, most of them termed jurisdic-

tional, that can block otherwise meritorious claims from

being pursued by a qui tam whistleblower.

The 1986 amendments to the False Claims Act were

intended to encourage private enforcement suits by

legitimate whistleblowers while barring suits by opportu-

nistic qui tam plaintiffs who base their claims on matters

that were previously the subject of public government

investigations or were otherwise in the media. The pri-

mary bar is a “public disclosure” jurisdictional bar, provid-

ing that the courts may not entertain jurisdiction over any

qui tam claims that were “publicly disclosed. Most

See Lugbill, A., Section 2.85, False Claims Act Qui Tam Suits

and False Claims Act Employee Whistleblower Protections,

“Litigating Wrongful Discharge Claims,” (West 2003).

Hughes Aircraft Co. v. United States, 520 U.S. 939, 950-1

(1997) Gurisdictional statute); United States ex rel. Feingold v.

Adminastar Federal, Inc., 324 F.3d 492 (7th Cir. 2003)(provision

is labeled jurisdictional, but is actually substantive); See gener-

ally, United States ex rel. Stone v. Rockwell International Corp.,

282 F.3d 787 (10th Cir. 2002); United States ex rel. Minnesota

(continued...)

19

courts interpret the Act’s jurisdictional bars as permitting

the Department of Justice, but not the relator, to pursue

the claims. “Where the qui tam suit is based upon

‘allegations or transactions’ which already have been

‘publicly disclosed”. . in a criminal, civil, or administra-

tive hearing in a congressional, administrative, or Govern-

ment Accounting Office report, hearing, audit or investiga-

tion or from the news media,” only an “original source” can

bring a qui tam action. These “public disclosure” provi-

sions bar qui tam cases brought by persons other than an

“original source.” An “original source” is an individual who

has “direct and independent knowledge of the information

(continued)

Association of Nurse Anesthetists v. Allina Health Systems Corp.,

276 F.3d 1032, 1040-43 (8th Cir.), cert. denied. U.S. 154 L.

Ed. 2d 252, 123 S. Ct. 345 (2002); United States ex rel. Dhawan

v. New York Medical College, 252 F.3d 118, 121-122 (2d Cir.

2001); United States ex rel. Hafter v. Spectrum Emergency Care,

Inc., 190 F.3d 1156, 1163 (10th Cir. 1996); United States ex rel.

Mistick PBT v. Housing Authority, 186 F.3d 376 (3d Cir. 1999),

cert. denied, 529 U.S. 1018 (2000); United States v. Bank of

Farmington, 166 F.3d 853, 863 (7th Cir. 1999); United States ex

rel. Jones v. Horizon Healthcare Corp., 160 F.3d 326, 335 (6th

Cir. 1998); United States ex rel. Ramseyer v. Century Healthcare

Corp., 90 F.3d 1514, 1521 (10th Cir. 1996); United States ex rel.

Devlin v. California, 84 F.3d 358, 360, 363 (9th Cir. 1996); United

States ex rel. Siller v. Becton Dickinson & Co., 21 F.3d 1339, 1348

(4th Cir. 1994); United States ex rel. Springfield Terminal

Railway Co. v. Quinn, 14 F.3d 645, 649-51 (D.C. Cir. 1994);

United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A.

v. Prudential Insurance Co., 944 F.2d 1149, 1152-54 (3d Cir.

1991). 8

But, see, United States ex rel. Hays v. Hoffman, 325 F. 3d 982

(8th Cir. 2003)(finding both relator and the United States barred

from pursuing claims if there was a public disclosure).

1 31 U.S.C. § 3730(e)(4)(A)

20

upon which the allegations are based and has voluntarily

provided the information to the Government” prior to filing

a qui tam action. The qui tam provisions also contain a

“first to file” rule prohibiting subsequently-filed actions that

allege the same legal violations. 31 U.S. C. § 3730(b)(5); see

United States ex rel. Hampton v. Columbia/HCA Healthcare

Corp., 318 F.3d 214 (D.C. Cir. 2003). Finally, a qui tam

action cannot be based on allegations already the subject of

a federal civil suit or a federal administrative civil money

penalty proceeding in which the federal government is a

party”’; this provision seeks to prevent so-called “parasitical”

actions that try to unfairly exploit pre-existing Government

efforts to pursue false claims.

The legislative history shows that Congress was originally

contemplating creating a new section for the retaliation

claims, but instead opted to include them within 31 U.S.C.

§ 3730. Relocating the retaliation claims to the section

dealing with the handling of other false claims reinforces the

conclusion that Congress intended that the retaliation

claims would have the same statutes of limitations as all

other False Claims Act claims.

These jurisdictional, “first-to-file,” and related provisions

encourage a well-informed whistleblower, particularly one

represented by experienced counsel, to offer information to

the Department of Justice about the False Claims Act

violations even before a qui tam action is filed and, often,

before any employment retaliation occurs. The qui tam

provisions and the public disclosure bar act also as a

disincentive for employee whistleblowers to impair the

Government's investigatory abilities, as can happen when

the first disclosures of fraud occur in the public press, rather

31 U.S.C. § 3730(e)(4)(B); See United States ex rel. Barth v.

Ridgedale Electric, Inc., 44 F.3d 699, 703 (8th Cir. 1995).

31 U.S.C. § 3730(e)(3).

21

than directly to appropriate Government investigators and

prosecutors. A whistleblowing employee who informs federal

investigators promptly may avoid employment retaliation

for years, as the Government pursues witnesses and

information without the glare of publicity and the qui tam

case, if one is filed, remains sealed. Given the very substan-

tial risks that qui tam litigation will not be successful, the

employment protections are critical to the success of the

statutory scheme.

C. Adoption of State Limitations Periods is Con-

trary to Supreme Court Precedent.

No law provides that a statute of limitations, once speci-

fied by Congress, should be set aside in favor of state

limitations. Cases that discuss adopting state statutes of

limitations refer to a “void,” an absence of federal direction.

See, e.g., Bd. of Regents v. Tomanio, 446 U.S. 478, 483 (1986)

(‘Congress did not establish a statute of limitations or a

body of tolling rules applicable to actions brought in federal

court under § 1983 — a void which is commonplace in federal

statutory law.)

The position advocated by Petitioner, that this Court

ignore the statute of limitations contained in 31 U.S.C.

§ 3731(b) and instead apply state statutes of limitations, is

contrary to the trend advocated by this Court, the Congress,

and practitioners. In the last session, this Court examined

the litigation chaos that can ensue when the federal courts

attempt to apply state statutes of limitation to federal

employment and tort claims, as occurred in the 1980's with

42 U.S.C. § 1981:

Prior to the enactment of § 1658, the “settled prac-

tice was to adopt a local time limitation as federal

law if it [was] not inconsistent with federal law or

policy to do so.” Wilson v. Garcia, 471 US 261,

22

266-267(1985). Such “[l]imitation borrowing,” Board

of Regents v. Tomanio, 446 US, at 484, generated a

host of issues that required resolution on a stat-

ute-by-statute basis. For example, it often was

difficult to determine which of the forum State's

statutes of limitations was the most appropriate to

apply to the federal claim. We wrestled with that

issue in Wilson v. Garcia, in which we considered

which state statute provided the most appropriate

limitation principle for claims arising under 42

U.S.C. § 1983 [42 USCS § 1983]. 471 US, at 268,

276-279 (resolving split of authority over whether

the closest state analogue to an action brought

under § 1983 was an action for tortious injury to the

rights of another, an action on an unwritten con-

tract, or an action for a liability on a statute). Before

reaching that question, however, we first had to

determine whether the characterization of a § 1983

claim for statute of limitations purposes was an

issue of state or federal law and whether all such

claims should be characterized in the same way.

Ibid. Two years later, in Goodman v. Lukens Steel

Co., we answered the same three questions for

claims arising under § 1981. 482 US, at 660,

661-662. Both decisions provoked dissent and

further litigation.

Jones, 541 U.S. at 370 (2004). Under Goodman v. Lukens

Steel Co., 482 U.S. 656, 660 (1987), federal courts were to

determine and apply “the most appropriate or analogous

state statute of limitations” for Section 1981 claims. Indeed,

in sharp contrast to the situation that is before the Court in

Qui Tam Relator Wilson’s case, in enacting Title 42, Con-

gress explicitly instructed the courts to look to state law as

to any aspects of law that were not provided by Congress.

Robertson v. Wegmann, 436 U.S. 584, 585 (1978). However,

following the Goodman decision, Congress enacted a catchall

23

four-year statute of limitations for actions arising under

federal statutes enacted after December 1, 1990. 28 U.S.C.

§ 1658. This catchall provision now applies to claims that

“arise under” the 1991 amendments to the Civil Rights Act

of 1866. Jones, supra.

D. Adoption of State Limitations Periods Will Create

Inconsistent Time Periods and Introduce Needless

Uncertainty Into an Area Where Congress Wanted

and Supplied a Definite Time Period Within

Which to Bring Claims.

The False Claims Act statute of limitations set forth in 31

U.S.C. § 3731(b)(2) is six years, but it has a tolling provision

that prevents the statute from running until the Govern-

ment knew or should have known of the facts, up to a

maximum of ten years from the date of the violation. This

applies to both the Government and a qui tam relator.

Moreover, many Government contracts last for many years

and are not finally “closed out” until months or years after

most of the work was completed. This could extend, for

many years, the time period when a case can be brought,

retaliation can occur, and a meritorious retaliation claim can

be asserted.

The statute of limitations in the federal False Claims Act

is part of a legislative scheme that allows claims arising

under government contracts to be brought within six years

of the damage to the Government. Before the 1986 amend-

ments to the False Claims Act, a six-year statute of limita-

tions also applied. A parallel provision is contained in the

provisions of 28 U.S.C. § 2415.

In contrast to the single limitations period in the False

Claims Act, many states have more than one statute

of limitations that applies to violations akin to the employee

24

retaliation protections of the False Claims Act and a few

have state False Claims Acts with employee whistleblower

protections.“ However, unlike the statutes at issue in

Goodman, there is no Congressional directive to apply state

law at all. First, a number of states have both state common

law actions analogous to Section 3730(h), such as wrongful

discharge, breach of duty of good faith, or public policy

exceptions to the employment-at-will doctrine, as well as

statutory whistleblower and related retaliation protections.”

Many are subject to general state statutes of limitations for

torts, typically ranging from one to six years.“ Second, a

See, e.g., Cal. Gov't Code § 12653(b) (retaliation provision

modeled after the federal False Claims Act retaliation provision).

See also Del. Code. Ann. §§ 1201 et seqg.; D.C. Code Ann. 2-308-14;

Fla. Stat Ann. § 68.083(1); Hi. Rev. Stat. Ann. §§ 661-21 et seq.;

740 III. Comp. Stat. Ann. §§ 175/4(b); Mass. Gen. Laws Ann. ch.

12, § 5C(2); Nev. Rev. Stat. § 357.070-080; Tenn. Code Ann. §§ 4-

18-101 et seq.; Va. Code Ann. §§ 8.01-216.5; Ar. Code Ann. § 20-

77-902; Tex. Hum. Res. Code Ann. §§ 36.101 et seq.; Mich Comp.

Laws §§ 15.361; Idaho St. §§ 6-2101 et seg. Ohio Rev. Code Ann.

§§ 4113.52 et seq.

See generally Charles J. Muhl, The Employ-

ment-At-Will Doctrine: Three Major Exceptions,

Monthly Lab. Rev., Jan. 2001, at 3, available at

http://www.bls.gov/opub/mlir/2001/01/artIfull.pdf

(providing a chart, current to October 1, 2000, showing 43 states

recognizing public policy exceptions to the employment-at-will

doctrine; 11 allowing breach of the duty of good faith actions in

the employment context; and 38 having implied contract excep-

tions to the employment-at-will doctrine. Only Florida, Georgia,

and Rhode Island were reported as without such statutes.).

Sabine Pilot Service, In- 687 S.W.2d 733; 1985 Tex. LEXIS

755; 28 Tex. Sup. J. 339 (1985).

Harris v. Miss. Valley State University, 873 So. 2d 970, 985

(Mississippi 2004); Buchanan v. Ameristar Casino Vicksburg,

Inc., 852 So. 2d 25, 26-27 (Miss. 2003); McArn v. Allied Terminix

(continued...)

25

number of state legislatures have enacted specific whistle-

blower employment and employment-related retaliation

laws, frequently a number of statutes in a single state,

protecting a wide variety of public interest whistleblowing

activities.“ These statutes of limitations also vary, with

23 (continued)

Co., 626 So. 2d 603, 606-07 (Miss. 1993).

The Texas Supreme Court noted that”. the Legislature

has been active in crafting whistleblower statutes that often vary

from one another in material respects. . ..” City of Midland v.

O’Bryant, 18 S.W.3d 209, 216, 43 Tex. Sup. J. 884 (2000).

Mississippi has a whistleblowing statute protecting public

employees in blowing the whistle to state government officials,

but requires exhaustion of internal remedies prior to bringing

suit. Miss. Code Ann. § 25-9-173 (2004). No statute of limitations

exists within the statute and the time limits and exhaustion

requirements appear to depend upon those applicable to the

general time limits for Mississippi public employees’ grievances

or suits. See, e.g., East Mississippi State Hospital v. Callens,

rehearing denied, 2004 Miss. LEXIS 361 (2004), 2005 Miss.

LEXIS 119 (February 17, 2005) (Mississippi Supreme Court).

25 California, for example, has a very broad whistleblower

retaliation statutory scheme, that extends protections to, inter

alia, any employee who disclosed information to a government or

law enforcement agency, where the employee has reasonable

cause to believe that the information disclosed a violation of state

or federal statute, or a violation or noncompliance with a state or

federal rule or regulation; refused to participate in an activity

that would result in a violation of state or federal statute, or a

violation or noncompliance with a state or federal rule or

regulation. Cal Lab Code § 1102.5.

Like many state employment codes, the time limits for bringing

an action under the California whistleblower statute are not

contained within the statute itself, but are found elsewhere. See,

e.g., Cal Lab Code § 1102 et seq. (2005); See Cal. Lab. Code §2699

(continued...)

26

some having limits as short as 180 days.“

2 ( continued)

et seq. (2005).

New York provides for retaliation protections for private

employees and also provides that such actions are to be brought

within one year of the alleged retaliatory action, except that

health care employees have two years within which to bring suit.

NY CLS Labor §§ 740.2, 740.4 (2004).

20 Florida’s employee whistleblower statutory scheme imposes

a 2 year statute that may be tolled for up to 4 years. Fla. Stat.

§ 448.103(1)(a)(2) (2004).

Minnesota's whistleblower protection laws have no statute of

limitations and is presumably subject to the catch-all 6-year

period in Minn. Stat. § 541.05 (2004) for statutory causes of

action. On the other hand, it could be argued that in a qui tam

action the appropriate statute is the two-year statute for torts, as

that is the statute employed in 42 U.S.C. 1983 actions in Minne-

sota. Minn. Stat. § 541.07 (2004).

Montana’s Wrongful Discharge from Employment Act has a

one year statute of limitations, but that time limit may be

extended for up to 120 days if the employer has a written appeal

process. MCA § 39-2-911 (2004).

New Jersey's Conscientious Employee Protection Act has a one

year statute of limitations. NJ Stat. § 34:19-5 (2004).

Ohio Rev. Code 4113.51 et seq. (“Ohio Whistleblower Act”)

provides a 180-day statute of limitations for employment

retaliation claims arising thereunder. However, Ohio wrongful

discharge public policy common law claims, known as “Greeley”

tort claims, are subject to a six-year statute of limitations

applicable to miscellaneous actions for which there was no

specific statutory action.

(continued...)

27

Third, there are many state and federal employment

retaliation statutes encompassing activities related to

investigation of, asserting, or testifying in a matter involv-

ing employment discrimination, whistleblowing, public

policy claims, speech on matters of public interest. These

statues vary widely containing individualized coverage

schemes thereby creating the possibility that False Claims

Act qui tam relators who work together, even in the same

state or in different states, could be subject to very different

time periods for bringing an action, depending upon the

peculiarities of state law.”’

26 (continued)

The Rhode Island Whistleblowers Protection Act has a 3 year

statute of limitations. R. I. Gen. Laws § 28-50-4 (2004).

The Texas “Protection for i.«porting Violations of Law”

applicable to public employees has an initial 90 day statute of

limitations, with a tolling of the statute where the violation was

not reasonably known to the employee or while required internal

administrative proceedings are ongoing. Tex. Gov't Code §

554.005 (2004); Tex. Gov't Code § 554.006. Where internal

remedies have not succeeded, there are only 30 days to proceed

to bring a lawsuit. Tex. Gov't Code § 554.006.

27 Montana’s Wrongful Discharge from Employment Act only

applies to discharges and constructive discharges, not to other

retaliatory actions. MCA § 39-2-903 (2004). Montana’s statute

does not apply to probationary employees and, in some situa-

tions, to those hired within 6 months of the termination. MCA §

39-2-904 (2004). Texas's statutory scheme protects from retalia-

tion any employees who have hired a lawyer to represent them

in a claim, although its application to qui tam plaintiffs is

uncertain. Tex. Lab. Code § 451.001 (2004). Texas’s “Protection

for Reporting Violations of Law” also protects certain public

employees from retaliatory actions for certain kinds of whistle-

blowing to governmental authorities. Tex. Gov't Code § 554.002

(2004).

28

The Congressional intent of increasing the security of

employees who report misconduct is ill-served by a scheme

which affords a statutes of limitations as short as 180 days,

such as under Texas and Ohio law. This would undermine

the False Claims Act’s purposes. As stated by the Court in

Occidental Life Ins. Co. v. Equal Employment Opportunity

Commission, 432 U.S. 355, 367, 368-369 (1977):

But the Court has not mechanically applied a state

statute of limitations simply because a limitations

period is absent from the federal statute. State

legislatures do not devise their limitations periods

with national interests in mind, and it is the duty of

the federal courts to assure that the importation of

state law will not frustrate or interfere with the

implementation of national policies. “Although state

law is our primary guide in this area, it is not, to be

sure, our exclusive guide.” Johnson v. Railway

Express Agency, 421 U.S. 454, 465. State limitations

periods will not be borrowed if their application

would be inconsistent with the underlying policies

of the federal statute. Ibid., Auto Workers v. Hoosier

Cardinal Corp., supra, at 701; Board of County

Comms v. United States, 308 U.S. 343, 352.

Accord, Holmberg v. Armbrecht, 327 U.S. 392 (1946) (equity

and laches can still operate to bar claim brought timely

under statute of limitations if unfair to defendant).

Moreover, under existing authority, litigants who are now

relying upon the six-year statute in the False Claims Act

face loss of the retaliation protections retroactively,”

See, e.g., Reynoldsville Casket Co. u. Hyde, 514 U.S. 749

(1995) and the concurring opinions therein, discussing some of

the complex issues that can arise when this Court enunciates a

new rule involving statutes of limitations, selection of appropri-

(continued...)

29

creating years of uncertainty while district and appellate

courts wrestle with most analogous state law issues, only to

have those rulings change due to the rapidly developing and

ever-changing state statutory schemes for public policy and

whistleblower protections and the eventual development of

established Supreme Court precedent.”

Furthermore, it is common practice in False Claims Act

litigation to include 31 U.S.C. § 3730(h) claims in False

Claims Act complaints filed under seal. Indeed, it would be

essentially malpractice to file a 31 U.S.C. § 3730(h) claim

before a claim under 31 U.S.C. § 3730(b) was filed, risking

a ruling that the public disclosure jurisdictional bar re-

quired dismissal of the qui tam portion of the complaint, as

specified in 31 U.S.C. § 3730(e)(4). Petitioner’s reading of

the statute would force the relator to choose between

prematurely filing both actions or completely foregoing her

retaliation claim. Congress did not intend to achieve such a

confounding result. As the legislative history behind the

1986 Amendments reveals, the False Claims Act’s extended

statute of limitations provision is needed to “ensure the

Government's rights are not lost through a wrongdoer’s

successful deception,” because “fraud is, by nature, deceptive

28 (, continued)

ate state statutes, tolling issues under state law, and retroactiv-

ity issues with newly-announced statutes of limitations.

29 “On the same day we decided James B. Beam Distilling Co.

v. Georgia, 501 U.S. 529, 115 L. Ed. 2d 481, 111 S. Ct. 2439

(1991), in which a majority of the Court held, albeit in different

opinions, that a new rule of federal law that is applied to the

parties in the case announcing the rule must be applied as well

to all cases pending on direct review.” Plaut v. Spendthrift Farm,

514 U.S. 211, 214 (1995) (citing Harper v. Virginia Dept. of

Taxation, 509 U.S. 86, 92, 125 L. Ed. 2d 74, 113 S. Ct. 2510

(1993)). :

30

. . S. Rep. No. 99-345, at 15 (1986). Perhaps this is why

Congress expressly extended the six-year statute of limita-

tions provision to all three causes of action provided by 31

U.S.C. § 3730.

CONCLUSION

The Fourth Circuit’s decision applying the six-year

limitations period to claims arising under 31 U.S.C. §

3730(h) should be affirmed. “Few areas of the law stand in

greater need of firmly defined, easily applied rules than does

the subject of periods of limitations.” Wilson v. Garcia, 471

U.S. 261, 266 (quoting Chardon v. Fumero Soto, 462 U.S.

650, 667 (1983)).

Petitioner's argument that state law should supply the

limitations period for federal whistleblower protections is

not based on common sense nor sound legal principles.

“State legislatures do not devise their limitations periods

with national interests in mind,” but “it is the duty of the

federal courts to assure that the importation of state law

will not frustrate or interfere with the implementation of

national policies.” Occidental Life Ins. Co. of California v.

EEOC, 432 U.S. 355, 367 (1977).

Accordingly, NELA and TAFEF respectfully request that

the Court affirm the Fourth Circuit’s ruling that the

applicable limitations period for False Claims Act employ-

ment retaliation claims under 31 U.S.C. 3730(h) is the six-

year period found in the False Claims Act.

31

Respectfully submitted,

Ann Lugbill, Esq.

Counsel of Record

2406 Auburn Ave.

Cincinnati, OH 45219

(513) 784-1280

Marissa M. Tirona, Esq.

National Employment Lawyers

Association

44 Montgomery Street, Suite 2080

San Francisco, CA 94104

(415) 296-7629

James Mooreman, Esq.

Joseph E.B. White, Esq.

Amy Wilken, Esq.

Taxpayers Against Fraud Education

Fund

1220 19th Street, N.W.

Washington, DC 20036

(202) 296-4826

Mark Kleiman, Esq.

Law Office of Mark Allen Kleiman

12400 Wilshire Blvd., Suite 400

Los Angeles, CA 90025

(310) 442-4820

Robin Potter, Esq.

Robin Potter & Associates

208 S. LaSalle Street, Suite 1615

Chicago, IL 60604

(312) 759-2500

Dated: March 29, 2005 ,