# 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

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 ,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0033%3A12. Public record. Not legal advice.