No. 21-____
`
`IN THE
`Supreme Court of the United States
`_________
`WILLIAM BEAUMONT HOSPITAL,
`Petitioner,
`
`v.
`
`UNITED STATES OF AMERICA, EX REL.
`DAVID L. FELTEN, M.D., PH.D.,
`Respondent.
`
`_________
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Sixth Circuit
`_________
`PETITION FOR A WRIT OF CERTIORARI
`_________
`
`JASON D. KILLIPS
`MICHAEL R. TURCO
`STEVEN M. RIBIAT
`BROOKS WILKINS SHARKEY
`& TURCO
`401 S. Old Woodward
`Ave., Suite 400
`Birmingham, MI 48009
`(248) 971-1800
`
`NEAL KUMAR KATYAL
` Counsel of Record
`JESSICA L. ELLSWORTH
`JO-ANN TAMILA SAGAR
`DANIELLE DESAULNIERS
`STEMPEL
`HOGAN LOVELLS US LLP
`555 Thirteenth St., N.W.
`Washington, D.C. 20004
`(202) 637-5600
`neal.katyal@hoganlovells.com
`
`Counsel for Petitioner
`
`
`
`IN THE
`Supreme Court of the United States
`_________
`WILLIAM BEAUMONT HOSPITAL,
`Petitioner,
`
`v.
`
`UNITED STATES OF AMERICA, EX REL.
`DAVID L. FELTEN, M.D., PH.D.,
`Respondent.
`
`_________
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Sixth Circuit
`_________
`PETITION FOR A WRIT OF CERTIORARI
`_________
`
`JASON D. KILLIPS
`MICHAEL R. TURCO
`STEVEN M. RIBIAT
`BROOKS WILKINS SHARKEY
`& TURCO
`401 S. Old Woodward
`Ave., Suite 400
`Birmingham, MI 48009
`(248) 971-1800
`
`NEAL KUMAR KATYAL
` Counsel of Record
`JESSICA L. ELLSWORTH
`JO-ANN TAMILA SAGAR
`DANIELLE DESAULNIERS
`STEMPEL
`HOGAN LOVELLS US LLP
`555 Thirteenth St., N.W.
`Washington, D.C. 20004
`(202) 637-5600
`neal.katyal@hoganlovells.com
`
`Counsel for Petitioner
`
`
`
`QUESTION PRESENTED
`31 U.S.C. § 3730(h)(1) protects an “employee”
`against retaliation for trying to stop a violation of the
`False Claims Act. The question presented is whether
`the term “employee” includes someone who is no
`longer an employee when the alleged retaliation takes
`place.
`
`(i)
`
`
`
`ii
`PARTIES TO THE PROCEEDING
`William Beaumont Hospital, petitioner on review,
`was the defendant-appellee below.
`David L. Felten, M.D., Ph.D., respondent on review,
`was the plaintiff-appellant below.
`The United States of America was a plaintiff below.
`
`
`
`iii
`RULE 29.6 DISCLOSURE STATEMENT
`William Beaumont Hospital is not a subsidiary or
`affiliate of a publicly owned corporation.
`
`
`
`iv
`RELATED PROCEEDINGS
`Counsel is unaware of any related proceedings
`within the meaning of Sup. Ct. R. 14.1(b)(iii).
`
`
`
`v
`TABLE OF CONTENTS
`
`Page
`QUESTION PRESENTED .......................................... i
`PARTIES TO THE PROCEEDING ........................... ii
`RULE 29.6 DISCLOSURE STATEMENT ............... iii
`RELATED PROCEEDINGS ..................................... iv
`TABLE OF AUTHORITIES ..................................... vii
`INTRODUCTION ....................................................... 1
`OPINIONS BELOW ................................................... 4
`JURISDICTION ......................................................... 4
`STATUTORY PROVISION INVOLVED ................... 4
`STATEMENT ............................................................. 5
`A. Statutory Background ............................. 5
`B. Procedural History .................................. 6
`REASONS TO GRANT THE PETITION ................. 10
`I. COURTS ARE SPLIT ON WHETHER THE
`FCA PROHIBITS POST-EMPLOYMENT
`RETALIATION .................................................... 12
`II. THE SIXTH CIRCUIT’S DECISION IS
`WRONG ............................................................. 17
`A. The Text Of The Anti-Retaliation
`Provision And The FCA As A
`Whole Show That Section
`3730(h)(1) Does Not Reach Post-
`Employment Retaliation ....................... 17
`B. Common-Law Agency Principles
`Confirm That “Employee” Does
`Not Include Someone Who Is No
`Longer Employed ................................... 24
`
`
`
`vi
`TABLE OF CONTENTS—Continued
`
`Page
`
`C. The Sixth Circuit’s Approach To
`Statutory Interpretation Conflicts
`With Precedents Of This Court
`And Other Circuits ................................ 25
`D. Rather Than Exhaust All
`Available Interpretive Tools,
`The Sixth Circuit Resorted To
`Purposivism ............................................ 28
`III. THE QUESTION PRESENTED IS
`IMPORTANT AND WARRANTS IMMEDIATE
`REVIEW ............................................................ 30
`CONCLUSION .......................................................... 35
`APPENDIX
`APPENDIX A—Sixth Circuit’s Opinion
`(March 31, 2021) ................................................ 1a
`APPENDIX B—District Court’s Opinion
`and Order Granting Motion to
`Partially Dismiss First Amendment to
`Complaint (July 1, 2019) ................................. 28a
`APPENDIX C—Sixth Circuit’s Order
`Granting Interlocutory Appeal (Jan. 2,
`2020) ................................................................ 38a
`APPENDIX D—District Court’s Opinion
`and Order Granting in Part and
`Denying in Part Motion to Amend and
`to Certify Order For Interlocutory
`Appeal (Aug. 6, 2019) ...................................... 40a
`APPENDIX E—Sixth Circuit’s Order
`Denying Rehearing (June 2, 2021) ................. 47a
`
`
`
`vii
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES:
`Allison Engine Co. v. United States ex rel.
`Sanders,
`553 U.S. 662 (2008) ........................................ 16, 17
`Bechtel v. St. Joseph Med. Ctr., Inc.,
`No. MJG-10-3381, 2012 WL 1476079
`(D. Md. Apr. 26, 2012) .......................................... 16
`BedRoc Ltd., LLC v. United States,
`541 U.S. 176 (2004) .............................................. 17
`BP P.L.C. v. Mayor & City Council of Bal-
`timore,
`141 S. Ct. 1532 (2021) .......................................... 26
`Burlington N. & Santa Fe Ry. Co. v.
`White,
`548 U.S. 53 (2006) ................................................ 20
`Cameron v. EMW Women’s Surgical Ctr.,
`P.S.C.,
`141 S. Ct. 1734 (2021) .......................................... 34
`Cedar Point Nursery v. Hassid,
`141 S. Ct. 2063 (2021) .......................................... 34
`Cir. City Stores, Inc. v. Adams,
`532 U.S. 105 (2001) .............................................. 14
`Cmty. for Creative Non-Violence v. Reid,
`490 U.S. 730 (1989) ........................................ 24, 26
`Cochise Consultancy, Inc. v. United States
`ex rel. Hunt,
`139 S. Ct. 1507 (2019) .......................................... 31
`Conn. Nat’l Bank v. Germain,
`503 U.S. 249 (1992) .............................................. 29
`
`
`
`viii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Cummings v. Premier Rehab Keller,
`P.L.L.C.,
`No. 20-219, 2021 WL 2742781 (U.S. July
`2, 2021) ................................................................. 34
`Dole v. United Steelworkers of Am.,
`494 U.S. 26 (1990) .......................................... 14, 19
`Edwards v. Vanney,
`141 S. Ct. 1547 (2021) .......................................... 34
`Elkharwily v. Mayo Holding Co.,
`84 F. Supp. 3d 917 (D. Minn. 2015), aff'd
`on other grounds, 823 F.3d 462 (8th Cir.
`2016) ............................................................... 15, 16
`Facebook, Inc. v. Duguid,
`141 S. Ct. 1163 (2021) .......................................... 26
`Faragher v. City of Boca Raton,
`524 U.S. 775 (1998) ........................................ 20, 25
`Fed. Republic of Germany v. Philipp,
`141 S. Ct. 703 (2021) ............................................ 34
`Food Mktg. Inst. v. Argus Leader Media,
`139 S. Ct. 2356 (2019) .......................................... 18
`Haka v. Lincoln County,
`533 F. Supp. 2d 895 (W.D. Wis. 2008) ................. 13
`HollyFrontier Cheyenne Refin., LLC v. Re-
`newable Fuels Ass’n,
`141 S. Ct. 2172 (2021) .......................................... 34
`Hughes Aircraft Co. v. United States ex
`rel. Schumer,
`520 U.S. 939 (1997) .............................................. 33
`
`
`
`ix
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Knight v. Standard Chartered Bank,
`No. 19 Civ. 11739 (PAE), 2021 WL
`1226870 (S.D.N.Y. Mar. 31, 2021) ....................... 15
`Lehoux v. Pratt & Whitney,
`No. Civ. 05-210-P-S, 2006 WL 346399
`(D. Me. Feb. 8, 2006), report and recom-
`mendation adopted, No. Civ. 05-210-P-S,
`2006 WL 616057 (D. Me. Mar. 9, 2006) .............. 16
`Master v. LHC Grp. Inc.,
`No. 07-1117, 2013 WL 786357 (W.D. La.
`Mar. 1, 2013) ........................................................ 16
`Morrison–Knudsen Constr. Co. v. Dir., Of-
`fice of Workers’ Comp. Programs, U.S.
`Dep’t of Labor,
`461 U.S. 624 (1983) .............................................. 22
`Nationwide Mut. Ins. Co. v. Darden,
`503 U.S. 318 (1992) .............................................. 24
`Ortino v. Sch. Bd. of Collier Cnty.,
`No. 2:14-cv-693-FtM-29CM, 2015 WL
`1579460 (M.D. Fla. Apr. 9, 2015) ........................ 13
`Poffinbarger v. Priority Health,
`No. 1:11-cv-993, 2011 WL 6180464 (W.D.
`Mich. Dec. 13, 2011) ............................................. 16
`Potts v. Center for Excellence in Higher
`Education, Inc.,
`908 F.3d 610 (10th Cir. 2018) ...................... passim
`Reed v. A.W. Lawrence & Co.,
`95 F.3d 1170 (2d Cir. 1996) ................................. 25
`Robinson v. Shell Oil Co.,
`519 U.S. 337 (1997) ...................................... passim
`
`
`
`x
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Ross v. Blake,
`136 S. Ct. 1850 (2016) .......................................... 17
`Schmidt v. Ottawa Med. Ctr., P.C.,
`322 F.3d 461 (7th Cir. 2003) .......................... 24, 25
`Scrimgeour v. Internal Revenue,
`149 F.3d 318 (4th Cir. 1998) ................................ 27
`Shinn v. Kayer,
`141 S. Ct. 517 (2020) ............................................ 34
`Sullivan v. Stroop,
`496 U.S. 478 (1990) .............................................. 21
`Tanzin v. Tanvir,
`141 S. Ct. 486 (2020) ............................................ 34
`Taul ex rel. United States v. Nagel Enters.,
`Inc.,
`No. 2:14-CV-0061-VEH, 2017 WL
`4956422 (N.D. Ala. Nov. 1, 2017) ........................ 15
`United States ex rel. Complin v. North
`Carolina Baptist Hosp.,
`No. 1:09CV420, 2019 WL 430925
`(M.D.N.C. Feb. 4, 2019), aff’d on other
`grounds, 818 F. App’x 179 (4th Cir.
`2020) ..................................................................... 15
`United States ex rel. Head v. Kane Co.,
`798 F. Supp. 2d 186 (D.D.C. 2011) ...................... 16
`United States ex rel. Reed v. KeyPoint
`Gov’t Sols.,
`923 F.3d 729 (10th Cir. 2019) .......................... 6, 32
`United States ex rel. Wright v. Cleo Wal-
`lace Ctrs.,
`132 F. Supp. 2d 913 (D. Colo. 2000) .................... 16
`
`
`
`xi
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`United States v. Cooley,
`141 S. Ct. 1638 (2021) .......................................... 34
`United States v. Kubrick,
`444 U.S. 111 (1979) .............................................. 32
`United States v. Youssef,
`547 F.3d 1090 (9th Cir. 2008) .............................. 27
`Universal Health Servs., Inc. v. United
`States ex rel. Escobar,
`136 S. Ct. 1989 (2016) .................................... 24, 26
`Vessell v. DPS Assocs. of Charleston, Inc.,
`148 F.3d 407 (4th Cir. 1998) ................................ 24
`Villarreal v. R.J. Reynolds Tobacco Co.,
`839 F.3d 958 (11th Cir. 2016) (en banc) .............. 27
`Walters v. Metro. Educ. Enterprises, Inc.,
`519 U.S. 202 (1997) .............................................. 18
`Weyer v. Twentieth Century Fox Film
`Corp.,
`198 F.3d 1104 (9th Cir. 2000) .............................. 27
`Yellen v. Confederated Tribes of Chehalis
`Reservation,
`141 S. Ct. 2434 (2021) .......................................... 34
`STATUTES:
`18 U.S.C. § 1031(h) ................................................. 29
`28 U.S.C. § 1447(d) ................................................. 26
`28 U.S.C. § 1254(1) ................................................... 4
`29 U.S.C. § 1002(7) ................................................. 29
`31 U.S.C. § 3729................................................ 16, 33
`31 U.S.C. § 3729(a)(1)(A) .......................................... 5
`
`
`
`xii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`31 U.S.C. § 3729(a)(1)(F) ........................................ 21
`31 U.S.C. § 3729(b)(2)(A)(i) ................................ 5, 21
`31 U.S.C. § 3730(b) ................................................... 5
`31 U.S.C. § 3730(c)(3) ............................................... 5
`31 U.S.C. § 3730(d) ................................................... 5
`31 U.S.C. § 3730(e)(2) ............................................. 21
`31 U.S.C. § 3730(h) ................................. 7, 13, 21, 23
`31 U.S.C. § 3730(h)(1) ..................................... passim
`31 U.S.C. § 3730(h)(2) ............................... 6, 9, 22, 23
`31 U.S.C. § 3730(h)(3) ............................................. 31
`31 U.S.C. § 3732(a) ........................................... 16, 33
`31 U.S.C. § 3733(i)(2)(B) ......................................... 22
`31 U.S.C. § 3733(i)(2)(C) ......................................... 22
`31 U.S.C. § 3733(l)(1) .............................................. 21
`31 U.S.C. § 3733(l)(3) .............................................. 22
`42 U.S.C. § 2000e(f) ............................................ 8, 26
`49 U.S.C. § 60129(a)(1) ........................................... 29
`Civil Rights Act of 1964, Pub. L. No. 88-
`352, 78 Stat. 241:
`§ 701(f), 78 Stat. at 255 (codified at 42
`U.S.C. § 2000e(f)) ............................................ 28
`§ 704(a), 78 Stat. at 257 (codified at 42
`U.S.C. § 2000e-3(a)) ........................................ 28
`Dodd-Frank Wall Street Reform and Con-
`sumer Protection Act, Pub. L. No. 111-
`203, § 1079A(c)(1), 124 Stat. 1376, 2079
`
`
`
`xiii
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`(2010) (codified at 31 U.S.C.
`§ 3730(h)(1)) ........................................................... 6
`False Claims Act Amendments of 1986,
`Pub. L. No. 99-562, § 4, 100 Stat. 3153,
`3157-58 ................................................................... 5
`Fraud Enforcement and Recovery Act of
`2009, Pub. L. No. 111-21, § 4(d), 123
`Stat. 1617, 1624-25 .......................................... 5, 29
`LEGISLATIVE MATERIAL:
`False Claims Amendments Act of 2021, S.
`2428, 117th Cong. § 4 (introduced July
`22, 2021) ............................................................... 29
`OTHER AUTHORITIES:
` Agent, Webster’s II New College Diction-
`ary (3d ed. 2005) ................................................... 18
`John T. Bentivoglio et al., False Claims
`Act Investigations: Time for a New Ap-
`proach?, 3 Fin. Fraud L. Rep. 801 (2011) ...... 32, 33
`Todd J. Canni, Who’s Making False
`Claims, the Qui Tam Plaintiff or the
`Government Contractor? A Proposal to
`Amend the FCA to Require That All Qui
`Tam Plaintiffs Possess Direct
`Knowledge, 37 Pub. Cont. L.J. 1 (2007) .............. 30
`Civil Div., U.S. Dep’t of Justice, Fraud
`Statistics – Overview, October 1, 1986 –
`September 30, 2020,
`https://bit.ly/2VLY9ph (last visited Sept.
`20, 2021) ......................................................... 30, 32
`
`
`
`xiv
`TABLE OF AUTHORITIES—Continued
`Page(s)
`
`Contractor, Black’s Law Dictionary (9th
`ed. 2009) ............................................................... 18
`Contractor, Webster’s II New College Dic-
`tionary (3d ed. 2005) ............................................ 18
`Employee, Am. Heritage Dictionary (2d
`College ed. 1985) .................................................. 17
`Employee, Black’s Law Dictionary (5th
`ed. 1979) ............................................................... 17
`Antonin Scalia & Bryan A. Garner, Read-
`ing Law: The Interpretation of Legal
`Texts (2012) .......................................................... 19
`Restatement (Second) of Agency § 2(2)
`(1958) .................................................................... 25
`Restatement (Second) of Agency § 2 cmt.
`d (1958) ................................................................. 25
`Eli Rosenberg, Comment, Silence Is
`Golden: Excluding Internal Complaints
`from ERISA Section 510, 59 U. Kan. L.
`Rev. 1155 (2011) ................................................... 32
`
`
`
`IN THE
`Supreme Court of the United States
`_________
`No. 21-
`_________
`
`WILLIAM BEAUMONT HOSPITAL,
`Petitioner,
`
`v.
`
`UNITED STATES OF AMERICA, EX REL.
`DAVID L. FELTEN, M.D., PH.D.,
`Respondent.
`
`_________
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Sixth Circuit
`_________
`PETITION FOR A WRIT OF CERTIORARI
`_________
`William Beaumont Hospital (Beaumont) respect-
`fully petitions for a writ of certiorari to review the
`judgment of the Sixth Circuit in this case.
`INTRODUCTION
`This case comes down to a simple question. Is some-
`one who used to work for an employer still an “em-
`ployee” after his employment has concluded? The
`question essentially answers itself. No, someone is
`not an employee once he no longer works for an em-
`ployer. Yet the Sixth Circuit reached the opposite con-
`clusion, over a strong dissent, holding that the anti-
`retaliation provision of the False Claims Act (FCA)—
`which protects “employee[s]”—extends to a person
`
`(1)
`
`
`
`2
`who is no longer employed by the defendant when the
`allegedly retaliatory act occurs.
`As the panel majority acknowledged, that decision
`“creates a circuit split.” Pet. App. 14a. The Tenth Cir-
`cuit and the substantial majority of district courts
`hold that because the FCA’s anti-retaliation provision
`uses the term “employee,” 31 U.S.C. § 3730(h)(1), its
`protections do not sweep in individuals who allege
`they were retaliated against after their employment
`ended. By contrast, a minority of courts, including the
`Sixth Circuit, hold that this provision reaches alleg-
`edly retaliatory acts that occur post-employment.
`The Sixth Circuit reached its contrary decision by
`disregarding the text of the statute, jettisoning it in
`an attempt to find enough ambiguity to justify the
`court’s purposivist result. But because the FCA does
`not define “employee,” the court should have looked to
`its plain meaning—both in dictionaries and at com-
`mon law. That’s not where the Sixth Circuit began (or
`ended, for it never analyzed a single dictionary or
`agency-law treatise). Instead, it relied on Robinson v.
`Shell Oil Co., 519 U.S. 337 (1997), a case interpreting
`Congress’s definition of “employee” in Title VII.
`The majority also declined to apply basic canons of
`construction that show the FCA’s provision is limited
`to post-employment retaliation claims. And the ma-
`jority dismissed as irrelevant the fact that none of the
`FCA’s other references to “employee” could logically
`mean a person who is no longer employed. Based on
`this atextual approach, the majority concluded that
`“employee” was temporally ambiguous and that the
`purpose of the FCA justified expanding the scope of
`the statute’s anti-retaliation provision far beyond its
`plain meaning. It did so despite acknowledging that
`
`
`
`3
`this rule will lead to absurd results: under the Sixth
`Circuit’s rule, someone who files a qui tam complaint
`after being fired, and then claims his former employer
`retaliated against him for filing that complaint can
`nevertheless seek reinstatement to his previous posi-
`tion—even though his termination was unrelated to
`any protected activity.
`This Court’s review is urgently needed. There is a
`one-to-one circuit split on this question. Although
`that type of conflict would often warrant more perco-
`lation, here it is not necessary or appropriate. The ar-
`guments have been developed in three separate court
`of appeals opinions and many district court decisions.
`And allowing the decision below to stand will have
`devastating consequences. By permitting relators to
`bring FCA retaliation claims decades after their em-
`ployment has ended, the decision below will burden
`countless employers, large and small alike. It is par-
`ticularly troubling for any employer with a connection
`to the Sixth Circuit, including the fifty-three Fortune
`500 companies headquartered there, and for employ-
`ers in the health care industry—the leading target of
`qui tam claims.
`In the last two Terms alone, the Court has granted
`certiorari in at least six cases involving a one-to-one
`split and four cases involving an important question
`of statutory interpretation where there was no split at
`all. Infra, p. 34. This case is an ideal vehicle to resolve
`this important question of statutory interpretation be-
`fore the flood of meritless retaliation claims begins.
`Because waiting for more decisions will serve little
`value and cause great harm, this Court should inter-
`vene now, as it has done in countless other cases
`
`
`
`4
`involving one-to-one splits. Certiorari should be
`granted.
`
`OPINIONS BELOW
`The Sixth Circuit’s opinion is reported at 993 F.3d
`428. Pet. App. 1a-27a. The Sixth Circuit’s decision
`denying rehearing en banc is not reported. Id. at 47a-
`48a. The District Court’s order granting Beaumont’s
`motion to dismiss in relevant part is available at 2019
`WL 2743699. Pet. App. 28a-37a. The District Court’s
`order certifying this issue for interlocutory appeal is
`available at 2019 WL 3561917. Pet. App. 40a-46a.
`The Sixth Circuit’s order granting the interlocutory
`appeal is not reported. Id. at 38a-39a.
`JURISDICTION
`The Sixth Circuit entered judgment on March 31,
`2021. Pet. App. 1a. It denied rehearing en banc on
`June 2, 2021. Id. at 47a. This Court’s jurisdiction is
`invoked under 28 U.S.C. § 1254(1).
`STATUTORY PROVISION INVOLVED
`The anti-retaliation provision of the False Claims
`Act, 31 U.S.C. § 3730(h)(1), provides:
`Any employee, contractor, or agent shall be
`entitled to all relief necessary to make that
`employee, contractor, or agent whole, if that
`employee, contractor, or agent is discharged,
`demoted, suspended, threatened, harassed,
`or in any other manner discriminated
`against in the terms and conditions of em-
`ployment because of lawful acts done by the
`employee, contractor, agent or associated
`others in furtherance of an action under this
`section or other efforts to stop 1 or more vio-
`lations of this subchapter.
`
`
`
`5
`STATEMENT
`A. Statutory Background
`The FCA imposes civil liability on any person who
`“knowingly” defrauds the Government by, among
`other things, “present[ing] * * * a false or fraudulent
`claim for payment or approval” “to an officer, em-
`ployee, or agent of the United States.” 31 U.S.C.
`§ 3729(a)(1)(A), (b)(2)(A)(i). To encourage enforce-
`ment of the Act, Congress authorized private citizens
`(known as relators) to file qui tam actions on behalf of
`the government. Id. § 3730(b). A relator may collect
`a sizable portion of any funds recovered through that
`lawsuit. See id. § 3730(d). Although the FCA allows
`the government to investigate and decide whether to
`intervene when a relator sues, the relator can still
`continue with the suit if the government does not in-
`tervene. See id. § 3730(b), (c)(3).
`Congress added an anti-retaliation provision to the
`FCA in 1986. The original version applied only to
`“[a]ny 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 because of lawful
`acts done by the employee on behalf of the employee
`or others in furtherance of an [FCA] action.” False
`Claims Act Amendments of 1986, Pub. L. No. 99-562,
`§ 4, 100 Stat. 3153, 3157-58 (emphasis added).
`Congress has twice amended this provision. First,
`in 2009, Congress extended its protections to “[a]ny
`employee, contractor, or agent.” Fraud Enforcement
`and Recovery Act of 2009, Pub. L. No. 111-21, § 4(d),
`123 Stat. 1617, 1624-25 (emphasis added). Second, in
`2010, Congress clarified that the FCA protects against
`retaliation for either a qui tam action or “other efforts
`
`
`
`6
`to stop 1 or more violations of” the Act. Dodd-Frank
`Wall Street Reform and Consumer Protection Act,
`Pub. L. No. 111-203, § 1079A(c)(1), 124 Stat. 1376,
`2079 (2010) (codified at 31 U.S.C. § 3730(h)(1)). In
`other words, the anti-retaliation provision extends to
`whistleblowers whose actions could support an FCA
`claim, even where no claim is ever filed. See, e.g.,
`United States ex rel. Reed v. KeyPoint Gov’t Sols., 923
`F.3d 729, 765 & n.18 (10th Cir. 2019) (collecting
`cases).
`The relief for a successful retaliation claim “shall in-
`clude reinstatement with the same seniority status
`that employee, contractor, or agent would have had
`but for the discrimination, 2 times the amount of back
`pay, interest on the back pay, and compensation for
`any special damages sustained as a result of the dis-
`crimination.” 31 U.S.C. § 3730(h)(2).
`B. Procedural History
`1. In 2010, while Dr. David Felten was employed by
`Beaumont, he filed a qui tam complaint against the
`hospital. Pet. App. 3a. At the time, he alleged that
`Beaumont had violated the FCA and had retaliated
`against him while he was employed for reporting
`those violations. Id. Except for the alleged retaliation
`claim and request for associated fees and costs, these
`claims have been resolved. See id.
`In 2018, Felten filed an amended complaint alleging
`additional acts of retaliation, some of which occurred
`while he was employed and some of which post-dated
`his employment. Id. at 3a, 29a-30a. Specifically, he
`alleged that his termination resulted from false repre-
`sentations Beaumont made to him during his employ-
`ment about an internal report on his position and con-
`cerning mandatory retirement. Id. at 3a. Felten also
`
`
`
`7
`alleged that, after his employment ended, he had been
`unable to find a comparable position in academic med-
`icine. Id. at 3a-4a. “The only plausible explanation,”
`Felten claimed, was that “Beaumont intentionally
`maligned Dr. Felten to” potential future employers “in
`retaliation for his reports of [Beaumont’s] unlawful
`conduct.” Am. Compl., D. Ct. Dkt. 97 at 16, ¶ 71; see
`id. at 18, ¶ 82. This petition involves only Felten’s
`claim of post-employment retaliation in Beaumont’s
`interactions with potential employers for Felten.
`2. Beaumont moved to dismiss Felten’s post-employ-
`ment retaliation claim. Beaumont explained that the
`FCA’s anti-retaliation provision, 31 U.S.C. § 3730(h),
`applies only to “employee[s].” Because Felten was no
`longer an employee when this alleged retaliation oc-
`curred, his claim was not cognizable. See Pet. App.
`35a.
`The District Court agreed and dismissed Felten’s
`post-employment retaliation claim. As the District
`Court explained, “[t]he overwhelming majority of
`courts that have considered the issue have found that
`§ 3730(h)(1) does not apply to post-employment retal-
`iation.” Id. at 36a (internal quotation marks omitted).
`But because this was a “controlling question of law”
`and an immediate appeal would conserve resources,
`the District Court granted Felten’s motion to certify
`this issue for interlocutory appeal. Id. at 44a.
`3. A divided Sixth Circuit panel disagreed and held
`that “the FCA’s anti-retaliation provision protects”
`against “post-termination retaliation.” Id. at 3a; see
`id. at 38a-39a (Sixth Circuit order granting petition
`for interlocutory appeal).
`The panel majority recognized that statutory inter-
`pretation “usually” starts with the “plain meaning” of
`
`
`
`8
`terms that are not specifically defined in a statute.
`Pet. App. 6a. Yet rather than start with the plain
`meaning of “employee,” the panel looked to how this
`Court had interpreted the definition of “employee”
`that Congress had enacted for another statute, Title
`VII. Title VII defines “employee” as “an individual
`employed by an employer.” 42 U.S.C. § 2000e(f). In
`Robinson, this Court held Title VII’s definition tempo-
`rally ambiguous based on its use of “employed”—a
`term missing from both the FCA and the common def-
`inition of “employee.” 519 U.S. at 342. Without ana-
`lyzing the text of the FCA, canvassing dictionary def-
`initions, or discussing any common-law principles of
`agency, the majority concluded that Title VII’s tem-
`poral ambiguity extended to the FCA too. Pet. App.
`9a-10a.
`The majority also found that Section 3730(h)(1) did
`not itself temporally limit the duration of the rights
`given to an “employee.” That provision describes six
`retaliatory acts: discharge, demotion, suspension,
`threats, harassment, and discrimination “in the terms
`and conditions of employment.”
` 31 U.S.C.
`§ 3730(h)(1). The majority recognized that only some-
`one currently employed could be discharged, demoted,
`or suspended. Pet. App. 7a. But it theorized that an
`employer could “discriminate[ ]” against someone “in
`the terms and conditions of employment” after their
`employment had ended. Id. at 7a-9a. It therefore
`found no reason to limit the remaining two acts—
`threats and harassment—to a current employment re-
`lationship. Id.
`The majority did not analyze the multiple other
`times that the FCA uses the word “employee,” nor did
`it dispute that reading “employee” in those provisions
`
`
`
`9
`to mean someone who is no longer employed would
`lead to absurd results. Id. at 10a n.2. Instead, it
`looked to the anti-retaliation provision’s remedial lan-
`guage, which states that the relief available for a suc-
`cessful retaliation claim “shall include reinstate-
`ment,” “back pay,” and “compensation for any special
`damages sustained as a result of the discrimination.”
`31 U.S.C. § 3730(h)(2). The majority concluded that a
`person who was terminated and afterward retaliated
`against could “get the job back as a remedy,” Pet. App.
`12a, even though at the time of the retaliation in this
`scenario, the person had no job with the defendant to
`“get back.” The majority argued that because “dis-
`crimination” could include post-employment conduct,
`special damages were also available for post-employ-
`ment retaliation. Id. at 11a. And it concluded that
`the phrase “shall include” means this provision neces-
`sarily makes available some other, unspecified reme-
`dies for post-employment retaliation. Id. at 11a-12a.
`Having found ambiguity, the majority turned to pur-
`posivism. See id. at 13a-14a. The majority deter-
`mined that “the purpose of the [FCA’s] anti-retalia-
`tion provision is to encourage the reporting of fraud”
`by protecting relators. Id. Because the majority be-
`lieved that leaving post-employment retaliation out-
`side the statute’s scope would not further that pur-
`pose, it held that a person who is no longer employed
`at the time of the alleged retaliation still falls within
`the FCA’s anti-retaliation provision. Id. at 14a. In so
`holding, the majority “acknowledge[d] that [its] deci-
`sion creates a circuit split.” Id.
`Judge Griffin dissented. He explained that an “em-
`ployee” is someone who “work[s] in the service of
`his * * * employer under a contract of hire or for pay.”
`
`
`
`10
`Id. at 17a (Griffin, J., dissenting). That definition
`does not encompass a person who is no longer em-
`ployed. Id. at 17a-18a. “[T]he specific context in
`which ‘employee’ is used,” “other portions of the FCA,”
`and “persuasive case law” all point to the same result.
`Id. at 18a-22a. Indeed, “[n]early every federal court
`that has considered whether the FCA’s anti-retalia-
`tion provision is temporally limited to current employ-
`ees * * * has reached the same conclusion.” Id. at 21a-
`22a & n.2 (collecting cases).
`The dissenter also chastised the majority’s use of
`“unauthorized, unnecessary purposivism.” Id. at 26a.
`“After the majority finds ambiguity, it determines
`which result the FCA should achieve.” Id. But “[t]hat
`task should be left to Congress.” Id. Because “Con-
`gress unambiguously” instructed “that the anti-retal-
`iation provision applies only to ‘employees,’ ” the dis-
`senter would have “affirm[ed] the district court” and
`held that Section 3730(h)(1) does not reach post-em-
`ployment conduct. Id.
`4. The Sixth Circuit denied Beaumont’s petition for
`rehearing en banc. Id. at 47a-48a. This petition fol-
`lows.
`REASONS TO GRANT THE PETITION
`“This case asks if the word ‘employee,’ ” in the FCA
`“refers to someone who is not an employee. To ask the
`question is to answer it.” Pet. App. 16a (Griffin, J.,
`dissenting). Yet in the decision below, the Sixth Cir-
`cuit held that a “former employee”—that is, a person
`who is no longer employed when they experience al-
`leged retaliation—can sue under the FCA’s anti-
`
`
`
`11
`retaliation provision.1 That decision split from nearly
`every federal court to consider this question, including
`a unanimous Tenth Circuit panel.
`The Sixth Circuit’s rule conflicts with the text of the
`FCA. Rather than interpreting the text of that stat-
`ute, the majority relied on the definition of “employee”
`in another statute, disregarded obvious temporal
`clues, and adopted an interpretation that even it ad-
`mitted would lead to absurd results. After finding am-
`biguity based on its atextual approach, the majority
`turned to “unauthorized, unnecessary purposivism”
`and purported to “divine[ ] congressional intent from
`its own perception of which reading would best serve
`the FCA’s ‘broader context and purpose.’ ” Id. at 16a,
`26a.
`This Court’s review is urgently warranted. This
`question recurs often, as retaliation claims are part
`and parcel
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
