Saunders v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

THERESA WESTON SAUNDERS,

Plaintiff,
Civil Action No. 02-01803 (CKK)
v.

DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION
(June 6, 2011)

Plaintiff Theresa Weston Saunders (“Saunders”) commenced this action against the

District of Columbia (the “District”), and two District officials, alleging among other things that

she was retaliated against in violation of the Federal False Claims Act (the “F-FCA”), 31 U.S.C.

§§ 3729 et seq., for disclosures she purportedly made concerning the use and management of

federal funding by the District’s Office of Chief Technology Officer.1 Presently before the Court

is the District’s [77] Renewed Motion to Dismiss Plaintiff’s Federal False Claims Act Retaliation

Claim as Time-Barred (“Motion to Dismiss”). The focus of the District’s motion is narrow—the

District argues only that Saunders failed to bring suit within the limitations period governing F-

FCA retaliation claims. The extent of the parties’ dispute is similarly narrow and presents a pure

question of law: the District argues that a one-year limitations period applies, while Saunders

maintains that a three-year limitations period applies. The parties are in agreement that

Saunders’ claim is untimely if the District is correct and timely if Saunders is correct.

1
While Saunders is pursuing other claims in this action, this memorandum opinion only
addresses her F-FCA retaliation claim.
Accordingly, the sole issue before the Court is the appropriate limitations period. Upon a

searching review of the parties’ submissions, the relevant authorities, and the record as a whole,

the Court agrees with Saunders that her F-FCA retaliation claim is subject to a three-year

limitations period. Based on that conclusion, the Court will deny the District’s motion.

I. BACKGROUND

Because this motion turns on a pure question of law, the Court will limit itself to

providing some context for its decision. The Court assumes familiarity with its prior opinions in

this action, which set forth in detail the background of this case.

A. Factual Background

Saunders was employed by the District in various capacities from 1982 through 2000.

See Am. Compl., ECF No. [18], ¶¶ 5, 10, 33. During her tenure in the Office of Chief

Technology Officer, which occurred at the tail-end of her employment, Saunders allegedly

discovered and reported numerous deficiencies in the District’s use and management of federal

funding. Id. ¶¶ 14, 32, 47. Her actions allegedly led to a series of reprisals, culminating in her

termination in the summer of 2000. Id. ¶¶ 14-32.

B. Procedural Background

Saunders commenced this action on September 11, 2002. See Compl., ECF No. [1]. The

District moved for dismissal early on. See Def.’s Mot. to Dismiss, ECF No. [9]. When Saunders

in turn moved to amend her Complaint, the Court granted Saunders leave to file an amended

complaint and denied the District’s motion to dismiss without prejudice. See Order (Mar. 23,

2004), ECF No. [30]. The District later filed a renewed motion to dismiss. See Def.’s Mot. to

Dismiss, ECF No. [31]. The Court resolved the majority of the District’s motion, but held the

2
motion in abeyance insofar as it sought dismissal of Saunders’ F-FCA retaliation claim, directing

the parties to submit further briefing on the sufficiency of Saunders’ factual allegations and the

applicable statute of limitations. See Saunders v. District of Columbia, 2005 WL 3213984, at *7-

8 (D.D.C. Oct. 25, 2005). Upon consideration of the parties’ supplemental briefing, the Court

concluded that Saunders’ factual allegations were sufficient to state a claim for retaliation under

the F-FCA. See Saunders v. District of Columbia, 711 F. Supp. 2d 42, 56-57 (D.D.C. 2010). At

the same time, the Court again found that the parties’ briefing on the statute of limitations

question was “woefully inadequate,” preventing the Court from resolving the question on the

record created by the parties. Id. at 53. The Court proceeded to outline the key questions that

needed to be addressed, and again directed the parties to submit further briefing. See id. at 53-56.

The matter now comes before the Court upon the filing of the parties’ second round of

supplemental briefing on the statute of limitations question. See Def.’s Mem. of P. & A. in Supp.

of Renewed Mot. to Dismiss, ECF No. [77-1]; Pl.’s Opp’n to Def. District of Columbia’s

Renewed Mot. to Dismiss, ECF No. [79]; Def.’s Reply to Pl.’s Opp’n to Def.’s Renewed Mot. to

Dismiss, ECF No. [83]. The matter is fully briefed and ripe for a decision.

II. LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. (8)(a), “in

order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it

rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355

U.S. 41, 47 (1957)). Rule 12(b)(6) provides a vehicle for parties to challenge the sufficiency of a

complaint on the ground that it “fail[s] to state a claim upon which relief can be granted.” Fed.

3
R. Civ. P. 12(b)(6). “If the allegations . . . show that relief is barred by the applicable statute of

limitations, the complaint is subject to dismissal for failure to state a claim.” Jones v. Bock, 549

U.S. 199, 215 (2007).

III. DISCUSSION

Broadly speaking, the F-FCA confers a private cause of action upon an individual who

has been retaliated against by her employer for engaging in activity that could reasonably lead to

a viable false claims action. See 31 U.S.C. § 3730(h). Until relatively recently, Congress had

never specified the limitations period governing F-FCA retaliation claims, requiring courts to

“borrow” the statute of limitations applicable to the closest analog under state law. This motion

turns on a pure question of law—what is the limitations period that should apply to Saunders’ F-

FCA retaliation claim? The District argues that a one-year limitations period should apply;

Saunders counters that a three-year limitations period should apply. Resolution of this

disagreement is dispositive of this motion; the parties are in agreement that Saunders’ claim is

untimely if the District is correct, and timely if Saunders is correct.

The Court agrees with Saunders that her claim is subject to a three-year statute of

limitations. In explaining why, the Court will divide its discussion into two parts. The Court

will first ask whether there is even a need to “borrow” a statute of limitations from state law now

that Congress has specified that F-FCA retaliation claims are subject to a three-year statute of

limitations. Thereafter, the Court will explain why resolving that particular question is ultimately

unnecessary. Even if the Court were to “borrow” a statute of limitations from District of

Columbia law, it would borrow a three-year statute of limitations.

4
 A. Because Congress Has Now Specified that a Three-Year Limitations Period
Governs F-FCA Retaliation Claims, “Borrowing” a State Statute of Limitations
Is Arguably Inappropriate

In ascertaining the statute of limitations applicable to a federal cause of action, the first

question that must be asked is whether Congress has supplied a limitations period. Graham

Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 414 (2005).

Unsurprisingly, only when Congress has failed to supply a limitations period for a federal cause

of action may one be “borrowed” from another source. Reed v. United Transp. Union, 488 U.S.

319, 324 (1989). Therefore, the threshold question for the Court is whether Congress has

specified the statute of limitations governing F-FCA retaliation claims.

In 2005, the Supreme Court answered this very question, concluding that Congress had

not supplied a statute of limitations for F-FCA retaliation claims, and directing that courts should

instead “borrow” the statute of limitations governing the closest analog under state law. Graham

Cnty., 545 U.S. at 417-18. Since then, however, Congress has enacted the Dodd-Frank Wall

Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act” or the “Act”), Pub.

L. No. 111-203, 124 Stat. 1376, which amended the F-FCA to supply an express statute of

limitations for F-FCA retaliation claims.2 As a result, the F-FCA now provides that “[a] civil

action under [the F-FCA’s anti-retaliation provisions] may not be brought more than 3 years after

the date when the retaliation occurred.” 31 U.S.C. § 3730(h)(3).

2
The amendment was a small part of the Dodd-Frank Act, which spans 2,319 pages and
has been described as “sprawling.” Pezza v. Investors Capital Corp., __ F. Supp. 2d __, 2011
WL 767982, at *1 (D. Mass. Mar. 1, 2011). As one court has observed, the legislative history of
the Act “focus[es] on the bounty provisions . . . and contain[s] very few substantive discussions
of its anti-retaliation provisions.” Egan v. TradingScreen, Inc., 2011 WL 1672066, at *4
(S.D.N.Y. May 4, 2011).

5
 The effect of the amendment upon the timeliness of Saunders’ F-FCA retaliation claim

presents a difficult question. Analytically, the issue may be approached in at least two ways.

One way is to ask whether the statute of limitations should be applied retroactively in this case,

even though the amendment was not in effect either at the time Saunders’ cause of action accrued

or at the time she commenced this action. However, because statutes of limitations “lie on the

cusp of the procedural/substantive distinction,” a court must keep in mind that their retroactive

application may upset legitimate reliance interests. Vernon v. Cassadaga Valley Cent. Sch. Dist.,

49 F.3d 886, 892 (2d Cir. 1995) (Cabranes, J., concurring). At the same time, the concerns that

accompany the retroactive application of a statute of limitations may be less pronounced where,

as here, “there had been no authoritative specification of which statute of limitations [previously]

applied.” Goodman v. Lukens Steel Co., 482 U.S. 656, 662-63 (1987). In this case, the question

of which statute of limitations applied to F-FCA retaliation claims prior to the enactment of the

Dodd-Frank Act is one of first impression in this Circuit, see infra Part III.B, meaning that

neither Saunders nor the District can lay claim to any concrete reliance interests. Further

compounding the uncertainty, courts in other circuits have reached wildly divergent conclusions

about which statute of limitations should apply to F-FCA retaliation claims. See infra Part III.B.

Under these unique circumstances, there is at least some basis for suggesting that the three-year

statute of limitations supplied by Congress in the Dodd-Frank Act should be applied retroactively

to evaluate the timeliness of Saunders’ pre-amendment F-FCA retaliation claim.3

3
To date, only two courts have addressed the retroactivity question in this context. One
declined to resolve the issue on the merits. See Lindsay v. Technical Coll. Sys. of Georgia, 2011
WL 1157456, at *6 (N.D. Ga. Mar. 29, 2011). A second held that the statute of limitations
prescribed by the Dodd-Frank Act should not be applied retroactively. See Riddle v. DynCorp
Int’l Inc., 733 F. Supp. 2d 743, 747-48 (N.D. Tex. 2010). That court’s holding rested largely on

6
 A second way of approaching the issue is to ask whether, separate and apart from the pure

retroactivity question, the “borrowing” doctrine even applies where Congress later steps in to fill

the interstices in a statutory scheme but remains silent as to how its gap-filling measures apply to

past conduct. In this regard, the Court is mindful of the Supreme Court’s admonition that courts,

when tasked with closing interstices in federal law, should “borrow no more than necessary,”

including when they are asked to determine the statute of limitations applicable to a federal cause

of action. West v. Conrail, 481 U.S. 35, 39 (1987); see also Brown v. United States, 742 F.2d

1498, 1504 (D.C. Cir. 1984) (en banc) (“Because the practice of borrowing presupposes a need to

fill a deficiency in the federal scheme, a court must first look to see if there is indeed such a

deficiency.”), cert. denied, 471 U.S. 1073 (1985). The rationale for this limiting principle is

simple. The “borrowing” doctrine is designed to best effectuate the federal policies embodied in

a federal cause of action when Congress has not itself supplied the complete legal framework

necessary for the effectuation of those policies; but when Congress has supplied the framework,

“borrowing” is unnecessary. Through the Dodd-Frank Act, Congress has brought its judgment to

bear on how best to effectuate the policies underlying the F-FCA’s anti-retaliation provisions,

its conclusion that Congress’ statement that the Act was “to take effect one day after its passage”
should be construed as an affirmative statement that the amendment “is not retroactive.” Id. at
748 (emphasis in original). That reasoning is in tension with Supreme Court precedent. See
Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 318 (2001) (“[T]he mere
promulgation of an effective date for a statute does not provide sufficient assurance that
Congress specifically considered the potential unfairness that retroactive application would
produce.”); Landgraf v. USI Film Prods., 511 U.S. 244, 257 (1994) (“[S]tatement[s] that a
statute will become effective on a certain date do[] not even arguably suggest that it has any
application to conduct that occurred at an earlier date.”). Meanwhile, the court did not expressly
consider whether the retroactive application of the three-year statute of limitations would
undermine the parties’ reliance interests. The court’s decision is presently on appeal to the
United States Court of Appeals for the Fifth Circuit.

7
and in exercising that judgment, it has determined that a three-year statute of limitations is the

best means of effectuating those policies. See 31 U.S.C. § 3730(h)(3). Given this development,

it would be strange indeed to “borrow” the statute of limitations applicable to the closest analog

under state law in an attempt to mimic the decision-making process that Congress has itself now

performed—namely, balancing the policy considerations implicit in enacting a limitations period.

In other words, the F-FCA now “stands on its own, . . . and contains all the needed mechanisms

to guarantee its effectiveness in forwarding the underlying federal policy.” Am. Tel. & Tel. Co. v.

N.Y.C. Dep’t of Human Res., 736 F. Supp. 496, 500 (S.D.N.Y. 1990). However, the Court is not

aware of any precedent from this Circuit or another that has eschewed the “borrowing” doctrine

in this particular context—that is, when Congress has stepped in to fill the interstices in a

statutory scheme but has remained silent as to how its gap-filling measures apply to past conduct.

Regardless of which analytical tack is taken, the effect of the Dodd-Frank Act upon the

timeliness of Saunders’ F-FCA retaliation claim presents novel and difficult questions about

when a court may rely upon subsequent congressional enactments to fill the gap in the statutory

scheme in effect at the time an action is commenced. Unfortunately, despite having been

admonished by the Court in the past for failing to address the effect of amendments to the F-FCA

(including this specific amendment), neither party has bothered to brief the question of whether

the Dodd-Frank Act affects the limitations period applicable to Saunders’ F-FCA retaliation

claim. For the reasons set forth above, there is some reason to believe that Congress’

specification of the applicable statute of limitations in the Dodd-Frank Act obviates the need to

resort to the “borrowing” doctrine as to Saunders’ pre-amendment F-FCA retaliation claim. But

the answer is by no means self-evident, and because the parties have failed to brief the issue, the

8
Court declines to reach a conclusion on the merits. Fortunately, the uncertainty is ultimately

immaterial, because the result would be the same regardless of whether the Court applied the

three-year statute of limitations in the Dodd-Frank Act or instead “borrowed” the statute of

limitations governing the closest analog under state law. As set forth immediately below, see

infra Part III.B, the closest analog to an F-FCA retaliation claim under District of Columbia law

is also governed by a three-year statute of limitations.

B. To the Extent “Borrowing” a State Statute of Limitations is Even Necessary,
the Three-Year Statute of Limitations Applicable to Retaliation Claims Arising
Under the District of Columbia False Claims Act Would Apply

When “borrowing” a statute of limitations becomes necessary, the district court will

ordinarily apply the limitations period that would govern the state law claim that is most

analogous to the federal cause of action at issue. Cephas v. MVM, Inc., 520 F.3d 480, 484 (D.C.

Cir. 2008). State law is always the “lender of first resort,” and the presumption favoring state

law may be overcome only where the application of the state limitations period would frustrate or

interfere with federal policies or be at odds with the purpose or operation of the underlying

federal statute. North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995). In that rare event, the

district court must instead “borrow” a limitations period from the most analogous federal statute.

Cephas, 520 F.3d at 485.

The first task before the Court, therefore, is to determine which cause of action under

District of Columbia law is the closest analog to F-FCA retaliation claims. This is a question of

first impression in this Circuit.4 It is, moreover, one that is unlikely to be revisited given that

4
Several courts in other jurisdictions have addressed the question, and in so doing have
reached varying conclusions. See U.S. ex rel. Wall v. Vista Hospice Care, Inc., __ F. Supp. 2d
__, 2011 WL 816632, at *8-9 (N.D. Tex. Mar. 9, 2011) (borrowing 180-day statute of limitations

9
Congress has since amended the F-FCA to specify that F-FCA retaliation claims are subject to a

three-year statute of limitations.

The Court agrees with Saunders that the anti-retaliation provisions of the District of

Columbia False Claims Act (“DC-FCA”), D.C. Code §§ 2-308.13 et seq., are more analogous to

the anti-retaliation provisions of the F-FCA than any of the other candidates identified by the

applicable to state whistleblower claims by hospital employees in lieu of the two-year “catch-all”
limitations period); U.S. ex rel. Zemplenyi v. Grp. Health Coop., 2010 WL 3584444, at *3 (W.D.
Wash. Sept. 10, 2010) (borrowing three-year “catch-all” statute of limitations without discussing
alternatives); Riddle v. DynCorp Int’l Inc., 733 F. Supp. 2d 743, 745-48 (N.D. Tex. 2010)
(borrowing 90-day statute of limitations applicable to state whistleblower claims in lieu of the
limitations period applicable to personal injury actions); U.S. ex rel. Suter v. Nat’l Rehab
Partners Inc., 2009 WL 3151099, at *2-3 (D. Idaho Sept. 24, 2009) (borrowing 180-day
limitations period applicable to state whistleblower claims by public employees in lieu of “catch-
all” limitations period); Campion v. Ne. Utils., 598 F. Supp. 2d 638, 645-53 (M.D. Penn. 2009)
(borrowing two-year “catch-all” statute of limitations applicable to personal injury actions in lieu
of the limitations period applicable to state whistleblower claims and wrongful discharge claims);
U.S. ex rel. Smart v. Christus Health, 626 F. Supp. 2d 647, 657-58 (S.D. Tex. 2009) (borrowing
180-day statute of limitations applicable to state whistleblower claims brought by hospital
employees in lieu of the two-year “catch-all” limitations period); Rutz v. Village of River Forest,
2007 WL 3231439, at *3-5 (N.D. Ill. Oct. 25, 2007) (borrowing one-year statute of limitations
applicable to tort claims brought by governmental employees in lieu of limitations periods
applicable to personal injury claims and retaliatory discharge claims); U.S. ex rel. Smith v. N.Y.
Presbyterian Hosp., 2007 WL 2142312, at *12 (S.D.N.Y. July 18, 2007) (borrowing three-year
statue of limitations applicable to personal injury actions in lieu of limitations period applicable
to state whistleblower claims); U.S. ex rel. Hinden v. UNC/Lear Servs., Inc., 362 F. Supp. 2d
1203, 1207-09 (D. Haw. 2005) (borrowing 90-day statute of limitations applicable to state
whistleblower claims in lieu of limitations period applicable to state wrongful discharge claims);
U.S. ex rel. Smith v. Yale Univ., 415 F. Supp. 2d 58, 99-102 (D. Conn. 2006) (borrowing three-
year statute of limitations applicable to state wrongful discharge claims in lieu of limitations
period applicable to state whistleblower claims); U.S. ex rel. Ackley v. Int’l Bus. Machs. Corp.,
110 F. Supp. 2d 395, 402-05 (D. Md. 2000) (borrowing three-year statute of limitations
applicable to state wrongful discharge claims in lieu of limitations period applicable to
administrative retaliation actions); U.S. ex rel. Lujan v. Hughes Aircraft Co., 162 F.3d 1027,
1035 (9th Cir. 1998) (borrowing one-year statute of limitations applicable to state wrongful
termination claims without discussing alternatives). Given that the objective of the “borrowing”
doctrine is to find the closest analog under applicable state law, which will vary by jurisdiction,
authorities engaging in this analysis in other jurisdictions are of limited persuasive value.

10
parties,5 and that borrowing the three-year statute of limitations applicable to claims brought

under the anti-retaliation provisions of the DC-FCA fully comports with the overarching design

of the F-FCA. Both the DC-FCA and the F-FCA are designed to discourage fraud against the

government and, to that end, both prohibit an employer from taking an adverse employment

action against an employee as a result of the employee’s participation in protected activity

pertaining to false claims (which under both statutes encompasses, broadly speaking, any activity

that could reasonably lead to a viable false claims action). Indeed, a side-by-side comparison of

the two statutes reveals that they are virtually identical in scope:6

DC-FCA F-FCA
COVERED Any “employee.” D.C. Code § 2- Any “employee.” 31 U.S.C. § 3730(h)
INDIVIDUALS 308.16(b). (2002).

COVERED Any “employer, including the District Any “employer,” whether public or
ENTITIES of Columbia.” D.C. Code § 2- private. 31 U.S.C. § 3730(h) (2002).
308.16(b).

5
While the Court will limit its discussion here to the candidates identified by the parties,
the Court has not identified a closer analog through its independent research.
6
While neither party directly addresses the question, the proper focus for comparison is
the F-FCA in the form that it existed at the time Saunders’ cause of action accrued and at the
commencement of this action. As explained in greater detail below, see supra Part III.A, if the
Court were to look at the F-FCA in the form that it exists today, there would be no need to
“borrow” a statute of limitations at all, since Congress has since amended the F-FCA to
specifically provide for a three-year statute of limitations. See 31 U.S.C. § 3730(h)(3). But the
distinction is ultimately academic; even in its amended form, the F-FCA’s closest analog under
District of Columbia law remains the DC-FCA, as the anti-retaliation provisions under the two
statutes are nearly coterminous in scope to this day. Compare D.C. Code § 2-308.16(b)-(c), with
31 U.S.C. 3730(h)(1)-(2).

11
 PROTECTED “[L]awful acts done by the employee “[L]awful acts done by the employee
ACTIVITY on behalf of the employee or others in on behalf of the employee or others in
disclosing information to a government furtherance of an action under this
or law enforcement agency relating to, section, including investigation for,
or in furtherance of, a false claims initiation of, testimony for, or
action, including investigation of, assistance in an action filed or to be
initiation of, or testimony or assistance filed under this section.” 31 U.S.C. §
in, an action to be filed pursuant to 3730(h) (2002).
[D.C. Code] § 2-308.15.” D.C. Code §
2-308.16(b).

PROHIBITED “ [ D] i s c h a r g[ i n g] , d e mot [ i n g] , “ [D] i s ch a r g[i ng ] , d e mo t[ i n g] ,
CONDUCT suspend[ing], threaten[ing], suspend[ing], threaten[ing],
harass[ing], or in any other manner harass[ing], or in any other manner
discriminat[ing] against an employee in discriminat[ing] against [the employee]
the terms and conditions of in the terms and conditions of
employment.” D.C. Code § 2- employment.” 31 U.S.C. § 3730(h)
308.16(b). (2002).

AVAILABLE “[T]he relief necessary to make the “[A]ll relief necessary to make the
RELIEF employee whole, including employee whole,” “includ[ing]
reinstatement with the same seniority reinstatement with the same seniority
status that the employee would have status such employee would have had
had but for the discrimination, two but for the discrimination, 2 times the
times the amount of back pay, interest amount of back pay, interest on the
on the back pay, compensation for any back pay, and compensation for any
special damage sustained as a result of special damages sustained as a result of
the discrimination and, where the discrimination, including litigation
appropriate (except in the case of the costs and reasonable attorneys’ fees.”
District), punitive damages,” as well as 31 U.S.C. § 3730(h) (2002).
“litigation costs and reasonable
attorneys fees, necessarily incurred.”
D.C. Code § 2-308.16(c).

This substantial overlap between the DC-FCA and F-FCA comes as no surprise, given

that the DC-FCA is indirectly based on the F-FCA. See Grayson v. AT & T Corp., 980 A.2d

1137, 1146 n.25 (D.C. 2009), vacated in part, 989 A.2d 709 (D.C. 2010) (en banc) (per curiam).

Indeed, this Court has previously had the opportunity to observe that the elements of the two

causes of action are, if not identical, nonetheless “substantively similar,” Kakeh v. United

Planning Org., Inc., 655 F. Supp. 2d 107, 115 n.5 (D.D.C. 2009), and, as a result, case law

12
interpreting the F-FCA’s anti-retaliation provisions is instructive when evaluating the analogous

provisions under the DC-FCA, Payne v. District of Columbia, __ F. Supp. 2d __, 2011 WL

1158724, at *6 n.4 (D.D.C. Mar. 29, 2011). More broadly, in light of the commonality between

the two statutes, the courts of the District of Columbia will look to case law interpreting the F-

FCA when tasked with construing the terms of DC-FCA. See Grayson, 980 A.2d at 1146 n.25.

For all these reasons, the anti-retaliation provisions of the DC-FCA provide an ideal

candidate for purposes of “borrowing” a statute of limitations to govern F-FCA retaliation

claims. Nonetheless, the District presses an alternative—namely, adopting the statute of

limitations governing claims under the District of Columbia Whistleblower Protection Act (the

“DC-WPA”), D.C. Code §§ 1-615.01 et seq. While the District’s argument is not without some

merit, as the DC-WPA admittedly shares some characteristics with the F-FCA’s anti-retaliation

provisions, the argument is unavailing. In the final analysis, the DC-WPA simply is not as

analogous to the F-FCA’s anti-retaliation provisions as are the nearly identical anti-retaliation

provisions of the DC-FCA.

True, the DC-WPA is, like the F-FCA, broadly designed to encourage the reporting of

waste or fraud in government. See D.C. Code § 1-615.51(1). However, the DC-WPA is at the

same time both more expansive and narrower than the anti-retaliation provisions of the F-FCA: it

protects a far narrower class of individuals; it covers a far narrower class of employers; it

authorizes suits against individuals in their personal capacities; and it offers less robust remedies

than the F-FCA. Whereas the F-FCA covers any employee, 31 U.S.C. § 3730(h) (2002), the

protections of the DC-WPA may be invoked only by “a former or current District employee, or

an applicant for employment by the District government,” D.C. Code § 1-615.52(a)(3). Whereas

13
the F-FCA covers any employer, 31 U.S.C. § 3730(h) (2002), the DC-WPA applies to a single

employer—the District of Columbia itself, D.C. Code § 1-615.54(a)(1). Whereas there is no

individual liability under the F-FCA, see U.S. ex rel. Siewick v. Jamieson Sci. & Eng’g, Inc., 322

F.3d 738, 740-41 (D.C. Cir. 2003), the DC-WPA permits an action to be brought against “any

District employee, supervisor, or official having personal involvement in the prohibited

personnel action,” D.C. Code § 1-615.54(a)(1). And whereas the F-FCA permits a plaintiff to

recover double back pay, 31 U.S.C. § 3730(h) (2002), the DC-WPA only permits a plaintiff to

recover single back pay, D.C. Code § 1-615.54(a)(1)(E).

But perhaps most importantly, the DC-WPA protects a considerably more expansive set

of disclosures than the F-FCA, reflecting the distinct, if nonetheless similar, orientations of the

two statutes. The anti-retaliation provisions of the F-FCA prohibit an employer from taking an

adverse employment action against an employee as a result of the employee’s participation in

protected activity pertaining to the presentation of false claims, with the aim of encouraging

disclosures that might prevent others from making false claims for money or property upon the

government or knowingly submitting false statements in support of such claims. To effectuate

this end, the F-FCA is sensibly targeted towards protecting disclosures and activities that could

reasonably lead to a viable false claims action. See U.S. ex rel. Yesudian v. Howard Univ., 153

F.3d 731, 740 (D.C. Cir. 1998). Meanwhile, the penumbra of the DC-WPA extends over a much

wider field, encompassing disclosures including: gross mismanagement; the gross misuse or

waste of public resources; abuse of authority in connection with the administration of a public

program or the execution of a public contract; the violation of a law or regulation or a term of

contract with a government contractor; and substantial and specific dangers to the public health

14
and safety. See D.C. Code § 1-615.52(a)(6). As a result of these expansive protections, the DC-

WPA may, for example, protect a government employee’s disclosures concerning the stabling

and negligent care of horses, see Mentzer v. Lanier, 677 F. Supp. 2d 242, 250 (D.D.C.), aff’d,

408 F. App’x 379 (D.C. Cir. 2010) (per curiam), something that runs far afield of the concerns of

the F-FCA. The sheer breadth and diversity of the subject-matter protected by the DC-WPA

reveals that the statute is concerned with more than preventing fraudulent claims upon the

government’s funds and property; rather, it is designed to encourage disclosures concerning a

broad universe of government misconduct and public safety issues. In this way, the DC-WPA

departs significantly from the F-FCA.

All of which should not be construed as suggesting that the DC-WPA is wholly dissimilar

to the F-FCA. Quite the contrary, the two undoubtedly share similar aims and, in furtherance of

those aims, create comparable private causes of action for retaliation. That conclusion, however,

does not change the fact that District of Columbia law provides an even closer analog to the F-

FCA in the form of the DC-FCA. For want of a better analogy, while the DC-WPA and F-FCA

may be cousins, the DC-FCA and the F-FCA are siblings. As such, to the extent Congress may

be said to have failed to supply a limitations period for retaliation claims under the F-FCA, the

Court would borrow the statute of limitations period applicable to retaliation claims under the

DC-FCA as the “state law claim that is most closely analogous to the federal claim in suit.”

Cephas, 520 F.3d 480 F.3d at 484 (quotation marks omitted). But like its federal counterpart, the

DC-FCA does not specifically identify the statute of limitations governing retaliation claims. See

D.C. Code § 2-308.17(a) (specifying the statute of limitations applicable to qui tam actions

arising under D.C. Code § 2-308.15, but remaining silent on the limitations period applicable to

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retaliation actions arising under D.C. Code § 2-308.16). Due to this statutory silence, retaliation

claims under the DC-FCA are subject to the three-year “catch-all” statute of limitations under

D.C. Code § 12-301(8). See District Cablevision Ltd. P’Ship v. Bassin, 828 A.2d 714, 729 (D.C.

2003) (providing that three-year “catch-all” statute of limitations applies to claims that “are not

‘specially’ governed by any other statute of limitations.”) (quoting D.C. Code § 12-301(8)).

Borrowing the three-year statute of limitations and applying it to the facts of this case, the parties

agree that Saunders’ F-FCA retaliation claim is timely.

IV. CONCLUSION

For the reasons set forth above, the Court concludes that Saunders’ F-FCA retaliation

claim is subject to a three-year statute of limitations. Because the parties agree that the claim is

timely insofar as it is governed by a three-year statute of limitations, the District’s [77] Motion to

Dismiss will be denied. An appropriate order accompanies this memorandum opinion.

Date: June 6, 2011

/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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