Case: 11-10155 Document: 00511716087 Page: 1 Date Filed: 01/05/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 5, 2012
No. 11-10155 Lyle W. Cayce
Clerk
MICHAEL RIDDLE,
Plaintiff - Appellant
v.
DYNCORP INTERNATIONAL INCORPORATED; AIMAN K. ZUREIKAT;
RICHARD C. CASHON,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
Before KING, JOLLY, and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
The appellant brought a retaliation action against his former employer
under the Federal False Claims Act 178 days after his termination. The district
court, applying a 90-day limitations period borrowed from Texas state law, held
that the appellant’s suit was untimely. We REVERSE the district court’s
judgment and REMAND the case for further proceedings.
I.
Michael Riddle once served as a senior employment manager for Dyncorp
International, Incorporated (“Dyncorp”). He alleges that Dyncorp contracted to
create a database for the United States government, but took no meaningful
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No. 11-10155
steps toward fulfilling its obligations. He further alleges that when he protested
Dyncorp’s inaction on the database project, he was marginalized at work and
eventually terminated, on September 21, 2009.
Riddle filed a complaint against Dyncorp and three Dyncorp employees on
March 18, 2010, asserting a retaliation claim under the Federal False Claims
Act (the “FCA”). Dyncorp and two other defendants moved to dismiss the
complaint, arguing that a 90-day limitations period, borrowed from a Texas
statute, applied to Riddle’s FCA claim, and that his complaint was therefore
time-barred. The district court granted the motion on August 19, 2010, and
entered judgment the next day. This appeal timely followed.
II.
The FCA prohibits making fraudulent claims for payment to the United
States. 31 U.S.C. § 3729(a). To enforce this prohibition, the FCA creates a cause
of action for any person retaliated against by his employer for attempting to
prevent an FCA violation. 31 U.S.C. § 3730(h). At the time Riddle filed his
complaint, the FCA contained no statute of limitations for this cause of action.
See Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel.
Wilson, 545 U.S. 409, 422 (2005). In the absence of an express limitations
period, courts have applied the “most closely analogous state statute of
limitations.” Id. The Supreme Court has indicated that the most closely
analogous statute of limitations in Texas is likely either the period contained in
the Texas Whistleblower Act (the “TWA”) or the period applied to Texas personal
injury claims. See id. at 419 n.3.
In dismissing the complaint, the district court applied the limitations
period contained in the TWA, which creates a cause of action for public
employees who are retaliated against for reporting unlawful conduct by their
employer or other public employees. TEX. GOV’T CODE ANN. § 554.002. That
limitations period is 90 days, starting from the retaliatory event. Id. § 554.005.
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We review de novo the district court’s dismissal on statute of limitations
grounds. United States ex. rel Mathews v. HealthSouth Corp., 332 F.3d 293, 294-
95 (5th Cir. 2003).
A.
We begin with the relevant substantive provisions on which the district
court based its analogy between the TWA and FCA. The FCA provides, in
pertinent part:
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
employment 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
violations of this subchapter.
31 U.S.C. § 3730(h)(1). The TWA provides as follows:
A state or local governmental entity may not suspend or
terminate the employment of, or take other adverse personnel
action against, a public employee who in good faith reports a
violation of law by the employing governmental entity or
another public employee to an appropriate law enforcement
authority.
TEX. GOV’T CODE ANN. § 554.002(a).
The district court held that the TWA is the closest analogue to the FCA
because, like the FCA, it protects whistleblowers from retaliation. The appellees
contend that the FCA and TWA are analogous for this same reason, and also
because they offer similar remedies—injunctions, damages, litigation costs, and
attorney’s fees. Compare 31 U.S.C. § 3730(h)(2) with TEX . GOV’T CODE ANN. §
554.003.
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Although we acknowledge the similar purposes animating the TWA and
FCA, the dissimilarities between the statutes are, ultimately, fatal to the district
court’s reasoning.
First, the TWA creates a cause of action available only to public
employees. Riddle, who does not work in state or local government in Texas,
could not bring an action under the TWA. This fact is especially noteworthy
because the Texas Legislature has enacted numerous whistleblower statutes, the
applicability of which depend on the status, specifically the employment field,
of the whistleblower. See Austin v. HealthTrust, Inc.—The Hosp. Co., 967
S.W.2d 400, 401-02 (Tex. 1998) (listing various Texas whistleblower statutes).
In the light of Texas’s status-based whistleblower regime, it makes no more
sense to borrow from the statute for public employees than it would to borrow
from the statute for hospital employees, physicians, nursing home employees,
agricultural laborers, or handlers of hazardous chemicals. Each of these
employment fields benefits from a different Texas whistleblower statute. See id.
Riddle does not possess the status, that of public employee, that would make a
TWA claim clearly analogous to his FCA claim, and the presence of many
different whistleblower statutes further muddies the analogy.
Second, this defect in status is magnified by the provision requiring public
employees to pursue an administrative remedy before suing under the TWA.
The limitations period for a TWA action is often longer than 90 days because of
the effect of required administrative proceedings. TEX. GOV’T CODE ANN. §
554.006. Before a public employee files a lawsuit based on the TWA, he must
“initiate action under the grievance . . . procedures of the employing state or
local governmental entity relating to suspension or termination of employment
or adverse personnel action . . . .” Id. § 554.006(a). The running of the
limitations period is suspended while the administrative proceedings are
pending. Id. § 554.006(c). The administrative proceedings thus effectively
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lengthen the limitations period. For Riddle, a private employee with no avenue
to resolve his dispute administratively, the TWA’s limitations period is a strict
90 days, whereas it is less strict for the people for whom the statute is intended.
See id.
The appellees observe that not every municipality in Texas provides an
administrative avenue for its employees to resolve disputes and, where none
exists, the limitations period is 90 days. See City of Colorado City v. Ponko, 216
S.W.3d 924, 928 (Tex. App. 2007). We do not think that this fact saves the
analogy between the TWA and FCA. Although the TWA’s limitations period
may be a strict 90 days in particular cases, that is not the ordinary case
contemplated by the TWA’s temporal scheme. Instead, the TWA on its face
contemplates administrative remedies intervening to stop the running of its 90-
day limitations period. See TEX. GOV’T CODE ANN. § 554.006 (“A public employee
must initiate action under the grievance . . . procedures . . . . Time used by the
employee in acting under the grievance . . . procedures is excluded . . . from the
period established by Section 554.005.”). We find the analogy between the TWA
and FCA lacking.
We hold instead that the two-year period applied to personal injuries is the
more closely analogous Texas statute of limitations. See TEX. CIV. PRAC & REM.
CODE ANN. § 16.003. This statute of limitations is a better analogue because of
its association with a particular type of wrongful discharge cause of action under
Texas law. Texas, like many states, recognizes a cause of action for wrongful
discharge where a person is terminated for refusing to commit an illegal act.
Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985). This cause
of action is governed by the two-year period for personal injuries. See Stroud v.
VBFSB Holding Corp., 917 S.W.2d 75, 79-80 (Tex. App. 1996) (analyzing a
wrongful discharge claim under the two-year statute of limitations). Unlike the
TWA, the Sabine Pilot-type cause of action is available to private employees and
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its limitations period is not influenced by any administrative remedy process.
Like the FCA, the Sabine Pilot-type cause of action protects law-abiding
employees from retaliation from their law-breaking employers and superiors. We
hold that it furnishes an appropriate analogy to the FCA, and that its two-year
statute of limitations applies to the instant controversy.
B.
The parties do raise the question of whether the newly-enacted Dodd-
Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”)
has an effect on this appeal. The Dodd-Frank Act, which creates a three-year
statute of limitations for FCA retaliation actions, took effect July 22, 2010, four
months after Riddle filed his complaint. Dodd-Frank Wall Street Reform &
Consumer Protection Act, Pub. L. No. 111-203, § 4, 124 Stat. 1376, 1390 (2010).
Riddle contends that this new statute of limitations applies to his claim, thus
obviating the foregoing discussion of the most closely analogous Texas statute
of limitations. We disagree.
Our precedent directs us to apply the statute of limitations that is in effect
at the time a plaintiff files his complaint. See United States v. Flores, 135 F.3d
1000, 1003 (5th Cir. 1998); St. Louis v. Tex. Worker’s Comp. Comm'n, 65 F.3d 43,
45 (5th Cir. 1995). We may sometimes apply a newly-enacted statute of
limitations to a pending case, but not if the effect would be to revive a claim that
expired before the statute’s effective date. FDIC v. Belli, 981 F.2d 838, 842-43
(5th Cir. 1993).
Therefore, the question whether to apply the Dodd-Frank Act turns on
whether Riddle’s claim expired before July 22, 2010—the Dodd-Frank Act’s
effective date—a question which itself turns on the applicable Texas statute of
limitations. If we had chosen the 90-day period, as the district court did, then
Riddle’s claim expired before the effective date of the Dodd-Frank Act. Because
we have chosen the two-year period, Riddle’s claim is actually timely under one
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of two possible rationales: (1) because he filed his complaint within two years of
his termination; or (2) because the Dodd-Frank Act applies, and he filed his
complaint within three years of his termination. In any event, the dispositive
issue on appeal is which Texas statute of limitations to apply, and we have
resolved that issue in Riddle’s favor.
III.
Because Riddle filed his complaint within 178 days of his termination, he
falls comfortably within either a two-year or three-year statute of limitations,
and the district court erred in dismissing that complaint as time-barred. The
judgment of the district court is REVERSED and the case is REMANDED for
further proceedings.
REVERSED and REMANDED.
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