Deborah E. Foster v. Savannah Communication ( 2005 )


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  •                                                          [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    FILED
    No. 04-10876
    U.S. COURT OF APPEALS
    Non-Argument Calendar            ELEVENTH CIRCUIT
    ________________________               June 23, 2005
    THOMAS K. KAHN
    D. C. Docket No. 03-00148-CV-4            CLERK
    DEBORAH E. FOSTER,
    Plaintiff-Appellant,
    versus
    SAVANNAH COMMUNICATION,
    MCLLANHAM AUTOMOTIVES, INC.,
    A&E ELECTRONIC COMPANY,
    PROVOST MARSHAL/LAW ENFORCEMENT COMMAND,
    U.S. ARMY,
    Defendants-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Georgia
    _________________________
    (June 23, 2005)
    Before BLACK, WILSON and PRYOR, Circuit Judges.
    PER CURIAM:
    Deborah E. Foster appeals pro se the district court’s dismissal with prejudice
    of her claims against the defendants, Savannah Communication (“SC”), the United
    States Army (“Army”), McLlanham Automotives, Inc. (“McLlanham”), and A&E
    Electronic Company (“A&E”).1 Foster brought her claims under the False Claims
    Act (“FCA”), 
    31 U.S.C. §§ 3729
    , et seq. Specifically, she alleged that she had
    been constructively discharged by her employer, the Army, for reporting fraud to
    her supervisors in violation of 
    31 U.S.C. § 3730
    (h), which is the whistleblower
    provision of the FCA. She also apparently sought to bring a qui tam action against
    the remaining three defendants (“the contractor defendants”), who were allegedly
    involved in the fraud, in violation of 
    31 U.S.C. § 3730
    (b).
    Foster raises two arguments on appeal. First, she argues that the district
    court erred in finding that her complaint was filed beyond the statute of limitations.
    Foster argues that she did her best to ensure that the complaint was filed in a timely
    manner. She notes that she mailed her complaint to the district court (admittedly
    with a request for leave to proceed in forma pauperis in lieu of the filing fee) two
    days before the statute of limitations expired and that the district court received it
    one day before it expired.
    1
    Neither McLlanham nor A&E are present on appeal.
    2
    Second, Foster argues that the district court erred by alternatively dismissing
    her complaint for failure to comply with the procedural requirements of §
    3730(b)(2) for qui tam actions. She notes in particular that she “had no knowledge
    of sealing a case.” Each argument is addressed in turn.2
    We review de novo the district court’s grant of a motion to dismiss. Spain v.
    Brown & Williamson Tobacco Corp., 
    363 F.3d 1183
    , 1187 (11th Cir. 2004). A
    motion to dismiss is granted only when the movant demonstrates “beyond a doubt
    that the plaintiff can prove no set of facts in support of [her] claim that would
    entitle [her] to relief.” Conley v. Gibson, 
    355 U.S. 41
    , 45-46 (1957); Fed. R. Civ.
    P. 12(b)(6). “The standard of review for a motion to dismiss is the same for the
    appellate court as it was for the trial court.” Spain, 
    363 F.3d at 1187
     (citation
    omitted).
    Failure to Comply with Statute of Limitations
    The applicable limitation period for an action brought under 
    31 U.S.C. § 3730
     is no “more than 6 years after the date on which the violation of section 3729
    is committed.” 
    31 U.S.C. § 3731
    (b)(1). Generally, a statute of limitations defense
    is an affirmative defense that must be pled. See Fed. R. Civ. P. 8(c). However,
    2
    Foster further contends that the defendants failed to respond timely to her complaint and
    that therefore she should have received a default judgment against them. After reviewing the
    record, we conclude that the district court’s refusal to enter default judgments was not an abuse
    of discretion under the circumstances.
    3
    failure to comply with the statute of limitations may be raised on a motion to
    dismiss for failure to state a claim for which relief can be granted under Fed. R.
    Civ. P. 12(b)(6), when failure to comply with the statute of limitations is plain on
    the face of the complaint. AVCO Corp. v. Precision Air Parts, Inc., 
    676 F.2d 494
    ,
    495 (11th Cir. 1982).
    In her complaint, Foster alleged that she complained of fraud and was
    constructively discharged by the Army on July 23, 1997. Foster could not have
    witnessed or had knowledge of any alleged fraudulent activity, such as submission
    of false claims, after that date. The record reflects that Foster’s complaint was not
    filed until August 8, 2003, more than six years after the date on which her
    employment ended. Consequently, all of the acts of which Foster claims the
    contractor defendants took part occurred more than six years before Foster filed her
    complaint. Furthermore, Foster concedes that her complaint is untimely in light of
    the limitation period. Therefore, to the extent that Foster sought to bring a qui tam
    action against the contractor defendants, the district court did not err in finding that
    her complaint was barred by the six-year statute of limitations set forth at §
    3731(b)(1).
    To the extent that Foster sought relief under the anti-retaliation provision of
    the FCA, we have not previously addressed whether the six-year statute of
    4
    limitations applies to those claims.3 We do not address that issue here, however,
    because even if the absence of a specific limitation period in the FCA compels
    application of the most analogous state law statute of limitations, Foster never
    suggests, and our de novo review does not reveal, that the applicable period would
    be more than six years. Moreover, as noted above, Foster concedes that her filing
    was outside this period. We therefore affirm the district court’s dismissal of her
    retaliation claim against the Army for failure to comply with the statute of
    limitations.
    Failure to Comply with Procedural Requirements
    To maintain a qui tam action under the FCA, a private party must satisfy
    several procedural requirements. See 
    31 U.S.C. § 3730
     (b)(1), (b)(2), (b)(4)(A),
    (b)(4)(B). Specifically, a private party must first bring the action in the name of
    the United States government and must have served upon the government “[a]
    copy of the complaint and written disclosure of substantially all material evidence
    and information the person possesses.” 
    31 U.S.C. §§ 3730
    (b)(1) and (b)(2). The
    complaint also must be filed “in camera, [and] shall remain under seal for at least
    3
    Two other circuits have found that the six-year statute of limitations set forth at §
    3731(b)(1) does apply to retaliation claims under § 3731(h). See e.g., U.S. ex. rel. Wilson v.
    Graham County Soil & Water Conservation Dist., 
    367 F.3d 245
    , 251 (4th Cir. 2004); Neal v.
    Honeywell, Inc., 
    191 F.3d 827
    , 830 (7th Cir. 1999). The Ninth Circuit, however, has held that an
    analogous state law statute of limitations determines the statute of limitations governing
    retaliation suits under § 3731(h). U.S. v. Hughes Aircraft Co., 
    162 F.3d 1027
    , 1034-35 (9th Cir.
    1998).
    5
    60 days, and shall not be served on the defendant until the court so orders.” §
    3730(b)(2). Within 60 days of service, the government must choose either to
    “intervene and proceed with the action,” or notify the court that it declines to
    intervene, in which case the individual obtains the right to proceed with the qui tam
    action. § 3730(b)(4).
    It is apparent from the face of Foster’s complaint that she did not comply
    with any of the statutory requirements before filing her qui tam action. Foster’s
    claims against the three contractor defendants were brought directly in the district
    court, were brought in her name, and were not filed under seal. Foster concedes
    her noncompliance with the procedural requirements of the FCA. Accordingly,
    after considering the parties’ contentions, we find no abuse of discretion in the
    district court’s finding that she failed to comply with the procedural filing
    requirements for qui tam actions under the FCA as to the contractor defendants.4
    We therefore affirm the district court’s order dismissing Foster’s complaint
    for failure to file within the statute of limitations, and, alternatively, for failure to
    comply with the procedural filing requirements of § 3730(b)(2).
    AFFIRMED.
    4
    We note that Foster’s retaliation claim against the Army arose under § 3730(h). We
    decline to address whether the procedural requirements for a qui tam action were also applicable
    to Foster’s retaliation claim, or whether noncompliance with such rules provides an additional
    basis for affirming the district court’s decision.
    6