Lindsay v. Technical College Systems of Georgia et al

Filing 53

ORDER AND OPINION granting 47 Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment. Signed by Judge Julie E. Carnes on 2/13/13. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

ALVIN N. LINDSAY,
Plaintiff,
CIVIL ACTION NO.
v.

1:09-cv-2133-JEC

TECHNICAL COLLEGE SYSTEM OF
GEORGIA, ATLANTA TECHNICAL
COLLEGE, BRENDA JONES, ALVETTA
P. THOMAS, JONI WILLIAMS, AND
KRISTI WOLFSBERGER CARMAN,
Defendants.
ORDER & OPINION
This case is before the Court on defendants’ Motion to Dismiss
or, in the Alternative, for Summary Judgment [47].

The Court has

reviewed the record and the arguments of the parties and, for the
reasons set out below, concludes that defendants’ Motion [47] should
be GRANTED.
BACKGROUND
This case arises out of an employment dispute.

The Court

described the facts underlying the case in detail in two previous
orders.

(March, 2010 Order [32] and March, 2011 Order [38].)

Briefly,

plaintiff

is

a

former

employee

of

defendant

Atlanta

Technical College (“ATC”). (Order [32] at 2.) He filed this lawsuit
under the False Claims Act (“FCA”) and other federal statutes after

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defendants refused to renew his employment contract in May, 2007.
(Id. at 3.)

He claims that the non-renewal was in retaliation for

complaining about and trying to stop ATC’s violation of federal law
relating to student financial aid.

(Id.)

In its March, 2010 Order, the Court granted defendants’ motion
to dismiss plaintiff’s federal claims.

(Id. at 16-17.)

The Court

noted in its Order that plaintiff had failed to comply with any of
the procedural requirements of the FCA.

(Id. at 10.)

As for the

remaining federal claims, the Court held that they were barred by the
applicable statute of limitations.

(Order [32] at 12-15.)

In

accordance with its ruling, the Court granted plaintiff’s motion to
amend his complaint to assert new state law claims, but declined to
exercise jurisdiction over those claims and dismissed the lawsuit in
its entirety.

(Id. at 16-17.)

Following

the

dismissal,

plaintiff

filed

a

motion

for

reconsideration in which he argued that the Court had failed to
consider

all

of

his

federal

claims.

(Order

[38]

at

2.)

Specifically, plaintiff maintained that he had asserted a retaliatory
discharge claim pursuant to 31 U.S.C. § 3730(h), which was not
addressed

in

defendants’

dismissal order.

(Id.)

motion

to

dismiss

or

in

the

Court’s

The Court reviewed plaintiff’s two prior

amended complaints and found no mention of a § 3730(h) claim.
at 7-16.)

Nevertheless, the Court allowed plaintiff twenty-eight
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(Id.

(28) days to file a third amended complaint to assert the claim. (Id.
at 16.)

When no complaint materialized in the allotted time, the

Court entered a second order of dismissal.

(Order [39].)

Plaintiff subsequently filed another motion to reconsider,
premised on the fact that he did not receive the Court’s Order
allowing him to file an amended complaint.

(Order [44] at 2-3.)

The

Clerk’s record did not contradict plaintiff’s assertion and defendant
failed to file a brief in opposition.

(Id. at 3.)

Accordingly, the

Court granted plaintiff’s unopposed motion and allowed him to amend
his

complaint

a

third

time

to

assert

discharge under § 3730(h) claim.
The

Court

ordered

defendants

a

claim

for

retaliatory

(Id. and Third Am. Compl. [45].)
to

file

an

answer

or

otherwise

appropriate dispositive pleading to the amended complaint.
[44] at 3.)

(Order

Defendants responded with the motion to dismiss, or in

the alternative for summary judgment, that is now before the Court.
(Defs.’ Mot. to Dismiss or for Summ. J. [47].)
DISCUSSION
I.

STANDARD OF REVIEW
In their motion, defendants argue that they are not proper

defendants under § 3730(h) because: (1) the individual defendants do
not qualify as plaintiff’s “employer” and (2) the Technical College
System of Georgia (“TCSG”), including the ATC, is an arm of the state
that is not subject to liability under § 3730(h).
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(Defs.’ Br. in

Supp. of Mot. (“Defs.’ Br.”) [47] at 2.)

Defendants further contend

that plaintiff’s § 3730(h) claim is barred by the applicable statute
of limitations.

(Id.)

Defendants rely on matters outside of the

pleadings in support of their statute of limitations argument.
at 10-14.)

(Id.

The Court will therefore treat the pending matter as a

motion for summary judgment.

See FED. R. CIV. P. 12(d)(“If, on a

motion under Rule 12(b)(6) . . . matters outside the pleadings are
presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.”).
Summary

judgment

is

appropriate

when

the

pleadings,

the

discovery and disclosure materials on file and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.
56(c).

A fact’s materiality is determined by the controlling

substantive law.
(1986).

FED. R. CIV. P.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

An issue is genuine when the evidence is such that a

reasonable jury could return a verdict for the nonmovant.

Id. at

249-50.
Summary judgment is not properly viewed as a device that the
trial court may, in its discretion, implement in lieu of a trial on
the merits. However, Rule 56 of the Federal Rules of Civil Procedure
mandates the entry of summary judgment against a party who fails to
make a showing sufficient to establish the existence of every element
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essential to that party’s case on which that party will bear the
burden of proof at trial.
322 (1986).

Celotex Corp. v. Catrett, 477 U.S. 317,

In such a situation, there can be no genuine issue as to

any material fact, as a complete failure of proof concerning an
essential element of the non-moving party’s case necessarily renders
all other facts immaterial.

Id. at 322-23 (quoting FED. R. CIV. P.

56(c)).
The movant bears the initial responsibility of asserting the
basis for his motion.

Id. at 323.

However, the movant is not

required to negate his opponent’s claim.

The movant may discharge

his burden by merely “‘showing’--that is, pointing out to the
district court--that there is an absence of evidence to support the
nonmoving party’s case.”

Id. at 325.

After the movant has carried

his burden, the non-moving party is then required to “go beyond the
pleadings” and present competent evidence designating “specific facts
showing that there is a genuine issue for trial.”

Id. at 324.

The

Court must view all evidence and factual inferences in a light most
favorable to the non-moving party.

Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988).

However, “the mere existence of

some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment.” Anderson,
477 U.S. at 247-48 (1986).

The requirement is that there be no

“genuine issue of material fact.”

Id.
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II.

LIABILITY UNDER § 3730(h)
A.

Individual Defendants

The version of § 3730(h) that was in effect at the time of
plaintiff’s alleged retaliation provides that:
[a]ny employee who is discharged, demoted,
suspended, 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 action under this section, including
investigation 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.
31 U.S.C. § 3730(h) (2007)(emphasis added). By its clear and express
terms, this language only prohibits retaliation by an “employer.”
Id.

It

does

not

provide

for

individual

liability

supervisor or a manager for retaliatory discharge.

against

a

United States ex

rel. Friddle v. Taylor, Bean & Whitaker Mort. Corp., Civil Action No.
1:06-cv-3023-JEC, 2012 WL 1066510, *5-6 (N.D. Ga. Mar. 27, 2012)
(Carnes, C.J.)(agreeing with a nearly unanimous majority of other
courts that § 3730(h) does not give rise to individual liability
under the FCA).
Giving the term “employer” its ordinary, commonly understood
meaning, it is clear that the individuals named in the amended
complaint are not subject to liability for retaliatory discharge
under the version of § 3730(h) that applies to plaintiff’s claims.
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Id. (declining to create a de facto employer status under § 3730(h)).
See also United States ex rel. Siewick v. Jamieson Sci. and Eng’g,
Inc., 322 F.3d 738, 740 (D.C. Cir. 2003)(holding that a CEO was not
an

employer

with

the

meaning

of

the

FCA).

Recognizing

this,

plaintiff urges the Court to apply an amended version of § 3730(h)
that eliminates the reference to the term “employer.”

See Fraud

Enforcement and Recovery Act of 2009, Pub. L. No. 111-21.

However,

Congress expressly limited the application of the 2009 amendment to
“conduct [that occurs] on or after the date of [its] enactment.”
at § 4(f).

Id.

See also Barber v. Paychex Inc., 439 Fed. App’x 841, 842

(11th Cir. 2011)(noting that the Fraud Enforcement and Recovery Act
amendments do not apply retroactively). The amendment was enacted on
May 20, 2009.

Id.

Accordingly, it

cannot apply to plaintiff’s

retaliation claim, which is based on conduct that occurred in 2007.
(Third Am. Compl. [45] at ¶ 32.)
B.

TCSG and ATC

Plaintiff’s claims against the institutional defendants are
likewise invalid. As numerous federal courts have held, liability on
a § 3730(h) claim under the pre-amended version of the FCA does not
extend to states or their instrumentalities because § 3730(h) “does
not

reflect

the

requisite

sovereign immunity.”

congressional

intent

waive

state

Bell v. Dean, No. 2:09-CV-1082-WKW, 2010 WL

1856086, *2-3 (M.D. Ala. May 4, 2010)(Watkins, J.).
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to

See also United

States v. Tex. Tech. Univ., 171 F.3d 279, 294 (5th Cir. 1999) and
United States ex rel. Moore v. Univ. of Mich., 860 F. Supp. 400, 402
(E.D. Mich. 1994). TCSG, including ATC, is an instrumentality of the
state of Georgia pursuant to O.C.G.A. §§ 20-4-14 and 20-4-18.

Thus,

plaintiff’s suit against both must fail.
III. STATUTE OF LIMITATIONS
Even if defendants were subject to suit under § 3730(h), the
applicable statute limitations is fatal to plaintiff’s claim.
plaintiff

filed

suit,

the

FCA

did

limitations for § 3730(h) claims.

not

contain

a

When

statute

of

Consequently, plaintiff’s claims

are governed by the most closely analogous state limitations period.
See Graham Cnty. Soil & Water Conservation Dist. v. United States ex
rel. Wilson, 545 U.S. 409, 422 (2005).

In Graham, the Supreme Court

indicated that the most closely analogous period for Georgia is the
two-year limitations period found in O.C.G.A. § 9-3-33.
Citing

cases

from

district

courts

outside

Id. at 419.

this

Circuit,

defendants alternatively suggest that the most closely analogous
state limitations period is found in Georgia’s whistleblower statute,
O.C.G.A. § 45-1-4.

(Defs.’ Br. [47] at 13.)

of that statute provides as follows:

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The relevant provision

[a] public employee who has been the object of retaliation
in violation of this Code section may institute a civil
action . . . within one year after discovering the
retaliation or within three years after the retaliation,
whichever is earlier.
O.C.G.A. § 45-1-4(e)(1).
Plaintiff concedes that the operative date of his alleged
retaliation is May 29, 2007.

(Aff. of Alvetta Thomas at ¶ 3,

attached to Defs.’ Mot. [47] as Ex. A.)

That is also the latest date

on which plaintiff could have discovered the retaliation.

Plaintiff

did not file suit in this case until June 29, 2009.

(Compl.,

attached to Notice of Removal [1] at Ex. 3.)

The suit is therefore

barred under either the one-year post-discovery limitations period of
§ 45-1-4 or the two-year limitations period of § 9-3-33.

See Stokes

v. Savannah State Univ., 291 Fed. App’x 931, 932 (11th Cir. 2008)
(affirming that a Georgia whistleblower plaintiff’s failure to file
her claim within one year of discovering retaliation warranted
dismissal under § 45-1-4(e)(1)).
Plaintiff does not dispute the above dates, or suggest an
alternative Georgia statute from which to determine the applicable
limitations period.

(Pl.’s Resp. Br. [51].)

Rather, plaintiff asks

the Court to apply the three-year limitations period that was added
to § 3730(h) in 2010 via the Dodd-Frank Wall Street Reform and
Consumer Protection Act.

(Id. at 15-16.)

The Dodd-Frank Act states

that its amendments are to “take effect 1 day after” the enactment of

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the Act, which occurred on July 21, 2010.

Pub. L. No. 111-203, § 4.

Several courts have declined to apply the amendments retroactively.
See Riddle v. Dyncorp Int’l Inc., 666 F.3d 940, 943 (5th Cir.
2012)(noting that retroactive application would revive a claim that
expired before the statute’s effective date) and United States ex
rel. Schweizer v. Océ N.V., 677 F.3d 1228, 1230 (D.C. Cir. 2012)
(with one irrelevant exception, none of the changes to §§ 3729 and
3730 made since 2006 have been applied retroactively).

Given the

language of the Dodd-Frank Act and its interpreting authority,
plaintiff offers no persuasive reason for applying its amendments,
including the statute of limitations period, to his § 3730(h) claim.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Motion
to Dismiss or, in the Alternative, for Summary Judgment [47].
Court directs the Clerk to DISMISS and CLOSE this action.

SO ORDERED, this 13th day of February, 2013.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE

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The