The opinion of the court was delivered by: Judge John E. Jones III
This matter is before the Court on the Motion to Dismiss (Doc. 39) of defendants Northeast Utilities ("NU"), NU Enterprises, Select Energy ("Select", and Northeast Generations Services ("NGS"), which seeks dismissal of plaintiff Michael Campion's claim under the anti-retaliation provision of the False Claims Act ("FCA") on the grounds that it is barred by the statute of limitations and that the complaint fails to state a claim upon which relief can be granted. For the reasons set forth below, the Court finds that Campion's claim is not time-barred, but that he has indeed failed to state a claim. Therefore, the motion will be granted, and this action will be dismissed.
The defendants move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss plaintiff Michael Campion's complaint as time-barred and for failure to state a claim upon which relief can be granted. In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "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, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965. A plaintiff must make "a 'showing' rather than a blanket assertion of an entitlement to relief", and "without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." Phillips, 515 F.3d at 232 (citing Twombly, 127 S.Ct. at 1965 n. 3). "[A] complaint must allege facts suggestive of [the proscribed] conduct, and the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 127 S.Ct. at 1965, 1969 n.8. Therefore, "stating a claim requires a complaint with enough factual matter (taken as true) to suggest the required element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965 n. 3).
On the other hand, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Id. at 231(citing Twombly, 127 S.Ct. 1964-65, 1969 n.8). Rule 8 "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234.
Campion filed his original complaint in this action under seal on December 1, 2004, asserting qui tam and retaliation claims under the FCA. (Doc. 1.) Service of the complaint was delayed for an extended period of time to give the United States the opportunity to decide whether to intervene in the action. On December 4, 2007, the United States filed a notice of election to decline intervention. (Doc. 25.) On December 10, 2007, the Court issued an order unsealing the complaint and directing its service on the defendants. (Doc. 26.) However, on March 6, 2008, Campion filed an amended complaint which withdrew his qui tam claims and proceeds with only his retaliation claim under 31 U.S.C. § 3730(h). (Doc. 27-3.) In support of that claim, Campion alleges the following.
From 1995 to March 2004, Campion was employed by various entities as a boiler operator and eventually lead heating and cooling systems mechanic at the Tobyhanna Army Depot ("TAD") in Tobyhanna, Pennsylvania. (Compl. ¶ 5.) Relevant for purposes of the present motion, from June 2002 to March 2004, Campion was employed by defendant NGS. (Id. at ¶¶ 5, 134.) NGS is a subsidiary of defendants NU and NU Enterprises. (Id. at ¶¶ 10, 12.)
In 1999, HEC, Inc., which was later known as defendant Select, and which is also a subsidiary of NU and NU Enterprises, entered into a contract with the federal government to construct, operate, and maintain a heating system and install a lighting system at TAD. (Id. at ¶ 8.) Select later entered into contracts with the federal government to operate and maintain the cooling system at TAD and replace steam traps throughout TAD. (Id. at ¶¶ 17, 18.) At various times, Select subcontracted some of its obligations under these contracts to other entities, including to NGS from June 2002 to June 2004. (Id. at ¶¶ 9, 11.)
Campion alleges numerous false claims by NGS and other subcontractors of Select in the performance of these contracts, including the hiring of unqualified employees, unperformed work, double billing, falsified time sheets, and theft of equipment. (See id. at ¶¶ 23-132.) Campion alleges that he "complained, and tried to complain, about many of the allegations discussed above." (Id. at ¶ 135.) Campion "tried to meet" with NGS and Select supervisor Robert Gunderson; however, Gunderson informed fellow supervisor William Cannon, one of the main culprits of the alleged misconduct, of Campion's phone calls. (Id.) Cannon then "berated and mistreated" Campion because Campion "had gone over his head." (Id. at ¶ 136.) Nevertheless, Campion eventually met with Gunderson and notified him "of some of the allegations above, including but not limited to falsification of time sheets." (Id. at ¶ 138.)
Campion alleges that as a result of these complaints, he "was eventually demoted to a boiler operator with no management authority." (Id. at ¶ 139.) Campion also alleges that as a result of these complaints, Gunderson stated publicly that Campion "either had a drug or alcohol problem, or suffered from a learning disability", and that he "was physically assaulted at TAD by NGS employee Chuck Hazelton." (Id. at ¶¶ 140-41.)
Campion states that as a result of the assault and demotion, he hired an attorney who "reported improprieties at TAD to NU" and requested an investigation into Campion's treatment by Cannon, NGS, and Select. (Id. at ¶¶ 142-43.) NU reported that it was investigating the matter, but never told Campion or his attorney the results of the investigation. (Id. at ¶ 144.) Campion states that shortly thereafter, he "was accused of removing a generator from the work site" even though he had previously been authorized to remove it for his personal use and even though it was common practice at TAD to permit employees to remove equipment for personal use. (Id. at ¶ 145.) Campion further states that, during leave under the Family Medical Leave Act to care for his sick wife, he was terminated, the only reason given being "just cause." (Id. at ¶ 146.) Campion alleges that the true reason for his termination was "his actions in revealing the frauds that were occurring at TAD." (Id. at ¶ 147.) The sole count of Campion's complaint asserts that the discrimination, demotion, and eventual termination he sustained violated the anti-retaliation provision of the FCA, 31 U.S.C. § 3730(h).
The defendants move to dismiss Campion's complaint on the grounds that his claim is time-barred and that he has failed to state a claim upon which relief can be granted. Both grounds are discussed in turn below.
The defendants first argue that Campion's complaint must be dismissed as time-barred. Campion's sole claim is asserted under the anti-retaliation provision of the FCA, 31 U.S.C. § 3730(h). In Graham County Soil and Water Conservation District v. Wilson, 545 U.S. 409, 422 (2005), the Supreme Court held that the FCA does not provide an express statute of limitations for a retaliation claims under § 3730(h), and therefore, courts must "borrow" the most closely analogous state limitations period.*fn1 The question thus becomes what is the most closely analogous Pennsylvania statute of limitations.
The defendants argue that the most closely analogous state statute of limitations is that found in Pennsylvania's Whistleblower Law, which provides that "[a] person who alleges a violation of this act may bring a civil action ... within 180 days after the occurrence of the alleged violation." 43 Pa. C.S. § 1424(a). Despite the use of the permissive "may," the Whistleblower Law's "180-day time limit is mandatory, and courts have no discretion to extend it." O'Rourke v. Pa. Dep't of Corr., 730 A.2d 1039, 1042 (Pa. Commw. Ct. 1999) (citing Perry v. Tioga County, 649 A.2d 186, 188 (Pa. Commw. Ct. 1994), appeal denied, 655 A.2d 995 (Pa. 1995)). Campion was terminated in March 2004, and therefore, if the Whistleblower Law's limitations period applies, his complaint must have been filed, at the ...