ALI EL-KHALIL, DPM v. OAKWOOD HEALTHCARE, INC., dba Beaumont Hospital – Taylor
No. 21-2669
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 10, 2022
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 22a0005p.06. Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:19-cv-12822—Laurie J. Michelson, District Judge.
Before: COLE, LARSEN, and MURPHY, Circuit Judges.
COUNSEL
ON BRIEF: Kassem M. Dakhlallah, HAMMOUD DAKHLALLAH & ASSOCIATES,
OPINION
LARSEN, Circuit Judge. Decision or discovery? This case is about which of those events triggers the statute of limitations for a retaliation claim under the False Claims Act (FCA),
I.
Oakwood operates several hospitals in the Detroit metropolitan area, including one in Taylor, Michigan. Oakwood physicians must regularly reapply for staff privileges, which Oakwood grants for up to two years. El-Khalil, a podiatrist, joined the Oakwood Taylor medical staff in 2008. During his time there, El-Khalil alleges that he saw Oakwood employees submit fraudulent Medicare claims, which he reported to the federal government.
In 2015, Oakwood Taylor‘s Medical Executive Committee (MEC) rejected El-Khalil‘s application to renew his staff privileges. El-Khalil alleges that the MEC did so in retaliation for his whistleblowing. Pursuant to Oakwood‘s Medical Staff Bylaws, El-Khalil commenced a series of administrative appeals. Eventually, on September 22, 2016, El-Khalil found himself before Oakwood‘s Joint Conference Committee (JCC), which had the authority to issue a final, non-appealable decision. The JCC received oral and written arguments from the parties. El-Khalil then left for the evening. The JCC voted that night to affirm the denial of El-Khalil‘s staff privileges. According to Dr. David Walters, a member of the JCC who was present for the vote, the decision was “final.”
On September 27, 2016, the JCC sent El-Khalil written notice of its decision. The JCC stated that it had convened on September 22, heard oral argument, reviewed written statements and El-Khalil‘s record, and “agreed that Dr. El-Khalil had not met” his burden of proof on appeal, so it had decided to affirm the MEC‘s decision.
Three years later, on September 27, 2019, El-Khalil sued Oakwood for violating the whistleblower provision of the FCA,
The district court agreed that El-Khalil‘s claim was time barred and granted summary judgment to Oakwood. El-Khalil appealed.
II.
We review the district court‘s summary judgment decision de novo. Franklin Am. Mortg. Co. v. Univ. Nat‘l Bank of Lawrence, 910 F.3d 270, 275 (6th Cir. 2018). Summary judgment is warranted “if the movant shows that there is no genuine
The sole question before us is whether the limitations period commenced on September 22, when the JCC voted to affirm the decision not to renew El-Khalil‘s staff privileges, or on September 27, when the JCC notified El-Khalil of that decision in a written letter. If the former is true, then the district court properly held that El-Khalil‘s claim is time barred; if the latter, then his claim is timely. Fortunately, the statutory text affords a ready answer.
The FCA provides a cause of action for any individual who is retaliated against by his employer because of his assistance with an FCA investigation or proceeding.
The record is clear that “the retaliation occurred” on September 22 when the JCC voted to affirm the denial of El-Khalil‘s staff privileges. The JCC‘s letter to El-Khalil states that it “agreed” after deliberation to affirm the MEC‘s decision. And Walters testified without contradiction that the JCC “deliberated and voted to affirm the MEC‘s decision that night.” El-Khalil himself concedes that the JCC made “an oral decision” that night. He contends that the decision was not “final” until the JCC delivered its written letter, but that position lacks any evidentiary support. According to Walters, “the decision was final” after the JCC members “formally” voted at the meeting. The JCC‘s letter didn‘t change that. In accordance with Oakwood‘s Bylaws, the letter merely “communicated” “[t]he action of the [JCC]” to El-Khalil; it memorialized an already final decision.
El-Khalil argues that he did not have a complete cause of action until September 27 because he did not have “notice, actual or constructive, of the JCC‘s decision” until that date. But no notice requirement is found in the text of
In effect, El-Khalil asks us to hold that the limitations period for an FCA retaliation claim does not run until the plaintiff knows of the facts giving rise to a claim. That approach, however, flatly contradicts the statute‘s text, which starts the clock when the “retaliation occurred,” not when it was discovered.
El-Khalil‘s reliance on our decision in Johnson v. Memphis Light Gas & Water Division, 777 F.3d 838 (6th Cir. 2015), is misplaced. Johnson held that “a § 1983 federal civil rights claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of his action.” Id. at 843 (quotation marks omitted). But see Dibrell v. City of Knoxville, 984 F.3d 1156, 1162 (6th Cir. 2021) (suggesting tension between Johnson and several Supreme Court decisions). But using the discovery rule in the § 1983 context—a cause of action that takes its statute of limitations from state law rather than the U.S. Code, Johnson, 777 F.3d at 843—says nothing about the meaning of
In the end, El-Khalil resorts to “public policy” reasons to urge us to adopt a discovery rule. If his retaliation claim accrued when the JCC made its oral decision without his knowledge, then El-Khalil worries that Oakwood could have delayed giving him written notice of its decision for three years, thus depriving him of an opportunity to sue entirely. That, of course, is not what happened here. If it were, equitable doctrines might have been available to halt the ticking of the limitations clock. See Irwin v. Dep‘t of Veterans Affs., 498 U.S. 89, 95 (1990) (equitable tolling); TRW Inc., 534 U.S. at 27 (tolling for fraud or concealment). But since El-Khalil has not raised any of these doctrines, we do not consider whether they are consistent with
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Because the three-year limitations period commenced on September 22, 2016, and El-Khalil filed suit on September 27, 2019, his claim is time barred. We AFFIRM.