Kеith A. DOOKERAN, M.D. v. MERCY HOSPITAL OF PITTSBURGH; Robert Hilberg, M.D.; Thomas Mattei, M.D.; Charles Copeland, M.D.; Premela Rajakumar, Ph. D.; Susan Heck; Robert Martini; Pittsburgh Mercy Health System; Katherine Ebel; Ronald Boron, M.D. Catholic Healthcare East; Greater Pittsburgh Surgical Associates, Keith A. Dookeran, Aрpellant.
No. 01-1246.
United States Court of Appeals, Third Circuit.
Argued Nov. 1, 2001. Filed Feb. 13, 2002.
281 F.3d 105
Visco also asserts that the money from the district is not back pay, but rather represents a settlement in a tort-like situation. We agree with the Tax Court that there is nothing in the record to support this claim. However, even if this were an accurate description of the circumstances, settlement funds would still be included in Visco‘s taxable income for 1992. See Greer v. United States, 207 F.3d 322, 326 (6th Cir. 2000) (noting that settlement agreements constitute gross income unless expressly excepted) (citations omitted).
Finally, Visco alleges that the money from the district is not for back pay, but rather involved her retirement salary. There is nothing in the record to indicate that Visco‘s retirement fund is involved with these payments from the district, nor has she adequately explained her belief that retirement funds were involved in this transaction. The Tax Court correctly found this claim without merit.
As the Tax Court noted, it appears that Visco had genuine concerns about the nature of her taxable income for the year 1992, and refrained from filing her income tax return until the matter could be resolved. Nеvertheless, we agree with the Tax Court‘s conclusion that the payments of back pay, plus interest, were taxable income for 1992, and as such the deficiency determined by the IRS stands.4
We will affirm the decision of the Tax Court. Visco‘s motion for correction or modification of the record pursuant to F.R.A.P. 10(e) is denied.
Harlan S. Stone (Argued), Pittsburgh, PA, Counsel for Appellant.
Before SLOVITER, NYGAARD, and CUDAHY,* Circuit Judges.
OPINION OF THE COURT
NYGAARD, Circuit Judge.
The issue on appeal is whether the whistleblower provision of the False Claims Act,
I.
Dookeran was the Director of Clinical Oncology Trials and Research for Mercy Cancer Institute (MCI), which is part of The Mercy Hospital of Pittsburgh (Mercy). Dr. Howard Zaren, the Director of MCI, asked Dookeran to author a grant application for MCI to be designated as a clinical center for the National Surgical Adjuvant Breast and Bowel Project‘s (NSABP) study comparing the effectiveness of tamoxifen and roloxifene in reducing the incidence of breast cancer in post-menopausal women. This study is known as the STAR P-2 Study. Dookeran prepared the application for the STAR P-2 Study. Because of Mercy‘s alleged failure to commit appropriate resources to ensure the safety of patients, however, Dr. Zaren refused to submit the STAR P-2 application. Dookeran was directed by Dr. Thomas Mattei, Dr. Charles Copeland, and Ms. Susan Heck to submit the STAR P-2 application. Dookeran refused to submit the application for the same reаsons as Dr. Zaren and because Dr. Zaren‘s continued role as the Principal Investigator and Director of MCI was in doubt. While Dookeran was on vacation, Mercy representatives obtained the STAR P-2 application, reрlaced Dookeran‘s and Dr. Zaren‘s names with the name of Dr. Hilberg, and submitted the application. Upon his return, Dookeran raised charges of scientific misconduct, arguing that the application was false and misleading and thаt his intellectual property had been wrongfully appropriated. Appellees allegedly ignored these charges and proceeded to retaliate against Dookeran for his allegations.
II.
Dookeran alleges that he faced retaliatory action in violation of the whistleblower provision of the FCA,
Any 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 fоr, 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.
Id. We recently had the opportunity to articulate in Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176 (3d Cir. 2001), the elements of a cause of action under
A plaintiff asserting a cause of action under § 3730(h) must show (1) he engaged in protected conduct, (i.e., acts done in furtherance of an action under § 3730) and (2) that he was discriminated against because of his protected conduct. In proving that he was discriminated against becausе of conduct in furtherance of a False Claims Act suit, a plaintiff must show that (1) his employer had knowledge he was engaged in protected conduct; and (2) that his employer‘s retaliation was motivated, at least in part, by the employee‘s engaging in protected conduct. At that point, the burden shifts to the employer to prove the employee would have been terminated even if he had not engaged in the protected conduct.
We explained in Hutchins that for conduct to be protected, the language of
In addressing what activities constitute protected сonduct, the case law indicates that protected [conduct] requires a nexus with the in furtherance of prong of [a False Claims Act] action. This inquiry involves determining whether [plaintiff‘s] actions sufficiently furthered an action filed or to be filed under the [False Claims Act] and, thus, equate to protected [conduct].
Hutchins, 253 F.3d at 187 (internal citations omitted). Since conduct is protected if taken in furtherance of an action filed or to be filed, we have noted that employees need not actually file a False Claims Act suit to assert a cause of action under
This is where Dookeran‘s case fails. As the District Court explained, there was no possibility that Dookeran could have filed a viable FCA action because the statutory elements of
The False Claims Act provides:
Any person who—
(1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of thе Armed Forces of the United States a false or fraudulent claim for payment or approval; [or]
(2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent clаim paid or approved by the Government;
... is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person....
Claim is defined by the Act as:
any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government will reimburse such contractor, grantee, or other recipient for any por-
tion of the money or property which is requested or demanded.
Thus, for Dookeran to show that he was engaged in protected conduct, he must demonstrate that the application that he refused to sign was a claim, meaning that it was a request or demand ... for money or property. Appellees offer substantial evidence and argument that the application at issue was not a request or demand for money. Dookeran offers no evidence to the contrary.
Specifically, the apрlication was a request that Mercy be designated a clinical center for the NSABP STAR P-2 study. It was not a request or demand for federal funds. Even if the application had been accepted (which it was not), no money, either fedеral or private, would have been paid to Mercy. The application was simply the first step in a process that ultimately might have led, but in actuality did not lead, to the authorization of the payment of federal funds to Merсy. That does not make it a claim under the FCA. Moreover, the uncontradicted affidavit of Joan Goldberg, the Chief Executive Officer of the NSABP, states:
The STAR P-2 application submitted by Mercy Hospital was not itself an applicatiоn for a grant of federal funds. Rather, the application was a request by Mercy Hospital to become a designated center for a specific NSABP clinical trial for an approved protocol.
Clearly, thе application was not a request or demand ... for money or property as is required to be a claim under the FCA. Because the application was not a claim, there was no possibility that Dookeran could hаve filed a viable FCA action. Thus, his activity could not have been taken in furtherance of an FCA action, as is required to constitute protected activity under the whistleblower section of the FCA.
III.
In sum, and for the above reasons, we will affirm the summary judgment for the Appellees.