Summary
denying a request to treat a Rule 12(b) motion as a motion for summary judgment when only limited discovery had occurred
Summary of this case from O'Neal v. CampbellOpinion
Civil Action No: SA-04-CA-1025-XR.
April 7, 2005
ORDER
On this date the Court considered Defendants' motion to dismiss and motion for judgment on the pleadings. Plaintiff asserts that his employment was terminated in retaliation for complaining of fraud regarding the expenditure of federal monies, and in retaliation of the exercise of his First Amendment rights. Defendants move for dismissal on immunity and limitations grounds. The Court GRANTS in part and DENIES in part Defendants' motion to dismiss (docket no. 9) and GRANTS Defendants' motion for judgment on the pleadings (docket no. 21).
I. Dismissal Standard
Defendants have filed separately a motion to dismiss, pursuant to Rules 12(b)(1) and 12(b)(6), and a motion for judgment on the pleadings, pursuant to Rule 12(c). In considering a motion to dismiss, the Court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The issue is not whether the plaintiff will prevail but whether the plaintiff is entitled to pursue his complaint and offer evidence in support of his claims. Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996). The Court may not look beyond the pleadings in ruling on the motion. Baker, 75 F.3d at 196. Motions to dismiss are disfavored and are rarely granted. Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). Dismissal should not be granted "`unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle his claim to relief.'" Id. at 164 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). However, the Court does not accept conclusory allegations or unwarranted deductions of fact as true. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). The legal standards for granting or denying Rule 12(c) and Rule 12(b)(6) motions are identical. GEOFFREY C. HAZARD, JR., COLIN C. TAIT, WILLIAM A. FLETCHER, PLEADING AND PROCEDURE 1001 (1999).
Motions filed under Rule 12(b)(1) challenge the subject matter jurisdiction of the Court. Lack of subject matter jurisdiction maybe found in the complaint alone, the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The burden of proof for a Rule 12(b)(1) motion is on the party asserting jurisdiction. Id.
When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) motion before addressing any motion as to the merits. Id. In examining a Rule 12(b)(1) motion, the Court may consider matters of fact which may be in dispute. Id. "Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief." Id. (citing Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998)).
II. Factual and Procedural Background
According Plaintiff's First Amended Complaint, Plaintiff worked for Defendant University of Texas at San Antonio ("UTSA") from 1986 until his termination on November 11, 2002. At the time of his termination, Plaintiff worked as a Senior Development Specialist at the UTSA Minority Business Development Center ("UTSA-MBDC"), one of ten centers and programs comprising the UTSA Institute for Economic Development. UTSA-MBDC was created and funded by a federal grant from the Minority Business Development Agency, a subdivision of the United States Department of Commerce. Plaintiff's wages and benefits were paid by these federal funds.In October 2002, Defendant Parks informed the employees of UTSA-MBDC that the program's funds were insufficient to cover operations, salaries, and benefits. Plaintiff asserts that Parks informed him that he had a plan to avoid any budgetary shortfalls by paying employees' (including Plaintiff's) salaries out of federal grant monies allocated to the Small Business Development Center ("UTSA-SBDC") by the United States Small Business Administration because UTSA-SBDC had excess funds. Plaintiff alleges that he objected to this "plan" and informed Parks that he believed such action would be illegal and amounted to fraud against the United States. According to Plaintiff, Parks responded by saying he was attempting to save the employees' jobs and that only the "higher-ups" could get in trouble.
After Plaintiff initially objected to what he had been told by Parks, Parker again approached Plaintiff and requested that he accept the transfer to UTSA-SBDC. Plaintiff again objected and asked that Parks place the request in writing. Plaintiff stated that he would review the memo with legal counsel and that he continued to feel that Parks was acting illegally. According to Plaintiff, at this time he "was taking steps in furtherance of reporting to the appropriate law enforcement officials the Defendants' illegal shifting of federal funds and fraud being perpetrated upon the United States Government." Plaintiff alleges that he contacted the United States Small Business Administration or the United States Department of Commerce to report the fraud.
Parks requested Plaintiff's assent to the transfer to UTSA-SBDC one more time on November 11, 2002. Plaintiff again objected and questioned the legality of Parks's actions. When Plaintiff again objected, Parks handed Plaintiff a letter terminating his employment. Plaintiff then went and spoke with Dr. Ricardo Romo, President of UTSA, and informed him of what had happened. Plaintiff asserts that he spoke with Dr. Romo and with a Dan Larson, but to no resolution.
Plaintiff filed his Original Complaint in this Court on November 10, 2004. Plaintiff asserted a claim for retaliatory termination under the False Claims Act, 31 U.S.C. § 3730(h), and a claim for violation of his First Amendment free speech rights under 42 U.S.C. § 1983, against both UTSA and Parks. Defendants moved for dismissal on February 25, 2005. Plaintiff filed an amended complaint on March 1, 2005, adding a claim under the Texas Whistleblower Act, TEX. GOVT. CODE § 554.001 et seq. Defendants filed their Answer on March 14, 2005 and Motion for Judgment on the Pleadings on March 17, 2005. In the motion to dismiss, Defendants assert that immunity bars the False Claims Act claim and that the statute of limitations bars the § 1983 claim. In the motion for judgment on the pleadings, Defendants assert that the Texas Whistleblower Act claim is also barred by limitations.
III. Analysis
Defendants have moved for dismissal on both immunity and limitations grounds. Rule 12(b)(1) permits the Court to dismiss a claim for lack of subject matter jurisdiction, and permits the Court to resolve disputed factual determinations. Ramming, 281 F.3d at 161. In contrast, Rule 12(b)(6) requires the Court to take all Plaintiff's well-pleaded facts as true. Baker, 75 F.3d at 196. The motion to dismiss does not clearly distinguish under which dismissal rule Defendants rely upon as to each ground for dismissal. However, as limitations is properly considered under the 12(b)(6) standard rather than the 12(b)(1) standard, see Espinoza v. Missouri Pacific R. Co., 754 F.2d 1247, 1248 n. 1 (5th Cir. 1985), and immunity is generally viewed as a subject matter jurisdiction consideration, see Warnock v. Pecos County, Texas, 88 F.3d 341, 343 (5th Cir. 1996), the Court must consider the Eleventh Amendment immunity issue under Rule 12(b)(1) and the limitations issue under Rule 12(b)(6). A wrinkle is added to the Court's determination of the immunity issue, however, because the statutory determination of whether the State is actually subjected to suit should be considered prior to the Eleventh Amendment immunity inquiry. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 779-80 (2000). Should the statute fail to authorize suit against the State, the suit should be dismissed under Rule 12(b)(6) for failure to state a claim, rather than Rule 12(b)(1). See United States ex rel. Adrian v. Regents of University of California, 363 F.3d 398, 401 (5th Cir. 2004) (citing Stevens, 529 U.S. at 787-88).
A. False Claims Act Claim Against UTSA
31 U.S.C. § 3730(b)(1) permits private citizens to sue, on behalf of the United States, "any person," who has violated the False Claims Act. A suit on behalf of the United States is referred to as a qui tam action. Stevens, 529 U.S. at 768. 31 U.S.C. § 3730(h) allows a private citizen to bring suit on his own behalf for retaliation on the part his " employer" "because of lawful acts done by the employee . . . in furtherance of [a qui tam action], including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed." (emphasis added). A claim under § 3730(h) is unique to the private citizen and cannot be brought as a qui tam action on behalf of the United States. United States ex rel. Foulds v. Texas Tech Univ., 171 F.3d 279, 295 (5th Cir. 1999) ("[I]ndeed, only a qui tam plaintiff possess the right to bring such a claim [under § 3730(h)].").
31 U.S.C. § 3729.
In its entirety, § 3730(h) provides,
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 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. Such relief shall include reinstatement with the same seniority status such employee would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys' fees. An employee may bring an action in the appropriate district court of the United States for the relief provided in this subsection.31 U.S.C. § 3730(h).
The Supreme Court has ruled that § 3730(b) does not authorize qui tam suits against a State. Stevens, 529 U.S. at 787-88 (analyzing the statutory determination and refusing to reach the Eleventh Amendment immunity issue). The Court read the phrase "any person" as used in § 3729 as to not include States for purposes of qui tam liability. Id. at 787. As the plaintiff/relator in Stevens did not sue under the anti-retaliation section of § 3730(h), the Supreme Court has not considered whether the term "employer" in that section is broad enough to encompass suits against States as employers. The Fifth Circuit has ruled that suits against States under § 3730(h) are barred under the Eleventh Amendment. Foulds, 171 F.3d at 295. However, that case was decided before the Supreme Court's decision in Stevens, which requires courts to determine whether a statute authorizes suits against a State before determining whether such suits are barred under the Eleventh Amendment. Stevens, 529 U.S. at 779-80 (overruling Foulds insofar as it directs inquiry into the Eleventh Amendment issue before the statutory issue).
But see United States ex rel Diop v. Wayne County Cmty. Coll. Dist., 242 F. Supp.2d 497, 526-28 (E.D. Mich. 2003) (examining whether Eleventh Amendment bars suit against a community college without first determining whether § 3730(h) applies to State employers); Orell v. UMass Mem'l Med. Ctr., Inc., 203 F. Supp.2d 52, 61, 66 (D. Mass. 2002) (same as to state hospital).
Section 3730(h) provides a private citizen with a cause of action for retaliation against "his or her employer." A statue permits suit against States "only by clearly expressing such an intent." Stevens, 529 U.S. at 780 (citing Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73-78 (2000); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55-57 (1996)). Such a rule of clear intent has long been understood as a maxim of sovereign immunity. See United States v. Stevenson, 215 U.S. 190, 197 (1909) ("If such prohibition is intended to reach the government in the use of known rights and remedies, the language must be clear and specific to that effect."); Dollar Sav. Bank v. United States, 86 U.S. (19 Wall.) 227, 239 (1873) ("The most general words that can be devised (for example, any person or persons, bodies politic or corporate) affect not him (the sovereign) in the least, if they may tend to restrain or diminish any of his rights or interests.").
In determining whether the term "person" in § 3729 applies to States, the Supreme Court looked to certain features of the statute to gain insight. First, the Court looked to the understanding of the term "person" when applied to the sovereign. The term "person" has a presumptive interpretation that does not include the sovereign. Stevens, 529 U.S. at 780 (citing United States v. Cooper Corp., 312 U.S. 600, 604 (1941); United States v. Mine Workers, 330 U.S. 258, 275 (1947)). The term "person" also is without a definitional provision in § 3729. Another section of the False Claims Act, 31 U.S.C. § 3733(1)(4) contains a definition of "person" as "including any State or political subdivision of a State." But the Court noted that this definitional provision applied only to § 3733 (authorizing the Attorney General to issue civil investigative demands on "any person"), and had no application to § 3730. Id. at 783-84 n. 13. The Court also noted that the False Claims Act imposes damages that are essentially punitive in nature, such as treble damages and a civil penalty, see 31 U.S.C. § 3729(a), which are presumptively unavailable against governmental entities. Id. at 785 (citing Newport v. Fact Concerts, Inc., 453 U.S. 247, 262-63 (1981)). Finally, the Court noted that the administrative statutory scheme for false claims, the Program Fraud Civil Remedies Act of 1986, contains a definition of "persons" subject to liability, and does not include States in that definition. Id. at 786.
Many of the same considerations for determining that the term "person," on its own, does not apply to States apply just as forcefully to the term "employer." Section 3730 does not have a definitional provision. Unlike for the term "person," there is no provision in any statute within the False Claims Act that defines the term "employer." Nor is there any suggestion that the term "employer" has ever been considered to presumptively include States. Other statutes applicable to "employers" have been amended by Congress to specifically include States as covered entities under that term. The Fair Labor Standards Act ("FLSA") permits employees to maintain actions for backpay "against any employer (including a public agency) in any Federal or State court." 29 U.S.C. § 216(b). FLSA also includes a definitional provision expressly applying the term "employer" to "public agenc[ies]." 29 U.S.C. § 203(d). The Family and Medical Leave Act ("FMLA") and the Age Discrimination in Employment Act ("ADEA") also define "employer" to include any "public agency." 29 U.S.C. § 2617(a)(2) (FMLA) ("An action . . . may be maintained against any employer (including a public agency) in any Federal or State court. . . ."); 29 U.S.C. § 2611(4)(A)(iii) (FMLA) ("The term `employer' . . . includes any `public agency,' as defined in section 203(x) of this title. . . ."); 29 U.S.C. § 630(b) (ADEA) ("The term `employer' means . . . a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State. . . ."). In addition, Title VII also specifically applies to State and local governments, doing so through a combination of the terms "person" and "employer." 42 U.S.C. § 2000e(a) ("The term `person' includes one or more individuals, governmental agencies, political subdivisions. . . ."); id. § 2000e(b) ("The term `employer' means a person engaged in an industry affecting commerce . . . but such term does not include (1) the United States . . . or (2) a bona fide private membership club. . . ."). Except for the FMLA (which was originally passed in 1993), each of these statutes was amended after enactment to make them applicable to the States. Fair Labor Standards Amendments of 1974, 88 Stat. 61 (amending FLSA); id., 88 Stat. 74 (amending ADEA); Equal Employment Opportunity Act of 1972, § 2(1), 86 Stat. 103 (amending Title VII). The Supreme Court has ruled that each of these statutes satisfy the "clear statement" test, while emphasizing the statutory language itself. Nevada Dep't of Human Res. v. Hibbs, 530 U.S. 721, 726 (2003) (FMLA) ; Kimel v. Florida Bd. of Regents, 528 U.S. 62, 74 (2000) (ADEA FLSA); Fitzpatrick v. Bitzer, 427 U.S. 445, 452 (1976) (Title VII). The fact that each of these statutes contain specific language applicable to the States suggests that the term "employer" by itself is not sufficient to permit suit against the States.
"Public agency" is defined by the FLSA to "mean the Government of the United States; the government of a State or political subdivision therefor; any agency of the United States . . ., a State, or a political subdivision of a State. . . ." 29 U.S.C. § 203(x).
The other considerations of the Supreme Court in Stevens do not weigh in favor in finding a clear intention to permit suits against States under § 3730(h). The remedial provisions of § 3730(h) are less "punitive" than the provisions of § 3729 examined in Stevens, but can be viewed as punitive nonetheless. Compare 31 U.S.C. § 3279(a) (providing for treble damages and a civil penalty of up to $10,000 per claim) with 31 U.S.C. § 3730(h) (providing for double the back pay, interest on the back pay, and compensation for any special damages sustained). Decisions of the Supreme Court holding the double damages provisions of other sections in previous versions of the False Claims Act have less applicability here, as those cases did not deal with suits against a State. See United States v. Bornstein, 423 U.S. 303, 315 (1976); United States ex rel. Marcus v. Hess, 317 U.S. 537, 550 (1943). Nor does the legislative history of § 3730(h) have any impact on the determination of whether the statute itself permits suits against the States. The Senate Report accompanying the False Claims Amendments Act of 1986, which added § 3730(h), clearly expresses an intention to apply the term "employer" to all private and public entities. S. Rep. 99-435, Pub.L. 99-562, reprinted at 1986 U.S.C.C.A.N. 5266, 5300 (July 28, 1986) ("[T]he definition of `employee' and `employer should be all-inclusive. . . . "`[E]mployers' should include public as well as private sector entities."). Evidence of legislative intent does not, however, override the fact that a statute must, through its language, permit suits against States. "If Congress intends to alter the `usual constitutional balance between States and the Federal Government,' it must make its intention to do so unmistakably clear in the language of the statute." Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)).
There is no "clear statement" subjecting States to suit under § 3730(h). Stevens, 529 U.S. at 780; id. at 788-89 (Ginsburg, J., concurring); Quern v. Jordan, 440 U.S. 332, 345 (1979) (holding 42 U.S.C. § 1983 does not "explicitly and by clear language" subject States to suit). Accordingly, States are not subject to suit under the statute and Plaintiff has not stated a claim under the False Claims Act against UTSA under which relief can be granted. Plaintiff's claim under § 3730(h) against UTSA is dismissed pursuant to FED. R. CIV. P. 12(b)(6).
UTSA is considered an arm of the State of Texas. TEX. EDUC. CODE § 61.003. In his Response to Defendants' Motion to Dismiss, Plaintiff asserts that Plaintiff's employer was actually UTSA-MBDC. He argues that UTSA-MBDC is actually a "quasi-governmental or, perhaps even a private entity," more analogous to a municipality or private contractor. While this argument certainly shows creativity on the part of Plaintiff, the problem with the argument is that Plaintiff has sued UTSA itself, which clearly is an arm of the State of Texas.
At this point, the Court finds it appropriate to express its conclusion that, even if § 3730(h) applied to the States, Foulds would clearly be binding precedent establishing that Plaintiff's claim was barred by the Eleventh Amendment. United States ex rel. Foulds v. Texas Tech Univ., 171 F.3d 279, 294-95 (5th Cir. 1999).
B. False Claims Act Claim Against Parks
Parks seeks dismissal of the suit against him for violating § 3730(h). Plaintiff asserts that Parks retaliated against him for objecting to Parks's intended budget crisis solution. Plaintiff does not distinguish between UTSA and Parks in his claim under § 3730(h), nor does he distinguish between his claims against Parks in either official or individual capacity. The Court construes Plaintiff's First Amended Complaint as alleging claims under § 3730(h) against Parks both in his official and individual capacity. Defendants argue that Parks is entitled to qualified immunity under Plaintiff's § 1983 claim, but make no arguments as to any immunity as to Parks on Plaintiff's § 3730(h) claim. As Defendants have requested the entirety of Plaintiff's claims be dismissed, however, the Court construes the motion as requesting dismissal of Plaintiff's § 3730(h) claim against Parks, both in his official and individual capacities.
Suits against state officials in their official capacity are treated as suits against the State itself. "The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter." Hawaii v. Gordon, 373 U.S. 57, 58 (1963) (per curiam). As the statutory language of § 3730(h) does not permit suit against States, Plaintiff's claim under the statute against Parks in his official capacity is likewise barred.
Plaintiff's suit under § 3730(h) against Parks in his individual capacity is not barred. Though the language of § 3730(h) applies only to suits against "employers," the Fifth Circuit has, at least implicitly, accepted individual liability for government individuals. In Samuel v. Holmes, the Fifth Circuit held that a school superintendent and five school district board members were not entitled to summary judgment on immunity grounds in a suit against them under § 3730(h). 138 F.3d 173, 178 (5th Cir. 1998). In fact, the Fifth Circuit held that qualified immunity is categorically denied to government officials under the False Claims Act. Id. ("Granting government official the protection of qualified immunity would hardly spur reluctant employees to step forward."). It is not entirely clear what damages would be available to Plaintiff against Parks in his individual capacity under § 3730(h) to make Plaintiff "whole," but that determination is best left for another time. At this juncture, it is sufficient to hold that Plaintiff has sufficiently stated a claim against Parks in his individual capacity for retaliation under § 3730(h).
This is not to say that a plaintiff's burden to establish individual liability under § 3730(h) is somehow different than establishing liability against a (non-State) employer. Plaintiff must still establish the elements of claim under § 3730(h) against Parks. See Schuhardt v. Washington Univ., 390 F.3d 563, 566 (8th Cir. 2004); Robertson v. Bell Helicopter Textron Inc., 32 F.3d 948, 951 (5th Cir. 1992).
C. Section 1983 Claims Against UTSA and Parks
Defendants also move for dismissal of Plaintiff's claims under § 1983. Defendants rely upon immunity and the statute of limitations to support their motion. Questions of jurisdiction should ordinarily be given priority and determined before others, as if there is no jurisdiction there is no authority to do anything else, including dismissal of an action on limitations grounds. Stevens, 529 U.S. at 778. Section 1983 claims for monetary damages are not cognizable against unconsenting States. Quern, 440 U.S. at 341. Accordingly, Plaintiff has not stated a claim under § 1983 for which relief can be granted against UTSA. As to Plaintiff's § 1983 claim against Parks in his official capacity, Plaintiff has set forth a valid claim for injunctive relief, but not monetary relief. See Ex parte Young, 209 U.S. 123 (1909) (permitting suits against state officials to obtain prospective relief). That injunctive relief would be limited to reinstatement.
Parks raises the issue of qualified immunity under § 1983. Parks relies solely on matters outside the pleadings to attempt to refute Plaintiff's allegations. Plaintiff's allegations are sufficient to allege a First Amendment retaliation claim and withstand a motion to dismiss on qualified immunity grounds. See Martinez v. Tex. Dep't of Criminal Justice, 300 F.3d 567 (5th Cir. 2003) (noting that the elements to prove a First Amendment retaliation claim are: (1) adverse employment action; (2) speech involving a public concern; (3) interest in commenting outweighs interest in efficiency; and (4) speech motivated the adverse employment action). Plaintiff sufficiently alleges speech involving an important public concern (fraud as to federal monies) that motivated his firing. Parks is not entitled to qualified immunity on a motion to dismiss.
The Court will not treat the motion to dismiss on qualified immunity grounds as a motion for summary judgment. Accordingly, the Court has excluded all matters outside the pleadings in coming to a conclusion. Nor will the Court order discovery to be limited to the issue of immunity. Plaintiff's allegations are sufficient to allege a cause of action for First Amendment retaliation. After adequate time for discovery in the case as a whole, Parks may move for summary judgment as to the issue of qualified immunity.
In support of the limitations ground for dismissal, Defendants have attached near to 100 combined documents to their Motion to Dismiss and Reply to Plaintiff's Response. Consideration of these documents by the Court is barred under Rule 12(b)(6). Unless the Court decides to convert a Rule 12(b)(6) motion to dismiss to a motion for summary judgment, matters outside the pleadings must be excluded. FED. R. CIV. P. 12. If matters outside the pleadings are considered by the Court, "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Id.; Partridge v. Two Unknown Police Officers of the City of Houston, Texas, 791 F.2d 1182, 1189 (5th Cir. 1986) (noting that where a district court considers matters outside the pleadings, "the motion to dismiss should be treated as a motion for summary judgment, and the proceedings must comport with the hearing and notice requirements of FED. R. CIV. P. 56(c)").
Defendants, in their Reply, have asked the Court to treat their motion to dismiss as to Plaintiff's § 1983 claim as a motion for summary judgment. Before a Rule 12(b)(6) motion may be converted to a Rule 56 motion, the Court must be satisfied that the nonmoving party "has . . . had the opportunity to discover information that is essential to [its] opposition." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5 (1986). In Plaintiff's Response to Defendants' Motion to Dismiss, filed March 7, 2005, Plaintiff stated that, as of that date, the only discovery that had been conducted was an exchange of initial disclosures. The Court is not satisfied that there has been a reasonable opportunity for discovery at this time. As Defendants have requested an expedited ruling on the motion to dismiss, it would do no good to either party to hold a portion of the motion in abeyance until discovery sufficient to meet the summary judgment standard had been conducted on the issue of limitations. Therefore the Court has excluded all matters outside the pleading, including all documents submitted by Defendants, in determining the issue of the applicability of the statute of limitations to Plaintiff's § 1983 claim.
A claim under § 1983 is subject to a statute of limitations of two years in Texas. Kline v.North Texas State Univ., 782 F.2d 1229, 1233 (5th Cir. 1986). The "proper focus" for determining the starting date for limitations purposes of a § 1983 claim "is on the time of the discriminatory act, not the point at which the consequences of the act become painful." Chardin v. Fernandez, 454 U.S. 6, 8 (1981) (per curiam) (citing Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980)). "The filing limitations period . . . commence[s] . . . at the time the . . . decision was made and communicated to [Plaintiff]. That is so even though one of the effects of the [decision] . . . did not occur until later." Ricks, 449 U.S. at 258. Generally, the date an employee is informed of his termination, not the actual date of termination, is the date on which the limitations period begins. According to Plaintiff's allegations, his firing, which occurred on November 11, 2002, came as a surprise to him. Nothing on the face of the pleadings suggests differently. Taking Plaintiff's allegations as true, the Court finds that, at this point, limitations does not bar Plaintiff's suit. Defendants may move for summary judgment on limitations grounds at a later point in time once there has been adequate time for discovery. See Synergetics, Inc. v. Hurst, 333 F. Supp.2d 841, 845 (E.D. Mo. 2004).
D. Texas Whistleblower Act Claim
Plaintiff added a claim under the Texas Whistleblower Act, TEX. GOVT. CODE § 554.001 et seq., in the First Amended Complaint. Defendants have moved for judgment on the pleadings, pursuant to Rule 12(c), on this claim. Defendants claim that there is a 90 day statute of limitations and that suit was not instituted within that time period. Plaintiff has not responded to Defendants' motion for judgment on the pleadings. Under Local Rule CV-7(d), where a motion is opposed, the opposing party must send in a response within eleven (11) days. Should no response be filed in this time period, the Court may grant the motion as unopposed. Id. In addition, Defendants' argument is correct in that suit under the Texas Whistleblower Act by a public employee must be filed within 90 days of the date of the alleged violation, or the date the alleged violation was discovered by the employee through reasonable diligence. TEX. GOVT. CODE § 554.005. Plaintiff's claim under the Texas Whistleblower Act was filed March 1, 2005. No acts to which Plaintiff's claim would apply are alleged to have taken place in the 90 day period prior to March 1, 2005. In fact, Plaintiff complains only of being fired, which occurred November 11, 2002, nearly 28 months before the date the claim was filed. Plaintiff's claim under the Texas Whistleblower Act is time barred and therefore dismissed.
IV. Conclusion
Plaintiff has sued his former employer, UTSA, and his former supervisor, Parks, under the anti-retaliation provision of the False Claims Act, 31 U.S.C. § 3730(h), under 42 U.S.C. § 1983 for violations of his First Amendment rights, and under the Texas Whistleblower Act, TEX.GOVT. CODE § 554.001 et seq. Plaintiff asserts that he was fired for complaining of illegal fraudulent activity involving federal programs and monies administered by UTSA-Minority Business Development Center, where Plaintiff was employed. The Court finds that § 3730(h) does not provide a "clear statement" permitting suits against States when it uses the term "employer" without definition. Generally, employment statutes have spoken directly to the issue of whether States are subject to suit. There is no such statutory language in the False Claims Act. Accordingly, Plaintiff's claims under § 3730(h) against UTSA and against Parks in his official capacity are DISMISSED. Plaintiff has sufficiently stated a claim under § 3730(h) against Parks in his individual capacity, however. In addition, qualified immunity is not an available defense under § 3730(h).
As to the § 1983 claim, the claim for First Amendment retaliation against UTSA is barred as suit against unconsenting States is not permitted under the statutory language. Plaintiff has sufficiently alleged a claim for First Amendment retaliation against Parks, both in his official and individual capacity. The claim against Parks in his official capacity is limited to a claim for prospective relief — reinstatement. The Court denies the claim of Parks as to qualified immunity on the claim against him in his individual capacity, as Plaintiff's allegations are sufficient to defeat immunity at this stage. Defendants' arguments that Plaintiff's § 1983 claims are barred by limitations are rejected, as Plaintiff's allegations sufficiently bring the date on which the limitations period began within the two-year bar. The limitations argument as to Plaintiff's Texas Whistleblower Act claim, however, is valid, as Plaintiff did not file suit within the 90 day time period.
Defendants' motion to dismiss is GRANTED in part and DENIED in part (docket no. 9). Defendant UTSA is DISMISSED from this cause of action, as suit against an unconsenting State is not permitted by either the False Claims Act, § 3730(h), or § 1983. Plaintiff's claim for monetary relief under § 3730(h) against Defendant Parks in his official capacity is similarly DISMISSED. The remaining claims against Parks under § 3730(h) and § 1983 remain pending. Defendants' motion for judgment on the pleadings is GRANTED (docket no. 21) and Plaintiff's claim under the Texas Whistleblower Act is DISMISSED.