                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-13-2002

Dookeran v. Mercy Hosp Pgh
Precedential or Non-Precedential:

Docket 1-1246




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Recommended Citation
"Dookeran v. Mercy Hosp Pgh" (2002). 2002 Decisions. Paper 117.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/117


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Filed February 13, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1246

KEITH 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.

(W.D. D.C. 99-cv-00134)

CATHOLIC HEALTHCARE EAST;
GREATER PITTSBURGH SURGICAL ASSOCIATES

       (W.D. D.C. 99-cv-00800)

       Keith A. Dookeran,
       Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Nos. 99-cv-00134, 99-cv-00800)
District Judge: The Honorable Donetta W. Ambrose

Argued November 1, 2001

BEFORE: SLOVITER, NYGAARD, and CUDAHY,*
Circuit Judges.

(Filed: February 13, 2002)
_________________________________________________________________

* Honorable Richard D. Cudahy, Circuit Judge for the United States
Court of Appeals for the Seventh Circuit, sitting by designation.
       Harlan S. Stone, Esq. (Argued)
       Stone & Stone
       437 Grant Street
       828 Frick Building
       Pittsburgh, PA 15219

        Counsel for Appellant

       W. Thomas McGough, Jr., Esq.
        (Argued)
       Jack B. Cobetto, Esq.
       Reed Smith
       435 Sixth Avenue
       Pittsburgh, PA 15219

        Counsel for Appellees

OPINION OF THE COURT

NYGAARD, Circuit Judge.

The issue on appeal is whether the "whistleblower"
provision of the False Claims Act, 31 U.S.C. S 3730(h),
protects an employee who exposes allegedly false
statements made in an application which contains no
demand for payment of federal funds. Appellant, Dr. Keith
A. Dookeran, filed a Complaint asserting seven causes of
action against Appellees. Count I is a claim for retaliatory
discharge under the whistleblower provision of the False
Claims Act ("FCA"), 31 U.S.C. S 3730(h). Counts II through
VII are state law claims arising out of the same facts. The
District Court granted summary judgment in favor of
Appellees, dismissing Count I because it concluded that
Dookeran was not engaged in protected conduct under the
FCA, and then declined to exercise supplemental
jurisdiction over the pendant state law claims. We hold that
the whistleblower protections apply only to actions taken in
furtherance of a viable False Claims Act case which has
been, or is about to be, filed. Because the facts of this case
could not possibly support a False Claims Act case, the
whistleblower provisions did not apply. We will affirm.

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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 reasons 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, replaced 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 that 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, 31
U.S.C. S 3730(h). That section provides, in part:

       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,

                               3
       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.

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
S 3730(h):

       A plaintiff asserting a cause of action under S 3730(h)
       must show (1) he engaged in "protected conduct," (i.e.,
       acts done in furtherance of an action under S 3730)
       and (2) that he was discriminated against because of
       his "protected conduct." In proving that he was
       discriminated against "because 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.

Hutchins, 253 F.3d at 186 (internal citations omitted).
Thus, the first thing Dookeran must show is that he was
engaged in "protected conduct."

We explained in Hutchins that for conduct to be
protected, the language of S 3730(h) requires that the
conduct be taken "in furtherance of " a False Claims Act
action:

       In addressing what activities constitute "protected
       conduct," 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

                               4
"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 S 3730." Id. at 188. Nor do we require that an
employee has developed a winning FCA case to be afforded
whistleblower protection. Id. at 187. But courts do require
that there at least be a distinct possibility that a viable FCA
action could be filed. See Hutchins, 253 F.3d at 188;
McKenzie v. BellSouth Telecomm., Inc., 219 F.3d 508, 516
(6th Cir. 2000); Eberhardt v. Integrated Design & Constr.,
Inc., 167 F.3d 861, 867 (4th Cir. 1999); United States ex rel.
Yesudian v. Howard Univ., 153 F.3d 731, 741 (D.C. Cir.
1998); United States ex rel. Hopper v. Anton, 91 F.3d 1261,
1269 (9th Cir. 1996); Childree v. UAP/GA AG Chem., Inc.,
92 F.3d 1140, 1146 (11th Cir. 1996). Thus, to survive
summary judgment, Dookeran must show there is a
genuine issue that his activities could reasonably lead to a
viable FCA case. See McKenzie, 219 F.3d at 516. If there is
no way that Dookeran's conduct of informing Mercy
administrators about the allegedly fraudulent application
could reasonably lead to a viable FCA action, then the
whistleblower provision provides him no protection.

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 31 U.S.C. S 3729 could not be met. Specifically,
no "claim" had, or could have, been made upon the
government.

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 the 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 claim 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

                                 5
       $10,000, plus 3 times the amount of damages which
       the Government sustains because of the act of that
       person . . . .

31 U.S.C. S 3729(a).

"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 portion of the money or property
       which is requested or demanded.

31 U.S.C. S 3729(c).

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 application 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 federal 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 Mercy. 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 application 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.

                               6
Clearly, the 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 have 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.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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