                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JULY 25, 2005
                             No. 04-10876
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                               CLERK
                       ________________________

                     D. C. Docket No. 03-00148-CV-4

DEBORAH E. FOSTER,


                                                          Plaintiff-Appellant,

                                  versus

SAVANNAH COMMUNICATION,
MCLLANHAM AUTOMOTIVES, INC.,
A&E ELECTRONIC COMPANY,
PROVOST MARSHAL/LAW ENFORCEMENT COMMAND,
U.S. ARMY,


                                                       Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                              (July 25, 2005)

Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:

      We vacate our prior opinion in this case issued on June 23, 2005, and

substitute in its place the following opinion.

      Deborah E. Foster appeals pro se the district court’s dismissal with

prejudice of her claims against the defendants, Savannah Communication (“SC”),

the United States Army (“Army”), McLlanham Automotives, Inc. (“McLlanham”),

and A&E Electronic Company (“A&E”).1 Foster brought her claims under the

False Claims Act (“FCA”), 31 U.S.C. §§ 3729, et seq. Specifically, she alleged

that she had been constructively discharged by her employer, the Army, for

reporting fraud to her supervisors in violation of 31 U.S.C. § 3730(h), which is the

whistleblower provision of the FCA. She also apparently sought to bring a qui

tam action against the remaining three defendants (“the contractor defendants”),

who were allegedly involved in the fraud, in violation of 31 U.S.C. § 3730(b).

      Foster raises two arguments on appeal. First, she argues that the district

court erred in finding that her complaint was filed beyond the statute of

limitations. Foster argues that she did her best to ensure that the complaint was

filed in a timely manner. She notes that she mailed her complaint to the district

court (admittedly with a request for leave to proceed in forma pauperis in lieu of

      1
          Neither McLlanham nor A&E are present on appeal.

                                              2
the filing fee) two days before the statute of limitations expired and that the

district court received it one day before it expired.

       Second, Foster argues that the district court erred by alternatively

dismissing her complaint for failure to comply with the procedural requirements of

§ 3730(b)(2) for qui tam actions. She notes in particular that she “had no

knowledge of sealing a case.” Each argument is addressed in turn.2

       We review de novo the district court’s grant of a motion to dismiss. Spain v.

Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir. 2004). A

motion to dismiss is granted only when the movant demonstrates “beyond a doubt

that the plaintiff can prove no set of facts in support of [her] claim that would

entitle [her] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Fed. R. Civ.

P. 12(b)(6). “The standard of review for a motion to dismiss is the same for the

appellate court as it was for the trial court.” Spain, 363 F.3d at 1187 (citation

omitted).




       2
         Foster further contends that the defendants failed to respond timely to her complaint and
that therefore she should have received a default judgment against them. After reviewing the
record, we conclude that the district court’s refusal to enter default judgments was not an abuse
of discretion under the circumstances.

                                                3
Failure to Comply with Statute of Limitations

      The applicable limitation period for an action brought under 31 U.S.C. §

3730 is no “more than 6 years after the date on which the violation of section 3729

is committed.” 31 U.S.C. § 3731(b)(1). Generally, a statute of limitations defense

is an affirmative defense that must be pled. See Fed. R. Civ. P. 8(c). However,

failure to comply with the statute of limitations may be raised on a motion to

dismiss for failure to state a claim for which relief can be granted under Fed. R.

Civ. P. 12(b)(6), when failure to comply with the statute of limitations is plain on

the face of the complaint. AVCO Corp. v. Precision Air Parts, Inc., 676 F.2d 494,

495 (11th Cir. 1982).

      In her complaint, Foster alleged that she complained of fraud and was

constructively discharged by the Army on July 23, 1997. Foster could not have

witnessed or had knowledge of any alleged fraudulent activity, such as submission

of false claims, after that date. The record reflects that Foster’s complaint was not

filed until August 8, 2003, more than six years after the date on which her

employment ended. Consequently, all of the acts of which Foster claims the

contractor defendants took part occurred more than six years before Foster filed

her complaint. Furthermore, Foster concedes that her complaint is untimely in

light of the limitation period. Therefore, to the extent that Foster sought to bring a

                                          4
qui tam action against the contractor defendants, the district court did not err in

finding that her complaint was barred by the six-year statute of limitations set

forth at § 3731(b)(1).

      To the extent that Foster sought relief under the anti-retaliation provision of

the FCA, the most closely analogous state limitations period, rather than the six-

year statute of limitations in the FCA, applies to her claim. See Graham County

Soil & Water Conservation Dist. v. United States ex rel. Wilson, 125 S. Ct. 2444,

2446 (2005). We do not address that issue here, however, because Foster never

suggests, and our de novo review does not reveal, that the applicable period would

be more than six years. Moreover, as noted above, Foster concedes that her filing

was outside this period. We therefore affirm the district court’s dismissal of her

retaliation claim against the Army for failure to comply with the statute of

limitations.

Failure to Comply with Procedural Requirements

      To maintain a qui tam action under the FCA, a private party must satisfy

several procedural requirements. See 31 U.S.C. § 3730 (b)(1), (b)(2), (b)(4)(A),

(b)(4)(B). Specifically, a private party must first bring the action in the name of

the United States government and must have served upon the government “[a]

copy of the complaint and written disclosure of substantially all material evidence

                                          5
and information the person possesses.” 31 U.S.C. §§ 3730(b)(1) and (b)(2). The

complaint also must be filed “in camera, [and] shall remain under seal for at least

60 days, and shall not be served on the defendant until the court so orders.” §

3730(b)(2). Within 60 days of service, the government must choose either to

“intervene and proceed with the action,” or notify the court that it declines to

intervene, in which case the individual obtains the right to proceed with the qui

tam action. § 3730(b)(4).

       It is apparent from the face of Foster’s complaint that she did not comply

with any of the statutory requirements before filing her qui tam action. Foster’s

claims against the three contractor defendants were brought directly in the district

court, were brought in her name, and were not filed under seal. Foster concedes

her noncompliance with the procedural requirements of the FCA. Accordingly,

after considering the parties’ contentions, we find no abuse of discretion in the

district court’s finding that she failed to comply with the procedural filing

requirements for qui tam actions under the FCA as to the contractor defendants.3




       3
         We note that Foster’s retaliation claim against the Army arose under § 3730(h). We
decline to address whether the procedural requirements for a qui tam action were also applicable
to Foster’s retaliation claim, or whether noncompliance with such rules provides an additional
basis for affirming the district court’s decision.

                                               6
       We therefore affirm the district court’s order dismissing Foster’s complaint

for failure to file within the statute of limitations, and, alternatively, for failure to

comply with the procedural filing requirements of § 3730(b)(2).

       AFFIRMED.




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