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                                                                 [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 18-14484
                        ________________________

                 D.C. Docket No. 6:14-cv-00094-LGW-GRS



JAMIE NESBITT,

                                               Plaintiff-Appellant,


                                    versus


CANDLER COUNTY, GEORGIA,
d.b.a.
Candler County Ambulance Service,

                                               Defendant-Appellee.

                        ________________________

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

                              (January 3, 2020)

Before ED CARNES, Chief Judge, BRANCH, and TJOFLAT, Circuit Judges.

ED CARNES, Chief Judge:
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      This case turns on what Congress meant when it said “because of” in the

antiretaliation provision of the False Claims Act, 31 U.S.C. § 3730(h)(1). When

we interpret the text of a statute, “we must presume that Congress said what it

meant and meant what it said.” United States v. Steele, 147 F.3d 1316, 1318 (11th

Cir. 1998) (en banc); accord, e.g., Conn. Nat’l Bank v. Germain, 503 U.S. 249,

253–54 (1992); In re Thompson, 939 F.3d 1279, 1285 (11th Cir. 2019). Because

of our obligation to presume that “because of” means “because of” and not

something else, we affirm the judgment of the district court.

                                           I.

      The plaintiff, Jamie Nesbitt, started working as an emergency medical

technician for Candler County’s ambulance service in 2006. Several years later

one of his coworkers, Donald Greer, was promoted to be the new deputy director

of the ambulance service. That was when Nesbitt’s problems began.

      Nesbitt grew concerned about how Greer was instructing him and other staff

members to fill out certain paperwork. Part of his job as an EMT was to complete

a “trip report” after each ambulance ride to document the condition of the patient

and the medical necessity of the ambulance service. Medicare relies on those

reports when deciding whether to pay for the service. The narrative section of a

trip report is especially important for billing purposes.




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      According to Nesbitt, when Greer became the deputy director he started

pressuring the EMTs to write in their report narratives that patients were unable to

walk, even if they could. That way Medicare would pay for more trips. Nesbitt

believed that Greer was asking him to commit fraud, so he began complaining to

Greer himself and other County officials.

      After Nesbitt started complaining, Greer changed his schedule. Ordinarily

the County EMTs worked two 24-hour shifts per week and were on call for two

additional 24-hour days. The on-call days gave the EMTs a chance to pick up

more overtime hours. Greer started putting Nesbitt on call for only the first half of

a day instead of for the full 24 hours, which meant less overtime pay.

      With Greer’s approval, Nesbitt began working another job at a private

ambulance company called Meddixx. The County had a policy prohibiting EMTs

from working side jobs without the approval of the ambulance service director.

Greer was not the director, David Moore was. Nesbitt assumed that Moore

somehow knew about his other job, but there’s no evidence that Moore did know

about it, much less that he approved it.

      The County fired Nesbitt in 2014. The five-member Board of

Commissioners had the sole authority to hire and fire County employees. Usually

when an employee was fired, the County Administrator or a department head

would make the termination recommendation to an individual Board member, who


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would present the recommendation to the full Board. The Board would then

discuss the recommendation and vote on it.

      Greer and Moore started the process to terminate Nesbitt. They met with the

County Administrator, William Lindsey, and told him that they wanted to fire

Nesbitt because he would not follow orders and had violated the County’s policy

on side jobs. The Board voted to terminate Nesbitt’s employment, and after that,

Moore and Greer called him into Greer’s office and told him that he no longer

worked for the County. They gave him a letter stating that he had been fired for

two reasons: his unauthorized job with Meddixx and his refusal to fill out trip

reports in “the proper way.” Doc. 57-6.

                                          II.

      In August 2014 Nesbitt filed suit under the False Claims Act, 31 U.S.C.

§§ 3729–3731, and the Georgia False Medicaid Claims Act, Ga. Code Ann. §§ 49-

4-168–168.6, alleging that the County had engaged in a fraudulent scheme related

to billing for ambulance services and had fired him in retaliation for his

whistleblowing. In June 2016 the United States intervened and reached a

settlement with the County and Nesbitt. As part of the settlement, Nesbitt and the

government voluntarily dismissed the fraud claims, but Nesbitt’s False Claims Act

retaliation claim moved forward. In granting summary judgment for the County on

that claim, the district court concluded that although Nesbitt had engaged in


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“protected conduct” he had not created a genuine issue of material fact that he had

been fired because of that conduct. This is Nesbitt’s appeal.

                                         III.

      We review de novo the district court’s grant of summary judgment,

considering all of the evidence in the light most favorable to the nonmoving party.

See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir.

2012). Summary judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “[A]t the summary judgment stage the judge’s

function is not himself to weigh the evidence and determine the truth of the matter

but to determine whether there is a genuine issue for trial.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986).

                                         IV.

      The result in this case, as we have said, depends on the standard of causation

that applies to retaliation claims under the False Claims Act. Nesbitt conceded at

oral argument that if a but-for standard instead of a motivating factor standard

applies, he loses.

      A party can be held to concessions and admissions its counsel made at oral

argument. Crowe v. Coleman, 113 F.3d 1536, 1542 (11th Cir. 1997). But there is

a difference between concessions about the law and those about how the law


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applies and the result it produces given the facts of a specific case. Contrast

Roberts v. Galen of Va., Inc., 525 U.S. 249, 253 (1999) (“[T]he concession of a

point on appeal by respondent is by no means dispositive of a legal issue . . . .”);

U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 448

(1993) (“[T]he Court of Appeals acted without any impropriety in refusing to

accept what in effect was a stipulation on a question of law.”); Bourdon v. U.S.

Dep’t of Homeland Sec. (DHS), 940 F.3d 537, 547 n.6 (11th Cir. 2019) (“[T]he

Government cannot concede away the proper interpretation of a statute . . . .”); and

United States v. Lee, 586 F.3d 859, 866 (11th Cir. 2009) (refusing to accept the

government’s concession as to the interpretation of a statutory term); with I.L. v.

Alabama, 739 F.3d 1273, 1284 (11th Cir. 2014) (“The district court and the

plaintiffs alike were entitled to rely on Alabama’s factual concession that taxes

would rise if the court enjoined enforcement of Amendment 373 and to believe,

given that concession, that no further evidence on the issue was needed.”); Rozar

v. Mullis, 85 F.3d 556, 565 (11th Cir. 1996) (accepting a party’s concession that

there was no evidence that the defendants had violated the Fourteenth

Amendment); and United States v. Gerber, 994 F.2d 1556, 1558 (11th Cir. 1993)

(accepting a defendant’s concession that certain evidence was wrongly suppressed

under the Fourth Amendment).




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      Nesbitt has conceded nothing about the proper causation standard, only that

given the facts he will lose if the but-for standard applies. We accept his

concession about the result of applying that standard to the facts of this case.

Nesbitt loses under the but-for standard because it requires him to do what he

cannot, which is to “show that the harm would not have occurred in the absence

of[,] that is, but for” his protected conduct. Univ. of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338, 346–47 (2013) (quotation marks and dash omitted). To avoid

losing, Nesbitt argues for application of the motivating factor standard. That more

plaintiff-friendly standard requires only a showing that the protected conduct “was

a motivating factor for any employment [decision], even though other factors also

motivated the [decision].” See id. at 349 (quoting 42 U.S.C. § 2000e-2(m)). The

result of this case depends on the choice between the but-for and the motivating

factor causation standards.

      That choice was made by Congress when it worded the relevant statutory

provision:

      Any employee shall be entitled to all relief necessary to make that
      employee whole, if that employee is discharged, demoted, suspended,
      threatened, harassed, or in any other manner discriminated against in
      the terms and conditions of employment because of lawful acts done by
      the employee in furtherance of an action under this section or other
      efforts to stop [one] or more violations of this subchapter.




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31 U.S.C. § 3730(h)(1) (emphasis added) (references to contractors, agents, and

associated others omitted).

      “In construing a statute we must begin, and often should end as well, with

the language of the statute itself.” Steele, 147 F.3d at 1318 (quotation marks

omitted). Here the crucial language is the phrase “because of.” The work needed

to interpret that phrase has been done for us in a pair of Supreme Court decisions.

See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013); Gross v. FBL Fin.

Servs., Inc., 557 U.S. 167 (2009). They involved interpretation of nearly identical

language in two other job discrimination statutes.

      In Gross the Court decided the standard of causation for discrimination

claims brought under the Age Discrimination in Employment Act of 1967,

29 U.S.C. §§ 621–634. See 557 U.S. at 173. The relevant part of that statute

provides: “It shall be unlawful for an employer . . . to fail or refuse to hire or to

discharge any individual or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s age.” 29 U.S.C. § 623(a) (emphasis added). The

Supreme Court observed that the phrase “because of,” as it is commonly used,

means “by reason of: on account of.” Gross, 557 U.S. at 176 (quotation marks

omitted). That means, the Court held, age must be the but-for cause of the

employer’s adverse decision: age must have had “a determinative influence on the


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outcome” of the employer’s decision-making process. Id. (quotation marks and

emphasis omitted).

      Four years later came the Nassar decision. See 570 U.S. 338. It involved

the antiretaliation provision of Title VII, which provides:

      It shall be an unlawful employment practice for an employer to
      discriminate against any of his employees or applicants for employment
      . . . because he has opposed any practice made an unlawful employment
      practice by this subchapter, or because he has made a charge, testified,
      assisted, or participated in any manner in an investigation, proceeding,
      or hearing under this subchapter.

42 U.S.C. § 2000e-3(a) (emphasis added). The question was what standard of

causation applied under that provision. Nassar, 570 U.S. at 346. The Court began

with two premises. First, Congress legislates against the background of traditional

tort law. See id. at 347. Unless something in the statute says otherwise, we

presume that Congress meant to incorporate familiar tort principles into federal tort

statutes. See id. And it is “textbook tort law that an action is not regarded as a

cause of an event if the particular event would have occurred without it.” Id.

(quotation marks omitted). Second, the Court acknowledged the importance of its

Gross decision to the question at issue. See id. at 343, 349–51. Gross provided

insight into the proper interpretation of “because” based on the plain meaning of

the word. See id. at 350–51.

      The Supreme Court focused on the statute’s text. See id. at 352. It observed

that there is no “meaningful textual difference between” the antiretaliation
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provision in Title VII and the antidiscrimination provision in the ADEA. Id. It

follows, the Court held, that “Title VII retaliation claims require proof that the

desire to retaliate was the but-for cause of the challenged employment action.” Id.

The Court also rejected a number of “counterargument[s]” based on Congress’

1991 amendments to Title VII, the Equal Employment Opportunity Commission’s

interpretation of the statute, and the Court’s Title VII antidiscrimination precedent.

See id. at 352–63.

       Our reading of Gross and Nassar convinces us that the but-for causation

standard applies to claims under the antiretaliation provision of the False Claims

Act just as it does to the antiretaliation provision of Title VII and the

antidiscrimination provision of the ADEA. The key “because of” and “because”

language is identical or materially identical in all three statutes. See Nassar 570

U.S. at 352 (noting that there is a “lack of any meaningful textual difference

between” the “because” language in Title VII and the “because of” language in the

ADEA). The analytical result must be identical as well given our duty, as an

“inferior court[],” to follow Supreme Court decisions. See U.S. Const. Art. III,

§ 1.

       Those of our sister circuits that have taken Gross and Nassar into account

have concluded, as we do, that the but-for causation standard applies to False

Claims Act retaliation claims. See DiFiore v. CSL Behring, LLC, 879 F.3d 71,


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76–78 (3d Cir. 2018); United States ex rel. King v. Solvay Pharm., Inc., 871 F.3d

318, 333 (5th Cir. 2017). They reasoned, as we have reasoned, that we must

interpret the phrase “because of” in the False Claims Act the same way the

Supreme Court has interpreted materially identical language in similar statutes.

See DiFiore, 879 F.3d at 76–78; King, 871 F.3d at 333.

      Some of our sister circuits that have not taken Gross and Nassar into account

have reached a different result, concluding that the motivating factor standard of

causation is the proper one to apply under the antiretaliation provision of the False

Claims Act. See Singletary v. Howard Univ., 939 F.3d 287, 293 (D.C. Cir. 2019);

United States ex rel. Ziebell v. Fox Valley Workforce Dev. Bd., Inc., 806 F.3d 946,

953 (7th Cir. 2015); McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508, 518

(6th Cir. 2000). A review of those decisions shows the error of their ways.

      Instead of considering the plain meaning of the statute’s text, the Sixth

Circuit in McKenzie jumped to the legislative history of the antiretaliation

provision of the False Claims Act. See 219 F.3d at 518. The court cited a Senate

report stating that to establish a retaliation claim, the “employee must show that

‘the retaliation was motivated at least in part by the employee’s engaging in

protected activity.’” Id. (quoting S. Rep. No. 99-345, at 35 (1986), as reprinted in

1986 U.S.C.C.A.N. 5266, 5300). That Senate report is all the Sixth Circuit

considered. See id. The McKenzie decision predated Gross and Nassar, and the


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Sixth Circuit has not revisited the question in a published opinion since those two

Supreme Court decisions were issued.

       More than a decade before the Supreme Court decided Gross and Nassar, the

D.C. Circuit adopted a motivating factor causation standard for False Claims Act

retaliation claims. See United States ex rel. Yesudian v. Howard University, 153

F.3d 731, 736 (D.C. Cir. 1998). Like the Sixth Circuit in McKenzie, the D.C.

Circuit in Yesudian made the mistake of ignoring the plain meaning of the phrase

“because of” and looking solely to the Senate report as if it were the law. See id.

The D.C. Circuit has reiterated that mistake once after Gross but before Nassar, see

United States ex rel. Schweizer v. Oce N.V., 677 F.3d 1228, 1238, 1240 (D.C. Cir.

2012), and once more for good measure after Nassar, see Singletary, 939 F.3d at

293, 303. In its Schweizer decision, the D.C. Circuit did not mention the Gross

decision and did not consider whether to apply a but-for causation standard. See

Schweizer, 677 F.3d at 1238–40. Instead, without question or comment it simply

followed Yesudian as its circuit precedent. See id. at 1238, 1240 (citing Yesudian,

153 F.3d at 736). It did the same thing again in Singletary. See 939 F.3d at 293,

303.

       In Brandon v. Anesthesia & Pain Management Associates, Ltd., 277 F.3d

936 (7th Cir. 2002), which was decided before either Gross or Nassar, the Seventh

Circuit stated in dicta that a motivating factor standard applies to False Claims Act


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retaliation claims. See id. at 944. Brandon borrowed that standard from the D.C.

Circuit’s Yesudian decision without any independent analysis of the statute’s text.

See id. Later, in Fanslow v. Chicago Manufacturing Center, Inc., 384 F.3d 469

(7th Cir. 2004), the court applied the motivating factor standard to a False Claims

Act retaliation claim in reliance on Brandon, again without any analysis of the

statute’s text. See id. at 485.

       After Gross and Nassar the Seventh Circuit decided Ziebell, 806 F.3d 946, in

which it applied the motivating factor standard to a False Claims Act retaliation

claim because of Fanslow and found that the plaintiff had failed to meet that

standard. See id. at 953. The court did not consider whether Gross and Nassar had

overruled Fanslow or might militate in favor of a but-for standard. See id.

Although later decisions from the Seventh Circuit have suggested that Ziebell took

the wrong approach, none has explicitly overruled it.1 In one of those decisions,

United States ex rel. Marshall v. Woodward, Inc., 812 F.3d 556 (7th Cir. 2015), the

court actually applied a but-for standard to a False Claims Act retaliation claim

without analyzing the statute or any precedent. See id. at 564. It did so because

the parties agreed that standard applied. See id. The court then concluded that the



       1
         In the Seventh Circuit, an opinion that would overrule a prior published decision cannot
be published “unless it is first circulated among the active members of th[e] court and a majority
of them do not vote to rehear en banc the issue.” 7th Cir. R. 40(e); see, e.g., Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015).


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plaintiffs failed to meet the but-for standard. See id. at 564–65. And after that, in

Heath v. Indianapolis Fire Department, 889 F.3d 872 (7th Cir. 2018), the court

acknowledged in dicta that Gross and Nassar might merit revisiting Fanslow and

the motivating factor standard in the context of False Claims Act retaliation claims.

See id. at 874. But nothing came of it because the plaintiff’s claim failed under

any causation standard. See id. So as far as we can tell, the motivating factor

standard articulated in Fanslow and Ziebell remains the law of the Seventh

Circuit.2

       In sum, in the circuits that still apply a motivating factor standard of

causation to False Claims Act retaliation claims it can be traced back to a textual

focus on legislative history or to following out-of-circuit law that relied on

legislative history. See McKenzie, 219 F.3d at 518; Yesudian, 153 F.3d at 736; see

also Brandon, 277 F.3d at 944 (citing Yesudian, 153 F.3d at 736). Nesbitt invites

us to rely on legislative history too.



       2
          In its Norbeck decision, the Eighth Circuit appeared to adopt a motivating factor
causation standard for False Claims Act retaliation claims. See Norbeck v. Basin Elec. Power
Coop., 215 F.3d 848, 850–52 (8th Cir. 2000). Later Eighth Circuit decisions, however, clarify
that to prove causation the plaintiff must establish that the employer’s decision was “motivated
solely” by his protected conduct. See, e.g., United States ex rel. Strubbe v. Crawford Cty. Mem.
Hosp., 915 F.3d 1158, 1167 (8th Cir. 2019); Wilkins v. St. Louis Hous. Auth., 314 F.3d 927, 933
(8th Cir. 2002). To the extent that Norbeck did adopt a motivating factor standard it is flawed
for the same reason some of the other decisions we have discussed are flawed: it relies on
legislative history instead of the text of the False Claims Act. See 215 F.3d at 850–51. And like
some other circuits, the Eighth Circuit has never reconsidered its causation standard in light of
Gross and Nassar.


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       But we should not, cannot, and do not use legislative history to get around

the plain meaning of a statute’s text. See Ratzlaf v. United States, 510 U.S. 135,

147–48 (1994) (“[W]e do not resort to legislative history to cloud a statutory text

that is clear.”). “When the import of the words Congress has used is clear, as it is

here, we need not resort to legislative history, and we certainly should not do so to

undermine the plain meaning of the statutory language.” Harris v. Garner, 216

F.3d 970, 976 (11th Cir. 2000) (en banc). To paraphrase Justice Jackson, it is

better to analyze a statute than it is to psychoanalyze Congress; resorting to

legislative history is less interpreting statutory language than recreating it.3 The

Supreme Court interpreted the key statutory language on which this case turns, and

we follow its decisions. We don’t presume to psychoanalyze Congress, just as the

Supreme Court didn’t.

       AFFIRMED.




       3
          United States v. Pub. Util. Comm’n, 345 U.S. 295, 319 (1953) (Jackson, J., concurring)
(“I should concur in this result more readily if the Court could reach it by analysis of the statute
instead of by psychoanalysis of Congress. When we decide from legislative history . . . we must
put ourselves in the place of a majority of Congressmen and act according to the impression we
think this history should have made on them. Never having been a Congressman, I am
handicapped in that weird endeavor. That process seems to me not interpretation of a statute but
creation of a statute.”).
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