                                                     NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                              No. 09-3207
                             _____________

                        GLORIA LYTLE;
                    LYTLE TRANSPORTATION;
                       ROGER MORRISON;
             MORRISON AND SONS TRANSPORTATION INC.,
                                Appellants

                                   v.

                 CAPITAL AREA INTERMEDIATE UNIT;
              GLENN ZEHNER, Ph.D.; MARK BAUER, Ph.D;
         SCOTT DOWNEY; THE ESTATE OF GEORGE BRUBAKER;
     HARTMAN, UNDERHILL AND BRUBAKER; PHILLIP STEINHOUR;
  BOARD OF DIRECTORS OF THE CAPITAL AREA INTERMEDIATE UNIT;
             JILL WILLIAMSON; ARLAND WAGONHURST;
         MICHAEL MAUSNER; KAREN CHRISTIE; BONNIE GOBLE;
          ANGELA MCMASTER; SHERI T. MATER; GARY SHADE;
    DANIELLE HAIRSTON-GREEN; ANNIE GUENIN; SUSAN KOMLENIC;
     MARK D. ROTHERMAL; JOY MCCREARY; DR. WILLIAM GOULD;
         BRIAN R. COOPER; LINDA T. BUTLER; JOHN FORNEY Jr.;
    HOWARD DOUGHERTY; JEAN RICE; RICHARD FRY; STEVEN DART;
        CAMP HILL SCHOOL DISTRICT, Jill Williamson, representative;
      CARLISLE SCHOOL DISTRICT, Arland Wagonhurst, representative;
   CENTRAL DAUPHIN SCHOOL DISTRICT, Michael Mausner, representative;
  CUMBERLAND VALLEY SCHOOL DISTRICT, Karen Christie, representative;
     DERRY TOWNSHIP SCHOOL DISTRICT, Bonni Goble, representative;
   EAST PENNSBORO SCHOOL DISTRICT, Angela McMaster, representative;
       GREENWOOD SCHOOL DISTRICT, Sheri T. Matter, representative;
       HALIFAX AREA SCHOOL DISTRICT; Gary Shade, representative;
HARRISBURG AREA SCHOOL DISTRICT, Danielle Hairston-Green, representative;
      LOWER DAUPHIN SCHOOL DISTRICT, Ann Guenin, representative;
 MECHANICSBURG AREA SCHOOL DISTRICT; Susan Komlenic, representative;
 MILLERSBURG AREA SCHOOL DISTRICT, Mark D. Rothermal, representative;
         NEWPORT SCHOOL DISTRICT, Kermit Harry, representative;
      NORTHERN YORK SCHOOL DISTRICT, Joy McCreary, representative;
  SHIPPENSBURG AREA SCHOOL DISTRICT, Dr. William Gould, representative;
   STEELTON-HIGHSPIRE SCHOOL DISTRICT, Brian R. Cooper, representative;
     SUSQUENITA SCHOOL DISTRICT, Donna Lee Clendenin, representative;
 SUSQUEHANNA TOWNSHIP SCHOOL DISTRICT, Linda T. Butler, representative;
    UPPER DAUPHIN SCHOOL DISTRICT, John R. Forney, Jr., representative;
      WEST SHORE SCHOOL DISTRICT, Howard Dougherty, representative;
         WEST PERRY SCHOOL DISTRICT, Jean Rice, representative


                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 1-05-cv-00133)
                      District Judge: Honorable Sylvia H. Rambo


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 13, 2010

               Before: RENDELL, FISHER and GARTH, Circuit Judges.

                               (Filed September 14, 2010)


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Lytle Transportation, Inc., and Morrison & Sons Transportation, Inc., and their

respective owners, Gloria Lytle and Roger Morrison ("Plaintiffs"), appeal from the

District Court's grant of summary judgment in this False Claims Act action against the

Capital Area Intermediate Unit ("CAIU").1 Plaintiffs averred that they "provid[ed]

transportation services to children through the [CAIU]," "as an employee of or contractor


      1
        Plaintiffs also named nearly fifty additional defendants, including numerous
current and former employees of CAIU and the officials of twenty local school districts.
to the [CAIU]," for twenty years or more. JA0004-05. CAIU is a nonprofit organization

that provides "educational and transportation services to children who have been

identified as requiring special education, special services, or early intervention services."

JA0005.

       Plaintiffs claim that after they informed the Federal Bureau of Investigation in

early 2004 of their belief that CAIU and the other Defendants ("Defendants") had been

committing fraud, CAIU retaliated against them by threatening and harassing them, and

by reducing the amount that CAIU would pay Morrison & Sons for its services.

       On January 19, 2005, Plaintiffs brought suit in the District Court for the Middle

District of Pennsylvania, seeking recovery from CAIU under 31 U.S.C. § 3730(h), which,

at that time, provided that:

              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.

31 U.S.C. § 3730(h) (2000) (emphases added). Plaintiffs also asserted various other

claims under state law against Defendants.

       Defendants moved for summary judgment, arguing that § 3730(h) provides a

cause of action only to "employee[s]," and that Plaintiffs therefore lacked statutory

standing because they were independent contractors of CAIU. They also argued that,


                                              3
since Plaintiffs lacked standing to bring the claim under § 3730, the District Court should

dismiss the state law claims for lack of jurisdiction. The District Court agreed and

granted summary judgment to Defendants.

       Plaintiffs now appeal.2 Their principal argument is that, in deciding Defendants'

motion for summary judgment, the District Court failed to draw inferences in their favor,

disregarded genuine factual disputes, and erred in its ultimate conclusion that Plaintiffs

were not employees of CAIU. We disagree. To the contrary, there was a wealth of

evidence establishing that, under the test set forth in Nationwide Mutual Insurance Co. v.

Darden, 503 U.S. 318, 323-24 (1992), Plaintiffs were independent contractors of CAIU,

not its employees. The relationships between Plaintiffs and CAIU were governed by

contracts, which were executed annually between CAIU and either Lytle and Morrison as

individuals or their corporations, Lytle Transportation, Inc. and Morrison & Sons

Transportation, Inc., and explicitly stated both that Plaintiffs were independent

contractors of CAIU, and that they were not its employees. Lytle and Morrison admitted

in depositions that they knew they were considered to be independent contractors.

Moreover, they had the right to decline to provide transportation on certain routes, they

owned the vehicles they used, employed other people to drive the vehicles, and were

responsible for maintaining and insuring those vehicles.

       In light of this extensive evidence, the fact that CAIU required Plaintiffs to use

       2
       We exercise jurisdiction over the appeal under 28 U.S.C.§ 1291, and apply
plenary review to the District Court's ruling.

                                             4
certain types of vehicles and equipment, submit certain information to CAIU, have their

employees wear CAIU identification badges, and display a CAIU identification number

on their vehicles does not establish that CAIU was Plaintiffs' employer, especially since

Plaintiffs were transporting school-age, special-needs children on behalf of CAIU, and

that CAIU was in certain respects merely complying with the requirements of state law.

The District Court properly found that there was no genuine dispute of fact regarding

Plaintiffs' employment status, and we find no merit in Plaintiffs' contention that the

District Court failed to draw inferences in Plaintiffs' favor.

       Plaintiffs also urge us to find that they have standing under the current version of §

3730(h), which was amended by Congress on May 20, 2009, to extend the cause of

action to "[a]ny employee, contractor, or agent." Fraud Enforcement and Recovery Act

of 2009, Pub. L. No. 111-21, § 4(d), 123 Stat. 1617, 1625 (emphasis added). We

disagree. In enacting this amendment to § 3730(h), Congress explicitly provided that the

amendment "shall take effect on the date of enactment of this Act and shall apply to

conduct on or after the date of enactment." Id. § 4(f). When, as here, Congress has

"expressly provided that the statute in question . . . should not apply retrospectively . . . ,

then we follow Congress' express prescription and apply the statute accordingly."

Mathews v. Kidder, Peabody & Co., 161 F.3d 156, 160 (3d Cir. 1998).

       Plaintiffs challenge only conduct occurring well before 2009, and we can find no

authority that would give them the benefit of the amended version of § 3730(h).



                                               5
Although Plaintiffs cite a comment contained in the legislative history that "the courts

should rely on these amendments to clarify the existing scope of False Claims Act

liability, even if the alleged violations occurred before the enactment of these

amendments," this comment applied only to amendments made to 31 U.S.C. § 3729, not

to the amendment to § 3730(h). 155 Cong. Rec. E1295-03, E1300 (June 3, 2009)

(statement of Rep. Berman). In any event, we are, of course, "bound not by legislative

history but by plain statutory language." DirecTV, Inc. v. Pepe, 431 F.3d 162, 169 (3d

Cir. 2005).

       We will therefore affirm substantially for the reasons set forth by the District

Court in its thoughtful and well-reasoned opinion.




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