from the United States District Court for the District of
Colorado (D.C. No. 1:16-CV-01779-RBJ)
Brandon J. Mark, Parsons Behle & Latimer, Salt Lake City,
Utah (Logan R. Martin, Westerfield & Martin, Denver,
Colorado, with him on the briefs), for Plaintiff-Appellant.
M. Gombos, Ritzert & Leyton, P.C., Fairfax, Virginia
(Raymond W. Martin, Wheeler Trigg O'Donnell, LLP, Denver,
Colorado, David A. Obuchowicz and Jacob C. Shorter, Ritzert
& Leyton, P.C., Fairfax, Virginia, with him on the
brief), for Defendant-Appellee.
LUCERO, PHILLIPS, and MORITZ, Circuit Judges.
PHILLIPS, Circuit Judge.
False Claims Act imposes liability on any person who
knowingly defrauds the federal government. See 31
U.S.C. § 3729(a). The Act includes a provision
protecting whistleblower employees from specified retaliatory
acts by their employer. 31 U.S.C. § 3730(h)(1)-(2). We
now consider whether this anti-retaliation statute applies
when no retaliatory discrimination occurs until after
employment ends. We conclude that it does not. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm the
district court's dismissal of Debbi Potts's
January 2009 until July 2012, when she resigned, Debbi Potts
worked as the campus director of the Cheyenne, Wyoming campus
of CollegeAmerica Denver, Inc. (CollegeAmerica), a
predecessor of the Center for Excellence in Higher Education,
Inc. (the Center). Potts alleges that she resigned because
CollegeAmerica's business practices were unethical. In
particular, she alleges that CollegeAmerica violated its
accreditation standards and "actively deceiv[ed]"
its accreditor to maintain accreditation. Appellant's
App. at 10 ¶ 12.
September 2012, Potts and CollegeAmerica entered a written
agreement by which CollegeAmerica agreed to pay Potts $7, 000
and support her unemployment claim, and Potts agreed to (1)
"refrain from personally (or through the use of any
third party) contacting any governmental or regulatory agency
with the purpose of filing any complaint or grievance,"
(2) "direct any complaints or issues against
CollegeAmerica . . . to CollegeAmerica's toll free
compliant [sic] number," and (3) "not intentionally
with malicious intent (publicly or privately) disparage the
reputation of CollegeAmerica." Appellant's App. at
the agreement, Potts disparaged the Center in an e-mail she
sent to another former employee of the Center. After learning of
this, the Center sued Potts in Colorado state court for
violating the agreement. For relief, the Center sought back
the $7, 000 it had paid to Potts under the agreement.
February 2013, Potts sent a written complaint to the
Center's accreditor, the Accrediting Commission of Career
Schools and Colleges (ACCSC), concerning the Center's
alleged deceptions in maintaining its accreditation. After
learning this, the Center amended its state-court complaint
to add one sentence in support of its existing, sole claim
(for breach of contract): "Potts also violated the
contract by filing a complaint with the ACCSC."
Appellant's App. at 50.
response, Potts sued the Center in the United States District
Court for the District of Colorado, alleging that the
Center's state claim violated the False Claims Act's
anti-retaliation provision. See 31 U.S.C. §
3730(h)(1). In particular, Potts alleged that her complaint
to the Center's accreditor was protected activity under
the False Claims Act because it revealed violations of
accreditation standards, which would have disqualified the
Center from receiving federal student financial aid. Potts
further alleged that the Center had retaliated against her
under the Act by amending its state claim to allege that
Potts had breached the agreement by sending the complaint to
Center filed a motion under Federal Rule of Civil Procedure
12(b)(6) to dismiss Potts's federal suit. After a
hearing, the district court granted the motion, concluding
that a former employee-one whose allegedly protected acts had
occurred exclusively after employment ended-could not rely on
the False Claims Act's anti-retaliation provision.
Potts v. Ctr. for Excellence in Higher Educ., Inc.,
244 F.Supp.3d 1138, 1144 (D. Colo. 2017). Potts appealed.
Standard of Review
review de novo a district court's dismissal for failure
to state a claim under Federal Rule of Civil Procedure
12(b)(6). United States ex rel. Lemmon v. Envirocare of
Utah, Inc., 614 F.3d 1163, 1167 (10th Cir. 2010).
"We accept as true all well-pleaded factual allegations
in the complaint and view them in the light most favorable to
the [plaintiff]." Sec. & Exch. Comm'n v.
Shields, 744 F.3d 633, 640 (10th Cir. 2014). Here, the
district court dismissed Potts's claim based on the
court's construction of the False Claims Act. We review
de novo a district court's statutory construction.
United States ex rel. Little v. Triumph Gear Sys.,
Inc., 870 F.3d 1242, 1246 (10th Cir. 2017), cert.
denied, 138 S.Ct. 1298 (2018).
interpreting a statute, "our primary task is to
'determine congressional intent, using traditional tools
of statutory interpretation.'" United States ex
rel. Sikkenga v. Regence Bluecross Blueshield of Utah,
472 F.3d 702, 710 (10th Cir. 2006) (quoting McGraw v.
Barnhart, 450 F.3d 493, 498 (10th Cir. 2006)). We begin
with the language of the statute itself. Lawson v. FMR
LLC, 571 U.S. 429, 440 (2014). "Our first step in
interpreting a statute is to determine whether the language
at issue has a plain and unambiguous meaning with regard to
the particular dispute in the case." Ceco Concrete
Constr., LLC v. Centennial State Carpenters Pension Tr.,
821 F.3d 1250, 1258 (10th Cir. 2016) (quoting Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997)). Our inquiry
ends there "if the statutory language is unambiguous and
'the statutory scheme is coherent and
consistent.'" Robinson, 519 U.S. at 340
(quoting United States v. Ron Pair Enters., Inc.,
489 U.S. 235, 240 (1989)). We evaluate statutory language by
examining "the language itself, the specific context in
which that language is used, and the broader context of the
statute as a whole." Ceco Concrete Constr., 821
F.3d at 1258 (quoting Robinson, 519 U.S. at 341).