United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART RELATOR FELTEN'S MOTION TO AMEND THE COURT'S
JULY 1, 2019 ORDER AND TO CERTIFY THE ORDER FOR INTERLOCUTORY
STEPHEN J. MURPHY, III United States District Judge.
1, 2019, the Court issued an order granting Defendant William
Beaumont Hospitals' ("Beaumont") motion to
partially dismiss Relator David Felten, M.D., Ph.D.'s
("Felten") first amended complaint
("Order"). ECF 159. On July 17, 2019, Relator
Felten filed a motion to amend the Order and to certify it
for interlocutory appeal. ECF 162. The Court reviewed the
motion and, for the reasons below, will grant in part and
deny in part the motion.
Court detailed the relevant background in the Order. See ECF
159, PgID 3039-40. The Court adopts that history here.
federal district court determines that an order that is not
otherwise appealable "involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation, he shall so state in writing such order." 28
U.S.C. § 1292(b). When a party seeks to file an
interlocutory appeal of a non-final order in which the Court
did not include the above language, the request "takes
the form of a Motion to Certify an Order for Interlocutory
Appeal." Newsome v. Young Supply Co., 873
F.Supp.2d 872, 875 (E.D. Mich. 2012) (citations omitted). The
Court applies 28 U.S.C. § 1292(b) to a motion to certify
an order for interlocutory appeal and may grant the motion
only if: (1) the order ruled on a question of law, (2) the
question of law is "controlling," (3) there is
"substantial ground for 'difference of opinion'
about" the legal question at issue, and (4) "an
immediate appeal [would] 'materially advance the ultimate
termination of the litigation.'" Cardwell v.
Chesapeake & Ohio Ry. Co., 504 F.2d 444, 446 (6th
Cir. 1974); see also Newsome, 873 F.Supp.2d at 875
(condensing the first and second factors into one).
identified two questions addressed by the Order that he seeks
to appeal. See ECF 162, PgID 3083. Felten frames the first
question as "[w]hether a Relator who has pled a count of
retaliation under 31 U.S.C. § 3730(h) is required,
during the seal period, to amend his complaint to add
additional acts of retaliation?" Id. (emphasis
in original). Felten frames the second question as:
"[w]hether 31 U.S.C. § 3730(h) protects a relator
from defendant's retaliation after the defendant has
terminated his employment?" The Court will address each
question in turn.
Relator's first question, the Court will not reach the
other elements of § 1292(b) because it finds that no
substantial ground exists for difference of opinion. The
Sixth Circuit applies the Rule 15(c)(2) standard to "new
allegations in a complaint" even if they are not new
claims. See United States ex rel. Bledsoe v. Cmty. Health
Sys., Inc., 501 F.3d 493, 516-19 (6th Cir. 2007). In
Bledsoe, the Sixth Circuit permitted relation back only for
factual allegations that arose "out of the same conduct,
transaction, or occurrence attempted to be set forth in [the
relator's] prior pleadings." Id. at 518.
The Court did not permit relation back for new allegations
that merely alleged additional conduct that went to the same
"cause of action" that the relator had previously
alleged-namely, the relator's claim that the defendants
knowingly presented or caused to be presented a false or
fraudulent claim for payment or approval, in violation of 31
U.S.C. § 3729(a)(1) and (b). Id. at 502-03.
attempts to frame the issue more narrowly by arguing that he
"is aware of no case that has held that additional
instances of retaliation must be added to a sealed complaint
or be forfeited." ECF 162, PgID 3091 (emphasis omitted).
The argument is unavailing. Relator did not explain why the
sealed nature of his complaint affects the legal standard for
the question he originally proposes to appeal-namely, whether
specific allegations must satisfy the Rule 15(c)(2) standard
or whether Rule 15(c)(2) applies only to new, separate
claims. And, indeed, Bledsoe was a qui tam action in which
the original complaint was sealed. See Bledsoe, 501
F.3d at 498 ("Relator filed his complaint under
seal[.]"). Because the Court is bound by Sixth Circuit
precedent, and the Sixth Circuit does not distinguish between
new allegations and new claims for purposes of the
relation-back analysis under Rule 15(c)(2), there are no
substantial grounds for a difference of opinion about the
Court's decision regarding relation back.
second question, however, merits certification for
interlocutory appeal. First, whether 31 U.S.C. § 3730(h)
applies to allegations of post-employment retaliatory conduct
is a question of law.
it is a controlling question of law. "All that must be
shown in order for a question to be 'controlling' is
that resolution of the issue on appeal could materially
affect the outcome of the litigation in the district
court." Newsome, 873 F.Supp.2d at 876 (quoting
Eagan v. CSX Transp., Inc.,294 F.Supp.2d 911, 915
(E.D. Mich. 2003)). Here, if the Sixth Circuit holds that 31
U.S.C. § 3730(h) applies to allegations of
post-employment retaliatory conduct, Felten could proceed on
a set of ...