NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-3205

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UNITED STATES OF AMERICA EX REL,

EHAB SEFEN

v.

ANIMAS CORPORATION; JOHNSON AND JOHNSON

Ehab Sefen,

 Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-10-cv-02971)

District Judge: Honorable Richard Barclay Surrick

_____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

March 19, 2015

Before: McKEE, Chief Judge, RENDELL, and FUENTES, Circuit Judges.

(Opinion filed: April 13, 2015)

_________

OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

McKEE, Chief Judge.

Appellant Ehab Sefen (“Sefen”) appeals the District Court’s grant of Defendants 

Animas Corporation and Johnson & Johnson’s (collectively “Animas”) Motion to 

Dismiss. For the reasons that follow, we will affirm.1

I.

Prior to July 21, 2010, the False Claims Act (FCA) did not contain an explicit 

limitations period for retaliation claims brought under Section 3730(h). Thus, the 

Supreme Court held that “[t]he most closely analogous state limitations period applies.”

Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409, 411

(2005). Courts within this Circuit have looked to two different Pennsylvania borrowing 

statutes. In United States ex rel. Repko v. Guthrie Clinic, P.C., a district court applied 

Pennsylvania’s Whistleblower law, 43 Pa. Cons. Stat. § 1424, which has a 180-day 

limitations period. 557 F. Supp. 2d 522, 528–29 (M.D. Pa. 2008). However, in Campion 

v. Northeast Utilities, the same district court applied the two-year limitations period 

based on Pennsylvania’s catch-all personal injury statute, 42 Pa. Cons. Stat. § 5524(7). 

598 F. Supp. 2d 638, 653 (M.D. Pa. 2009).

 

1 We have jurisdiction over this matter pursuant to 28 U.S.C.A. § 1291. We review a 

district court’s dismissal of a claim under Federal Rule of Civil Procedure 12(b)(6) de 

novo. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).

We also exercise plenary review where a district court’s dismissal is on statute of 

limitations grounds. Lake v. Arnold, 232 F.3d 360, 365 (3d Cir. 2000). “This plenary 

review extends to the District Court’s choice and interpretation of applicable tolling 

principles . . . .” Id.
3

Since Sefen did not bring his retaliation claim until November 18, 2010, regardless 

of which borrowing statute is applied, Sefen’s claim is untimely under Graham. Further, 

even if the June 17, 2010 filing date of the initial complaint were used, Sefen’s claim 

would still be untimely under both of the borrowing statutes. Recognizing this 

deficiency, Sefen relies on the Dodd-Frank Act, passed on July 21, 2010, which he claims 

should be retroactively applied. 

The Dodd-Frank Act amended the FCA to add a three-year limitations period for 

retaliation claims brought under Section 3730(h). There is no mention in the Act of 

whether it is to apply retroactively.

A “presumption against retroactive legislation is deeply rooted in [Supreme Court] 

jurisprudence.” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994). “[T]he 

‘principle that the legal effect of conduct should ordinarily be assessed under the law that 

existed when the conduct took place has timeless and universal appeal.’” Id. (quoting 

Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., 

concurring)). Accordingly, we apply “this time-honored presumption unless Congress 

has clearly manifested its intent to the contrary.” Hughes Aircraft Co. v. U.S. ex rel.

Schumer, 520 U.S. 939, 946 (1997).

In his well-reasoned opinion, Judge Surrick applied the Supreme Court’s two-part 

test under Landgraf and thoroughly explained why he was granting Animas’s motion to 

dismiss. After determining that “there is an absence of clear and unambiguous guidance 

from Congress regarding retroactivity,” Judge Surrick moved to the second prong of the 

Landgraf analysis. (J.A. 10–11.) In his analysis of the second prong, Judge Surrick 
4

found that “imposing a longer statute of limitations indisputably increases [Animas’s]

liability for past conduct.” (J.A. 11–12.) In so finding, Judge Surrick relied on our 

opinion in Lieberman v. Cambridge Partners, L.L.C., which provides that “the 

resurrection of previously time-barred claims ‘increase[s] a party’s liability’ by 

abolishing a complete defense to suit.” 432 F.3d 482, 492 (3d Cir. 2005) (quoting Enter. 

Mortg. Acceptance Co., LLC, Sec. Litig. v. Enter. Mortg. Acceptance Co., 391 F.3d 401, 

409–10 (2d Cir. 2004)).

Judge Surrick found that, because “[b]oth state limitations periods had already 

elapsed when [Sefen]’s claim was filed,” any retroactive application “would revive a 

moribund cause of action, increasing a party’s liability for past conduct.” (J.A. 14.)

Thus, absent congressional intent for the statute to apply retroactively, Judge Surrick 

found the court “compelled to conclude that [Sefen] cannot claim the benefit of the postamendment version of Section 3730(h).” (Id.) We agree. 2

 

2 Sefen’s principal argument on appeal is that the Dodd-Frank Act implemented a 

“procedural, not substantive” change, and thus “it is appropriate to apply the three year 

statute of limitations.” (Appellant’s Br. 10.) However, Animas correctly points out in its 

brief that this argument was explicitly rejected by the Supreme Court in Hughes Aircraft 

Co. v. U.S. ex rel. Schumer. In Hughes, the respondent claimed that an amendment was 

purely jurisdictional, and thus the Landgraf presumption against retroactivity was 

inapplicable. The Supreme Court rejected this argument and explained: 

Statutes merely addressing which court shall have jurisdiction to entertain a 

particular cause of action can fairly be said merely to regulate the 

secondary conduct of litigation and not the underlying primary conduct of 

the parties. Such statutes affect only where a suit may be brought, not 

whether it may be brought at all. The 1986 amendment, however, does not 

merely allocate jurisdiction among forums. Rather, it creates jurisdiction 

where none previously existed; it thus speaks not just to the power of a 

particular court but to the substantive rights of the parties as well. Such a 
5

Accordingly, we will affirm substantially for the reasons set forth in the 

aforementioned opinion of the District Court. As we find Sefen’s retaliation claim timebarred, we decline to consider whether Sefen stated a claim upon which relief could be 

granted under Rule 12(b)(6).

IIII.

In light of the above, we will affirm the District Court’s grant of the motion to 

dismiss in favor of Animas.

 

statute, even though phrased in “jurisdictional” terms, is as much subject to 

our presumption against retroactivity as any other.

Hughes, 520 U.S. at 950–51 (internal citations omitted). The Dodd-Frank Act is 

sufficiently analogous to the amendment in Hughes. Thus, we reject this argument as 

well.