1

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

 ) 

CRAIG RUTZ and THOMAS LUDVIK ) 

) 

Plaintiffs, ) 

) Case No. 03 C 1907 

v. ) 

) Judge Joan B. Gottschall 

VILLAGE OF RIVER FOREST, ) 

A Municipal Corporation, ) 

) 

Defendant. ) 

MEMORANDUM OPINION AND ORDER

 Plaintiffs and Relators Craig Rutz (“Rutz”) and Thomas Ludvik (“Ludvik”) have 

brought suit against defendant Village of River Forest (“River Forest”) alleging, inter 

alia, violations of the False Claim Act (the “Act” or “FCA”) under 31 U.S.C. § 

3729(a)(7) and unlawful retaliation as proscribed by the same Act under 31 U.S.C. § 

3730(h). River Forest has moved for summary judgment on these two claims. For the 

reasons set forth below, summary judgment in favor of defendant River Forest is granted 

with respect to both the FCA claim under 31 U.S.C. § 3729 (a)(7) and the retaliation 

claim under 31 U.S.C. § 3730(h). 

I. BACKGROUND

 Briefly, plaintiffs’ complaint against River Forest has its origins in a grant 

provided to the River Forest Police Department (“Police Department”) by the Cook 

County Judicial Advisory Committee (“JAC”). Rutz, a lieutenant in the Police 

Department, originally submitted an application on behalf of the Police Department in 

June of 2000 for a Balanced Approach to Drug and Gang Elimination (“BADGE”) grant. 
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Funds for the grant originate in the federal Local Law Enforcement Block Grant 

(“LLEBG”) Program and are under the control and supervision of the JAC, a county 

agency, which reviews and approves the BADGE grant applications. According to the 

terms of the BADGE grant, the funds supplied must be used for the purposes specified in 

the grant award, and any funds not so used must be returned. 

 One of the programs enumerated in the budget of the BADGE grant application 

was a tactical unit targeting crime prevention and drug, alcohol, and gang suppression. 

The personnel of the unit were to consist of Police Department officers paid on an 

overtime basis from the grant’s budget; the budget for the proposed unit constituted 

approximately half of the overall grant budget. The grant was approved in due course by 

the JAC, and the grant funds were made available to the Police Department. 

 In June of 2001, the JAC requested an evaluation (the “report”) by the Police 

Department’s Chief of Police of the programs funded by the BADGE grant. Prior to the 

submission of the report to the JAC, Rutz, the project manager of the BADGE program, 

informed the Chief of Police that the report contained misleading statistics which implied 

that the tactical unit program had been implemented. In point of fact, Rutz claims, the 

unit had not been formed. Nevertheless, the study containing the misrepresentations was 

submitted to the JAC. Rutz subsequently filed this suit claiming, inter alia, multiple 

counts of age and gender discrimination, and violation of, and retaliation under, the FCA. 

It is these latter two claims that the court now addresses. 

 Defendant has moved for summary judgment of plaintiffs’ claims under the FCA; 

specifically, violation of the FCA under 31 U.S.C. § 3729(a)(7) and unlawful retaliation 

under 31 U.S.C. § 3730(h). Under Rule 56(c) of the Federal Rules of Civil Procedure, a 
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movant for summary judgment bears the burden of establishing that there is no genuine 

issue as to any material fact and that the moving party is entitled to a judgment as a 

matter of law. FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 

322-23 (1986). If the nonmoving party fails to make a showing sufficient to establish 

the existence of an element essential to that party's case on which that party will bear the 

burden of proof at trial, then Rule 56(c) mandates a grant of summary judgment. Celotex, 

477 U.S. at 322-23. When considering a motion for summary judgment, the court will 

consider the evidentiary record in the light most favorable to the nonmoving party and 

will draw all reasonable inferences in its favor. Lesch v. Crown Cork & Seal Co., 282 

F.3d 467, 471 (7th Cir. 2002). 

II. ANALYSIS

A. Violation of the False Claims Act, 31 U.S.C. § 3729(a)(7)

 For plaintiffs to succeed on a claim under the FCA, they must demonstrate (1) 

that the defendant made a statement or record in order to obtain money from the 

government; (2) that the record was false or fraudulent, and; (3) that the defendant knew 

the record was false or fraudulent. 31 U.S.C. § 3729(a)(7); See also United States ex rel. 

Gross v. AIDS Research Alliance-Chicago, 415 F.3d 601, 604; (7th Cir. 2005); United 

States. ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1018 (7th Cir. 1999). 

Defendants argue that there are no facts to indicate that the report alleging financial 

misrepresentations made by the Police Department was ever made directly to an officer 

or employee of the federal government for purposes of obtaining grant funding or 

payment and that therefore plaintiffs’ case must fail. 
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 In 1986, Congress amended the FCA definition of “claim” to permit FCA 

lawsuits where the alleged fraud is against a federal grantee. See United States ex rel. 

Yesudian v. Howard Univ., 153 F.3d 731, 737 (D.C. Cir. 1998). Under this new 

definition, “claim” was to be construed to be: 

[A]ny request or demand ... for money or property which is made to a 

contractor, grantee, or other recipient if the United States Government 

provides any portion of the money or property which is requested or 

demanded, or if the Government will reimburse such contractor, grantee, 

or other recipient for any portion of the money or property which is 

requested or demanded. 

31. U.S.C. §3729(c). Combining 31 U.S.C. §§ 3729(a) and 3729(c), the court in 

Yesudian found that the elements of a violation of the FCA are met when: 

[T]he defendant knowingly present[s], or cause[s] to be presented, to an 

officer or employee of the United States ... a false or fraudulent ... request 

...to a ... grantee ... if the United States Government provides any portion 

of the money ... which is requested ..., or if the Government will 

reimburse [the] ... grantee ... for any portion of the money ... which is 

requested. 

153 F.3d at 738. In keeping with its interpretation of Congressional intent, the court 

found that a false claim to a grantee of federal funds was “effectively presented” to the 

United States because the payment comes out of funds supplied by the federal 

government. Id. (quoting the Senate Judiciary Committee: “[A] false claim to the 

recipient of a grant from the United States or to a State under a program financed in part 

by the United States is a false claim to the United States.” S. REP. NO. 99-345, at 10 

(1986), as reprinted in 1986 U.S.C.C.A.N. 5275, 5275).1

 

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 The Yesudian court speculated that such a claim might not apply to all grantees. For example, a claim 

under the FCA might not be appropriate if the grantee’s federal funds are an insubstantial portion of the 

total budget, if the there is little likelihood that any of defendant’s money was actually derived from federal 

funds, or if there is little continuing contact between government and grantee after the grant is made. 

Yesudian, 153 F.3d at 738. 

 The court in the present case notes further that the court in United States ex rel. Totten v. Bombardier 

Corp. rejected the notion of “effective presentation” in light of the plain language of the statute. No. Civ.A. 
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 In the present case, it is undisputed that the JAC was a grantee of the federal 

government; the funds used for the BADGE grant were derived from the LLEBG 

Program, which is funded by the federal Bureau of Justice Assistance. However, the 

court need not address the issue of whether the federal LLEBG Program funds obtained 

via the Cook County JAC were “effectively presented” to the federal government, 

because plaintiffs fail to meet the principal requirement of a claim: that it be a “request or 

demand ... for money or property.” 31. U.S.C. § 3729(c). 

 According to the Seventh Circuit, the essence of the first element of an FCA 

action is that there must be a fraudulent statement, the purpose of which must be to coax 

a payment of money from the federal government. Gross, 415 F.3d at 604. Quoting the 

statutory language, the court in Gross found that liability attaches only when a false 

statement is used “to get a false or fraudulent claim paid or approved by the 

Government.” Id. (quoting 31 U.S.C. § 3729(a)(2)). Plaintiffs have alleged no facts to 

support their contention that the report at issue, which was presented to the JAC 

approximately one year after the grant application was submitted, was in any way a 

demand or a request for money; those funds had already been disbursed by the JAC. 

Indeed, the original grant application, which could be construed as a demand or request, 

was in fact assembled and submitted by plaintiff Rutz. Rutz has adduced no facts to 

demonstrate that the Police Department, in bad faith, had no intention of forming the 

tactical unit prior to the submission of the original grant and the disbursement of the 

funds. 

 98-0657RWR, 2003 WL 22769033, at *2 (D. D.C. March 16, 2003). The court noted that Congress had 

retained the unambiguous language of the statute prior to amendment requiring presentment to an officer or 

employee of the United States. Id.
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 Rutz declares in his affidavit that, when discussing the report with Police 

Department Chief of Police Michael Holub, Holub told him that one of the purposes of 

the report, which contained the alleged misrepresentations, was to secure future LLEBG 

grant funding for the Police Department. However, Rutz alleges no facts to indicate that 

the misrepresentations in the report were ever used to apply for funding at a later date, or 

to otherwise solicit government funding. Since the alleged false statements in the report 

were never used directly to request or demand funding from the federal government, but 

only to account for how previously disbursed funds had been spent, however 

misleadingly, plaintiffs fail to meet the first required element of the FCA. Their claim 

must, consequently, fail and summary judgment be granted in favor of the defendant. 

B. Retaliation under the False Claims Act 

The FCA recognizes a private cause of action for violation of 31 U.S.C. § 3729 

when brought in a qui tam action by plaintiffs, known as relators, on behalf of the United 

States. 31 U.S.C. § 3730(b)(1); see also Hindo v. Univ. of Health Sci./The Chicago Med. 

Sch., 65 F.3d 608, 612-13 (7th Cir. 1995). The FCA also prohibits retaliation against 

plaintiffs who bring such suits (and who are often employees of the defendants against 

whom they bring the action) and prescribes the available remedies. 31 U.S.C. § 3730(h).2

 

 

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 35 U.S.C. § 3730(h) reads as follows: 

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. Such relief shall include 

reinstatement with the same seniority status such employee would have had but for the 

discrimination, 2 times the amount of back pay, interest on the back pay, and 

compensation for any special damages sustained as a result of the discrimination, 

including litigation costs and reasonable attorney’s fees. An employee may bring an 

action in the appropriate district court of the United States for the relief provided in this 

subsection. 
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Plaintiffs allege that Rutz was unlawfully demoted, harassed, and refused promotion as a 

result of his calling public attention to the misrepresentations in the report. 

 In moving for summary judgment on this claim, defendant contends that 

plaintiffs’ claim under § 3730(h) is untimely, and therefore barred by the statute of 

limitations, and that plaintiffs have otherwise failed to meet their burden. Since Rutz 

filed his retaliation claim under 31 U.S.C. § 3730(h) in April 2007, the question arises as 

to whether the alleged events of retaliation occurred within the time frame encompassed 

by the statutory limit. 

 Both parties agree that the six-year statute of limitations set forth in the FCA does 

not govern FCA actions for retaliation brought under § 3730(h). Rather, in Graham 

County Soil and Water Conservation District v. United States ex rel. Wilson, the United 

States Supreme Court held that for such claims the “most closely analogous state 

limitations period applies.” 545 U.S. 409, 422 (2005). The question thus presents itself: 

what is the most closely analogous state statute of limitations period? 

 Defendant contends that the most closely analogous state statute of limitations is 

the two-year limitations period for injury to the plaintiff’s person, as prescribed in 735 

ILCS 5/13-202.3

 Plaintiffs counter with the argument that the five-year limitations period 

for retaliatory discharge prescribed by 735 ILCS 5/13-205 is the more closely analogous 

Illinois statutory period. Plaintiffs cite in support Berghoff v. R.J. Frisby Manufacturing 

Co. and Henon v. Lever Brothers Co., both of which hold that actions for retaliatory 

 

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 735 ILCS 5/13-202 reads in part: 

Actions for damages for an injury to the person, or for false imprisonment, or malicious 

prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal 

conversation, except damages resulting from first degree murder or the commission of a 

Class X felony and the perpetrator thereof is convicted of such crime, shall be 

commenced within 2 years next after the cause of action accrued. 
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discharge fall within the “all civil actions not otherwise provided for” provision of 735 

ILCS 5/13-205.4 720 F. Supp. 649, 652 (N.D. Ill. 1989); 449 N.E.2d 196, 197 (Ill. App. 

Ct. 1983). Rutz was not actually discharged in retaliation for his actions, which is an 

essential element of an action for retaliatory discharge, see Stebbings v, Univ. of Chicago, 

726 N.E.2d 1136, 1140 (Ill. Ct. App. 2000), but it is conceivable that an adverse job 

action in retaliation against Rutz for filing suit against River Forest could fall under this 

“catch-all” provision of 735 ILCS 5/13-205. 

 The court, however, disagrees with both parties and finds that the closest 

analogous Illinois statute to this case is the Local Government and Governmental 

Employees Tort Immunity Act (the “Tort Immunity Act”). See 745 ILCS 10/1-101 et 

seq. The statute of limitations provision of that Act reads in part: 

No civil action other than an action described in subsection (b) [which 

imposes a two-year limitation period for actions for damages for injury or 

death] may be commenced in any court against a local entity or any of its 

employees for any injury unless it is commenced within one-year from the 

date that the injury was received or the cause of action accrued. 

745 ILCS 8/1-101(a). 

 River Forest is indisputably a “local entity” within the contemplation of the Tort 

Immunity Act, which is defined, inter alia, as: 

[A] county, township, municipality, municipal corporation, school district, 

school board, educational service region, regional board of school trustees, 

trustees of schools of townships, treasurers of schools of townships, 

community college district, community college board, forest preserve 

district, park district, fire protection district, sanitary district, museum 

 

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 735 ILCS 5/13-205 reads in part: 

[A]ctions on unwritten contracts, expressed or implied, or on awards of arbitration, or to 

recover damages for an injury done to property, real or personal, or to recover the 

possession of personal property or damages for the detention or conversion thereof, and 

all civil actions not otherwise provided for, shall be commenced within 5 years next after 

the cause of action accrued. 
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district, emergency telephone system board, and all other local 

governmental bodies. 

745 ILCS 10/1-206. 

 Even if the court were to accept plaintiffs’ theory that retaliatory discharge is the 

closest analogy, plaintiffs would nevertheless be limited to a one-year statute of 

limitations. Illinois courts have held that such a tort claim against a local entity, as 

defined by the Tort Immunity Act, falls within the one-year time bar of the Tort 

Immunity Act instead of the five-year statutory limit provided when the defendant is a 

private corporation.5 Halleck v. County of Cook, 637 N.E.2d 1110, 1113 (Ill. App. Ct. 

1994). Plaintiffs’ invocation of Berghoff and Henon is thus unavailing as the defendants 

in those cases were private corporations, rather than local government entities, and hence 

were not under the aegis of the Tort Immunity Act. Halleck, 637 N.E.2d at 1113. 

 Plaintiffs might appropriate defendant’s contention that the retaliatory action 

constituted a personal injury. “Personal injury” is defined in part under the Tort 

Immunity Act as: 

[D]eath, injury to a person, or damage to or loss of property. It includes 

any other injury that a person may suffer to his person, reputation, 

character or estate which does not result from circumstances in which a 

privilege is otherwise conferred by law and which is of such a nature that 

it would be actionable if inflicted by a private person. 

745 ILCS 10/1-204. It is conceivable that the retaliatory acts alleged by plaintiff, which 

include a transfer in duties to patrol officer and denial of promotion, could fall under 

 

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 The court notes in passing that, under certain circumstances, the Tort Immunity Act may be preempted. 

For example civil rights actions brought under 42 U.S.C. §§ 1981, 1982, 1983, and 1985 are governed by 

the two-year statute of limitations for personal injury, preempting the one-year limitations period under the 

Tort Immunity Act. See Wolf v. City of Chicago Heights, 828 F. Supp. 520, 522 (N.D. Ill. 1993) (citing 

Goodman v. Lukens Steel Co., 482 U.S. 656, 661 (1987). However, the United States Supreme Court has 

not specified what the closest analogous statute is for retaliation claims made under the False Claim Act. 

Graham County, 545 U.S. at 422. Nevertheless, application of the one-year bar for retaliatory discharge 

under the Tort Immunity Act or the two-year bar under the personal injury section of the Act results in the 

same outcome in the instant case. 
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injury to reputation, character, or estate. At most, however, this would provide only a 

two-year statutory limitation period under 745 ILCS 8/1-101(b). 

 Plaintiffs were granted leave to file their amended complaint to allege retaliation 

under the FCA, on April 5, 2007. Since most of the events that Rutz claims were made in 

retaliation occurred prior to April 2005, viz., the assignment to patrol duties and his 

failure to be selected for promotion in 2002 and 2004, those claims are barred by either 

the one-year limitation on claims for retaliatory discharge or the two-year personal injury 

statutory limitation of the Tort Immunity Act. 

 A motion for summary judgment should be granted when the undisputed facts 

show that, under the applicable statute of limitations, plaintiffs’ claim is barred. Deer v. 

New York Cent. R. Co., 202 F.2d 625, 628 (7th Cir. 1953). Since plaintiff’s claim of 

retaliation in violation of the FCA is time barred with respect to his alleged demotions 

and failures to be promoted, all of which occurred prior to April 2005, there remains no 

genuine issue of material fact in dispute and defendant’s motion for summary judgment 

on this portion of the claim is therefore granted. 

 There remains plaintiffs’ claim that Rutz continued to receive poor performance 

appraisals and demeaning assignments from April 2005 until the time their amended 

complaint was filed in April 2007. These alleged retaliatory acts were within the 

statutory period: if the statute for personal injury is applied under 745 ILCS 8/1-101(b) of 

the Tort Immunity Act, any alleged retaliation between April 2005 and April 2007 would 

be within the statutory limits. If the limitations period under 745 ILCS 8/1-101(a) (the 

limitation for other actions against local entities) is applied, any retaliatory acts between 

April of 2006 and April of 2007 would be within the limit. To survive summary 
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judgment on those claims, plaintiffs must provide evidence that (1) their actions were 

taken in furtherance of an FCA enforcement action and were therefore protected by the 

statute; (2) the defendant had knowledge that the plaintiff was engaged in the protected 

conduct; and (3) the retaliatory acts were motivated, at least in part, by the protected 

conduct. United States ex rel. Lang v. Northwestern Univ., No. 04 C 3290, 2006 WL 

408192, at *3 (N.D. Ill. Feb. 13, 2006). 

 Plaintiffs must first show that Rutz’s actions, which were the cause of the alleged 

retaliation, were protected under the statute. An employee may not be the object of 

retaliatory actions “because of lawful acts done ... 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.” 31 U.S.C. § 3730(h). Rutz need not have had actual knowledge of 

the FCA for his actions to constitute protected activity, but he must show that an FCA 

action was a “distinct possibility” at the time of the investigation in order to invoke the 

statutory protection. Fanslow v. Chicago Mfg. Ctr., 384 F.3d 469, 479 (7th Cir. 2004) 

(quoting Neal v. Honeywell, Inc., 33 F.3d 860, 864 (7th Cir. 1994)). The relevant test 

contains both subjective and objective elements: Rutz must show that (1) he had a 

reasonable belief that the River Forest was defrauding the government with false claims; 

and (2) a reasonable employee in the same or similar circumstances would also have had 

the same belief. Fanslow, 384 F.3d at 479-80. 

 The question thus turns on whether Rutz’s actions in response to the defendant’s 

alleged misrepresentations in the report were directly related to a government payment, 

and whether Rutz’s whistleblowing could have led to an action under the False Claims 

Act. Cf. Moore v. Cal. Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838, 846 (9th Cir. 
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2001). For the reasons set forth supra, the report in which the alleged misrepresentations 

were made was neither a demand nor a request for money and therefore cannot constitute 

a “claim” as defined by the statute. 31. U.S.C. § 3729(c). Neither Rutz, nor a similarlysituated individual, could have reasonably believed that the report, which contained an 

evaluation of the Police Department’s programs, was, by itself, a request or demand for 

federal money. Absent the making of a false claim in the form of a request or a demand 

for payment by the Police Department, there can be no action under the FCA. Id. Rutz 

cannot therefore demonstrate that there was a “distinct possibility” of an FCA suit against 

the defendant and cannot reclaim any money or property spent. Since it is not possible 

that the alleged misrepresentations in the report could have led to an action under the 

FCA, Rutz’s activities were not protected by 31 U.S.C. § 3730(h), and therefore his claim 

of retaliatory acts that fall within the statutory limitations period fails. Since Rutz has 

failed to make a showing sufficient to establish the existence of an element essential to 

plaintiffs’ case on which plaintiff would bear the burden of proof at trial, Rule 56(c) 

mandates a grant of summary judgment. Celotex, 477 U.S. at 322-23. 

III. CONCLUSION

For the reasons stated above, summary judgment in favor of defendant River 

Forest is granted with respect to both the False Claims Act under 31 U.S.C. § 3729 (a)(7) 

and the retaliation claim under 31 U.S.C. § 3730(h). 

ENTER: 

 /s/____ 

 JOAN B. GOTTSCHALL 

 United States District Judge 

DATED: October 25, 2007