This matter is before the Court on Defendants Heckler & Koch Defense, Inc. (HKD) and Heckler & Koch GmbH’s (HKGmbH) (collectively, Defendants’) Motion for Summary Judgment. 1 For the reasons below, the Court will grant the motion for summary judgment.
I. Background
The undisputed facts are as follows. HKD is a Virginia corporation specializing in the sale of firearms and related equipment to the United States military and state and federal law enforcement agencies. Plaintiff Jason Mann (Mann) is an individual domiciled in the Commonwealth of Virginia. He was employed as HKD’s Law Enforcement Sales Manager from April 2, 2007 until July 17, 2008. Mann’s direct supervisor was Wayne Weber (Weber).
On November 23, 2007, the United States Secret Service (Secret Service) published a Request for Proposals (RFP) to procure assault rifles equipped with ambidextrous selector levers (ambi-levers). Ambi-levers are devices that allow the same rifle to be, used by either a left-handed person or a right-handed person. The RFP required interested parties to submit both a bid and sample rifles by February 29, 2008. In response to the RFP, HKD decided to offer its model HK416 rifle, which was not equipped with ambi-levers.
On February 28, 2009, HKD submitted its bid and sample rifles without ambilevers to the Secret Service. HKD’s written proposal stated that “HK416 ambidextrous selector level item is currently in production and available, however will not be available for the initial delivery date of the test weapons due to import timelines.” Def.’s Mot. for Summ. J., Sorensen Decl. at Ex. 7. The parties dispute the veracity and significance of this statement. Plaintiff was not aware of this statement until after he instituted this action.
Later in the day on which HKD submitted its bid, Weber received aftermarket ambi-levers from a consultant, Larry Vickers (Vickers). The combination of the HKD rifle and the aftermarket ambi-lever did not meet HKD’s typical quality standards. After the Secret Service’s RPF had closed, Weber directed Robbie Reidsma (Reidsma), one of Mann’s subordinates, to hand-deliver the aftermarket ambilevers to Secret Service Officer Galvin. On March 3, 2008, Reidsma gave them to Officer Galvin in a parking lot at night. 2
On April 25, 2008, the Secret Service sent Reidsma a letter rejecting HKD’s response to the RFP because the bid did not comply with the solicitation. Def.’s Mot. for Summ. J., Sorensen Decl. at Ex. 13. It also stated that “[n]o revised proposals will be considered under the subject solicitation.” Id. On May 21, 2008, the Secret Service sent HKD a letter saying that the entire subject solicitation would be canceled.
On March 10, 2008, before the Secret Service took either of these actions, Weber informed Mann about Reidsma’s delivery of the ambi-levers to Officer Galvin. Mann expressed disapproval of this action to both Weber and Reidsma. Mann also shared his concerns with others. John Aliveto (Aliveto), HKD’s Director of Business Development, informed other HKD personnel, including Judy Cox (Cox), HKD’s controller, and Roz Weaving
HKD placed Mann on paid administrative leave for approximately one week, beginning on April 9, 2008. During that time, he was not allowed into HKD’s office unescorted and his access to his HKD email, phone, and files was cut off. On April 14, 2008, Weber sent a four-paragraph e-mail to six HKD employees that included the statement: “You may or may not be aware of what occurred last week, but in the event that you are not, here is a brief update. Jason Mann has been placed on administrative leave as of April 9th, pending an internal investigation.” Def.’s Mot. for Summ. J. Ex. 17. The e-mail also discussed procedures for the employee-recipients to address issues that might arise during Mann’s absence.
On June 11, 2008, Mann filed a complaint against Defendants, alleging one False Claims Act (FCA) violation for retaliation under 31 U.S.C. § 3730(h) and one state-law defamation claim. On June 24, 2008, HKD informed Mann that he was under investigation for his conduct pertaining to an unrelated sale of weapons to the Blue Lake Police Department. HKD suspended him without pay pending the outcome of its investigation. On July 17, 2008, Newton notified Mann that, effective immediately, HKD had terminated his employment for cause.
On July 18, 2008, Mann filed an amended complaint (Amended Complaint) alleging additional violations of the FCA. Specifically, he alleged that Defendants retaliated against him, in violation of 31 U.S.C. § 3730(h), after Mann complained to his superiors about possible fraud on the government (Count I) and again after he filed this action based on those same complaints (Count II). Mann also restated his prior defamation claim (Count III) and brought a second defamation claim based on another statement by one of Defendants’ employees (Count IV). He requested reinstatement or front pay, economic damages for lost wages and benefits, compensatory damages for emotional distress and loss of reputation, punitive damages, injunctive relief to prevent further harm to the public, and reasonable attorney’s fees and costs.
Defendants filed a Motion to Dismiss the Amended Complaint on August 22, 2008. The Court granted this motion with respect to Count II on October 7, 2008,
Defendants moved for summary judgment in their favor on Counts I and III on April 8, 2009. Plaintiff opposed the motion and Defendants filed a reply. This matter is currently before the Court.
II. Standard of Review
Summary judgment is appropriate only if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);
see also Anderson v. Liberty Lobby, Inc.,
A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.”
Anderson,
III. Analysis
Defendants argue that the Court should grant summary judgment in their favor on Count I because the alleged conduct does not violate the FCA. They submit that Count III should be similarly resolved in their favor because the allegedly defamatory statement is not actionable and, in any event, is protected by a qualified privilege. The Court will address the merits of each argument in turn.
A. Count I: Retaliation under 81 U.S.C. § 8730(h)
The FCA creates civil liability for “[a]ny person who knowingly” presents, makes, or uses “a false or fraudulent claim for payment or approval by the Government.” 31 U.S.C. § 3729(a)(l)-(7). A claim under the FCA may be brought by the government, or by an individual in a qui tarn action. Id. at § 3730(h). In addition, § 3730 (Civil Actions for False Claims), under which Plaintiff brings Count I, provides 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.
Id. at § 3730(h).
To prove that an employer retaliated against an employee in violation of 31 U.S.C. § 3730(h), the employee must “prove that (1) he took acts in furtherance of a qui tam suit [i.e. engaged in ‘protected activity’]; (2) his employer knew of these acts; and (3) his employer discharged him as a result of these acts.”
Zahodnick v. Int’l Bus. Mach. Corp.,
1. Proving a Violation of § 3729 is Not an Element of a § 3730(h) Action
As a threshold matter, the Court recognizes that, to avoid summary judgment, Plaintiff need not show that Defendants made a false claim on the government in violation of a separate section of the FCA, 31 U.S.C. § 3729. As the Court
2. Element 1: Plaintiffs Action in Furtherance of a qui tam suit
Again, the first element of a FCA retaliation claim under 31 U.S.C. § 3730(h) requires a plaintiff to show that he took “lawful acts in furtherance of an action filed or to be filed under this section.” Such conduct, referred to as “protected conduct,” is shielded by the FCA and can include, not only filing a qui tam suit under the FCA, but also “investigation for, initiating of, testimony for, or assistance in” an FCA suit. Id.
In line with the Seventh, Ninth, Eleventh, and District of Columbia Circuits, the Fourth Circuit has held that an employee has engaged in protected activity “when litigation is a ‘distinct possibility,’ when the conduct ‘reasonably could lead to a viable FCA action,’ or when ... litigation is a ‘reasonable possibility.’ ”
Eberhardt v. Integrated Design & Constr., Inc,
a. Characterizing Employer’s Activity as Illegal or Fraudulent
The Fourth Circuit has twice addressed the question of whether a plaintiffs activities constitute “protected activity.” Both cases involved situations in which the plaintiffs complained to their supervisors about errors made in billing the government. In the first, the court found that the plaintiff had not engaged in protected activity where he had merely informed his supervisor that other employees were incorrectly charging time spent on one project to another.
Zahodnick v. Int’l Bus. Mach. Corp.,
These cases show that an employee who specifically “characteriz[es] the employer’s conduct as illegal or fraudulent or recommend[s] that legal counsel become involved” may be engaging in protected activity.
Id.
at 868. One who simply reports “mischarging” or investigates “the employer’s non-compliance with federal or state regulations” does not.
Id. (quoting Zahodnick,
The Court finds that only the third category of conduct merits further review. The only evidence before the Court showing that Plaintiff specifically characterized Defendant’s conduct as “illegal” or “fraudulent” pertains to the third category of allegations-regarding Weber’s instructions to give the aftermarket ambi-levers to Officer Galvin. Pl.’s Mem. in Opp’n Ex. 51 at 185-86, 187-89 (Mann Depo.). In his deposition, Plaintiff testified that he complained of Weber’s conduct to a number of people inside and outside of HKD and, in doing so, referred to Weber’s conduct as “illegal.” Pl.’s Mem. in Opp’n Ex. 51 at 187, 189 (Mann Depo.). Based on this testimony, the Court finds that a jury could conclude that Plaintiff alerted to purposeful fraud with respect to the submission of the ambi-levers, rather than mere accidental “mischarging,”
Zahodnick,
It is clear, however, that the other complaints that Plaintiff raised were simply disagreements between himself and his superiors and colleagues regarding how best to pursue the government contract at issue. PL’s Mem. in Opp’n Ex. 51 at 137 (Mann Depo.). At the time, Plaintiff did not allege that the other two categories of actions — submitting a non-conforming rifle in response to an RFP or submitting a rifle with a aftermarket ambi-lever that did not meet HDK’s usual quality standards — were illegal or fraudulent. PL’s Mem. in Opp’n Ex. 51 at 137 (Mann Depo.). He merely advocated for different courses of action, but eventually agreed that HKD should submit a non-compliant bid and a non-complaint rifle. PL’s Mem. in Opp’n Ex. 51 at 137 (Mann Depo.). Further, even if Plaintiff believed or asserted that Defendant’s actions violated the terms of the RFP,
see
PL’s Mem. in Opp’n 8, or federal procurement regulations,
see
PL’s Mem. in Opp’n Ex. 51 at 198-200 (Mann Depo.), allegations pertaining to breaches of contract or violations of federal regulations are simply not “protected conduct” as a matter of FCA law.
See U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc.,
b. Sufficient Connection between Plaintiff’s Conduct and a False Claim
Defendant, however, submits that even Plaintiffs specific allegation that the late
Defendant is correct that the employee’s allegedly protected activity “must concern false or fraudulent claims” to be covered by the FCA’s retaliation section.
Eberhardt,
Eberhardt and Zahodnick are less instructive to the Court in this inquiry into whether Plaintiffs conduct “concern[ed] false or fraudulent claims.” In both, the plaintiffs clearly complained about the defendant’s billing conduct. Neither addresses a plaintiffs complaints about Defendant’s conduct after it submitted a bid for a contract, rather than about claims for payment that it made on the Government.
The Fourth Circuit’s qui tarn cases, however, make it clear that intentional false statements in a bid submitted to the Government for consideration can, in some cases, “constitute! ] false statements under the FCA.”
U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc.,
The legislative history of the FCA also supports this result, as it states that “each and every claim submitted under a contract ... which was originally obtained by means of false statements or other corrupt or fraudulent conduct ... constitutes a false claim.” S.Rep. No. 99-345, at 9 (1986), U.S.Code Cong. & Admin. News 1986, pp. 5266, 5274
(citing U.S. ex rel. Marcus v. Hess,
Based on the above, the Court finds that false or fraudulent statements made during the bidding process can be the basis of a qui tam action under the FCA. The Court recognizes that the bidding process is at least somewhat removed from the process of actually submitting a
c. Existing Formulations for Determining Whether a “Distinct Possibility of Litigation” Exists
Because the Court has found that Plaintiff did allege that Defendant engaged in illegal or fraudulent activity by submitting the ambi-levers to Officer Galvin after the bidding process closed, and because fraud in the bidding process can lead to FCA liability, the Court must now address whether a reasonable jury could find that Plaintiffs conduct made litigation a “distinct possibility,” a “reasonable possibility,” or “reasonably could lead to a viable FCA action.”
Eberhardt v. Integrated Design & Constr., Inc.,
At the outset of its analysis, the Court finds it appropriate to note that the legislative history of the FCA indicates that the courts should interpret “[protected activity ... broadly.” S.Rep. No. 99-345, at 35 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5300. In addition, the Court must view all the evidence presented in the light most favorable to the plaintiff, the non-moving party.
Brock v. Entre Computer Ctrs., Inc.,
In attempting to explain their own “distinct possibility” standards, the D.C. Circuit and two district courts within the Eleventh Circuit have written analyses that are helpful here. First, both the Middle District of Alabama and the Southern District of Georgia highlighted the essential inscrutability of the “distinct possibility” standard. They note that it “ ‘resolves few questions and raises more: A distinct possibility of what? In whose eyes? At what time? And how ‘distinct,’ or presumably non-attenuated, must the ‘possibility’ be? Probable? Foreseeable? Or something less likely?’ ”
Mack v. Augusta-Richmond County, Ga.,
Applying this standard, these courts both concluded that the most important element in the “distinct possibility” analysis is “the purpose of the False Claims Act[’s] ... whistle blower protection, ... assuring that an employer’s motivation behind any action against an employee is not retaliatory.”
Mann,
A different interpretation of the “distinct possibility” requirement, which Defendant urges the Court to apply, is employed by the Third Circuit. It “require[s] that there at least be a distinct possibility that a viable FCA action could be filed.”
Dookeran v. Mercy Hosp. of Pittsburgh,
The Third Circuit’s formulation thus appears to allow the Court to consider all of the information presented to it, not merely that available to either the employee or the employer at the time of the allegedly protected conduct. See id. at 109 (noting that one reason plaintiff did not present a “distinct possibility of litigation” was that the Government denied the hospital’s allegedly fraudulent application). The employee must show the Court that his protected activity related to an actual (rather than potential) “claim” under 31 U.S.C. § 3729. Id. If the employee has insufficient evidence of the “claim,” or was ultimately incorrect that there was a false claim, any resulting retaliation is not actionable under the FCA.
The Court disfavors the Third Circuit’s formulation. It finds that it affords insufficient protection to employees who reasonably believe, based on the information available to them at the time, that their employer is filing fraudulent claims. It protects only employees whose allegation that the employer submitted a false claim is ultimately proven correct. An employee has either two remedies, a qui tam action and a retaliation claim, or none. Neither the Third Circuit nor Defendant has pointed to statutory language, legislative history, or other case law supporting this strict confluence between the application of two separate sections of the FCA. Further, it appears inappropriate to apply the Third Circuit standard in this Circuit, which has recognized that a “claim,” for the purposes of a qui tam action, can include pre-“claim” activity. See Section III.A.2.b, above.
The D.C. Circuit has applied a different interpretation of the “distinct possibility of litigation” requirement.
See U.S. ex rel. Yesudian v. Howard Univ.,
The Court believes that the
Yesudian
interpretation of a “distinct possibility” best effects the purposes of the FCA. It ensures broader coverage for whistle-blower actions than for direct FCA liability pursuant to a § 3729 qui tam action. Broader liability is consistent with the plain language of the FCA retaliation provision, which provides protection for all “lawful acts in furtherance of an [FCA] action,” 31 U.S.C. § 3730(h), and the legis
d. Whether the Purportedly Illegal Activity that Plaintiff Complained of Created a “Distinct Possibility of Litigation”
It is at this point that Plaintiffs FCA retaliation claim unravels. The Court finds that Plaintiffs allegations to various persons, both inside and outside of the HKD organization, regarding Weber’s decision to provide aftermarket ambilevers to Officer Galvin at night, in a parking lot, after the relevant bidding period had concluded, did not create a “distinct possibility” of a claim under the FCA. The Court applies
Yesudian,
First, it is undisputed that HKD did not make any statements to the Secret Service in its bid that Plaintiff identified as false or fraudulent at the time. 4 It submitted a rifle that was non-conforming in a number of ways and that was clearly identified as such. Def.’s Mot. for Summ. J. Ex. 7. The submission of the ambi-levers to Officer Galvin was completed outside of the bidding process and the bidding time. While it appears highly likely that Weber’s conduct violates the RFP and the government’s regulations on the bid process, it did not involve the presentation of “a false or fraudulent claim for payment or approval by the Government.” 31 U.S.C. § 3729(a)(l)-(7).
Further, it could not have ever involved the presentation of “a false or fraudulent claim for payment or approval by the Government.” Id. The ambi-levers were submitted outside of the bid process. Even if the government had accepted HKD’s woefully non-compliant bid as a contract, that contract would be one in accordance with the terms of HKD’s bid: for rifles that were too tall, too heavy, too long, had the wrong trigger, a trigger pull with too much weight, and, of course, no ambilevers. Def.’s Mot. for Summ. J. Ex. 10 (e-mail from Secret Service identifying the six reasons that HKD’s bid failed).
If HKD’s conduct, as alleged by Plaintiff, could result in FCA liability, then all manner of conduct, rather than that that bears some relation to the presentation of a false claim for payment to the Government, would subject government contractors to liability under the various provisions of the FCA. While the Court could debate the wisdom of greater liability for contractors, it is for Congress to establish the boundaries of FCA liability, not the judiciary. Thus, if the Court looks at whether Plaintiffs allegations, if true, would
actually
subject Defendant to liability a qui tam case under the FCA, to determine whether a distinct possibility of
Next, Plaintiff has not submitted any evidence showing that he believed that there were any false statements submitted with the bid. Plaintiff agreed that HKD should submit a nonconforming bid, clearly identified as such, to the Secret Service. Pl.’s Mem. in Opp’n Ex. 51 at 137 (Mann Depo.). Plaintiff also never accused Weber of submitting any false claims for payment on the government. He complained that Weber’s conduct was generally “illegal” and he thought, Pl.’s Mem. in Opp’n Ex. 51 at 188-89 (Mann Depo.), after conducting some research, that it might violate federal regulations, PL’s Mem. in Opp’n Ex. 51 at 190-91 (Mann Depo.). Thus, if the Court looks at whether
Plaintiff
believed, at the time, that Defendant could be liable for false claims on the Government to determine whether a distinct possibility of litigation exists, then it must find that there was no distinct possibility.
See U.S. ex rel. Yesudian v. Howard Univ.,
Finally, Defendant conducted an investigation of Mann’s allegations and determined that Weber’s actions did not subject it to FCA liability. PL’s Mem. in Opp’n Ex. 11 at 79-82 (Einwechter Depo.). Thus, if the Court were to look at whether
Defendant
believed, at the time, that there was a “distinct possibility of litigation” under the FCA, it must find that Plaintiffs conduct did not raise such a distinct possibility.
See Mack v. Augusta-Richmond County, Go.,
Because the Court finds Plaintiffs evidence to be sorely lacking in any connection to a false claim for payment or the FCA, the Court finds that, as a matter of law, Plaintiff did not engage in conduct that may be protected by the FCA’s anti-retaliation provision. The Court acknowledges that Plaintiff may feel that Defendant unfairly retaliated against him for his good-faith concerns about Weber’s questionable conduct, but it is clear to the Court that whatever may have occurred between the parties, Plaintiff is simply not protected by the FCA, an Act which is aimed at a specific subset of conduct involving the government.
3. Element 2: Employer’s Knowledge of Plaintiff’s Actions in Furtherance
Defendants do not argue that the Court should grant summary judgment in their favor because they did not have knowledge of Mann’s “protected activities.” In then-statement of undisputed facts, Defendants acknowledge their receipt of Mann’s allegations. See Defs.’ Mot for Summ. J. ¶¶ 24-26.
4. Element 3: Employer’s Retaliatory Acts
Defendants do not argue that the Court should grant summary judgment in then-favor because Plaintiff cannot show that his working environment changed after he made his complaints. Mann has submitted evidence showing that he was placed on administrative leave, his access to HKD email was cutoff, he was not permitted in the office unescorted, he was ostracized in the office, his responsibilities were reduced, he was suspended, and ultimately, his employment was terminated. See PL’s Mem. in Opp’n at Ex. 51 (Mann Depo.).
In conclusion, for all the reasons discussed above, the Court finds that a reasonable jury could not conclude that Mann engaged in protected activity. In spite of the volumes of documents that Plaintiff
B. Count III: Commons-Law Defamation Claim
In Virginia, common law defamation requires proof of (1) the publication of (2) a false and defamatory statement (3) made with the requisite intent.
Chapin v. Knight-Ridder, Inc.,
1. False & Defamatory Statement
“Virginia law requires that the potential defamatory meaning of statements be considered in light of the plain and ordinary meaning of the words used in context as the community would naturally understand them.”
Id. (citing Old Dominion Branch No. 496 v. Austin,
The disputed statement is contained in an e-mail from Weber to several of Defendant’s employees and states: “You may or may not be aware of what occurred last week, but in the event that you are not, here is a brief update. Jason Mann has been placed on administrative leave as of April 9th, pending an internal investigation.” Def.’s Mot. for Summ. J. Ex 17. These are the first two sentences of a four-paragraph e-mail that went on to discuss how the recipients were to address various issues “[i]n the interim.” Def.’s Mot. for Summ. J. Ex 17. Weber identified three people as contacts for specific issues that might arise and concluded with request for a conference call to “give [the recipients] a bit more guidance in [Mann]’s absence.” Def.’s Mot. for Summ. J. Ex 17.
a. False Statement
Defendant first argues that Court should grant summary judgment in its favor on this claim because the contents of the Weber e-mail are true. It is undisputed that Mann was placed on administrative leave, beginning April 9, 2008, while an investigation inside HKD was pending. Plaintiff, however, argues that the e-mail was false because it implied that Mann was the subject of the internal investigation.
“To be actionable, a statement must be a false statement of fact, not opinion.”
Jafari v. Old Dominion Transit Mgm’t Co.,
Viewing the evidence in the light most favorable to the Plaintiff, the Court finds that the Weber e-mail, along with the “inferences fairly attributable” thereto, could be fairly determined to be a false statement. Plaintiff submitted evidence showing that the e-mail’s recipients inferred from its contents that Mann was the subject of the pending investigation. PL’s Mem. in Opp’n at 26-31 (citing Reidsma Decl., Cox Depo., Cabrera Decl., Pier-son Decl.). Further, whether one is the subject of an investigation or the instigator of the investigation is not a “minor or irrelevant inaceuracfy],” but a key distinction in the work place.
b. Defamatory Statement
Defendant next argues that the Weber e-mail cannot be defamatory as a matter of law. It submits that the e-mail is neutral in content and tone and does not fit into any of the four categories of defamation per se. Statements that are defamatory per se
5
are those which (1) impute to a person a criminal offense of moral turpitude for which the party may be indicted and punished, (2) impute that a person is infected with some contagious disease that would exclude the person from society, (3) impute an unfitness or lack of integrity required to perform official or professional duties, or (4) prejudice a person in his or her profession or trade.
Wells v. Liddy,
As noted above, the Court must consider the defamatory nature of a statement both in light of its express meaning and the “inference, implication or insinuation” that it creates. In section III.B.1, above, the Court found that the Weber e-mail implied a false statement of fact, namely that Mann was the party under investigation. Plaintiff now argues that the Weber e-mail implies that Mann was under investigation specifically for defrauding the government. PL’s Mem. in Opp’n 31. Based on this reading of the e-mail, Plaintiff submits, Weber’s statement makes allegations of criminal activity, moral turpitude, and an unfitness for his career in law enforcement sales, all types of defamation per se. Pl.’s Mem. in Opp’n 31-32.
It is important to note that mere allegations of unsatisfactory job performance do not generally rise to the level of defamation per se.
McBride v. City of Roanoke Redevelopment & Housing,
The Court finds that Plaintiffs proposed interpretation stretches the “natural meaning” of Weber’s statement too far. Plaintiff argues that the e-mail can be defamatory as a matter of law, but acknowledges that it can only be so if the jury piles one inference upon the other. It has submitted evidence to support the first
2. Qualified Privilege
In Virginia, a communication between persons within a corporate entity who have a duty and interest in the subject matter triggers a qualified privilege unless Plaintiff shows by clear and convincing evidence that the communication was made with malice.
Larimore v. Blaylock,
Defendant argues that, if the Court finds that the Weber e-mail can be both false and defamatory per se, the claim Plaintiff brings in Count III must still fail because it is subject to a qualified privilege because it was an intracorporate communication. Plaintiff disagrees, arguing that this e-mail was unnecessary for the corporation and it has submitted sufficient evidence of malice to negate any qualified immunity. The Court has found that the Weber e-mail was not defamatory per se, however, it also finds that Count III cannot proceed because the e-mail is protected by a qualified privilege.
The e-mail was sent to six of Mann’s subordinates and colleagues. These are persons with a duty or interest in Mann’s absence from work. Further, the e-mail served a corporate purpose: to inform the recipients that Mann was absent and would continue to be so, and to instruct them how to handle issues that might arise, in Mann’s absence. “ ‘Public policy and the interest of society demand that ... an employer, or his proper representatives,’ ” be able to freely conduct conversations such as that in this case, to inform employees about the absence of another and how to business should be continued in light of that absence.
Larimore,
Finally, Plaintiff has not submitted sufficient evidence of malice to overcome Virginia’s presumption against it. He has submitted general evidence showing that Weber “seemed angry”
6
about Plaintiffs
IV. Conclusion
For these reasons, the Court will grant Defendants’ motion for summary judgment.
An appropriate Order will issue.
MEMORANDUM OPINION
This matter is before the Court on Plaintiff Jason Mann’s Motion for Reconsideration. For the following reasons, the Court will deny the motion.
I. Background
An abbreviated version of the relevant facts follows. Plaintiff Jason Mann (Mann) was employed by Defendant Heckler & Koch Defense, Inc. (HKD) as its Law Enforcement Sales Manager from April 2, 2007 until July 17, 2008. 1 On November 23, 2007, the United States Secret Service (Secret Service) published a Request for Proposals (RFP) to procure assault rifles equipped with ambidextrous selector levers (ambi-levers). An ambilever is a device that allows the same rifle to be used by either a left-handed or a right-handed person. The RFP required interested parties to submit both a bid and sample rifles by February 29, 2008.
In response to the RFP, HKD offered its model HK416 rifle, which was not equipped with ambi-levers on February 28, 2009. The written proposal stated that “HK416 ambidextrous selector level item is currently in production and available, however will not be available for the initial delivery date of the test weapons due to import timelines.” Def.’s Mot. for Summ. J., Sorensen Decl. at Ex. 7. After the RPF closed, Wayne Weber (Weber), Mann’s supervisor, purchased after-market ambilevers from a third-party. He then directed Robbie Reidsma (Reidsma), one of Mann’s subordinates, to hand-deliver them to a Secret Service Officer. On March 3, 2008, Reidsma did so.
On March 10, 2008, Weber informed Mann about the delivery of the after-market ambi-levers. Mann expressed his disapproval to Weber, Reidsma, and other people inside and outside of HKD. HKD conducted a formal investigation into Mann’s allegations and placed Mann on administrative leave. During this time, it restricted his access to email, phone, files, and the HKD office.
Mann instituted this action on June 11, 2008. He filed an amended complaint (Amended Complaint) on July 18, 2008 stating four claims: retaliation in violation of 31 U.S.C. § 3730(h) after Mann complained to his superiors about possible fraud on the government (Count I), and again after he filed this action (Count II),
In response to Defendants’ Motion to Dismiss the Amended Complaint, the Court dismissed Count II on October 7, 2008. It also dismissed Count IV with prejudice on February 10, 2009 in response to the parties’ joint request. Defendants moved for summary judgment in their favor on the remaining claims— Counts I and III — on April 8, 2009. The Court granted this motion on July 1, 2009. Plaintiff filed a Motion to Reconsider that decision on July 15, 2009. He also filed a notice of appeal to the Fourth Circuit on July 27, 2009. Defendants opposed the Motion to Reconsider on July 23, 2009; Plaintiff replied on August 3, 2009. Plaintiffs motion is currently before the Court.
II. Standard of Review
Under Federal Rule of Civil Procedure, 59(e), a party may file a motion to alter or amend a judgment within ten days of the entry of judgment. A district court has “considerable discretion in deciding whether to modify or amend a judgment.”
Gagliano v. Reliance Standard Life Ins. Co.,
III. Analysis
In this motion, Plaintiff submits that the Court’s July 1, 2009 decision to grant Defendant’s Motion for Summary Judgment on Counts I and III of the Amended Complaint was incorrect. He has moved the Court to alter or amend its judgment under Federal Rule of Civil Procedure 59(e). His arguments relate only to Count I; the Court will thus presume that he seeks reconsideration of only that portion of the Court’s decision. Plaintiff fails to identify the bases of his motion. At one point, however, he uses the phrase “manifest injustice.” Pl.’s Mot. to Recons. 15. The Court will thus extrapolate that Plaintiff requests review of the judgment to “prevent manifest injustice.”
Pacific Ins. Co.,
A. Review of the Law Set Forth in the Memorandum Opinion
For the sake of clarity, the Court will summarize the legal framework that it relied on in its July 1, 2009 decision (Memorandum Opinion). It is well-settled that, to show a violation of 31 U.S.C. § 3730(h), an employee must “prove that (1) he took acts in furtherance of a qui tarn suit [i.e. engaged in ‘protected activity’]; (2) his employer knew of these acts; and (3) his employer discharged him as a result of these acts.” Mem. Op. 626
(quoting Zahodnick v. Int’l Bus. Mach. Corp.,
To determine whether Plaintiff had submitted sufficient evidence that he engaged in protected conduct, the Court relied on the Fourth Circuit’s somewhat amorphous test of protected activity. Mem. Op. 627. This test instructs that protected activity occurs when litigation is a “distinct possibility,” a “reasonable possibility,” or the plaintiffs conduct “reasonably could lead to a viable FCA action.” Mem. Op. 627
quoting Eberhardt v. Integrated Design & Constr., Inc.,
Given the dearth of Fourth Circuit precedent elaborating on the “distinct” or “reasonable” possibility standard, the Court also reviewed the manner in which three other jurisdictions — the District of Columbia Circuit, the Third Circuit, and the district courts within the Eleventh Circuit — have applied it. Mem. Op. 630-32. It then explained why it disfavored the later two formulations and preferred the District of Columbia standard. Mem. Op. 631-32. In that jurisdiction, to determine whether an employee’s activity was “protected,” the court looks to whether he or she possessed a “good faith” belief “at the time of the retaliation” that made it “reasonable to conclude there was a ‘distinct possibility’ [the plaintiff] would find evidence” that the defendant had submitted false claims on the Government. Mem. Op. 633
(citing U.S. ex rel. Yesudian v. Howard Univ.,
As noted above, Plaintiff does not appear to argue that the Court’s analysis of the relevant law is incorrect, rather, he disputes its application of the law to the evidence presented on summary judgment. Plaintiff also objects to various “erroneous factual finding[s]” that it claims the Court made. PL’s Mot. for Recons. 15. The Court will address both of Plaintiffs arguments below.
B. Plaintiff Did Not Present Evidence that Could Show that He Engaged in Protected Activity
It applied all of various formulations of the “distinct possibility of litigation” standard to the evidence before it and concluded that Plaintiffs actions could not have created a “distinct” or “reasonable possibility” of FCA litigation. Mem. Op. 632-33. This result based on the Court’s review of all of the evidence presented in the light most favorable to Plaintiff. Mem. Op. 630.
1. “Disaggregation” of Plaintiff’s Alleged Activities
Plaintiffs motion argues that the Court erred in its analysis when it evaluat
Plaintiff also claims that the Court failed to consider his participation in HKD’s internal investigation, which he submits should have been separately listed as one of Plaintiffs alleged “protected activities.” PL’s Mot. for Recons. 14. The Court, however, did consider Mann’s participation in the internal investigation with Defendant’s Motion for Summary Judgment. Nothing in its opinion contradicts this. The Court thoroughly considered all of the evidence that both parties submitted.
2. Whether the Court Made Erroneous “Factual Findings”
The Court has evaluated the specific “factual findings” to which Plaintiff takes exception in his motion. PL’s Mot. 6, 8, 15. First, the Court notes that it did not make any “factual findings” in disposing of Defendant’s Motion for Summary Judgement. It evaluated all of the evidence before it in the light most favorable to Plaintiff, the non-moving party. Based on its evaluation and the applicable law, it concluded that the evidence presented would not allow a reasonable fact-finder to conclude that Plaintiff had engaged in protected activity. It cited to portions of the record to explain its conclusion. 3
Further, many of the “factual findings” to which Plaintiff objects relate to Defendant’s alleged actions, which are irrelevant to determining whether Plaintiff engaged in protected activity. The remainder simply reflect Plaintiffs disagreement with the Court’s determination that Mann could not have reasonably believed that Defendant had defrauded the Government because his concerns only related to HKD’s alleged violations of federal procurement regulations and the requirements of the RFP.
Plaintiff also argues that the Court inappropriately disregarded various “binding admissions”
4
by Defendant. PL’s Mot. for Recons. 10-13
(citing
Einwechter Depo. 80, 84; Newton Depo. 59-61, 370; Weber Depo. 221, 253). Plaintiff inappropriately raises a new argument regarding these particular “binding admissions” in his motion for reconsideration. “Rule 59(e) motions may not be used [ ] to raise arguments which could have been raised prior to the issuance of the judgment, nor may they be used to argue a case under a novel legal theory that the party had the ability to address in the first instance.”
Pacific Ins. Co. v. Am. Nat’l Fire Ins. Co.,
Finally, Plaintiff asserts that the Court erred in finding that Mann agreed that HKD should submit a non-complaint bid in response to the RFP. Pl.’s Mot. to Recons. 4 (citing Mem. Op. 633). Whether or not the Court made this conclusion in error, such an error would not affect the outcome of this case. The Court did have granted Defendant’s Motion for Summary Judgment even in the absence of this information or the presence of conflicting information.
Plaintiffs other arguments taking issue with the Court’s application of the relevant law to the facts of this case are without merit. Many are based on misconstructions of the underlying deposition testimony, the others relate to evidence or statements that did not form any basis of the Court’s decision.
3. Plaintiff Argues that the Court’s Assessment of the Evidence Before it was Incorrect
Plaintiff argued on summary judgment, and now continues to argue, that his complaints about, investigation of, and participation in an internal investigation of “Weber’s scheme to fraudulently induce a contract award” from the Government constituted protected activity. Pl.’s Mot. for Recons. 2;
see also
Pl.’s Opp’n to Summ. J. 9. The Court stands by its conclusion, however, that Plaintiff did not present sufficient evidence that he engaged in protected activity. Mem. Op. 633. The evidence presented shows that Plaintiff “investigated] nothing more than his employer’s non-compliance with federal or state regulations,”
Yesudian,
In order to convince the Court that its conclusion was incorrect, Plaintiff submits extensive excerpts from the deposition testimony that he presented to the Court in opposition to Defendant’s Motion for Summary Judgment. Pl.’s Mot. for Recons. 2-5 (citations omitted). Although he has presumably selected the most favorable available testimony, these excerpts clearly show that Plaintiff only complained that Defendant’s bid failed to conform to the RFP,
see
Einwechter Depo. 84:1-20; Mann Depo. 190:2-191:1, 293:9-18, or violated federal procurement regulations,
see
Mann Depo. 138:19-141:3. The record also shows that, at the time, Plaintiff himself believed that complained about a breach or a violation of federal regulations. Mem. Op. 633
(citing
Mann. Depo. 190-91 (noting his attempts to research applicable federal regulations to determine whether Defendant had violated them)). Thus, even if Plaintiff at some point included the word “fraud” in his complaints about Defendant, he could not have “uncovered likely fraud” or engaged in protected activity.
Eberhardt v. Integrated Design & Constr., Inc.,
This conclusion holds true even were the Court to presume that Plaintiff did subjectively believe, at the time, that Defendant’s alleged actions constituted “fraud” on the government. A employee’s
Plaintiffs alleged conduct is also clearly distinguishable from that in
Glynn v. EDO Corp.,
Plaintiffs further arguments that an intentionally non-conforming bid or an intentionally non-conforming bid coupled with an intentional violation of federal regulations raise the specter of likely fraud, PL’s Mot. for Recons. 4-5, 13, are without merit. The assertion that non-compliance with any of the myriad of detailed requirements in a RFP could constitute fraud has no basis in either the language of the statute or in current FCA case law. The Court also believes that such a proposition would be clearly unworkable. In addition, the simple combination of two activities that courts have specifically found do not constitute protected activity,
see Yesudian,
4. Plaintiff Argues that “Fraud” is a “Magic Word”
In his motion for reconsideration, Plaintiff argues for the first time
5
that once an employee refers to his employer’s conduct “us[ing] the magic word ‘fraud,’ ” he “presumptively establishes” protected activity. PL’s Mot. for Recons. 3
(citing Zahodnick v. Int’l Bus. Mach. Corp.,
The Court reiterates its original finding that, as a matter of law, Plaintiff did not engage in conduct that may be protected by the FCA’s anti-retaliation provision. See Mem. Op. 633. That Plaintiff simply refuses to accept the Court’s determination that his activities did not constitute protected conduct does not provide him with a meritorious motion for reconsideration.
IV. Conclusion
Plaintiff has failed to show that an alteration or amendment of the Court’s judgment of July 1, 2009 is necessary “to correct a clear error of law or prevent manifest injustice.”
Pacific Ins. Co.,
An appropriate Order will issue.
Notes
. On May 5, 2009, the Court dismissed HKGmbH from this action with prejudice in response to a stipulation of dismissal by Plaintiff and Defendant HDK.
. It is unclear what, if anything, Officer Galvin did with the aftermarket ambi-levers.
. In the course of this litigation, Plaintiff focused on a statement in HKD’s bid that an ambi-lever for the HKD rifle submitted with the bid was "currently in production and available, however it will not be available for the initial delivery date of the test weapons due to import timelines.” Def.'s Mot. for Summ. J. Ex 7. Plaintiff submitted no evidence that he objected to this statement prior to the time that HKD allegedly retaliated against him. That he now believes it to be a false or fraudulent statement is not relevant to whether Defendant, in April 2008, retaliated against him for assisting in an FCA action filed or to be filed.
. See PL's Mem. in Opp’n Ex. 51 at 137 (Mann Depo.); Pl.’s Mem. in Opp’n Ex. 11 at 79-82 (Einwechter Depo.). See also section III.A.2.a at n. 3, above.
. Plaintiff has alleged that the Weber e-mail was defamatory per se, Compl. ¶¶ 111-113, the Court will thus only evaluate whether it meets the requirements of defamation per se.
. Plaintiff has submitted evidence that (1) Weber knew that HKD was investigating his conduct, (2) Reidsma thought that Weber "seemed angry” when he read witness state-merits regarding the aftermarket ambi-levers, (3) Weber admitted that Mann's allegations upset him, (4) Weber attempted to "cover-up”
. On May 5, 2009, in response to a stipulation of dismissal by Plaintiff and Defendant HDK, the Court dismissed a second defendant, Heckler & Koch GmbH, from this action with prejudice.
. Plaintiff labels one of the Court’s conclusions "clearly erroneous," Pl.'s Mot. to Recons. 13, but the "clear error” standard relates to clear errors of law,
see Pacific Ins. Co.,
. That the Court’s review of the evidence presented differs from Plaintiff’s in some respects in unsurprising. In its opposition to Defendant’s Motion for Summary Judgment, Plaintiff consistently misconstrued the deposition testimony to which he cited and on which he relied.
. The Court also believes that Plaintiff’s description of his cited deposition excerpts mischaracterize the relevant testimony.
. Plaintiff's argument thus an inappropriate subject for the instant motion.
Pacific Ins. Co. v. Am. Nat’l Fire Ins. Co.,