United States ex rel. Williams v. Martin-Baker Aircraft Co.United States ex rel. Williams v. Martin-Baker Aircraft Co.
- Reporters:
- ,
- Before:
- Sentelle, Tatel, Roberts
Dean F. Pace argued the cause and filed the briefs for appellant United States of America.
Harvey G. Sherzer argued the cause for appellee Teledyne Ryan Aeronautical. With him on the brief was Scott Arnold.
Matthew H. Kirtland argued the cause for appellee Martin-Baker Aircraft Company, Ltd. With him on the brief was Stephen M. McNabb.
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: In this case, a qui tam relator alleges that his former employer and one of its subcontractors violated the False Claims Act. The relator also alleges that by suspending and ultimately firing him, the employer violated the statute‘s protections for whistleblowers. The district court dismissed both claims—the false claims count for failure (among other things) to plead fraud with the particularity required by
I.
A plaintiff, either an individual or the United States, may state a claim under the False Claims Act (“FCA“) by alleging that a defendant “knowingly ma[de], use[d], or cause[d] to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government.”
The False Claims Act contains a “whistleblower” provision to protect qui tam relators, who are often either current or
Appellee Martin-Baker Aircraft manufactures Naval Aircrew Ejection System (“NACES“) seats for U.S. Navy aircraft. Appellee Teledyne Technologies, a Martin-Baker subcontractor, produces the “NACES sequencer,” an electronic component of the ejection seat. Martin-Baker sells the seats to the Navy in production batches known as “lots.” For each lot, Martin-Baker negotiates the price of the sequencer with Teledyne and then negotiates the price of the entire ejection seat with the Navy. Pursuant to the Federal Acquisition Regulations (“FAR“), which require government contractors to certify that “to the best of [their] knowledge and belief, the cost or pricing data [are] accurate, complete, and current as оf the date of agreement on price,” Teledyne had to certify to Martin-Baker the accuracy of the data for the sequencer, and Martin-Baker had to certify the same to the Navy for the ejection seat lots. See
Appellant Richard Williams served as Martin-Baker‘s Chief Contract Negotiator from 1991 until the company fired him in July 1996. Williams‘s responsibilities included assessing the reasonableness of Martin-Baker‘s prime contracts with the Navy, which entailed analyzing Teledyne‘s cost and pricing data. Williams also participated in prime contract negotiations with the Naval Air Systems Command (“NAVAIR“) contracting team.
In 1997, Williams filed a qui tam action against Martin-Baker, Teledyne, and another defendant not involved in this appeal. Twice amending his complaint, Williams served only the third version, i.e., the Second Amended Complaint (throughout this opinion, we shall refer to it as “the complaint“), on Martin-Baker and Teledyne. After five years and numerous extensions of time, the government chose not to intervene.
Although difficult to decipher, Count I of the complaint generally alleges that Martin-Baker and Teledyne violated
In Count III (Count II is not at issue in this appeal), Williams alleges that in February 1996, he reported to his superior, Peter Hogg, that he had recommended to NAVAIR that it “continue to challenge” the cost or pricing data for Lot XI of the sequencer. Id. ¶ 40. Martin-Baker, Williams alleges, then “abruptly concluded” his mission with NAVAIR and “ordered [him] to return to Martin-Baker whereupon Williams was immediately suspended.” Id. Williams claims that Martin-Baker then “forced” him to see “a company doctor . . . and then a specialist for a contrived mental illness,” despite his personal physician‘s сertification that he was fit to work. Id. ¶ 41. The company eventually fired Williams “in retaliation . . . on the contrived and false ground of indeterminate mental illness and mental incapacity.” Id. ¶ 43. According to the complaint, Martin-Baker later “retracted its mental incapacity reason for the employment termination,” writing a letter to his insurance company “con-
Following a hearing, the district court granted the companies’ motion to dismiss, doing so with prejudice. Finding Count I‘s allegations “simultaneously excessively prolix and equally abstruse,” the district court ruled the count violated
Williams appeals the district court‘s dismissal of Counts I and III. We consider each in turn.
II.
At the outset, we reject Williams‘s argument that
Rule 9(b) is not . . . to be read in isolation from other procedural canons. As Professor Moore notes, “[t]he requirement of particularity does not abrogate Rule 8, and it should be harmonized with the general directives in subdivisions (a) and (e) of Rule 8 that the pleadings should contain a ‘short and plain statement of the claim or defense’ and that each averment should be ‘simple concise and direct.‘”
United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1386 (D.C. Cir. 1981) (quoting 2A J. Moore, Federal Practice ¶ 9.03, at 9-28 (2d ed. 1980)) (footnote omitted). Combining Rules 8 and 9(b), we require that “the pleader . . . state the time, place and content of the false misrepresentations, the fact misrepresented and what was retained or given up as a consequence of the fraud.” Kowal, 16 F.3d at 1278 (quoting Joseph, 642 F.2d at 1385); see also Totten, 286 F.3d at 552. We also require pleaders to identify individuals allegedly involved in the fraud. See Joseph, 642 F.2d at 1385-86.
We agree with the district court that Count I fails
The complaint also fails to identify with specificity who precisely was involved in the fraudulent activity. See id. at 1385-86. The complaint repeatedly refers generally to “management” and provides a long list of names without ever explaining the role these individuals played in the alleged fraud—an especially surprising deficiency given that Williams worked for Martin-Baker and with Teledyne for five years. See, e.g., Compl. ¶¶ 9, 11-13, 16, 21. This imprecision not only failed to give the companies sufficient information to answer the complaint, but it also subjected the named individuals to vague, potentially damaging accusations of fraud. See United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1051-52 (9th Cir. 2001) (finding that an FCA claim lacked the requisite particularity under
Equally obscure is the “fact misrepresented.” See Kowal, 16 F.3d at 1278. In some places, such as in paragraph 15, the complaint seems to allege that Martin-Baker‘s certificates of cost or pricing data wеre false because the company failed to
Elsewhere, such as in paragraph 9, Williams appears to allege that Teledyne engaged in misrepresentation by failing to update the costs it did disclose. But when asked by the district court, “Are you alleging that they misrepresented what historical actual cost per sequencer was?,” Williams‘s counsel answered “no.” Counsel‘s response also undermines paragraph 11‘s allegation that Teledyne‘s failure to use historical cost data meant the company had employed fraudulent methods as a cover-up. Given counsel‘s admission that Teledyne did not misrepresent the data, what exactly did Teledyne need to “cover up“? Paragraph 11 provides no answer. Paragraph 11 suffers from other significant gaps: Only one of its six allegations includes a date and none names any involved individuals or mentions what was “retained or given up” as a result of the fraud. Kowal, 16 F.3d at 1278.
According to Williams, paragraph 10 alleges precise “false claims calculations.” That paragraph states,
The NACES Sequencer proposed and negotiated Certificates of Cost and Pricing Data by Defendants Teledyne . . . and Martin-Baker were false in violation of the False Claims Act, . . . inter alia false certification of the difference between the contract unit prices and the historical actual cost for the NACES Sequencer Lots IV through XIII without limitation thereof.
Perhaps anticipating difficulties under this circuit‘s case law, Williams relies on United States ex rel. Harris v. Bernad, 275 F. Supp. 2d 1, 8-9 (D.D.C. 2003), a district court decision that relaxes the particularity requirements for qui tam plaintiffs. We need not decide whether that decision comports with circuit law, for Williams‘s cоmplaint fails even its less strict standard. In Harris, the district court found that the relator pled with sufficient particularity because the complaint alleged a “span of time” instead of exact dates, named individual defendants, noted where the fraud took place, alleged facts that exemplified the fraudulent scheme, and used a statistical sample to describe the fraudulently gained benefit. Id. By contrast, Williams‘s complaint alleges no start date, names a laundry list of individuals without specifying their relation to the fraudulent scheme, see, e.g., Compl. ¶¶ 9, 13, alleges a plaсe only twice, id. ¶¶ 12, 14, and sets forth no facts that exemplify the purportedly fraudulent scheme, see, e.g., id. ¶¶ 10, 15.
Williams contends that his complaint lacks specificity because Martin-Baker and Teledyne have possession of the critical documents. It is certainly true that qui tam plaintiffs, frequently former employees of the parties they sue, often have difficulty getting access to their former employers’ documents. Accordingly, this circuit provides an avenue for plaintiffs unable to meet the particularity standard because defendants control the relevant dоcuments—plaintiffs in such straits may allege lack of access in the complaint. Kowal, 16 F.3d at 1279 n.3. Neither in his complaint nor before the district court did Williams make any such allegations. He
In sum, although
One last point. The district court dismissed the complaint with prejudice. Williams asks that should we agree with the district court that Count I fails
After Martin-Baker and Teledyne moved to dismiss, Williams told the district court that “if this Honorable Court
“While
Given Williams‘s failure to articulate to the district court anything more than a bare request to amend his complaint, we affirm the dismissal of Count I with prejudice.
III.
Turning to Count III, we review de novo the district court‘s dismissal of that count for failure to state a claim under
The FCA‘s whistleblower protections entitle
[a]ny 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, . . . to all relief necessary to make the employee whole.
(1) he engaged in protected activity, that is, “acts done . . . in furtherance of an action under this section“; and (2) he was discriminated against “because of” that activity. To establish the second element, the employee must in turn make two further showings. The employee must show that: (a) “the employer had knowledge the employee was engaged in protected activity“; and (b) “the retaliation was motivated, at least in part, by the employee‘s engaging in [thаt] protected activity.”
153 F.3d 731, 736 (D.C. Cir. 1998) (quoting S. Rep. No. 99-345, at 35, reprinted in 1986 U.S.C.C.A.N. 5266, 5300).
In dismissing Count III, the district court found that Williams could not have been engaged in “protected activity” because Martin-Baker fired him 18 months before he filed his FCA complaint. See Williams, No. 97-2699 at 7 (D.D.C. May 15, 2003). Martin-Baker does not seriously defend this disposition, and for good reason. In Yesudian, we reversed the
Martin-Baker argues that Williams has failed to allege that he engaged in “protected activity” as required by Yesudian. Because “Williams has not alleged any actions on his part beyond his ordinary job requirements in reporting or investigating potential government fraud and non-compliance with federal contract regulations,” the company contends, it could not have known that he was engaged in “protected activity.” Martin-Baker Br. at 34-35. Although this argument conflates Yesudian‘s first two requirements—that the employee engage in “protected activity” and that the employer have notice—we read Martin-Baker‘s brief as raising only the latter. Though entitled “Williams Fails To Allege That He Engaged In ‘Protected Activity’ While Employed At Martin-Baker,” section II.A of the company‘s brief deals only with lack of notice. See Artis v. Greenspan, 158 F.3d 1301, 1302 n.1 (D.C. Cir. 1998) (stating that issues not briefed are waived).
The standard for notice, as Yesudian explains, is flexible: “the kind of knowledge the defendant must have mirrors the kind of activity in which the plaintiff must be engaged.” 153 F.3d at 742. “Unless the employer is aware that the employee is investigating fraud, . . . the employer could not possess the retaliatory intent necessary to establish a violation of
Examining Count III‘s allegations under Yesudian‘s flexible standard, we generally agree with Martin-Baker that Williams‘s activities fall within his responsibilities аs Chief Contract Negotiator and so could not have placed Martin-Baker on notice. As Williams conceded both in his brief and at oral argument, he “did his job” when he informed Martin-Baker management of the results of his audits of Teledyne‘s data. Williams Br. at 10.
By the same logic, however, when an employee acts outside his normal job responsibilities or alerts a party outside the usual chain of command, such action may suffice to notify the employer that the employee is engaging in protected activity. See Ramseyer, 90 F.3d at 1522-23 (holding that plaintiff failed to satisfy notice prong whеre plaintiff communicated information about noncompliance to her superiors, but “gave no suggestion that she was going to report such noncompliance to government officials“); Neal v. Honeywell Inc., 33 F.3d 860, 861, 864 (7th Cir. 1994) (upholding whistleblower claim where plaintiff told employer‘s legal counsel about fraud and counsel informed the government). Williams‘s advice to NAVAIR “to continue to challenge” Teledyne‘s cost or pricing data—Count III‘s sole allegation of protected activity—represents just this type of action. Instead of merely reporting his concerns about Teledyne uр Martin-Baker‘s management chain, Williams went outside the company and alerted the government—the victim of any FCA violation. Indeed,
At oral argument, Martin-Baker insisted that Williams‘s statement to NAVAIR was in fact part of his job responsibilities. Martin-Baker might well be able to establish this proposition either at summary judgment or at trial, but at this stage of the proceedings—a
Citing a Fifth Circuit decision, Martin-Baker also argues that Williams failed to satisfy Yesudian‘s notice requirement because the complaint never characterizes his concerns as involving “illegal, unlawful, or false-claims investigations.” See Robertson, 32 F.3d at 952. Though Yesudian cites that decision, 153 F.3d at 744, we did not adopt the Fifth Circuit‘s view that an employee whose job responsibilities coincide with statutorily protected activity must incant talismanic words to satisfy the notice element, and joining several other circuits, we decline to do so here. See McKenzie v. BellSouth Telecommunications, Inc., 219 F.3d 508, 515 (6th Cir. 2000); Childree v. UAP/GA AG CHEM, Inc., 92 F.3d 1140, 1146 (11th Cir. 1996); Neal, 33 F.3d at 864. Not only does section
Finally, we can easily dispose of Martin-Baker‘s argument that Williams fails Yesudian‘s causation requirement. By claiming that his suspension and termination occurred just after he disclosed the NAVAIR conversation to his superior, Williams has satisfactorily alleged that his protected activity caused Martin-Baker‘s retaliation.
IV.
Because Williams‘s false claims allegations fail to meet the requirements of
So ordered.