UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ RAMESH SHARMA, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-1033 (GK) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION

Plaintiff, Ramesh Sharma, a former employee of the District of

Columbia Office of Contracting & Procurement (“OCP”), brings this

action against Defendant, District of Columbia, for retaliation in

violation of the D.C. Whistleblower Protection Act (“DCWPA”),

et seq., and the federal False Claims Act (“FCA”),

. This matter is presently before the Court on

Defendant’s Motion to Dismiss under Federal Rule of Civil Procedure

12(b)(6). Upon consideration of the Motion, Opposition, Reply, and

the entire record herein, and for the reasons set forth below, the

Motion to Dismiss is denied in its entirety.

I. Background

In January 2003, Plaintiff was hired as a Senior Contract

Specialist by the OCP, an agency of the District of Columbia

government. Compl. ¶¶ 3, 8. Beginning in 2005 and continuing until

early 2009, Plaintiff alleges that various D.C. employees pressured

him to approve contracts that were fraudulent, wasteful, and

violated D.C. and federal laws and regulations.

. Plaintiff refused to approve these contracts and filed a series of

whistleblower complaints with various D.C. and federal agencies.

. In alleged retaliation for his whistleblowing

activities, Plaintiff was allegedly demoted, stripped of his

contracting officer authority, deprived of various employment

opportunities within the D.C. government, and otherwise

discriminated against.

.

In March 2009, the construction contracting group at OCP,

where Plaintiff worked, was moved to the D.C. government’s Office

of Property Management (“OPM”).

. In connection

with this move, Plaintiff’s co-workers were transferred to other

positions within OCP or were sent to the new OPM construction

contracting division.

. Plaintiff, by contrast,

received a notice of Reduction in Force (“RIF”) shortly after the

reorganization.

. This notice, which was dated May 18,

2009, was received by Plaintiff on May 29, 2009, and was effective

as of June 19, 2009.

. Plaintiff was the only member of

the OCP construction contracting group who was subjected to a RIF.

. On June 3, 2009, Plaintiff was placed on administrative

leave with pay.

.

On June 11, 2009, Plaintiff filed a whistleblower complaint

and a complaint about the RIF with the D.C. Inspector General’s

Office.

. On June 19, 2009, Plaintiff’s RIF went into

effect and he was terminated from employment.

. On July

-2- 16, 2009, Plaintiff appealed the RIF decision to the D.C. Office of

Employee Appeals (“OEA”).

. Plaintiff withdrew his appeal

without prejudice on April 11, 2010.

. Subsequently, the

OEA dismissed Plaintiff’s appeal with prejudice on April 13, 2010.

.

On June 18, 2010, Plaintiff filed the instant Complaint

against the D.C. government [Dkt. No. 1]. On September 1, 2010,

Defendant filed its Motion to Dismiss all of Plaintiff’s claims

(“Def.’s Mot.”) [Dkt. No. 5]. On October 4, 2010, Plaintiff filed

his Opposition to Defendant’s Motion to Dismiss (“Plaintiff’s

Opp’n”) [Dkt. No. 7]. On October 21, 2010, Defendant filed its

Memorandum in Reply to the Plaintiff’s Opposition to the District’s

Motion to Dismiss (“Def.’s Reply”) [Dkt. No. 9].

II. Standard of Review

Under Rule 12(b)(6), a plaintiff need only plead “enough facts

to state a claim to relief that is plausible on its face” and to

“nudge[] [his or her] claims across the line from conceivable to

plausible.” Bell Atl. Corp. v. Twombly,

(2007).

“[A] complaint [does not] suffice if it tenders naked assertions

devoid of further factual enhancement.” Ashcroft v. Iqbal,

(2009) (internal quotations omitted) (citing

Twombly,

). Instead, the complaint must plead facts

that are more than “merely consistent with” a defendant’s

liability; “the pleaded factual content [must] allow[] the court to

-3- draw the reasonable inference that the defendant is liable for the

misconduct alleged.”

at 1940 (citing Twombly,

).

“[O]nce a claim has been stated adequately, it may be

supported by showing any set of facts consistent with the

allegations in the complaint.” Twombly,

. Under the

standard set forth in Twombly, a “court deciding a motion to

dismiss must . . . assume all the allegations in the complaint are

true (even if doubtful in fact) . . . [and] must give the plaintiff

the benefit of all reasonable inferences derived from the facts

alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,

(D.C. Cir. 2008) (internal quotations and citations

omitted). See Tooley v. Napolitano,

(D.C. Cir.

2009) (declining to reject or address the government’s argument

that Iqbal invalidated Aktieselskabet).

III. Analysis

Defendant argues that Plaintiff fails to state a claim for

relief under both the DCWPA and the FCA.

With regard to the DCWPA claim, Defendant raises substantive

as well as procedural challenges. In bringing its substantive

challenge, Defendant argues that many of Plaintiff’s allegations

are not covered by the DCWPA. In terms of its procedural challenge,

Defendant makes the over-arching claim that recent amendments to

the DCWPA do not apply to incidents, such as Plaintiff alleges,

that occurred before the amendments went into effect. In the

-4- alternative, Defendant argues that Plaintiff’s DCWPA claim must be

dismissed as preempted by the D.C. Comprehensive Merit Personnel

Act (“CMPA”),

et seq.

A. Plaintiff’s DCWPA Claim

The DCWPA is intended to “[e]nsure that the rights of [D.C.]

employees to expose corruption, dishonesty, incompetence, or

administrative failure are protected” and to shield these employees

“from reprisal or retaliation for the performance of their duties.”

(5),(7).

Under the DCWPA, D.C. employees have the right “to disclose

information unlawfully suppressed, information concerning illegal

or unethical conduct which threatens or which is likely to threaten

public health or safety or which involves the unlawful

appropriation or use of public funds.”

(2). The

statute obligates these employees to “make all protected

disclosures concerning any violation of law, rule, or regulation,

contract, misuse of government resources . . . as soon as the

employee becomes aware of the violation or misuse of resources.”

(7). The DCWPA prohibits supervisors from

taking or threatening to take “prohibited personnel actions”1 or to

otherwise retaliate against an employee because of her protected

1 The DCWPA defines a “prohibited personnel action” as including, among other things, a “recommended, threatened, or actual termination, demotion, suspension, or reprimand.”

.

-5- disclosures or her refusal to comply with an illegal order.

(a).

1. Defendant’s Substantive Argument Misperceives Plaintiff’s Claim

In its Motion, Defendant argues that “many” of the allegations

raised by Plaintiff “are not ‘prohibited personnel actions’ as

defined by the [DCWPA].” Def.’s Mot. 5 n.1. This argument, in turn,

rests on the theory that Plaintiff’s DCWPA claim relies on numerous

separate violations of the statute. However, as reflected in the

Complaint, Plaintiff’s claim is, in fact, based on one and only one

incident, namely, the RIF. Compl. ¶ 141 (“By laying off plaintiff,

defendant retaliated against him because of his whistle-blowing

activities and thereby violated the D.C. Whistleblower Protection

Act . . . .”); Plaintiff’s Opp’n 23-24.

While the Complaint does contain numerous allegations that

Plaintiff made protected disclosures and was retaliated against for

his whistleblowing activities, those incidents are not the basis of

his DCWPA claim. Rather, these are factual allegations presented to

support Plaintiff’s sole legal claim under the statute, namely that

the RIF was retaliatory. With respect to this RIF, Defendant does

not challenge its status as a “prohibited personnel action” under

the DCWPA.

Accordingly, the Court denies Defendant’s substantive

challenge to Plaintiff’s DCWPA claim, which is based solely on the

-6- RIF. The Court will now turn to Defendant’s procedural arguments

against Plaintiff’s DCWPA claim.

2. The 2010 Amendments to the Statute of Limitations and Pre-Suit Notice Requirement Are Retroactive

As already noted, the parties disagree about the applicability

of the Whistleblower Protection Amendment Act of 2009, which went

into effect on March 11, 2010 (“2010 Amendments”), 2010 D.C. Legis.

Serv. 18-117 (West), and amended the DCWPA originally enacted in

1998. Def.’s Mot. 3-6; Plaintiff’s Opp’n 26-28.

First, the 2010 Amendments changed the DCWPA’s statute of

limitations from “1 year after a violation occurs or within 1 year

after the employee first becomes aware of the violation” to “3

years after a violation occurs or within one year after the

employee first becomes aware of the violation, whichever occurs

first.” 2010 Amendments, Sec. 3(c).

Second, the 2010 Amendments eliminated the DCWPA’s pre-suit

notice requirement, contained in

(“12-309

notice”), that had required employees to give written notice to the

D.C. Mayor’s office “within six months after the injury or damage

was sustained,” providing the “approximate time, place, cause, and

circumstances of the injury or damage.” 2010 Amendments, Sec. 2(c).

Defendant argues that because the 2010 Amendments lack clear

language supporting their retroactive application, this Court

“should apply the well established rule disfavoring retroactive

application[] of statutes.” Def.’s Mot. 4. In response, Plaintiff

-7- claims that D.C. and federal case law establishes that procedural

amendments, such as those involved here, may generally be applied

retroactively. Plaintiff’s Opp’n 26-27. Plaintiff also points to

recent case law from the D.C. courts that has specifically found

the DCWPA amendments to the statute of limitations and pre-suit

notice requirement to be retroactive.

; Plaintiff Ex. 5 -

Notice of Supplemental Authority (Nov. 30, 2010) [Dkt. No. 11]:

Davis v. District of Columbia, No. 2005-CA-8772 B (D.C. Super. Ct.

Nov. 23, 2010).

It is well-settled that on issues of District of Columbia law

this Court defers to the decisions of the local D.C. courts.

Williams v. Martinez,

(D.C. Cir. 2009). As

Plaintiff correctly points out, recent D.C. case law does indeed

establish that the 2010 Amendments to the statute of limitations

and § 12-309 notice requirement are retroactive.

In Cusick v. District of Columbia, No. 2008-CA-6915 (D.C.

Super. Ct. Aug. 17, 2010), the D.C. Superior Court held, in an oral

opinion, that the amendments to the DCWPA’s statute of limitations

and § 12-309 notice requirement were procedural. Plaintiff Ex. 3

(Oct. 4, 2010) [Dkt. No. 7-3] - Transcript of August 17, 2010

Cusick v. District of Columbia, Tr. 23:11-30:25. Therefore, the

court concluded that the 2010 Amendments should be applied

retroactively to a DCWPA claim alleging retaliation that occurred

in 2007. Id. In holding that the Amendments were procedural in

-8- nature, the court stated that “if a procedural statute is amended

the rule is that the amendment applies to pending proceedings as

well as to those instituted after the amendment . . . .” Id. at Tr.

29:9-12. The court further held that, in its view, “the committee

report [on the 2010 Amendments] is clear . . . that the statute is

to apply retroactively.” Id. at Tr. 27:1-2.

In Davis, the D.C. Superior Court also held that the 2010

Amendments to the statute of limitations and § 12-309 notice

requirement were retroactive and therefore applied to a DCWPA claim

involving events occurring in 2001 and 2004. In reaching this

conclusion, the court relied on the distinction between substantive

and procedural amendments drawn in Landgraf v. USI Film Products,

,

(1994). Davis, No. 2005-CA-8772 B,

slip op. at 4. In keeping with Landgraf, the court concluded that

procedural statutes “may often be applied to lawsuits arising

before their enactment without raising concerns about

retroactivity.” Id. at 5 (internal quotations and citations

omitted). Based upon Landgraf, as well as a review of the

Amendments’ legislative history, the court concluded that changes

to the DCWPA’s statute of limitations and § 12-309 notice

requirement are procedural and therefore retroactive. Id. at 4-7.2

2 Several recent decisions from this District Court have specifically held that the change to the pre-suit notice requirement is procedural and therefore retroactive. Williams v. Johnson, 06-cv-02076, slip op. at 9-11 (D.D.C. May 23, 2011) (continued...)

-9- In briefing on the pending Motion to Dismiss, Defendant fails

to even address this case law or to otherwise respond to

Plaintiff’s claim that the amendments are procedural.3 However, in

its Reply to the Metropolitan Washington Employment Lawyers

Association’s (“MWELA”) amicus brief filed in this case, Defendant

does challenge Plaintiff’s claim regarding the § 12-309 notice

provision. District of Columbia’s Reply to MWELA’s Amicus Curiae

Brief, 3 (Feb. 16, 2011) [Dkt. No. 17]. In its Reply, Defendant

argues that because elimination of the § 12-309 notice requirement

amounts to an “unconditional waiver of sovereign immunity” that has

“changed the terms under which [the District of Columbia] is

subject to suit,” the § 12-309 notice amendment is substantive, not

procedural, and, therefore, should not be applied retroactively.

2 (...continued) (holding that amendment to DCWPA pre-suit notice requirement is procedural and therefore retroactive); Bowyer v. District of Columbia, 09-cv-0319,

(D.D.C. Apr. 29, 2011) (same); Winder v. Erste, 03-cv-2623, slip op. at 4-5 (D.D.C. Mar. 7, 2011)(same). At least one judge in this District Court has, however, held that the 2010 Amendments as a whole are not retroactive. Payne v. District of Columbia,

(D.D.C. 2010). In Davis, No. 2005-CA-8772 B, slip op. at 7 n.6, the D.C. Superior Court distinguished Payne, observing that “[t]he opinion in Payne . . . reached these conclusions without considering the distinction between retroactive application of substantive and procedural laws, the legislative history of the DCWPA amendments, or the District of Columbia case law . . . .” 3 Although the Davis case was issued after briefing on the Motion was complete, the Cusick case was included in Plaintiff’s Opposition brief. Plaintiff’s Opp’n 26. Defendant did not address this case in its reply brief or generally respond to Plaintiff’s argument regarding the procedural nature of the DCWPA amendments applicable to this matter.

-10-

The sovereign immunity defense is jurisdictional and can,

therefore, be raised at any time. FDIC v. Meyer,

,

(1994); JB Pictures, Inc. v. Dep’t of Defense,

(D.C. Cir. 1986). Consequently, although Defendant

presented this claim for the first time in reply to an amicus

brief, the argument is properly before this Court.

As case law establishes, Defendant’s sovereign immunity

argument lacks merit. The D.C. courts have clearly held that the

pre-suit notice provision, which is contained in

-

309, does not constitute a waiver of sovereign immunity. Tucci v.

District of Columbia,

(D.C. 2008). Rather,

pre-suit notice “is a condition precedent which, if not met, will

prevent the destruction of sovereign immunity. . . . A waiver of

sovereign immunity must be found in some other source [like] a

separate statute . . . .”

(internal quotations and

citations omitted). With regard to DCWPA claims, the D.C.

government waived its sovereign immunity when it first passed the

statute in 1998. Williams, 06-cv-02076, slip op. at 11; Bowyer,

. Consequently, the 2010 amendment to the

DCWPA’s pre-suit notice requirement did not create a substantive

change to the D.C. government’s liability. Bowyer,

. Rather, it was a procedural amendment and therefore subject

to retroactive application. Williams, 06-cv-02076, slip op. at 11;

-11- Bowyer,

.

In line with applicable D.C. law, this Court holds that the

2010 Amendments to the DCWPA’s statute of limitations and § 12-309

notice provision are procedural and therefore retroactive. The

Court will now consider whether these Amendments preclude dismissal

of Plaintiff’s DCWPA claim.

a. Statute of Limitations

Under the 2010 Amendments, a civil action is timely if

instituted "within 3 years after a violation occurs" or "within one

year after the employee first became aware of the violation,"

whichever occurs first.

(a)(2). According to

the Complaint, on May 29, 2009, Plaintiff, who was on sick leave at

the time, received a RIF notice. Compl. ¶ 116. The notice was dated

May 18, 2009.

. On June 19, 2009, Plaintiff’s RIF “became

effective and he was terminated from employment.”

.

There is no dispute that a one year statute of limitations

applies to this case, but what is disputed is the date on which

this limitations period begins. Plaintiff argues that the

limitations period started on June 19, 2009, the effective date of

the RIF. Plaintiff’s Opp’n 23-25. Defendant argues that the statute

of limitations began to run either on May 18, 2009, the date the

RIF notice was issued, or on May 29, 2009, the date Plaintiff

-12- received the notice.4 Def.’s Mot. 3-5; Def.’s Reply 1-2.

To resolve this issue, the Court must determine, as a matter

of law, when Plaintiff’s discharge from employment occurred.

According to D.C. and federal case law, termination occurs at “the

time of the discriminatory act, not [at] the point at which the

consequences of the act become painful.” Stephenson v. American

Dental Ass’n,

(D.C. 2002) (quoting Chardon v.

Fernandez,

,

(1981) (per curiam))

(emphasis in original). Accordingly, a plaintiff is terminated from

employment when she receives "final, unequivocal, and definite"

notice of her termination, even if the effective date occurs later.

Del. State College v. Ricks,

,

(1980); Cesarano v. Reed Smith, LLP,

, 465 (D.C. 2010)

(quoting Barrett v. Covington & Burling, LLP,

(D.C. 2009)); Stephenson,

. A notice of

termination will not be final, unequivocal, and definite if the

possibility of returning to work remains open. Cesarano, 990 A.2d

at 467.

In this case, Plaintiff concedes that he received notice of

the RIF on May 29, 2009. The Complaint is, however, silent as to

4 Defendant argues that the statute of limitations bars all allegations raised by Plaintiff that occurred prior to these dates. Def.’s Mot. 4-5; Def.’s Reply 1-2. However, as discussed supra, this argument misconstrues Plaintiff’s DCWPA claim, which is based only on his RIF. Consequently, the Court will only address Defendant’s statute of limitations argument regarding the RIF.

-13- the specific content of the RIF notice.5 In briefing on the pending

Motion to Dismiss, Plaintiff argues that the RIF notice "merely

proposed" termination because Plaintiff "was still employed and on

the payroll until June 19. . . . [and] the termination was not

effective until June 19." Plaintiff’s Opp’n 24. Plaintiff also

argues that since he “could not have appealed his termination to

the Office of Employee Appeals until after June 19” the limitations

period should not begin before that date. Id.

Because this matter is raised in a Rule 12(b)(6) motion, the

court must “resolve ‘[a]ll factual doubts . . . and all

inferences . . . in favor of the plaintiff.’” U.S. ex rel. Williams

v. Martin Baker Aircraft Co.,

(D.C. Cir.

2004) (quoting Tele-Commc’ns of Key West, Inc. v. United States,

(D.C. Cir. 1985)). Accordingly, because

there is no evidence that the RIF notice gave “final, unequivocal,

and definite” notice of termination, the Court concludes that

Plaintiff’s termination did not occur until he was finally

discharged from work on June 19, 2009. Consequently, Plaintiff’s

DCWPA claim, which was filed on June 18, 2010, falls within the one

year statute of limitations.

5 Curiously, neither party submitted a copy of the RIF notice. Presumably, more facts about this notice will surface as the litigation proceeds.

-14- b. § 12-309 Notice

Pursuant to the 2010 Amendments, Plaintiff was not required to

file notice, under Section 12-309 of the D.C. Code, with the D.C.

Mayor’s Office. However, Defendant’s argument on this issue fails

under either version of the statute because Defendant’s only claim

is that the § 12-309 notice provision bars those allegations

occurring before May 18, 2009. Def.’s Mot. 5-6. As the Court has

explained, supra, this argument misconstrues Plaintiff’s DCWPA

claim, which is based only on the RIF. Moreover, Defendant concedes

that Plaintiff filed proper pre-suit notice for his RIF challenge.

Def.’s Mot. 6; Compl. ¶ 153. Consequently, there are no grounds

under either the earlier DCWPA or the 2010 Amendments to dismiss

Plaintiff’s DCWPA claim for failure to file § 12-309 notice.

For the forgoing reasons, the Court denies Defendant’s motion

to dismiss Plaintiff’s DCWPA claim as barred by the statute of

limitations and § 12-309 notice requirement.

2. The CMPA Does Not Preempt Plaintiff’s DCWPA Claim

The CMPA is “[w]ith few exceptions . . . the exclusive remedy

for a District of Columbia employee who has a work-related

complaint of any kind.” Robinson v. District of Columbia,

(D.C. 2000) (citation omitted). The statute establishes “a

merit personnel system that, among other things, provides for (1)

employee ‘performance ratings,’ including ‘corrective actions’ when

necessary; (2) employee discipline through ‘adverse action’

-15- proceedings; and (3) prompt handling of employee ‘grievances.’”

District of Columbia v. Thompson,

(D.C. 1991)

(citations omitted). Under the CMPA, an employee must exhaust the

applicable administrative procedures before pursuing judicial

remedies. Robinson,

. Thus, they are required to

first bring their challenge to the OEA, and may thereafter appeal

any adverse decision to the D.C. Superior Court and thereafter to

the District of Columbia Court of Appeals. Thompson v. District of

Columbia,

(D.C. 2009).

Defendant argues that Plaintiff’s DCWPA claim is covered by

the CMPA and therefore preempted by that statute’s requirement to

exhaust administrative remedies. Def.’s Mot. 7-9. Specifically,

Defendant claims that because of CMPA preemption, Plaintiff’s only

recourse was to appeal the April 2010 OEA decision on his RIF to

the D.C. Superior Court, which he failed to do. Id. at 8-9.

To ascertain whether the CMPA applies in this case, the Court

must determine: (1) whether Plaintiff was an employee covered by

the statute; and (2) whether Plaintiff’s DCWPA claim qualifies as

a “grievance” under the CMPA. While Plaintiff does not deny that he

is a covered employee,6 he argues that his RIF is actionable under

6 According to

, the CMPA applies to “all employees of the District of Columbia government, except the Chief Judges and Associate Judges of the Superior Court of the District of Columbia and the District of Columbia Court of Appeals and the nonjudicial personnel of said Courts.” While

- 602.01(c) lists certain categories of D.C. employees who are (continued...)

-16- both the DCWPA and the CMPA. Plaintiff’s Opp’n 29. Plaintiff

contends that because of this “concurrent jurisdiction” he was not

required to exhaust administrative remedies before bringing his

DCWPA claim in federal court.

.

a. The DCWPA Does Not Require Exhaustion of Administrative Remedies

The DCWPA was passed in 1998 as an amendment to the CMPA,

which was enacted in 1979. Its purpose was to “increase protection

for District government employees who report waste, fraud, abuse of

authority, violations of law, or threat[s] to public health or

safety,” and “to impose an enforceable obligation on District

government supervisors to report violations of law when

circumstances require, and to afford the same whistleblower

protections to employees of District instrumentalities and

employees of contractors who perform work on District contracts.”

Whistleblower Protection for Certain District Employees, 1998 D.C.

Laws 12-160, Act 12-398.

It is clear that the DCWPA was intended to supplement the CMPA

by “enhanc[ing] the rights of District employees to challenge the

actions or failure of their agencies and to express their views

without fear of retaliation,” and by “provid[ing] new rights and

remedies to guarantee and ensure that public offices are truly

6 (...continued) excepted from the CMPA, Plaintiff does not fall into any of these groups.

-17- public trusts.”

(1),(3). Among the rights that

the DCWPA clearly and unequivocally provided was the right of D.C.

employees to bring civil actions against the D.C. government to

enforce whistleblower rights and protections. See

-

615.54(a)(1) (“An employee aggrieved by a violation of [the DCWPA]

may bring a civil action against the District. . . .”).

As Plaintiff correctly points out, the DCWPA permits an

employee to pursue both administrative and judicial remedies.

(b).7 In addition, the statute permits an employee

to completely forego administrative remedies and bring only a civil

action.

(a). As the Supreme Court held in

Pierce County, Washington v. Guillen, “[w]hen Congress acts to

amend a statute, we presume it intends its amendment to have real

and substantial effect.”

,

(2003)

7 Section 1-615.56 provides:

a. The institution of a civil action pursuant to § 1.615.54 shall preclude an employee from pursuing any administrative remedy for the same cause of action from the Office of Employee Appeals or from an arbitrator pursuant to a negotiated grievance and arbitration procedure or an employment contract.

b. An employee may bring a civil action pursuant to § 1-615.54 if the aggrieved employee has had a final determination on the same cause of action from the Office of Employee Appeals or from an arbitrator pursuant to a negotiated grievance and arbitration procedure or an employment contract.

.

-18- (internal quotations and citation omitted) (alteration in

original). Defendant’s argument that DCWPA claims are subject to

the CMPA’s administrative exhaustion requirement would, however,

deprive the DCWPA of precisely such “real and substantial effect”

because it would create a mandatory administrative scheme for DCWPA

claims that Section 1-615.56 of the statute explicitly excludes.

Statutory interpretations that create such “absurd results are

strongly disfavored.” United States v. Wilson,

, 361

(D.C. Cir 2002) (internal quotations and citation omitted).

b. Case Law Also Fails to Establish that the CMPA Preempts Claims Brought Under the DCWPA

D.C. case law, while not extensive, also provides persuasive

evidence that CMPA preemption is inapplicable to DCWPA claims. See

Williams v. District of Columbia,

(D.C. 2010)(no mention

of CMPA or need to exhaust administrative remedies in case alleging

violations of DCWPA); Wilburn v. District of Columbia,

(D.C. 2008)(same); Johnson v. District of Columbia,

(D.C. 2007) (same).8 Although the CMPA’s administrative exhaustion

8 In Raphael v. Okyiri,

(D.C. 1999), plaintiff challenged her termination under the CMPA and also instituted a civil action in D.C. Superior Court in which claims were brought under both the CMPA and an earlier version of the whistleblower statute. Notably, plaintiff brought her civil action before exhausting her administrative remedies. See

(noting that plaintiff’s whistleblower claim constituted a “separate civil action” from her administrative proceeding and had gone to trial “less than four weeks” after plaintiff had won her administrative claim). In rendering its decision, the court did not in any way suggest that the CMPA’s administrative remedies should have been (continued...)

-19- requirement was applied to a DCWPA claim in Burton v. District of

Columbia,

(D.C. 2003), plaintiff had failed to raise

his argument on this issue in the proceedings below and therefore

the Court of Appeals refused to consider it. Defendant provides no

authority other than Burton, which is clearly distinguishable,

applying CMPA preemption to a DCWPA claim.9

For the foregoing reasons, the Court denies Defendant’s

argument that the CMPA preempts Plaintiff’s DCWPA claim.

8 (...continued) exhausted before plaintiff brought her whistleblower action. Although Raphael was decided in 1999, the events at issue in that case occurred well before the DCWPA’s enactment. Because the DCWPA explicitly provided that it was not applicable to claims arising before its enactment, a previous version of the D.C. whistleblower law governed the dispute.

at 937 n.1. 9 Defendant cites other cases, all of which involve only CMPA preemption of common law and constitutional claims. Def.’s Mot. 7- 8; Def.’s Reply 2-3. See Johnson v. District of Columbia,

(D.D.C. 2005)(dismissing plaintiff’s wrongful termination and constitutional claims as explicitly covered by CMPA and holding that issue of CMPA’s applicability to tort claims should be determined in first instance by OEA), aff’d,

(D.C. Cir. 2008); Robinson,

(holding that CMPA preempted plaintiff’s tort claims); Bd. of Trustees, Univ. of D.C. v. Myers,

(D.C. 1995) (holding that breach of contract claim brought by professor against University of the District of Columbia was preempted by CMPA-sanctioned collective bargaining agreement between university and its employees); District of Columbia v. Thompson,

(holding that CMPA applied to preclude litigation of common law tort claims in the first instance).

-20- B. Plaintiff’s FCA Claim

The FCA prohibits individuals from “knowingly present[ing], or

caus[ing] to be presented, a false or fraudulent claim for payment

or approval” to the U.S. government.

(a)(1)(A).

Under the statute, an employee who has been discriminated against

for engaging in protected activities may bring a civil action

against her employer. Section 3730(h), which is the basis of this

cause of action, provides that:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee . . . in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.

(h).

To make out a claim of retaliation under the FCA, an employee

must demonstrate that: “(1) he engaged in protected activity . . .

and (2) he was discriminated against because of that activity.”

U.S. ex rel. Yesudian v. Howard Univ.,

(D.C. Cir.

1998) (internal quotations and citation omitted). Where there is no

direct evidence of discrimination, “the employee must . . . 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

-21- employee's engaging in [that] protected activity.”

(internal

quotations and citations omitted) (alteration in original).

Defendant essentially argues that Plaintiff’s FCA claim fails

because he has not presented facts establishing a prima facie

case.10 Def.’s Mot. 10-11. This, however, is not the standard to be

applied to a Rule 12(b)(6) motion to dismiss. It is well-

established that this standard requires only that a complaint

contain “sufficient factual matter, accepted as true, to state a

claim for relief that is plausible on its face.” Iqbal,

(emphasis added). A claim is facially plausible when the

pleaded factual content “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

Applying this standard, the Court will now consider whether

Plaintiff has stated a plausible claim for relief under the FCA.

1. Engaging in Protected Activities

Under the FCA, an employee engages in protected activity when

she “discloses fraud and corruption, as opposed to making a

‘complaint about mere regulatory compliance.’” Kakeh v. United

10 Defendant argues that Plaintiff fails the test in Yesudian for several reasons. First, Plaintiff’s complaint is “devoid of facts which would lead this Court to conclude that any of the alleged irregularities reported by the plaintiff could have led to a viable [FCA] claim.” Def.’s Mot. 10. Second, Plaintiff cannot show that Defendant had knowledge of his protected activities because his “complaints can be interpreted as unprotected grumbling about job dissatisfaction or regulatory violations.” Id. at 11. Finally, Plaintiff cannot show that his RIF resulted from his “protected activities” because those activities occurred long before the RIF.

-22- Planning Org., Inc.,

(D.D.C. 2009)

(quoting Yesudian,

). A plaintiff does not need

to have “developed a winning [case] before [she] is retaliated

against.” Yesudian,

. Rather, it is sufficient that

her disclosures “reasonably could lead” to a viable FCA case.

.

Plaintiff has made numerous allegations that he repeatedly

complained about D.C. officials pressuring him to rubber stamp

contracts and invoices that were fraudulent and wasteful. Compl. ¶¶

10-11, 13, 17-19, 26, 35-37. These allegations specify the

government employees involved, detail the fraudulent and wasteful

nature of these contracts and invoices, and provide information

regarding the approximate time period when the violations occurred.

Plaintiff has more than adequately pled these allegations with

sufficient particularity to reasonably lead to a viable FCA claim.

Cf. Martin-Baker Aircraft Co.,

(holding that on a

12(b)(6) motion plaintiff’s whistleblower allegations under the FCA

are subject only to the general pleading requirements of Federal

Rule of Civil Procedure 8).

Consequently, Plaintiff has alleged sufficient facts to

demonstrate that he engaged in protected activities which

“reasonably could lead” to a viable FCA claim.

-23- 2. Knowledge of Plaintiff’s Protected Activities

As our Court of Appeals has held, the standard for

establishing employer knowledge is “flexible.”

Under the FCA,

a plaintiff may establish such knowledge by alleging “any action

which a factfinder reasonably could conclude would put the employer

on notice that litigation is a reasonable possibility.”

(internal quotations and citation omitted). Where plaintiff alleges

that he acted “outside his normal job responsibilities” or

“alert[ed] a party outside the usual chain of command” to the

fraudulent activity, “such action may suffice to notify the

employer that the employee is engaging in protected activity.”

(citation omitted). Plaintiff is not required to “announce he has

gone outside the institution” to report an FCA violation. Yesudian,

.

Plaintiff has made numerous allegations that, if proven, would

establish Defendant’s knowledge of his protected activities.

Plaintiff spoke to his supervisor about the fraudulent and wasteful

actions occurring in his agency. See, e.g., Compl. ¶¶ 17-18, 35-37.

When his supervisor pressured him to disregard these violations and

approve the offending contracts and invoices, Plaintiff went beyond

the management chain and outside the OCP to complain by filing two

formal complaints with the U.S. Department of Justice. Id. ¶¶ 34,

94.

-24- Consequently, Plaintiff has presented allegations that, if

proven, could lead a fact-finder to “reasonably conclude” that

Defendant had knowledge of Plaintiff’s protected activities.

3. Causation

Defendant urges this Court to use the “temporal proximity”

test to decide whether Plaintiff’s termination was caused by his

protected activities. Def.’s Mot. 11; Def.’s Reply 3-5. Under that

test, courts determine causation based upon the lapse in time

between plaintiff’s protected activity and the adverse employment

action. While this Circuit has used temporal proximity in certain

circumstances, it has, contrary to Defendant’s position, often

looked beyond mere temporal proximity and evaluated causation based

on the totality of a plaintiff’s allegations.

Most recently, in Taylor v. Solis,

(D.C. Cir. 2009), our Court of Appeals analyzed a retaliation claim

by considering both temporal proximity as well as the pattern of

antagonism plaintiff suffered prior to the reprisals. Several of

our district court cases have also established that a number of

factors, including but not limited to temporal proximity, are

relevant to evaluating causation. See Walker v. England,

(D.D.C. 2008) (holding that “temporal

proximity . . . is not the exclusive method of showing a causal

connection”); Barry v. U.S. Capitol Guide Bd., No. 04-cv-0168,

at *6 (D.D.C. May 2, 2005) (holding that “it is clear

-25- that after drawing all appropriate inferences in his favor [] that

the plaintiff has stated a claim of retaliation even though its

proximity to the protected activity would not alone support the

claim”); Buggs v. Powell,

(D.D.C. 2003)

(holding that the “proffered evidence as a whole . . . created an

inference of retaliatory discrimination” against plaintiff “even

though [the retaliatory act’s] proximity to the protected activity

would not alone support such an inference”).

In his Complaint, Plaintiff has presented sufficient

allegations, which must be taken as true, that could lead a jury to

conclude, by a preponderance of the evidence, that Plaintiff’s

termination was related to his protected activities. Over

approximately a four year period, Defendant filed numerous formal

complaints with various D.C. and government agencies alleging

illegal and fraudulent contract and procurement practices taking

place within his agency. According to Plaintiff, as a result of

these complaints, he was repeatedly denied employment

opportunities, and otherwise harassed and discriminated against by

D.C. officials. This discrimination and harassment began shortly

before Plaintiff’s first whistleblower complaint in July 2005 and

continued up until his termination in June 2009. See generally

Compl. ¶¶ 10-124.

Consequently, the Court concludes that Plaintiff has made

allegations, assumed to be true at this stage of the litigation,

-26- which are sufficient to establish a claim under the FCA. The Court,

therefore, denies Defendant’s motion to dismiss Plaintiff’s FCA

claim under Rule 12(b)(6).

IV. CONCLUSION

For the reasons stated herein, the Court denies Defendant’s

Motion to Dismiss in its entirety. An Order will accompany this

Memorandum Opinion.

/s/ June 17, 2011 Gladys Kessler United States District Judge

Copies via ECF to all counsel of record

-27-