UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PAUL HICKS, Plaintiff v. Civil Action No. 15-1828 (CKK) DISTRICT OF COLUMBIA, Defendant

MEMORANDUM OPINION and ORDER (April 28, 2016) Plaintiff Paul Hicks, a former employee of the District of Columbia’s Office of the

Inspector General (“OIG”), brings several claims against Defendant District of Columbia in

connection with the alleged termination of his employment with OIG. The Amended Complaint

presents a claim of racial discrimination under Title VII of the Civil Rights Act of 1964, as

amended; a claim of age discrimination under the Age Discrimination in Employment Act of

1967, as amended; a claim of retaliation under the Federal False Claims Act (“FCA”); a claim of

retaliation under the District of Columbia False Claims Act (“D.C. FCA”); and a claim of

retaliation under

et seq. Before the Court is Defendant’s [13] Motion to

Dismiss Counts 3 & 4 of Amended Complaint. Defendant seeks the dismissal of the retaliation

claims under the Federal and D.C. false claims acts for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6). Upon consideration of the pleadings, 1 the relevant legal authorities,

1 The Court’s consideration has focused on the following documents: • Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 13; • Pl.’s Mem. of Points & Auth. in Opp’n to Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 15; and • Def.’s Reply in Supp. of their Mot. to Dismiss (“Def.’s Reply”), ECF No. 18. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

1 and the record for purposes of this motion, the Court DENIES Defendant’s [13] Motion to

Dismiss Counts 3 & 4 of Amended Complaint.

I. BACKGROUND

For the purposes of the motion before the Court, the Court accepts as true the well-

pleaded allegations in Plaintiff’s Amended Complaint. The Court does “not accept as true,

however, the plaintiff’s legal conclusions or inferences that are unsupported by the facts

alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S.,

(D.C. Cir. 2014). The

Court limits its presentation of the background to those facts relevant to the pending motion to

dismiss.

A. Statutory Framework: Federal False Claims Act “Ordinarily under the [False Claims Act], ‘the government, or a party suing on its behalf,

may recover for false claims made by the defendant to secure a payment by the government.’ ” 2

Hoyte v. Am. Nat. Red Cross,

, 63 n.1 (D.C. Cir. 2008) (quoting United States ex rel.

Bain v. Ga. Gulf Corp.,

(5th Cir. 2004)). However, “[i]n a reverse false claim

action under … [Section 3729(a)(1)(G)], ‘the defendant’s action does not result in improper

payment by the government to the defendant, but instead results in no payment to the

government when a payment is obligated.’ ” 3

(quoting Ga. Gulf Corp.,

).

Specifically, the Federal False Claims Act establishes liability for any person who “knowingly

makes, uses, or causes to be made or used, a false record or statement material to an obligation to

2 In 2009, Congress amended the False Claims Act, and the relevant provisions were re- numbered. See Pencheng Si v. Laogai Research Foundation,

(D.D.C. 2014);

(describing 2009 changes to the reverse false claim provisions). 3 The reverse false claim provision is the only substantive provision of the False Claims Act at issue in this case. See Pl.’s Opp’n at 5-8; Am. Compl. ¶¶ 55-56 (citing and describing the retaliation provision and the reverse false claim provision).

2 pay or transmit money or property to the Government, or knowingly conceals or knowingly and

improperly avoids or decreases an obligation to pay or transmit money or property to the

Government.”

(a)(1)(G). The Federal False Claims Act, as amended in 2009,

defines “obligation” as “an established duty, whether or not fixed, arising from an express or

implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar

relationship, from statute or regulation, or from the retention of any overpayment.”

§ 3729(b)(3). Subject to exceptions not relevant here, a person liable under these provisions is

liable to the United States Government for a civil penalty “plus 3 times the amount of damages

which the Government sustains because of the act of that person.” Id. § 3129(a)(1).

Finally, the Federal False Claims Act allows retaliation claims in connection with other

provisions of the Act:

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 other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.

(h)(1) (emphasis added). In other words, the False Claims Act creates a

retaliation claim in circumstances where, in addition to satisfying other criteria, a person suffers

retaliation as a result of “lawful acts … in furtherance of an action under this section or other

efforts to stop 1 or more violations of this subchapter.”

The retaliation provision, which was “first added in 1986, was ‘designed to protect

persons who assist the discovery and prosecution of fraud and thus to improve the federal

government’s prospects of deterring and redressing crime.’ ” U.S. ex rel. Schweizer v. Oce N.V.,

, 1237 (D.C. Cir. 2012) (citation omitted). Most significantly, the provision was

amended in 2009 to add the final phrase in the provision, clarifying that a retaliation claim can be 3 based on “other efforts to stop 1 or more violations of” the False Claims Act.

(h)(1); see Pencheng Si,

(describing version of retaliation provision

prior to the 2009 amendments); Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111–

21, § 4(a) & (d),

, 1621–25 (amending retaliation provision). 4 These amendments

significantly expanded the protection to whistleblowers under the Federal False Claims Act. See

U.S. ex rel. New Mexico v. Deming Hosp. Corp.,

(D.N.M. 2013)

(amended version of the retaliation provision “represents a significant expansion of protection

for [False Claims Act] whistleblowers”) (footnote omitted).

Notwithstanding these changes, the essential elements of a retaliation claim under the

False Claims Act remain the same. See

A retaliation claim has “two basic elements”:

(1) protected activity by an employee and (2) “retaliation by the employer against the employee

‘because of’ those acts.” Schweizer, 677 F.3d at 1237 (quoting United States ex rel. Yesudian v.

Howard Univ.,

(D.C. Cir. 1998)). As stated above, in light of the 2009

amendments to the False Claims Act, protected activity includes both “lawful acts done by the

employee … in furtherance of an action” under the False Claims Act and “other efforts to stop 1

or more violations of” the False Claims Act.

(h).

B. Statutory Framework: D.C. False Claims Act The parties agree that the relevant provisions of the D.C. False Claims Act are the same

in all material respects as the provisions of the Federal False Claims Act. See Def.’s Mot. at 4-5;

Pl.’s Opp’n at 3 n.1 (“Retaliation claims under the Federal False Claims Act and the D.C. False

4 The provision was further amended in 2010 through the Dodd-Frank Act. See Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010,

1079A(c),

, 2079 (amending retaliation provision).

4 Claims Act have the same elements. Moreover, the anti-retaliation provisions of both Acts are

nearly identical. Therefore, the arguments proffered in the instant Opposition similarly apply to

Plaintiff’s retaliation claim under the D.C. False Claims Act.”) (citations omitted). “The elements

of a [D.C. False Claims Act] retaliation claim mirror, and are analyzed in a similar fashion to, a

retaliation claim arising under the federal False Claims Act … .” Campbell v. D.C.,

(D.D.C. 2013). 5 In addition, the District of Columbia Court of Appeals has stated that

it is appropriate to look to Federal cases interpreting the Federal False Claims Act “for guidance

in interpreting the [D.C.] FCA.” Grayson v. AT & T Corp.,

, 1146 n.25 (D.C.

2009), reh’g en banc granted, opinion vacated in part on other grounds,

(D.C.

2010), and on reh’g en banc, reissuing panel decision in part

(D.C. 2011); see

Grayson v. AT & T Corp., No. 07-CV-1264, slip opinion reissued Jan. 20, 2011, at 15 n.24,

available at http://www.dccourts.gov/internet/documents/07-CV-1264_MTD.PDF. Bearing in

mind the parallel nature of the two statutes, the Court now turns to the relevant provisions of the

D.C. False Claims Act.

The D.C. False Claims Act establishes civil liability for any person who

[k]nowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the District, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the District[.]

5 Amendments to the D.C. False Claims Act that became effective on March 19, 2013, aligned the District of Columbia statute with the Federal statute. See Medicaid Fraud Enforcement and Recovery Amendment Act of 2012, 2012 District of Columbia Laws 19-232 (Act 19-549), §2. Although certain background activities in this case occurred before the amendments took effect, the acts that form the actual basis of the retaliation claims subject to this motion occurred after the amendments became effective. Nor do the parties suggest anything to the contrary regarding the relevant statutory provisions.

5 D.C. Code. § 381.02(a)(6). This provision is identical to the reverse false claim provision of the

Federal False Claims Act, with the exception that the Federal False Claims Act pertains to

obligations to pay or transmit money to the United States Government, while the D.C. False

Claims Act pertains to obligations to pay or transmit money to the District of Columbia.

Compare id. with

(a)(1)(G); see also Medicaid Fraud Enforcement and

Recovery Amendment Act of 2012, 2012 District of Columbia Laws 19-232 (Act 19-549),

§ 2(c). Like the Federal False Claims Act, the D.C. False Claims Act also includes retaliation

claims in relation to the other substantive provisions of the statute:

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 other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of an action under this subchapter or other efforts to stop one or more violations of this subchapter.

(a) (emphasis added). Just as with the substantive reverse false claim

provision, the retaliation provision of the D.C. False Claims Act, amended in 2013, is identical to

the analogous Federal provision. Compare

with

(h)(1); see also Medicaid

Fraud Enforcement and Recovery Amendment Act of 2012, 2012 District of Columbia Laws 19-

232 (Act 19-549), § 2(d). But the Court notes, once again, that the D.C. False Claims Act

pertains to retaliation in connection with violations of that act and, therefore, pertains to reverse

false claims in connection with the District of Columbia rather than with the United States

Government.

C. Factual Background Plaintiff was hired by District of Columbia’s Office of the Inspector General (“OIG”) as

an auditor in approximately October 2007. Am. Compl. ¶ 12. On or around October 11, 2010,

6 Plaintiff was promoted to Director of Medicaid Audits. Id. He served in that position until

August 15, 2014. Id. In that role, Plaintiff’s duties included performing and supervising audits

pertaining to the D.C. Medicaid program. Id. ¶ 14. In approximately July 2011, Plaintiff began

working on the “Nursing Home Performance” audit. Id. ¶ 17. In approximately August of that

same year, Plaintiff discovered that approximately 100 million dollars in D.C. Medicaid

payments should not have been paid to medical providers, in light of allegations of fraud by

those providers, but rather should have been suspended. Id. ¶ 18. The following year, in

approximately June 2012, Plaintiff submitted a draft audit report for “Nursing Home

Performance” and identified poor quality control and internal control deficiencies in D.C.

nursing facilities. Id. ¶ 20. Subsequently, in approximately March 2013, Plaintiff submitted an

updated draft “Nursing Home Performance” report, which continued to identify those same

deficiencies. Id. ¶ 23.

While the “Nursing Home Performance” report was still in progress, Plaintiff began

working on the “Medicaid State Plain/Program Integrity” audit in approximately September

2012. Id. ¶ 21. In October 2013, Plaintiff reported his preliminary findings under the “Medicaid

State Plan/Program Integrity” audit to Ronald King, Assistant Inspector General for Audits and

Plaintiff’s second-level supervisor. Id. ¶¶ 16, 24. Plaintiff specifically discussed the 100 million

dollars in Medicaid payments that, allegedly, should not have been paid, which he discovered in

the process of conducting these audits. Id. ¶ 24; see also id. ¶ 18. During October 2013, pursuant

to King’s instructions, Plaintiff met with several other OIG officials, together with King. 6 Id.

¶ 25. During that meeting, Plaintiff explained that the “suspended payments” finding ought to be

6 Those officials were Susan Kennedy, Assistant Inspector General for OIG’s Medicaid Fraud Control Unit, and Leroy Rose, another OIG auditor. Am. Comp. ¶ 25.

7 included in the “Medicaid State Plan/Program Integrity” audit report. Id. King expressed

hesitation about including the finding in the audit report. During the first quarter of 2014,

Plaintiff met with King and with several other OIG officials once again. Id. ¶ 26. Plaintiff alleges

that King attempted to suppress the “suspended payments” finding and argued that following

Plaintiff’s recommendation would have negative implications for OIG’s Medicaid Fraud Control

Unit. Id. King told Plaintiff that the payments in question were unrelated to the “Medicaid State

Plan/Program Integrity” audit and should not be discussed in that report. Id. On May 16, 2014,

King issued Plaintiff an unsatisfactory mid-term performance review on the basis of making

untimely progress in completing the audit report. Id. ¶ 27. As a result, Plaintiff’s alternative work

schedule was revoked. Id.

In approximately June 2014, Plaintiff submitted a draft “Medicaid State Plan/Program

Integrity” audit report. Id. ¶ 29. Pursuant to King’s orders, Plaintiff did not include the

“suspended payments” finding in that draft report. Id. That same month, another OIG official

informed Plaintiff that King wanted to fire Plaintiff. Id. ¶ 30. A month later, on or about July 22,

2014, Plaintiff submitted draft audit reports for “Medicaid State Plan/Program Integrity” and

“Nursing Home Performance.” Id. ¶ 31. The draft “Nursing Home Performance” report included

a discussion of poor quality care and internal control deficiencies. Id. ¶ 31.

During a meeting of OIG’s Audit Division Management Team on July 23, 2014, LaDonia

Wilkins, Deputy Assistant Inspector General for Audits and Plaintiff’s immediate supervisor,

addressed allegedly unsatisfactory performance by the Management Team. Id. ¶¶ 15, 33. At that

meeting, Wilkins stated that the several directors on the Management Team took too much time

to complete audits and did not adequately manage their staff. Id. ¶ 33. On July 29, 2014, King

cancelled the “Medicaid State Plain/Program Integrity” and “Nursing Home Performance” audit

8 reports, notwithstanding Wilkins’ belief that those reports ought to be formally issued. Id. ¶ 34.

Finally, on July 31, 2014, Wilkins terminated Plaintiff’s employment, without explanation,

effective August 15, 2014. Id. ¶ 35.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a

complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.

R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’ ” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl.

Corp. v. Twombly,

(2007)). Rather, a complaint must contain sufficient factual

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly,

. “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal,

.

III. DISCUSSION

As stated above, Defendant moves to dismiss only Counts 3 and 4, retaliation claims

under, respectively, the Federal False Claims Act and the D.C. False Claims Act. In order to

isolate the actual legal dispute before the Court, it is necessary first to trace the parties’

arguments as they developed over the course of the briefs filed regarding the pending motion.

In Defendant’s Motion to Dismiss Counts 3 & 4 of Amended Complaint, Defendant

argues that those two retaliation claims necessarily fail because Plaintiff has not alleged that the

District of Columbia submitted to itself or to the Federal government a false or fraudulent claim

for payment. See Def.’s Mot. at 2. In essence, Defendant argues that the claims fail because

Plaintiff has not alleged a traditional—“forward”—false claims violation. In Plaintiff’s

9 Opposition, Plaintiff explains he is not alleging a retaliation claim based on a traditional false

claim violation; rather, he is alleging retaliation claims based on reverse false claim violations.

See Pl.’s Opp’n at 5-7. Notably, Plaintiff has explicitly conceded that a traditional or “forward”

false claim violation cannot be the basis for his retaliation claim. See Pl.’s Opp’n at 5. Although

neither the Amended Complaint nor Plaintiff’s Opposition is as clear as desirable regarding the

nature of Plaintiff’s retaliation claims, it is apparent that Plaintiff’s description is reflected in the

allegations in the Amended Complaint. See Am. Compl. ¶¶ 56, 74 (citing reverse false claim

provisions at

(a)(1)(G) and

(6)). In response to Plaintiff’s

clarification, Defendant argues that the Amended Complaint fails to state retaliation claims under

the D.C. and False Claims Acts insofar as they are based on reverse false claim violations. Def.’s

Reply 3-4. It is the dispute regarding the viability of retaliation claims based on reverse false

claim violations—and only that dispute—that is now before the Court. So understood, the Court

now proceeds to address the parties’ arguments regarding those claims.

Plaintiff claims that he engaged in protected activity under the Federal and D.C. False

Claims Acts in his attempts to stop violations of the reverse false claim provisions in each of

those statutes. See Pl.’s Opp’n at 7 (citing

(a)(1)(G) and D.C. Code. § 2-

381.02(a)(6)). Specifically, he identifies the underlying violation as the District of Columbia’s

concealment of “the fact that the D.C. Medicaid Program should not have paid one hundred

million dollars to medical providers who were alleged to have committed fraud.” Pl.’s Opp’n at

7. Plaintiff argues that the District’s decision to conceal this information, after Plaintiff informed

officials in the Office of the Inspector General of the information, violates the provision of the

False Claims Act that creates liability for a person who “knowingly conceals … an obligation to

10 pay or transmit money or property to the Government.” 7

(a)(1)(G); see also

D.C. Code. § 2-381.02(a)(6) (liability for person who “knowingly conceals … an obligation to

pay or transmit money or property to the District”). Furthermore, Plaintiff claims he engaged in

protected activity when he informed the District of Columbia, specifically officials at the Office

of the Inspector General, that certain Medicaid payments should have been “suspended.” Am.

Compl. ¶¶ 64, 81; see also Pl.’s Opp’n at 6-7. Finally, he claims that the District of Columbia

retaliated against him, including terminating his employment, as a result of his reporting the

allegedly fraudulent conduct by Medicaid recipients. Am. Compl. ¶¶ 67, 84.

Certain of Defendant’s arguments, even in Defendant’s Reply, appear to continue to

focus on Defendant’s apparently incorrect understanding of Plaintiff’s claims, specifically the

understanding that the retaliation claims are based on traditional, or “forward,” false claim

violations. See Def.’s Reply at 2. However, as explained above, Plaintiff has clarified that his

False Claims Act retaliation claims are based solely on the possibility of a reverse false claim

violation. Defendant addresses only a single argument at Plaintiff’s retaliation theory, rightly

understood. Defendant argues that Plaintiff has failed to identify any obligation to pay either the

District or the United States Government that was stymied by the District’s concealment of the

information provided by Plaintiff. Before addressing whether this argument is, in fact, fatal to

Plaintiff’s retaliation claim, the Court notes that Defendant seems to persist in misunderstanding

Plaintiff’s claim in yet an additional way. Defendant argues that a necessary precondition for a

reverse false claim violation is an obligation to pay the Government at the time of the false

7 Plaintiff never alleges a violation of the sub-provisions establishing liability for a person who “makes, uses, or causes to be made or used, a false record or statement material to an obligation” or for a person who “improperly avoids or decreases an obligation.” 31 U.S.C. 3729(a)(1)(G). Nor does Plaintiff ever allege that he was the victim of retaliation for investigating or otherwise pursuing such violations.

11 statement. See Def.’s Reply at 3-4. But, notably, Plaintiff’s reverse false claim violation does not

involve a false statement; it simply involves the knowing concealment of “an obligation to pay or

transmit money or property to” the District of Columbia and to the United States Government.

(a)(1)(G); D.C. Code. § 2-381.02(a)(6). Defendant does not explain how this

argument is applicable to retaliation claims based on unlawful concealment.

In any event, Defendant’s argument fails for a simple reason: the District of Columbia is

relying on cases interpreting an outdated version of the False Claims Act. It may be true that, as

of 2006, “[m]ultiple courts, however, ha[d] consistently held that this term [obligation] means a

present, existing debt or liability, owed at the time the alleged false statement is made, and not

some future or contingent liability.” Hoyte v. Am. Nat. Red Cross,

(D.D.C.

2006) (citing cases), aff’d,

(D.C. Cir. 2008). However, prior to the actions

underlying this case, Congress amended the False Claims Act to broaden the meaning of

“obligation” with respect to reverse false claims. As currently defined, obligation “means an

established duty, whether or not fixed, arising from an express or implied contractual, grantor-

grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or

regulation, or from the retention of any overpayment.”

(b)(3). Indeed, it appears

that Congress amended this definition, at least in part, to explicitly overrule the set of decisions

on which Defendant bases its argument. See S. Rep. 111-10, at 14, (2009), reprinted in 2009

U.S.C.C.A.N. 430, 441 (“[T]his legislation addresses current confusion among courts that have

developed conflicting definitions of the term ‘obligation’ … . The term ‘obligation’ is now

defined … and includes fixed and contingent duties owed to the Government–including fixed

liquidated obligations such as judgments, and fixed, unliquidated obligations such as tariffs on

imported goods.”) (footnotes omitted). The analogous provision of the D.C. False Claims Act

12 was amended, effective March 18, 2013, to include a definition of an obligation identical to the

revised Federal definition. See Medicaid Fraud Enforcement and Recovery Amendment Act of

2012, 2012 District of Columbia Laws 19-232 (Act 19-549), § 2(a).

Ultimately, it may be true that Plaintiff’s retaliation claims are not based on the type of

obligations that are the necessary foundation for reverse false claims under the Federal False

Claims Act or under the District of Columbia False Claims Act. However, Defendant has not

even made that argument, based on the applicable law, let alone made the showing necessary to

prevail on a motion to dismiss. Because Defendant has not shown that Count 3 and Count 4 of

the Amended Complaint fail to state a claim upon which relief may be granted, the Court denies

Defendant’s partial motion to dismiss.

IV. CONCLUSION AND ORDER

For the foregoing reasons, it is hereby ORDERED that Defendant’s [13] Motion to

Dismiss Counts 3 & 4 of Amended Complaint is DENIED.

It is further ORDERED that Defendant shall file its Answer by no later than June 1,

2016.

The Court will set an Initial Scheduling Conference by a separate order.

Dated: April 28, 2016 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge

13