UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KATHLEEN A. HARASEK,

Plaintiff,

v. Civil Action No. 17-2017 (RDM) NATIONAL RAILROAD PASSENGER CORPORATION d/b/a/ AMTRAK,

Defendant.

MEMORANDUM OPINION

This case presents a single issue: Whether Defendant National Railroad Passenger

Corporation (“Amtrak”) is subject to the False Claims Act (“FCA”),

et seq.

Plaintiff Kathleen Harasek, a former Amtrak employee, alleges that her supervisor retaliated

against her, in violation of

(h), for filing a report with Amtrak’s Office of the

Inspector General (“OIG”). The matter is before the Court on Amtrak’s motion to dismiss, Dkt.

5. The Court agrees that Plaintiff fails to state a claim for relief because the Amtrak Reform and

Accountability Act (“the Reform Act”),

(d),

(1997)

(codified at

(a)(3) (2001)), provides that Amtrak “shall not be subject to title

31,”

The Court will, accordingly, GRANT Amtrak’s motion to dismiss, Dkt. 5.

I. BACKGROUND

For purposes of the pending motion, the Court accepts as true the facts alleged in the

complaint, Dkt. 1. See Wood v. Moss,

, 2065–67 & n.5 (2014); see also Williams

v. Ellerbe,

(D.D.C. 2018). Plaintiff Kathleen Harasek worked as an Inspector for the Amtrak Police Department

(“APD”) from July 2013 to July 2016. Dkt. 1 at 3, 15 (Compl. ¶¶ 15, 66). In September 2015,

Plaintiff was selected by Amtrak’s Chief of Police, Polly Hanson (“Chief Hanson”), to spearhead

efforts to plan Pope Francis’s visit to the United States. Id. at 4 (Compl. ¶ 19). This assignment

was “a massive undertaking” involving coordination between multiple security and law

enforcement agencies. Id. Plaintiff avers that due to her work on the Papal visit, her

“administrative and operational responsibilities” were reassigned to another officer at the

“direction of Chief Hanson and APD leadership.” Id. at 4–5 (Compl. ¶ 21).

Plaintiff’s role as an Inspector also entailed leading instructional programs for “external

law enforcement partners.” Id. at 5 (Compl. ¶ 27). This included RailSafe, a two-day outreach

program about “the capabilities of the APD” and how external law enforcement could “assist

with responding to incidents within [the] APD’s jurisdiction.” Id. at 6 (Compl. ¶ 28). From

2014 onward, the RailSafe program was funded by grant money from the United States Security

and Transportation Authority. Id. (Compl. ¶ 30). Amtrak solicited bids from third-party vendors

to implement the program, and ultimately awarded the contract—valued at over $1,000,000—to

a security consulting firm, ABS Consulting (“ABS”). Id. (Compl. ¶¶ 31–32).

During the summer of 2015, Plaintiff “became aware that ABS was involved in

fraudulent, or potentially fraudulent activity[,] arising from its work associated with the RailSafe

Program.” Id. at 6 (Compl. ¶ 33). Specifically, Plaintiff alleges that “ABS was fraudulently

submitting claims . . . for the work that was actually performed by Amtrak personnel, all under

the direction and supervision of Chief Hanson.” Id. at 8 (Compl. ¶ 38). ABS allegedly used

“handouts and materials” prepared by Amtrak staff “without permission or consent,” id. at 7

(Compl. ¶ 35), and took credit for presentations and logistical services that “were led and

2 conducted by Amtrak personnel, not ABS,” id. (Compl. ¶ 36). Plaintiff further suspected that

“Chief Hanson was directly or indirectly involved, and/or economically benefitting from” ABS’s

activity because of her “close personal relationship” with Kerry Thomas, the RailSafe project

manager at ABS. Id. at 6–7 (Compl. ¶ 33). In mid-October 2015, Plaintiff reported these

concerns to Amtrak’s Office of the Inspector General (“OIG”) and “request[ed] that the OIG

investigate . . . Chief Hanson’s potential involvement.” Id. at 8 (Compl. ¶ 39).

Plaintiff alleges that, shortly thereafter, Chief Hanson subjected her to a series of adverse

employment actions in retaliation for her report. See id. at 8–15 (Compl. ¶¶ 41–67).

First, Plaintiff alleges that on or about October 21, 2015, Chief Hanson transferred her to

an “undesirable position of lesser status”—“Inspector/Inspection and Audits.” Id. at 8–10

(Compl. ¶¶ 41, 45). She further alleges that due to the transfer, she was “stripped of supervisory

duties and administrative staff,” “assigned to menial tasks,” and “limited” in her “exposure to

other ranking APD personnel.” Id. 9–10 (Compl. (¶ 45)

Second, Plaintiff claims that on November 17, 2015, Chief Hanson assigned her “holiday

travel duty” over Thanksgiving even though “the typical protocol was to assign a Sergeant or

Captain” for the job. Id. at 10 (Compl. ¶¶ 48–49). In that same conversation, Chief Hanson

allegedly “accused [Plaintiff] of causing problems within Amtrak, and further threatened that

[Plaintiff] should resign from the APD or there would be negative consequences.” Id.

Third, Plaintiff avers that on or before December 4, 2015, Chief Hanson gave her a

negative performance review, stating that Plaintiff “[d]id [n]ot [m]eet [c]ommitments” for “4 of

the 9 Smart Goals set forth on [her] Performance Evaluation.” Id. at 11 (Compl. ¶ 53). The

review, however, did not account for Plaintiff’s special assignment to the Papal visit or the

reassignment of her operational duties during that time. Id. at 12 (Compl. ¶ 57). Plaintiff alleges

3 that “Chief Hanson’s negative ratings . . . precluded [her] from receiving any promotion, salary

increase[,] or monetary award at the end of the fiscal year,” and “derailed” her career

advancement at Amtrak. Id. at 11–12 (Compl. ¶ 54).

Finally, Plaintiff alleges that on or about March 9, 2016, she was informed that Chief

Hanson had filed an “Internal Affairs Complaint” against her, accusing her of making false

statements “in the self-evaluation section of her 2015 Performance Review.” Id. at 13 (Compl.

¶¶ 61–62). This complaint was later dismissed. Id. at 15 (Compl. ¶ 68). Plaintiff nevertheless

asserts that “the mere filing of [the complaint] [had] negative consequences” and “impede[d] her

future employment opportunities and advancement at Amtrak.” Id. at 14 (Compl. ¶ 63).

As a result of these “harassing, retaliatory, and deliberate actions,” Plaintiff alleges that

she “was constructively discharged by Amtrak on July 1, 2016.” Id. at 15 (Compl. ¶ 66). She

subsequently filed this suit, alleging a claim for retaliation in violation of the FCA, 31 U.SC.

§ 3730(h), and seeking damages, attorney’s fees, and other “relief as provided by the False

Claims Act.” See Dkt. 1 at 16, 18 (Compl. ¶ 71, Prayer). Amtrak has now moved to dismiss on

the ground that, “by statute, Amtrak is not subject to suit under the FCA.” Dkt. 5-1 at 3 (citing

(a)(3)).

II. LEGAL STANDARD

A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) is designed

to “test[ ] the legal sufficiency of a complaint.” Browning v. Clinton,

(D.C.

Cir. 2002). In evaluating such a motion, the Court “must first ‘tak[e] note of the elements a

plaintiff must plead to state [the] claim’ to relief, and then determine whether the plaintiff has

pleaded those elements with adequate factual support to ‘state a claim to relief that is plausible

on its face.’” Blue v. District of Columbia,

(D.C. Cir. 2015) (alterations in

4 original) (internal citation omitted) (quoting Ashcroft v. Iqbal,

(2009)).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion,

Bell Atl. Corp. v. Twombly,

(2007), “a complaint must contain sufficient

factual matter, [if] accepted as true, to ‘state a claim to relief that is plausible on its face,’” Iqbal,

(quoting Twombly,

).

III. ANALYSIS

For the reasons set forth below, the Court concludes that Plaintiff cannot state a claim for

relief under the FCA against Amtrak.

A. Text

The parties agree that the plain language of the Reform Act expressly provides that

Amtrak “shall not be subject to title 31.”

(a)(3). They disagree, however,

whether this exemption includes the FCA, which is codified in title 31. According to Plaintiff,

§ 24301(a)(3) is ambiguous because it “collides with the literal command” of the FCA, Dkt. 9 at

7 (quoting Montana v. Clark,

(D.C. Cir. 1984)), which Plaintiff reads as

permitting all claims “against ‘any person,’ including corporations, for fraud committed against

the United States,” id. at 11. Plaintiff also argues that giving effect to the plain meaning of

§ 24301(a)(3) “would yield an ‘odd result’” because it would “require this Court to believe that

Congress . . . agree[d] to provide money from its Federal coffers [to Amtrak] without any

recourse . . . should a fraud be perpetrated.” Dkt. 9 at 11, 13 (quoting Engine Mfrs. Ass’n v.

EPA,

(D.C. Cir. 1996)). The Court is unpersuaded by either argument.

First, and foremost, Plaintiff’s attempt to read ambiguity into § 24301(a)(3) is foreclosed

by D.C. Circuit precedent. As Amtrak correctly points out, in U.S. ex rel. Totten v. Bombardier

Corp.

(D.C. Cir. 2002) (“Totten I”), the Court of Appeals read § 24301(a)(3)

5 to “prevent[] Amtrak from . . . being sued under the False Claims Act.” Id. at 548. As the court

explained, in providing that Amtrak “shall not be subject to title 31,”

(a)(3),

Congress relieved Amtrak of its obligation to “conform its actions to the terms imposed by” the

FCA and other statutes found in title 31. Totten I,

. To be sure, Amtrak’s own

conduct was not at issue in Totten I, and all that the court held was that the FCA does apply to

third parties who contract with Amtrak.

But the inescapable import of the court’s reasoning

is that § 24301(a)(3) precludes Amtrak itself from being “subject to” the FCA. See id. (“Here,

[plaintiff] seeks to use the FCA not to regulate Amtrak, but instead to recover for the purported

fraud of contractors hired to serve the railroad.”); see also id. at 549 (“[Plaintiff’s] litigation will

not compel [Amtrak] to take any action in order to satisfy the demands of the FCA. His action

therefore does not implicate the Reform Act’s ‘subject to’ provision.”). As such, contrary to

Plaintiff’s assertion, Dkt. 9 at 14, the D.C. Circuit has recognized that Amtrak is not “subject to”

the FCA.

Plaintiff’s “statutory conflict” and “odd result” arguments are also unpersuasive. With

respect to the first, the Court agrees with Amtrak that the Reform Act and the FCA “can easily

be read together with no conflict.” Dkt. 11 at 3. While the FCA generally imposes “[l]iability

for certain acts” committed by “any person” defrauding the federal government,

, the Reform Act carves out a specific exception for Amtrak. The Supreme Court has long

held that courts can, and should, give effect to “[s]pecific terms”—here, the exclusion in the

Reform Act—“over the general [terms] in the same or another statute”—here, § 3729 of the

FCA. D. Ginsberg & Sons v. Popkin,

(1932); see also Kepner v. United

States,

(1904) (“It is a well-settled principle of construction that specific terms

6 covering the given subject-matter will prevail over general language of the same or another

statute which might otherwise prove controlling.” (emphasis added)).

Nor does reading the Reform Act to exempt Amtrak from FCA compliance produce the

“odd result” of leaving the federal government with “no recourse” against the fraud allegedly

perpetrated here. There are multiple safeguards. To begin, as Amtrak acknowledges, it is

subject to the Inspector General Act of 1978. Dkt. 11 at 8 (citing 5 U.S.C. App. § 8G(a)(2)); see

also Dep’t of Transp. v. Ass’n of Am. R.R.,

(2015) (noting that Amtrak is a

“designated Federal entity” under the Inspector General Act of 1978). That Act charges Amtrak

with maintaining an OIG to “prevent[] and detect[] fraud and abuse in . . . [Amtrak’s] programs

and operations.” See 5 U.S.C. App. § 4(a)(3). Furthermore, Plaintiff—or any other individual—

could have sought redress for the alleged fraud perpetrated by ABS under the FCA. As the D.C.

Circuit made clear in Totten I, the Reform Act does not preclude a qui tam action against ABS, a

third-party contractor. See

. Finally, the Federal Railroad Safety Act (“FRSA”),

, specifically addresses the type of retaliation alleged here. The FRSA states:

A railroad carrier . . . may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee’s lawful, good faith act done . . . to provide information . . . [to] a Federal, State, or local regulatory or law enforcement agency (including an office of the Inspector General under the Inspector General Act of 1978 . . . .)

(a)(1)(A). And the statute also provides a remedy:

An employee who alleges discharge, discipline, or other discrimination in violation of subsection (a), (b), or (c) of this section [delineating protected forms of whistleblowing], may seek relief in accordance with the provisions of this section, with any petition or other request for relief under this section to be initiated by filing a complaint with the Secretary of Labor.

7

§ 20109(d)(1). Thus, Plaintiff could have filed “a complaint with the Secretary of Labor”

seeking redress, id., but she did not. She chose instead to file suit under the FCA. The Court

cannot give credence to an “odd result” of Plaintiff’s own making.

B. Legislative History

The Court is also unconvinced by Plaintiff’s resort to the legislative history of the Reform

Act. As a threshold matter, the Court “ha[s] no authority to enforce [a] principl[e] gleaned solely

from legislative history that has no statutory reference point.” Nat’l Ass’n of Broads. v. FCC,

(D.C. Cir. 2009) (alteration in original) (citation omitted); see also Conn.

Nat’l Bank v. Germain,

, 253–54 (1992) (“[C]ourts must presume that [the]

legislature says in a statute what it means and means in a statute what it says there.”); U.S. ex rel.

Totten v. Bombardier Corp.,

(D.C. Cir. 2004) (“Totten II”). Here, Plaintiff

offers no plausible reading of § 24301(a)(3) that would relieve Amtrak of some title 31

obligations but not others. But, even beyond that, Plaintiff’s argument is unconvincing.

Plaintiff contends—without specific citation—that the Reform Act’s legislative history

demonstrates that it “was not intended to preclude a private individual’s claim for retaliation

under the FCA, but merely to free Amtrak from the restrictions of a mixed-corporation

company.” Dkt. 9 at 12. To be sure, the legislative history of the Reform Act does reflect that

Congress intended to “eliminat[e] [f]ederal micromanagement of Amtrak’s operations,” H.R.

Rep. No. 105-251, at 13 (1997), and to allow the carrier to “operate as much like a private

business as possible,” S. Rep. No. 105-85, at 1 (1997). See also Totten I, 286 F.3d at 549–50.

But the legislative history of the particular provision at issue here, § 24301(a)(3), is far from

illuminating. The House Report merely reflects that Congress intended to “remove[] Amtrak

from the Government Corporations Act.” H.R. Rep. No. 105-251, at 34; see also Totten I, 286

8 F.3d at 549. Section 24301(a)(3), however, “plainly does more than” that, “and must be

construed accordingly.” Totten I,

.

Finally, Amtrak argues that had Congress intended to subject it to the FCA, Congress

could have amended the FCA after the D.C. Circuit’s decision in Totten I. 1 See Dkt. 11 at 12–

14. It did not do so, for example, when it amended the FCA in 2009 to “correct erroneous

interpretations of the law that were decided in . . . [Totten II].” S. Rep. No. 111-10, at 10 (2009).

This subsequent legislative action, however, does not rise to the level of a ratification of the

interpretation of § 24301(a)(3) set forth in Totten I. See U.S. Ass’n of Reptile Keepers, Inc. v.

Jewell, 103 F. Supp. 3d. 133, 153 (D.D.C. 2015) (“[T]he ratification canon is of ‘little assistance’

where Congress has not re-enacted the entire statute at issue or significantly amended the

relevant provision.” (citation omitted)). Nevertheless, given the plain language of the Reform

Act and the absence of any compelling reason to discount that text or the D.C. Circuit’s decision

in Totten I, this is not a case that requires any such ratification.

1 Amtrak also notes that Congress has twice amended § 24301 of the Reform Act since the D.C. Circuit’s decision in Totten I without altering or clarifying the language relating to the title 31 exclusion. See Dkt. 11 at 4 n.1 (citing

,

(2007);

(2),

(2004)). 9 CONCLUSION

For the foregoing reasons, the Court will GRANT Defendant’s motion to dismiss, Dkt. 5.

A separate order will issue.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: September 22, 2017

10