UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THOMAS WIMS,

Plaintiff, v. Civil Action No. 18-1058 (JEB) CONSORTIUM FOR OCEAN LEADERSHIP,

Defendant.

MEMORANDUM OPINION

After Plaintiff Thomas Wims was fired from his operations job at Defendant Consortium

for Ocean Leadership, he brought this action under the False Claims Act, asserting that his

termination stemmed from his uncovering the Consortium’s fraudulent receipt of millions of

dollars in federal grants from the National Science Foundation. When the United States declined

to intervene, Wims amended his Complaint to add a wrongful-discharge count under District of

Columbia law. In moving to dismiss only this latter count, the Consortium points out that at-will

employees like Plaintiff cannot proceed on such a claim under D.C.’s public-policy exception

when they have other avenues of statutory or administrative relief available — here, the FCA.

Agreeing with this position, the Court will grant the Motion and dismiss Count II only.

I. Background

Plaintiff first brought this suit in May 2018 against the Consortium, the Woods Hole

Oceanographic Institution (WHOI), and Rutgers, the State University of New Jersey. See ECF

No. 1. The thrust of this FCA action was that all three Defendants had “fraudulently obtained

millions of dollars in federal grant dollars [sic] awarded by the National Science Foundation.”

1 Id., ¶ 2. More specifically, the Consortium was the “Prime Awardee for NSF’s multi-

institutional Ocean Observatories Initiative (‘OOI’), which involves the installation of a network

of instruments, undersea cables, and instrumented moorings that spans the Western Hemisphere

and measures physical, chemical, geological, and biological phenomena in key coastal, regional,

and global areas.” Id., ¶ 3. Its subawardees were WHOI and Rutgers, who were purportedly

submitting fraudulent requests for reimbursement to the Consortium, which it allegedly

concealed. Id., ¶¶ 6-7, 10. Because Wims “refused to stop questioning Defendants’ illegal

conduct related to the NSF grants, [the Consortium] unlawfully terminated his employment.”

Id., ¶ 12.

As is the case in FCA matters, the United States had the opportunity to intervene, but

after several extensions, it declined to do so. See ECF No. 9 (Notice of Election to Decline

Intervention). Wims subsequently filed an Amended Complaint, in which he dropped

Defendants WHOI and Rutgers — deciding to proceed against the Consortium alone — as well

as multiple FCA counts. See ECF No. 18. He added a constructive-discharge claim alongside

his sole remaining FCA claim. Id., ¶¶ 114-18.

A review of Plaintiff’s Amended Complaint, which must be presumed true for purposes

of this Motion, shows that the gravamen of his suit remains: he alleges that the Consortium

obtained grants by fraud, lied and covered up its subcontractors’ work, and then fired Wims for

blowing the whistle and reporting this misconduct. Id., ¶ 1. Count I, an FCA claim, alleges that

Plaintiff “was discriminated against in the terms and conditions of his employment by [the

Consortium] in retaliation for lawful acts taken by [him] to prevent and report violations of the

False Claims Act.” Id., ¶ 111. Count II, wrongful discharge, alleges that the Consortium fired

2 him “for refusing to engage in illegal activity” and also for having reported the misconduct. Id.,

¶¶ 116-17.

Defendant has now moved to dismiss Count II under Federal Rule of Civil Procedure

12(b)(6).

II. Legal Standard

Rule 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a

claim upon which relief can be granted.” In evaluating Defendant’s Motion to Dismiss, the

Court must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the

benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air

Lines, Inc.,

(D.C. Cir. 2000) (quoting Schuler v. United States,

(D.C. Cir. 1979)) (citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA,

(D.C. Cir. 2005). The pleading rules are “not meant to impose a great burden

upon a plaintiff,” Dura Pharm., Inc. v. Broudo,

(2005), and he must thus be

given every favorable inference that may be drawn from the allegations of fact. Scheuer v.

Rhodes,

(1974).

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

motion, Bell Atlantic Corp. v. Twombly,

(2007), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal,

(2009) (quoting Twombly,

). Plaintiff must

put forth “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

The Court need not accept as true “a legal

conclusion couched as a factual allegation,” nor an inference unsupported by the facts set forth in

the Complaint. Trudeau v. Fed. Trade Comm’n,

(D.C. Cir. 2006) (quoting

3 Papasan v. Allain,

(1986)). For a plaintiff to survive a 12(b)(6) motion even if

“recovery is very remote and unlikely,” moreover, the facts alleged in the complaint “must be

enough to raise a right to relief above the speculative level.” Twombly,

-56

(quoting Rhodes,

).

III. Analysis

The Court has previously explained that at-will employees have a remedy in the District

of Columbia when they are fired under certain circumstances:

The general law “in the District of Columbia [is] that an employer may discharge an at-will employee at any time and for any reason, or for no reason at all.” Adams v. George W. Cochran & Co., Inc.,

(D.C. 1991) (citations omitted). In Adams, the D.C. Court of Appeals held that “there is a very narrow exception to the at-will doctrine under which a discharged at-will employee may sue his or her former employer for wrongful discharge when the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation.”

.

Robinson v. Securitas Servs., Inc.,

(D.D.C. 2011).

In moving to dismiss here, the Consortium does not gainsay that Wims’s allegations fit

within the narrow public-policy exception articulated in Adams and subsequently broadened in

ways not relevant here. Robinson,

. Instead, Defendant offers a different

position — namely, that Plaintiff cannot proceed under the exception where the very statute he

claims was violated provides him full relief. More specifically, because he can fully recover

under his FCA count, this additional count would be duplicative. See ECF No. 21 (Def. MTD)

at 4-5.

The Consortium starts with Nolting v. National Capital Group, Inc.,

(D.C.

1993), where the plaintiff sought to maintain a wrongful-discharge claim when she was fired in

retaliation for seeking workers’ compensation. The D.C.C.A. held that her sole route was to

4 proceed under the Workers’ Compensation Act, as the public-policy exception cannot “be

invoked where the very statute creating the relied-upon public policy already contains a specific

and significant remedy for the party aggrieved by its violation.”

. Defendant cites a

number of other cases that follow the Nolting rule, see MTD at 5 n.2, none more apposite than

United States ex rel. Hood v. Satory Global, Inc.,

(D.D.C. 2013). There, just

as here, a relator filed an FCA action that also included other claims, including for wrongful

discharge. Applying the principles articulated in Nolting and other decisions, the court

dismissed the count for wrongful discharge on the ground that the FCA already provides the

remedy.

. Similarly, in Kassem v. Washington Hospital Center,

(D.C. Cir.

2008), the D.C. Circuit addressed a wrongful-discharge claim brought by a plaintiff alleging he

had been fired for being a whistleblower regarding violations of Nuclear Regulatory Commission

regulations. In affirming the district court’s dismissal, the Circuit cited Nolting in noting that the

Energy Reorganization Act, the statutory source of the regulations upon which Kassem relied,

provides its own significant remedy.

.

Faced with this panoply of contrary authority, Plaintiff does not contend that the FCA

contains no sufficient remedy. Indeed, it would be odd for him to press such an argument given

that Count I of his Amended Complaint seeks extensive relief under that Act. He maintains

instead that he is basing his wrongful discharge on public policies separate from the FCA. See

ECF No. 22 (Pl. Opp.) at 7-10. He then cites a number of statutes relating to fraud and honest

services. Id. at 7. While it may be true that the Consortium, if it has acted as alleged, may have

violated other laws, that does not change the crux of this suit from one under the FCA.

Plaintiff’s initial Complaint, in fact, weighed in at a beefy 59 pages and contained nothing

beyond FCA claims. See ECF No. 1. The factual allegations in his Amended Complaint are no

5 broader, and the fact that he has tacked on a wrongful-discharge count does not alter what his

suit is truly about. Indeed, that count expressly states, “The misconduct identified in this

Amended Complaint was illegal because, inter alia, it violated the FCA.” Am. Compl., ¶ 116.

The Court, consequently, will not permit this duplicative count to proceed.

IV. Conclusion

Count II will be dismissed without prejudice. An accompanying Order will issue this

day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: February 6, 2020

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