UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) WILLIAM “BILL” SMITH, ) ) Plaintiff-Relator, ) ) v. ) Case No. 18-cv-02080 (APM) ) ATHENA CONSTRUCTION ) GROUP, INC., ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

I.

Plaintiff-Relator William Smith brings this qui tam action against Defendant Athena

Construction Group, Inc., his former employer, alleging that Defendant violated the False Claims

Act (“FCA”) by (1) fraudulently obtaining work under federal contracts as a “HUBZone”-certified

contractor and (2) retaliating against him for filing this FCA action. Defendant now moves for

summary judgment as to Relator’s retaliation claim, asserting that the FCA’s anti-retaliation

provision does not cover retaliatory conduct directed at a former employee. Defendant also

contends that Relator’s inability to prove damages is fatal to the claim. For the reasons that follow,

the court denies Defendant’s motion.

II.

The court begins with a summary of the facts relevant only to the retaliation claim. The

court does not summarize the evidence pertaining to the FCA fraud claims, which are the subject

of a separate pending motion. Plaintiff-Relator William Smith was employed by Defendant Athena Construction Group,

Inc., from 2011 to 2016, where he served as the Director of Operations and Project Superintendent.

Third Am. Compl., ECF No. 66, ¶ 17 [hereinafter Am. Compl.]; Answer, ECF No. 112, ¶ 17

[hereinafter Answer]. In 2010, Defendant received a “HUBZone” certification from the Small

Business Administration. Answer ¶ 148. “The purpose of the HUBZone program is to provide

federal contracting assistance for qualified [businesses] located in historically underutilized

business zones in an effort to increase employment opportunities, investment, and economic

development in such areas.”

. The HUBZone program gives preferences in

government contracting to businesses that, among other things, are located in a designated

HUBZone and that have projects staffed by employees residing in HUBZones.

§ 126.200.

Businesses must maintain these requirements to remain HUBZone certified. Id. § 126.500.

Relator claims to have “identified that Athena had obtained its HUBZone certification

fraudulently within three or four months of starting work at Athena.” Rel.’s Resp. to Def.’s Stmt.

of Material Facts, ECF No. 154-2 [hereinafter Rel.’s Resp.], at 6. Relator did not, however, report

this suspicion to his employer or to a regulator. Id. at 6. Defendant terminated Relator’s

employment in January 2016. Id. at 3.

On January 10, 2017, Relator initiated this FCA action in the U.S. District Court for the

Middle District of Pennsylvania. Compl., ECF No. 1. 1 On October 18, 2017, defense counsel

served a letter upon plaintiff’s counsel “demand[ing] that [Relator] dismiss this Complaint

immediately” because it was “frivolous, without a good faith basis in law or in fact, and clearly

designed to harass” Defendant. Ex. A to Rel.’s Opp’n to Def.’s Mot. for Partial Summ. J.

1 That court determined that the interests of justice, as well as the overall convenience of the parties and likely potential witnesses were best served by transfer of Relator’s claims to this court, the venue where the “majority, if not all, of the government entities allegedly defrauded by Defendant” were located. Mem. re: Mot. to Dismiss, ECF No. 25. The matter was thus transferred to this court on September 5, 2018. See ECF No. 27.

2 [hereinafter Rel.’s Opp’n], ECF No. 154-3, at 3 (ECF pagination). After Relator refused to

withdraw the suit, Defendant filed a lawsuit against him, alleging that Relator’s filing of this action

had breached the parties’ severance agreement. Ex. B to Rel.’s Opp’n. Defendant has since filed

additional lawsuits challenging Relator’s retention and alleged distribution of Defendant’s

business information. See Exs. E & H to Rel.’s Opp’n. It is the initial demand letter and the

subsequent lawsuits, and not Relator’s termination of employment, that Relator claims constitute

retaliatory conduct prohibited by the FCA. See Rel.’s Resp. at 2–3.

Relator’s retaliation claim previously survived Defendant’s motion to dismiss. Defendant

had argued that the FCA’s anti-retaliation provision does not reach conduct occurring after the

employment relationship ends and therefore the retaliatory acts alleged by Relator failed to state a

claim. Def.’s Mem. in Supp. of Mot. to Dismiss & for Costs, ECF No. 69, at 22. The court noted

a Circuit split on this issue, with the Tenth Circuit holding unanimously that retaliation must occur

during employment to be actionable under the FCA, and a split panel of the Sixth Circuit ruling

otherwise. See Mem. Op. & Order, ECF No. 107 [hereinafter Mot. to Dismiss Op.], at 41–42.

Finding the Sixth Circuit’s interpretation to be more persuasive, the court “reject[ed] Athena’s

contention that Relator’s retaliation claim must be dismissed merely because the alleged retaliation

occurred after he left Athena’s employment.” Id. at 42. The court did note that Defendant had not

argued that the alleged retaliatory acts were not related to the “terms and conditions of

employment” and thus did not address the merits of that argument. Id. n.7 (quoting

(h)).

Now before the court is Defendant’s Motion for Partial Summary Judgment, seeking entry

of judgment on the retaliation claim. Def.’s Mot. for Partial Summ. J., ECF No. 150.

3 III.

A court must grant summary judgment “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). While the court looks at the facts in the light most favorable to the nonmoving party

and draws all justifiable inferences in that party’s favor, Anderson v. Liberty Lobby, Inc.,

(1986), “the plain language of Rule 56(c) mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial,” Celotex Corp. v. Catrett,

(1986).

To raise a genuine dispute of material fact, “[t]he non-movant must put forth evidence that would

permit a reasonable jury to find in his favor,” or identify the absence of admissible evidence to

support an element of a claim. Cooper v. Dist. of Columbia,

, 177 (D.D.C.

2021) (citing Laningham v. U.S. Navy,

(D.C. Cir. 1987)).

IV.

Defendant challenges Relator’s retaliation claim on several grounds. First, Defendant

renews its contention that, because Relator’s protected activity and the alleged retaliatory conduct

both occurred after Relator’s employment ended, his claim is not cognizable under the FCA’s anti-

retaliation provision,

(h)(1). Second, even if such a claim were viable, Relator

has not supplied evidence from which a reasonable jury could conclude that Defendant retaliated

against him. And, third, Relator has not offered evidence that he suffered harm from the purported

retaliation. The court addresses each contention in turn.

4 A. Post-Employment Retaliation

Defendant again argues that the FCA’s anti-retaliation provision does not reach post-

employment acts directed at a relator. Def.’s Mem. in Supp. of Def.’s Mot. for Partial Summ. J.,

ECF No. 150-1 [hereinafter Def.’s Mem.], at 8 (quoting

). Relator counters that

Defendant’s argument treads no new ground, and the court should reject it for the same reasons as

it did at the motion-to-dismiss stage. Rel.’s Mem. of P&A in Opp’n to Def.’s Mot. for Partial

Summ. J., ECF No. 154-1 [hereinafter Rel.’s Mem.], at 11–13.

The law-of-the-case doctrine is “the practice of courts generally to refuse to reopen what

has been decided,” but it is “not a limit to their power.” Messenger v. Anderson,

(1912). The doctrine is premised on the principle that “the same issue presented a second time

in the same case in the same court should lead to the same result.” LaShawn A. v. Barry,

(D.C. Cir. 1996) (en banc). “Even if different language is used in a summary judgment

motion than in a previous motion to dismiss, so long as the same legal theory supports both

motions, the denial of the motion to dismiss serves as the law of the case and on these grounds, a

court may deny a motion for summary judgment.” Am. Canoe Ass’n, Inc. v. D.C. Water & Sewer

Auth.,

, 34–35 (D.D.C. 2004).

Here, Defendant has presented “no intervening change in controlling legal authority,”

LaShawn,

, or any other reason for this court to reconsider its prior ruling. As the

court held, the mere fact that “the alleged retaliation occurred after [Relator] left Athena’s

employment” does not require dismissal of the claim, because “the FCA’s anti-retaliation

provision protects former employees alleging post-termination retaliation.” Mot. to Dismiss Op.

at 42 (quoting United States ex rel. Felten v. William Beaumont Hosp.,

, 430–35 (6th

Cir. 2021)). Defendant’s motion is thus denied on this ground.

5 Defendant additionally contends—for the first time—that Relator is required to show that

he was “threatened” or “harassed” within the “terms and conditions of [his] employment” to state

a claim under

(h). Def.’s Mem. at 8. Since Defendant did not raise this argument

at the motion-to-dismiss stage, see Mot. to Dismiss Op. at 42 n.7, Relator responds that it is

forfeited, Rel.’s Mem. at 16.

No, it is not. Rule 12(h)(2) expressly provides that “[f]ailure to state a claim upon which

relief can be granted” is not one of the defenses that is waived by not asserting it in a Rule 12

motion. Fed. R. Civ. P. 12(h)(2). The defense can be raised in a pleading, motion for judgment

on the pleadings, or at trial.

“Some courts have interpreted Rule 12(h)(2) restrictively as

denoting the only points in time at which these three defenses may be raised. Other courts have

taken a more permissive approach and allowed the enumerated defenses to be raised at other times.

Since [a] basic purpose of Rule 12(h)(2) . . . is to preserve the defenses, rather than to delimit the

precise timing of their assertion, this latter approach seems sound and within the spirit, if not the

letter, of the provision.” Wright & Miller, 5C Fed. Prac. & Proc. § 1392 (3d ed.) (footnotes

omitted). Accord Kontrick v. Ryan,

(2004) (failure to state a claim defense

could be raised “at the latest, ‘at the trial on the merits’”) (quoting prior version of Fed. R. Civ. P.

12(h)(2)). Defendant therefore has not forfeited the argument it now advances.

On the merits, Relator responds that the statute does not require retaliatory threats or

harassment—the claimed conduct here—to be related to the terms and conditions of the plaintiff’s

employment. Rel.’s Mem. at 15–17. The court agrees. The statutory text defines retaliatory

conduct as acts that result in the plaintiff being “discharged, demoted, suspended, threatened,

harassed, or in any other manner discriminated against in the terms and conditions of employment”

in response to protected activity.

(h)(1). As the Tenth Circuit concluded, the

6 phrase “in the terms and conditions of employment” modifies only the phrase “in any other manner

discriminated against” and not the other listed conduct, because discharge, demotion, and

suspension necessarily relate to the “terms and conditions of employment.” Potts v. Ctr. for

Excellence in Higher Educ., Inc.,

(10th Cir. 2018) (internal quotation marks

omitted). In other words, reading the statute to require “discharge[] . . . in the terms and conditions

of employment” or “demot[ion] . . . in the terms and conditions of employment” would make little

sense, as such acts always implicate the “terms and conditions of employment,” thus making the

clause superfluous as to them. Defendant’s motion is denied on this basis, as well.

B. Evidence of Retaliation

Defendant also reasserts another argument raised at the motion-to-dismiss stage, which is

that Relator has not shown that Defendant was on notice of his investigative activities during his

employment, such that Defendant’s termination of Relator could not constitute retaliation for those

protected activities. Def.’s Mem. at 18. Defendant points to the Third Amended Complaint’s

prayer for relief, which claims that the retaliatory conduct alleged was Relator’s termination, not

the filing of the various lawsuits already discussed.

(citing Am. Compl. ¶ 340).

But, as Relator points out, “the absence of evidence that Athena knew that Relator was

engaging in protected activity during his employment with Athena is” irrelevant to Relator’s actual

theory of retaliation. Rel.’s Mem. at 18. The claim is not premised on any protected activity or

retaliatory conduct during his employment, but rather alleges that Defendant threatened and

harassed Relator by sending him a targeting demand letter and filing lawsuits against him, in

retaliation for bringing this FCA action.

The court recognized this to be Relator’s claim when

it denied the motion to dismiss. Mot. to Dismiss Op. at 42 (writing that “Athena became aware of

Relator’s protected activity on October 13, 2017, when it was served with the original complaint”).

7 Defendant therefore had ample notice when entering discovery. Its arguments premised on the

four corners of the complaint thus ring hollow at this stage.

Defendant further asserts that, even if his claim is cognizable, Relator’s failure to identify

“facts that will establish a prima facie case of retaliation, let alone carry his burden of proof,” is

fatal to the claim. Def.’s Mem. at 9–10. Relator, however, points to record evidence from which

a reasonable jury could conclude otherwise. Such evidence includes: the allegedly threatening

letter demanding that Relator withdraw the FCA suit; the filing of three separate lawsuits against

Relator, none of which made it beyond a motion to dismiss; deposition testimony from one of

Defendant’s co-owners, Amber Peebles, that Defendant likely would not have filed the lawsuits

against Relator had he not filed the FCA action; and Ms. Peebles’ admission that Defendant

conducted little to no investigation before filing the third lawsuit. Rel.’s Mem. at 3–8. The court

agrees that a reasonable jury could credit this evidence and conclude that Defendant’s actions

constituted threats or harassment motivated at least partially by Relator’s filing of the FCA lawsuit.

The court thus denies Defendant summary judgment on this basis.

C. Damages

Finally, Defendant moves for summary judgment based on Relator’s purported failure to

submit proof of damages. 2 Defendant’s damages-related arguments are twofold. First, it urges

the court to reject Relator’s demand for legal fees and costs arising from Defendant’s three lawsuits

because Relator has not shown that he either owes, or has paid, fees or costs in connection with

those cases. Def.’s Mem. at 10–17. Second, insofar as Relator seeks damages based on emotional

2 Athena also appears to argue that Relator “cannot prevail on his retaliation claim” absent proof of damages. Def.’s Mem. at 12–13. The court notes that it is far from clear that damages are an essential element of a retaliation claim under the FCA. At least one Circuit has held that “§ 3730(h) does not explicitly mandate proof of damages as an essential element of a whistleblower’s claim.” Hammond v. Northland Counseling Ctr., Inc.,

, 891 n.6 (8th Cir. 2000). Because the court decides that Relator has supplied evidence supporting at least some damages, it need not, at this juncture, determine whether damages are an element of an FCA retaliation claim.

8 distress, Defendant contends that Relator has not substantiated such damages during discovery,

at 18–19, and to the extent he attempts to do so now, his proof is in the form of an untimely

declaration that the court cannot consider, Def.’s Reply in Opp’n to Mot. for Partial Summ. J.,

ECF No. 155, at 14–15. Because the court is satisfied that the record is sufficient, at this stage, to

support an emotional distress award, it need not delve into the specifics of each argument.

The FCA provides that damages for retaliation include “compensation for any special

damages sustained as a result of the discrimination.”

(h)(2). Every Circuit to

consider the issue has concluded that “[d]amages for emotional distress caused by an employer’s

retaliatory conduct plainly fall within this category of ‘special damages.’” Hammond v. Northland

Counseling Ctr., Inc.,

(8th Cir. 2000); see also Halliburton, Inc. v. Admin. Rev.

Bd.,

, 265–66 (5th Cir. 2014) (same); Neal v. Honeywell, Inc.,

(7th

Cir. 1999) (same); cf. Felten,

n.3 (citing Hammond). Here, during his deposition,

when asked about the damages he had suffered, Relator responded, “I was intimidated and it

caused a lot of stress” and “I just had a lawsuit filed against me. It’s intimidating.” Ex. B to Rel.’s

Mem., ECF No. 150-4, at 202:15-20.

Defendant argues that such “general statements . . . are insufficient to support an award of

compensatory damages.” Def.’s Mem. at 19. That may be true at trial, but it is enough to survive

summary judgment. See Hammond,

(stating that emotional-distress damages

under the FCA can be established at summary judgment by the plaintiff’s own testimony that

describes the “nature and extent” of the emotional harm) (citing Browning v. President Riverboat

Casino-Missouri, Inc.,

(8th Cir. 1998)); cf. Hudson v. Am. Fed’n of Gov’t Emps.,

No. 21-7133,

, at *4 (D.C. Cir. Oct. 28, 2022) (per curiam) (upholding jury’s

award of emotional distress damages in a Title VII discrimination case, where plaintiff’s trial

9 testimony consisted of statements that he felt “just devastated” and “discriminated against,” and

that the discrimination was “embarrassing and humiliating”).

Having thus determined that there is sufficient record evidence to create a triable issue of

fact as to damages, the court does not address whether Relator has offered sufficient proof to

sustain an award for the attorney’s fees and costs he allegedly incurred in defending the suits filed

by Defendant. Nor does the court decide whether Relator’s declaration accompanying his

opposition brief presents newly disclosed evidence that must be excluded under Rule 37(c). The

court is prepared to consider these issues in advance of trial.

V.

For these reasons, Defendant’s Motion for Partial Summary Judgment, ECF No. 150, is

denied.

Dated: March 20, 2024 Amit P. Mehta United States District Court Judge

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