Israel Briggs v. Quantitech Inc.

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11448
Non-Argument Calendar
____________________
ISRAEL BRIGGS,
for the use and benefit of
United States of America,
Plaintiff-Appellant,
versus
QUANTITECH INC.,
QUALIS CORPORATION,
Defendants-Appellees,
ELIZABETH MORAD, et al.,
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2 Opinion of the Court 21-11448
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:19-cv-01690-ACA
____________________
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
In this retaliation lawsuit, Israel Briggs, now proceeding pro
se, alleges that he was unlawfully terminated by his employers,
Qualis and QuantiTech, after disclosing to his employers that he
believed they were committing fraud. Briggs brought retaliation
claims under three different statutory regimes: (1) the False Claims
Act 1 (FCA), (2) the National Defense Authorization Act2 (NDAA),
and the Florida Whistleblower Protection Act 3 (FWPA). The dis-
trict court granted Qualis and QuantiTech’s Rule 12(b)(6) motions
to dismiss as to all of Briggs’s claims. On appeal, Briggs contends
that the allegations in his complaint sufficiently show that he had
an objectively reasonable belief that his employer was defrauding
1
31 U.S.C. § 3730(h).
2
10 U.S.C. § 4701(c)(2).
3
Fla. Stat. § 448.102(3).
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21-11448 Opinion of the Court 3
the government or otherwise violating the law. For the reasons
stated below, we affirm.
I.
Since we are reviewing a Rule 12(b)(6) motion to dismiss,
we take the following facts from Briggs’s First Amended Complaint
as true and construe them in the light most favorable to him.4 Is-
rael Briggs initiated this lawsuit against QuantiTech and Qualis fol-
lowing his termination from a government contract that the com-
panies had been awarded. QuantiTech was the prime contractor
and Qualis was the subcontractor and direct employer of Briggs.
The purpose of the contract was to provide the United States Air
Force (USAF) with various services regarding their information
systems. Briggs was assigned the role of an information system se-
curity manager and had the primary responsibility of evaluating
the USAF’s systems to ensure they met the necessary standards.
During his employment under the contract, Briggs encoun-
tered problems with his supervisor, Robin Hays who was a USAF
civilian employee. According to Briggs, Hays did not follow pro-
ject protocol in supervising his work. Briggs believed that Hays did
not have the necessary credentials to be working on the contract
and her supervision was causing chain of command issues.
4
See Glover v. Ligget Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (per cu-
riam).
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4 Opinion of the Court 21-11448
Stemming from these tensions with Hays, Briggs raised three
claims of fraud against his employer.
First, according to Briggs, Hays’s close supervision of Briggs
turned his employment under the contract into an illegal services
contract. Under 48 C.F.R. § 37.104, the government may not ob-
tain personal services by contract, but rather only by direct hire.
This illegal services contract in turn created an Organizational Con-
flict of Interest (OCI) for Qualis because the company was unable
to render impartial assistance due to its need to conceal the unlaw-
ful personal services contract. Under 48 C.F.R. § 1352.209-74, a
contractor has a duty to disclose any OCIs to the government and
the government may terminate the contract or debar the contrac-
tor from government contracting. Therefore, Briggs alleges,
Qualis violated this regulation by not disclosing the OCI.
Second, Briggs identified certain cybersecurity vulnerabili-
ties with the USAF’s information systems. Briggs alleged that
Qualis conspired with USAF employees to conceal this fact from
the USAF chain of command, which allowed Qualis to misrepre-
sent that it was performing as required under the contract.
Third, Briggs pointed to a fraudulent progress report made
by Hays. According to Briggs, Hays entered an incorrect date on a
progress report that made it seem like the project was further along
than it really was.
Briggs raised all of these concerns to both the USAF and
Qualis. Despite meetings and various communications between
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Briggs, the USAF, and Qualis, the parties were unable to resolve
these issues. In the end, the USAF informed Qualis that it would
no longer be funding Briggs’s position. Qualis furloughed Briggs
from his work under the contract and, ultimately, terminated him
from his position at the company.
Briggs then brought three claims against Qualis and Quan-
tiTech, alleging that his employers violated the retaliation provi-
sions of the FCA, NDAA, and FWPA. Briggs claimed that his em-
ployer unlawfully terminated him after he objected to what he rea-
sonably believed to be illegal practices and fraud against the United
States committed by the company. Qualis and QuantiTech moved
to dismiss the complaint for failure to state a claim. The district
court granted those motions, finding that Briggs did not establish
an objectively reasonable belief that his employers were defrauding
the government or violating a law, rule, or regulation. Briggs then
moved for reconsideration, which the district court denied. This
appeal of the district court’s grant of Qualis and QuantiTech’s mo-
tions to dismiss and denial of Briggs’s motion for reconsideration
followed.
II.
“We review de novo the district court’s grant of a motion to
dismiss under [Rule] 12(b)(6) for failure to state a claim[.]” Glover,
459 F.3d at 1308. Under Rule 8(a), a complaint must, among other
things, present “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To
survive a motion to dismiss, a complaint must contain sufficient
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facts that, if true, state a facially plausible claim for relief. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible if it
creates a “reasonable inference that the defendant is liable for the
misconduct alleged.” Id. However, conclusory allegations are not
facts that are “entitled to be assumed true.” Id. at 681.
We review the denial of a Rule 59(e) motion for reconsider-
ation for abuse of discretion. St. Louis Condo. Assoc., Inc. v. Rock-
hill Ins. Co., 5 F.4th 1235, 1246 (11th Cir. 2021). A district court
may grant a Rule 59(e) motion only based on newly-discovered ev-
idence or manifest errors of law or fact. Id. It cannot be used to
relitigate old arguments or present evidence that could have been
raised before the entry of judgment. Id.III.
Turning first to Briggs’s FCA claim, Briggs seeks relief under
the retaliation provision of the FCA which provides an employee
with a cause of action against his employer if his employer termi-
nates his employment because the employee was attempting to
stop violations of the FCA. See 31 U.S.C. § 3730(h). In Hickman
v. Spirit of Athens, Ala., Inc., we noted that circuits have inter-
preted the retaliation provision in the FCA differently. 985 F.3d
1284, 1288 (11th Cir. 2021). Prior to the amendments to § 3730(h),
we applied the “distinct possibility” standard, meaning that em-
ployees were protected not just when a FCA action has been filed,
but also when the filing of such an action was a distinct possibility.
See Childree v. UAP/GA CHEM, Inc., 92 F.3d 1140, 1146 (11th Cir.
1996). Following the amendments, we have yet to adopt a
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21-11448 Opinion of the Court 7
controlling standard. However, in Hickman, we chose not to ex-
pressly adopt a standard because even under the lesser standard
that an employee only needs to have an objectively “reasonable be-
lief” of an FCA violation, the plaintiff’s claim under § 3730(h) failed.
985 F.3d at 1289. We choose to do the same here.
Briggs does not sufficiently allege that he had an objectively
reasonable belief that his employer was violating the FCA. “[T]he
sine qua non of an FCA violation is a submission of a false claim to
the government.” Ruckh v. Salus Rehab., LLC, 963 F.3d 1089, 1103
(11th Cir. 2020) (alteration adopted and internal quotation marks
omitted). Thus, Briggs must show that he had an objectively rea-
sonable belief that Qualis and QuantiTech were submitting false
claims to their customer under the contract, the USAF. To prove
liability under the FCA, Briggs must demonstrate that his employ-
ers (1) made a false statement or engaged in a fraudulent course of
conduct (2) with scienter (3) that was material and (4) caused the
government to pay out money or forfeit moneys due. United
States ex rel. Bibby v. Mortgage Inv’rs Corp., 987 F.3d 1340, 1346
(11th Cir. 2021).
We quickly dismiss Briggs’s theories of fraud based on (1) a
fraudulent progress report made by Hays and (2) the alleged con-
spiracy to conceal cybersecurity vulnerabilities in the USAF’s sys-
tems. Regarding the progress report, that action was taken by a
USAF employee, not Qualis, so Qualis cannot be said to have made
a false statement or engaged in a fraudulent course of conduct un-
der that theory. Regarding the cybersecurity vulnerabilities, Briggs
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8 Opinion of the Court 21-11448
does not sufficiently allege that Qualis attempted to conceal these
vulnerabilities from the USAF or say that the vulnerabilities did not
exist. On the contrary, Briggs alleges that he disclosed these vul-
nerabilities to USAF employees. The fact that the USAF chose not
to address these issues does not equate to Qualis fraudulently con-
cealing them from the USAF.
Turning to Briggs’s last theory of fraud that Qualis failed to
disclose a conflict of interest to the USAF, Briggs alleges that the
conflict arose due to Qualis’s “need to conceal the personal services
contract.” We conclude that this theory fails because “liability un-
der the [FCA] arises from the submission of a fraudulent claim to
the government, not the disregard of government regulations or
failure to maintain proper internal procedures.” Hickman, 985
F.3d at 1289 (internal quotation marks omitted). Briggs attempts
to do just that here. He does not allege that failure to report the
conflict caused the submission of a false claim, rather he only al-
leges that failure to disclose the conflict violated a federal regula-
tion. Therefore, we conclude that it was not reasonable for Briggs
to believe that his employer was submitting false claims to the gov-
ernment by not disclosing this conflict of interest.
Briggs’s claims under the NDAA and FWPA suffer the same
fate. The NDAA provides that an employee of a government con-
tractor may not be discharged for disclosing what “the employee
reasonably believes is evidence” of “a violation of law, rule, or reg-
ulation related to a Department [of Defense] contract.” 10 U.S.C.
§ 4701(a). Similarly, the FWPA protects employees from
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21-11448 Opinion of the Court 9
retaliation for objecting to an employer’s “violation of a law, rule,
or regulation.” Fla. Stat. § 448.102(3). The Florida Courts of Ap-
peal are split on whether a FWPA plaintiff must show that the de-
fendants actually violated the law or whether he must only show
that he had a good-faith, reasonable belief that the employer had
violated such a law, rule, or regulation. See Kearns v. Farmer Ac-
quisition Co., 157 So. 3d 458, 465 (Fla. Dist. Ct. App. 2015) (requir-
ing that the defendant actually violated the law); Aery v. Wallace
Lincoln-Mercury, LLC, 118 So. 3d 904, 916 (Fla. Dist. Ct. App.
2013) (requiring only a good-faith, objectively reasonable belief
that the defendant violated the law).
Even assuming the FWPA, like the NDAA, requires only a
reasonable belief of a violation by the defendant, Briggs cannot
meet that standard. The only possible source of liability for Qualis
and QuantiTech here would be from their alleged failure to dis-
close a conflict of interest in violation of 48 C.F.R. § 1352.209-74.
Briggs’s theory is that a conflict was generated due to Qualis’s need
to conceal an unlawful personal services contract created by Hays’s
supervision over Briggs. However, Qualis was not concealing an-
ything for two reasons. One, the USAF was the one who allegedly
created the unlawful personal services contract so this fact would
already be known to them. Two, Briggs disclosed his concerns
about Hays’s supervision to both Qualis and the USAF. Therefore,
Qualis could not conceal a problem of which the USAF was already
aware.
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Finally, we address Briggs’s argument that the district court
impermissibly resolved factual disputes in determining that
Briggs’s belief was not objectively reasonable. As noted above, all
three of Briggs’s claims require, at a minimum, a reasonable belief
that Qualis and QuantiTech engaged in defrauding the govern-
ment or were otherwise violating the law. The district court
properly took all of Briggs’s factual allegations as true, but “the
tenet that a court must accept as true all of the allegations con-
tained in a complaint is inapplicable to legal conclusions.” Iqbal,
556 U.S. at 678. Thus, even assuming the facts in Briggs’s com-
plaint as true, they still do not establish that his belief was objec-
tively reasonable. Accordingly, we affirm the district court’s dis-
missal of Briggs’s claims. 5
AFFIRMED.
5
Because Briggs’s motion to reconsider reiterates the same arguments already
made, the district court did not abuse its discretion in denying that motion.
St. Louis Condo. Assoc., Inc., 5 F.4th at 1246.