Wims v. Consortium for Ocean Leadership

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.”
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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
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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., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d
605, 608 (D.C. Cir. 1979)) (citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402
F.3d 1249, 1250 (D.C. Cir. 2005). The pleading rules are “not meant to impose a great burden
upon a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he must thus be
given every favorable inference that may be drawn from the allegations of fact. Scheuer v.
Rhodes, 416 U.S. 232, 238 (1974).
Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (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, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plaintiff must
put forth “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. 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, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting
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Papasan v. Allain, 478 U.S. 265, 286 (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, 550 U.S. at 555-56
(quoting Rhodes, 416 U.S. at 236).
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.,
597 A.2d 28, 30 (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.” Id. at 34.
Robinson v. Securitas Servs., Inc., 819 F. Supp. 2d 18, 20 (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, 819 F. Supp. 2d at 20. 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., 621 A.2d 1387 (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
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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.” Id. at 1390. 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., 946 F. Supp. 2d 69 (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. Id. at 89. Similarly, in Kassem v. Washington Hospital Center, 513 F.3d 251 (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. Id. at 254-55.
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
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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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