United States District Court, E.D. Virginia, Alexandria Division
KENLY B. NIFONG, Plaintiff,
SOC, LLC, Defendant.
ELLIS, III UNITED STATES DISTRICT JUDGE
retaliation action, plaintiff alleges that defendant, a
federal contractor and plaintiffs former employer, took
adverse actions against plaintiff, including the termination
of plaintiffs employment, in retaliation for plaintiffs
reporting of defendant's practice of designating
employees at pay grades higher than warranted for the duties
performed in order to bill the government at a higher rate.
Specifically, plaintiff alleges two claims against defendant:
(i) a False Claims Act ("FCA") retaliation claim
pursuant to 31 U.S.C. § 3730(h), and (ii) a National
Defense Authorization Act ("NDAA") reprisal claim
pursuant to 41 U.S.C. § 4712. Defendant has moved to
dismiss both claims for failure to state a claim. As the
matter has been fully briefed and argued orally, it is now
ripe for disposition.
Kenly B. Nifong, a resident of Florida, is a former employee
of defendant SOC, LLC, a government contractor that provides
services at U.S. Department of State ("DOS")
facilities around the world, including Baghdad, Iraq.
September 2012, plaintiff began working for defendant, and in
March 2013, defendant sent plaintiff to Iraq to work on the
Worldwide Protective Services contract, SAQMMA10F521
("WPS Contract"),  with DOS, as a
Deputy Project Manager of Operations for the Baghdad Embassy
Security Force Project. Thereafter, on June 29, 2013,
plaintiff became aware that defendant's employee, James
McKaughan, a Private Security Specialist ("PSS") on
the WPS Contract, had recently been assigned to a Shift
Leader ("SL") position, a higher ranking position
than PSS. McKaughan's new SL designation allowed
defendant to bill the government at a higher rate for
McKaughan's work, even though McKaughan continued to
perform the duties of a PSS, not the duties of an SL.
after plaintiff became aware of McKaughan's new SL
designation, plaintiff contacted Detail Leader
("DL") James Martin to discuss the matter.
Thereafter, on June 30, 2013, DL Martin informed plaintiff by
email that defendant had deliberately designated McKaughan as
an SL because "keeping personnel in the highest
paying/billable positions regardless of the actual job being
performed was [the] general practice at the Baghdad Embassy
Compound, and had been since [defendant] obtained the
contract." Compl. ¶ 81. In response, plaintiff told
DL Martin that this practice appeared to be contract fraud
and that defendant should correct the practice.
same day, plaintiff reported the McKaughan designation to his
supervisor, Project Manager ("PM") Bancroft
McKittrick. Plaintiff also reported to McKittrick
defendant's more general practice of designating
personnel at the highest possible positions in order to bill
the DOS at the highest possible rate. As plaintiff had
previously stated to DL Martin, plaintiff also noted to PM
McKittrick that this practice appeared to constitute fraud
and suggested that defendant should self-report the practice
to the DOS. In response, PM McKittrick told plaintiff not to
report the practice and assured plaintiff that PM McKittrick
would correct the practice before the next billing cycle.
Plaintiff then sent PM McKittrick a follow-up email in which
plaintiff (i) reiterated his concerns about the billing
practice, (ii) noted that he believed the practice
"could easily be construed as fraud, " and (iii)
identified specific corrections to be made before the next
billing cycle. Def. Ex. C, McKittrick Email (June 30, 2013).
Shortly thereafter, PM McKittrick replied to this email,
copying Deputy PM of Facilities and Support Kismet Rollins
and Deputy PM of Operations Rich Tudor. Id. In this
reply, PM McKittrick thanked plaintiff for taking action and
directed Deputy PM Rollins to determine what further steps
were needed. Id.
that day, June 30, 2013, Deputy PM Rollins emailed plaintiff,
PM McKittrick, and Deputy PM Tudor recommending that "if
it doesn't affect the mission, " defendant should
continue to "fill the high paying positions and down
post the low paying positions so the employee will make more
money" and defendant "will make more profit."
Compl. K 92, Def. Ex. D, Rollins Email (June 30, 2013). In
other words, Deputy PM Rollins recommended that defendant
should continue designating employees at pay grades higher
than necessary for the duties performed in order to bill the
government at a higher rate. Plaintiff responded to Deputy PM
Rollins, PM McKittrick, and Deputy PM Tudor, stating that
"I still cannot see how we can bill for a SL if
the person if [sic] a PSS position" and that "there
is an ethical question to be answered." Id.
¶ 93, Def. Ex. D, Plaintiff Email (June 30, 2013).
Plaintiff later asked Administrative Logistics Support
Services Manager ("ALSSM") Josh Noble if anything
had been done to correct defendant's billing practice;
ALSSM Noble indicated he was unaware of any efforts to
correct the billing practice.
on July 2, 2013, plaintiff reported the McKaughan designation
to DOS Contracting Officer Representative Anthony Hill, the
DOS employee who monitored and directed defendant's
performance of the WPS Contract. Plaintiff asked Hill to
protect his identity and to keep the information
confidential, and Hill agreed. Nonetheless, Hill told others
at the DOS about plaintiffs report. Shortly thereafter,
plaintiff informed Assistant Regional Security Officer Chris
Vega, defendant's employee, that plaintiff had reported
the McKaughan designation to Hill.
three months later, on September 25, 2013, Deputy PM Rollins
issued plaintiff a new rotation schedule that plaintiff
alleges was adverse to plaintiff. Plaintiff also alleges that
Deputy PM Rollins required plaintiff to accept the new
rotation schedule immediately, which plaintiff declined to
do. Thereafter, on September 29, 2013, PM McKittrick called
plaintiff (i) noting that plaintiff did not support
defendant's management, and (ii) accusing plaintiff of
misconduct. Shortly thereafter, on October 8, 2013, during a
weekly conference call, Deputy PM Rollins said that plaintiff
was "having trouble" and that "we need to get
him out right away." Compl. f 116-17. Two days after
the conference call, PM McKittrick emailed a "Counseling
Statement" to plaintiff, characterizing the email as a
follow up to the "verbal warning" PM McKittrick had
given plaintiff during the September 29, 2013 telephone call.
Def. Ex. F, Counseling Statement. The Counseling Statement
described plaintiffs poor work performance and unprofessional
on December 6, 2013, while in the United States on unpaid
leave, plaintiff submitted a complaint by email to
defendant's parent company, Day & Zimmerman, stating
that plaintiff had reported "wrong-doing, " and as
a result, was suffering retaliation, slander, defamation, and
harassment. Def. Ex. H, PL Email (Dec. 6, 2013). Plaintiffs
email further advised defendant's parent company that
although plaintiffs visa did not expire until December 23,
2013, plaintiff would not return to Iraq before that date
because he had "lost trust and confidence in most of
[defendant's] corporate staff' and could not "in
good faith go back to a company that allows [the alleged]
behavior to continue, " but would instead "simply
remain on the bench until [he found] other employment or
these issues [were] resolved."
days later, on December 16, 2013, Claude Goddard, a lawyer
retained by Day & Zimmerman, contacted plaintiff. Goddard
explained that he had been retained to investigate plaintiffs
complaint and promised to provide plaintiff with the results
of the investigation sometime after Christmas 2013.
December 28, 2013, plaintiff received a letter from defendant
notifying plaintiff that his employment with defendant had
been terminated, effective December 23, 2013, for violating
International Trafficking in Arms Regulations
("ITAR") during his previous deployment in Iraq.
Specifically, the termination letter stated that plaintiff
had given some of defendant's ammunition to Iraqi Special
Forces, in violation of ITAR, in exchange for the use of an
Iraqi shooting range. Def. Ex. A, DOS Inspector General
October 13, 2014, plaintiff submitted a complaint to the DOS
Inspector General ("IG"), alleging that plaintiffs
employment had been terminated in retaliation for plaintiffs
whistleblowing activity. The DOS IG investigated plaintiffs
complaint and ultimately concluded that defendant had shown
by clear and convincing evidence that defendant had not
terminated plaintiffs employment in retaliation for any
protected activity, but had instead done so on the basis of
plaintiff s poor performance and improper conduct.
February 8, 2016, plaintiff filed a complaint alleging that
defendant terminated plaintiffs employment with defendant in
retaliation for plaintiffs reporting of defendant's
allegedly fraudulent employee designation practice.
Specifically, plaintiff alleges two claims against defendant:
(i) an FCA retaliation claim pursuant to 31 U.S.C. §
3730(h), and (ii) a NDAA reprisal claim pursuant to 41 U.S.C.
defendant filed a motion to dismiss both of plaintiffs claims
for failure to state a claim on which relief can be granted
pursuant to Rule 12(b)(6), Fed.R.Civ.P. Plaintiff then filed
a motion for leave to amend the complaint in order to allege
additional facts with respect to the § 4712 claim.
Specifically, plaintiff sought to add a factual allegation
that the DOS IG deemed § 4712 applicable to the WPS
Contract. Importantly, this additional factual allegation
would make no difference in determining whether § 4712
applies to the WPS Contract, but because there may be
additional facts material to plaintiffs § 4712 claim,
plaintiffs motion for leave to amend was granted by Order
dated May 27, 2016. Nifong v. SOC, LLC, No.
1:16-cv-63 (E.D. Va. May 27, 2016) (Order) (Doc. 21). In this
regard, during oral argument on plaintiffs motion for leave
to amend and defendant's motion to dismiss, defendant
agreed to allow plaintiff to review the WPS Contract and
modifications to that contract in order to determine whether
§ 4712 is applicable here. Accordingly, by Order dated
May 27, 2016, (i) defendant's motion to dismiss was taken
under advisement pending plaintiffs review of the WPS
Contract documents, and (ii) plaintiff was directed to submit
a pleading by June 1, 2016, addressing whether § 4712
governs the WPS Contract. Id.
1, 2016, plaintiff filed a supplemental pleading stating that
defendant had provided plaintiff with the WPS Contract
documents, and that upon review of those documents, plaintiff
concluded that § 4712 governs the WPS Contract, and
therefore provides a basis for a reprisal claim here. Thus,
defendant's motion to dismiss is ripe for disposition.
pursuant to Rule 12(b)(6), Fed. R. Civ. P., is appropriate
where the complaint does not "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
Bell Atl Corp. v. Twombly, 550 U.S. 544,
570 (2007)). To survive a Rule 12(b)(6) motion to dismiss, a
complaint must contain more than "[t]hreadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements." Id. Instead, the
complaint must allege facts that plausibly satisfy each
element of the claims for which relief is sought.
Id. at 679. Accordingly, a motion to dismiss must be
granted if the complaint does not allege a factual basis to
support a plausible inference that plaintiff is entitled to
first contends that plaintiffs NDAA reprisal claim pursuant
to 41 U.S.C. § 4712 must be dismissed because that
statute, a temporary statute that applies only to a four-year
period, does not apply here.
§ 4712, an employee of a federal contractor may bring a
reprisal claim against the federal contractor. Yet, as
defendant correctly notes, § 4712 is a "pilot
program" that temporarily suspends application of 41
U.S.C. § 4705, a similar provision that does not provide
a private cause of action. Id. § 4705(f).
Specifically, § 4712 is effective only for a four-year
period beginning on July 1, 2013, 180 days after the date of
enactment. See 41 U.S.C. § 4712(i). In this
respect, Congress provided that "[t]he amendments made