United States District Court, E.D. Virginia, Alexandria Division
KENLY B. NIFONG, Plaintiff,
SOC, LLC, Defendant.
ELLIS, III UNITED STATES DISTRICT JUDGE
issue on summary judgment in this False Claims Act
(“FCA”) retaliation case is whether the undisputed
factual record entitles the defendant to judgment as a matter
of law. Plaintiff, Kenly Nifong, contends that defendant,
SOC, LLC (“SOC”)-a federal contractor and
Nifong's former employer-discharged Nifong because he
reported to his supervisor and the Department of State that
SOC may have overcharged the government with respect to the
billing rate of an SOC employee. As the matter has been fully
briefed and argued orally, it is now ripe for disposition.
For the reasons that follow, SOC's summary judgment
motion must be granted.
begin with, it is necessary to address whether the parties
complied with the requirements for presenting a summary
judgment motion elucidated in Local Civil Rule 56(B) and the
Rule 16(b) Scheduling Order issued in this matter. Pursuant
to Local Rule 56(B) and the Rule 16(b) Scheduling Order, a
motion for summary judgment must contain a separately
captioned section listing, in numbered-paragraph form, all
material facts that the movant contends are not genuinely
disputed. See Rule 56, Local Civ. R.; Nifong v.
SOC, LLC, No. 1:16-cv-63 (E.D. Va. July 7, 2016) (the
“July 7 Order”). Although SOC fully complied with
both the Local Rule and the July 7 Order, Nifong did not;
Nifong only partially complied.
although Nifong noted that he does not contest 29 of
SOC's 62 undisputed material facts, he did not clearly
and specifically respond to the remaining 33 facts asserted
by SOC. For example, Nifong simultaneously admitted and
disputed one of SOC's facts. Compare P. Br.
(Doc. 57) at 1 (admitting paragraph 30) with Id. at
16 (disputing paragraph 30 without citation or explanation).
Nifong also neglected to address some of SOC's factual
paragraphs altogether: Nifong does not address
defendant's paragraphs 24, 52, 58 or 60. Moreover, Nifong
submitted his own narrative statement of undisputed facts
comprising eleven pages. This alternative, narrative
statement of facts not only fails to comply with the July 7
Order, but also serves to undermine Local Rule 56(B) by
frustrating the ability to determine which material facts are
genuinely in dispute. See Integrated Direct Marketing,
LLC v. May, 129 F.Supp.3d 336, 345 (E.D. Va. 2015) (a
party's “narrative version of its own
interpretation of the facts fails to comply with Local Civil
Rule 56(B), largely contains argument, and makes it difficult
to determine exactly which material facts are
disputed”). Because Nifong did not comply with Local
Rule 56(B) and the July 7 Order, “[t]he Court may
assume that any fact identified by the movant as undisputed
… is admitted for the purpose of deciding the motion
for summary judgment.” Nifong v. SOC, No.
1:16-cv-63 (E.D. Va. July 7, 2016). Nonetheless, Nifong's
narrative statement of facts and responses to SOC's
statement of facts will be considered as a whole and scoured
to identify any material facts that might reasonably be in
following list of undisputed material facts reveals, there
are some facts that Nifong contends to be in dispute, but
those disputes are either immaterial or unsupported. Any
material fact identified in SOC's briefs-but properly
disputed by Nifong-is omitted from the list below.
In 2012, SOC hired Nifong as an at-will employee. Nifong was
hired to serve as a Deputy Project Manager - Operations
(“DPMO”) for SOC's contract with the State
Department to provide security for the U.S. Embassy in
According to Nifong's employment contract and deployment
letter, SOC's “target rotation” was for
Nifong to spend 105 days in Iraq, followed by 35 days of
unpaid leave, during which time Nifong was deemed “on
the bench” and was not entitled to any salary or other
This target rotation, however, was tentative, and the actual
deployment schedules for SOC employees often changed based on
the company's business needs. For instance, the Iraqi
government frequently denied or delayed the issuance of
visas, which sometimes made it more difficult for SOC to
replace employees in Iraq and permit deployed personnel to go
On March 13, 2013, Nifong deployed to Iraq, and his initial
assignment was as DPMO at the Baghdad Diplomatic Support
Nifong had broad supervisory authority over the Bagdad
Diplomatic Support Center and was subordinate only to
SOC's Project Manager in Iraq. As of June 2013, SOC's
Project Manager in Iraq, and thus plaintiffs supervisor, was
SOC was also responsible for providing security for a
separate facility in Iraq, the Bagdad Embassy Compound.
On June 21, 2013, SOC promoted James McKaughn from his
position as a Protective Security Specialist
(“PSS”) to a Shift Leader at the Baghdad
Diplomatic Support Center.
SOC bills the government a higher rate for a Shift Leader
than for a PSS.
Nifong questioned McKaughn's promotion from a PSS to
Shift Leader because there were insufficient personnel to
staff a team for McKaughn to lead.
On June 30, 2013, Nifong notified his supervisor, McKittrick,
of McKaughn's promotion from PSS to Shift Leader.
At the time Nifong sent the June 30 notification to
McKittrick, Nifong knew that SOC had not yet billed the
government for McKaughn's services at the higher Shift
In response to Nifong's June 30 notification, McKittrick
commended and thanked Nifong for raising the issue.
That same day, June 30, 2013, McKittrick also directed Kismet
Rollins, the Deputy Program Manager of Facilities and Support
and one of Nifong's peers, to determine what needed to be
done to ensure proper accounting for McKaughn's
assignment. McKittrick also instructed Nifong to coordinate
with Rollins and SOC corporate personnel to ensure that the
correct information was provided to SOC's employee
responsible for reporting personnel assignments to the State
Ms. Rollins responded by email to McKittrick's
directions, opining that SOC should fill high paying
positions so that SOC would make more profit.
Nifong responded by proposing that McKaughn be reassigned to
McKittrick replied, agreeing with Nifong's recommendation
that McKaughn be reassigned to a PSS.
Later that same day, June 30, 2013, Nifong provided Kismet
Rollins documentation correcting McKaughn's assignment.
In response, Rollins asked Nifong for a status change form
that would restore McKaughn to a PSS position. As a result,
on July 1, 2013, the status change form was executed, and
McKaughn was restored to his lower-billing position as a PSS.
The State Department had a Government Technical Monitor
onsite in Iraq to review these precise kinds of assignment
and billing issues.
In fact, McKittrick notified the Government Technical Monitor
of the Shift Leader assignment issue. The Government
Technical Monitor considered SOC's steps to be the
appropriate corrective action, and did not discuss
McKaughn's assignment further.
On July 2, 2013-before checking whether or how SOC had billed
for McKaughn's services as a Shift Leader-Nifong sent an
email from his personal email account to a State Department
Regional Security Officer, Anthony Hill.
In that email to Mr. Hill, Nifong reported McKaughn's
nine-day assignment to a Shift Leader position. Nifong also
advised that SOC was unaware of Nifong's report to the
State Department. Id.
Shortly thereafter, Nifong also shared vague details about
his July 2 email with Chris Vega, one of the State
Department's Assistant Regional Security Officers.
Neither McKittrick nor Rollins knew that Nifong had made this
report to the State Department until after Nifong's
Nifong subsequently spoke with Joshua Noble, SOC's
logistics and administrative manager, and asked whether SOC
had done anything to change the bills or invoices for
McKaughn's services. Mr. Noble stated that he did not
know whether any bill or invoice had been changed. Nifong did
not pursue this issue further.
Nifong, despite claiming that Mr. Noble's response
alarmed him, did not address any concern regarding
overbilling with his supervisor or SOC's management
personnel until December 6, 2013, at which time Nifong
informed SOC that he had been subjected to retaliation, that
he would not redeploy to Iraq, and that he was instead
seeking other employment.
In fact, after McKaughn returned to a PSS position, neither
Nifong nor his subordinates found any instance where one of
SOC's employees was improperly assigned to a position at
the Baghdad Diplomatic Support Center.
Ultimately, SOC billed the government for McKaughn's
services for June 21-July 1, 2013 at the higher Shift Leader
rate, for a total overcharge of $573.90. SOC did not
recognize this billing error until 2014, and subsequently
gave the State Department a credit for that same amount,
Notwithstanding Nifong's June 30, 2013 communication with
McKittrick and the July 2, 2013 communication with the State
Department, Nifong twice elected to extend his deployment in
Iraq beyond the “target” of 105 days.
To compensate Nifong for extending his deployment, SOC, in
August 2013 and September 2013, paid him a combined $18, 000
In 2013, SOC had a written policy requiring employees to be
familiar with International Traffic in Arms Regulations
(“ITAR”) before becoming involved in any
transaction that contemplates the transfer of defense
articles or services.
In this vein, on August 13, 2013, Nifong received compliance
training on SOC's Export and Import Control manual.
According to SOC's policy, employees must consult with
the SOC Empowered Official for ITAR matters-Linda Rudisill-or
the SOC Compliance Committee before transferring defense
articles. Employees must comply with this policy so that
SOC's Empowered Official or Compliance Committee may
determine whether a license is required.
From August to October 2013 Nifong, despite ITAR and
SOC's policies, transferred thousands of rounds of
U.S.-manufactured ammunition to U.S. Special Forces personnel
so that the ammunition could be given to Iraqi Special
forces. In doing so, Nifong hoped that the Iraqi Special
Forces would permit SOC employees to use the Iraqi Special
Forces firing range.
During this same timeframe, Nifong ceremonially gave four or
five boxes of U.S. manufactured ammunition to an Iraqi
general in the presence of U.S. Special Forces personnel.
Yet, Nifong did not have the required authorization-from
SOC's Empowered Official or Compliance Committee-to do
so. Nifong was therefore in violation of SOC's Export
On September 25, 2013, Nifong and two of his peer Deputy
Project Managers-Odis Goodnight and Tandy Carter-received
notice of their respective leave and rotation schedules.
Nifong's schedule stated that he would go on leave
starting October 29, 2013, and return 70 days later as the
DPMO for the Baghdad Embassy Compound. The contemplated 70
days' leave doubled the “target” of 35
Nifong's peers, Odis Goodnight and Tandy Carter, also
received schedules that, like Nifong's schedule, exceeded