Sharma v. Dist. of D.C.

• Decision Date: 17 June 2011
• Docket Number: Civil Action No. 10–1033 (GK).
• Citation: 791 F.Supp.2d 207,32 IER Cases 753
• Court: U.S. District Court — District of Columbia
• Parties: Ramesh SHARMA, Plaintiff,v.DISTRICT OF COLUMBIA, Defendant.

791 F.Supp.2d 207

32 IER Cases 753

Ramesh SHARMA, Plaintiff,

v.DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 10–1033 (GK).

United States District Court, District of Columbia.

June 17, 2011.

Alan Banov, Alan Banov & Associates, Silver Spring, MD, for Plaintiff.Darrell Chambers, District of Columbia, Office of the Attorney General, Washington, DC, for Defendant.Alan R. Kabat, Bernabei & Wachtel, PLLC, Washington, DC, for Metropolitan Washington Employment Lawyers Association.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Plaintiff, Ramesh Sharma, a former employee of the District of Columbia Office of Contracting & Procurement (“OCP”), brings this action against Defendant, District of Columbia, for retaliation in violation of the D.C. Whistleblower Protection Act (“DCWPA”), D.C.Code § 1–615.51 et seq. , and the federal False Claims Act (“FCA”), 31 U.S.C. § 3730. This matter is presently before the Court on Defendant's Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, the Motion to Dismiss is denied in its entirety.

I. Background

In January 2003, Plaintiff was hired as a Senior Contract Specialist by the OCP, an agency of the District of Columbia government. Compl. ¶¶ 3, 8. Beginning in 2005 and continuing until early 2009, Plaintiff alleges that various D.C. employees pressured him to approve contracts that were fraudulent, wasteful, and violated D.C. and federal laws and regulations. Id. ¶¶ 10–111. Plaintiff refused to approve these contracts and filed a series of whistleblower complaints with various D.C. and federal agencies. Id. ¶¶ 10–94. In alleged retaliation for his whistleblowing activities, Plaintiff was allegedly demoted, stripped of his contracting officer authority, deprived of various employment opportunities within the D.C. government, and otherwise discriminated against. Id. ¶¶ 30, 40–100, 109–11.

In March 2009, the construction contracting group at OCP, where Plaintiff worked, was moved to the D.C. government's Office of Property Management (“OPM”). Id. ¶¶ 103, 105. In connection with this move, Plaintiff's co-workers were transferred to other positions within OCP or were sent to the new OPM construction contracting division. Id. ¶¶ 119–20. Plaintiff, by contrast, received a notice of Reduction in Force (“RIF”) shortly after the reorganization. Id. ¶ 115. This notice, which was dated May 18, 2009, was received by Plaintiff on May 29, 2009, and was effective as of June 19, 2009. Id. ¶ 115–16. Plaintiff was the only member of the OCP construction contracting group who was subjected to a RIF. Id. ¶ 118. On June 3, 2009, Plaintiff was placed on administrative leave with pay. Id. ¶ 122.

On June 11, 2009, Plaintiff filed a whistleblower complaint and a complaint about the RIF with the D.C. Inspector General's Office. Id. ¶ 123. On June 19, 2009, Plaintiff's RIF went into effect and he was terminated from employment. Id. ¶ 124. On July 16, 2009, Plaintiff appealed the RIF decision to the D.C. Office of Employee Appeals (“OEA”). Id. ¶ 126. Plaintiff withdrew his appeal without prejudice on April 11, 2010. Id. ¶ 127. Subsequently, the OEA dismissed Plaintiff's appeal with prejudice on April 13, 2010. Id. ¶ 128.

On June 18, 2010, Plaintiff filed the instant Complaint against the D.C. government [Dkt. No. 1]. On September 1, 2010, Defendant filed its Motion to Dismiss all of Plaintiff's claims (“Def.'s Mot.”) [Dkt. No. 5]. On October 4, 2010, Plaintiff filed his Opposition to Defendant's Motion to Dismiss (“Plaintiff's Opp'n”) [Dkt. No. 7]. On October 21, 2010, Defendant filed its Memorandum in Reply to the Plaintiff's Opposition to the District's Motion to Dismiss (“Def.'s Reply”) [Dkt. No. 9].

II. Standard of Review

Under Rule 12(b)(6), a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face” and to “nudge[ ] [his or her] claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “[A] complaint [does not] suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotations omitted) (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Instead, the complaint must plead facts that are more than “merely consistent with” a defendant's liability; “the pleaded factual content [must] allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1940 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

“[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S.Ct. 1955. Under the standard set forth in Twombly, a “court deciding a motion to dismiss must ... assume all the allegations in the complaint are true (even if doubtful in fact) ... [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C.Cir.2008) (internal quotations and citations omitted). See Tooley v. Napolitano, 586 F.3d 1006, 1007 (D.C.Cir.2009) (declining to reject or address the government's argument that Iqbal invalidated Aktieselskabet ).

III. Analysis

Defendant argues that Plaintiff fails to state a claim for relief under both the DCWPA and the FCA.

With regard to the DCWPA claim, Defendant raises substantive as well as procedural challenges. In bringing its substantive challenge, Defendant argues that many of Plaintiff's allegations are not covered by the DCWPA. In terms of its procedural challenge, Defendant makes the over-arching claim that recent amendments to the DCWPA do not apply to incidents, such as Plaintiff alleges, that occurred before the amendments went into effect. In the alternative, Defendant argues that Plaintiff's DCWPA claim must be dismissed as preempted by the D.C. Comprehensive Merit Personnel Act (“CMPA”), D.C.Code § 1–601.01 et seq.

A. Plaintiff's DCWPA Claim

The DCWPA is intended to “[e]nsure that the rights of [D.C.] employees to expose corruption, dishonesty, incompetence, or administrative failure are protected” and to shield these employees “from reprisal or retaliation for the performance of their duties.” D.C.Code § 1–615.51(5), (7).

Under the DCWPA, D.C. employees have the right “to disclose information unlawfully suppressed, information concerning illegal or unethical conduct which threatens or which is likely to threaten public health or safety or which involves the unlawful appropriation or use of public funds.” D.C.Code § 1–615.58(2). The statute obligates these employees to “make all protected disclosures concerning any violation of law, rule, or regulation, contract, misuse of government resources ... as soon as the employee becomes aware of the violation or misuse of resources.” D.C.Code § 1–615.58(7). The DCWPA prohibits supervisors from taking or threatening to take “prohibited personnel actions” ¹ or to otherwise retaliate against an employee because of her protected disclosures or her refusal to comply with an illegal order. D.C.Code § 1–615.53(a).

1. Defendant's Substantive Argument Misperceives Plaintiff's Claim

In its Motion, Defendant argues that “many” of the allegations raised by Plaintiff “are not ‘prohibited personnel actions' as defined by the [DCWPA].” Def.'s Mot. 5 n. 1. This argument, in turn, rests on the theory that Plaintiff's DCWPA claim relies on numerous separate violations of the statute. However, as reflected in the Complaint, Plaintiff's claim is, in fact, based on one and only one incident, namely, the RIF. Compl. ¶ 141 (“By laying off plaintiff, defendant retaliated against him because of his whistle-blowing activities and thereby violated the D.C. Whistleblower Protection Act....”); Plaintiff's Opp'n 23–24.

While the Complaint does contain numerous allegations that Plaintiff made protected disclosures and was retaliated against for his whistleblowing activities, those incidents are not the basis of his DCWPA claim. Rather, these are factual allegations presented to support Plaintiff's sole legal claim under the statute, namely that the RIF was retaliatory. With respect to this RIF, Defendant does not challenge its status as a “prohibited personnel action” under the DCWPA.

Accordingly, the Court denies Defendant's substantive challenge to Plaintiff's DCWPA claim, which is based solely on the RIF. The Court will now turn to Defendant's procedural arguments against Plaintiff's DCWPA claim.

2. The 2010 Amendments to the Statute of Limitations and Pre–Suit Notice Requirement Are Retroactive

As already noted, the parties disagree about the applicability of the Whistleblower Protection Amendment Act of 2009, which went into effect on March 11, 2010 (“2010 Amendments”), 2010 D.C. Legis. Serv. 18–117 (West), and amended the DCWPA originally enacted in 1998. Def.'s Mot. 3–6; Plaintiff's Opp'n 26–28.

First, the 2010 Amendments changed the DCWPA's statute of limitations from “1 year after a violation occurs or within 1 year after the employee first becomes aware of the violation” to “3 years after a violation occurs or within one year after the employee first becomes aware of the violation, whichever occurs first.” 2010 Amendments, Sec. 3(c).

Second, the 2010 Amendments eliminated the DCWPA's pre-suit notice requirement, contained in D.C.Code § 12–309 (“12–309 notice”), that had required employees to give written notice to the D.C. Mayor's office “within six months after the injury or damage was sustained,” providing the “approximate time, place, cause, and circumstances of the injury or damage.” 2010 Amendments, Sec. 2(c).

Defendant argues that because the 2010 Amendments lack clear language supporting their...