United States ex rel. Bias v. Tangipahoa Parish Sch. Bd.

• Decision Date: 09 March 2016
• Docket Number: No. 15–30193.,15–30193.
• Citation: 816 F.3d 315
• Parties: UNITED STATES of America, ex rel., Ronald BIAS, Plaintiff–Appellant v. TANGIPAHOA PARISH SCHOOL BOARD; Michael Stant, in his official capacity; Carl J. Foster, in his official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

816 F.3d 315

UNITED STATES of America, ex rel., Ronald BIAS, Plaintiff–Appellant

v.TANGIPAHOA PARISH SCHOOL BOARD; Michael Stant, in his official capacity; Carl J. Foster, in his official capacity, Defendants–Appellees.

No. 15–30193.

United States Court of Appeals, Fifth Circuit.

March 9, 2016.

Paul Frederick Bell(argued), Bell Law Firm, L.L.C., Baton Rouge, LA, Alan Fisher Kansas, Kansas & Kansas, L.L.C., Terrytown, LA, for Plaintiff–Appellant.

Danielle Ann Boudreaux(argued), Robert L. Hammonds, Hammonds, Sills, Adkins & Guice, L.L.P., Baton Rouge, LA, for Defendants–Appellees.

Before DAVIS, PRADO, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Ronald Bias, a high school JROTC instructor, brought suit against the Tangipahoa Parish School Board and two school employees.The district court dismissed Bias's False Claims Act retaliation, Section 1983, and state law claims pursuant to Federal Rule of Civil Procedure 12(b)(6).We AFFIRM in part, and REVERSE and REMAND in part.

FACTS AND PROCEDURAL BACKGROUND

In August 2008, Ronald Bias, a retired lieutenant colonel in the United States Marine Corps, began working for the Tangipahoa Parish School Board as the Junior Reserve Officers' Training Corps' ("JROTC") senior Marine Corps instructor at Amite High School.One year later, the Marine Corps recalled Bias to active duty but allowed him to retain his position at Amite High.The Marine Corps paid and employed Bias.Bias alleged, however, that he was "in effect" a contractor or agent for the School Board because he was supervised by Amite High Principal Michael Stant.

In September 2009, the Amite High cross-country team traveled to Destin, Florida.Carl Foster, a teacher who also served as a JROTC master sergeant under Bias, was the faculty adviser for the team and coordinated the trip.The trip was not sponsored by or connected to the federal program, but Bias "overheard a rumor" that Foster requested reimbursement for trip expenses from JROTC funds.Bias, after confirming the reimbursement request with the JROTC Regional Director, reported the alleged attempted misappropriation to the school's principal, Stant.Bias contended that, despite Stant's assurances that he would prevent any attempt to cover costs associated with the trip with JROTC money, Foster submitted reimbursement paperwork with Stant's approval.The Marine Corps denied the request.Stant later facilitated the use of JROTC "activity account" funds to pay the trip expenses, which prompted the Marine Corps to investigate.

In April 2010, Bias reported a second alleged misappropriation to the JROTC Regional Director, which the Regional Director discussed with the School Board.Stant approved another reimbursement to Foster for "concession-stand supplies for an athletic event unrelated to JROTC."Later in the same month, the Marine Corps issued orders transferring Bias to a New Orleans school district more than an hour away from Amite High.Bias said the transfer would be detrimental to his career and cause considerable strain on his family, so he retired from the Marine Corps instead of taking the assignment.

Between the time of Bias's first report of misappropriated funds and the Marine Corps's transfer order, Bias's relationship with Stant and Foster deteriorated.Bias alleged that Stant began criticizing Bias's performance to the Marine Corps and others, "shout[ed]" at and "badger[ed]" Bias during meetings, implied to others that he caused Bias's transfer, and spread rumors about Bias to other school employees.Bias said Foster, assisted by Stant, became so insubordinate that he hindered Bias from carrying out his JROTC duties.

In September 2012, Bias filed this lawsuit against the School Board and also against Stant and Foster in their official capacities (collectively, the "defendants").He asserted claims under the False Claims Act ("FCA"),31 U.S.C. §§ 3729 –3733, including a qui tam action and retaliation claim.Bias later amended his complaint to add claims under 42 U.S.C. § 1983 and state law against the same defendants.The defendants moved to dismiss for failure to state a claim or, alternatively, for summary judgment.The district court, relying on Rule 12(b)(6), dismissed Bias's FCA retaliation claim because he had not sufficiently alleged that the defendants caused his employer, the Marine Corps, to transfer him.The district court also dismissed Bias's Section 1983 and state law claims as time-barred.Bias's motion for reconsideration was denied.

After the district court entered a scheduling order related to Bias's sole remaining claim, an FCA qui tam action, Bias moved for leave to file a second amended complaint.The magistrate judge denied his motion, and the district court affirmed.

The parties settled the remaining FCA claim, and the district court entered final judgment on the previously-dismissed claims in the defendants' favor in January 2015.Bias timely appealed.

DISCUSSION

A district court's dismissal under Rule 12(b)(6) for failure to state a claim is reviewed de novo.Wilson v. Birnberg,667 F.3d 591, 595(5th Cir.2012).A complaint survives a motion to dismiss if its facts, accepted as true, "state a claim to relief that is plausible on its face."Bell Atl. Corp. v. Twombly,550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929(2007).Facial plausibility requires that the plaintiff"plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."Ashcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009).The court's inquiry should focus on the complaint as a whole, "regardless of how much of it is discussed in the motion to dismiss."Wilson,667 F.3d at 595."Dismissal is improper if the allegations support relief on any possible theory."Id.(quotation marks omitted)(quotingCinel v. Connick,15 F.3d 1338, 1341(5th Cir.1994) ).

"We review the district court's denial of a motion to amend for abuse of discretion."Ackerson v. Bean Dredging LLC,589 F.3d 196, 208(5th Cir.2009).

I.Section 1983 and State Law Claims

The defendants contend that Bias's Section 1983 and state law claims are time-barred.Bias argues the defendants waived this affirmative defense by failing to assert it in their answer.He therefore contends that the district court erred in "permitting [the defendants] to resurrect" the defense in their motion to dismiss.We examine how the defense was raised.

On February 15, 2013, Bias moved for leave to file an amended complaint and submitted a proposed amendment that asserted new claims under Section 1983 and state law.On February 26, the defendants filed an answer styled "Answer to Complaint, As Amended" responding to the allegations in Bias's proposed, but not yet authorized, amended complaint.The statute of limitations defense was not pled.On March 6, the magistrate judge granted Bias's motion for leave to amend; the amended complaint was docketed the same day.On July 3, 2013, the defendants filed a motion to dismiss¹ that, among other arguments, asserted for the first time that Bias's new claims in the amended complaint were time-barred.

Bias does not address the argument and implicitly concedes that his claims were time-barred.He does contend, though, that the statute of limitations defense has its own timing defect, namely, that the defense was not pled in the defendants' first response to his amended complaint.SeeFED.R.CIV.P. 8(c)(1).He argues that the February 26 answer, filed before leave to file the amended complaint was granted, fatally omitted pleading the defense.

The district court in its initial ruling of March 26, 2014, agreed that the affirmative defense was not timely pled.Yet, the court still held that the claims were time-barred.On reconsideration on May 15, the court acknowledged the need for elaboration of its reasoning.The court noted that a defense may be raised in a motion to dismiss if the motion is filed prior to the answer.SeeHilbun v. Goldberg,823 F.2d 881, 884(5th Cir.1987).The court concluded that the motion to dismiss was the first responsive pleading filed after leave to file the amended complaint was granted and the new complaint was actually filed.Thus, the district court held that the defendants preserved their defense and it dismissed the new claims as untimely.

It is certainly true that if a plaintiff amends his complaint, a defendant may file a new responsive pleading because the amended complaint typically causes the original pleading to be "of no legal effect."King v. Dogan,31 F.3d 344, 346(5th Cir.1994).The district court concluded that the pleading entitled "Answer to Complaint, As Amended," was not a responsive pleading to the amended complaint because the answer was prematurely filed.If we were to disagree with the court, the defendants' waiting until a second responsive pleading, i.e., the motion to dismiss, to raise the time bar would be a technical failure to comply with Rule 8(c).We may excuse such errors provided a defendant raises the defense "at a pragmatically sufficient time" and there is no prejudice to the plaintiff's ability to respond.Arismendez v. Nightingale Home Health Care, Inc.,493 F.3d 602, 610–11(5th Cir.2007)(quotation marks omitted)(quotingLucas v. United States,807 F.2d 414, 418(5th Cir.1986) ).In Arismendez,we held there was no prejudice when a defendant raised a defense late in the case because it did not involve an issue of disputed fact.Id. at 611.

Here, Bias was not prejudiced.His lawsuit was still in its infancy when the defendants raised the time-bar defense.He had notice and an opportunity to respond to the motion to dismiss.Finally, he does not challenge the conclusion that his Section 1983 and state law claims are time-barred.The district court did not err in dismissing the new claims.Seeid.

II.False Claims Act Retaliation Claim

Bias filed an FCA retaliation claim against the School Board and Stant and...