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United States ex rel. Johnson v. Raytheon Co.

United States District Court, N.D. Texas, Dallas Division

December 19, 2019

UNITED STATES OF AMERICA, ex rel. DANA JOHNSON, Plaintiff-Relator,
v.
RAYTHEON COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER JUDGE.

         Following an earlier decision dismissing this qui tam action by plaintiff-relator Dana Johnson (“Johnson”) with leave to replead, see United States ex rel. Johnson v. Raytheon Co. (Johnson I), 395 F.Supp.3d 791, 800 (N.D. Tex. 2019) (Fitzwater, J.), the court now addresses the motion of defendant Raytheon Company (“Raytheon”) to dismiss Johnson's second amended complaint, in which he attempts to plead a plausible retaliation claim under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733. For the following reasons, the court denies Raytheon's motion and also denies Raytheon's motion for protective order.[1]

         I

         Because the pertinent background facts and procedural history are set out in Johnson I, 395 F.Supp.3d at 793-94, the court will recount them only as necessary to understand this decision.

         Johnson was a systems engineer aircraft test conductor for Raytheon, a defense contractor with the Navy that provided special radars and upgraded equipment.[2] After Johnson allegedly investigated potential false claims for payment, Raytheon terminated his employment in October 2015. Johnson filed this action against Raytheon in April 2017, asserting qui tam claims on behalf of the United States of America (“United States”) and a retaliation claim on his own behalf. The United States declined to intervene in the case, and the court ordered that the complaint be unsealed and served upon Raytheon. After Johnson amended his complaint, the United States moved to dismiss Johnson's qui tam claim, and Raytheon moved to dismiss both Johnson's qui tam claim and his retaliation claim. The court granted the United States's motion, denied Raytheon's motion as to the qui tam claim as moot, granted Raytheon's motion as to the retaliation claim, and granted Johnson leave to file a second amended complaint to replead his retaliation claim. Johnson I, 395 F.Supp.3d at 799-800.

         In his second amended complaint, Johnson alleges that in four instances he engaged in protected activity by investigating Raytheon's false claims for payment. He asserts that Raytheon retaliated against him for these investigations by pretextually investigating him and ultimately terminating his employment. Raytheon moves to dismiss the second amended complaint, contending that Johnson has failed to state a plausible claim on which relief can be granted, that his claim is time-barred, and that the government's interest in protecting classified information and national security throughout the resolution of the case warrants dismissal.

         II

         The court turns first to Raytheon's contention that Johnson's retaliation claim must be dismissed for failure to state a claim on which relief can be granted.

         A

         Under Fed.R.Civ.P. 12(b)(6), the court evaluates the pleadings by “accept[ing] ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive Raytheon's motion to dismiss, Johnson must allege enough facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads 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 (2009). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief about the speculative level.”). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). Furthermore, under Rule 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although “the pleading standard Rule 8 announces does not require ‘detailed factual allegations, '” it demands more than “labels and conclusions.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). And “a formulaic recitation of the elements of a cause of action will not do.” Id. (quoting Twombly, 550 U.S. at 555).

         B

         The FCA's antiretaliation provision states:

[a]ny employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.

31 U.S.C. § 3730(h)(1). To establish a claim under § 3730(h), Johnson must prove: “(1) that [he] was engaged in protected activity with respect to the [FCA]; (2) that [his] employer knew [he] was engaged in protected activity; and (3) that [he] was discharged because [he] was engaged in protected activity.” Thomas v. ITT Educ. Servs., Inc., 517 Fed.Appx. 259, 262 (5th Cir. 2013) (per curiam) (citing Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994)). Raytheon maintains that Johnson has failed to allege sufficient facts to plead a plausible retaliation claim.

         III

         A

         Johnson alleges that, in four separate instances, he engaged in protected activity of which his supervisors were aware. In the first-which is the only one the court need consider in order to deny Raytheon's motion, see infra § III(C)[3]-Johnson alleges that the Navy contracted with Raytheon to provide software for a radar mode in military aircraft. He avers that he told Brian Cook (“Cook”), his software manager, that a line of software code rendered the radar mode inoperable. According to Johnson, he corrected the code. But when the radars were not properly calibrated to function with the corrected code, “Johnson informed Cook that he could not certify completion under the contract because it would be a false statement to the Navy for payment under the ...


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