                                      UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-1235


GREGORY GREER,

             Plaintiff - Appellant,

      v.

GENERAL DYNAMICS INFORMATION TECHNOLOGY, INC., a Delaware
Corporation doing business in the State of Maryland,

             Defendant - Appellee.


Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paul W. Grimm, District Judge. (8:18-cv-01193-PWG)


Submitted: March 19, 2020                                         Decided: April 13, 2020


Before WILKINSON, QUATTLEBAUM, and RUSHING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ralph S. Greer, LAW OFFICE OF RALPH GREER, Rockville, Maryland, for Appellant.
Christopher E. Humber, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.,
Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       From 2011 to 2015, Gregory Greer was employed by General Dynamics

Information Technology Incorporated as a technical editor. Greer worked on projects

arising from General Dynamics’ contracts with the federal government, often collaborating

with employees of the Department of Defense. In early 2015, after a personnel shake-up

on the project to which he was assigned at Walter Reed National Military Medical Center,

Greer claims he was asked to work under the direct supervision of a government employee.

Believing such an arrangement to be illegal, Greer brought it to the attention of his

superiors at General Dynamics. Ultimately given the choice of accepting the arrangement

and continuing to work on the project at Walter Reed or resigning his position, Greer chose

to resign. He subsequently filed this lawsuit, contending that his resignation had been

coerced by circumstance and therefore constituted an unlawful constructive discharge. He

also alleged that General Dynamics had concealed from him his “true security clearance

level.” General Dynamics filed a motion to dismiss for failure to state a claim, which the

district court granted. We affirm.

                                               I.

       A motion to dismiss for failure to state a claim “tests the sufficiency of a complaint.”

King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). In order to survive such a motion,

the plaintiff must “‘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)).

A complaint that lacks sufficient factual allegations or fails to identify a cognizable legal

theory cannot survive application of this standard. On appeal, “we review de novo the

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grant of a motion to dismiss for failure to state a claim.” Garnett v. Remedi Seniorcare of

Virginia, LLC, 892 F.3d 140, 142 (4th Cir. 2018).

                                             A.

       Greer’s primary contention is that General Dynamics constructively discharged him

by forcing him to choose between the new staffing arrangement (thereby becoming

complicit in what he believed to be illegal behavior) and resigning. That discharge, he

claims, violated the “anti-reprisal” provisions of 10 U.S.C. § 2409, the Defense Contractor

Whistleblower Protection Act (DCWPA). “The DCWPA prohibits retaliation against

employees of defense contractors who report certain types of misconduct.” United States

ex rel. Cody v. ManTech Int’l, Corp., 746 Fed. App. 166, 178 (4th Cir. 2018) (argued but

unpublished). A contractor who discloses to his employer (or certain statutorily identified

government entities or officials) information he “reasonably believes is evidence” of “a

violation of law, rule, or regulation related to a Department contract . . . or grant” cannot

be “discharged, demoted, or otherwise discriminated against” for having made the

disclosure. 10 U.S.C. § 2409(a)(1)(A). Greer contends that the Federal Acquisition

Regulations (FAR), 48 C.F.R. §§ 1 et seq., “prohibit[] a government employee from

directly supervising the employees of a contractor working on a nonpersonal services

contract.” Opening Br. 11. Thus, Greer argues, when he informed General Dynamics of

the new supervisory arrangement at Walter Reed, he made a disclosure regarding a

violation of a regulation related to a Department contract—that is, a disclosure covered by

the DCWPA—and General Dynamics engaged in an illegal reprisal when it forced him to

choose between participating in what he considered illegal conduct and resigning.

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       In order to survive a motion to dismiss, Greer’s DCWPA claim must allege facts

sufficient to plausibly show that he engaged in a protected disclosure, that his employer

was on notice of that disclosure, and that, as a result of the disclosure, he was subjected to

an adverse employment action, such as a constructive discharge. See United States ex rel.

Cody v. Mantech Int’l Corp., 207 F. Supp. 3d 610, 621 (E.D. Va. 2016) (“[I]n order to

establish a prima facie case of unlawful retaliation [under the DCWPA], a whistleblower

plaintiff must establish that: (1) he engaged in protected activity; (2) his employer knew or

was reasonably on notice that he was engaged in protected activity; and (3) his employer

took adverse action against him as a result of his protected activity.”), aff’d 746 Fed. App.

166 (4th Cir. 2018).

       The district court was unable to “discern from Greer’s pleadings” how the new

supervisory arrangement—in which Greer would work under the direct supervision of a

federal government employee—“violated [the] FAR.” Greer v. Gen. Dynamics Info. Tech.,

Inc., No. 8:18-cv-01193-PWG, 2019 WL 764018, at *4 (D. Md. Feb. 21, 2019). Nor has

Greer brought to our attention on appeal any authority supporting his contention that the

new arrangement violated the law. He points to FAR 7.503, which suggests that his

argument is premised on the notion that the arrangement constitutes a contract being “used

for the performance of [an] inherently governmental function[],” which is prohibited. 48

C.F.R. § 7.503(a). But the specific provision on which he relies—regarding “[c]ontractors

participating in any situation where it might be assumed that they are agency employees or

representatives”—is included in a list of examples “generally not considered to be [an]



                                              4
inherently governmental function[].” 48 C.F.R. § 7.503(d)(13) (emphasis added). Thus,

the only authority Greer cites appears to undercut, not bolster, his claim.

       It is not clear, then, that Greer made a protected disclosure that would trigger the

anti-reprisal protection provided by the DCWPA. And even assuming he made a protected

disclosure, we agree with the district court that an employee’s mere discomfort with “a

supervisory situation contrary to his employer’s government contract” “simply do[es] not

rise to the level of [an] intolerable” condition necessary to transform a voluntary

resignation into a constructive discharge. Greer, 2019 WL 764018, at *4; see Williams v.

Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004) (“[D]ifficult or unpleasant working

conditions are not so intolerable as to compel a reasonable person to resign.” (internal

quotation marks omitted)). Either way, it is evident that Greer has not advanced a plausible

claim under the DCWPA, so dismissal of the first theory of liability set forth in his

complaint was appropriate.

                                             B.

       Greer’s second claim concerns General Dynamics’ purported concealment of his

level of security clearance. As outlined in the operative complaint, Greer accuses General

Dynamics of “erroneously inform[ing]” him that “the security clearance [General

Dynamics] had sponsored [him] for was a Public Trust clearance when in fact the clearance

was a Secret clearance.” J.A. 88. This “intentional[] and malicious[] conceal[ment]” of

his “true security clearance level,” Greer contends, was a “violation of Executive Order

12829.” J.A. 90.



                                              5
       “As a general rule, ‘there is no private right of action to enforce obligations imposed

on executive branch officials by executive orders.’” Chen Zhou Chai v. Carroll, 48 F.3d

1331, 1338 (4th Cir. 1995) (quoting Facchiano Constr. Co. v. U.S. Dep’t of Labor, 987

F.2d 206, 210 (3d Cir. 1993)). Thus, an executive order is only “privately enforceable” if

it “is issued pursuant to a statutory mandate or delegation of congressional authority.” Id.

(citing, inter alia, U.S. Dep’t of Health & Human Servs. v. Fed. Labor Relations Auth., 844

F.2d 1087, 1095–1096 (4th Cir. 1987) (en banc) (“The executive branch . . . simply has no

power to make the law; that power rests exclusively with Congress.”)).

       Executive Order 12829 was issued by President Bush in January 1993. The order

“establishes a National Industrial Security Program to safeguard Federal Government

classified information that is released to contractors, licensees, and grantees of the United

States Government.” Exec. Order No. 12829, 58 Fed. Reg. 3479 (Jan. 6, 1993). The order

contains various directives to executive branch officials designed to effectuate this

presidential policy objective. Nothing in the order, however, indicates that it was issued

pursuant to a statutory mandate or congressional delegation or otherwise suggests that it

was intended to create a privately enforceable right of action.

       On appeal, Greer has identified no authority suggesting otherwise. Instead he

contends, for the first time, that his complaint raises a claim for “common law deceit.”

Opening Br. 4, 14. Although we retain the discretion to address arguments not previously

raised in the first instance before a lower tribunal, “[i]n this circuit, we exercise that

discretion sparingly.” In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014). “Absent

exceptional circumstances . . . we do not consider issues raised for the first time on appeal.”

                                              6
Volvo Const. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 603 (4th Cir. 2004);

see also Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (“As this court has

repeatedly held, issues raised for the first time on appeal generally will not be considered.

Exceptions to this general rule are made only in very limited circumstances . . . .” (citations

omitted)). The circumstances of this case fall well short of exceptional, and declining to

address Greer’s newly raised argument will not “result in a miscarriage of justice.” Nat’l

Wildlife Fed’n v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988). We therefore will not address

the argument raised for the first time on appeal. Left without a cognizable cause of action,

Greer’s second theory of liability also fails to state a claim.

                                          *    *   *

       The district court determined that Greer’s complaint could not survive the testing of

a motion to dismiss.       Nothing on appeal indicates this conclusion was in error.

Accordingly, the decision of the district court is affirmed. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                                                 AFFIRMED




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