       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Yuhasz v. Brush Wellman, Inc.               No. 02-3087
    ELECTRONIC CITATION: 2003 FED App. 0297P (6th Cir.)
                File Name: 03a0297p.06                    MURRAY & MURRAY, Sandusky, Ohio, for Appellant.
                                                          Geoffrey J. Ritts, Dennis M. Kelly, JONES DAY, Cleveland,
                                                          Ohio, for Appellee.
UNITED STATES COURT OF APPEALS
                                                                              _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                 OPINION
                                                                              _________________
 RICHARD M. YUHASZ ,             X
                                  -                          JULIA SMITH GIBBONS, Circuit Judge. Relator Richard
          Plaintiff-Appellant,                            M. Yuhasz brought a qui tam action against defendant-
                                  -
                                  -  No. 02-3087          appellant Brush Wellman, Inc. (Brush), claiming that Brush
           v.                     -                       violated the False Claims Act (FCA), 31 U.S.C. § 3729 et
                                   >                      seq., and wrongfully terminated him in retaliation for his
                                  ,                       allegations of wrongdoing. After the United States declined
 BRUSH WELLMAN , INC.,            -
         Defendant-Appellee. -                            to intervene, Brush moved to dismiss the case pursuant to
                                                          Rules 9(b) and 12(b)(6) of the Federal Rules of Civil
                                  -                       Procedure, and the district court granted the motion. For the
                                  -                       reasons set forth below, we affirm the judgment of the district
                                 N                        court.
      Appeal from the United States District Court
      for the Northern District of Ohio at Toledo.                                      I.
     No. 00-07237—James G. Carr, District Judge.
                                                            Relator Yuhasz was employed as a laboratory manager for
                Argued: August 1, 2003                    Brush at Brush’s bronze alloy manufacturing facility in
                                                          Lorain, Ohio, between September 1996 and January 2000. At
          Decided and Filed: August 20, 2003              this facility, Brush produces “‘super’ alloys, spinodal alloys,
                                                          and other specialty alloys” that are supplied to the United
 Before: KENNEDY, GILMAN and GIBBONS, Circuit             States both directly and through intermediaries, including
                   Judges.                                distributors, for use in aerospace and military aviation. Some
                                                          of the alloys, supplied under requirements of and pursuant to
                  _________________                       contracts with the United States, are subjected to further
                                                          processing and manufacturing before being delivered to the
                       COUNSEL                            United States.

ARGUED: Dennis E. Murray, Jr., MURRAY & MURRAY,             Yuhasz was hired to design and establish, and then operate
Sandusky, Ohio, for Appellant. Geoffrey J. Ritts, JONES   as manager, a testing laboratory for its Lorain facility. The
DAY, Cleveland, Ohio, for Appellee. ON BRIEF: Dennis      laboratory was established to conduct chemical, mechanical,
E. Murray, Jr., Charles M. Murray, Barbara Quinn Smith,   and physical testing of Brush’s alloys. At the laboratory,

                            1
No. 02-3087              Yuhasz v. Brush Wellman, Inc.         3    4      Yuhasz v. Brush Wellman, Inc.               No. 02-3087

Yuhasz established the specifications for the laboratory            no set of facts in support of its claims that would entitle it to
equipment and both conducted and supervised testing                 relief[.]’” Id. (citing Kostrzewa v. City of Troy, 247 F.3d 633,
procedures.                                                         638 (6th Cir. 2001)); see also Conley v. Gibson, 355 U.S. 41,
                                                                    45-46 (1957).
  In order to claim or receive payments under government
contracts, Brush must submit “certifications of compliance                                         III.
with technical specifications stating, representing, and
warranting that the alloys were in strict conformity with               According to the FCA:
specifications and that [Brush] was, thereby, legally entitled
to claim and receive payment.” These certifications include             Any person who (1) knowingly presents, or causes to be
certification pursuant to Aerospace Materials Specifications,           presented, to an officer or employee of the United States
certification as to compliance with “QQC” specifications (a             Government or a member of the Armed Forces of the
government standard), and certification pursuant to the                 United States a false or fraudulent claim for payment or
specifications of the American Society for Testing and                  approval; (2) knowingly makes, uses, or causes to be
Materials.                                                              made or used, a false record or statement to get a false or
                                                                        fraudulent claim paid or approved by the Government . . .
   On April 14, 2000, Yuhasz filed this qui tam action,                 is liable to the United States Government for a civil
alleging that Brush violated the FCA by making false                    penalty of not less than $5,000 and not more than
certifications by itself or through intermediaries and that             $10,000, plus 3 times the amount of damages which the
Brush wrongfully terminated him in retaliation for his                  Government sustains because of the act of that person.
allegations of improper conduct.             After investigating
Yuhasz’s allegations, the United States declined to intervene       31 U.S.C. § 3729. The purpose of the FCA is “to encourage
on July 11, 2001. On September 7, 2001, Brush moved to              any individual knowing of Government fraud to bring that
dismiss the case for failure to state a claim pursuant to Federal   information forward.” United States ex rel. McKenzie v.
Rule of Civil Procedure 12(b)(6). The district court granted        BellSouth Telecomm., Inc., 123 F.3d 935, 938 (6th Cir. 1997)
Brush’s motion to dismiss on December 14, 2001. On                  (McKenzie I) (quoting S. Rep. No. 99-345 (1986), reprinted
January 8, 2002, Yuhasz filed his notice of appeal.                 in 1986 U.S.C.C.A.N. 5266); see also United States ex rel.
                                                                    Dick v. Long Island Lighting Co., 912 F.2d 13, 18 (2d Cir.
                               II.                                  1990) (“‘[T]he purpose of the qui tam provisions of the False
                                                                    Claims Act is to encourage private individuals who are aware
   A district court’s grant of a motion to dismiss pursuant to      of fraud being perpetrated against the Government to bring
Rule 12(b)(6) of the Federal Rules of Civil Procedure is            such information forward.’”) (quoting H.R. Rep. No. 99-660,
reviewed de novo. Goad v. Mitchell, 297 F.3d 497, 500 (6th          at 22 (1986)). If, as in this case, the government does not
Cir. 2002). Pursuant to Rule 12(b)(6), an action may be             assert its statutory right to take over the case, the relator can
dismissed if the complaint fails to state a claim upon which        recover between twenty-five and thirty percent of any monies
relief can be granted. When considering a motion to dismiss,        recovered from a settlement or judgment, in addition to
all well-pleaded allegations in the complaint are treated as        reasonable expenses and attorneys’ fees and costs. 31 U.S.C.
true, and the dismissal of the complaint is deemed proper           § 3730(d)(2).
“only ‘if it appears beyond doubt that the plaintiff can prove
No. 02-3087              Yuhasz v. Brush Wellman, Inc.            5   6     Yuhasz v. Brush Wellman, Inc.                No. 02-3087

   Yuhasz claims that Brush, by itself or through                     Morrison-Knudsen Co., 68 F.3d 1475, 1476 (2d Cir. 1995);
intermediaries, submitted fraudulent certifications and claims        United States ex rel. Cooper v. Blue Cross & Blue Shield of
for payment to the United States and received payment from            Florida, Inc., 19 F.3d 562, 568 (11th Cir. 1994). The
the United States for alloys not meeting government                   requirement that fraud be plead with particularity need not be
specifications, in violation of the FCA. Specifically, Yuhasz         relaxed in FCA cases in order to protect the public because
alleges that Brush                                                    the government’s ability to intervene on the basis of
                                                                      information brought to its attention vindicates the public
  had actual knowledge and/or acted in deliberate disregard           interest. The Sixth Circuit interprets Rule 9(b) as requiring
  or ignorance of the truth or falsity of: (i) alloy product          plaintiffs to “allege the time, place, and content of the alleged
  that was off-specification due to defects such as cracks;           misrepresentation on which he or she relied; the fraudulent
  (ii) false and fraudulent certifications of compliance with         scheme; the fraudulent intent of the defendants; and the injury
  technical specifications; (iii) improper traceability and           resulting from the fraud.” Coffey v. Foamex L.P., 2 F.3d 157,
  identifibility controls with respect to lots of alloy bar           161-162 (6th Cir. 1993) (quotation omitted).
  stock; (iv) beryllium contamination in alloys, rendering
  such alloys off-specification; (v) [Brush’s] failure to                The district court correctly found that Yuhasz had failed to
  perform requisite tests on the alloys, such as the                  allege an FCA claim with sufficient particularity as required
  mercurious nitrate testing; and, (vi) the fact that requisite       by Rule 9(b). Yuhasz’s complaint is short on specifics. For
  internal controls were not in place, rendering alloy                example, the complaint notes only that “certain testing that
  products untraceable and unidentifiable.                            was outsourced according to a particular EAB number did not
                                                                      match-up to any heat number for alloy bar stock” and that
The district court granted Brush’s motion to dismiss,                 “certain alloys of [Brush] may have been mismarked.”
concluding that since the complaint “did not state a specific         (emphasis added). However, the complaint contains no
false claim submitted to the government,” Yuhasz “did not             particularized allegations of wrongdoing. The failure to
allege a FCA claim with sufficient particularity as required          identify specific parties, contracts, or fraudulent acts requires
under Rule 9(b).” Yuhasz v. Brush Wellman, Inc., 181                  dismissal. See United States ex rel. Clausen v. Lab. Corp. of
F.Supp.2d 785, 794 (N.D.Ohio 2001).                                   Am., Inc., 290 F.3d 1301, 1312 (11th Cir. 2002) (“failure to
                                                                      allege with any specificity if – or when – any actual improper
  Pursuant to Federal Rule of Civil Procedure 9(b), in any            claims were submitted to the Government is indeed fatal”);
complaint averring fraud or mistake, “the circumstances               U.S. ex rel. Walsh v. Eastman Kodak Co., 98 F.Supp.2d 141,
constituting fraud or mistake shall be stated with                    147 (D. Mass. 2000) (“Relator’s First Amended Complaint,
particularity.” The heightened pleading standard set forth in         in essence, sets out a methodology by which the vendors
Rule 9(b) applies to complaints brought under the FCA.                might have produced false invoices, which in turn could have
“[C]omplaints brought under the FCA must fulfill the                  led to false claims. Without citing a single false claim arising
requirements of Rule 9(b) – defendants accused of defrauding          from an allegedly false invoice, Relator has not met even a
the federal government have the same protections as                   bare-bones Rule 9(b) test.”); United States ex rel. Butler v.
defendants sued for fraud in other contexts.” Bly-Magee v.            Magellan Health Serv., Inc., 101 F.Supp.2d 1365, 1369 (M.D.
California, 236 F.3d 1014, 1018 (9th Cir. 2001); see also             Fla. 2000) (“Plaintiff does plead a fraudulent scheme of
United States ex rel. Thompson v. Columbia/HCA Healthcare             conduct which may well be prohibited by law. However,
Corp., 125 F.3d 899, 903 (5th Cir. 1997); Gold v.                     Plaintiff pleads no specific occurrences of a false claim. . . .
No. 02-3087              Yuhasz v. Brush Wellman, Inc.        7    8    Yuhasz v. Brush Wellman, Inc.                No. 02-3087

[T]he absence of specific allegations of fraudulent false             Yuhasz argues that the “facts of the instant case are
claims is determinative.”).                                        strikingly similar to those before the court in Roby.” This is
                                                                   not correct. In the instant case, Yuhasz asserts in its brief
   Yuhasz concedes that he “is unable to identify a specific       only that “virtually every certification” was fraudulent and
claim submitted directly to the United States by a prime           that “virtually every alloy certified by [Brush] during the time
contractor who incorporated [Brush’s] metal alloys into the        specified in the Complaint was non-compliant.” (emphasis
finished product sold to the government,” but argues that he       added). The language of the complaint itself is even less
“is entitled to a relaxed standard of pleading due to the length   specific, stating only that “certain testing that was outsourced
and complexity of [Brush’s] fraud.” Yuhasz notes that the          according to a particular EAB number did not match-up to
complaint “alleges fraudulent acts occurring over a period         any heat number for alloy bar stock,” that “certain alloys may
exceeding two years, and affecting virtually every alloy           have been mismarked,” that “Yuhasz, upon accessing the
manufactured by [Brush] during that period.” As the district       original certifications, often discovered that the requisite
court observed, however, a plaintiff should not be able to         mercurious nitrate testing had not been performed,” that
avoid the specificity requirements of Rule 9(b) by “relying        “approximately 5% of the product, and particularly smaller
upon the complexity of the edifice which he created.” United       diameter product, failed to meet the requisite tensile
States ex rel. Clausen v. Lab. Corp. of Am., 198 F.R.D. 560,       strength,” that “drums were often not labeled,” and that “many
563 (N.D. Ga. 2000), aff’d, 290 F.3d 1301 (11th Cir. 2002).        of the certifications of compliance indicated the wrong alloy.”
Moreover, none of the cases upon which Yuhasz principally          (emphasis added). Furthermore, in Roby the plaintiff
relies, United States ex rel. Roby v. Boeing Co., 184 F.R.D.       identified the specific contract at issue (the CH47(D)
107 (S.D. Ohio 1998), United States v. United Technologies,        helicopter contract) and stated when, where, and how false
No. C-3-99-093, 2000 WL 988238 (S.D. Ohio March 20,                statements were made to the government (on Forms DD-250
2000), and United States v. Pogue, 977 F. Supp. 1329 (M.D.         presented to the government). 184 F.R.D. at 110. In the
Tenn. 1997), supports his position.                                instant case, Yuhasz provides no such information. Roby thus
                                                                   is easily distinguishable.
  In Roby, the plaintiff alleged that defendant The Boeing
Corporation (Boeing) and its supplier violated the FCA “by           In United Technologies, the government alleged that Pratt
manufacturing and selling defective transmission gears to the      and Whitney (Pratt), a division of defendant United
United States via Boeing’s CH-47(D) Chinook Army                   Technologies Corporation (UTC), fraudulently submitted a
helicopters.” 184 F.R.D. at 108. Boeing filed a motion to          contract bid that “knowingly overstated” the prices to be
dismiss, arguing that “because of the breadth of the               charged by Pratt’s subcontractors. 2000 WL 988238 at *1.
accusation against it, [defendant] can only speculate as to        The government further alleged that each bill, invoice, and
which of the 300 . . . gears in service today are alleged to be    price later presented by Pratt to the government reflected
nonconforming.” Id. at 110. The district court denied              these inflations. Id. Pratt filed a motion to dismiss, arguing
Boeing’s motion and noted that the complaint alleged that          that the government failed to specify which of its invoices
Boeing “acted with the knowledge of falsity or reckless            were false claims. Id. at *5. The district court denied Pratt’s
disregard for the truth with respect to every CH-47(D)             motion, noting that the complaint alleged that “all of the
helicopter it delivered to the United States.” Id. (emphasis       invoices, bills, and prices submitted by Pratt to the Air Force
added).                                                            were based on that initial ‘inflation,’” and as a result “UTC
                                                                   should be able to identify the invoices, bills, and prices at
No. 02-3087              Yuhasz v. Brush Wellman, Inc.        9    10   Yuhasz v. Brush Wellman, Inc.                No. 02-3087

issue.” Id. at *8 (emphasis in original). In the instant case,       In his briefs to this court, Yuhasz also argues that he should
however, not only has Yuhasz not identified any invoices           not be required to plead the specifics of information “within
submitted by Brush to the government based on the alleged          [Brush’s] control.” By failing to state specifically that
fraud, the indefinite nature of his allegations does not provide   Brush’s control is exclusive, the position taken by Yuhasz on
Brush with any way of identifying those invoices. Moreover,        appeal differs from that taken in the complaint, which stated:
in United Technologies the plaintiff identified the document
presented to the government that contained the false                 With respect to the alloy products produced or processed
information (Pratt’s “best and final offer”) and identified both     by [Brush] for the requirements of the government
the parties and the specific contract that was entered into          pursuant to government contracts, [Brush] is in a position
based upon that false information (a contract between the            of superior knowledge, and possessed exclusive control
government and United Technologies to provide the Air                over the means of access to information, as to the
Force with high-performance jet engines). Id. at *1. That            specific nature of such requirements or contracts.
level of specificity is completely absent here.
                                                                   (emphasis added). In its response to Brush’s motion to
   Finally, in Pogue, the plaintiff alleged that defendants West   dismiss, Yuhasz also claimed that “an exception exists when
Paces Medical Center (West Paces), Diabetes Treatment              certain information is within the exclusive possession of the
Centers of America (DTCA), and a group of Atlanta                  defendant.” (emphasis added). The district court rejected this
physicians engaged in a scheme to defraud the government of        argument, explaining that Yuhasz “is not entitled to a relaxed
Medicare and Medicaid funds. 977 F. Supp. at 1331. The             standard because the information he seeks is not exclusively
defendants filed a motion to dismiss, arguing that the             in the possession of Brush.” Yuhasz, 181 F.Supp.2d at 793.
complaint failed “to specify ‘when, where, or how Plaintiff
contends that West Paces learned of this alleged fraud, or the       Although Yuhasz now argues that he should not be required
identity of, or position held by, the person or persons who had    to plead information over which Brush has “constructive
such knowledge, and whose knowledge should be attributed           control,” nowhere in his briefs to this court does he state that
to West Paces.’” Id. at 1332. The district court denied            Brush’s control is exclusive. Thus, Yuhasz apparently has
defendants’ motion and stated that “[a]lthough no specific         now conceded that third parties possess information
dates or West Paces employees are identified, the complaint        concerning the specific contracts at issue and the claims
alleges that the hospital participated in a systematic,            submitted for payment. As the district court correctly
fraudulent scheme, spanning the course of twelve years; thus,      determined, “[c]ourts have held that [Rule 9(b)] may be
reference to a time frame and to ‘West Paces’ generally is         relaxed where information is only within the opposing party’s
sufficient.” Id. at 1333. Yuhasz argues that in this case, as in   knowledge.” Michaels Bldg. Co. v. Ameritrust Co., N.A., 848
Pogue, the court should not require “the specific dates on         F.2d 674, 680 (6th Cir. 1988) (emphasis added).
which the invoices were submitted.” However, Yuhasz fails          Furthermore, although Yuhasz argues that he “cannot obtain
to recognize that in Pogue the lack of specificity with regard     the information demanded by the trial court absent
to the invoices was balanced against the fact that the plaintiff   discovery,” there is no general right to discovery upon filing
identified the specific parties and contracts at issue (between    of the complaint. The very purpose of Fed. R. Civ. P.
West Paces and DTCA and between DTCA and the Atlanta               12(b)(6) “is to enable defendants to challenge the legal
physicians). Here, the only party that Yuhasz identifies is        sufficiency of complaints without subjecting themselves to
Brush.                                                             discovery.” Rutman Wine Co. v. E. & J. Gallo Winery, 829
No. 02-3087              Yuhasz v. Brush Wellman, Inc.        11   12   Yuhasz v. Brush Wellman, Inc.               No. 02-3087

F.2d 729, 738 (9th Cir. 1987). For all of these reasons,           1996). Yuhasz claims that he “specifically informed and
dismissal of Yuhasz’s FCA claim is appropriate.                    advised [Brush] of the unlawful and illegal nature of its
                                                                   certifications of compliance” and “specifically raised with
                              IV.                                  [Brush], through Feldhouse, that other companies had
                                                                   incurred liabilities under the False Claims Act for submission
  The FCA protects employees who pursue, investigate, or           of false and fraudulent claims.” However, these allegations
otherwise contribute to an action exposing fraud against the       are insufficient to show that Brush knew Yuhasz was
government. Section 3730(h) of the FCA states:                     pursuing an FCA case when it discharged him.
  Any employee who is discharged, demoted, suspended,                 In Ramseyer, the Tenth Circuit dismissed a retaliatory
  threatened, harassed, or in any other manner                     discharge action brought pursuant to the FCA, noting that
  discriminated against in the terms or conditions of              “the monitoring and reporting activities described in
  employment by his or her employer because of lawful              plaintiff’s complaint were exactly those activities plaintiff
  acts done by the employee on behalf of the employee or           was required to undertake in fulfillment of her job duties.” 90
  others in furtherance of an action under this section,           F.3d at 1523. The court added that the plaintiff “took no steps
  including investigation for, initiation of, testimony for, or    to put defendants on notice . . . that she was furthering or
  assistance in an action filed or to be filed under this          intending to further an FCA action rather than merely
  section, shall be entitled to all relief necessary to make       warning the defendants of the consequences of their conduct.”
  the employee whole.                                              Id. (emphasis added). Similarly, the concerns about potential
                                                                   liability under the FCA raised by Yuhasz in this case were
31 U.S.C. § 3730(h). In order to establish a claim for             entirely within the scope of his duties, and thus did not put
retaliatory discharge, a plaintiff must show: (1) he engaged in    Brush on notice that he was engaging in protected activity.
a protected activity; (2) his employer knew that he engaged in     The complaint describes Yuhasz’s duties as follows:
the protected activity; and (3) his employer discharged or
otherwise discriminated against the employee as a result of          [Brush] hired Yuhasz to design and establish, and then
the protected activity. McKenzie v. BellSouth Telecomm.,             operate as a manager, a testing laboratory for its Lorain
Inc., 219 F.3d 508, 513-514 (6th Cir. 2000) (McKenzie II).           facility. . . . The laboratory was established to conduct
The district court properly dismissed Yuhasz’s retaliatory           certain chemical, mechanical and physical testing.
discharge claim, finding that Yuhasz had failed to allege that       Yuhasz also established the specifications for the
Brush had the required notice of Yuhasz’s participation in           laboratory equipment.
protected activity.
                                                                                                ***
  “When seeking legal redress for retaliatory discharge under
the FCA, plaintiff has the burden of pleading facts which            Yuhasz conducted and or supervised testing procedures
would demonstrate that defendants had been put on notice             for [Brush’s] Lorain facility.
that plaintiff was either taking action in furtherance of a
private qui tam action or assisting in an FCA action brought                                    ***
by the government.” United States ex. rel. Ramseyer v.
Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir.
No. 02-3087                  Yuhasz v. Brush Wellman, Inc.             13     14   Yuhasz v. Brush Wellman, Inc.               No. 02-3087

  On or about August, 1998, Yuhasz was appointed as the                       in order to overcome the presumption that they are merely
  [Brush] employee charged with submitting the required                       acting in accordance with their employment obligations.” Id.
  certifications of compliance with the technical
  specifications of the alloys.                                                                            V.

By informing Brush that its certifications were illegal and that                Yuhasz argues that the district court erred in dismissing his
other companies had incurred liability under the FCA for false                claim for wrongful discharge in violation of Ohio common
claims, Yuhasz was simply performing his ordinary duties as                   law and public policy. In his complaint, Yuhasz asserts:
a supervisor of laboratory testing. Brush cannot be charged
with notice on this basis. See Robertson v. Bell Helicopter                     It is the public policy of Ohio that an employee shall not
Textron, Inc., 32 F.3d 948, 952 (5th Cir. 1994) (employer did                   be discharged, or otherwise subjected to a hostile work
not have notice where plaintiff’s actions “were consistent                      environment, for refusing his employer’s directives to
with the performance of his duty”).1 The mere fact that                         violate applicable laws and regulations. That public
Yuhasz told Brush that its certifications of compliance were                    policy is manifested in the FCA, 31 U.S.C. § 3730(h), as
“unlawful and illegal” does not establish notice. As the Sixth                  well as in [Federal Acquisition Regulations] by reason of
Circuit noted in McKenzie II, “a plaintiff still must show that                 the strict certifications of compliance that are required.
his employer was aware of his protected activity. Merely
grumbling to the employer about . . . regulatory violations                   The district court dismissed this claim, concluding that
does not satisfy the requirement.” 219 F.3d at 518 (quoting                   because the complaint failed to show a violation of the FCA,
United States ex rel. Yesudian v. Howard Univ., 153 F.3d                      the complaint also failed to state a claim that Brush
731, 743 (D.C. Cir. 1998)).                                                   wrongfully discharged him in violation of Ohio public policy.
                                                                              This decision was correct.
   Yuhasz argues that this interpretation of the notice
requirement “grants immunity to an employer who terminates                      In order to prevail on a wrongful discharge claim in
the employee most likely to have information relevant to a qui                violation of public policy under Ohio law, a plaintiff must
tam action.” This is not the case. As the court noted in                      show:
Ramseyer, employees charged with investigating potential
fraud are not automatically precluded from bringing a Section                   (1) a ‘clear public policy existed and was manifested in
3730(h) action. 90 F.3d at 1523 n. 7. In light of their                         a state or federal constitution, statute or administrative
ordinary responsibilities, however, such persons “must make                     regulation, or in the common law;’ (2) that ‘dismissing
clear their intentions of bringing or assisting in an FCA action                employees under circumstances like those involved in the
                                                                                plaintiff’s dismissal would jeopardize the public policy;’
                                                                                (3) ‘[t]he plaintiff’s dismissal was motivated by conduct
    1
                                                                                related to the public policy;’ and (4) ‘[t]he employer
       Yuhasz’s reliance on McKenzie I is misplaced. In M cKenzie I,            lacked overriding legitimate business justification for the
although the court found that by “show[ing] her supervisors a newspaper         dismissal.’
article about a similar fraud being perp etrated” against another com pany,
plaintiff had placed the employer on notice, the court specifically noted
that the plaintiff’s “activities were not within the scope of her             Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 311
emp loyment.” 123 F.3d at 945. In the instant case, Yuhasz’s activities       (6th Cir. 2000) (quoting Painter v. Graley, 70 Ohio St.3d 377,
fit squarely within the scope of his em ploym ent.
No. 02-3087              Yuhasz v. Brush Wellman, Inc.       15    16    Yuhasz v. Brush Wellman, Inc.                No. 02-3087

384 n. 8 (Ohio 1994)). In Parry, the Sixth Circuit held that a       The district court declined to grant Yuhasz leave to amend,
plaintiff could not maintain a wrongful discharge claim in         but it failed to specify the reasons for its decision. Pursuant
violation of Ohio public policy when the public policy was         to Fed. R. Civ. P. 15(a), a court should freely give leave to
derived from an Ohio statute “substantially similar to the         amend a complaint “when justice so requires.” However,
ADA” and the ADA claim had been dismissed. Id. at 312.             leave to amend may be denied where the amendment would
The court explained that “[p]laintiff, having failed to show a     be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). When
viable claim under the ADA, is necessarily precluded from          a district court denies a plaintiff’s motion for leave to amend
claiming that his termination violated public policy.” Id.         his complaint, this court generally reviews the decision for an
Similarly, since Yuhasz has failed either to state an FCA          abuse of discretion. Begala v. PNC Bank, Ohio, Nat’l Ass’n,
claim or to identify the specific provision of the Federal         214 F.3d 776, 783 (6th Cir. 2000). When the district court
Acquisition Regulations manifesting the alleged “clear public      bases its decision to deny leave to amend on a legal
policy,” Ohio public policy cannot serve as a basis for his        conclusion that amendment would be futile, however, this
wrongful discharge action.                                         court reviews the decision de novo. Inge v. Rock Fin. Corp.,
                                                                   281 F.3d 613, 625 (6th Cir. 2002). Since the district court did
   Yuhasz concedes that “if he is unable to demonstrate a          not specify its reasons for denying leave to amend, the panel
violation of the FCA, he may not bring a claim for discharge       should conduct a de novo review. See McKethan-Jones v.
in violation of the public policy therein,” but argues that        Ohio Dept. of Health, 7 Fed. Appx. 475, 482, 2001 WL
dismissal is not appropriate because “this public policy is also   345782, at *6 (6th Cir. 2001) (finding that “[t]he district
independently and more broadly embodied in the common              court, by refusing to grant leave to amend the original
law of Ohio.” Under Ohio law, however, “when the                   complaint . . . , must implicitly have decided that such a claim
employee’s discharge is not actionable under the law that          was futile,” and conducting de novo review).
establishes the ‘clear public policy,’ the companion common-
law claim for relief likewise fails as a matter of law.”              According to Fed. R. Civ. P. 15(a), “[a] party may amend
Arsham-Brenner v. Grande Point Health Care Cmty., No.              the party’s pleading once as a matter of course at any time
74835, 2000 WL 968790, at *7 (Ohio App. July 13, 2000).            before a responsive pleading is served.” The term
Since the only “applicable laws and regulations” that Yuhasz       “responsive pleading” is defined by reference to Fed. R. Civ.
alleges he was directed to violate are the FCA and the Federal     P. 7(a), which distinguishes between pleadings and motions,
Acquisition Regulations, and the complaint fails to state a        and provides an exclusive list of pleadings: a complaint
claim with respect to either of these authorities, his common      (including a third party complaint), an answer to a complaint
law public policy claim also must be dismissed.                    or a cross-claim, and a reply to a counterclaim. In this case,
                                                                   Brush never filed an answer. Consequently, Yuhasz was free
                             VI.                                   to file an amended complaint at any time prior to the district
                                                                   court’s entry of judgment. Yuhasz did not do so, but instead
  Yuhasz requested leave to amend his complaint in his             claimed in his response to Brush’s motion to dismiss that he
October 5, 1999, response to Brush’s motion to dismiss, and        “has pled all the facts that he knows.” In light of Yuhasz’s
he contends that the district court abused its discretion by       admission, amendment would be futile. See Old Republic Ins.
failing to grant his request. This argument lacks merit.           Co. v. Hansa World Cargo Service, Inc., 170 F.R.D. 361,
                                                                   383-384 (S.D.N.Y. 1997). (“[B]ecause [plaintiff] has
                                                                   conceded that it possesses no further facts to plead . . . , this
No. 02-3087              Yuhasz v. Brush Wellman, Inc.       17

Court finds that leave to replead [plaintiff’s] . . . claims
should be denied as futile.”) Because Yuhasz did not amend
as a matter of right under Rule 15(a) and because amendment
would have been futile in any event, the district court’s denial
of Yuhasz’s request for leave to amend was proper.
   Yuhasz also directly requests leave to amend from this
court. This request is procedurally defaulted. The district
court entered a final judgment dismissing the case on
December 14, 2001. “Following entry of final judgment, a
party may not seek leave to amend their complaint without
first moving to alter, set aside or vacate the judgment
pursuant to either Rule 59 or Rule 60 of the Federal Rules of
Civil Procedure.” Morse v. McWhorter, 290 F.3d 795, 799
(6th Cir. 2002). Since Yuhasz never filed a Rule 59 or 60
motion following the district court’s entry of judgment, he
cannot now seek leave to amend.
                             VII.
  For all of the foregoing reasons, we affirm the judgment of
the district court.
