                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
RAMESH SHARMA,                 )
                               )
          Plaintiff,           )
                               )
v.                             )    Civil Action No. 10-1033 (GK)
                               )
DISTRICT OF COLUMBIA,          )
                               )
          Defendant.           )
______________________________)

                        MEMORANDUM OPINION

     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 § 1-615.54, the federal False Claims Act (“FCA”), 31 U.S.C.

§ 3730, Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-5(f), and the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § § 626(c) and 633a(c).

     This matter is presently before the Court on the Defendant’s

Partial Motion to Dismiss [Docket No. 53]. Upon consideration of

the Motion, Opposition, Reply, and the entire record herein, and

for the reasons set forth below, the Defendant’s Partial Motion to

Dismiss is granted.
I.   Background

     A.    Factual Background1

     In   January   2003,   Sharma was      hired as a     Senior   Contract

Specialist by the OCP, an agency of the District of Columbia

government. Beginning in 2005 and continuing until early 2009,

Sharma alleges that various D.C. employees pressured him to approve

contracts that were fraudulent, wasteful, and violated D.C. and

federal laws and regulations. Sharma contends that he refused to

approve   these   contracts   and   filed    a   series   of   whistleblower

complaints with various D.C. and federal agencies.

     On October 18, 2006, Sharma filed a formal complaint with the

Equal Employment Opportunity Commission (“EEOC”). He amended the

complaint six times between his filing date and July 5, 2009. On

February 12, 2007, Sharma applied for two Supervisory Contract

Specialist positions. Both positions were one employment grade

above his current position. Sharma was neither interviewed nor

selected for either of the positions.

     On March 4, 2009, the construction contracting group at OCP,

where Sharma worked, was moved to the D.C. Government’s Office of

1
  For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253 (D.C.
Cir. 1979). Therefore, unless otherwise noted, the facts set forth
herein are taken from the Complaint.
                                    -2-
Property Management (“OPM”). In connection with this move, Sharma’s

co-workers were transferred to other positions within OCP or were

sent to the newly formed OPM construction contracting division.

Sharma, by contrast, received a notice of Reduction in Force

(“RIF”) shortly after the reorganization. This notice, which was

dated May 18, 2009, was received by Sharma on May 29, 2009, and was

effective as of June 19, 2009. Sharma was the only member of the

OCP construction contracting group who was subjected to a RIF. On

June 3, 2009, Sharma was placed on administrative leave with pay.

     On June 11, 2009, Sharma filed a whistleblower reprisal

complaint and a complaint about the RIF notice with the D.C.

Inspector General’s Office. On June 19, 2009, Sharma’s RIF went

into effect and he was terminated from employment. On July 16,

2009, Sharma appealed the RIF decision to the D.C. Office of

Employee   Appeals   (“OEA”).   Sharma   withdrew   his   appeal   without

prejudice on April 11, 2010. Subsequently, the OEA dismissed

Sharma’s appeal with prejudice on April 13, 2010.

     On September 30, 2010, the EEOC issued a determination on

Sharma’s EEOC complaint. The determination was favorable to Sharma

on a number of his Title VII and ADEA claims against the District.

On March 29, 2011, after attempts at conciliation failed, the EEOC

referred Sharma’s claims to the Department of Justice (“DOJ”). The

DOJ ultimately chose not to sue the District on Sharma’s behalf,

                                   -3-
although it did provide Sharma with a Right-To-Sue letter dated

December 21, 2011.

     B.   Procedural Background

     On June 18, 2010, Sharma filed this lawsuit against the D.C.

Government [Dkt. No. 1]. On September 1, 2010, the District filed

its Motion to Dismiss the Original Complaint [Dkt. No. 5]. On June

17, 2011, this Court denied the Defendant’s Motion to Dismiss the

Original Complaint [Dkt. No. 21]. On July 8, 2011, the District

filed an Answer to the Original Complaint. [Dkt. No. 25].

     On February 6, 2012, Sharma filed his Second Amended Complaint

[Dkt. No. 42].2 On March 21, 2012, the District filed an Answer to

the Second Amended Complaint. [Dkt. No. 47].

     On March 28, 2012, Sharma filed his Third Amended Complaint

[Dkt. No. 50]. On April 16, 2012, the District filed an Answer to

the Third Amended Complaint [Dkt. No. 52].

     Also on April 16, 2012, the District filed the pending Partial

Motion to Dismiss the Third Amended Complaint (“Def.’s MTD Count

II”) [Dkt. No. 53]. On May 3, 2012, Sharma filed his Memorandum in

Support of Plantiff’s Opposition to the Defendant’s Partial Motion

to Dismiss (“Pl.’s Opp’n Mem.”) [Dkt. No. 56]. On May 17, 2012, the



2
 On January 30, 2012, Sharma filed a Motion to Amend the Original
Complaint, to which he attached his First Amended Complaint. [Dkt.
No. 38]. Sharma’s First Amended Complaint was not separately
docketed.
                                  -4-
District filed its Reply to Plaintiff’s Opposition to Defendant’s

Partial Motion to Dismiss (“Def.’s Reply”) [Dkt. No. 59].

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 (2007).

“[A] complaint [does not] suffice if it tenders naked assertions

devoid of further factual enhancement.” Ashcroft v. Iqbal, 129

S.Ct. 1937, 1949 (2009) (internal quotations omitted) (citing

Twombly, 550 U.S. at 557). 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).

       “[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. 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.,

                                           -5-
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

     The FCA prohibits individuals from “knowingly present[ing], or

caus[ing] to be presented, a false or fraudulent claim for payment

or approval” to the U.S. government. 31 U.S.C. § 3729(a)(1)(A).

Under the statute, an employee who has been discriminated against

for engaging in activities protected under the statute may bring a

civil action against her employer. Section 3730(h), which is the

basis of this cause of action, provides that:

          Any 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 manner discriminated against in the
          terms and conditions of employment because of
          lawful acts done by the employee . . . 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).

     To make out a claim of retaliation under the FCA, an employee

must demonstrate that: “(1) he [or she] engaged in protected

activity . . . and (2) he [or she] was discriminated against

because of that activity.” U.S. ex rel. Yesudian v. Howard Univ.,

                                -6-
153 F.3d 731,    736   (D.C. Cir.    1998) (internal       quotations    and

citation   omitted).   Where    there    is   no    direct    evidence    of

discrimination, “the employee must . . . make two further showings.

The employee must show that: (a) the employer had knowledge the

employee was engaged in protected activity; and (b) the retaliation

was motivated, at least in part, by the employee's engaging in

[that] protected activity.” Id. (internal quotations and citations

omitted) (alteration in original).

     Sharma alleges that he was demoted, reprimanded, stripped of

his contracting office authority, deprived of various employment

opportunities   within    the     D.C.   Government,       and    otherwise

discriminated   against   in    retaliation   for    his     whistleblowing

activities. Sharma contends that these alleged retaliatory actions

by the District constitute a violation of the FCA.

     The District argues that Sharma’s FCA claim must be dismissed

because he failed to plead fraud with the requisite particularity

under the heightened pleading standard of Federal Rule 9(b).3 The

District further argues in the pending Motion that Sharma failed to

allege in its Third Amended Complaint that it “presented a ‘false


3
  The District is incorrect. In this Circuit, whistleblower
allegations as to retaliation are “unconstrained by the fraud
pleading standard” and “need satisfy only Rule 8's general pleading
requirements,” in contrast to fraud FCA violations which are
required to meet the requirements of Rule 9(b).        Martin-Baker
Aircraft Co., 389 F. 3d 1251, 1259 (D.C. Cir. 2004).

                                   -7-
or fraudulent claim’ to the [federal] government” for payment.

Def.’s MTD Count II at 7 (quoting 31 U.S.C. § 3730(h)) (emphasis

added).

     In response, Sharma contends that the District’s Motion should

be denied because this Court already: (1) concluded that its FCA

claim was adequately pled and (2) ruled “in Plaintiff’s favor on

the exact same issue.” Pl.’s Opp’n Mem. at 15. Sharma further

argues that the Third Amended Complaint “mentions projects funded

by Federal money on which he claims that Defendant violated the

False Claims Act” and that “[t]he Court can take judicial notice of

this fact from D.C. and federal documents.” Id. at 19.

        In its Motion to Dismiss Sharma’s Original Complaint, the

District argued that Sharma’s FCA claim fails because the Complaint

is devoid of facts: (1) that Sharma was investigating matters that

reasonably could lead to a viable FCA claim; (2) that the District

had knowledge of Sharma’s protected activities; and (3) that Sharma

faced     retaliation    because   of         his     engagement       in    protected

activities. Def.’s MTD Orig. Compl. at 9-11 [Dkt. No. 5].

     In ruling on that Motion, the Court concluded that these

specific    factual     allegations,     whose        sufficiency      the    District

challenged, were more than adequately pled. However, contrary to

Sharma’s assertion,       the   Court    has        not   ruled   on   the    argument

Defendant now makes in the pending Motion, i.e., that Sharma’s FCA

                                        -8-
claim fails because he did not allege that the District presented

an actual fraudulent claim for payment to the Federal Government.

Accordingly, the Court must reach the merits of this argument.

     In order to properly plead a retaliation claim under the FCA,

a plaintiff must allege that there was a violation of the statute,

i.e., the presentment of a false or fraudulent claim to the federal

government. “The [Federal False Claims Act] attaches liability not

to the underlying fraudulent activity or to the government’s

wrongful payment, but to the ‘claim for payment.’ Therefore, a

central question in False Claims Act cases is whether the defendant

ever presented a ‘false or fraudulent claim’ to the government.”

Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 785 (4th

Cir. 1999) (quoting United States v. Rivera, 55 F.3d 703, 709 (1st

Cir. 1995)).

     A thorough review of Sharma’s Third Amended Complaint reveals

no allegations that the District presented a false or fraudulent

claim to the Federal Government for payment. Sharma’s argument that

his claims “involve federal money” and that the Third Amended

Complaint “mentions projects funded by Federal money on which he

claims that [the District] violated the False Claims Act” is

insufficient to cure his defective Complaint. Pl.’s Opp’n Mem. at

18-19. Sharma’s contention that some of the projects mentioned in

his Complaint were at some point funded at least in part by federal

                               -9-
funds does not constitute an allegation that the District presented

a false or fraudulent claim for payment to the Federal Government.

See generally Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276

(D.C. Cir. 1994) (“[T]he court need not accept inferences drawn by

plaintiffs if such inferences are unsupported by facts set out in

the complaint.”).

      Moreover, it is clear that Sharma is now, in his Opposition to

the District’s present Motion, attempting to cure this deficiency

by amending his Complaint to properly state a claim under the FCA.

This is clearly impermissible. Calvetti v. Antcliff, 346 F. Supp.

2d 92, 107 (D.D.C. 2004); Arbitraje Casa de Cambio, S.A. de C.V. v.

U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) (“It is

axiomatic that a complaint may not be amended by the briefs in

opposition to a motion to dismiss.”). Accordingly, the District’s

Partial Motion to Dismiss is granted.

IV.   CONCLUSION

      For the reasons stated herein, Defendant’s Partial Motion to

Dismiss    is   granted.   An   Order   will   accompany   this   Memorandum

Opinion.



                                                   /s/
August 8, 2012                             Gladys Kessler
                                           United States District Judge

Copies via ECF to all counsel of record

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