                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


TIMOTHY SKRYNNIKOV,

                Plaintiff,

        v.                                            Civil Action No. 11-0609 (GK)

FEDERAL NATIONAL MORTGAGE
ASSOCIATION,

                Defendant.


                                   MEMORANDUM OPINION

        Plaintiff Timothy Skrynnikov                  ("Plaintiff"      or      "Skrynnikov")

brings       this   action against           Defendant      Federal   National          Mortgage

Association         ("Defendant"       or    "Fannie Mae")         alleging       retaliation

under the Federal False Claims Act                     ("FCA"),     31 U.S.C.       §    3729 et

seq.,    and     interference with his               rights      under both the          Federal

Family and Medical Leave Act                  ("FMLA"),     29 U.S.C.      §    2601 et seq.,

and the        related District         of    Columbia Family and Medical                  Leave

Act   ("DCFMLA"), D.C. Code § 32-501 et seq.

        This    matter      is before        the    Court   on Defendant's Motion to

Dismiss       and    Its    Motion     to    Compel     Arbitration        [Dkt.    No.        2 6] .

Upon consideration of the Motion,                     Opposition      [Dkt. No.         29],    and

Reply    [Dkt.      No.    30],   and the entire record herein,                  and for the

reasons       set   forth     below,    the        motion   to    compel       arbitration        is

granted.
                         1
I .         BACKGROUND

            Fannie Mae is a government-sponsored corporation chartered

by Congress, with its headquarters in the District of Columbia.

SAC     §     5.   Skrynnikov was employed by Fannie Mae as a                                  Senior

Financial Analyst from October 9, 2007 until November 13, 2009,

when his employment was terminated.                           SAC    ~~    6,    38.      Skrynnikov

alleges that Fannie Mae eliminated his position in retaliation

for         his    investigation         into        and      disclosure            of     purported

falsehoods          in       executive   compensation               data        that     Fannie   Mae

reported to            the United States             Senate Committee on Finance                    in

March 2009.            SAC    ~~   11-17, 38-42.           Skrynnikov also alleges that

the elimination of his position interfered with his rights under

the     FMLA and DCFMLA because                 it    came     at    the        conclusion of an

approved medical leave of absence.                      Id.    ~~    26-38, 43-50.

            When Skrynnikov applied for                his     job in October 2007,                 he

signed an application form acknowledging that "as a condition of

employment,        all Fannie Mae employees must agree to be bound by

Fannie        Mae's      Dispute     Resolution        Policy,        which        requires       that

certain employment-related                claims       be      submitted          to     arbitration

before a suit can be brought on them in court."                                    De f . ' s Mem. P .

&     A.,    Ex.   1     ("Employment Application")                 at 4        [Dkt.    No.   26-1].

1
  The facts set forth herein are taken from the Second Amended
Complaint ("SAC") [Dkt. No. 23] and the undisputed facts set
forth in the parties' briefs and exhibits.
                                                -2-
Similarly,      when        Skrynnikov        signed          and       accepted       Fannie     Mae's

offer of employment, he did so subject to the understanding that

Fannie Mae's Dispute Resolution Policy required him "to submit

certain employment-related claims to the mandatory arbitration

process for final resolution prior to filing these claims in a

court of      law. "        Def.'s Mem.           P.    &    A.,     Ex.   2     ("Offer Letter")

[Dkt . No. 2 6-2] .

        The Dispute Resolution Policy, a copy of which accompanied

Fannie Mae's Offer Letter,                  provides that a Fannie Mae employee

is required to arbitrate "all claims                                    . against Fannie Mae .

         involving      a     legally-protected                   right,       that    directly       or

indirectly relate to his or her employment or the termination of

that     employment [.]"            Def. 's       Mem.       P.     &    A.,     Ex.    3     ("Dispute

Resolution Policy" or "Policy")                    §    2 [Dkt. No. 26-3].                  The Policy

elaborates that the claims to which it applies .may "involv [e]

rights protected by any federal,                            state,      or other governmental

constitution         [sic],       statute,        ordinance,            regulation,         or    common

law."            The Policy also states that "[t] he arbitrator will

resolve all disputes over the interpretation and applicability

of     the   Policy,        and    over      the        arbitrability            of    all       matters

presented under it."              Id.   §   16.

        On   March     23,    2011,         Skrynnikov            filed        this    case      against

Fannie Mae asserting a qui tam claim under the FCA on behalf of
                                                  -3-
the United States,              as well as various employment-related claims

on     his     own    behalf.            [Dkt .    No.       1] .    On    March       27,        2012,

Skrynnikov's          qui     tam   claim         was    dismissed        on   motion        of     the

Government pursuant to 31 U.S.C.                         §    3730 (c) (2) (A).        [Dkt.       Nos.

17,     18].         In   his    Second       Amended         Complaint        [Dkt.    No.        23],

Skrynnikov           brings      claims       solely          on    his    own     behalf           for

retaliation under the FCA, and for interference with his rights

under the FMLA and DCFMLA.                   SAC    §§   39-50.      It is undisputed that

Skrynnikov did            not    submit      these       claims     to    arbitration before

commencing this action.

        On November 6,           2012,     Fannie Mae moved to dismiss the FMLA

and DCFMLA claims pursuant to Rule 12(b) (6) of the Federal Rules

of Civil Procedure, and to compel arbitration of the FCA claim.

[Dkt.    Nos.    26,      27-1] .    Fannie Mae also requested that                           if the

Court    did not          dismiss   the      FMLA and DCFMLA claims,                   it     compel

arbitration as :to those claims as well.                              On January 7,               2013,

Skrynnikov filed his Opposition to Fannie Mae's Motion [Dkt. No.

29],    and on January 14, 2013,                   Fannie Mae filed its Reply                     [Dkt.

No. 30] .




                                                  -4-
II.        STANDARD OF REVIEW 2

         A motion               to    compel         arbitration          is        effectively           "a     request

for      summary disposition                        of     the    issue        of    whether or not                   there

ha [s]       been          a      meeting           of      the     minds           on     the       agreement           to

arbitrate [,]         11
                               and therefore such a                     motion is properly reviewed

under the summary judgment standard of Rule 56(c) of the Federal

Rules of Civil Procedure.                                Aliron Int'l,          Inc. v. Cherokee Nation

Indus.,       Inc.,            531 F. 3d 863,              865    (D.C.    Cir.          2008)      (citations and

quotation marks omitted) .

           "Under          this           standard,           the        party           seeking         to       compel

arbitration                 must          firs·t          present         'evidence                 sufficient           to

demonstrate            an        enforceable              agreement        to        arbitrate. '        11
                                                                                                                 Fox v.

Computer World Servs.                          Corp.,      No.     12-0374          (ABJ),       2013 WL 385610,

at    *3     (D.D.C.            Feb.      1,    2013)       (quoting Hill v.                   Wackenhut          Servs.

Int'l.,       865          F.     Supp.        2d    84,     89     (D.D.C.         June       7,    2012)).            The

burden then shifts to the opposing party "to show that there is

a    genuine        issue            of     material             fact     as    to       the        making       of     the

agreement []     11
                           so        as    to       preclude        the    court           from       deciding          the

motion to compel as a matter of law.                                           Haire v.          Smith,        Currie &

Hancock       LLP,          No.       12-749         (JDB),       2013     WL       751035,         at    *2     (D.D.C.

Feb. 28, 2013)                  (citing Hill,              865 F. Supp. 2d at 89).                            To sustain

2
   The Court does not reach Fannie Mae's, arguments for dismissal
under Fed. R. Civ. P. 12 (b) (6), and, therefore, does not set
forth that standard of review.
                               -5-
    its burden,       the nonmoving party must "'go beyond the pleadings

and     by     [its]    own     affidavits,         or       by    depositions,          answers     to

interrogatories,             and    admissions           on       file,   designate           specific

facts        showing     that       there    is     a     genuine         issue     for       trial.'"

Amirmotazedi v. Viacom,                  Inc.,    768 F.          Supp.   2d 256,       260    (D.D.C.

2011)        (citing    Celotex          Corp.     v.    Catrett,         477     U.S.     317,     322

    (1986); Laningham v. U.S. Navy,                     813 F.2d 1236,          1242      (D.C.    Cir.

1987)).

III. ANALYSIS

        A.      Legal Standard Under the Federal Arbitration Act

        The Federal Arbitration Act                     ("FAA") , 9 U.S. C.         §    1 et seq.,

governs the enforcement of an arbitration agreement such as the

one at issue in this case. 3                     The FAA provides, in relevant part,

that "[a]       written provision in any .                            contract evidencing a

transaction           involving       commerce          to    settle       by     arbitration         a

controversy thereafter arising out of such contract .                                          . shall

be valid,       irrevocable,         and enforceable,                save upon such grounds

as     exist     at    law    or     in     equity        for       the   revocation          of    any

contract."        9 U.S.C.      §   2.

        Although "arbitration is a matter of contract and a party

cannot be required to submit to arbitration any dispute which he

3
  The Dispute Resolution Policy states that it "is an agreement
to arbitrate pursuant to the FAA" and must "be interpreted,
enforced, and governed under the FAA." Policy § 16.
                                                  -6-
has not agreed to so submit[,]"                          United Steelworkers of Am.                   v.

Warrior & Gulf Navigation Co., 363 U.S. 574, 582                                    (1960), the FAA

"establishes           a     liberal        federal       policy           favoring       arbitration

agreements."           CompuCredit Corp. v. Greenwood, -- U.S. --, 132 S.

Ct.    665,    669         (2012)     (citation          and    quotation          marks    omitted) .

Therefore,       as our Court of Appeals has emphasized,                                  "any doubts

concerning the scope of arbitrable issues should be resolved in

favor of arbitration [.]"                   Wolff v. Westwood Mgmt., LLC, 558 F. 3d

517,    520    (D.C.       Cir.     2009)    (citing Moses H.                  Cone Mem'l Hosp. v.

Mercury       Constr.         Corp.,        460    u.s.        1,        24-25     (1983)).          This

principle applies              "even when the              claims         at     issue   are   federal

statutory claims,             unless the FAA's mandate has been 'overridden

by a contrary congressional command. '"                                  CompuCredi t      Corp. ,    132

S. Ct. at 669 (quoting Shearson/Am. Express Inc. v. McMahon, 482

u.s.   220, 226 (1987)).

       Although the Supreme Court has long recognized and enforced

a     "liberal      federal         policy        favoring          arbitration          agreements,"

Moses H. Cone Memorial Hosp.,                      460 U.S.             at 24,    it has also made

clear that there is an exception to this policy:                                         the question

whether       the    parties         have     submitted             a    particular        dispute     to

arbitration,        i.e.,         the "question of arbitrability" is "an issue

for    judicial        determination              [u]nless          the    parties       clearly      and

unmistakably provide otherwise [.] "                       AT       &   T Technologies, Inc. v.
                                                   -7-
Communications Workers of America, 475 U.S. 643, 649, 106 S. Ct.

1415, 89 Lawyers Ed. 648                  (1986)       (emphasis added).           As the court

will     discuss       infra       at    III.B.1.,         in     this     case,     the     actual

language in the Policy is clear and unmistakable.

        B.     The Dispute Resolution Policy Requires Each of                                     the
               Pending Disputes to Be Submitted to Arbitration

        When a       party invokes            the    FAA to       compel    arbitration,          the

Court first must determine whether there is a valid agreement to

arbitrate.           See,   e.g.,        Johns      v.   Newsmax Media,            Inc.,    887    F.

Supp.    2d 90,       97    (D.D.C.       2012)        (citing Nelson v.           Insignia/Esg,

Inc.,    215 F. Supp.            2d 143,      150      (D.D.C.    2002)).     The Court then

must assess whether the specific dispute falls within its scope.

Id.      In answering these questions,                     ordinary state-law contract

principles apply.            First Options of Chicago, Inc. v. Kaplan, 514

u.s.    938, 944 (1995) . 4

               1.     There Is a Valid Agreement to Arbitrate

        In    support       of     its     Motion        to      Compel,    Fannie         Mae    has

submitted copies of Skrynnikov's Employment Application,                                     Fannie

Mae's        Offer    Letter,           and      its     Dispute         Resolution         Policy.

Skrynnikov' s        signature on the Employment Application and Offer

Letter       evidences       his        acceptance        of      the    Dispute      Resolution

4
     Skrynnikov's opposition papers assume that District of
Columbia law applies to the arbitration agreement.   Pl.'s Opp'n
at 7-8.   Since Fannie Mae does not dispute this assumption, the
Court will apply District of Columbia law.
                                                  -8-
Policy,        particularly              because        these        documents          emphasize        the

Policy's requirement                that he submit                "certain employment-related

claims to the mandatory arbitration process for final resolution

prior to filing              [such]      claims in a court of law."                          Offer Letter

at 1; see also Employment Application at 4                                     ("I acknowledge that,

as   a    condition          of    employment,           all       Fannie       Mae     employees       must

agree     to    be     bound       by    Fannie        Mae's      Dispute        Resolution        Policy,

which      requires           that           certain       employment-related                 claims      be

submitted to arbitration before a suit can be brought on them in

court.").

         Under District of Columbia law,                           "'one who signs a contract

has a duty to read it and is obligated according to its terms.'"

Curtis v. Gordon,              980 A.2d 1238,              1244        (D.C.    2009)    (quoting Pers

Travel,        Inc.    v.    Canal           Square Assocs.,            804     A.2d     1108,     1110-11

(D.C.     2002);       see also Hughes v.                    CACI,      Inc.-Commercial,           384    F.

Supp.     2d    89,     96     (D.D.C.         2005)       ("[A]       signature        on    a   contract

indicates        'mutuality             of    assent'      and     a     party     is    bound     by    the

contract        unless        he        or     she     can     show         special      circumstances

relieving        him    or        her    of     such    an     obligation.")             (ci·tation      and

quotation marks omitted) .

         Skrynnikov          does       not     deny       that        he      signed    Fannie      Mae's

Dispute Resolution Policy, and does not suggest that any special

circumstances exist which would relieve him of his obligations

                                                     -9-
under the       Policy.          Instead,        he cites       several       cases    addressing

arbitration provisions                in collective bargaining agreements                            for

the proposition that the arbitration agreement in this case is

unenforceable         because         it    is   not     "clear       and    unmistakable"           and

contains      only     "sweeping broad statements."                         Pl.'s    Opp' n     at    10

(citing,      inter alia,         Carson v.         Giant Food,         Inc.,       175 F.3d 325,

331-32   (4th Cir. 1999)).

      However,        Skrynnikov did not                 accept     the Dispute Resolution

Policy     as      part     of    a        collective        bargaining         agreement,           and

therefore,         the     stricter          standard         applicable        in     collective

bargaining cases           is    not       applicable        in this        case.      See,      e.g.,

Wright   v.     Universal        Maritime          Serv.      Corp.,    525     U.S.      70,    80-81

(1998)      (distinguishing                "union's        waiver      of     the      rights         of

represented        employees"          from      "individual's          waiver       of    his       own

rights,"      and noting that               "clear and unmistakable"                 standard did

not   apply     to       latter);      Carson,         175    F.3d     at     331    ("collective

bargaining agreements              to arbitrate [,]                           unlike      contracts

executed      by     indi victuals,         must    be       'clear    and    unmistakable. '")

(emphasis added)           (citing Wright, 525 U.S. at 79-80).

      Therefore,           the        Dispute           Resolution           Policy        is        not

unenforceable          simply         because       it       uses     broad     and       inclusive

language.       See Brown v.               ITT Consumer Financial Corp.,                   211 F.3d

1217, 1221      (11th Cir. 2000)              ("A party cannot avoid arbitration .
                                                 -10-
      because        the   arbitration      clause       uses     general,    inclusive

language, rather than listing every possible specific claim.").

      Finally,       the   actual    language     in the        Policy is,     in fact,

clear and unmistakable.

              2.     Each of the Pending Disputes Falls                      Within    the
                     Scope of the Arbitration Agreement

      Skrynnikov         also    argues   that        even   if   the   agreement       is

enforceable,        it only applies to "a small subset of the possible

claims    [he]     might bring," and does not apply to his FCA claim

because      he    did   not     "explicitly     or    by    implication,      agree    to

arbitrate claims under the False Claims Act."                      Pl.'s Opp'n at 9-



     The District of Columbia "adheres to an objective law of

contracts, meaning that the written language embodying the terms

of an agreement will govern the rights and liabilities of the

parties regardless of the intent of the parties at the time they

entered into the contract,             unless the written language is not

susceptible of a clear and definite undertaking, or unless there

is fraud,     duress, or mutual mistake."                Dyer v. Bilaal, 983 A.2d

349, 354-55 (D.C. 2009)            (citation and internal punctuation marks

omitted) .        In determining whether a contract is susceptible of a

clear and definite             interpretation,    courts examine the document

5
   Skrynnikov does not address whether the Policy applies to his
FMLA and DCFMLA claims.
                                          -11-
on its face and give the language its plain meaning.                                 Tillery v.

Dist.    of Columbia Contract App.                Bd.,    912 A.2d 1169,             1176     (D.C.

2006)    (citation omitted).

        The Dispute Resolution Policy states that it applies to any

"claims     that      an employee      might      make against        Fannie Mae

involving a legally-protected right,                     that directly or indirectly

relate    to   his      or   her   employment        or    the    termination          of     that

employment [ . ] "       Policy    §   2     (emphasis     added) .           This    language,

which is broad and inclusive,                 has previously been held to apply

to whistleblower claims similar to Skrynnikov's.                               See Taylor v.

Fannie Mae,        839 F.    Supp.     2d 259,      264    (D.D.C.      2012) (retaliation

claim    under      Sarbanes-Oxley          whistleblower         provision          subject     to

Fannie Mae's Dispute Resolution Policy);                         Kimpson v.          Fannie Mae

Corp.,    No 06-18       (RWR),    2007 WL 1020799,          at *3       (D.D.C.       Mar.     31,

2007)     (noting       "inclusive      and       comprehensive         language         of     the

policy").

        More   importantly,        even      if    the    scope    of     the    arbitration

agreement      is     ambiguous,       as     Skrynnikov         contends,       the        Policy

provides that         "[t] he arbitrator will             resolve all          disputes over

the            arbitrability of all matters presented under it[,]"

Policy     §   16      (emphasis       added) ,      and    thus        it     "clearly         and

unmistakably"         reserves the authority to decide which claims are

arbitrable       to    the   arbitrator,          rather    than        the     court.          See
                                             -12-
Carson,      175 F.3d at 330          ("Those who wish to let an arbitrator

decide which issues are arbitrable need only state that                                     'all

disputes      concerning        the   arbitrability          of    particular        disputes

under      this   contract      are   hereby        committed to      arbitration,'          or

words to that clear effect.") .                     That is precisely what Fannie

Mae has written into its Policy.                      Therefore,      Skrynnikov's FCA

claim      must   be    submitted       to    the     arbitrator      who     will     decide

arbitrability issues.

      C.      Fannie Mae's Rule 12(b) (6)                 Defenses       Must        Also    Be
              Submitted to Arbitration

      Fannie      Mae    also    asks    the    Court     to      dismiss     Skrynnikov's

DCFMLA claim on statute of                   limitations grounds,           and his         FMLA

claim for failure to state a cause of action.                         Def.'s Mem. P & A

at 9-12.      Fannie Mae argues that because these claims fail "[o]n

the   face    of the complaint,"             they do not          involve any "legally

protected right(s)," and therefore, may be dismissed outright by

the Court pursuant to Rule 12(b) (6),                  rather than being referred

to arbitration.         Id. at 14.

      However,      Fannie Mae's Dispute Resolution Policy expressly

provides     that      claims    brought      under    the     FMLA    (and    by     logical

extension, the DCFMLA) are subject to arbitration.                            See Policy       §

2 ("For example, claims asserting rights protected by the .

Family and Medical Leave Act would be covered by the Policy.").

                                             -13-
The Policy also states that "[i]f                      [Fannie Mae]           contends that            [a]

claim      was     not       made    within    the     time       limit       [set    by    law      for

bringing         suit    on    that    claim     in    court]       the      arbitrator       may        be

requested         to     decide       the     issue     before       any      hearing        on      the

substance        of     the    claim."        Policy    §     6    (emphasis         added) .        The

Policy further contemplates that                       if Fannie Mae             "assert [s]      that

the     employee's        claim is       barred because            it     does    not      involve        a

legally-protected right,                          the arbitrator may be requested

to rule on this issue as a preliminary matter before conducting

a hearing on the substance of the                      ~mployee's         claim."       Policy       §    2

    (emphasis added) .

         Thus,    it is perfectly clear that the arbitration agreement

commits      the        resolution       of    Fannie       Mae's       defenses        under     Rule

12(b)(6)     to the arbitrator,               not the court. 6               "By its terms the

[FAA]      leaves       no    place     for    the     exercise         of    discretion          by      a

district court,           but instead mandates that district courts shall

direct     the     parties          to proceed    to    arbitration on               issues     as       to

which an arbitration agreement                    has       been signed."             Dean Witter


6
    Even if the Dispute Resolution Policy was silent on this
issue, judicial precedent also supports the referral of Fannie
Mae's Rule 12(b) (6) defenses to arbitration.  See Howsam v. Dean
Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) ("' [P]rocedural
questions which grow out of the dispute and bear on its final
disposition' are presumptively not for the judge, but for an
arbitrator, to decide.")    (emphasis in original)   (citing John
Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557 (1964)).
                               -14-
Reynolds,           Inc.   v.    Byrd,    470 U.S.       213,    218    (1985)         (emphasis in

original)           (citing      9     U.S.C.    §§     3,    4);     see       also    Nat'l        R.R.

Passenger Corp. v. Boston & Maine Corp., 850 F.2d 756, 759 (D.C.

Cir.    1988)        ("It is a necessary corollary of the principle that

'arbitration is a matter of contract' that when the parties have

provided that a particular type of dispute should be settled in

arbitration, rather than in litigation, a court may not override

that agreement by itself deciding such a dispute.")                                    (emphasis in

original) .

        Moreover,          although        parties       may        waive       their        right     to

arbitration           by     acting      "'inconsistently            with       the     arbitration

right,'" Khan v. Parsons Global Servs., Ltd.,                               521 F.3d 421, 425

(D.C.        Cir.    2008) (citation omitted),                Fannie Mae has made clear

that, notwithstanding its request for dismissal of the FMLA and

DCFMLA claims under Rule 12(b) (6),                          it is not waiving its right

to arbitrate those claims.                      See Def.'s Mem.             P    &   A at 14         ("If

th[e] court                  . does not dismiss [the FMLA and DCFMLA claims] ,

then     [they]        must       be     compelled       to     arbitration            for     further

proceedings inasmuch as                            the claims at issue                               fall

squarely within the                  agreement     to    arbitrate [.] ");             Def. 's Reply

Br.     at     5     ("Any      Surviving       Claims                  Should         be     Sent     to

Arbitration").



                                                 -15-
         Accordingly,         the Court will enforce the arbitration clause

in its entirety, deny Fannie Mae's Rule 12(b) (6) Motion without

prejudice, and refer the Rule 12(b) (6) issues to arbitration.

         C.    The Case Will Be Stayed

         The FAA provides that when the court is satisfied that the

issues before           it    are   subject    to    arbitration,   the   court    shall

"stay the trial of the action until                     such arbitration has been

had in accordance with the terms of the agreement [ . ] "                    9    u.s.c.
§   3.    Accordingly, this action will be stayed pending conclusion

of arbitration.

IV. CONCLUSION

         For the       foregoing     reasons,       Fannie Mae's motion to compel

arbitration is GRANTED,               and its motion to dismiss pursuant              to

Rule      12 (b) (6)     is     DENIED   without        prejudice   to    renewal     in

arbitration.           An Order shall accompany this Memorandum Opinion.




May 8, 2013                                           /s;{i'~~
                                                     Gladys K~
                                                                     1


                                                     United States District Judge




Copies to: attorneys on record via ECF


                                              -16-
