Temple v. Sigmatech Inc

Filing 44

MEMORANDUM OPINION AND ORDER - The Court DENIES Sigmatechs motion to dismiss Mr. Temples FCA claim. The Court GRANTS Sigmatechs motion to dismiss Mr. Temples retaliation claim to the extent that it rests on Mr. Temples allegations concerning the E3 facility. Mr. Temples retaliation claim based on his disclosure of Sigmatechs billing practices will move forward. Signed by Judge Madeline Hughes Haikala on 3/30/2015. (KEK)

FILED
2015 Mar-30 PM 03:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICY COURT
FOR THE MORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
ex rel. JIMMY TEMPLE
Relator,
v.
SIGMATECH, INC.,
Defendant.

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Civil No.: 2:12-cv-1119-MHH

MEMORANDUM OPINION AND ORDER
Defendant Sigmatech, Inc. provides systems engineering and technical
assistance services to the U.S. Army through a subcontract with Computer
Sciences Corporation (CSC).

Relator Jimmy Temple worked as a technical

director for Sigmatech from February 2010 until Sigmatech terminated his
employment on November 15, 2011. Mr. Temple brings this action as a qui tam
relator on behalf of the United States. He alleges that Sigmatech illegally billed
CSC for work done on unfunded projects, causing CSC to submit false claims to
the United States in violation of the False Claims Act, 31 U.S.C. § 3729(a)(1)(A).
Mr. Temple also states a claim for retaliatory discharge under § 3730 of the False
Claims Act, alleging that Sigmatech terminated his employment after he

investigated and disclosed Sigmatech’s billing practices and the public health
threat posed by Sigmatech’s electromagnetic environmental effects (E3) facility.
Sigmatech moves to dismiss Mr. Temple’s complaint pursuant to Rules
12(b)(6) and 9(b) of the Federal Rules of Civil Procedure. Sigmatech asserts that
Mr. Temple’s False Claims Act (FCA) claim must fail because (1) Mr. Temple
cannot establish that Sigmatech knowingly submitted false claims to the
Government; (2) Mr. Temple does not state his claims with the particularity
required by Rule 9(b); and (3) Mr. Temple cannot state a claim for conduct that
pre-dates Congress’s May 20, 2009 amendments to the FCA. Sigmatech also
argues that Mr. Temple’s retaliation claim should be dismissed to the extent that it
relies on allegations connected to the E3 facility because Mr. Temple does not
identify a potential false claim in connection with the E3 facility.
For the reasons stated below, the Court denies Sigmatech’s motion to
dismiss Mr. Temple’s FCA claim.

The Court grants Sigmatech’s motion to

dismiss Mr. Temple’s retaliation claim to the extent that it relies on allegations
concerning the E3 facility.
I.

STANDARD OF REVIEW
Rule 12(b)(6) enables a defendant to move to dismiss a complaint for

“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). Pursuant to Rule 8(a)(2), a complaint must contain, “a short and plain
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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). “Generally, to survive a [Rule 12(b)(6)] motion to dismiss and meet the
requirement of Fed. R. Civ. P. 8(a)(2), a complaint need not contain ‘detailed
factual allegations,’ but rather ‘only enough facts to state a claim to relief that is
plausible on its face.’” Maledy v. City of Enterprise, 2012 WL 1028176, at *1
(M.D. Ala. Mar. 26, 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
570 (2007)). “Specific facts are not necessary; the statement need only ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555).
“In an action under the False Claims Act, Rule 8’s pleading standard is
supplemented but not supplanted by Federal Rule of Civil Procedure 9(b).”
Urquilla-Diaz v. Kaplan University, 2015 WL 1037084, at *9 (11th Cir. March 11,
2015). The relator “‘must state with particularity the circumstances constituting
fraud’ but may allege scienter generally.” Id. (quoting Cooper v. Blue Cross and
Blue Shield, 19 F.3d 562, 567–68 (11th Cir. 1994)). To satisfy this heightened
pleading standard, “the complaint must set forth ‘facts as to time, place and
substance of the defendant’s alleged fraud’ and ‘the details of the [defendant’s]
allegedly fraudulent acts, when they occurred, and who engaged in them.” United
States ex rel. Keeler v. Eisai, Inc., 568 Fed. Appx. 783, 793 (11th Cir. 2014)

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(quoting United States ex rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301,
1309–10 (11th Cir. 2002)).
In deciding a Rule 12(b)(6) motion to dismiss, a court must view the
allegations in a complaint in the light most favorable to the non-moving party.
Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). A court must
accept well-pled facts as true. Grossman v. Nationsbank, N.A., 225 F.3d 1228,
1231 (11th Cir. 2000).
II.

FACTUAL AND PROCEDURAL BACKGROUND

A.

The Parties
Sigmatech, Inc. is an Alabama corporation headquartered in Huntsville,

Alabama. (Doc. 1, ¶ 25). Sigmatech provides systems engineering and technical
assistance services to the U.S. Army Aviation and Missile Research, Development
and Engineering Center (AMRDEC) at the Spectrum Management Office at
Redstone Arsenal. (Doc. 1, ¶ 29). Although Sigmatech provides services to the
Army, Sigmatech does not contract directly with the Army. Instead, Sigmatech
has a subcontract with Computer Sciences Corporation (CSC), an organization that
contracts directly with the Army. (Doc. 1, ¶¶ 34, 35).
CSC, a Nevada corporation with an office in Athens, Alabama, provides
technology-enabled business solutions to government and private sector clients.
(Doc. 1, ¶¶ 30, 31, 33). The FCA claim in this matter pertains to Army Contract
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number W41P4Q-05-A-0028,1 a blanket purchase agreement between the United
States Army and CSC. (Doc. 1, ¶ 35). In a blanket purchase agreement, the value
of the contract changes based on evolving tasks and delivery orders. (Doc. 1, ¶
36). In April 2012, the value of the blanket purchase agreement between the Army
and CSC was approximately $556 million. (Doc. 1, ¶ 36).
Mr. Temple began working for Sigmatech in February 2010 as a technical
director in the Spectrum Management Office. (Doc. 1, ¶¶ 16–17). Mr. Temple
performed work for Sigmatech under Sigmatech’s subcontract with CSC. (Doc. 1,
¶ 34). Willie Albanes, from the Weapons Development and Integration Directorate
(WDI), was the government lead for the Spectrum Management Office during Mr.
Temple’s employment. (Doc. 1, ¶ 41). Sigmatech instructed Mr. Temple “to take
all direction from Mr. Albanes.” (Doc. 1, ¶ 41).
B.

Sigmatech’s Billing Practices
At the beginning of Mr. Temple’s employment with Sigmatech, Mr. Temple

noticed that Sigmatech employees were working for government programs and
offices that did not have contracts with Sigmatech or WDI. (Doc. 1, ¶¶ 42–43).
Sigmatech employees would then charge government programs and offices for
support that was not provided to the government customer’s office. (Doc. 1, ¶ 44).
1

Mr. Temple also refers to a “CSC Express contract” which is assigned the contract number
W31P4Q-05-A-0028. (Doc. 1, ¶¶ 2, 65). The Court cannot determine from the pleadings
whether this is a typo or whether Mr. Temple is making allegations regarding two different
contracts. For the purposes of the motion to dismiss, the Court will assume that all of Mr.
Temple’s allegations relate to the same contract between CSC and the Army.
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Mr. Temple expressed concern over this billing practice to longtime Sigmatech
employee Eugene Dickerson, who was designated as Mr. Temple’s Sigmatech
support. (Doc. 1, ¶ 45). Mr. Dickerson informed Mr. Temple that Sigmatech
employees had always filled out timecards in this manner. (Doc. 1, ¶ 45).
In or around March 2010, Mr. Temple asked Mr. Albanes how to charge
government customers that were not funded.

(Doc. 1, ¶ 46).

Mr. Albanes

informed Mr. Temple that it was illegal to work for unfunded government
programs unless Mr. Albanes expressly directed Mr. Temple to perform the work.
(Doc. 1, ¶ 47). Mr. Albanes also instructed the Spectrum Management Office to
inform government customers that although working on unfunded government
programs was illegal, the Spectrum Management Office could begin work on an
unfunded project with Mr. Albanes’s approval. (Doc. 1, ¶ 48).
In or around June 2010, Mr. Temple hired Eric Melville. (Doc. 1, ¶ 52).
Shortly after beginning work, Mr. Melville expressed concern about Sigmatech’s
billing practice of charging funded customers for work being performed for
unfunded customers. (Doc. 1, ¶ 53). Mr. Temple decided to confirm this billing
practice with Larry Jess, Sigmatech’s CIO. (Doc. 1, ¶ 55). Mr. Jess told Mr.
Temple that the billing practice was legal and described the action as “[r]obbing
Peter to pay Paul.” (Doc. 1, ¶ 56). Mr. Jess also stated that Mr. Albanes “was the

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customer” and that Sigmatech would “provide support at Albanes’ direction.”
(Doc. 1, ¶ 57).
Mr. Temple alleges that he directly observed Sigmatech and Albanes use
funds from funded government projects to pay for unfunded government projects.
(Doc. 1, ¶ 61).

When funds from a funded government project depleted,

Sigmatech used the blanket-purchase-agreement element of the Army’s contract
with CSC to request more funds from the Government. (Doc. 1, ¶ 62). Sigmatech
could have worked on unfunded projects by securing a memorandum of agreement
between the unfunded project and a related, funded project. (Doc. 1, ¶¶ 50, 69).
Mr. Temple maintains that Sigmatech never secured an MOA. (Doc. 1, ¶ 69).
In his complaint, Mr. Temple gives several examples of this conduct. In
November of 2010, Mr. Temple e-mailed Chris Hammer at the WDI directorate
and informed Mr. Hammer that the Spectrum office did not have sufficient funds
to continue supporting the Precision Pulse Positioning Systems program (3PS).
(Doc. 1, ¶ 58). Mr. Hammer e-mailed Mr. Albanes and requested funding from a
different government program, “EAPS,” to continue funding 3PS. (Doc. 1, ¶ 59).
Mr. Albanes agreed to fund the 3PS program with funds from EAPS, stating that
“when we run out of funds for EAPS frequency management we will ask for
more.” (Doc. 1, ¶ 60).

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According to Mr. Temple’s complaint, in October 2010, Mr. Albanes stated
in an e-mail that he would use funds from WDI’s CSC Express contract to
continue work on the unfunded Frequency Management RAID project. (Doc. 1, ¶
65). In December 2010, Mr. Albanes diverted funds from the WDI CSC Express
contract to fund the Apache Longbow Project. (Doc 1, ¶ 66; Doc. 31, p. 31). In
January 2011, Mr. Albanes authorized funds from the WDI CSC Express contract
to be used for the unfunded Frequency Management TOC-C2 Harbormaster
project. (Doc. 1, ¶ 67).
Mr. Temple alleges that in October 2011, a government customer told Mr.
Temple that Mr. Temple could not begin working on a project until the project was
funded. (Doc. 1, ¶ 70). As a result of this conversation, Mr. Temple decided to
speak with Phil Jenkins, WDI branch Chief and Albanes’ superior, about
Sigmatech’s billing practices. (Doc. 1, ¶¶ 71, 72). When Mr. Temple described
Sigmatech’s billing practices, Mr. Jenkins informed Mr. Temple that the practices
were a “misappropriation of funds, illegal, and come[] with a possible jail
sentence.” (Doc. 1, ¶ 73). Mr. Temple subsequently informed all Spectrum office
managers to stop working for unfunded programs and to not charge funded
customers for work supporting unfunded customers. (Doc. 1, ¶¶ 74, 75). On
November 15, 2011, Sigmatech terminated Mr. Temple’s employment. (Doc. 1, ¶
121).
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C.

The Electromagnetic Environmental Effects (E3) Facility
Mr. Temple contends that during his employment at the Spectrum office, he

also discovered that Redstone’s Electromagnetic Environmental Effects (E3)
facility did not have an operating license. (Doc. 1, ¶¶ 92, 99). The Department of
Defense created the E3 program to assess potential threats posed to military
capabilities by concentrated radio waves. (Doc. 1, ¶ 90). At the E3 facility, the
Army would shoot radiation at vehicles, such as Blackhawk helicopters and
Humvees, and observe the effects. (Doc. 1, ¶ 97).
After he discovered that the E3 facility did not have a license, Mr. Temple
alleges that Mr. Albanes told E3 officials that Spectrum did not intend to shut
down the E3 facility. (Doc. 1, ¶ 101). Albanes demanded that Mr. Temple provide
the licensing and certification process to E3.

(Doc. 1, ¶ 102).

Certification

involves an inspection that ensures the equipment is operating within the frequency
parameters established by the Department of Defense, as well as state and federal
laws. (Doc. 1, ¶ 103). In September 2011, when Mr. Temple inspected the E3
equipment for the licensing and certification process, Mr. Temple discovered that
the E3 facility was operating illegally. (Doc. 1, ¶ 105). Mr. Temple asserts that he
found that E3’s beam antenna, which created a focused beam of non-ionizing
radiation, was focused at Lacey’s Spring, Alabama.

(Doc. 1, ¶¶ 107–109).

According to Mr. Temple’s complaint, non-ionizing radiation has been causally
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linked to Leukemia. (Doc. 1, ¶ 110). Mr. Temple also found that the beam
antenna’s frequency range exceeded the authority given to E3 by the National
Telecommunications and Information Administration.

(Doc. 1, ¶ 115).

Mr.

Temple alleges that a beam that is operating on the wrong frequency at the wrong
time can impede electronic instruments, which could cause an accident such as an
airplane crash. (Doc. 1, ¶ 113).
As a result of his investigation, Mr. Temple could not issue a license or
certificate to E3. (Doc. 1, ¶ 115). In October and early November 2011, Mr.
Temple stressed to Mr. Jess and Mr. Albanes that E3’s operation was illegal and
posed a threat to public health and safety. (Doc. 1, ¶¶ 118–120). This is the same
time period in which Mr. Temple told Spectrum managers to stop billing funded
programs for work done on unfunded programs. (Doc. 1, ¶¶ 70, 74, 75). On
November 15, 2011, Sigmatech terminated Mr. Temple’s employment. (Doc. 1, ¶
121).
D.

Procedural Background
On April 17, 2012, Mr. Temple brought this action under seal as a qui tam

relator on behalf of the United States. (Doc. 1). In his complaint, Mr. Temple
alleges claims for violation of the False Claims Act, 31 U.S.C. § 3729, and for
retaliatory discharge under the False Claims Act, 31 U.S.C. § 3730. (Doc. 1, pp.
17, 18). On May 10, 2013, the United States declined to intervene in this action.
10

(Doc. 17). Sigmatech subsequently moved to dismiss the complaint pursuant to
Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure. (Doc. 28). The
parties fully briefed the motion.

(Docs. 31, 32).

On this record, the Court

considers Sigmatech’s motion to dismiss.
III.

ANALYSIS

A.

Mr. Temple’s FCA Claim
The False Claims Act imposes liability on any person who “knowingly

presents, or causes to be presented, a false or fraudulent claim for payment or
approval.” 31 U.S.C. § 3729(a)(1)(A). The term “knowingly” means that the
person has “actual knowledge of the information; acts in deliberate ignorance of
the truth or falsity of the information; or acts in reckless disregard of the truth or
falsity of the information.” 31 U.S.C. § 3729(b)(1). The FCA’s definition of a
“claim” includes any request or demand for money that “is made to a contractor,
grantee, or other recipient, if the money or property is to be spent or used on the
Government's behalf or to advance a Government program or interest, and if the
United States Government provides or has provided any portion of the money or
property requested or demanded.” 31 U.S.C. § 3729(b)(2)(A)(ii).
In the complaint, Mr. Temple alleges that “every report, invoice, and payroll
record that Sigmatech submitted to CSC was false.

In turn, every claim for

payment CSC presented to the Government associated with Army Contract
11

W41P4Q-05-A-0028 was false.”

(Doc. 1, ¶ 84).

Mr. Temple explains that

“Sigmatech submitted claims for payment to CSC based on the timecards
submitted by Jimmy Temple and other members of the Spectrum Management
Office. These time cards billed CSC for work on projects that the government did
not fund. The government paid CSC for these claims.” (Doc. 1, ¶ 127). In
support, Mr. Temple provides examples of times when Sigmatech employees
worked on unfunded projects and billed that work to CSC. (Doc. 1, ¶¶ 65–68).
Finally, Mr. Temple alleges that Sigmatech “knew . . . , or as an experienced
contractor, should have known this was illegal.” (Doc. 1, ¶ 88). Under Federal
Rule of Civil Procedure 9(b), knowledge “may be alleged generally.” Therefore,
Mr. Temple has stated a prima facie case that Sigmatech knowingly presented, or
caused to be presented, a false or fraudulent claim for payment or approval.
1.

12(b)(6)

Sigmatech moves to dismiss Mr. Temple’s FCA claim under Rule 12(b)(6)
for failure to state a claim. Sigmatech asserts that Mr. Temple cannot show that
Sigmatech “knowingly” presented a false claim because Sigmatech acted at the
direction of Army contracting officer Willie Albanes. (Doc. 29, p. 5). In other
words, Sigmatech asserts that “[w]here the government has complete advance
knowledge of the alleged false claim, the defendant has not acted with the requisite
scienter.” (Doc. 29, p. 6).
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Sigmatech is essentially trying to rebut Mr. Temple’s allegations that
Sigmatech knowingly presented a false claim by showing that the Government also
had knowledge of the claim. “However a rebuttal, while possibly creating a
subsequent factual dispute, is not relevant to the question of whether [Mr. Temple]
has adequately stated a claim.” United States ex rel. Sanchez v. Abuabara, 2012
WL 254764, at *11 (S.D. Fla. Jan. 27, 2012).

Under Federal Rule of Civil

Procedure 9(b), knowledge “may be alleged generally.” Mr. Temple has alleged
that Sigmatech “knew . . . , or as an experienced contractor, should have known”
that its billing practices were illegal. (Doc. 1, ¶ 88). Because Mr. Temple has
stated a prima facie case under the false claims act, Sigmatech’s efforts to rebut
Mr. Temple’s allegations of knowledge are better suited for a motion for summary
judgment.
Sigmatech cites two cases in which courts outside this circuit granted a
defendant’s motion to dismiss on the basis of complete government knowledge of
the false claim: United States ex rel. Stierli v. Shasta Services, Inc., 440 F. Supp.
2d 1108 (E.D. Cal. 2006) and Gonzalez v. Planned Parenthood of Los Angeles,
759 F.3d 1112 (9th Cir. 2014). Shasta and Gonzalez are distinguishable. In
Shasta, the district court granted defendant’s motion to dismiss because the
Government had “full knowledge” of the defendant’s alleged noncompliance and
still chose to award the contract in question to the defendant. 440 F. Supp. 2d at
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1114. Similarly, in Gonzalez, the Government was fully aware of the alleged false
claim. The plaintiff in Gonzalez attached letters to his complaint in which the
Government expressed concern over defendant’s billing practices, but the
Government remained silent when the defendant explicitly described its billing
practices. 759 F.3d at 1115. The Government later admitted in a letter that
“conflicting, unclear, or ambiguous misrepresentations have been made to
providers” about proper billing practices. Id. The court granted the motion to
dismiss in light of the Government’s “explicit statements” addressing billing and
the Government’s silence after the defendant described its billing practices. Id. at
1116.
In the instant case, the facts alleged in the complaint, viewed in the light
most favorable to Mr. Temple, show that the Government did not have “full
knowledge” of Sigmatech’s billing practices.

When Mr. Temple described

Sigmatech’s billing practices to Phil Jenkins, WDI Branch Chief and Albanes’
superior, Mr. Jenkins stated that the billing practices were a “misappropriation of
funds, illegal, and come[] with a possible jail sentence.” (Doc. 1, ¶¶ 71–73). Thus,
this case is more like United States v. Kellogg Brown & Root Services, Inc., 800 F.
Supp. 2d 143 (D.D.C. 2011), in which the district court denied the defendant’s
motion to dismiss. In Kellogg, the defendant alleged that the Government paid
claims that it knew contained unallowable costs, but the Government contended
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that it rejected the allegedly false claims as soon as it recognized that the claims
contained unallowable costs. 800 F. Supp. 2d at 159–60. The Kellogg court
stated, “[f]aced with competing factual claims, neither inherently more credible
than the other, the Court must draw the inferences in the non-moving party’s
favor.” Id. Because there are competing factual claims in this case regarding the
extent of the Government’s knowledge of the alleged false claim, the Court denies
Sigmatech’s motion to dismiss for failure to state a claim.
2.

Rule 9(b)

Sigmatech asks the Court to dismiss this action pursuant to Rule 9(b)
because Mr. Temple “does not allege the existence of even one demand made to
the government.” (Doc. 29, pp. 12–13). As discussed above, the FCA does not
require Mr. Temple to allege presentment of false claims directly to the
Government. See 31 U.S.C. § 3729(b)(2)(A)(ii) (defining a claim as “any request
or demand” for payment “made to a contractor” if the Government “has provided
any portion of the money or property requested or demanded”). Significantly,
Sigmatech admits that “[i]n detailing the Government officers’ alleged diversion of
funds and Sigmatech’s alleged submission of timesheets to CSC, Mr. Temple has
endeavored to allege the who, what, where, when and how of improper practices.”
(Doc. 20, p. 14). Because these allegations satisfy the requirements of Rule 9(b) in
an FCA action, the Court denies Sigmatech’s motion to dismiss under Rule 9(b).
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3.

Mr. Temple’s Pre-FERA FCA Claims

Sigmatech’s final argument for dismissing Mr. Temple’s FCA claim is that
Mr. Temple cannot state a claim for conduct that pre-dates Congress’s May 20,
2009 amendments to the FCA. (Doc. 32, pp. 8–9). In 2009, Congress enacted the
Fraud Enforcement and Recovery Act of 2009 (“FERA”), which amended and
renumbered the FCA. Pub. L. No. 111–21, 123 Stat. 1617 (2009). Prior to FERA,
the FCA imposed liability on any person who “(1) knowingly presents, or causes to
be presented, to an officer or employee of the United States Government . . . a false
or fraudulent claim for payment or approval” or “(2) knowingly makes, uses, or
causes to be made or used, a false record or statement to get a false or fraudulent
claim paid or approved by the Government.” 31 U.S.C. § 3729(a)(1)–(2). Section
3729(a)(1) required “proof that a false claim was presented to the Government,”
while § 3729(a)(2) included situations in which a “subcontractor submits a false
statement to the prime contractor intending for the statement to be used by the
prime contractor to get the Government to pay its claim.” Allison Engine Co., Inc.
v. U.S. ex rel. Sanders, 553 U.S. 662, 668–71 (2008).
Mr. Temple alleges that Sigmatech, a subcontractor, submitted false bills to
a prime contractor, CSC, intending that CSC use those bills to get the Government
to pay its claim. (Doc. 1, ¶¶ 84–85). This conduct fits squarely within the preFERA § 3729(a)(2). Sigmatech points out that Mr. Temple’s complaint “purports
16

to raise claims only under 31 U.S.C. § 3729(a)(1)(A),” which was previously
codified at § 3729(a)(1). (Doc. 36, pp. 2, 3). However, “the form of the complaint
is not significant if it alleges facts upon which relief can be granted, even if it fails
to categorize correctly the legal theory giving rise to the claim. Keene v. Prine,
477 Fed. Appx. 575, 583 (11th Cir. 2012).

Therefore, the Court denies

Sigmatech’s motion to dismiss Mr. Temple’s pre-FERA allegations.
B.

Mr. Temple’s Retaliatory Termination Claim
To state an action under the retaliation provisions of the FCA, Mr. Temple

must show that (1) Sigmatech is covered by the act at issue, (2) Mr. Temple
engaged in protected activity, (3) Mr. Temple suffered an adverse action, and (4)
there is an inference of causation between the protected activity and the adverse
action. Mann v. Olsten Certified Healthcare Corp., 49 F. Supp. 2d 1307, 1317
(M.D. Ala. 1999) (citing Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926,
934 (11th Cir. 1995)).2 An action is “protected activity” under the FCA if the
action is taken “in furtherance of an action under [the FCA] or other efforts to stop
1 or more violations of [the FCA].” 31 U.S.C. § 3730(h)(1). In other words, Mr.
Temple’s alleged actions must be “sufficient to support a reasonable conclusion
2

The Court uses the four-element test set forth in Mann, which has been cited favorably by the
Eleventh Circuit. See U.S. ex rel. Sanches v. Lymphatx, Inc., 596 F.3d 1300, 1304 (11th Cir.
2010); Mack v. Augusta-Richmond Cnty., Ga., 148 Fed. Appx. 894, 897 (11th Cir. 2005)
(unpublished). Other circuits use similar prima facie tests comprised of only two or three
elements. See Hutching v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 186 (3d Cir. 2001)
(applying a two-element test); McKenzie v. BellSouth Telecomm., Inc., 219 F.3d 508, 514 (6th
Cir. 2000) (applying a three-element test).
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that [Sigmatech] could have feared being reported to the government for fraud or
sued in a qui tam action by [Mr. Temple].” United States ex rel. Sanchez v.
Lymphatx, Inc., 596 F.3d 1300, 1304 (11th Cir. 2010).
Mr. Temple’s allegations regarding the E3 facility cannot form the basis for
a retaliation claim because the E3 allegations do not have any nexus with a false
claim.

Mr. Temple has not alleged that Sigmatech made false records or

statements in connection with the E3 facility, or that the Government made
expenditures in connection with the E3 facility. (Doc. 29, p. 16; see Doc. 1, pp.
14–19).

Mr. Temple does not challenge this contention in his response in

opposition to Sigmatech’s motion. (Doc. 31, pp. 15–19). Therefore, the Court
dismisses Mr. Temple’s retaliation claim to the extent that it relies on Mr.
Temple’s allegations concerning the E3 facility.
Mr. Temple’s retaliation claim also rests on his disclosures regarding
Sigmatech’s billing practices. (Doc. 1, ¶¶ 133–34). In its reply, Sigmatech states
that it “has not moved to dismiss [Mr. Temple’s] retaliation claim to the extent it
relies on his allegations of improper billing.” (Doc. 32, p. 9 n. 5). Therefore, Mr.
Temple’s retaliation claim based on his disclosure of Sigmatech’s billing practices
will move forward.

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IV.

CONCLUSION
For the reasons stated above, the Court DENIES Sigmatech’s motion to

dismiss Mr. Temple’s FCA claim. The Court GRANTS Sigmatech’s motion to
dismiss Mr. Temple’s retaliation claim to the extent that it rests on Mr. Temple’s
allegations concerning the E3 facility. Mr. Temple’s retaliation claim based on his
disclosure of Sigmatech’s billing practices will move forward.
The Court directs the Clerk to please TERM Doc. 28.
DONE and ORDERED this March 30, 2015.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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