Armstrong v. Arcanum Group, Inc., The
ORDER granting in part 27 Motion for Summary Judgment by Chief Judge Marcia S. Krieger on 9/25/17. (pglov)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 16-CV-1015-MSK-CBS
THE ARCANUM GROUP INC.,
OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT
THIS MATTER comes before the Court on the Defendants’ Motion for Summary
Judgment (# 27), the Plaintiff’s Response (# 30), and the Defendants’ Reply (# 32). For the
following reasons, the motion is granted in part.
The Court exercises jurisdiction under 28 U.S.C. § 1331.
Defendant Arcanum Group Inc., called TAG by the parties, is a contractor that provides
professional staffing to federal agencies. In this matter, TAG had a contract with the Bureau of
Land Management (BLM), a component of the Department of the Interior (DOI). The contract
provided, among other things, that the “Government may withdraw a previously issued approval
or assignment of Contractor personnel to this contract and direct that the individual be removed
The Court recounts the facts in the light most favorable to Ms. Armstrong, the nonmoving party.
See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002). In large part, the
parties do not dispute the material facts.
from the contract based upon the individual not meeting Government expectations or requirements
for personal, professional, or performance standards.” # 27-2 at 15. This contract is subject to a
global clause that allows either TAG or the BLM to demand an “interpretation of contract terms.”
# 30-5 at 1.
Plaintiff Mindy Armstrong was employed by TAG. Pursuant to the contract described
above, she was placed by TAG as a Lease Administrator at the BLM. Ms. Armstrong prepared
reports of the BLM’s portfolio of leases for its Real Estate Leasing Services team. Her BLM
supervisor was Terry Baker and her TAG supervisor was Steve Cota.2
The BLM leases land from both private entities and the General Services Administration
(GSA). Some leases are based upon usable square feet, others upon rentable square feet. The
difference is unimportant except that, at one time, the GSA provided in a Pricing Desk Guide that
leases measured by usable square feet should be converted using a “global conversion factor” to
measurements basted on rentable square feet.
Ms. Armstrong determined that the GSA failed to include the conversion factor in a
subsequent Pricing Desk Guide, which made it inconsistent with a 2007 Department of Interior
policy. Ms. Armstrong therefore reasoned that the updated Pricing Desk Guide superseded the
2007 DOI policy, leading her to the conclusion that the BLM was incorrectly calculating its leased
footprint in two ways — (1) by using the conversion factor when it should not (thus inflating the
total square feet in its portfolio); and (2) by excluding space that it received at no cost from its
lessors, a practice the Guide did not authorize.
Ms. Armstrong asserts that Barbara Burns-Fink, a TAG contractor working with her also was a
supervisor. There is evidence that Ms. Burns-Fink had seniority relative to Ms. Armstrong, but
not that Ms. Burns-Fink had supervisory authority or responsibility.
The BLM asked Ms. Armstrong to prepare two specific reports that included information
regarding BLM leases, both of which would be used in requests to the DOI for funding of
additional personnel. One report was designed to show the value of expiring leases (Lease
Expiration Report) and the other was designed to show the costs that the BLM was willing to
reduce over the upcoming 20 years to justify additional positions (Cost Avoidance Report).
Because these reports did not comport with her understanding of how the square footage of
the leases should be calculated, Ms. Armstrong believed the reports to be based on false
information.3 Ms. Armstrong told Ms. Burns-Fink that the leasing services team was “falsifying
data” and Ms. Baker responded that there was nothing fraudulent about the team’s calculation of
the lease data. After additional back-and-forth, Ms. Baker decided that Ms. Armstrong should be
removed from the project. She emailed the BLM contracting officer, Tina Hamalak, stating that
Ms. Armstrong should be removed from her contract assignment for “extremely poor
performance” which was outlined in an attached justification which included the incident at issue
as well as other performance issues. Ms. Hamalak, in turn, notified Mr. Cota at TAG that the
BLM wanted Ms. Armstrong “terminated” from the BLM assignment because she was “not
working out”. He pressed for an explanation, but Ms. Hamalak was not willing to answer
questions. Mr. Cota removed Ms. Armstrong from the BLM assignment. Because TAG had no
other assignments for Ms. Armstrong, TAG terminated her employment.
Five days later, Ms. Armstrong filed a complaint with the Department of Interior Inspector
General in accordance with 41 U.S.C. § 4712. The Department of Interior Inspector General
TAG argues that the Court should disregard an affidavit submitted by Ms. Armstrong with her
response that describes these two reports as a “sham affidavit.” The Court need not resolve this
dispute because even with the information contained in the challenged affidavit, Ms. Armstrong
has not presented evidence to sustain either of her retaliation claims.
failed to act on the complaint within 210 days, and pursuant to statute, Ms. Armstrong then filed
her Complaint with this Court.
Her Complaint (# 1) is brought solely against TAG. In it, she alleges three claims: (1)
retaliation in violation of the False Claims Act (FCA): (2) retaliation in violation of the enhanced
whistleblower provisions in the National Defense Authorization Act (NDAA); and (3)
common-law wrongful discharge (both violation of public policy and retaliation) under Colorado
law. TAG has moved for summary judgment on all claims.
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary
adjudication is authorized when there is no genuine dispute as to any material fact and a party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs what
facts are material and what issues must be determined. It also specifies the elements that must be
proved for a given claim or defense, sets the standard of proof, and identifies the party with the
burden of proof. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis
Oil Co. v. Producer=s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine”
and summary judgment is precluded if the evidence presented in support of and opposition to the
motion is so contradictory that, if presented at trial, a judgment could enter for either party. See
Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all
evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial.
See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
If the movant has the burden of proof on a claim or defense, the movant must establish
every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the
responding party must present sufficient, competent, contradictory evidence to establish a genuine
factual dispute. See Bacchus Indus. Inc. v. Arvin Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991);
Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a
material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is
required. The court then applies the law to the undisputed facts and enters judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence of
sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If
the respondent comes forward with sufficient competent evidence to establish a prima facie claim
or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to
establish its claim or defense, then the movant is entitled to judgment as a matter of law. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
Retaliation Under the False Claims Act
31 U.S.C. § 3730(h)(1) provides that any employee who is discharged “because of lawful
acts done by the employee in furtherance of an action under this section or other efforts to stop one
or more violations of” the False Claims Act may bring suit. To make a prima facie showing of
retaliation under the FCA, a plaintiff must come forward with evidence that (1) the plaintiff was
engaged in conduct protected by the FCA; (2) the plaintiff’s employer knew about such protected
activity and took an adverse action against the employee; and (3) the plaintiff’s protected activity
was the but-for cause of the adverse action. See Schell v. Bluebird Media LLC, 787 F.3d 1179,
1187 (8th Cir. 2015).
The Eighth Circuit stated in Schell that the causation element is satisfied if the protected
activity is a motivating factor in the adverse action decision. In 2013, however, the Supreme
Court held that the proper standard of causation for Title VII is but-for causation. See Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013); accord Lobato v. N.M. Env’t Dep’t,
733 F.3d 1283, 1296 n.9 (10th Cir. 2013). Though the Tenth Circuit has yet to apply this holding
to the FCA retaliation analysis, the Fifth Circuit has recently done so. See U.S. ex rel. King v.
Solvay Pharm. Inc., — F.3d —, 2017 WL 4003473 at *8 (Sept. 12, 2017). The Court agrees,
particularly given that the statutory phrase “because of” connotes a more stringent causal
connection than “motivating factor” does.
Courts have applied the familiar burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802–03 (1973), to retaliation claims under the FCA.4 See, e.g., Diaz v.
Kaplan Higher Educ. LLC, 820 F.3d 172, 175 n.3 (5th Cir. 2016); Harrington v. Aggregate Indus.
Ne. Region Inc., 668 F.3d 25, 31 (1st Cir. 2012). Under this framework, a plaintiff must establish
a prima facie case of retaliation and, if successful, the defendant must then articulate a legitimate,
nondiscriminatory reason for taking an adverse action against the plaintiff. The plaintiff must
then produce evidence such that a reasonable fact finder could find the explanation to be pretext
for discrimination. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–56 (1981).
TAG argues that Ms. Armstrong cannot establish a prima facie case because her opposition
to the BLM’s practices did not constitute protected activity within the meaning of the FCA and
because her conduct was not a motivating factor in the decision to terminate her.
The Tenth Circuit has yet to confront the applicability of McDonnell Douglas to either the FCA
or NDAA, but it has implicitly approved of such burden shifting in an FCA retaliation case. See
U.S. ex rel. Erickson v. Uintah Spec. Servs. Dist., 268 F. App’x 714, 717 (10th Cir. 2008)
1. Adverse Action
It is helpful to begin with isolating the adverse employment action at issue. As to this, the
parties disagree. Ms. Armstrong argues that the adverse action in this case was her removal from
her assignment at the BLM; TAG contends that the subject adverse employment action was its
termination of Ms. Armstrong’s employment. The Court agrees with TAG.
Assuming, without deciding, that the BLM’s decision to remove Ms. Armstrong from
working on its projects is an adverse action, it would be actionable only if Ms. Armstrong sued the
BLM. But here Ms. Armstrong sues only TAG and offers no basis upon which TAG is liable for
the BLM’s decision.5 Thus the only adverse action subject to this suit is TAG’s termination of
Ms. Armstrong’s employment.
Although causation is usually addressed as the third element for which a plaintiff must
offer evidence, its analysis flows readily from the determination of the adverse action. Because
the adverse action is TAG’s termination of Ms. Armstrong’s employment, to make a prima facie
showing, she must come forward with evidence that her protected activity was the but-for cause
of her termination by TAG. See Nassar, 133 S. Ct. at 2528.
Ms. Armstrong does not allege that TAG can be held liable for the removal as a joint employer.
See Bristol v. Bd. of Cty. Comm’rs, 312 F.3d 1213, 1218 (10th Cir. 2002) (en banc) (allowing joint
liability if the employers “co-determine the essential terms and conditions of employment.”). Nor
could she, as TAG did not co-determine her contract assignment with the BLM; the BLM
determined it in its sole discretion. Instead, she argues that the TAG-BLM contract contains a
procedural mechanism for TAG to challenge her removal from the assignment, apparently
surmising that, because TAG did not avail itself of the mechanism, it assumed the BLM’s
retaliatory motive in terminating her employment. But this contractual provision merely provides
for TAG to seek an interpretation of contract terms; it does not contain any meaningful way for
TAG to police or otherwise verify the BLM’s justifications for directing removal. To investigate
or verify the BLM’s reasoning, TAG would need a mechanism for information gathering or fact
finding, not a mechanism for a legal interpretation.
Ms. Armstrong contends that her criticism of the calculation of the BLM’s leases for
purposes of the reports was protected conduct. Again, assuming, without deciding, that such
conduct was protected, Ms. Armstrong has failed to come forward with evidence to show that her
statements caused her termination by TAG. There is no direct evidence that Mr. Cota knew of the
statements that she made at the BLM when he terminated her employment with TAG. Indeed,
Mr. Cota speaks to what he knew prior to making his decision to terminate Ms. Armstrong’s
employment with TAG: “So apart from the client instructing you to remove her and apart from
there being no other positions to place her in, did you have any other reasons on October 3, 2014,
for terminating Ms. Armstrong? No.” Cota Dep. 18:8–13.
The only information Ms. Armstrong offers as to Mr. Cota’s knowledge is speculative.
She insinuates that Ms. Burns-Fink may have apprised Mr. Cota of her conduct at the BLM
because Ms. Burns-Fink and Mr. Cota communicated about personal and routine events. In the
same vein, she asserts that Ms. Hamalak could have told Mr. Cota because it is unlikely she would
refuse to answer questions about Ms. Armstrong. Ms. Armstrong also argues that Mr. Cota was a
“cat’s paw,” who uncritically relied on statements made by Ms. Burns-Fink, “a biased
subordinate”. The problem with these theories is that there is no evidence, only speculation, that
anyone told Mr. Cota what Ms. Armstrong had said about the lease calculations.6 This is not
sufficient. See Dusenberry v. Peter Kiewit Sons Inc., 2007 WL 1346598 at *9 (D. Colo. May 8,
Ms. Armstrong contends that Mr. Cota must have learned about her conduct at the BLM prior to
their termination meeting because he testified he was performing research about some “questions
that Mindy had asked.” But this, too, is speculative. It is not reasonable to infer from the fact
that Ms. Armstrong had asked questions that Mr. Cota was aware of Ms. Armstrong’s accusations
against BLM personnel. Even with such an inference, the fact of Mr. Cota’s research does not
come close to establishing that he terminated Ms. Armstrong’s employment because of her
In the absence of evidence that Ms. Armstrong’s activity at the BLM was the reason that
Mr. Cota terminated her employment at TAG, she has failed to establish a prima facie case of
The Court also has substantial doubt that, as a matter of law, Ms. Armstrong’s statements
about the calculation of square footage for BLM leases constitutes protected activity under the
False Claims Act. The FCA concerns itself with actions that constitute fraud on the United States.
There are two types of protected conduct: (1) an action by an employee in furtherance of a qui tam
action or assistance in an FCA action; and (2) other efforts to stop an FCA violation. 31 U.S.C.
The first category requires that an employee put her employer on notice that she is “either
taking action in furtherance of a private qui tam action or assisting in an FCA action brought by the
government.” McBride v. Peak Wellness Ctr., 688 F.3d 698, 704 (10th Cir. 2012). Such notice
may take a variety of forms, from “informing the employer of illegal activities that would
constitute fraud on the United States,” to “warning the employer of regulatory noncompliance and
false reporting of information to a government agency,” to “explicitly informing the employer of
an FCA violation.” Id. However, “merely informing the employer of regulatory violations,
without more, does not provide sufficient notice.” Id.
As to FCA suits, the Tenth Circuit has not announced a standard defining “action in
furtherance of.” The consensus among the courts of appeal is that such action minimally requires
that a plaintiff be investigating matters that reasonably could lead to a viable FCA case. See
Glynn v. EDO Corp., 710 F.3d 209, 214 (4th Cir. 2013); U.S. ex rel. Karvelas v.
Melrose-Wakefield Hosp., 360 F.3d 220, 236 (1st Cir. 2004), abrogated on other grounds by
Allison Engine Co. v. U.S. ex rel. Sanders, 553 U.S. 662 (2008); U.S. ex rel. Yesudian v. Howard
Univ., 153 F.3d 731, 740 (D.C. Cir. 1998); U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1269 (9th
Cir. 1996). This standard evolved from one where the touchstone is whether FCA litigation is a
distinct possibility.7 See Childree v. UAP/GA AG CHEM Inc., 92 F.3d 1140, 1146 (11th Cir.
1996); Neal v. Honeywell Inc., 33 F.3d 860, 864 (7th Cir. 1994).
The second category of conduct extends protection to steps taken to remedy misconduct
through methods such as internal reporting. See Smith v. Clark/Smoot/Russell, 796 F.3d 424, 434
(4th Cir. 2015); Halasa v. ITT Educ. Servs Inc., 690 F.3d 844, 847–48 (7th Cir. 2012). However,
there still must be some nexus between the reporting and exposing of a fraud. Mikhaeil v.
Walgreens Inc., No. 13-14107, 2015 WL 778179 at *7 (E.D. Mich. Feb. 24, 2015). Given that
there need not ultimately be an FCA violation for retaliation to occur, the Fourth and Sixth Circuits
have incorporated an objectively-reasonable-belief standard to determine whether the employee’s
conduct is protected. See Carlson v. DynCorp Int’l LLC, 657 F. App’x 168, 172 (4th Cir. 2016)
(unpublished); Jones-McNamara v. Holzer Health Sys., 630 F. App’x 394, 399–400 (6th Cir.
2015) (unpublished). Under this standard, a plaintiff must have an objectively reasonable belief
that the conduct she opposes violates the FCA. The Court will discuss each category of protected
activity in turn.
As an initial matter, the only “false claim” identified by Ms. Armstrong would be the
At least the Eighth and Ninth Circuits have used Title VII’s retaliation standard — asking
whether the plaintiff had a good faith and objectively reasonable belief that the defendant was
committing fraud against the government — to elucidate whether a plaintiff was investigating
matters that reasonably could lead to a viable FCA action. See Schell, 787 F.3d at 1187; Moore v.
Cal. Inst. of Tech. Jet Propulsion Lab., 275 F.3d 838, 845–46 (9th Cir. 2002). The Seventh
Circuit has also used this standard in addition to asking whether an FCA action was a distinct
possibility at the time of investigation. See Fanslow v. Chicago Mfg. Ctr., 384 F.3d 469, 479–80
(7th Cir. 2004). The Court does not see any need to import Title VII’s standard because the
viability standard is sufficient on its own.
BLM’s request for more personnel in connection with the expiring leases based on the Lease
Expiration and Cost Avoidance Reports. Although the Court appreciates that Ms. Armstrong
believed the methodology used was incorrect, the Court has doubt that the request constitutes a
“claim” under the FCA.
A “claim” is defined as any request or demand for money or property to be spent or used on
the government’s behalf if the government “provides or has provided any portion of the money or
property requested or demanded.” 31 U.S.C. § 3729(b)(2)(A). Courts have generally construed
“claim” to encompass a demand for payment from the government, falsely asserting an entitlement
to government money that it is not obligated to pay out. See, e.g., United States v. McNinch, 356
U.S. 595, 599 (1958); U.S. ex rel. Cafasso v. Gen. Dynamics C4 Sys. Inc., 637 F.3d 1047, 1056
(9th Cir. 2011); Costner v. URS Consultants Inc., 153 F.3d 667, 677 (8th Cir. 1998).
Furthermore, the Court can also find no instance where a government agency has ever tendered a
false claim unto itself.
The Court has some doubt that the reports prepared by Ms. Armstrong support a claim for
payment of government money. It is not clear that a request for more staffing is a “demand for
payment” from funds of the United States. Most claims addressed by the FCA are made by third
parties seeking payment from the United States Government, not one department or agency
seeking an allocation of appropriated funds for a particular purpose. Ms. Armstrong offers no
case law for the proposition that a request for additional staffing constitutes a claim for purposes of
the FCA, and the Court has found no authority for such proposition. Assuming that a request for
staffing conceptually could be a claim, it is not clear that this request actually is a claim. The
request could just as easily be a request for a change in allocation of already appropriated funds, or
a recommendation/projection connected with long-range planning pertinent to appropriation in the
future. Ms. Armstrong concedes that she does not even know if the purported claim was ever
submitted to the DOI.
Assuming that the request is a claim, there arises a different problem.
Armstrong’s conduct to be protected, it must have had a specific connection to an FCA action,
either brought by the government or a qui tam action. Clearly, she was not assisting in an FCA
action. Indeed, she does not identify any FCA action that was being investigated or that could be
brought. A potential relator like Ms. Armstrong is unable to bring an FCA claim against a
government defendant because the United States, in essence, would be suing itself. See Greene v.
IRS, No. 08-CV-280, 2008 WL 5378120 at *6 (N.D.N.Y. Dec. 23, 2008); Prevenslik v. USPTO,
No. 05-CV-498, 2005 WL 6047270 at *1 (E.D. Va. June 16, 2005). It is well established that
such suits are non-justiciable. See, e.g., Sweeney v. FDIC, 116 F.3d 942 (D.C. Cir. 1997) (table);
Juliano v. Fed. Asset Disposition Assoc., 736 F. Supp. 348, 351–53 (D.D.C. 1990). FCA claims
against the government are frivolous. See Turner v. U.S. Dep’t of Educ., No. 15-CV-424, 2015
WL 4757055 at *2 (S.D. Cal. Aug. 10, 2015); Prevenslik, 2005 WL 6047270 at *1.
Similarly, the Court finds that she has not established that her conduct would be protected
as “other efforts” to remedy misconduct under the FCA. The “objectively reasonable” test
applies here. As noted earlier, although Ms. Armstrong may have been correct that the
accounting method used for the BLM leases was in error, she had no “objectively reasonable”
belief that such conduct violated the FCA. The record does not reveal any belief by Ms.
Armstrong that the FCA was being violated, but even if one infers from her critique that she held
such a belief, it was not reasonable because the government cannot sue itself.
Accordingly, under either category of § 3730(h)(1), Ms. Armstrong has not established that
her conduct was protected under the False Claims Act. Consequently, this claim must be
Reprisal Under the National Defense Authorization Act
Ms. Armstrong’s second claim is based upon the National Defense Authorization Act.
The NDAA prevents a government contractor from discharging an employee in reprisal for
disclosing information that shows a violation of law, rule, or regulation related to a federal
contract.” 41 U.S.C. § 4712(a)(1)–(2). To establish retaliation under § 4712, a plaintiff must
come forward with evidence showing that (1) she was an employee of a government contractor, (2)
she disclosed information that she reasonably believed was evidence of a rule violation related to a
federal contract to the required person,8 and (3) her disclosure was a contributing factor in the
action taken against her.
The NDAA does not follow McDonnell Douglas, but incorporates a similar framework
into the statute itself by borrowing from an administrative-law statute. 41 U.S.C. § 4712(c)(6)
provides that the legal burdens in 5 U.S.C. § 1221(e) shall be controlling for any judicial
determination of whether retaliation occurred. § 1221(e), in turn, requires that an employee show
her protected activity was a “contributing factor” in the employment action taken unless the
agency (contractor for our purposes) “demonstrates by clear and convincing evidence that it would
have taken the same personnel action” without disclosure. Thus, the questions asked are similar,
but the NDAA collapses the McDonnell Douglas stages into a single question that the employer
can only surmount with clear and convincing evidence as opposed to a preponderance of the
The statute enumerates the persons to which a disclosure can be made. As relevant here, Ms.
Armstrong must have disclosed information to either a federal employee “responsible for contract
or grant oversight or management at the relevant agency” or a management official of the
contractor “who has the responsibility to investigate” misconduct. 41 U.S.C. § 4712(a)(2)(D),
TAG argues that Ms. Armstrong cannot establish any NDAA reprisal because her
opposition to the BLM’s practices did not constitute protected activity within the meaning of the
NDAA. Ms. Armstrong responds that her conduct concerned rule violations related to BLM
leases which are government contracts. The Court agrees with TAG.
Ms. Armstrong’s reliance on the NDAA is misplaced. The NDAA and its anti-reprisal
provisions pertain only to contracts between the federal government and private contractors, not
contracts between the BLM and other governmental agencies. The operative section of the
NDAA is § 4712 entitled “Enhancement of contractor protection from reprisal for disclosure of
certain information.” It is found in Chapter 47 of Title 41, which contains miscellaneous
provisions governing the relationship between federal agencies and private contractors. See 41
U.S.C. §§ 4701–12.
Although § 4712 is relatively new and the Court can find no case law applying or
interpreting it, it is clear that § 4712 was enacted to enhance the protections of § 4705 of the Act,
entitled “Protection of contractor employees from reprisal for disclosure of certain information.”
§ 4712 does not define the term “federal contract”, but § 4705 clearly does — it is the contract
awarded by the head of an executive agency to a contractor. The contractor is the person to whom
the contract is awarded. 41 U.S.C. § 4705(a)(1)–(2). Thus, the protections of § 4712 and § 4705
apply to conduct involving a disclosure of rule violations related to contracts between the federal
government and private contractors. In this case, that would be the contract between TAG and the
BLM. Because Ms. Armstrong’s comments were not direct at that contract, but instead
intra-government contracts, she has no claim under the NDAA.
Because the NDAA is not applicable in this context, the claim is dismissed.
Common-law wrongful discharge is a state-law cause of action. Having dismissed the
federal claims over which it has original jurisdiction, the Court declines to exercise supplemental
jurisdiction over this claim pursuant to 28 U.S.C. § 1367(c)(3).
For the foregoing reasons, the Defendant’s Motion for Summary Judgment (# 27) is
GRANTED as to the Plaintiff’s retaliation claims under the FCA and NDAA. Both Claims are
DISMISSED, with prejudice.9 The Plaintiff’s wrongful-discharge claim is DISMISSED
WITHOUT PREJUDICE for lack of jurisdiction under 28 U.S.C. § 1367.
Dated this 25th day of September, 2017.
BY THE COURT:
Marcia S. Krieger
United States District Court
Because neither claim can be pursued as a matter of law and there has been no proffer of
allegations that can address the deficiencies in the showing, the Court is disinclined to allow
amendment of the Complaint.
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