WILLIAM C. O'HARA, Plaintiff - Appellant,
NIKA TECHNOLOGIES, INC., Defendant-Appellee, and CHARLES R. GOLDSTEIN, Plaintiff, METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION, Amicus Supporting Appellant.
Argued: October 25, 2017
from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge.
Jonathan Louis Gould, LAW OFFICE OF JONATHAN L. GOULD,
Washington, D.C., for Appellant.
Clifford Bernard Geiger, KOLLMAN & SAUCIER, P.A., for
Stephen Z. Chertkof, HELLER, HURON, CHERTKOF & SALZMAN,
PC, Washington, D.C., for Appellant. Darrell R. VanDeusen,
KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for
D. Snyder, PASSMAN & KAPLAN, P.C., Washington, D.C.;
Richard R. Renner, KALIJARVI, CHUZI, NEWMAN & FITCH,
P.C., Washington, D.C., for Amicus Curiae.
TRAXLER, KING, and DUNCAN, Circuit Judges.
by published opinion. Judge Duncan wrote the opinion, in
which Judge Traxler and Judge King joined.
DUNCAN, Circuit Judge:
C. O'Hara sued his employer, NIKA Technologies, Inc.,
under the so-called "whistleblower-protection
provisions" of the False Claims Act, 31 U.S.C. §
3730(h) and the American Recovery and Reinvestment Act (the
"ARRA"), Pub. L. No. 111-5, 123 Stat. 297-99
(2009), claiming that NIKA fired him for disclosing another
company's alleged fraud on the government. The district
court entered summary judgment for NIKA on the first claim
because it determined that § 3730(h) only protects
disclosures targeting the whistleblower's employer. The
court also granted NIKA summary judgment on the ARRA claim,
finding that O'Hara did not genuinely dispute that NIKA
would have fired him absent the disclosures. Although we hold
that the district court applied the wrong legal standard to
the § 3730(h) claim, we affirm its grant of summary
judgment because O'Hara's disclosures are not
protected under the correct legal standard either. We affirm
the district court's disposition of the ARRA claim on the
grounds provided below.
February 19, 2007, the National Institute of Standards and
Technology ("NIST"), an agency in the U.S.
Department of Commerce, awarded NIKA a contract to provide
design and cost-estimating services on a project to build
several new facilities at the National Center for Neutron
Research (the "Project"). NIST hired another
company, Northern Taiga Ventures, Inc. ("NTVI"), to
perform the Project's construction work.
March 5, 2007, NIKA hired O'Hara as a senior cost
estimator on the Project. The parties' employment
agreement stated that O'Hara would perform "work as
may be requested from time to time by NIKA" and that
NIKA would assign O'Hara to different projects through
"WORK AUTHORIZATION forms." J.A. 186. The only work
authorization form in the record shows that NIKA directed
O'Hara to prepare cost estimates "as required"
for the Project. J.A. 362. Because NIST funded the Project,
it compensated NIKA for O'Hara's services.
beginning of the Project, O'Hara's primary role was
to help NIST evaluate "change order proposals." As
a government agency, NIST is entitled to "make changes
in the work [that are] within the general scope of [a
government] contract, including changes . . . [i]n the
specifications (including drawings and designs) [and] [i]n
the method or manner of performance of work." 48 C.F.R.
§§ 52.243-4(a)(1)-(2). When the government requires
a contractor to perform additional work under an existing
contract, the contractor may submit a "change order
proposal, " requesting that the government increase the
contractor's compensation to reflect the extra work.
See id. at § 552.243-71(b). O'Hara helped
NIST evaluate these requests by estimating the cost of
performing the additional work.
2008, O'Hara submitted two reports informing Christopher
Conley, a NIST manager supervising the Project, that NTVI had
submitted documents to the government that O'Hara
believed contained misrepresentations and inaccuracies.
O'Hara's first report to Conley alleged that several
of NTVI's change order proposals misrepresented
subcontractor quotes. The second report alleged that
NTVI's construction plans contained "numerous
inaccuracies." J.A. 15. When Conley disregarded these
allegations, O'Hara began to forward his reports to the
NIST Procurement Office and the U.S. Department of ...