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O'Hara v. Nika Technologies, Inc.

United States Court of Appeals, Fourth Circuit

December 22, 2017

WILLIAM C. O'HARA, Plaintiff - Appellant,

          Argued: October 25, 2017

         Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:13-cv-00543-PWG)


          Jonathan Louis Gould, LAW OFFICE OF JONATHAN L. GOULD, Washington, D.C., for Appellant.

          Clifford Bernard Geiger, KOLLMAN & SAUCIER, P.A., for Appellee.

         ON BRIEF:

          Stephen Z. Chertkof, HELLER, HURON, CHERTKOF & SALZMAN, PC, Washington, D.C., for Appellant. Darrell R. VanDeusen, KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Appellee.

          Erik D. Snyder, PASSMAN & KAPLAN, P.C., Washington, D.C.; Richard R. Renner, KALIJARVI, CHUZI, NEWMAN & FITCH, P.C., Washington, D.C., for Amicus Curiae.

          Before TRAXLER, KING, and DUNCAN, Circuit Judges.

         Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Traxler and Judge King joined.

          DUNCAN, Circuit Judge:

         William 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.


         On 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.

         On 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.

         At the 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.

         In 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 ...

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