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The district court denied Raytheon’s motion to dismiss a complaint alleging retaliation for protected whistleblower activity, finding that the plaintiff has plausibly asserted he informed his supervisor that he could not certify completion of a software project due to his concerns about the falsity of the statement, and that he was fired in retaliation. The court found the case was not time-barred, because the amended complaint connected directly back to the initial claim, which was filed within the statute of limitations. Though the first complaint was sparse on detail, the court held that it contained enough information to connect it to the amended complaint. Finally, the court denied Raytheon’s attempt to rely on the confidential nature of its work with the Navy and national security concerns, finding no authority for the defendant to move to dismiss a case on the government’s behalf.

Raytheon Company moved to dismiss relator Dana Johnson’s second amended complaint alleging unlawful retaliation for protected whistleblower activity.

Johnson was a systems engineer aircraft test conductor for Raytheon, which terminated his employment after he allegedly began investigating potential false claims for payment. Johnson filed a qui tam complaint and alleged retaliation, and the United States declined to intervene. The United States moved to dismiss the qui tam complaint and Raytheon successfully moved to dismiss the retaliation claim. However, the court gave Johnson leave to amend to replead his claim.

In his second amended complaint, Johnson alleged that in four instances he engaged in protected activity by investigating Raytheon’s false claims for payment. He asserted that Raytheon retaliated against him for these investigations by pretextually investigating him and ultimately terminating his employment. Raytheon moved to dismiss, arguing that Johnson failed to state a plausible claim on which relief can be granted, that his claim was time-barred, and that the government’s interest in protecting classified information and national security throughout the resolution of the case warranted dismissal.

First, the court found that Johnson had plausibly alleged that he had engaged in protected activity and was terminated as a result. Johnson alleged that, in four separate instances, he engaged in protected activity of which his supervisors were aware. In the first instance, he alleged that he informed his supervisor that a line of software code developed by Raytheon for a radar mode in military aircraft would render the radar mode inoperable. According to Johnson, he corrected the code. However, the radars were not properly calibrated to function with the corrected code, and Johnson informed his supervisor that he could not certify completion under the contract because it would be a false statement to the Navy for payment. Nonetheless, Raytheon represented to the Navy that the radar mode project had been completed under the contract, and the Navy made payment.

Johnson alleged that in each of his protected activities, he addressed his concerns as involving illegal, unlawful, or false claims investigations, and that he informed his superiors that Raytheon made untruthful assertions and representations to the Navy. He also asserted that his superiors knew he investigated fraud and that he was instructed not to talk to the Navy about the issue. Johnson alleged that Raytheon investigated him for security violations as a pretext to firing him and that his superiors, who were aware of his investigations, influenced the decision.

Raytheon argued these allegations were insufficient to state a claim because they consisted of mere conclusory statements, without any details of Johnson’s purported investigations. However, Raytheon acknowledged Johnson has adequately alleged that he engaged in a protected activity when he stated that he would not certify completion under the contract because it would be a false statement to the Navy for payment under the contract.

Raytheon also argued that Johnson did not refer to any specific fraudulent claims for payment and therefore could not show he had placed his employer on notice of his protected activity. Raytheon also argued Johnson failed to connect his termination to his protected activity.

The court reasoned it need only consider whether Johnson has pleaded a plausible retaliation claim based on the first instance on which he relied for his complaint. The court agreed with Raytheon that Johnson had plausibly alleged the first element—that he engaged in protected activity—by informing his supervisor he would not certify completion of the contract because it would be a false statement for payment. The court found this fell squarely within the area of FCA protected activity.

The court also reasoned that when Johnson explained his decision not to certify completion of the contract, he put his supervisor on notice of possible fraud. Therefore, Raytheon was on notice that he had engaged in protected activity. Because the supervisor also participated in the decision to terminate Johnson’s employment, the court found he had stated a plausible retaliation claim sufficient to survive a motion to dismiss.

Next, Raytheon argued the complaint was time-bared because it was filed more than three years after it occurred in October 2015. In response, Johnson argued that his first complaint, which also alleged retaliation, was filed in April 2017, within the statute of limitations. Johnson argued that the retaliation claim raised in the second amended complaint was the same claim and that it arose out of the same conduct, transaction, or occurrence as in the complaint. Raytheon argued that the first complaint was so sparse on detail that it would be impossible to discern if Johnson made the same claims.

The court sided with Johnson, agreeing that the second amended complaint relates back to the date the complaint was filed. Although the details of the alleged retaliation were not fleshed out in the complaint, Johnson provided Raytheon fair notice that litigation was arising from factual situations involving the protected conduct outlined above. Because Johnson’s second amended complaint merely provided further detail regarding his original retaliation claim, the claim asserted in the second amended complaint was not time-barred. Consequently, the court denied the motion to dismiss on the basis of limitations.

Finally, Raytheon argued the complaint should be dismissed due to the confidential nature of the work the company performed for the Navy and other security concerns. In response, Johnson argued that Raytheon did not have standing to argue this point on the government’s behalf. Because the government moved to dismiss the qui tam complaint but not the retaliation claim, Johnson argued that Raytheon cannot move to dismiss the retaliation claim on the government’s behalf.

The court agreed, finding no authority giving Raytheon the right to plead government interests in defending itself against a private lawsuit. The court denied the motion on these grounds.