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The district court granted Raytheon’s motion to dismiss and motion for summary judgment on claims that it fired an employee because he reported potential fraud on the Navy. The plaintiff alleged that after he complained about fraudulent billing, Raytheon told him not to speak to the Navy, increased its monitoring of his activities, and eventually terminated his employment. Raytheon argued that it had fired the plaintiff because the Navy revoked his security clearance. First, the court found that it lacked jurisdiction to review an agency security clearance decision. The plaintiff argued that he did not challenge the Navy’s decision but Raytheon’s decision to fire him, and alleged that Raytheon knew the agency’s decision was based on false facts provided by Raytheon. The court found these arguments could not be extricated. Even if Raytheon made false reports to the Navy, the Navy’s investigation concluded that the plaintiff has made multiple security violations, and the court had no jurisdiction to review that determination. Further, as part of his requested relief, the plaintiff wanted to be reinstated to his job, but the court reasoned this would require it to reverse the Navy’s revocation of his clearance.

Plaintiff-relator Dana Johnson sued Raytheon Company, alleging that it retaliated against him for engaging in protected activities under the False Claims Act. Raytheon moved to dismiss and/or for summary judgment.

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. The United States declined to intervene and later moved to dismiss the qui tam complaint. Raytheon successfully moved to dismiss the retaliation claim, but Johnson’s second complaint survived a similar motion.

In his 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.

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 reported him to the Navy and 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 terminated Johnson’s employment in October 2015 following a Navy investigation that found Johnson had violated multiple security rules, which resulted in Johnson’s losing his security clearance.

In his current complaint, Johnson narrowed his action to two claims of protected activity. He alleged that Raytheon retaliated against him in four ways: (1) Raytheon responded with hostility to his reports about the problems and told him not to talk to the Navy; (2) Raytheon increased its monitoring of Johnson; (3) Raytheon made false reports about Johnson to the Navy; and (4) Raytheon terminated Johnson’s employment.

Raytheon first moved for summary judgment, arguing that Johnson had not established his prima facie case of retaliation because he had not adduced evidence of knowledge or causation. Johnson argued that he had, and that the temporal proximity between his protected activity and termination was indirect evidence sufficient to establish causation. Further, he argued that the relevant decision maker knew about his protected activities.

The court agreed that temporal proximity might be construed as evidence of retaliation, but noted that the period between Johnson’s protected activities and his termination ranged from at least six months to several years. The court found this too great a gap to support his claim.

The court also found that Johnson had not produced evidence showing that the individual who decided to terminate his employment was aware of his protected activity. In fact, Johnson admitted he did not know whether this individual had this knowledge and did not name this employee in response to Raytheon’s interrogatory requesting details about his protected activity. Instead, the court found Johnson merely speculated that this individual should have known about the protected conduct. While Johnson argued that the individuals who prepared the investigative report on his alleged security violations had spoken with employees who were aware of his protected activity, the court found no evidence those people had discussed this activity.

Nonetheless, the court found that Johnson has shown that the protected activity and negative employment action were not completely unrelated, which was enough to establish a prima facie case of retaliation.

However, the court found that Raytheon articulated a legitimate, non-retaliatory reason for terminating Johnson’s employment. Raytheon argued that it terminated Johnson’s employment solely based on the Navy’s determination that he committed numerous serious security violations, which broke not only Navy program requirements, but also multiple Raytheon policies. The court found this sufficient, and therefore the burden shifted to Johnson to show that this reasoning was pretextual.

Before the court could make that determination, Raytheon argued that the court lacked subject matter jurisdiction to consider it. Raytheon cited to Navy v. Egan, in which the Supreme Court held that the Merit Systems Protection Board could not review the plaintiff’s challenge to an agency’s denial of his security clearance. Although Egan arose in the context of the Merit Systems Protection Board, the Fifth Circuit and other courts have concluded that Egan bars judicial review in the context of Title VII of the Civil Rights Act of 1964.

Johnson argued that Title VII makes an exception for actions taken against a person in furtherance of national security, while the FCA does not, and therefore Egan should not apply in this context. However, the court disagreed, finding that the Supreme Court held that non-expert bodies should not intrude on agency security clearance determinations “unless Congress has specifically provided otherwise.” Based on that holding, courts have applied Egan to other statutes unless specific statutory language demonstrates that Congress intended judicial review of security determinations. While the Fifth Circuit has not previously applied Egan to an FCA context, the court found no language in the FCA demonstrates that Congress intended to allow courts to review security-clearance determinations.

Johnson next argued that Egan does not apply because his case involved revocation of access to a classified government program rather than revocation of a security clearance. Raytheon responds that Egan applies both because Johnson’s security clearance was revoked and because, even if Johnson’s security clearance was not revoked, his removal from the program was the kind of security decision that Egan shields from review.

The court found Raytheon presented evidence that Johnson’s clearance was revoked. Johnson argued that the Navy revoked his access to a program, not his security clearance, but did not produce any evidence that he retained his security clearance after the Navy investigation. Thus, the court held that Egan applied, and turned to the question of whether that case deprived it of jurisdiction to hear the retaliation claim.

Johnson argued that he was not challenging the Navy’s determination to revoke his clearance, but rather the defendant’s assertion that it terminated him because of the Navy’s security findings, contending it is pretextual because Raytheon knew that Johnson had not actually committed any security violations.

Johnson argued that his case was distinguishable from other cases in which the plaintiff directly challenged the outcome of an agency’s security investigation as an adverse employment action. This distinction would allow the court to review his claim because he is challenging Raytheon’s proffered reason for his termination, not the Navy’s underlying security investigation.

The court agreed with Johnson’s reasoning, but disagreed with his conclusion. According to the court, a jury would be required to assess the legitimacy of the Navy’s investigation and security decision before it could determine whether Raytheon’s reason for Johnson’s termination was pretextual.

Further, as part of his requested relief, Johnson asked to be reinstated to his job, but this would require him to have his security clearance reinstated. Because there was no way to extricate Raytheon’s termination decision from the Navy’s decision about Johnson’s security clearance, the court found that Egan barred this examination and therefore it lacked jurisdiction to consider the termination-based claim. Accordingly, the court granted Raytheon’s motion to dismiss to this extent.

Next, Raytheon argued that even if the court had jurisdiction, Johnson failed to produce evidence to rebut its legitimate, nonretaliatory reason for firing him. The court agreed. As above, the court found that Johnson had not shown that his protected activity was known to the individual who made the decision to fire him. Instead, he relied on conclusory statements asserting that certain conversations must have occurred between the supervisors who knew about his protected activity and the employees who investigated him and made the decision to terminate his employment. The court found this insufficient. The court therefore concluded that Raytheon was entitled to summary judgment.

Next, the court considered Johnson’s retaliation claims based on Raytheon’s instructions not to speak with the Navy, Raytheon’s monitoring of Johnson, and Raytheon’s reporting of Johnson to the Navy.

Raytheon argued that Egan barred this examination, but Johnson noted that Egan did not bar complaints about false reports made to the government. The court found no Fifth Circuit case discussing the applicability of Egan to the initiation of a security clearance, but noted that several other courts have held that the circumstances leading to the instigation of a security clearance investigation are not reviewable.

The court noted that the case cited by the plaintiff held that Egan does not preclude review of security reports or referrals made with a retaliatory motive based on knowingly false information. However, Johnson had not produced evidence that the individuals responsible for monitoring his activities and reporting him to the Navy did so with knowing falsity.

Even assuming that someone at Raytheon falsely reported Johnson, the court noted that the Navy’s investigation ultimately concluded that Johnson had violated security rules. Therefore, questioning whether Raytheon falsely reported Johnson so that the Navy would initiate the investigation would be tantamount to questioning the ultimate conclusions, which under Egan, the court could not do. Therefore, the court found it lacked subject matter jurisdiction to review those actions.

Next, the court considered Raytheon’s motion for summary judgment on the retaliation claims that were not based on Johnson’s termination. Raytheon argued that Johnson had not shown that any pre-termination actions were materially adverse employment actions. The court agreed, finding no evidence that Raytheon’s monitoring of Johnson or its direction for Johnson not to speak to the Navy had any effect on his title, salary, benefits, or social standing.

The court acknowledged that, in some cases, an investigation may amount to actionable employer conduct, provided there are material consequences. However, the court found Johnson provided no evidence showing that Raytheon’s decision to report him to the Navy, by itself, had any negative impact on his employment. Rather, it was the Navy’s decision to rescind his security clearance, which the court could not review, that had this impact.

Further, the court found that a reasonable employee would have known, as Johnson did, that Raytheon was required under its Navy contract to report any suspected security violations to the Navy. In addition, Raytheon argued that Johnson produced no evidence showing that the individual who reported Johnson knew of his protected activity. Johnson disagreed, but the court found no such evidence.

To the extent that Raytheon’s monitoring of and reporting on Johnson initiated the Navy’s security investigation, the court held that it lacked subject matter jurisdiction to review these actions. Even if the court had jurisdiction, it could not conclude that Raytheon’s pre-termination actions were adverse.

Finally, Johnson moved the court for relief under Rule 56(d), to allow him time to obtain affidavits or declarations and to take discovery. Johnson stated that he needed to depose several people who had a retaliatory purpose and referred knowingly false information to the Navy or communicated with the individual who decided to terminate him employment.  Johnson argued that Raytheon refused to allow depositions of several of these individuals.

In response, Raytheon argued that the Johnson did not identify what specific facts he expected to learn from these specific witnesses or how this additional discovery would create a genuine issue of material fact. Raytheon also argued that Johnson had the opportunity to depose key witnesses, but never requested or noticed such depositions.

The court agreed that Johnson’s supplemental Rule 56(d) declaration did not cure the defects of his original, incorporated Rule 56(d) declaration. Johnson had not identified what specific facts he expected to learn from the witnesses he wished to depose. Further, Johnson did not support his claim that Raytheon denied him access to certain witnesses or provide evidence that he even attempted to obtain this discovery. Johnson also did not show how the discovery he already conducted was inadequate. Therefore, the court denied the request.