The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Thomas O'Neill Morgan instituted this suit in September 2005, alleging that Science Applications International Co. ("SAIC") and SPARTA, Inc. ("SPARTA"), both federal contractors, violated the False Claims Act, 31 U.S.C. § 3728 et seq. ("FCA"). After years of impossibly slow investigation, the United States declined to intervene in June 2008. Although represented by counsel when the complaint was filed and throughout the investigation, Mr. Morgan has been proceeding pro se since September 2008, when prior counsel withdrew. He now has informed the Court that he has not located counsel since then and will no longer seek counsel. See Pl.'s Notice Advising Ct. of Status of Counsel [Dkt. # 50]. Because an individual cannot represent the United States pro se, and the Relator in an FCA case stands in the shoes of the federal government, the Court must dismiss Counts I-X and XII of the Complaint. As to Count XI, which alleges retaliation by both Defendants based on Mr. Morgan's whistleblower activity, SPARTA has filed a motion to dismiss for failure to state a claim, which Mr. Morgan opposes.
The Complaint does not allege that SPARTA was Mr. Morgan's employer or that SPARTA and SAIC were joint employers. The Court has re-read the 862-paragraph Complaint in its entirety, noting that it was prepared by counsel for Mr. Morgan, and could find very little that offers any support for a joint employer finding, which is what Mr. Morgan argues, in other terminology, in his Opposition. Because there was not an employer-employee relationship between Mr. Morgan and SPARTA, and because SPARTA cannot be sued by Mr. Morgan pro se on the FCA allegations, SPARTA's motion to dismiss will be granted.
As noted above, the Complaint is long and detailed, quite beyond notice-pleading requirements. The Court will summarize briefly the points that are relevant to disposition of the pending motion.
Thomas O'Neill Morgan is a former Senior Scientist at SAIC. He began work there on May 17, 2004 as a member of the Black Team providing support to the Missile Defense Agency, a component agency of the Department of Defense. Compl. ¶¶ 1-2, 64. SAIC employed Mr. Morgan to assist on federal contracts it maintained with the Missile Defense Agency. Id. ¶ 2. "Mr. Morgan was hired by SAIC to provide the government with budgetary and technical expertise based on his more than twenty years of post doctorate experience in missile defense." Id. ¶ 15. SPARTA also provided support to the Missile Defense Agency pursuant to federal contracts and often drew on the resources of SAIC to fulfill its obligations under its contracts. In this relationship, SPARTA was the prime contractor with the Missile Defense Agency and SAIC was the sub-contractor. Id. ¶ 57. Mr. Morgan was initially hired by SAIC to assist with two of these sub-contracts. Id. ¶ 53. He reported directly to SAIC's Area Manager, Bien Vu. Id. ¶ 58.
The Missile Defense Agency organizes technical expertise around several color-coded working groups and hires outside experts to staff these teams. Id. ¶ 16. The Black Team was organized to provide guidance regarding allocation of resources and determinations of how to handle problems in missile defense technology. Id. ¶ 17. Mr. Morgan was hired to serve as liaison between the Black Team and the Government. Id. ¶ 22. Over time, Mr. Morgan "discovered that SAIC and SPARTA supervisors were primarily concerned with securing business and using contract funds to benefit their companies, often at the expense of fulfilling the companies' obligations to the Government." Id. ¶ 23. The bulk of the Complaint consists of former counsel's efforts to detail these allegations.
The Complaint never alleges that SPARTA was Mr. Morgan's employer. It does allege that in July of 2004, Mr. Morgan met with Mr. Vu, Dennis Nihiser, the contracting authority for the Government, and Paul Krause, a SPARTA employee who acted as Mr. Nihiser's Deputy and Budget Manager. Id. ¶¶ 65, 68. Mr. Nihiser assigned the duties of Black Team Administrative Lead to Mr. Morgan. Id. ¶ 66.
After receiving his new assignment, Morgan met Vu and Krause to discuss the color-coded teams' budgets. Krause began the meeting by handing Vu a sheet of paper with his proposed budgets. . . . Krause indicated that Morgan was to use these estimates and prepare the budget submission, under Morgan's authority as the administrative lead.
Id. ¶¶ 72-73, 76. However, when Mr. Morgan prepared the budget as he believed it should be done, it was rejected twice and "Vu told Morgan to use the funds exactly as allocated by Krause." Id. ¶ 86.
Mr. Morgan also alleges that Mr. Vu assigned him tasks of working for SPARTA's benefit. See, e.g., id. ¶¶ 289-322. For example, Mr. Morgan contends that "SAIC allowed SPARTA to use Morgan's resume to help obtain a contract." Id. ¶ 325. David Beerman, SPARTA's Contract Manager, directed Mr. Morgan to prepare the resume and then included it with a list of qualified personnel SPARTA would use to perform on a government contract. Id. ¶¶ 326-27. In addition, Mr. Morgan alleges that SPARTA and SAIC personnel shared office space at 1911 N. Fort Meyer Drive in Arlington, Virginia, through a sublet of space by SAIC from SPARTA. Id. ¶¶ 348, 350.
After pages of detailed allegations that Mr. Morgan asserts show that SAIC knowingly and intentionally produced shoddy work on its contract with the Missile Defense Agency, he alleges that he "repeatedly complained to management both at SAIC and SPARTA, the prime contractor for SAIC relation[ship] with [the Missile Defense Agency], regarding the quality of the work performed. Nonetheless, SAIC continued to willfully and recklessly bill the [Missile Defense] Agency for work that it knew was not correct." Id. ¶¶ 730-31. When he discovered the Defendants' alleged fraudulent business practices, Mr. Morgan "began to openly question their commitment to ethical and legal standards." Id. ¶ 740. Aside from confronting Mr. Vu several times about these indiscretions, he also began to express his concerns to Mr. Beerman. Id. ¶ 741.
Then, in November of 2004, after numerous complaints by Mr. Morgan regarding the Defendants' business practices, Mr. Beerman and Mr. Vu removed Mr. Morgan from a Threat System Engineering project which was assigned to Mr. Morgan by the Missile Defense Agency National Team Chairman, Gordon Niva. Id. ¶ 742. Mr. Morgan complained to Messrs. Vu and Beerman, pleading that their actions were "unethical . . . because SAIC was withholding the services it had contracted with the [Missile Defense Agency] to provide." Id. ¶ 745. When Mr. Morgan confronted Mr. Beerman directly about his unethical actions which caused SAIC to provide "shoddy and substandard" work, Mr. Beerman told Mr. Morgan to keep that information "among our circle . . . [,] which Morgan interpreted at the time as meaning not to report it to the [Department of Defense] Inspector General, or anyone else who could take action." Id. ¶ 747. Despite this instruction, Mr. Morgan added a note to his weekly report that he had been removed from a government assigned activity "for reasons of SAIC billing." Id. ¶ 748. Upon reviewing the report, Mr. Vu directed Mr. Morgan to remove the statement. Id. ¶ 749.
Shortly before a meeting that Mr. Niva, the Missile Defense Agency National Team Chairman, had directed Mr. Morgan to attend, Mr. Beerman notified Mr. Niva that Mr. Morgan had been replaced but gave no reason. Id. ¶ 750. In response, Mr. Morgan sent an email to Mr. Beerman, "stating that SAIC's and SPARTA's assignments of his time amounted to fraud in managing its contract, and that SAIC was more interested in its employee bonus program than it was in providing the government with a legitimate service." Id. ¶ 754. According to the Complaint, Mr. Beerman showed the email to Mr. Vu and to Lee Phillips of SAIC. Id. ¶ 755. Lee Phillips then promptly called Mr. Morgan in for a meeting and ...