United States District Court, District of Columbia
N. McFADDEN, U.S.D.J
Robyn Slack lost her job at the Washington Metropolitan Area
Transit Authority, or WMATA, after refusing to act as the
sole point of contact for a procurement contract, which she
believed would have violated the law. She sued WMATA for
unlawful retaliation and her supervisor, Judy Mewborn, for
defamation. WMATA has moved to dismiss two of Ms. Slack's
retaliation claims, which arise under the False Claims Act
and the District of Columbia Whistleblower Protection
Because sovereign immunity bars these claims, WMATA's
Motion to Dismiss Counts I and III of the Complaint will be
courts are courts of limited jurisdiction” and so
“possess only that power authorized by Constitution and
statute.” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). So a federal court must
satisfy itself that it has jurisdiction over a claim before
proceeding to the merits and must dismiss any action over
which it determines that it lacks jurisdiction. Moms
Against Mercury v. FDA, 483 F.3d 824, 826 (D.C. Cir.
2007); see also Fed. R. Civ. P. 12(h)(3). On a
motion to dismiss for lack of jurisdiction under Federal Rule
of Civil Procedure 12(b)(1), the plaintiff bears the burden
of establishing jurisdiction. Georgiades v.
Martin-Trigona, 729 F.2d 831, 833 n.4 (D.C. Cir. 1984).
A plaintiff may rely on facts outside the pleadings to
satisfy this burden, as “the court may consider the
complaint supplemented by undisputed facts evidenced in the
record, or the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts.”
Herbert v. Nat'l Acad. of Scis., 974 F.2d 192,
197 (D.C. Cir. 1992).
Eleventh Amendment generally prohibits a federal court from
exercising jurisdiction over claims against a state. U.S.
Const. amend. XI (“The Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.”); see also Bd. of
Trs. of the Univ. of. Ala. v. Garrett, 531 U.S. 356, 363
(2001) (“Although by its terms the Amendment applies
only to suits against a State by citizens of another State,
our cases have extended the Amendment's applicability to
suits by citizens against their own States.”). As Ms.
Slack appears to concede, when Virginia, Maryland, and the
District of Columbia created WMATA, they conferred their
sovereign immunity upon it. Morris v. WMATA, 781
F.2d 218, 219-220 (D.C. Cir. 1986).
there are two primary exceptions to WMATA's Eleventh
Amendment immunity. Barbour v. WMATA, 374 F.3d 1161,
1163 (D.C. Cir. 2004). First, Congress may limit Eleventh
Amendment immunity by statute if it “unequivocally
expresse[s] its intent to abrogate that immunity” and
acts within its constitutional authority. Kimel v. Fla.
Bd. of Regents, 528 U.S. 62, 73 (2000). Second, a state
may voluntarily waive its immunity by making a “clear
declaration” that it intends to submit itself to a
federal court's jurisdiction. Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,
675-76 (1999). So the question that the Motion to Dismiss
presents is whether Ms. Slack has shown an abrogation or
waiver of WMATA's sovereign immunity from suit under the
False Claims Act, or FCA, and under the District of Columbia
Whistleblower Protection Act, or DCWPA.
The FCA Does Not Abrogate Eleventh Amendment
III of Ms. Slack's Complaint alleges whistleblower
retaliation in violation of the FCA and can proceed only if
Ms. Slack shows that the FCA applies to WMATA. As noted
above, Congress can only abrogate Eleventh Amendment immunity
if it “unequivocally expresse[s] its intent to abrogate
that immunity” and acts within its constitutional
authority. Kimel, 528 U.S. at 73. Because
“abrogation of sovereign immunity upsets the
fundamental constitutional balance between the Federal
Government and the States, ” courts apply a
“stringent” test to claims of abrogation,
requiring that Congress make its intention
“unmistakably clear in the language of the
statute.” Dellmuth v. Muth, 491 U.S. 223,
227-28 (1989). A statute could satisfy this test by providing
that the states “shall not be immune under the Eleventh
Amendment of the Constitution of the United States from suit
in Federal court for a violation.” See Id. at
229-30. But even a statute that anticipates suits against
states and provides for suit in federal courts fails to
satisfy this test if it “makes no reference whatsoever
to either the Eleventh Amendment or the States' sovereign
immunity.” See Id. at 231-32.
FCA's whistleblower retaliation provision provides:
Any employee, contractor, or agent shall be entitled to all
relief necessary to make that employee, contractor, or agent
whole, if that employee, contractor, or agent is discharged,
demoted, suspended, threatened, harassed, or in any other
manner discriminated against in the terms and conditions of
employment because of lawful acts done by the employee,
contractor, agent or associated others in furtherance of an
action under this section or other efforts to stop [one] or
more violations of this subchapter.
31 U.S.C. § 3730(h). Ms. Slack argues that this
provision abrogates Eleventh Amendment immunity by
authorizing lawsuits against employers that retaliate against
whistleblowers without excluding employers that are state
governmental entities. Opp. to Mot. Dismiss
6-12. But WMATA challenges this view on two
WMATA argues that the FCA authorizes a lawsuit only against a
legal person, which excludes any state agency. Memo. ISO Mot.
Dismiss 6-8; Reply ISO Mot. Dismiss 8. According to WMATA,
the Supreme Court has already decided this question by
holding that state agencies are not persons liable to suit
under the FCA's qui tam provision. See Vt.
Agency of Nat. Res. v. United States ex rel. Stevens,
529 U.S. 765, 787 (2000). But the FCA has other provisions
authorizing other types of lawsuits. Indeed, Stevens
noted that another provision of the FCA that enables the
Attorney General to issue civil investigative demands
explicitly includes states within its ambit. See Id.
at 783-84. Unlike the text of the qui tam provision,
nothing in the text of the whistleblower provision at issue
here limits liability to legal persons. Compare 31
U.S.C. § 3730(b)(1) (authorizing qui tam
lawsuits for violations of 31 U.S.C. § 3729, which
establishes the liability of “any person” who
performs a listed act) with 31 U.S.C. § 3730(h)
(authorizing lawsuits for whistleblower retaliation without
specifying who may be liable). WMATA's interpretation of
the FCA lacks textual support and is at least in tension with
the only interpretation of the whistleblower provision by a
federal court of appeals that the parties have cited. See
Wilkins v. St. Louis Hous. Auth., 314 F.3d 927, 931-32
(8th Cir. 2002) (holding that FCA's whistleblower
provision applied to public employer).
WMATA argues that, even if the FCA could apply to the states,
it does not unequivocally express an intent to abrogate
sovereign immunity. Reply ISO Mot. Dismiss at 9-11. WMATA is
on the right track here. The FCA's whistleblower
retaliation provision does not reference the states'
sovereign immunity under the Eleventh Amendment. 31 U.S.C.
§ 3730(h); see also United States v. Tex. Tech.
Univ., 171 F.3d 279, 295 (5th Cir. 1999) (holding that
the Eleventh Amendment bars FCA whistleblower retaliation
claim against public university); United States ex rel.
King v. Univ. of Tex. Health Sci. Ctr.-Houston, 907
F.Supp.2d 846, 856 (S.D. Tex. 2012) (holding that the
FCA's whistleblower retaliation provision “does not
include a clear statement stripping state sovereign
immunity”); United ...