MEMORANDUM OPINION
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
When
Plaintiff-Relators alleged violations of the False Claims
Act, all claims but one were dismissed. Without counsel, they
now seek leave to amend their complaint pro se as Plaintiffs,
not Relators on behalf of the United States, and so avoid
final judgment. But the proposed amendment does not overcome
the legal deficiencies that resulted in dismissal of the
claim they seek to revive. Accordingly, the motion for leave
to amend is futile and will be denied.
I.
BACKGROUND
A.
Procedural History
On
November 11, 2017, Plaintiff-Relators Charles T. Hutchins and
Joyce Subhi filed their First Amended Complaint against
Defendants DynCorp International, Inc., and its wholly-owned
subsidiary, DynCorp International, LLC (collectively,
DynCorp), alleging violations of the False Claims Act (FCA),
31 U.S.C. § 3729 et seq. See Am.
Compl. (FAC) [Dkt. 24]. The facts of that case are recounted
in the Court's previous opinion, United States ex
rel. Hutchins v. DynCorp Int'l, Inc., 342 F.Supp.3d
32 (D.D.C. 2018), but broadly speaking Plaintiff-Relators
alleged fraud in DynCorp's performance of a contract to
provide logistics support to the United States Army in
Afghanistan under the Army's LOGCAP program. Most of
Plaintiff-Relators' claims were dismissed without
prejudice, including claims alleging both fraud and
retaliation; only Count 1(C), relating to allegedly
duplicative waste management vehicles, survived.
Plaintiff-Relators were given until December 31, 2018, to
move for leave to amend their complaint. See
12/11/2018 Minute Order.
Instead
of moving to amend, counsel for Plaintiff-Relators withdrew
from the case. See 1/8/2019 Order [Dkt. 56]
(granting leave to withdraw). As this Court has repeatedly
made clear to Plaintiffs, “[a] pro se plaintiff may not
represent the United States in a False Claims Act
action.” 6/21/2017 Order [Dkt. 14] at 1 (citing
United States ex rel. Rockefeller v. Westinghouse Elec.
Co., 274 F.Supp.2d 10, 16 (D.D.C. 2003)). The Court thus
granted Plaintiff-Relators six months to find replacement
counsel or risk dismissal of the case. See 1/8/2019
Order; 2/28/2019 Minute Order. Although Plaintiffs-Relators
have submitted a copy of their proposed Second Amended
Complaint, see 3/6/2019 Order (denying leave to
file), they have been unable to find counsel to file it for
them.
Appearing
now as Plaintiffs, the former Plaintiff-Relators ask the
Court for leave to amend and proceed pro se on only their
claims for retaliation. Although Plaintiffs acknowledge that
they may not litigate alleged fraud on behalf of the United
States without counsel, they argue that the retaliation
claims belong to them in their individual capacities.
See Mot. to Appear Pro Se in 31 U.S.C. 3730(h)
Wrongful Termination/Retaliatory Discharge Actions (Mot.)
[Dkt. 63]. For its part, DynCorp concedes that Plaintiffs may
bring retaliation claims on their own behalves but argues
that the Court has already dismissed those retaliation claims
and that Plaintiffs do not explain how further litigation
might change that outcome. See Defs.' Opp'n
to Pl./Relators' Mot. to Appear Pro Se [Dkt. 66].
Accordingly, although the Court previously rejected
Plaintiffs' attempt to file their Second Amended
Complaint pro se, the Court now reconsiders that proposed
amendment in light of Plaintiffs' motion to file pro se
an amended complaint with respect only to the retaliation
claims.[1]
B.
Factual Allegations
Although
many of the details regarding the fraud claims are discussed
in the Court's previous opinion, see Hutchins,
342 F.Supp.3d at 36-45, a brief recap of the retaliation
claims and their disposition is in order.
Plaintiffs
both had the title of “subcontracts senior
managers” at DynCorp and were in charge of
administering subcontracts as part of DynCorp's
performance under the Army's LOGCAP IV contract. Mr.
Hutchins alleged that he was terminated after investigating,
at the direction of his superiors, whether certain buses
failed to satisfy the Army's requirements and were billed
erroneously. See FAC ¶¶ 272-78. Ms. Subhi
alleged that she was fired for complaining about improper
medical care, improper medical billing, and the hiring of
unqualified subcontractors. Id. ¶¶ 279-84.
When
discussing the merits of their fraud claims, Plaintiffs
argued that they were “in unusual positions as
relators” because they were “experts in the areas
about which they complain and worked.” Opp'n to
Mot. to Dismiss of DynCorp Defs. (Pls.' Opp'n) [Dkt.
42] at 3. Specifically, in their First Amended Complaint,
Plaintiffs alleged that as subcontracts senior managers they
were responsible for ensuring “that DynCorp
International complies with contract requirements so that
DynCorp International [could] represent to the United States
that it is in compliance with the United States'
regulatory and contractual requirements, ” FAC ¶
13, and that they “reviewed information and documents
provided to assure compliance with contractual and regulatory
requirements, which was required for payment by the United
States.” Id. ¶ 14; see also
Pls.' Opp'n at 3 (“Hutchins and Subhi's job
responsibilities with DynCorp included (a) review of
DynCorp's performance under the Prime Contract . . .
.”).
On that
basis, DynCorp argued that Plaintiffs had merely been acting
within their “normal job responsibilities” when
they complained internally about DynCorp's practices and
thus failed to provide DynCorp with notice that they were
engaged in protected activity. Put another way, DynCorp
argued that it lacked the scienter necessary to retaliate.
Defs.' Mot. to Dismiss [Dkt. 38-1] at 38. Plaintiffs
responded merely that “[t]here is nothing to
demonstrate that either Hutchins or Subhi were ‘simply
performing his [or her] ordinary activities' by reporting
the alleged false or fraudulent conduct, ” Pls.'
Opp'n at 33, without further explanation.
The
Court determined that Plaintiffs' alleged investigations
fell “squarely within [their] job description” as
subcontracts senior managers and that Plaintiffs failed to
“give DynCorp notice that [they were] otherwise
engaging in protected activity.” Hutchins, 342
F.Supp.3d at 60 (citing United States ex rel. Williams v.
Martin-Baker Aircraft Co., 389 F.3d 1251, 1261 (D.C.
Cir. 2004)). That is, when Plaintiffs discovered the alleged
fraud, they did not describe the activities as fraudulent in
reporting to their superiors; they did not advise DynCorp to
seek legal counsel; they did not step outside the usual chain
of command to express their concerns; and they did not warn
the Army of the alleged fraud until after they had been
terminated. Id. at 60-61.
Plaintiffs'
proposed Second Amended Complaint now attempts to narrow the
scope of their duties as subcontracts senior managers to show
that their investigations did not fall within their job
descriptions and therefore provided notice to DynCorp that
they were engaging in protected activity. Plaintiffs
emphasize that they managed only subcontracts and
“had no responsibilities or duties related to
monitoring, enforcing, coordinating, invoicing or compliance
activities connected with the Prime Contract, ”
Proposed Second Am. Compl. (SAC) [Dkt. 61] ¶ 17; that
they “were not hired to investigate fraud or
over-billing or any other form of crime, ” id.
¶ 123; and that they “did not communicate or
otherwise interface with the U.S. Army's Contracting
Officer . . . or any other U.S. Government or U.S. Army
officials, ” and further were “prohibited from
such contacts . . . to ensure that DynCorp was speaking with
one voice to the U.S. Government.” Id. ¶
17. That said, Mr. Hutchins still alleges that as part of his
duties he “reviewed information and documents provided
to assure subcontractors' compliance ...