Hutchins v. DynCorp, Int'l, Inc.

CHARLES HUTCHINS AND JOYCE SUBHI, Plaintiffs, v. DYNCORP, INTERNATIONAL, INC., et al., Defendants.

Civil Action No. 15-355 (RMC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

December 9, 2019

MEMORANDUM OPINION

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. SeeDefs.' 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 theirconcerns; 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 US Army's Contracting Officer . . . or any other US Government or US Army officials," and further were "prohibited from such contacts . . . to ensure that DynCorp was speaking with one voice to the US 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 with the executed subcontract, which was required for payment by the United States to subcontracts." Id. ¶ 12. Ms. Subhi alleges that she "closely advised DynCorp International personnel on legal requirements, client contract requirements and government regulations." Id. ¶ 16.

Plaintiffs' proposed Second Amended Complaint also expands on their conduct that allegedly gave notice. Mr. Hutchins highlights one specific instance: With regard to the allegedly duplicative waste management vehicles, Mr. Hutchins states that he "knew the United States would not knowingly pay for subcontractors to remove waste and delivery water while simultaneously paying DynCorp to have waste management and water delivery vehicles sitting on each camp." Id. ¶ 59. Mr. Hutchins asked Project Controls Manager Tonya Coffey how theextra vehicles were being billed. Ms. Coffey did not know and so asked DynCorp's Project Controls and Accounting & Finance offices. She later reported to Mr. Hutchins that the extra vehicles were being charged as a generic equipment line item. Id. Mr. Hutchins argues that his question to Ms. Coffey, which was then forwarded to Project Control and Accounting & Finance offices, put DynCorp on notice that he was engaged in protected conduct. Id.

Ms. Subhi highlights two specific instances by which she alleges that she gave notice of engaging in protected activity. First, also with regard to the allegedly duplicative waste management vehicles, Ms. Subhi states that she "attended a staff meeting" where "the topic was raised about continued invoicing of the waste management and water delivery vehicles under the generic equipment line category." Id. ¶ 60. At that meeting, "Project Management stated that these waste management . . . vehicles would continue to be invoiced under the generic equipment line item." Id. Ms. Subhi alleges that (unspecified) questions she and others asked about this practice put DynCorp on notice that she was engaged in protected conduct. Id.

Second, Ms. Subhi alleges that, while managing the OHS...