United States ex rel. Johnson v. Raytheon Co.

93 F.4th 776

UNITED STATES of America, EX REL; Dana JOHNSON, Relator, Plaintiff—Appellant, v. RAYTHEON COMPANY, Defendant—Appellee.

No. 21-11060

United States Court of Appeals, Fifth Circuit

FILED February 15, 2024

Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:17-CV-1098, Sidney A. Fitzwater, U.S. District Judge

Brian Paul Sanford (argued), Elizabeth J. Sanford, Brian P. Sanford, P.C., Dallas, TX, for Plaintiff-Appellant.

Charles Blanchard (argued), John Patrick Elwood, Arnold & Porter Kaye Scholer, L.L.P., Washington, DC, for Defendant-Appellee.

Before Stewart, Dennis, and Higginson, Circuit Judges.

James L. Dennis, Circuit Judge:

Plaintiff-Appellant Dana Johnson sued his former employer Defendant-Appellee Raytheon Co. under the False Claims Act, claiming retaliation for reporting fraudulent misrepresentations that Raytheon allegedly made to the Navy. The district court held it lacked subject-matter jurisdiction over all but one of Johnson's claims and granted summary judgment to Raytheon on the remaining claim. We conclude that the district court correctly held Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), bars review of Johnson's claims implicating the merits of the decision to revoke his security clearance and that Johnson failed to present a prima facie case of retaliation for the remaining claim we have jurisdiction to assess. Accordingly, we AFFIRM.

I. BACKGROUND

A. Facts

Defendant-Appellee Raytheon Co. is a government defense contractor. The U.S. Navy is one of Raytheon's customers. One of Raytheon's Navy projects is the Advanced Sensor Technology (AST) Program. The AST Program is a "Special Access Program," meaning Raytheon employees must have top-secret security clearance and be deemed mission critical to work on the Program. The federal government has full discretion to grant Raytheon employees security clearances and access to the Program. Raytheon's contract with the Navy includes security requirements, and Raytheon has security plans that are approved by the Navy. As part of its security plan, Raytheon monitors its employees' activities, including their computer and network use. Raytheon is required to report security concerns to the Navy.

Plaintiff-Appellant Dana Johnson worked for Raytheon for thirty years, most recently as a systems engineer on the AST Program. Johnson claims that he saw Raytheon make fraudulent misrepresentation to the Navy about the products and equipment that Raytheon was providing through the AST Program, and that he spoke up internally about the problems over a couple of years with a number of supervisors and managers, though he never utilized official channels either with Raytheon or the Navy to express his fraud concerns. Johnson claims he identified and spoke out about four different problems that arose during his employment.

First, Johnson encountered a problem with a "radar mode" in the Navy's planes, and Johnson informed manager Brian Cook. According to Johnson, he fixed the problem in the computer code, but Raytheon did not follow through with the necessary recalibration of the radar because it would have been expensive and time-consuming. Cook told Johnson to sign off on the project anyway. Johnson refused because that would have meant making a false representation to the Navy. Raytheon nevertheless told the Navy that there was no issue.

The second problem involved a faulty computer initialization or "booting" process caused by outdated software that would make radar programs crash. Johnson recommended using updated software to fix the problem, but no software upgrade occurred. Later, Johnson was told that Raytheon had informed the Navy that the problem was fixed, but Johnson knew this was false. He reported this issue to supervisors Mike Leddy and Steve Blazo, as well as to a test conductor named Rick Scoggins, among others. Sometime in 2013 or 2014, a member of the Raytheon security department, Mack Slater, twice told Johnson to stop talking to the Navy about problems.

The third problem involved equipment called oscilloscopes. According to Johnson, he discovered that the equipment was damaged and that Raytheon was hiding it from the Navy. He reported the issue to a manager and his supervisor and told them that hiding the status of the equipment was a violation of Raytheon's contract with the Navy.

The fourth problem involved the creation of a configuration guide for laptops. Johnson and other software engineers wrote a guide for use by the Navy and submitted it to Raytheon for approval. The guide was approved, but the final version did not include items that the software engineers deemed essential. Johnson told supervisor Rocky Carpenter about this problem. Johnson said that omission of certain information would lead to testing problems, but Raytheon told the Navy that the guide was approved by the engineers anyway.

According to Johnson, after he reported these concerns to managers and supervisors, Raytheon began to subject him to increased monitoring and allegedly fabricated a record of misconduct against him. According to Raytheon, computer auditing that it conducts as part of its contract with the Navy showed Johnson was taking unauthorized actions. Eventually, in January 2015, Raytheon's AST Program Security Officer, Lynne Sharp, reported Johnson to the Navy for suspected security violations. Raytheon claims the reporting was required by its Navy contract. Johnson claims this was an act of retaliation.

The Navy and the Naval Criminal Investigative Service (NCIS) began an investigation. They conducted forensic audits and eventually interviewed Johnson. Johnson states he did not initially realize that he was the target of an investigation, but instead believed that the Navy was investigating his concerns about Raytheon. Partway through the investigation, the Navy suspended Johnson's AST Program access on an interim basis after a co-worker told him he was the target. At the end of the investigation, in July 2015, the Navy found that Johnson had committed security violations and subsequently permanently revoked his access to the AST Program. Specifically, the Navy found that Johnson (1) downloaded and used an unauthorized software program called Wireshark (referred to as a "sniffer" or "analysis software") on a protected network and ran network scans more than 100 times, and (2) used a computer at Raytheon that was designated for Boeing work (not Navy work) without permission, and, in doing so, accessed information without authorization. The Navy instructed Sharp to inform the Department of Defense Central Adjudication Facility (DOD CAF)—the agency that manages security clearances relevant to this case—of the Navy's finding that Johnson committed security violations, and she states she did so. According to the NCIS, in September 2015, the DOD CAF revoked Johnson's top-secret security clearance.

After the Navy completed its investigation, Raytheon conducted its own disciplinary investigation based on the Navy's findings and terminated Johnson's employment. Sarah Humphrey, a member of Raytheon's Human Resources (HR) department, conducted the investigation, interviewed other employees, and provided a report to HR and Security Vice President Gary LaMonte. LaMonte made the final decision to terminate Johnson in October 2015. Johnson claims he was not provided with the findings of the investigations, told of the violations, or allowed to respond to the findings prior to being fired. While Johnson was interviewed as part of both investigations, he states that he was merely asked hypothetical questions and not given a chance to respond to anything specific. At the time of his termination, Johnson says he was qualified to work on other projects at Raytheon that did not require a security clearance but was fired after thirty years with the company instead of being transferred to another project.

B. Procedural History

Johnson filed a complaint in the United States District Court for the Northern District of Texas, which included both a qui tam action on behalf of the United States and a retaliation claim on his own behalf, both pursuant to the False Claims Act, 31 U.S.C. §§ 3729-33. The United States declined to intervene and moved to dismiss the qui tam claims. The district court granted the United States' motion and granted Johnson leave to amend his complaint to replead his retaliation claim. In his second amended complaint, Johnson claimed that he engaged in protected activity when he identified and spoke out about concealing issues from the Navy, and Raytheon retaliated against him in four different ways: (1) Raytheon, through Slater, instructed him not to report problems to the Navy; (2) Raytheon monitored him; (3) Raytheon made false accusations about him to the Navy; and (4) Raytheon fired him.

During the discovery process, the parties had difficulty with requests for production that involved allegedly classified documents or documents stored in classified computer systems that required Navy review. Discovery issues eventually resulted in an agreed-to order that established a process for Raytheon to file a motion to dismiss/motion for summary judgment:

• Raytheon would first file a "summary of the basis" for its motion to enable the parties to narrow the scope of discovery to what was needed to support and oppose the motion.

• Next, the parties would conduct discovery for approximately two months.

• Two weeks after discovery was completed, Raytheon would file its motion to dismiss/motion for summary judgment.

• Then, Johnson would have the choice of either responding to the motion or filing a Federal Rule of Civil Procedure 56(d) declaration identifying what additional discovery was needed to respond.

• Finally, after any Rule 56(d) issue was resolved, Johnson would respond to the motion and Raytheon would reply.

Raytheon timely submitted its summary, and then, after conducting discovery,...