United States ex rel. Johnson v. Raytheon Co.

563 F.Supp.3d 599

UNITED STATES of America, EX REL. Dana JOHNSON, Plaintiff-Relator,

v.RAYTHEON COMPANY, Defendant.

Civil Action No. 3:17-CV-1098-D

United States District Court, N.D. Texas, Dallas Division.

Signed September 21, 2021

Filed September 24, 2021

Brian P. Sanford, David Bryan Norris, Elizabeth Jane Sanford, The Sanford Firm, Dallas, TX, for Plaintiff-Relator Dana Johnson.

Clayton Ray Mahaffey, United States Attorney's Office, Fort Worth, TX, for Plaintiff-Relator United States of America.

Matthew D. Orwig, Winston & Strawn, C. Shawn Cleveland, Baker & Hostetler LLP, Dallas, TX, Amy Jeffress, Pro Hac Vice, Charles A. Blanchard, Pro Hac Vice, Arnold & Porter, Washington, DC, Robine Kirsty Morrison Grant, Winston & Strawn LLP, Houston, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, SENIOR JUDGE

Plaintiff-relator Dana Johnson ("Johnson") sues defendant Raytheon Company ("Raytheon"), alleging that it retaliated against him for engaging in protected activities, in violation of the antiretaliation provision of the False Claims Act ("FCA"), 31 U.S.C. § 3730(h)(1). Raytheon moves to dismiss and/or for summary judgment. Johnson opposes the motion and requests relief under Fed. R. Civ. P. 56(d). For the reasons that follow, the court grants in part Raytheon's motion to dismiss, grants Raytheon's motion for summary judgment, denies Johnson's request for relief under Rule 56(d), and enters judgment in favor of Raytheon by judgment filed today.

I

Because the court has addressed the background facts and procedural history of this case in two prior memorandum opinions and orders, United States ex rel. Johnson v. Raytheon Co. , 2019 WL 6914967, at *1 (N.D. Tex. Dec. 19, 2019) (Fitzwater, J.); United States ex rel. Johnson v. Raytheon Co. (Johnson I ), 395 F.Supp.3d 791, 793 (N.D. Tex. 2019) (Fitzwater, J.), it will recount them only as necessary to understand this memorandum opinion and order.

Johnson was a systems engineer aircraft test conductor for Raytheon, a defense contractor with the United States Navy ("Navy").¹ Johnson worked on a Navy Special Access Program ("Program") that required that Raytheon employees have top secret clearances and be mission critical to the Program. The government has sole discretion in determining who is granted top secret clearance and who has access to the Program. Raytheon terminated Johnson's employment in October 2015 following a Navy investigation that resulted in Johnson's losing his security clearance.

Johnson alleges in his second amended complaint that, starting a few years before he was terminated, he became aware that Raytheon was not performing according to its contract with the Navy and had made false claims for payment related to four items. In the first matter, Johnson informed Brian Cook ("Cook"), a software manager at Raytheon, that a radar mode was malfunctioning due to a software problem. Johnson fixed the software issue, but the radar modes needed to be recalibrated in order to function. Cook told Johnson to sign off on the project anyway, and, when Johnson refused because this would involve making a false statement to the Navy, Cook told Johnson that he was going to collect payment from the Navy under the contract in any case.

During the second matter, which also began a few years before Johnson's termination, Johnson told his then-supervisors, Mike Leddy ("Leddy") and Steve Blazo ("Blazo"), that there was a software problem with the radar system initialization. Johnson suggested to Leddy, Blazo, and his other supervisor, Rocky Carpenter ("Carpenter"), that using a newer version of the software would fix the problem. They told Johnson that the software update would occur in the next few months. About six months before his termination, Johnson discovered that the problem had not been corrected, and he reported this to a Navy flight crew, another test conductor named Rick Scoggins ("Scoggins"), his supervisors, and others. Scoggins angrily told Johnson to be quiet and stop talking to the Navy about the problem. Mark Slater ("Slater"), a member of Raytheon's security department, also instructed Johnson not to talk with the Navy when something was not working properly.

Around the same time that Slater instructed Johnson not to talk to the Navy, Johnson discovered that test equipment purchased by the Navy for Raytheon's use had been damaged and hidden by Raytheon security. Johnson reported this issue to his supervisor and Raytheon's lab managers. He also informed them that their failure to use the equipment violated Raytheon's contract with the Navy.

Johnson then discovered that Raytheon's security department had removed a section of a configuration guide that Johnson had written in order to set up new laptops purchased by the Navy. Johnson informed Carpenter that a section of the guide was missing. Carpenter instructed Johnson to configure the laptops based on his previously submitted instructions, which included the omitted section. Although Johnson was able to complete the configurations, the omission would cause problems for flight test conductors in the field. Raytheon did not report these issues to the Navy, and collected payment under its contract.

Sometime in late 2014, Raytheon began investigating Johnson for possible security violations. According to Raytheon, regular computer auditing that it conducted under its contract requirements with the Navy revealed that Johnson appeared to be taking actions that the Navy had not approved. Johnson maintains that Raytheon knew that he was not violating any security policies and that Raytheon's decision to report him to the Navy was in retaliation for his investigation of Raytheon's false claims for payment.

In January 2015 Lynne Sharp ("Sharp"), Raytheon's Contractor Program Security Officer, reported her concerns about Johnson's activities to the Navy, as required under Raytheon's contract with the Navy. The Navy alerted the Naval Criminal Investigative Service ("NCIS"), and the Navy and NCIS made the joint determination to investigate Johnson. When Johnson became aware of the investigation, the Navy revoked his access to the Program. The Navy investigated Johnson's activities, and, at the conclusion of the investigation, issued multiple security violations, including for "[u]nauthorized access of need-to-know data" and "[i]ntroduc[ing] network analyzers ... without advanced approval." D. App. at 14-15. The Navy did not restore Johnson's access to the Program, and Raytheon maintains that Johnson's security clearance was revoked in September 2015.

After receiving the Navy's determination that Johnson had committed multiple security violations, Sarah Humphrey ("Humphrey"), a member of Raytheon's Human Resources department, conducted a disciplinary investigation. At the conclusion of the investigation, Humphrey provided a report to Raytheon's Human Resources and Security Vice President, Gary LaMonte ("LaMonte"). The report detailed the Navy's findings from its investigation and concluded that Johnson had violated Raytheon's Rules and Regulations. LaMonte terminated Johnson on October 12, 2015.

Following the court's decision in Johnson I and the filing of Johnson's second amended complaint, his action against Raytheon has narrowed to the following retaliation claim: in response to his engaging in protected activities concerning the two software problems, the damaged test equipment, and the laptop configuration error, Raytheon retaliated against him in four ways: (1) Raytheon responded with hostility to his reports about the problems and told him not to talk to the Navy; (2) Raytheon increased its monitoring of Johnson; (3) Raytheon made false reports about Johnson to the Navy; and (4) Raytheon terminated Johnson's employment.

In the instant litigation, to address the concerns of Raytheon and the Navy about producing voluminous discovery about classified government information and Johnson's need for discovery to oppose summary judgment, and to avoid a potentially protracted Touhy² process by the Navy, the court on November 18, 2020 entered an agreed order ("Agreed Order") governing Raytheon's motion for summary judgment and related discovery. Pursuant to the Agreed Order, Raytheon filed a preview of its summary judgment grounds on December 2, 2020; the parties completed discovery related to the summary judgment motion by February 1, 2021; Raytheon filed its summary judgment motion on February 16, 2021; and Johnson filed a Rule 56(d) declaration on March 19, 2021. The court on May 7, 2021 denied Johnson's Rule 56(d) request without prejudice, but allowed Johnson to include a supplemental Rule 56(d) declaration in his response to Raytheon's summary judgment motion. Johnson has responded to Raytheon's motion to dismiss and/or for summary judgment and has supplemented his Rule 56(d) request for relief. The court has heard oral argument on the parties’ motions and request.

II

Raytheon moves under Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction Johnson's claim that Raytheon retaliated by monitoring, reporting, and terminating him. "Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims." Stockman v. Fed. Election Comm'n , 138 F.3d 144, 151 (5th Cir. 1998). "The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist." Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001) (citations omitted).

Raytheon also moves for summary judgment as to Johnson's retaliation claim, on which Johnson will bear the burden of proof at trial. Raytheon can meet its summary judgment obligation by pointing the court to the absence of admissible evidence to support Johnson's claim. See Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once Raytheon does so, Johnson must...