Javery et al v. Lockheed Martin CorporationRESPONSE/MEMORANDUM in OppositionE.D. La.July 31, 20181 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MARK JAVERY AND * CIVIL ACTION NO. 17-5106 BRIAN DEJAN * * VERSUS * SECTION A(1) * LOCKHEED MARTIN * JUDGE JAY C. ZAINEY CORPORATION * * MAGISTRATE JUDGE * JANIS VAN MEERVELD * PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON RES JUDICATA GROUNDS MAY IT PLEASE THE COURT: The Plaintiffs, Mark Javery and Brian Dejan, through undersigned counsel, respectfully submit the following Memorandum in Opposition to Defendant’s Motion for Summary Judgment on Res Judicata Grounds. For the following reasons, the Plaintiffs respectfully submit that the Defendant’s motion1 should be denied. I. FACTUAL BACKGROUND Plaintiff Mark Javery was employed by the Defendant, Lockheed-Martin Corporation (“Lockheed”) for almost seventeen (17) years until his termination on May 20, 2014.2 Plaintiff Brian Dejan was employed by Camgian Microsystems, Inc. (“Camgian”), a Lockheed subcontractor, directly under the supervision of Javery, until Dejan’s termination, at the direction of the Defendant, on May 21, 2014.3 The Plaintiffs bring this suit under the retaliation provisions of the False Claims Act, 31 U.S.C. § 3730(h), alleging that the Defendant terminated their 1 Doc. 38. 2 Ex. A. 3 Ex. B. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 1 of 25 2 employment in retaliation for reporting potentially fraudulent cost mischarging by the Defendant, on a government contract, to: (i) National Aeronautics and Space Administration (“NASA”) officials Reginald “Chip” Ellis and Timothy White; and (ii) Lockheed-Martin officer Terrance Burrell. Plaintiff Javery filed a pro se lawsuit against the Defendant on November 19, 2014, in the action titled Javery v. Lockheed Martin Corporation, Civil Action No. 14-2644 (E.D. La. 2014) (“Javery I”).4 Mr. Javery asserted the following claims in Javery I: (i) Race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); (ii) retaliation under Title VII; (iii) the “Federal Whistle Blower Protection Act”; (iv) the Louisiana Whistle Blower Protection Act, La. R.S. 23:967; (v) the Louisiana Employment Discrimination Law, La. R.S. 23:301 et seq. (“LEDL”); and (vi) defamation under Louisiana law. Plaintiff Dejan filed a pro se lawsuit against the Defendant as well as Camgian on November 26, 2014, in the action titled Dejan v. Lockheed Martin Corporation and Camgian Microsystems Corporation, Civil Action No. 14-2731 (E.D. La. 2014) (“Dejan I”).5 Mr. Dejan asserted the following claims in Dejan I: (i) race discrimination under Title VII; (ii) the “Federal Whistle Blower Protection Act”; (iii) the Louisiana Whistle Blower Protection Act, La. R.S. 23:967; (iv) discrimination under the LEDL; and (v) “illegal interference with and under a federal contract.” The federal whistleblower statute under which the Plaintiffs brought their prior suits was 10 U.S.C. § 2409. However, the Plaintiffs did not cite this statute by title and section number, referring to it simply as the “Federal Whistle Blower Protection Act.” Consequently, the 4 Javery I, Doc. 1. 5 Dejan I, Doc. 1. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 2 of 25 3 Defendant erroneously (yet understandably) interpreted this claim as referring to a separate whistleblower provision, 5 U.S.C. §§ 1201, et seq.6 Both Plaintiffs filed anonymous whistleblower complaints with the NASA Office of Inspector General (“OIG”) on July 3, 2014, alleging that they were terminated in retaliation for making protected disclosures to Ellis, White, and Burrel.7 On November 4, 2014, Plaintiff Dejan filed an official whistleblower complaint with the NASA Office of Inspector General (“OIG”) under 10 U.S.C. § 2409, alleging same.8 On December 3, 2014, Plaintiff Javery filed an official complaint with the NASA OIG alleging same.9 On February 6, 2015, attorney Margaret Hammond Jackson enrolled as counsel for Plaintiff Javery.10 On March 24, 2015, Ms. Jackson enrolled as counsel for Plaintiff Dejan.11 Thereafter, at the advice of their counsel, the Plaintiffs decided not to pursue the following claims for the following reasons: 1. All of the Plaintiffs’ claims under the LWBP and the LEDL, on the basis that the conduct in question occurred outside of Louisiana, making those laws inapplicable; 2. Both Plaintiffs’ claims under the federal whistle blower statute, on the basis that these claims were pending administrative review; 3. Plaintiff Javery’s Title VII retaliation claim, on the basis that Mr. Javery did not engage in activity protected by Title VII; and 4. Plaintiff Dejan’s claim for interference with a federal contract, as Mr. Dejan was not a party to a federal contract.12 6 Javery I Doc. 21-1 at 5; Dejan I Doc. 24-1 at 3. 7 Ex. E; Ex. F; See also Ex. D at 29-30. 8 Ex. C at 9. 9 Id. 10 Javery I, Docs. 6, 7. 11 Dejan I, Doc. 11. 12 Ex. E; Ex. F. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 3 of 25 4 Accordingly, the Plaintiffs did not oppose the dismissal of these claims when the Defendant filed motions for judgment on the pleadings13 in both cases. In response to these motions, the Plaintiffs agreed to dismiss all of the above-listed claims (with the exception of the federal whisteblower claims) with prejudice, expressly stating that the claims were “not at issue in this litigation.”14 The Plaintiffs agreed to dismiss the federal whistleblower claims without prejudice, on the basis that the claims were being reviewed in connection with an administrative proceeding.15 The Plaintiffs also clarified, in these responses, that they did not assert claims under 5 U.S.C. § 1201 but rather under 10 U.S.C. § 2409.16 This Honorable Court granted the Defedants’ motions in both cases.17 The only claims that the Plaintiffs pursued were: (i) both Plaintiffs’ race discrimination claims; and (ii) Plaintiff Javery’s defamation claim. These remaining claims were dismissed by summary judgment on March 23, 2016,18 April 26, 2016,19 and January 29, 2018.20 The Plaintiffs filed the instant suit on May 19, 2017. II. SUMMARY JUDGMENT STANDARDS In considering a motion for summary judgment, “[t]he court must draw all reasonable inferences in favor of the non-movant and may not make credibility determinations. . .” Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 874 (5th Cir.2013); Reeves v. Sanderson Plumbing Co., 530 U.S. 133 (U.S. 2000). That is, the court should give credence to the evidence favoring the non-movant as well as the “evidence supporting the moving party that is 13 Javery I, Doc. 21; Dejan I, Doc. 24. 14 Javery I, Doc. 26 at 1; Dejan I, Doc. 32 at 1. 15 Javery I, Doc. 26 at 3; Dejan I, Doc. 32 at 3. 16 Id. 17 Javery I, Doc. 62; Dejan I, Doc. 41. 18 Dejan I, Doc. 59. 19 Javery I, Doc. 67. 20 Javery I, Doc. 179. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 4 of 25 5 uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” Reeves, 530 U.S. at 151. On a motion for summary judgment, the evidence should be viewed in the light most favorable to the non-movant. See Am. Home Assurance Co. v. U. S. Alliance, 378 F.3d 482, 486 (5th Cir. 2004). A “district court cannot . . . weigh the evidence when deciding a summary judgment motion.” EEOC v. Chevron-Phillips Co., 570 F.3d 606 (5th Cir. 2009) and Harvill v. Westward Commun., L.L.C., 433 F.3d 428, 436 (5th Cir. 2005). In Hunt v. Cromatrie, 526 U.S. 541 (1999), the United States Supreme Court held at 552- 53: “[S]ummary judgment […] is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact.” In Tolan v. Cotton, 134 S.Ct. 1861, 1867-68 (2014), the United States Supreme Court reiterated the importance of traditional summary judgment standards: Considered together, these facts lead to the inescapable conclusion that the court below credited the evidence of the party seeking summary judgment and failed properly to acknowledge key evidence offered by the party opposing that motion.… we intervene here because the opinion below reflects a clear misapprehension of summary judgment standards in light of our precedents.... The witnesses on both sides come to this case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system. By weighing the evidence and reaching factual inferences contrary to Tolan’s competent evidence, the court below neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party. (internal citations omitted.) The Fifth Circuit has recently emphasized the importance of Tolan in Porter v. Houma Terrebonne Housing Authority Bd. of Comm'rs, 810 F.3d 940, 942 (5th Cir.2015). III. THE LAW OF RES JUDICATA Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 5 of 25 6 The “general rule” of the doctrine of res judicata “is that a final judgment is conclusive on the parties as to all questions of fact and law relevant to the same cause of action which were or could have been litigated in the prior proceeding.” Dore v. Kleppe, 522 F.2d 1369, 1374 (5th Cir.1975). “If a party can only win the suit by convincing the court that the prior judgment was in error, the second suit is barred.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.2005), citing New York Life Insur. Co. v. Gillispie, 203 F.3d 384, 387 (5th Cir.2000). “The doctrine of res judicata contemplates, at a minimum, that courts be not required to adjudicate, nor defendants to address, successive actions arising out of the same transaction, asserting breach of the same duty.” Steve D. Thompson Trucking, Inc. v. Dorsey Trailers, Inc., 870 F.2d 1044, 1045–46 (5th Cir.1989), quoting Nilsen v. City of Moss Point, Miss, 701 F.2d 556, 563 (5th Cir. 1983). The elements of res judicata are as follows: “(1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions.” Id. Each of these elements must be present for a judgment to have preclusive effect. Conversely, if “different issues are presented” or if “the judicial determination was a preliminary ruling that does not count as an adjudication on the merits,” then “there is no preclusion.” 18 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4475 (3d ed. 2018) (“Wright & Miller”). “[R]es judicata is a principle of public policy and should be applied so as to give rather than deny justice.” Dore, 522 F.2d at 1374, quoting 56 Harv.L.Rev. 1, 29 (1942). “[M]any of the abstract rules must be informed by a wise sense of real-world affairs and a healthy skepticism Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 6 of 25 7 about the capacities of any single litigation to settle relationships beyond the immediate dispute.” Wright & Miller, supra. at § 4401. While the Defendant urges this Honorable Court to apply the broadest conceivable interpretation of the doctrine of res judicata, the Plaintiff respectfully submits that the proper application of the doctrine, which is expressed in general rules, involves a highly fact-specific inquiry. The crux of the Defendant’s argument is summarized in the following statement: “Plaintiffs testified at their depositions in this matter that the facts supporting their whistleblower claims in the FCA Lawsuit are the same facts that supported their earlier whistleblower claims in the Javery Lawsuit and in the DeJan Lawsuit”21 (emphasis supplied). However, as will be demonstrated below, all of the prior whistleblower claims, which were brought by the Plaintiffs proceeding pro se, were voluntarily dismissed early on in the prior proceedings, and none were terminated by a final judgment on the merits. The Plaintiff respectfully submits that, for the reasons discussed below, their present claims under 31 U.S.C. § 3730(h) are not barred by any of the claims asserted in their prior lawsuits. IV. THE FIRST ELEMENT – IDENTITY OF THE PARTIES The first element, which requires identity of the parties, is essentially not in dispute. Each party to the current action was a party to at least one of the two prior actions upon which the Defendant’s motion is based. Nevertheless, Mr. Dejan and Mr. Javery were not co-plaintiffs in the prior suits, and their claims were not tried together. Thus, the Plaintiffs respectfully submit that the prior lawsuits should be analyzed separately for purposes of res judicata. 21 Doc. 38-1 at 6. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 7 of 25 8 V. THE PLAINTIFFS’ PRIOR STATE LAW CLAIMS FAIL THE SECOND ELEMENT OF THE RES JUDICATA ANALYSIS The second element of the res judicata analysis requires a “judgment […] rendered by a court of competent jurisdiction.” Test Masters Educ. Servs., Inc., 428 F.3d at 571. “When special jurisdictional limitations prevent assertion of all matters arising out of a single transaction in one action, a second action is not precluded.” Wright & Miller, supra. at § 4412. Mr. Javery’s claims under the Louisiana Employment Discrimination Law (“LEDL,” La. R.S. 23:301 et seq.) and Louisiana’s whistleblower protection statute (La. R.S. 23:967) were dismissed on March 7, 2016 by judgment on the pleadings.22 Mr. Dejan’s claims under the same statutes were dismissed by judgment on the pleadings on February 4, 2016.23 The reason that this Honorable Court dismissed Mr. Javery’s claims is that the Louisiana statutes did not apply because the alleged conduct occurred in Mississippi as opposed to Louisiana.24 While Judge Lemmon, in Mr. Dejan’s case, did not expressly state the reasons for the dismissal of these claims,25 the arguments raised on the issue were virtually identical: Lockheed argued that the statutes did not apply to conduct occurring in Mississippi,26 and neither Plaintiff opposed their dismissal, both conceding that “[t]hese claims are not at issue in this litigation and should be dismissed with prejudice.”27 Thus, it is clear that Mr. Dejan’s claims were dismissed for the same reasons as Mr. Javery’s. The Plaintiff respectfully submits that the reasons for this Honorable Court’s dismissal of these claims were jurisdictional, and that the dismissals therefore did not have preclusive effect for purposes of res judicata. 22 Javery I, Doc. 62. 23 Dejan I, Doc. 41. 24 Javery I Doc. 62 at 3, 4. 25 Dejan I Doc. 41. 26 Javery I Doc. 21-1 at 6-7; Dejan I Doc. 24-1 at 4-6. 27 Javery I Doc. 26 at 1; Dejan I Doc. 32 at 1. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 8 of 25 9 A jurisdictional rule is one which “governs a court's adjudicatory capacity, that is, its subject-matter or personal jurisdiction.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011), citing Reed Elsevier, Inc. v. Muchnick, 130 S.Ct. 1237, 1243-44. Congressional intent is the primary consideration in making this determination. Id. at 435-36. The Plaintiffs respectfully submit that, since the LEDL and LWBP are Louisiana statutes, it is the intent of the Louisiana legislature that is in question, and the determination of such intent must be made with respect to Louisiana’s definition of “jurisdiction.” In Louisiana, jurisdiction is defined as “the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” La. C.C.P. art. 1. Subject matter jurisdiction is defined as “the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La. C.C.P. art. 2. The LEDL expressly provides that a suit under that statute must be brought in “the district court in the parish in which the alleged violation occurred.” La. R.S. 23:303. Similarly, the Louisiana whistleblower statute requires a plaintiff to “commence a civil action in a district court where the violation occurred.” La. R.S. 23:967. It was on this basis that this Honorable Court dismissed Mr. Javery’s claims.28 Clearly, no Louisiana court would have the “power” or “authority” to hear a case under either of these statutes that was based on conduct occurring outside of Louisiana. Thus, such a court would lack “jurisdiction” over such a claim under the definition provided by the Louisiana 28 Javery I Doc. 62 at 3-4, citing Medonca v. Tidewater, Inc., 862 So. 2d 505, 509 (La. App. 4th Cir. 2003). Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 9 of 25 10 Code of Civil Procedure. These provisions in the LEDL and Louisiana whistleblower law therefore govern the “adjudicatory capacity” of Louisiana courts, and therefore constitute jurisdictional rules for purposes of Henderson ex rel. Henderson v. Shinseki, supra. Both of the Plaintiffs’ claims under both of these state statutes were therefore dismissed on jurisdictional grounds. A court must not only possess jurisdiction in order for the second element to be met; the court must actually exercise that jurisdiction. Benton, Benton & Benton v. Louisiana Pub. Facilities Auth., 95-1367 (La.App. 1 Cir. 4/4/96, 3), 672 So.2d 720, 722, writ denied, 96-1445 (La. 9/13/96), 679 So.2d 110. As a general rule, “pendent claims that a federal court refused to entertain should not later be barred.” Kale v. Combined Ins. Co. of Am., 736 F.Supp. 1183, 1187– 88 (D. Mass.1990), aff'd, 924 F.2d 1161 (1st Cir.1991), citing Nilsen, 701 F.2d at 563. As this Honorable Court did not entertain either Plaintiff’s state law claims, they do not have preclusive effect for purposes of res judicata. VI. THE PLAINTIFFS’ PRIOR FEDERAL WHISTLEBLOWER CLAIMS FAIL THE THIRD ELEMENT OF THE RES JUDICATA ANALYSIS The third element of the res judicata analysis requires a “final judgment on the merits.” Test Masters Educ. Servs., Inc., 428 F.3d at 571. A judgment on the merits is one that “completely disposes of the underlying cause of action” or “determines that the plaintiff has no cause of action.” Moore v. Prine, 2:05CV2200KS-MTP, 2006 WL 2524216, at *2 (S.D. Miss. Aug. 30, 2006), aff'd sub nom. Moore v. Jones Cty. Sch. Dist., 239 Fed.Appx. 913 (5th Cir.2007), citing 18 Moore's Federal Practice, § 131.30[3][a] (Matthew Bender 3d ed.2000). For instance, an “order granting summary judgment” that is based “on the substance of the case” is a Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 10 of 25 11 final judgment on the merits, but one that is “based on a procedural or jurisdictional issue” is not. Id. A dismissal without prejudice is never a final judgment on the merits, but a dismissal with prejudice may or may not be a final judgment on the merits. See Wright & Miller, supra. at § 4413 (“[a] judgment that expressly leaves open the opportunity to bring a second action on specified parts of the claim or cause of action that was advanced in the first action should be effective to forestall preclusion”); Gulf Inland Contractors, Inc. v. Hanover Ins. Co., CV 15- 00458-BAJ-RLB, 2016 WL 3645190, at *4 (M.D. La. June 30, 2016), citing Miller v. Nationwide Life Ins. Co., No. 06-31178, 2008 WL 3086783, at *5 (5th Cir. Aug. 6, 2008) (“the Fifth Circuit has stated that a dismissal with prejudice is not a per se final judgment on the merits”). Thus, a dismissal with prejudice is a necessary, but not a sufficient, condition for a judgment to have preclusive effect. In both prior cases, the Plaintiffs, filing their complaints pro se, claimed violations of the “Federal Whistle Blower Protection Act.”29 Lockheed, in connection with its motions for partial judgment on the pleadings, interpreted these statements as referring to 5 U.S.C. §§ 1201, et seq.30 In opposition, the Plaintiffs (who had by this point retained counsel) clarified that these claims were not brought under the law cited by the Defendant, but rather under 10 U.S.C. § 2409.31 The Plaintiffs agreed to dismiss their federal whistleblower claims without prejudice on the basis that they had not yet exhausted their administrative remedies under § 2409, which claims were still pending before the Fifth Circuit in connection with the agency proceeding.32 29 Javery I Doc. 1 at 1; Dejan I Doc. 1 at 1. 30 Javery I Doc. 21-1 at 5; Dejan I Doc. 24-1 at 3. 31 Javery I Doc. 26 at 3; Dejan I Doc. 32 at 3. 32 Javery I Doc. 26 at 3; Dejan I Doc. 32 at 3. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 11 of 25 12 Thereafter, Mr. Dejan’s claims were expressly dismissed “without prejudice.”33 Thus, there should be no question whatsoever that this judgment has no preclusive effect and that Mr. Dejan was free to bring this suit. Mr. Javery’s claim was dismissed, but without a designation that it was dismissed without prejudice.34 Nevertheless, the law is clear that a dismissal for failure to exhaust administrative remedies is a dismissal without prejudice. Pinkard v. Pullman-Standard, a Div. of Pullman, Inc., 678 F.2d 1211, 1218 (5th Cir.1982 (“[s]uch a dismissal would be without prejudice, and the plaintiff could bring a new action upon receipt of a right-to-sue letter”); Collins v. Iberia Comprehensive Cmty. Health Care Ctr., 17-CV-00347, 2017 WL 3159038, at *2 (W.D. La. June 29, 2017), report and recommendation adopted sub nom. Collins v. Iberia Comprehensive Cmty. Health Ctr. Inc., 17-CV-00347, 2017 WL 3159002 (W.D. La. July 24, 2017) (quoting Pinkard).35 This is true even if the order of dismissal does not expressly state that the dismissal is “without prejudice.” Hicks v. Mississippi, 76 Fed.Appx. 529, 531 (5th Cir.2003). Thus, the Plaintiffs respectfully submit that Mr. Javery’s claim under § 2409 was dismissed without prejudice, and that this Honorable Court’s judgment therefore does not have preclusive effect. Further, as discussed above, both Plaintiffs, after retaining an attorney, consented to the dismissal of their federal whistleblower claims. A voluntary dismissal is presumed to be “without prejudice” under Fed. R. Civ. P. 41(a)(2). 33 Dejan I Doc. 41. 34 Javery I Doc. 62 at 3-4. 35 See also Taylor v. Miller, 13-00471-BAJ-SCR, 2013 WL 6504673, at *1 (M.D. La. Dec. 11, 2013); Shariff v. Evans, 1:16CV131-HSO-JCG, 2017 WL 4010876, at *1 (S.D. Miss. Sept. 12, 2017); Goff v. Fisher, 1:15CV402- HSO-JCG, 2017 WL 2230337, at *2 (S.D. Miss. May 22, 2017), judgment entered, 1:15CV402-HSO-JCG, 2017 WL 2258690 (S.D. Miss. May 22, 2017); Paskel v. Woodall, 1:15CV323-HSO-JCG, 2017 WL 1098830, at *2 (S.D. Miss. Mar. 23, 2017) Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 12 of 25 13 Further still, assuming arguendo that the dismissals of the Plaintiffs’ whistleblower claims are construed as being “with prejudice,” the Plaintiffs nevertheless respectfully submit that these dismissals do not constitute “final judgments on the merits.” The dismissals were based on procedural issues, and thus do not constitute judgments on the merits under Moore v. Jones Cty. Sch. Dist., supra. Moreover, as discussed above, both Plaintiffs filed their complaints pro se. The United States Supreme Court requires that a pro se complaint be “held to less stringent standards than formal pleadings drafted by lawyers.” See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although the Plaintiffs did have the assistance of an attorney in preparing their complaints, they nevertheless respectfully submit that their failure to specify the federal whistleblower statue under which their claims were brought should not be held against them. This is particularly true considering that, after retaining an attorney, they clarified to the Defendant and to this Honorable Court that their suits were brought under 10 U.S.C. § 2409, and properly agreed to dismiss such claims, as they were still pending in the agency proceeding. To suggest that Plaintiffs should be denied their day in court because they previously filed premature pro se claims that did not refer to a statute by title and section number would fly in the face of decades of Fifth Circuit jurisprudence holding that such dismissals are not final decisions on the merits36 as well as the very purposes of the doctrine of res judicata.37 For these reasons, the Plaintiffs respectfully submit that the previous dismissals of their federal whistleblower claims did not have preclusive effect. 36 See Pinkard v. Pullman-Standard, a Div. of Pullman, Inc., supra.; Hicks v. Mississippi, supra. 37 See Dore v. Kleppe, supra. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 13 of 25 14 VII. THE PLAINTIFFS’ PRIOR STATE LAW CLAIMS ALSO FAIL THE THIRD ELEMENT OF THE RES JUDICATA ANALYSIS The Fifth Circuit “has continuously held that jurisdictional dismissals are ‘insufficient to serve as final judgments on the merits for res judicata purposes.’” Gulf Inland Contractors, Inc., 2016 WL 3645190 at *4. As discussed above, the Plaintiffs’ prior claims under the LEDL and Louisiana whistleblower law were dismissed for jurisdictional and/or procedural reasons. Thus, in addition to failing the second element, these claims also fail the third element of the res judicata analysis. VIII. THE PLAINTIFFS’ TITLE VII, DEFAMATION, AND CONTRACTUAL INTERFERENCE CLAIMS FAIL THE FOURTH ELEMENT OF THE RES JUDICATA ANALYSIS The fourth element of the res judicata analysis requires that the two cases involve “the same claim or cause of action.” Test Masters Educ. Servs., 428 F.3d at 571. In the Fifth Circuit, “the principal test for determining whether the same cause of action is involved is deciding whether the primary right and duty and the delict or wrong are the same in each action.” Dore, 522 F.2d at 1374. “The aim of claim preclusion is thus to avoid multiple suits on identical entitlements or obligations between the same parties, accompanied, as they would be, by the redetermination of identical issues of duty and breach.” Wright & Miller, supra. at § 4402. For the following reasons, the Plaintiffs respectfully submit that their previously-asserted Title VII claims, defamation claim, and interference with a federal contract claim lack preclusive effect because they do not form the same “cause of action” as the Plaintiffs’ False Claims Act retaliation claims that are presently before this Honorable Court. A. Plaintiff Javery’s Title VII Retaliation Claim Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 14 of 25 15 The complaint in Javery I asserted a claim for “retaliation for protesting protected activities.”38 Specifically, Mr. Javery alleged that he was terminated “based on […] retaliation for having reprimanded Plaintiff’s white manager in January/February, 2014.”39 Of course, reprimanding a white employee would not constitute “protected activity” under Title VII absent an allegation that the purpose of the reprimand was to oppose unlawful discrimination.40 Lockheed moved to dismiss Mr. Javery’s retaliation claim on this very basis.41 Mr. Javery, after retaining an attorney, did not oppose this dismissal, conceding that the claim was “not at issue in this litigation and should be dismissed with prejudice.”42 Accordingly, this Honorable Court dismissed the retaliation claim on the basis that “Javery does not dispute Lockheed’s contention that he did not participate in an activity protected by Title VII.”43 Mr. Javery’s Title VII retaliation claim was wholly unrelated to his present False Claims Act retaliation claim. That claim was based on his reprimanding of a white employee regarding a personnel dispute. These events are not so much as mentioned in the complaint in the case sub judice. Moreover, the facts that are at issue in this case (the Plaintiffs’ acts of reporting reasonably perceived fraud to authorities at NASA) would not have been relevant in any way to a Title VII retaliation claim. Here, as in Dore v. Kleppe, supra., Mr. Javery is “alleging the infringement of a different right by a different wrong.” See Dore, 522 F.2d at 1374. Title VII protects Mr. Javery’s right to oppose race discrimination, whereas the False Claims Act protects 38 Javery I Doc. 1 at 1. 39 Id. at 2. 40 The opposition clause of Title VII’s retaliation provisions prohibits retaliation against an individual “because he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3. 41 Javery I Doc. 21-1 at 3-4. 42 Javery I Doc. 26 at 1. 43 Doc. 62. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 15 of 25 16 his right to report suspected fraud. The claims are based on entirely different facts and entirely different bodies of law. The Plaintiffs respectfully submit that this suit is not precluded by Mr. Javery’s prior, mistaken assertion of a claim under an inapplicable body of law, based on unrelated facts, particularly under the policy of liberal construction of pro se complaints. The Plaintiffs respectfully submit that Mr. Javery’s Title VII retaliation claim does not form the same “cause of action” as this False Claims Act suit. B. Plaintiff Javery’s Defamation Claim Mr. Javery’s previously-asserted defamation claim represents a separate nucleus of operative facts and a separate cause of action from his claim in the case sub judice. Mr. Javery’s defamation claim was based on the following allegations: “Following the Plaintiff’s suspension and pre-termination, the Defendant’s investigator(s) told NASA (verbally and in writing), as well as other unprivileged persons that the Plaintiff had falsified reporting records, processes and data regarding the preventative maintenance budget data and that when asked about the January, 2014 data, the Plaintiff lied about this to the investigator(s).”44 “The Plaintiff alleges that both of these statements are untrue, and that the Defendant knows that these statements are untrue, but that the Defendant willfully and maliciously spread this defamatory content to cause injury to the Plaintiff in his reputation and occupation.”45 This claim was dismissed by summary judgment on January 29, 2018.46 The above allegations are absent from the complaint in the case sub judice.47 The Plaintiffs’ False Claims Act claims are not based on Lockheed employees making false statements about Mr. Javery. The defamation claim did not even involve the Plaintiffs’ 44 Javery I, Doc. 1 at 6-7. 45 Javery I, Doc. 1 at 7. 46 Javery I, Doc. 179. 47 See Doc. 1. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 16 of 25 17 terminations, but statements made at different times and by different persons than those alleged herein. The Plaintiffs respectfully submit that Mr. Javery’s defamation claim was even less related to the present suit than was his Title VII retaliation claim. Thus, the Defendant’s argument is without merit. C. The Plaintiffs’ Racial Discrimination Claims Mr. Dejan’s Title VII race discrimination claim was dismissed by summary judgment on March 23, 2016.48 Mr. Javery’s Title VII race discrimination claim was dismissed by summary judgment on April 26, 2016.49 Mr. Javery’s race discrimination claim was based on Lockheed’s alleged “pattern of giving white managers” more “favorable treatment” than was given Mr. Javery.50 Specifically, Javery argued that: (i) Caucasian manager Phil Price was found to commit “serious misconduct” on three (3) occasions but was treated more favorably during these investigations than was Javery, in that he was not suspended pending the outcome of the investigations;51 (ii) Caucasian manager Steve Poulton was found to be an incompetent manager but was not subjected to an adverse employment action;52 and (iii) Caucasian manager John Welbourne was found to have exhibited deficient performance but was not subjected to an adverse employment action.53 First, as in Dore v. Kleppe, supra., Javery’s racial discrimination case alleged “the infringement of a different right by a different wrong” than in the case sub judice. See Dore, 522 F.2d at 1374. The racial discrimination claim alleged that Mr. Javery was suspended pending the 48 Dejan I, Doc. 59. 49 Javery I, Doc. 67. 50 Javery I, Doc. 36 at 2. 51 Id. at 2-6. 52 Id. at 12-13. 53 Id.at 13-14. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 17 of 25 18 outcome of an investigation in violation of his right to be treated the same as his Caucasian colleagues, whereas in this case he alleges that he was terminated in retaliation for exercising his right to report potential fraud to the federal government. Second, the claims are based on different facts. “The sheer complexity of litigation involving separate federal statutes has been found sufficient reason to recognize separate causes of action when the statutes draw on quite unrelated aspects of the underlying transaction.” Wright & Miller, supra.at § 4411, citing Cramer v. Gen. Tel. & Elecs., 443 F.Supp. 516, 521 (E.D. Pa.1977), aff'd on other grounds, Cramer v. Gen. Tel. & Elecs. Corp., 582 F.2d 259 (3d Cir.1978). While Mr. Javery did urge a somewhat similar “pretext” argument as in the case sub judice, the similarity between his race discrimination claim and his False Claims Act claim ends there. The race discrimination claim focused on the treatment of Caucasian managers during internal investigations, whereas this claim focuses on the Plaintiffs’ reporting of illegal activity by the Defendant. These are certainly “unrelated aspects” of the events in question. Third, the Plaintiffs do not need to convince this Honorable Court that the dismissal of Javery’s race discrimination claim was “in error” in order to be successful on the merits in the case sub judice. See Test Masters Educ. Servs., Inc., 428 F.3d at 571. This Honorable Court dismissed the race discrimination claim on the basis that Mr. Javery did not provide sufficient evidence to meet the fourth element of his prima facie case because he was not “similarly situated” to his proposed Caucasian comparators.54 Mr. Javery does not need to demonstrate that he was treated differently from his Caucasian colleagues in order to be successful in this case; in fact, evidence of such differential treatment would be wholly irrelevant. 54 Javery I, Doc. 67 at 7-10. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 18 of 25 19 Dejan’s race discrimination claim was essentially based on the same facts as Javery’s; Dejan argued that he was terminated due to his association with Javery, and that Javery was terminated based on his race.55 Thus, the Plaintiffs respectfully submit that Dejan’s race discrimination claim is a separate cause of action than the present case for the same reasons discussed above with respect to Javery’s race discrimination claim. D. Plaintiff Dejan’s Interference with a Federal Contract Claim Mr. Dejan asserted a claim in his prior suit for “interference with and under a federal contract,” alleging as follows: “When the Defendant, Lockheed ordered the Defendant, Camgian to permanently remove the Plaintiff from his position and the premises in May, 2014, and Defendant, Camgian complied with the Defendant’s order, both the Defendant’s engaged, violated and interfered with the Plaintiff’s right to work under a federal contract free of discrimination and retaliation.”56 “The Plaintiff further contends that when the Defendant, Camgian complied with the Defendant’s Lockheed’s order not just to remove the Plaintiff from the premises, but to terminate the Plaintiff’s employment, Defendant, Camgian violated the public policy underlying the federal contract as well as the Plaintiff’s rights under the federal contract to be free from employment termination based on unlawful grounds and by interfering with the Plaintiff’s right to do business under a federal contract” 57 It is not clear what facts form the basis of Mr. Dejan’s claim, as he was not a party to any federal contract. In fact, as noted by the Defendant, “[t]his does not describe an interference with contract claim, but rather addresses the discrimination and whistleblower claims already urged by Plaintiff previously in his Complaint.”58 Mr. Dejan’s contractual interference claim was merely a re-wording of his discrimination and whistleblower claims, which, for the reasons discussed above, do not have preclusive effect. Further, as with Mr. Javery’s Title VII retaliation 55 Dejan I, Docs. 43, 44. 56 Dejan I, Doc. 1, ¶ 18. 57 Dejan I, Doc. 1, ¶ 19. 58 Dejan I, Doc. 24-1 at 8. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 19 of 25 20 claim and both Plaintiffs’ state law claims, this claim represents an error by a pro se litigant and was not pursued once the Plaintiffs retained counsel.59 As the matter presently before this Honorable Court involves retaliation under the False Claims Act, which does not require that the Plaintiffs be parties to any federal contract, the Plaintiffs do not need to convince the court that the dismissal of Mr. Dejan’s contractual interference claim was “in error” in order to succeed on the merits of the case sub judice. See Test Masters Educ. Servs., 428 F.3d at 571. Thus, the Plaintiffs respectfully submit that the dismissal of Mr. Dejan’s contractual interference claim should not preclude this action. IX. THE PLAINTIFFS COULD NOT HAVE BROUGHT THIS SUIT AT THE TIME THE PRIOR SUITS WERE FILED Even if the above elements were met with respect to any of the Plaintiffs’ prior claims (and they are not), the Plaintiffs respectfully submit, for they reasons below, that they simply could not have brought this suit at the time Javery I and Dejan I were filed, as the matters at issue in the present suit were subject to the ongoing NASA administrative process. At the time Javery I and Dejan I were filed, Mr. Dejan had already filed an official complaint with the NASA OIG, and both Plaintiffs had filed anonymous complaints.60 If the Plaintiffs had filed this suit during the pendency of the OIG investigation, the appropriate remedy would have been for this Honorable Court to grant a stay of further proceedings pending the outcome of the administrative proceeding. As the United States Court of Appeals for the Fifth Circuit explained in a similar situation: 59 See Dejan I, Doc. 32 at 1 (Dejan’s interference claim is “not at issue in this litigation and should be dismissed with prejudice”). 60 Ex. C at 8; Ex. D at 29-30; Ex. E; Ex. F; Javery I, Doc. 1; Dejan I, Doc. 1. Although Javery did not file his official (non-anonymous) OIG complaint until shortly after filing suit, his OIG complaint was based on essentially the same facts as that of Mr. Dejan. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 20 of 25 21 “In response to Merrill Lynch's motion to compel arbitration in district court II, Haydu timely filed a motion to dismiss or stay the federal proceedings pending the outcome of the state action. See Ballantine Books, supra, 302 F.2d at 19. However, district court II never specifically ruled on this issue in its July 11th order. Given the concurrent jurisdiction of the state and federal courts that existed in this instance and especially in view of the prior remand, a stay of Merrill Lynch's independent action by district court II would have been appropriate.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 637 F.2d 391, 397 (5th Cir.1981). As the United States District Court for the Western District of Louisiana has explained, “‘where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body’ […] the court suspends the judicial process pending referral of such issues to the administrative body for its views.” Rogers v. Columbia/HCA of Cent. Louisiana, Inc., 961 F.Supp. 960 (W.D. La.1997), citing U.S. v. Western Pac. R.R., 352 U.S. 59, 352 (1956). Here, at the time the previous lawsuits were filed, the NASA OIG was investigating potential violations of 10 U.S.C. § 2409, which is similar and related to the 31 U.S.C. § 3730(h). The NASA OIG even stated in its report that the Plaintiffs’ allegations could constitute violations of 31 U.S.C. § 3729.61 Thus, the NASA OIG’s investigation directly concerned potential violations of the False Claims Act. Moreover, the NASA OIG is statutorily required to investigate complaints of retaliation for disclosing “[g]ross mismanagement of a National Aeronautics and Space Administration contract or grant, a gross waste of Administration funds, an abuse of authority relating to an Administration contract or grant, or a violation of law, rule, or regulation related to an Administration contract (including the competition for or negotiation of a contract) or grant.” 10 U.S.C. §§ 2409(a)(1)(B), 2409(b)(1). The regulations implementing 61 Ex. C at 12. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 21 of 25 22 this process can be found at 48 C.F.R. part 1803, subpart 1803.9. Thus, such matters “have been placed within the special competence of an administrative body” by act of Congress. See Rogers, 961 F.Supp. at 965-66. For these reasons, the Plaintiffs respectfully submit that, had they filed this suit at the time of Javery I and Dejan I, a stay would be required under Rogers. Thus, the Plaintiffs respectfully submit that it cannot reasonably be said that they could have, or should have, brought this suit at the time of the filing of their previous suits.62 This means that, even if this Honorable Court finds that the elements of res judicata have been satisfied (which the Plaintiffs deny), this suit should still not be barred. See United States v. Shanbaum, 10 F.3d 305, 310–11 (5th Cir.1994), citing Allen v. McCurry, 449 U.S. 90, 94 (1980) (“claim preclusion applies to claims that ‘were or could have been raised’ in a prior action[…]”) (emphasis supplied). If a claim could not have been brought in a prior action, it cannot be barred by res judicata. X. CONCLUSION The Louisiana Court of Appeal for the First Circuit addressed a similar issue in 1996, holding as follows: The federal court's authority to litigate the state law claims in the original suit was based on pendent jurisdiction. When there is a federal claim which has enough substance to confer jurisdiction on the federal court, and there are also pendent state law claims that derive from the same operative facts, the federal court has pendent jurisdiction over the state law claims. Reeder v. Succession of Michael B. Palmer, 623 So.2d 1268 (La.1993). The Reeder case also stands for the proposition that, if the federal law claims are pursued to a valid final judgment on the merits in federal court, and the plaintiff for some reason 62 The Fifth Circuit affirmed the NASA Administrator’s decision on June 21, 2017 in the case entitled Javery v. Bolden, 697 Fed.Appx. 810 (5th Cir.2017). The instant suit was filed on May 19, 2017, approximately one (1) month prior to the Fifth Circuit’s decision. Smith Law Firm, who had been retained by the Plaintiffs, strenuously wished to avoid filing this lawsuit while the NASA matter was pending before the Fifth Circuit. However, the Plaintiffs’ counsel felt that there was no option but to file this suit on May 19, 2017, as the suit would otherwise be time-barred under 31 U.S.C. § 3730(h)(3). Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 22 of 25 23 does not assert the pendent state law claims, res judicata will bar a subsequent assertion of those state law claims in state court. Reeder, 623 So.2d at 1272–1273. We do not find Reeder controlling here. Under Reeder, for res judicata to bar pendent state law claims in a subsequent state law proceeding, certain conditions must be met. First, the federal court must have jurisdiction over the federal law claims. Second, it must exercise that jurisdiction and render a judgment on the merits. Third, there must have been pendent state law claims that were not litigated due to a failure of the plaintiff to assert the claims. Benton, Benton & Benton, 672 So.2d at 722. The court continued: Since the Sherman Act was not applicable, there was no basis for the federal court to exercise jurisdiction over the federal claim. Consequently, the federal court could not, and did not, exercise jurisdiction over the pendent state law claims. There has never been a ruling, nor the opportunity for a ruling, on the merits of the state law claims. For that reason, the summary judgment based on res judicata was improvidently granted. Id. at 723. Here, as in Benton, this Honorable Court simply never exercised jurisdiction over any of the Plaintiffs’ whistleblower claims, all of which were voluntarily dismissed for jurisdictional and/or procedural reasons. Here, as in Benton, this Honorable Court has never rendered a decision on the merits of any of the Plaintiffs’ whistleblower claims, and there has never been an opportunity for such a ruling. The claims that the Plaintiffs did pursue in their prior lawsuits alleged infringements of different rights by different wrongs on the part of Lockheed, and were based on different facts. See Dore, 522 F.2d at 1374 (5th Cir.1975). Thus, the Plaintiffs do not need to convince this Honorable Court that any of its prior rulings were in error in order to succeed in this case. See Test Masters Educ. Servs., Inc., 428 F.3d at 571. The conduct alleged by the Plaintiffs in the case sub judice is serious and speaks to important matters of public policy, as the False Claims Act was designed to prevent fraud against Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 23 of 25 24 the federal government, and its retaliation provisions are designed to protect those who report any potential such fraud. None of the Plaintiffs’ whistleblower allegations have ever been heard by a district court of the United States. The Plaintiffs have never had their day in court on the merits of the claims they assert in this lawsuit. Thus, the Plaintiffs respectfully submit that, to grant the Defendant’s motion would be contrary to the purposes of res judicata (which is to “give rather than deny justice”)63 as well as the purposes of the False Claims Act. The Plaintiffs respectfully submit that this Honorable Court should decide this motion with regard to its “wise sense of real-world affairs”64 as opposed to the Defendant’s formulaic and misguided interpretation of the principles of res judicata. For the foregoing reasons, the Plaintiffs respectfully submit that the Defendant’s motion should be denied. Respectfully Submitted __/s/ Robert Moseley Schmidt____ J. Arthur Smith, III, T.A. (#07730) Robert Moseley Schmidt (#37934) SMITH LAW FIRM 830 North Street Baton Rouge, LA 70802 Telephone (225) 383-7716 Facsimile (225) 383-7773 jasmith@jarthursmith.com rschmidt@jarthursmith.com Counsel for Plaintiffs 63 See Dore, 522 F.2d at 1374. 64 See Wright & Miller, supra. at § 4401. Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 24 of 25 25 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 31st day of July, 2018, a copy of the foregoing pleading was filed electronically with the Clerk of Court for the Eastern District of Louisiana using the CM/ECF system. Notice of this filing will be sent to all parties by operation of the court’s electronic filing system. ______/s/ Robert Moseley Schmidt________ Robert Moseley Schmidt Case 2:17-cv-05106-JCZ-JVM Document 42 Filed 07/31/18 Page 25 of 25