UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MATTHEW DAVID WONNEMAN,
Plaintiff,
Civil Action No. 26-cv-1267 (BAH)
v.
Judge Beryl A. Howell
GLOBAL GRAB TECHNOLOGIES INC.,
Defendant.
MEMORANDUM OPINION
Plaintiff Matthew David Wonneman brings suit against his former employer, defendant
Global Grab Technologies Inc., alleging retaliation in violation of the whistleblower provision of
the National Defense Authorization Act of 2013 (“NDAA”), 41 U.S.C. § 4712, and the False
Claims Act (“FCA”), 31 U.S.C. § 3730(h), for disclosing his concerns about his supervisor’s
alleged manipulation of the company’s timekeeping system and absences from work. See
Compl. ¶¶ 25-64, ECF No. 1. Before the Court is defendant’s motion to dismiss plaintiff’s
complaint for lack of subject matter jurisdiction due to plaintiff’s failure to exhaust
administrative remedies, improper venue and failure to state a plausible claim for relief, under
Federal Rules of Civil Procedure 12(b)(1), (3) and (6), respectively. See Def.’s Mot. to Dismiss
(“Def.’s Mot.”) at 1, ECF No. 8. Although venue is proper and subject matter jurisdiction is
present, for the reasons that follow, defendant’s motion to dismiss for failure to state a claim is
granted.
I. BACKGROUND
Set out below is a summary of the relevant factual background and procedural history to
resolve the pending motion.
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A. Factual Background
The relevant facts as alleged in plaintiff’s complaint are as follows. See Casey v.
McDonald’s Corp., 880 F.3d 564, 567 (D.C. Cir. 2018) (“On a motion to dismiss, we must
assume that the allegations of the complaint are true.”). Plaintiff was employed by defendant
from July 16, 2017, to May 13, 2025, during which eight-year period defendant held a federal
government contract that required defendant “to provide physical security onsite for repairs and
maintenance on vehicular barriers around the United States Capital Police (the ‘USCP’)
campus.” Compl. ¶¶ 6-7, 9, 24. Plaintiff was one of six technicians employed by defendant to
perform such onsite repairs and maintenance, including on vehicular barriers at “the Senate side,
North Capitol and North Library of Congress.” Id. ¶¶ 9, 11. From 2017 through early 2020,
defendant required plaintiff to “clock in on his phone” and “badge in and out of USCP time
clocks” to facilitate defendant’s “payroll” and “to document his presence.” Id. ¶ 12. That
timekeeping system “was modified in or around 2020, during COVID, to be touchless.” Id.
During his employment with defendant, plaintiff’s immediate supervisor was Chris
Cutlip, who served as “USCP Project Supervisor & Service Specialist.” Id. ¶ 7. Plaintiff alleges,
“[o]n information and belief,” that Cutlip “learned how to manipulate the newly modified
timekeeping system by having a night shift employee badge in and out” and “misled” the “acting
supervisor for [d]efendant’s [c]ontract with USCP” to believe “that the USCP badging system
was broken and there was no need to follow it.” Id. ¶ 13. As a result, beginning in or around
October 2022, “Cutlip was able to miss work without reporting his absences” by “pressur[ing]”
plaintiff and two other team members “to cover his shifts,” “hide his absences from the rest of
the team members,” and “come in early to run service calls” that Cutlip had left open in his
absence. Id. ¶ 14. Within six months, plaintiff and his two other team members “were working
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eighteen (18) hour[] shifts covering for Cutlip’s absences.” Id. ¶ 15. Tensions began to boil over
on March 20, 2023, when “Cutlip pressured [p]laintiff to cover for him once again” and plaintiff
“protested that Cutlip was already taking off” multiple days a week and “covering for [Cutlip]
was exhausting.” Id. ¶ 16.
Plaintiff’s first attempt to voice concerns about “issues at work and Cutlip’s absences”
was in an email to Cutlip himself on September 11, 2023, after which “Cutlip started treating
[p]laintiff with hostility, attempted to change [p]laintiff’s shifts and threatened [p]laintiff’s
employment status.” Id. ¶ 17. Plaintiff eventually escalated the report by “email[ing]
[d]efendant’s Human Resources (‘HR’)” on April 24, 2024, to report “Cutlip’s absences[] and
Cutlip’s false reports as to his work hours.” Id. ¶ 18. The following week, plaintiff attended a
meeting with a member of defendant’s payroll department and defendant’s “Acting HR”
representative, at which meeting plaintiff “reiterated Cutlip’s illegal and fraudulent activities,”
and the payroll staff member “indicated that HR had no prior knowledge of this situation.” Id.
Following a meeting between defendant’s “Acting HR” representative and Cutlip on
May 9, 2024, “Cutlip attempted to make changes to [p]laintiff’s schedule and to remove
[p]laintiff’s bi-weekly overtime” as “a form of retaliation for [p]laintiff’s speaking with
[d]efendant’s HR Department.” Id. ¶ 19. For example, during “an in-person meeting with Cutlip
and the other team members” on May 15, 2024, Cutlip “indicated that he was changing
[p]laintiff’s shifts” and “stated that he had been on Capitol Hill a long time and that he was not
going anywhere, and that if anyone was unhappy, then they should leave.” Id. ¶ 20. Plaintiff
interpreted “Cutlip’s words” as “a direct threat to [p]laintiff’s continued employment.” Id. In
the following months, plaintiff continued to report “increasingly severe” retaliation from Cutlip,
including in an “email to HR” on July 19, 2024, and in a meeting with a member of HR on
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August 13, 2024. Id. ¶¶ 21-22. During the August meeting, plaintiff shared that “he had been
retaliated against by Cutlip for speaking with HR about Cutlip’s fraudulent actions, particularly
Cutlip not showing up for work, and falsifying his time cards,” and the HR staff member
responded with a proposal “to transfer [p]laintiff to a different team, changing [his] shift and
work location.” Id. ¶ 22. Plaintiff rejected that proposal as “unfair to him.” Id.
Plaintiff’s final disclosure came on March 21, 2025, when he told the “acting supervisor
for [d]efendant’s [c]ontract with USCP” about “Cutlip’s false time reports and unfounded
billable hours.” Id. ¶ 23. Ultimately, on May 13, 2025, plaintiff alleges that he “was forced to
resign from his employment with [d]efendant” due to the “pervasive on-going retaliation by
Cutlip.” Id. ¶ 24.
B. Procedural History
Plaintiff filed this lawsuit on April 14, 2026, alleging claims of whistleblower retaliation
under the NDAA, 41 U.S.C. § 4712 (Count I), constructive discharge (Count II), and retaliation
under the FCA, 31 U.S.C. § 3730(h) (Count III), see Compl. ¶¶ 25-64, in response to which
defendant has filed the pending motion to dismiss, see Def.’s Mot. at 1-2; Def.’s Mem. Supp.
Mot. to Dismiss (“Def.’s Mem”) at 1, ECF 9. Alternatively, defendant argues that “any claims
not dismissed should be transferred to the Middle District of Tennessee,” pursuant to 28 U.S.C.
§ 1404(a). Def.’s Mem. at 1. Defendant filed no reply brief, timely on June 25, 2026, or
otherwise, following plaintiff’s filing of an opposition, see Pl.’s Opp’n to Def.’s Mot. to Dismiss
(“Pl.’s Opp’n”), ECF No. 10; see also D.D.C. Local Civil Rule 7(d) (setting the deadline to file a
reply brief as “seven days after service of the memorandum in opposition”), and thus this motion
will be resolved on the current record.
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II. APPLICABLE LEGAL STANDARDS
A. Dismissal for Improper Venue
Under Federal Rule of Civil Procedure 12(b)(3), a party may move to dismiss a case for
“improper venue.” Fed. R. Civ. P. 12(b)(3). The federal venue statute requires that a district
court “dismiss, or if it be in the interest of justice, transfer” a case filed “in the wrong division or
district.” 28 U.S.C. § 1406(a). “Whether venue is ‘wrong’ or ‘improper’ depends exclusively on
whether the court in which the case was brought satisfies the requirements of federal venue
laws.” Atl. Marine Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49, 55 (2013). In determining whether
venue is proper, the plaintiff bears the burden of demonstrating “proper venue with respect to
each cause of action and each [defendant],” Lamont v. Haig, 590 F.2d 1124, 1135 (D.C. Cir.
1978), and the court “accepts the plaintiff’s well-pled factual allegations regarding venue as
true[] [and] draws all reasonable inferences from those allegations in the plaintiff’s favor,”
McCain v. Bank of America, 13 F. Supp. 3d 45, 51 (D.D.C. 2014) (quoting Wilson v. Obama,
770 F. Supp. 2d 188, 190 (D.D.C. 2011)). If venue is improper, the decision whether to transfer
or dismiss the case “to any district or division in which it could have been brought,” 28 U.S.C.
§ 1406(a), “rests within the sound discretion of the district court,” Naartex Consulting Corp. v.
Watt, 722 F.2d 779, 789 (D.C. Cir. 1983).
B. Dismissal for Lack of Subject Matter Jurisdiction
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power
authorized by the Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). Absent
subject-matter jurisdiction over a case, the court must dismiss it. See Arbaugh v. Y&H Corp.,
546 U.S. 500, 506-07 (2006) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)); Fed. R. Civ.
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P. 12(h)(3). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the
plaintiff bears the burden of demonstrating the court’s subject-matter jurisdiction over the claim
at issue. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (citing Lujan v. Defs. of Wildlife,
504 U.S. 555, 561 (1992)). When reviewing such a motion, the court must “assume that the
complaint states a valid legal claim,” Huron v. Cobert, 809 F.3d 1274, 1278 (D.C. Cir. 2016),
“accept the well-pleaded factual allegations as true,” and “draw all reasonable inferences from
those allegations in the plaintiff’s favor,” Kareem v. Haspel, 986 F.3d 859, 865 (D.C. Cir. 2021)
(quoting Arpaio, 797 F.3d at 19). The court may also “consider materials outside the pleadings
to determine [its] jurisdiction.” Id. at 866 n.7; see also West v. Lynch, 845 F.3d 1228, 1231
(D.C. Cir. 2017) (“As necessary, [a court may] cull additional facts from other parts of the
record.” (citing Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005))).
C. Dismissal for Failure to State a Claim
To survive a Rule 12(b)(6) motion to dismiss, the “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A facially plausible claim pleads facts that are not “‘merely consistent with’ a
defendant's liability” but “that allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 557). In
deciding a motion under Rule 12(b)(6), a court must accept all factual allegations as true, “even
if doubtful in fact,” Twombly, 550 U.S. at 555, and “construe the complaint in favor of the
plaintiff,” Langeman v. Garland, 88 F.4th 289, 294 (D.C. Cir. 2023) (internal quotation marks
omitted) (quoting Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)). Courts,
however, “need not accept inferences . . . not supported by the facts set out in the complaint, nor
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must the court accept legal conclusions.” Id. (quoting Hettinga, 677 F.4th at 476). In
determining whether a complaint fails to state a claim, a court may consider only “the facts
alleged in the complaint, documents attached thereto or incorporated therein and matters of
which it may take judicial notice.” Simmons v. Rubio, 170 F.4th 905, 910 (D.C. Cir. 2026)
(quoting Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007)).
III. DISCUSSION
Defendant moves to dismiss plaintiff’s complaint on the grounds that venue is improper
in the District of Columbia, that subject matter jurisdiction is lacking over plaintiff’s NDAA
claim in Count I because plaintiff failed to properly exhaust his administrative remedies, and that
plaintiff failed to allege facts supporting a plausible claim for relief as to each of the three counts
of his complaint. See Def.’s Mem. at 1. Notably, plaintiff has conceded that the “constructive
discharge allegations [in Count II] are properly understood as part of the adverse action element
of” and “subsumed within” his retaliation claims in “Counts I and III,” rather than as “a
standalone count.” Pl.’s Opp’n at 11. 1 With that narrowing concession in mind, each argument
for dismissal of the two claims asserted for retaliation under the NDAA, 41 U.S.C. § 4712
(Count I), and under the FCA, 31 U.S.C. § 3730(h) (Count III), is discussed seriatim.
A. Venue Is Proper in the District of Columbia
Defendant first argues that “[t]he District of Columbia is not the proper venue for
[p]laintiff’s claims because neither party is a resident of this district, most of [the] acts and
omissions relevant to the claims occurred in Tennessee, and the Middle District of Tennessee is
an available venue.” Def.’s Mem. at 10. Whether venue is improper “depends exclusively on
1
Plaintiff requests “leave to amend to clarify that the constructive discharge theory supports, and is subsumed within, Counts I and III,” Pl.’s Opp’n at 11, but this request is denied since the adverse action elements of plaintiff’s NDAA and FCA retaliation claims need not be addressed as these claims are dismissed on other grounds, see infra Part III.C and note 7.
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whether the court in which the case was brought satisfies the requirements of federal venue
laws,” Atl. Marine Constr. Co., 571 U.S. at 55, which, in this case, include the general federal
venue provision, see 28 U.S.C. § 1391, and the special venue provision of the False Claim Act,
see 31 U.S.C. § 3732(a). Plaintiff bears the burden of establishing “proper venue with respect to
each cause of action.” Lamont, 590 F.2d at 1135.
Plaintiff contends that venue is proper as to his claim of NDAA whistleblower retaliation,
under Section 1391(b)(2), see Pl.’s Opp’n at 4-5, which provides that venue is proper in “a
judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred,” 28 U.S.C. § 1391(b)(2). “This section does not require a plaintiff to bring suit in a
district where every event that supports an element of the claim occurred; rather, it merely
requires a plaintiff to show that some considerable portion of the events occurred in their chosen
forum.” Nabong v. Paddayuman, 289 F. Supp. 3d 131, 134 (D.D.C. 2018) (quoting Maysaroh v.
Am. Arab Commc’ns & Translation Ctr., LLC, 51 F. Supp. 3d 88, 93 (D.D.C. 2014)). Indeed,
“the question is not which district is the best venue, or which venue has the most significant
connection to the claim,” but rather “whether the district the plaintiff chose had a substantial
connection to the claim, whether or not other forums had greater contacts.” Exelon Generation
Co., LLC v. Grumbles, 380 F. Supp. 3d 1, 11 (D.D.C. 2019) (internal quotation marks omitted)
(quoting Johns v. Newsmax Media, Inc., 887 F. Supp. 2d 90, 96 (D.D.C. 2012)).
Defendant objects to plaintiff’s chosen venue because the “relevant decision makers”
responding to plaintiff’s disclosures and “all of [defendant’s] personnel records” are “located in
Tennessee,” and “all other managerial functions,” including “human resources” functions, “take
place exclusively at and out of [defendant’s] Tennessee location.” Def.’s Mem. at 13-14. Even
accepting those facts, however, plaintiff has established that a “substantial part” of the material
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events or omissions occurred in the District of Columbia. See Hale v. Collis, No. 21-cv-1469
(JEB), 2022 WL 3016747, at *8 (D.D.C. July 29, 2022) (“Showing that substantial events
occurred in District A, therefore, does not rebut a contention that other substantial events
occurred in District B, where venue might be proper as well.” (emphasis in original)). Plaintiff
asserts that he worked as a technician “perform[ing] the onsite repairs and maintenance on the
vehicular barriers” around “the Senate side, North Capitol and North Library of Congress,”
Compl. ¶¶ 9-11; that Cutlip stated at an “in-person meeting” on May 15, 2024, that Cutlip “had
been on Capitol Hill a long time and that he was not going anywhere,” id. ¶ 20; and that the
allegedly retaliatory schedule changes and reduction of overtime opportunities affected plaintiff
at his job site in the District of Columbia, see id. at ¶¶ 19-22; see also Pl.’s Opp’n at 4-5. These
allegations amply support venue for this case in this district under Section 1391(b)(2). See
Media Matters for Am. v. Paxton, 138 F.4th 563, 583 (D.C. Cir. 2025) (holding that venue was
proper where the “ensuing adverse effects” of defendant’s wrongful conduct “occurred primarily
in the District”); Glob. Reach, Inc. v. Hawkwood Grp. LLC, No. 26-cv-1394 (BAH), 2026 WL
1329238, at *17 (D.D.C. May 13, 2026) (noting that defendant’s venue objections were “easily
dispatched” because “much of the effects of the tortious conduct manifested in the District of
Columbia where plaintiff has incurred . . . damages”).
Plaintiff further contends that venue is proper as to Count III of the complaint under the
FCA’s special venue provision, see Pl.’s Opp’n at 7, which provides that venue is proper where
the defendant “transacts business,” 31 U.S.C. § 3732(a). Defendant does not contest that venue
lies in this district as to plaintiff’s FCA retaliation claim, see generally Def.’s Mem., or that
defendant transacts business in the District of Columbia through its performance of the contract
“to provide physical security onsite for repairs and maintenance on vehicular barriers around the
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United States Capital Police . . . campus,” Compl. ¶ 9. Thus, “plaintiff’s well-pled factual
allegations regarding venue” are properly accepted “as true” as to this count. McCain, 13 F.
Supp. 3d at 51 (internal citation and quotation marks omitted).
Since plaintiff has established that venue is proper, defendant’s motion to dismiss for
improper venue, pursuant to Federal Rule of Civil Procedure 12(b)(3), is denied, without the
need to address defendant’s alternative argument for transfer under 28 U.S.C. § 1406(a).
B. Subject Matter Jurisdiction May Be Properly Exercised
Defendant next argues that plaintiff’s claim, in Count I, for relief under the whistleblower
provision of the NDAA, 41 U.S.C. § 4712, should be dismissed because the complaint “lacks
sufficient factual detail establishing that [p]laintiff complied with his pre-suit administration
exhaustion requirements.” Def.’s Mem. at 3. Those exhaustion requirements provide that a
plaintiff alleging discharge, demotion, or discrimination as a reprisal for disclosing certain
protected information must “submit a complaint to the Inspector General of the executive agency
involved” within “three years after the date on which the alleged reprisal took place,” 41 U.S.C.
§ 4712(b)(1), (4), which complaint triggers an obligation of the relevant Office of the Inspector
General (“OIG”) to investigate and submit a report to the involved parties and agency head
“within 180 days after receiving the complaint,” id. § 4712(b)(1)-(2). If the relevant agency head
“issues an order denying relief . . . or has not issued an order within 210 days after the
submission of a complaint,” or “30 days after the expiration of [an] extension of time” for an
OIG report, the plaintiff “shall be deemed to have exhausted all administrative remedies with
respect to the complaint” and “may bring a de novo action at law or equity against the contractor,
subcontractor, grantee, subgrantee, or personal services contractor to seek compensatory
damages and other relief.” Id. § 4712(c)(2). Such “de novo action at law or equity” must be
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filed within “two years after the date on which remedies are deemed to have been exhausted.”
Id.
Here, plaintiff asserts that “on or about April 15, 2025 individually, and on June 4, 2025,
through [counsel], [he] submitted Whistleblower Retaliation Complaints with the Office of the
Inspector General,” and as such, “has properly exhausted his administrative remedies before
timely filing suit.” Compl. ¶¶ 4-5. True, as defendant protests, plaintiff did not “identify the
OIG with whom he allegedly filed complaints,” the “specific complaint(s) he lodged,” or “what,
if anything, was done in response to his [OIG] complaints.” Def.’s Mem. at 3, 17. Plaintiff did,
however, attest that he submitted the OIG complaints to satisfy the exhaustion requirement on
April 15 and June 4 of last year—more than 210 days before he filed the instant lawsuit, less
than three years after the date on which the alleged reprisal took place, and within the two-year
statute of limitations period. See 41 U.S.C. § 4712(b)(4), (c)(2). Plaintiff also attached copies of
his OIG complaints as exhibits to his opposition brief, confirming their submission to the OIG of
the U.S. Department of Health and Human Services on the dates alleged in the complaint. See
Pl.’s Opp’n, Decl. of Paul V. Bennet, Ex. A, ECF 10-2; Kareem, 986 F.3d at 866 n.7 (noting that
a court may “consider materials outside the pleadings to determine [its] jurisdiction.”). 2
At the motion to dismiss stage, such allegations plausibly show that plaintiff satisfied
Section 4712(c)(2)’s exhaustion requirement. See Wykosky v. ATCS, PLLC, No. 22-cv-01881
(APM), 2023 WL 4547992, at *4 (D.D.C. July 14, 2023) (denying a motion to dismiss a
Section 4712 claim “for failure to exhaust administrative remedies” because “the failure to
exhaust is an affirmative defense that the defendant bears the burden of pleading and proving”);
2
Defendant did not file a reply brief and thus did not address whether the OIG of the U.S. Department of Health and Human Services is the OIG “of the executive agency involved,” as required by 41 U.S.C. § 4712(b)(1). Without input from defendant and consistent with the requirement to draw all inferences in plaintiff’s favor at the motion to dismiss stage, this question is not further scrutinized.
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Pullen v. St. Gabriel Health Clinic Inc., No. CV 25-52-JWD-EWD, 2026 WL 499596, at *19
(M.D. La. Feb. 23, 2026) (holding that “[w]hen read in the light most favorable to the Plaintiff,
the Complaint does allege that Plaintiff lodged a whistleblower complaint with the OIG” despite
a lack of detailed pleadings about the date of filing and the substance of the OIG complaint);
Johnsen v. L3Harris Techs., Inc., No. 6:24-cv-1636-RBD-DCI, 2025 WL 3669586, at *2 (M.D.
Fla. Mar. 27, 2025) (observing that the complaint “could have been clearer about OIG not timely
issuing a determination,” but finding that, “drawing inferences from the facts alleged in the light
most favorable to [the plaintiff],” he “sufficiently asserted exhaustion”). 3 The Court thus cannot
dismiss plaintiff’s claim alleging an NDAA Section 4712 violation for lack of exhaustion. 4
C. Dismissal for Failure to State a Claim Under Rule 12(b)(6)
Turning to the merits, defendant asserts that plaintiff failed to state a claim for relief as to
any count of the complaint. See Def.’s Mem. at 15. In assessing the sufficiency of plaintiff’s
factual allegations of retaliation under the NDAA and FCA to withstand a motion to dismiss
under Rule 12(b)(6), only a limited scope of materials may be properly considered, namely, “the
facts alleged in the complaint, documents attached thereto or incorporated therein and matters of
which it may take judicial notice.” Simmons, 170 F.4th at 910 (quoting Abhe & Svoboda, Inc.,
508 F.3d at 1059). As a result, the exhibits attached to defendant’s motion to dismiss and
3
This conclusion focusing on the allegations asserted in the complaint is not altered by the parties’ agreement that plaintiff did not lodge his OIG complaints with the USCP OIG or their observation that the USCP OIG would not be the appropriate recipient because USCP is not an executive agency but is rather part of the legislative branch. See Def.’s Mem. at 16 nn.10-11; Pl.’s Opp’n at 8.
4
Defendant appears to raise this exhaustion argument as part of its motion to dismiss for lack of subject matter jurisdiction. See Def.’s Mem. at 16-17 (“The Complaint’s sole jurisdictional statement is tied to the NDAA. However, Plaintiff fails to plead facts sufficient to establish . . . the statutory prerequisites for a suit under the NDAA.”). Whether the exhaustion requirement of Section 4712(c) is jurisdictional, as defendant assumes, is not so clear. See, e.g., Olson v. Microsoft Corp., No. 3:25-CV-0774-D, 2025 WL 2664321, at *3 (N.D. Tex. Sept. 17, 2025) (holding that Section 4712(c)’s exhaustion requirement is non-jurisdictional); Iovino v. Michael Stapleton Assocs., 600 F. Supp. 3d 610, 622 n.4 (W.D. Va. 2022) (questioning the requirement’s jurisdictional nature); Thomas v. Hutson, No. CV 24-768, 2025 WL 903131, at *1 n.5 (E.D. La. Mar. 25, 2025) (same). In any event, since plaintiff has sufficiently pleaded satisfaction of the exhaustion requirement, the question whether the NDAA’s exhaustion requirement is jurisdictional or merely a claims-processing rule need not be resolved here.
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plaintiff’s opposition brief are not “attached to or incorporated by reference in the [complaint]”
nor “judicially noticeable” and are thus “not properly before the [Court],” leaving only the
allegations set forth in plaintiff’s complaint to inform the resolution of this motion. Lott v.
Not-for-Profit Hosp. Corp., 319 F. Supp. 3d 277, 281 (D.D.C. 2018). 5
1. Retaliation Under the National Defense Authorization Act
To state a claim for whistleblower retaliation under the 2013 National Defense
Authorization Act (NDAA), 41 U.S.C. § 4712, plaintiff must plausibly allege that (1) he was an
employee of a government contractor, (2) he disclosed information that he “reasonably believed”
was within the five categories of protected information under Section 4712(a)(1), and (3) “[his]
disclosure was a contributing factor in the action taken against [him].” Arawole v. Master Sec.
Co., No. 23-cv-2413 (RBW), 2025 WL 947477, at *13 (D.D.C. Mar. 28, 2025) (quoting Sargent
v. Pompeo, No. 19-cv-620 (CJN), 2020 WL 5505361, at *14 (D.D.C. Sept. 11, 2020)). Protected
information under the NDAA’s whistleblower provision includes “evidence of gross
mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of
authority relating to a Federal contract or grant, a substantial and specific danger to public health
or safety, or a violation of law, rule, or regulation related to a Federal contract.” 41 U.S.C.
§ 4712(a)(1). Although “[t]he case law interpreting the anti-reprisal provision contained in the
NDAA is slim,” Arawole, 2025 WL 947477, at *14 (quoting Fuerst v. Hous. Auth. of Atlanta,
No. 20-cv-2027 (MHC), 2020 WL 8299763, at *4 (N.D. Ga. Dec. 28, 2020), aff’d, 38 F.4th 860
(11th Cir. 2022)), plaintiffs are consistently required to allege facts demonstrating the objective
5
Defendant’s exhibits include, for example a declaration from defendant’s President/Chief Operating Officer, who explains that plaintiff’s supervisor, Chris Cutlip, received a salary and was “not paid according to the number of hours he works in a given workweek” and he was “not required to record or otherwise report to [defendant] the specific number of hours he works in any given period,” and that defendant’s contract with USCP was “a fixed-fee contract,” meaning defendant “was/is paid a specified amount per month for its services, regardless of the hours worked by Mr. Cutlip (or any other GGT employee) in a given period.” Def.’s Mem., Ex. B, Decl. of Brian Cooper ¶¶ 19-20, ECF No. 9-2.
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reasonableness of their belief that disclosed information falls within those protected categories to
satisfy the second element of their NDAA retaliation claims, see id. at *5 n.8.
For example, the Eleventh Circuit affirmed the dismissal of an NDAA retaliation claim
because the plaintiff’s disclosure of a plan by her employer, a federal contractor, to engage in
risky negotiation tactics that could jeopardize a federal grant did not amount to evidence an
objectively reasonable person would consider an “abuse of authority,” “violation of law, rule, or
regulation,” “gross mismanagement, or, really, anything more than a dispute with her boss.”
Fuerst v. Hous. Auth. of Atlanta, 38 F.4th 860, 874-76 (11th Cir. 2022). The court recognized
that Section 4712 does not require a plaintiff to prove “that an actual violation occurred” and
instead “requires only a disclosure that a covered person ‘reasonably believes’ indicates” a
violation, and nonetheless proceeded to hold that the plaintiff’s “belief was not objectively
reasonable as a matter of law.” Id. at 871-72. While much of the problem with that plaintiff’s
claim was that she was attempting “to blow the whistle before the foul,” id. at 875 (emphasis in
original), this circuit decision makes clear that NDAA retaliation claims may be dismissed for
failing plausibly to allege an objectively reasonable belief that the disclosed information was of
the kind protected by Section 4712(a)(1).
A similar principle was applied in Sargent v. Pompeo, where the plaintiff alleged that her
employer, a government contracting firm, retaliated against her for disclosing “alleged collusion
between a State Department employee and [the contractor’s] employees to sexually harass
female . . . employees,” which collusion she contended constituted “an abuse of authority
relating to a Federal contract” or “a violation of law, rule[,] or regulation related to a Federal
contract” under Section 4712(a)(1). 2020 WL 5505361, at *14-15 (quoting 41 U.S.C.
§ 4712(a)(1)). The plaintiff failed to state a claim because the text of “both of those [categories
14
of protected information under Section 4712(a)(1)] specifically require that the abuse or violation
be ‘related to a Federal contract,’” id. at *15 (quoting 41 U.S.C. § 4712(a)(1)), but such a “nexus
with the contract” was lacking in the plaintiff’s allegations of conspiracy and “expand[ing] the
reach of § 4712 to encompass any misconduct or illegal discrimination occurring within the
context of a federal contract would stretch the statute’s text beyond its plain meaning,” id.
Likewise, in Arawole, another Judge on this Court held that a plaintiff failed to state a
claim where he alleged retaliation for disclosing his co-worker’s supposed violation of “internal
personnel policies,” 2025 WL 947477, at *15, which violation the plaintiff contended constituted
“a substantial and specific danger to public health or safety, or a violation of law, rule, or
regulation related to a Federal contract” under Section 4712(a)(1), id. at *12 (quoting 41 U.S.C.
§ 4712(a)(1)). Since the plaintiff’s complaint “merely allege[d]” a few facts that did not support
a reasonable belief that the co-worker’s conduct constituted a substantial safety risk, id.
at *13-14, and the internal policies that the co-worker allegedly violated were not “the kind of
law, rule, or regulation required to support a claim” under Section 4712(a)(1), id. at *15, the
plaintiff could not survive the defendant’s motion to dismiss. By contrast, in Moses v.
Neighborhood Reinvestment Corp., a motion to dismiss an NDAA retaliation claim was denied
where the complaint identified the specific terms of a statute that the defendant allegedly
violated, see No. 23-cv-2246 (LLA), 2024 WL 4103699, at *5 (D.D.C. Sept. 3, 2024) (citing 42
U.S.C. § 8104(e)), described the defendant’s alleged misuse of government funds “to pay for two
contracts that ‘had nothing to do with’” the intended purpose of the federal grant awarded to the
defendant, id. (citation omitted), and stated that the plaintiff’s disclosures included charges that
the defendant “had violated both its own policies and [that statute],” id. at *1.
15
Here, plaintiff identifies the protected information in his disclosures as “Cutlip’s
fraudulent activities and violation of [d]efendant’s [c]ontract - namely falsifying his work hours,
and thereby obtaining payment from the federal government fraudulently.” Compl. ¶ 44.
Throughout his complaint, plaintiff describes the purportedly protected information in similar
terms. See id. ¶¶ 17, 36 (discussing disclosure of “issues at work and Cutlip’s absences”); id.
¶¶ 18, 37 (discussing disclosure of “Cutlip’s absences, and Cutlip’s false reports as to his work
hours” and “Cutlip’s illegal and fraudulent activities”); id. ¶¶ 21, 40 (discussing disclosure of
“Cutlip’s absences and falsification of work hours”); id. ¶¶ 22, 41 (discussing disclosure of
“Cutlip’s fraudulent actions,” i.e., “not showing up for work, and falsifying his time cards”); id.
¶¶ 23, 42 (discussing disclosure of “Cutlip’s false time reports and unfounded billable hours”).
Conspicuously absent from the complaint are allegations providing the required “nexus”
between Cutlip’s alleged misconduct and the terms of the federal contract that defendant was
tasked with performing. Sargent, 2020 WL 5505361, at *14. The only detail plaintiff provides
about the terms of that contract is that it “required [d]efendant to provide physical security onsite
for repairs and maintenance on vehicular barriers around the [USCP] campus,” Compl. ¶¶ 9, 28,
but plaintiff includes “no allegation[s] that [defendant] failed to provide security, overcharged
the government, or procured the contract through underhanded means,” Sargent, 2020 WL
5505361, at *14. Plaintiff does not allege that Cutlip’s allegedly fraudulent activity—i.e.,
“having a night shift employee badge in and out” while Cutlip was absent for his assigned shifts
and informing the USCP contract supervisor that “the USCP badging system was broken and
there was no need to follow it”—caused any failures in the provision of physical security on
USCP’s campus or any improper billing of the federal government. Compl. ¶¶ 13, 32. 6 Thus,
6
To be sure, plaintiff may not be privy to the specific terms of defendant’s contract or to defendant’s billing practices with regard to that contract. If such “necessary information lies within defendant[’s] control,” discovery
16
the alleged misconduct instead appears to be “attenuated from the contract itself.” Sargent, 2020
WL 5505361, at *14. Indeed, plaintiff’s allegations are analogous to the alleged violations of
“internal personnel policies” deemed insufficient to support the plaintiff’s reasonable belief that
he disclosed protected information in Arawole, see 2025 WL 947477, at *15, and they are a far
cry from the detailed disclosures of alleged statutory violations and misuse of federal grant funds
that stated a plausible claim in Moses, see 2024 WL 4103699, at *5.
Without allegations of how Cutlip’s alleged manipulation of defendant’s timekeeping
system violated the terms of defendant’s contract with the federal government or resulted in
fraudulent charges to the federal government, plaintiff has not plausibly established that his
belief that his disclosures were protected under Section 4712(a)(1) was “objectively reasonable
as a matter of law,” Fuerst, 38 F.4th at 872, and, consequently, no reasonable inference can be
drawn that defendant is liable under this statute for reprisal against plaintiff, see Arawole, 2025
WL 947477, at *14; Langeman, 88 F.4th at 294 (observing that courts “need not accept
inferences . . . not supported by the facts set out in the complaint” (quoting Hettinga, 677 F.4th at
476)). The allegations here more closely resemble a labor dispute from a disgruntled employee
than a whistleblower claim from an individual seeking to avoid gross abuse of government
resources. Rather than “expand[ing] the reach of § 4712 to encompass any
misconduct . . . occurring within the context of a federal contract,” Sargent, 2020 WL 5505361,
at *15, defendant’s motion to dismiss plaintiff’s NDAA retaliation claim must be granted.
may be necessary to confirm factual allegations, but plaintiff must still include “pleadings on information and belief” “accompanied by a statement of the facts upon which the allegations are based” to meet his burden at the motion to dismiss stage. Kareem, 986 F.3d at 866 (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1279 n.3 (D.C. Cir. 1994)). Plaintiff does not even attempt to plead the necessary facts on information and belief and thus fails to meet his burden.
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2. Retaliation Under the False Claims Act
Plaintiff’s False Claim Act retaliation claim falters “[f]or many of the same reasons
[p]laintiff’s [NDAA] claim[] fail[s].” Def.’s Mem. at 22. The FCA “authorizes suit by an
employee who ‘is discharged, demoted, suspended, threatened, harassed, or in any other manner
discriminated against in the terms and conditions of employment because of lawful acts
done . . . in furtherance of an action under this section or other efforts to stop . . . violations of
this subchapter.’” United States ex rel. Kini v. Tata Consultancy Servs., Ltd., 146 F.4th 1184,
1189 (D.C. Cir. 2025) (quoting 31 U.S.C. § 3730(h)). Thus, to state a retaliation claim under this
statute, “an employee must allege (1) engagement in a protected activity, and (2) discrimination
because of that activity.” Id.
To establish engagement in a protected activity, the plaintiff can show either “(1) ‘steps
taken antecedent to a False Claims Act proceeding’ [or] (2) ‘lawful acts done in furtherance of
other efforts to stop 1 or more violations of [the FCA].’” Id. (internal quotation marks omitted)
(quoting Singletary v. Howard Univ., 939 F.3d 287, 295 (D.C. Cir. 2019)). An employee takes
antecedent steps “in furtherance of an [FCA] action,” 31 U.S.C. § 3730(h), by “‘investigat[ing]
matters that reasonably could lead to,’ or have a ‘distinct possibility’ of leading to, a ‘viable
False Claims Act case.’” Singletary, 939 F.3d at 295 (quoting Hoyte v. Am. Nat’l Red Cross,
518 F.3d 61, 66, 68-69 (D.C. Cir. 2008)). The employee need not “‘know’ that the investigation
he was pursuing could lead to a False Claims Act suit,” Hoyte, 518 F.3d at 67 (quoting United
States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 741 (D.C. Cir. 1998)), but
“[d]issatisfaction with one’s treatment on the job is not enough” nor is “an employee’s
‘investigation of nothing more than his employer’s non-compliance with federal or state
regulations,’” Singletary, 939 F.3d at 295 (quoting Hoyte, 518 F.3d at 66). Under the second
18
prong of Section 3730(h), an employee’s “preventative” steps to stop “violations of the statute
before they happen or recur” need not be “tied to the prospect of a False Claims Act proceeding,”
but the employee must “ha[ve] an objectively reasonable belief that the employer is violating, or
will violate, the False Claims Act.” Id. at 296.
Since the first element of an FCA retaliation claim—engagement in a protected activity—
requires proof of the plaintiff’s investigation or prevention of conduct that could reasonably
constitute a substantive FCA violation, courts at the motion to dismiss stage require plaintiffs to
connect the defendant’s alleged misconduct to false claims for payment submitted to the federal
government. See Singletary, 939 F.3d at 296 (explaining that both prongs of Section 3730(h)(1)
“require[] that the employee’s efforts pertain to fraud in connection with the submission of a
claim for federal government funds”); United States ex rel. Brown v. Aramark Corp., 591 F.
Supp. 2d 68, 77 (D.D.C. 2008) (“To be afforded whistleblower protection under the FCA, the
plaintiff’s investigation must concern false or fraudulent claims.” (citation and quotation marks
omitted)). For example, in Singletary, the D.C. Circuit held that allegations of the plaintiff’s
“kn[owledge] that federal law mandated” certain research conditions for receipt of federal grant
funding, which the defendant was not honoring, combined with allegations that the defendant
was required to make annual compliance certifications to the federal government, adequately
“support[ed] [the plaintiff’s] objectively reasonable belief that, during the relevant time period,
the [defendant] was or would be making false compliance certifications in connection with the
submission of requests for federal funding.” 939 F.3d at 297-98; see also Moses, 2024 WL
4103699, at *6 (determining that plaintiff sufficiently pleaded protected activity where the
plaintiff alleged knowledge that the defendant had submitted certifications of compliance to the
19
federal government during a period when the plaintiff knew the defendant was not in compliance
with federal regulations).
On the other hand, plaintiffs’ allegations have been found insufficient to establish the
protected activity element of an FCA claim where they described employees investigating
misconduct—i.e., off-label marketing of drugs as a treatment for obesity—that the employees
surmised “post facto” to have resulted in false reimbursement claims to federal healthcare
programs since such allegations failed to allege that the employees’ disclosures of that
misconduct to the defendant “related to fraudulent claims against the government” and those
disclosures instead indicated “frustrat[ion]” about how that misconduct might impact the
employees’ own experiences in the workplace. United States v. Novo Nordisk Inc., No. 21-cv-55
(RJL), 2026 WL 880085, at *7-8 (D.D.C. Mar. 31, 2026). While the complaint demonstrated
that the employees later connected the dots between the defendant’s off-label marketing scheme
and potential false reimbursement claims, no allegation was made “that the [reimbursement]
calculations were part of the investigations that allegedly led to [the employees’] demotion and
termination” and thus the complaint provided no basis for the court to infer that the disclosures
constituted protected activity under the FCA. Id. at *8; see also United States ex rel. Lott v.
Not-For-Profit Hosp. Corp., 296 F. Supp. 3d 143, 152 (D.D.C. 2017) (dismissing an FCA
retaliation claim for insufficiently alleging protected activity where the plaintiff “cite[d] an email
that he sent to the [defendant]” that “d[id] not identify any particular violation of the FCA that
[the plaintiff] sought to prevent”).
Here, plaintiff asserts that his internal disclosures of Cutlip’s “manipulat[ion]” of
defendant’s “newly modified timekeeping system” and failure to “report[] his absences” while
other employees covered his shifts constitutes protected activity under the FCA. Compl.
20
¶¶ 13-14; see Pl.’s Opp’n at 12. Plaintiff does not specify, however, whether his disclosures
were part of an effort to investigate an existing FCA violation or to prevent a future FCA
violation, but under either standard, these factual allegations fail to state a plausible claim
because the complaint is devoid of allegations regarding whether, and, if so, how, Cutlip’s
alleged timecard manipulation “pertain[s] to fraud in connection with the submission of a claim
for federal government funds,” Singletary, 939 F.3d at 296, rather than simply dishonest service
to defendant. Plaintiff does not allege, even on information and belief, that defendant submitted
duplicative claims for payment of the wages of both Cutlip and the employee covering for Cutlip
during the hours that Cutlip allegedly skipped his shifts. See generally Compl. Although
plaintiff makes a passing conclusory reference in his complaint to defendant “obtaining payment
from the federal government fraudulently,” Compl. ¶ 44, and argues in briefing that Cutlip
submitted “false time reports to obtain federal contract payments,” Pl.’s Mem. at 12, plaintiff
includes no facts about defendant’s billing practices with regard to the federal contract to support
those remarks, cf. Singletary, 939 F.3d at 297-98 (alleging knowledge by the plaintiff that the
defendant was required to submit compliance certifications to the federal government that would
be fraudulent in light of the disclosed misconduct); see also Moses, 2024 WL 4103699, at *6
(same).
Nor does plaintiff adequately allege that his disclosures to defendant’s HR department
related to fraudulent claims against the government. See Compl. ¶¶ 17-18, 21-23, 36-37, 40-42
(detailing plaintiff’s disclosures of Cutlip’s alleged absences from work and falsification of
timecards without suggesting that Cutlip’s alleged misconduct related to false claims against the
government). Instead, plaintiff’s disclosures suggest contemporaneous frustration with his
employment conditions and a desire for defendant to respond to Cutlip’s noncompliance with the
21
internal timecard policy, followed by post facto speculation that Cutlip’s noncompliance could
have generated false claims. See Singletary, 939 F.3d at 295 (“Dissatisfaction with one’s
treatment on the job is not enough . . . [n]or is an employee’s ‘investigation of nothing more
than his employer’s non-compliance with federal or state regulations.’” (quoting Hoyte, 518 F.3d
at 66)); Novo Nordisk Inc., 2026 WL 880085, at *8 (“[T]he relevant inquiry is not whether the
[alleged misconduct] generated false claims, but rather whether [plaintiff’s] conduct, including
reports, complaints, objections, investigations, or the like, concerned the submission of false
claims.” (internal citation and quotation marks omitted)). Without allegations of disclosures that
“pertain to fraud in connection with the submission of a claim for federal government funds,”
plaintiff fails to establish protected activity and thus fails to state a plausible FCA retaliation
claim. Singletary, 939 F.3d at 296.
* * *
For the foregoing reasons, plaintiff’s retaliation claims must be dismissed for failure to
plead sufficient facts supporting an objectively reasonable belief that he made protected
disclosures under Section 4712 of the NDAA or that he was engaged in protected activity under
Section 3730(h) of the FCA. 7
IV. CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss the complaint, pursuant to
Federal Civil Rule of Procedure 12(b)(6), is granted. An order consistent with this Memorandum
Opinion will be entered contemporaneously.
Date: September 25, 2026 __________________________
BERYL A. HOWELL
United States District Judge
7
Since plaintiff failed to state a plausible claim to relief as to the first element of each retaliation claim, determining whether defendant took adverse actions against plaintiff because of his disclosures is an issue that need not be addressed.
22