Williams v. Lawrence Livermore National Security, LLC

— 1 — — 2 — 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA — 5 — 6 PETER TODD WILLIAMS, Case No. 20-cv-03510-JCS 7 Plaintiff, ORDER REGARDING MOTION FOR 8 v. SUMMARY JUDGMENT AND MOTIONS TO EXCLUDE EXPERT 9 LAWRENCE LIVERMORE NATIONAL TESTIMONY SECURITY, LLC, et al., Re: Dkt. Nos. 96, 100, 109 — 10 — Defendants. — 11 — 12 I. INTRODUCTION 13 Plaintiff Peter Todd Williams, Ph.D., pro se, brings a retaliation claim under the False 14 Claims Act (“FCA”) against his former employer, Lawrence Livermore National Security, LLC 15 (“LLNS”). LLNS now moves for summary judgment. The Court finds the matter suitable for 16 resolution without oral argument, and VACATES the hearing and case management conference 17 previously set for January 6, 2023. For the reasons discussed below, LLNS’s motion is 18 GRANTED. 19 This order rests on the Court’s holdings that Williams has not presented evidence that he 20 subjectively believed LLNS was potentially defrauding the government before he was fired, nor 21 evidence that LLNS knew he was pursuing such a theory. Both parties have moved to exclude 22 their opponent’s expert witness opinions on whether a reasonable employee in Williams’s position 23 would have believed other LLNS scientists were engaged in fraud on the government. See dkts. 24 96, 109. Since this order does not resolve that question, the expert testimony at issue is not 25 relevant to the outcome of the motion. Both motions to exclude are therefore DENIED as moot. 26 The Clerk shall enter judgment in favor of LLNS and close the case.1 — 27 — 1 II. BACKGROUND 2 A. Factual Overview 3 The Court’s holding in this order is narrow, and this section is intended to summarize 4 evidence relevant to that holding or otherwise useful as context. It is not intended as a 5 comprehensive recitation of the evidentiary record. 6 LLNS operates the Lawrence Livermore National Laboratory for the U.S. Department of 7 Energy. Williams worked as design physicist for LLNS from January of 2016 until he was fired 8 in May of 2017. See Grove Decl. (dkt. 101) Ex. 3 (Williams Dep.) at 50:24–51:3. He was a 9 probationary employee throughout his tenure and lacked access to classified information that was 10 relevant to some of LLNS’s work. Id. at 51:4–52:3. The nature of his assignments was not 11 always clear to him, and at least some projects were intended to allow him to practice using 12 LLNS’s programs and models and to familiarize himself with literature pertaining to specialized 13 areas of physics that he had not worked with previously. Id. at 138:8–143:5. Among other 14 projects, he worked on modeling the corner-turning properties of high explosives, which he was 15 led to believe was highly relevant to designing the W80-4 nuclear weapon. Williams Decl. (dkt. 16 121-1) ¶ 2. During the course of his employment, he discovered that the model produced by 17 another LLNS scientist, Dr. Peter Vitello, rested on a jagged rate curve built with a large number 18 of parameters in a way that Williams believed was unscientific and not supported by experimental 19 results. 20 Williams testified at his deposition that he first raised concerns about Vitello’s models over 21 the course of several conversations with a mentor at LLNS, Dr. Thomas Lorenz, beginning around 22 April or May of 2016. Grove Decl. Ex. 3 (Williams Dep.) at 237:1–238:3. He did not 23 “specifically use[] the word fraud,” but “expressed extreme concern” about the methodology at 24 issue. Id. at 237:12–17. Williams identified the “crazy rate curve” and raised questions of why 25 the underlying methodology was not being presented, why Vitello only discussed “the good fits,” 26 and why the model was used at all. Id. at 240:16–25. According to Williams, Lorenz was 27 shocked by what he shared, and concerned about cherry-picking data. Id. at 242:16–25. Williams 1 Williams was not aware of the FCA at the time, only “that it was expected of [him] to 2 conduct good science.” Id. at 245:2–16. He became aware of the FCA at some point after he was 3 fired. Id. at 245:17–246:5. 4 At a meeting with Vitello and Lorenz on June (or perhaps July) 20, 2016, Williams said 5 that he did not understand how Vitello’s jagged rate curve could be derived from one experiment 6 and suggested instead using a simpler model with fewer parameters. Id. at 256:16–258:3. Vitello 7 provided a “meandering monologue” in response that made no sense to Williams. 258:4–259:10. 8 Vitello became angry, and argued with Lorenz about the appropriate program to use for the model. 9 Id. at 260:11–265:25. Williams testified that during this meeting, he probably made clear that he 10 believed it was unscientific and dishonest not to present the underlying rate curve with Vitello’s 11 work, but may not have used the word “dishonest” specifically. Id. at 302:23–304:22. 12 When asked about other colleagues he had raised concerns to before the meeting with 13 Vitello and Lorenz, Williams only specifically remembered making comments similar to what he 14 had told Lorenz to one other scientist, who had an office next to him, and stated that he may have 15 had similar conversations with others but was not sure. Id. at 246:22–256:15. 16 In late 2016 or early 2017, Williams raised concerns about Dr. Vitello’s work with his 17 supervisor Dr. B.I. Jun in one or more meetings in Williams’s office. Id. at 270:3–11, 271:11– 18 272:7. Jun was dismissive of those concerns. Id. at 272:21–273:1. 19 In 2017, Williams raised similar concerns in a presentation he gave to Vitello and others, at 20 the urging of Jun, in an effort to keep his job. Id. at 280:2–281:17. One slide of that presentation 21 included Vitello’s rate curve, and Williams characterized it as unsuitable for modeling high22 explosive corner-turning behavior, stating that LLNS should instead use something “more 23 sensible” and conducive to systematic study. Id. at 282:14–286:8. Williams did not explicitly 24 characterize the slide to his audience as “exposing” Vitello’s work (because he believed that 25 would not be acceptable coming from someone in his relatively junior role), but he believed that 26 his presentation diplomatically conveyed concerns about the reliability and trustworthiness of the 27 model. Id. at 284:10–293:20. The presentation went on to propose an alternative model that 1 that his audience would have understood the presentation as questioning Vitello’s honesty. Id. at 2 292:7–18. 3 Later in 2017, Williams drew the jagged rate curve on a whiteboard and expressed his view 4 “that there wasn’t a systematic approach” during a meeting with Dr. David Miller, who by then 5 was one of Williams’s supervisors, but Miller was dismissive of his concerns. Id. at 304:23– 6 305:12. 7 Williams testified that in conversations with others at LLNS before he was fired, he never 8 used “terms like ‘unlawful’ ” or “illegal,” probably never used the word “fraud,” “did not tell 9 anybody that [he] thought that they had made a false certification to the government” (although he 10 “definitely had those concerns”), and never said that he thought Vitello was cheating the 11 government out of funds. Id. at 311:4–312:16. 12 Several LLNS scientists recall Williams discussing his concerns about the merits of 13 Vitello’s models, but they state that Williams never accused Vitello of dishonesty, making false 14 statements, engaging in any sort of fraud, or withholding important information about the integrity 15 of his work. Grove Decl. Ex. 5 (Ellison Decl.) ¶ 3; id. Ex. 22 (Lorenz Decl.) ¶ 6; id. Ex. 28 16 (Chodash Decl.) ¶ 3; id. Ex. 29 (Greene Decl.) ¶ 3; id. Ex. 30 (Jun Decl.) ¶ 3; id. Ex. 31 (Miller 17 Decl.) ¶ 4; id. Ex. 32 (Nitta Decl.) ¶ 3; id. Ex. 33 (Pilkington Decl.) ¶ 3; id. Ex. 34 (Vitello Decl.) 18 ¶ 3. Lorenz states in his declaration that he worked with Vitello for many years, had scientific 19 disagreements with him, and believed some of his work could have been better (in part due to a 20 tendency to “default to using [an established] model even though it often produced incorrect 21 results”), but that he never saw any indication of fraud by Vitello and did not believe that what 22 Williams told him of Vitello’s work could reasonably support suspicion of fraud. Id. Ex. 22 23 (Lorenz Decl.) ¶¶ 7–9. 24 Williams’s performance review for the first year of his employment, ending in January of 25 2017, praised aspects of his technical capabilities, but stated that he had difficulty balancing his 26 assigned tasks against questioning their underpinnings and that he was making disappointingly 27 slow progress. Grove Decl. Ex. 8. Lorenz states in his declaration that he was pleased with 1 March of 2017, a senior LLNS scientist informed Williams that a preliminary decision had been 2 made not to convert him from a probationary employee to a permanent employee—an outcome 3 that, if finalized at a formal reassessment in early May, would result in his termination. Id. Ex. 10 4 at 6534. Williams was fired in May of 2017. 5 In an email to a friend at LLNS soon after he was fired, Williams wrote that he thought the 6 explanation for his firing was “less malice on anybody’s part, and more that people (B.I. Jun; Peter 7 Vitello; Clark Souers) don’t have basic people skills and/or common sense. So they have been 8 doing the same thing for years and just don’t get why they have to explain what the goals and 9 deliverables of your work are.” Grove Decl. Ex. 46 at 3190.2 10 In a January 8, 2018 email to the DOI Office of the Inspector General elaborating on a 11 complaint he filed in 2017, Williams wrote: 12 The most solid allegation is incompetent or “bad” science or engineering. Regarding that, I have absolutely zero doubt. In addition, 13 I *believe* that the incompetence, to the extent damaging information appears to have been withheld or in any case not voluntarily disclosed, 14 rises to the level of misconduct or at the least malpractice (i.e. negligence resulting in harm), and that I was fired for objecting to it. 15 I also have suggested the possibility that it rises to the level of fraud, and yet at the same time I am uncomfortable with this word. I do not 16 think that anyone set out with an intent to deceive, but I also think that the end result of the actions of various people was a lot of money 17 spent on explosives research to develop a predictive model - a model being paid for by DOE and used to provide assurances that the 18 stockpile works as designed - that is complete junk. Since the people doing this work are smart, I don’t think that’s possible without a 19 significant degree of willful self-deception and a culture that retaliates against people who offer valid constructive criticism. The end result 20 is a lot of money being spent on bad science to make assurances to the public re the nuclear arsenal that are, in the end, not credible. 21 Perhaps that is not “fraud” but it certainly is serious. 22 Grove Decl. Ex. 2 at 14947–48 (emphasis added). He also stated that he did not report the matter 23 as fraud: 24 I did not raise the discourse to the level of calling it malpractice or fraud. I did tell Miller that I found the methodology highly suspect 25 and unscientific. I had numerous conversations with him regarding this. . . . . I made no allegation of fraud or misconduct or malpractice 26 to Pilkington. — 27 — 1 Id. at 14947. And in response to a question of why he believed Vitello and others developed a 2 deficient model, he wrote: 3 Good question. The simplest answer is pure incompetence, but that is a bit unsatisfactory because these are all smart people. A more 4 nuanced answer is that there was a disincentive for them to exercise good scientific and engineering practices, and, perhaps for that 5 reason, they insulated themselves from outside criticism. That is why I suggest that the problem goes beyond just ineptitude, because it 6 required a degree of willful ignorance or self-deception. 7 Id. 8 In May of 2018, Williams told a potential lawyer that he thought a “claim of retaliation is 9 too weak to pursue” and that he was “not interested in pursuing any such whistleblower status 10 right now.” Grove Decl. Ex. 1 at 15026.3 11 In a June 14, 2019 email to a lawyer negotiating a settlement for Williams with a different 12 former employer, Williams wrote that he did “not have the stomach for litigation right now” 13 against that employer, but that LLNS “is different” and he was highly motivated to pursue 14 litigation against LLNS. Grove Decl. Ex. 6 at 15765. Later in June, Williams wrote to a reporter 15 that he was “still trying to make sense of it all,” but his “working hypothesis for Vitello’s 16 motivation to do his bad science” was to ensure continued funding for a team using a particular 17 modeling tool. Grove Decl. Ex. 48 at 1722. 18 Williams sent a series of emails from September 22, 2019 to October 1, 2019 to another 19 scientist he now describes as a “jilted former romantic interest,” Opp’n (dkt. 121) at 14, laying out 20 his view of what he believed to be shoddy science at LLNS. Grove Decl. Ex. 47 at 3614–16. 21 When she asked him to “just pose the question,” Williams opened his next email with “Q: is this 22 fraud, or just incompetence? Or something else? Or am I over-reacting?,” before going on to lay 23 out his concerns about Vitello’s rate curves in more detail.” Id. at 3613–14. 24 On May 18, 2020, Williams reached out to a lawyer about potentially suing LLNS for age 25 discrimination, although he acknowledged that the statute of limitations had expired. Grove Decl. — 26 — 3 Williams apparently waived privilege during discovery and produced a large number of — 27 — communications with potential lawyers (and in at least one case, a lawyer he had retained) to 1 Ex. 15. He did not mention that he attempted to expose fraud or suggest that he was fired for 2 whistleblowing. Id. 3 Williams, pro se, filed his original complaint in this case later that month, asserting a claim 4 under the FCA. See Compl. (dkt. 1). The original complaint was vague as to a theory of how 5 Vitello’s purportedly flawed model translated to a false claim for government funds. It was not 6 entirely clear whether Williams intended to pursue a qui tam claim or a retaliation claim, and there 7 was some delay while the United States assessed whether to intervene (it ultimately did not) and 8 Williams amended his complaint to pursue only a retaliation claim. 9 In a July 2020 email to lawyers he was considering retaining, Williams wrote that 10 “although [he was] absolutely confident that a claim was made (request for payment, etc) on the 11 basis of the shoddy work, and was its motivation, establishing that fact is another matter.” Grove 12 Decl. Ex. 53 at 15255. Writing again to one of those lawyers in April of 2021, Williams laid out a 13 Department of Energy incentive awards program as “[t]he best evidence [he] could find for a 14 specific claim on funds. Id. at 15248. In a July 13, 2021 email to another potential lawyer, 15 Williams wrote: 16 I focused on the science aspects, of course, b/c that’s what I know. I only began to frame out the legal question of “presentment” or “claim 17 on funds” (I only somewhat understand these terms) after doing enough digging in public documents to discover that LLNL 18 management got bonuses for their supposed compliance with DOE/NNSA reg’s. I believe that may be important, and I detailed that 19 a bit in the amended complaint, but it’s not in the original complaint. 20 Grove Decl. Ex. 52 at 16062. In an email to another possible lawyer in August of 2021, Williams 21 wrote that it was understandable that attorneys for the United States “might have come up dry” 22 looking for any particular claim on funds, and that he had only discovered the bonus payment 23 program “a few months ago after lots of digging.” Grove Decl. Ex. 54 at 15188. 24 At some point in 2022, Williams published a video on YouTube explaining that he was 25 pursuing this lawsuit because he was fired by LLNS after exposing shoddy science on a nuclear 26 weapons program, and that he was hoping to obtain legal representation, an expert witness, and 27 financial backing. Grove Decl. Ex. 50. Much of the video explains his understanding of the high1 and his belief that Dr. Vitello’s work had serious undisclosed flaws. See id. Towards the end of 2 the video, he states that he had difficulty understanding why LLNS would use ineffective and 3 inefficient methods instead of simpler and more effective models. Id. at 18:06–18:22. He 4 concludes: “It all finally made sense after I was fired and I kind of thought about it a little bit, like, 5 oh, I understand what’s going on here is that somebody is trying to get money funneled in a 6 certain place—if they highlight that their particular program works really well, they will get 7 money.” Id. at 18:22–18:38. At the end of the video, he stated that he would be willing to testify 8 to the contents of the video under oath. Id. at 21:48–22:12. He removed the video from YouTube 9 soon after posting it because he decided he did not want it to be public, but aside from some 10 questions of tone and factual corrections not relevant to the outcome of this motion, he testified at 11 his deposition that he stood by what he said in the video. Grove Decl. Ex. 3 (Williams Dep.) at 12 313:14–318:25. 13 B. The Parties’ Arguments 14 LLNS moves for summary judgment on the grounds that Williams was not engaged in 15 conduct protected by the FCA because there is no evidence that he subjectively believed that 16 LLNS was potentially defrauding the government when he raised concerns about Vitello’s work, 17 Mot. (dkt. 100) at 25, and because it would not be objectively reasonable for someone in 18 Williams’s position to believe that such fraud was occurring, id. at 15–24. LLNS argues that 19 Williams did not know how Vitello’s research was used or what was disclosed to the government, 20 and that he had no basis for concluding that Vitello’s research had any nexus to the amount of 21 government funding that LLNS received. Id. at 17–22. It also contends that because, as a matter 22 of law, mere errors or differing opinions as to scientific judgments do not establish the scienter 23 necessary for fraud within the meaning of the FCA, it is objectively unreasonable to conclude that 24 Vitello’s work evinces fraud—accepting for the sake of argument Williams’s criticism of his 25 methods. Id. at 22–24. Moreover, even if Williams could show that he engaged in protected 26 conduct, LLNS argues that there is no evidence that it knew of such conduct when it fired him, 27 since he never told anyone that he believed Vitello was engaged in fraud. Id. at 13–15. LLNS 1 does not suggest arose from fraud. Id. at 15. 2 Williams argues that while he only had a general sense of LLNS’s funding and saw small 3 parts of its research, he knew that LLNS’s work on the W80-4 weapon was funded by the 4 Department of Energy and believed that Vitello’s models were integral to that work. Opp’n at 8– 5 10. He contends that while some degree of calibrating a model to data is appropriate, and the line 6 between that and improper fitting can be difficult to draw with precision, Vitello’s work was 7 egregious. Id. at 10–11. Williams argues that the other scientific disagreements that LLNS 8 identifies are not comparable to the complaint he raised about Vitello’s model. Id. at 11–13. He 9 notes that the actual reasons for his termination are beyond the scope of this phase of the case. Id. 10 at 13.4 He contends that he genuinely believes LLNS “is violating the public trust by performing 11 shoddy nuclear weapons work,” thus putting lives at risk, and that his “theory of fraud [having] 12 evolved over time” does not show that he filed suit without a theory of fraud. Id. at 13–14. He 13 contends that his work on an alternative to Vitello’s model—which took several months—would 14 have put LLNS on notice of the degree to which he objected to Vitello’s work, because it was not 15 a normal project for him and instead “outside the bounds of expected behavior.” Id. at 14, 15–16. 16 Williams also asserts that he “experienced intimidation, near physical violence, and 17 harassment to such a degree that, especially considering his precarious position” as a probationary 18 employee, it would be unreasonable for him to overtly accuse anyone of fraud or misconduct. Id. 19 Without citation to evidence, he contends that his meeting with Vitello and Lorenz was “nearly [a] 20 physical confrontation in a shouting match”; that another senior LLNS scientist told Williams he 21 was “a zero” and the “worst designer” that scientist had ever worked with (for reasons Williams 22 characterizes as “not material” and does not explain); and that Jun became belligerent, visibly 23 enraged, and stormed out of” at least one meeting with Williams. Id. at 15. Williams notes that — 24 — 4 To stave off potentially unnecessary complexities related to classified information, the Court — 25 — bifurcated the case, with the first phase (culminating in the present motion for summary judgment) limited to: “a. Whether Plaintiff in good faith believed that LLNS was possibly committing fraud — 26 — against the government[;] b. Whether a reasonable employee in the same or similar circumstances as Plaintiff might have believed that LLNS was possibly committing fraud against the — 27 — government[;] c. Whether Plaintiff did any lawful acts that were designed to further an action 1 the FCA does not require “magical incantations” of specific terminology in raising a complaint, 2 and argues that he sufficiently put LLNS on notice of protected conduct because he “made plainly 3 clear to [LLNS] that he found Dr. Vitello’s methods plainly unscientific and that he could not sign 4 his name to them” and refused to simply do what he was told, which would have been typical for 5 someone in his position. Id. at 15–16. 6 In its reply, LLNS contends that there is no legal authority supporting Williams’s position 7 that he should be relieved from having to show LLNS’s knowledge of protected conduct because 8 he faced a purportedly hostile work environment (for which Williams cites no evidence). Reply 9 (dkt. 130) at 1–2, 5. It contends that there was no basis for anyone at LLNS to believe Williams’s 10 criticism of Vitello’s model went beyond a disagreement as to its scientific merit, which is not 11 fraud within the meaning of the FCA, particularly in a field where such disagreements are 12 common. Id. at 2–3. LLNS argues that Williams’s work on an alternative model is not 13 tantamount to reporting fraud. Id. at 4. LLNS also argues that Williams cannot show he engaged 14 in protected conduct because a reasonable employee in Williams’s position would not have 15 perceived Vitello’s work as fraud against the government, id. at 5–10, and because Williams has 16 identified no evidence that subjectively believed that before he was fired, id. at 10–11. 17 III. ANALYSIS 18 A. Legal Standard for Summary Judgment 19 Summary judgment on a claim or defense is appropriate “if the movant shows that there is 20 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 21 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show 22 the absence of a genuine issue of material fact with respect to an essential element of the non23 moving party’s claim, or to a defense on which the non-moving party will bear the burden of 24 persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 25 Once the movant has made this showing, the burden then shifts to the party opposing 26 summary judgment to designate “‘specific facts showing there is a genuine issue for trial.’” Id. 27 (citation omitted); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is genuinely 1 . . . .”). The non-moving party has the burden of identifying, with reasonable particularity, the 2 evidence that precludes summary judgment. Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). 3 Thus, it is not the task of the court “‘to scour the record in search of a genuine issue of triable 4 fact.’” Id. (citation omitted); see Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026 , 1031 (9th Cir. 5 2001); Fed. R. Civ. P. 56(c)(3). 6 “[T]he inquiry involved in a ruling on a motion for summary judgment . . . implicates the 7 substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson v. 8 Liberty Lobby Inc., 477 U.S. 242, 252 (1986). A party need not present evidence to support or 9 oppose a motion for summary judgment in a form that would be admissible at trial, but the 10 contents of the parties’ evidence must be amenable to presentation in an admissible form. See 11 Fraser v. Goodale, 342 F.3d 1032 , 1036–37 (9th Cir. 2003). Neither conclusory, speculative 12 testimony in declarations nor arguments in moving papers are sufficient to raise genuine issues of 13 fact and defeat summary judgment. S. A. Empresa De Viacao Aerea Rio Grandense (Varig 14 Airlines) v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1982); Thornhill Publ’g Co., Inc. 15 v. GTE Corp., 594 F.2d 730 , 738 (9th Cir. 1979). On summary judgment, the court draws all 16 reasonable factual inferences in favor of the non-movant, Scott v. Harris, 550 U.S. 372 , 378 17 (2007), but where a rational trier of fact could not find for the non-moving party based on the 18 record as a whole, there is no “genuine issue for trial” and summary judgment is appropriate. 19 Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). 20 B. Williams Has Not Shown False Claims Act Retaliation 21 In addition to its qui tam provision allowing relators to bring claims to remedy actual fraud 22 against the government, the FCA also prohibits retaliation against employees who attempt to 23 report or thwart such fraud. Only that anti-retaliation provision is currently at issue in this case. 24 “An employee must prove three elements in a [31 U.S.C.] § 3730(h) retaliation claim: (1) that the 25 employee engaged in activity protected under the statute; (2) that the employer knew that the 26 employee engaged in protected activity; and (3) that the employer discriminated against the 27 employee because she engaged in protected activity.” Moore v. Cal. Inst. of Tech. Jet Propulsion 1 Protected activity is defined as “lawful acts done . . . in furtherance of an action under [the 2 FCA] or other efforts to stop 1 or more violations of [the FCA].” 31 U.S.C.A. § 3730 (h)(1). 3 “[A]n employee engages in protected activity where (1) the employee in good faith believes, and 4 (2) a reasonable employee in the same or similar circumstances might believe, that the employer is 5 possibly committing fraud against the government.” Moore, 275 F.3d at 845. “ ‘[S]pecific 6 awareness of the FCA is not required,’ but ‘the plaintiff must be investigating matters which are 7 calculated, or reasonably could lead, to a viable FCA action.’ ” Id. (quoting United States ex rel. 8 Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir. 1996)). 9 The Ninth Circuit has cautioned that mistakes, negligence, and scientific errors are not 10 “fraud” within the meaning of the FCA: 11 Wang’s case betrays a serious misunderstanding of the Act’s purpose. The weakest account of the Act’s requisite intent is the knowing 12 presentation of what is known to be false. The phrase “known to be false” in that sentence does not mean “scientifically untrue”; it means 13 “a lie.” The Act is concerned with ferreting out “wrongdoing,” not scientific errors. What is false as a matter of science is not, by that 14 very fact, wrong as a matter of morals. The Act would not put either Ptolemy or Copernicus on trial. — 15 — 16 Wang v. FMC Corp., 975 F.2d 1412, 1421 (9th Cir. 1992) (cleaned up), overruled on other 17 grounds by United States ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121 (9th Cir. 18 2015) (en banc). Addressing the particular instances of purported misconduct on which the 19 plaintiff relied, the Ninth Circuit held that “[b]ad math is no fraud,” “[p]roof of one’s mistakes or 20 inabilities is not evidence that one is a cheat,” and “[w]ithout more, the common failings of 21 engineers and other scientists are not culpable under the Act.” Id. at 1420–21. 22 Here, Williams cannot show that he engaged in protected activity because there is no 23 evidence that he actually believed at the time of the activity in question—i.e., before he was 24 fired—that LLNS was potentially defrauding the government. Even if he could, there is no 25 evidence that anyone at LLNS knew he was attempting to report or avert fraud. 26 1. Williams Has Not Shown Protected Activity 27 In Moore, two employees of the Jet Propulsion Laboratory (“JPL”) concluded that gears in 1 them, and another employee “approved a lien on the transfer of the antenna which also indicated 2 that the gears needed to be replaced.” 275 F.3d at 846. The contract for the antenna included a 3 significant discretionary incentive award. Id. On the same day that JPL circulated an internal 4 memo that “stressed the importance of prompt delivery to make a good impression on NASA,” the 5 employee who had previously approved the lien sent “the outside contractor responsible for 6 releasing the lien[] a memo stating that there was no problem with the structural integrity of the 7 gears and no need to replace them in the foreseeable future.” Id. The outside contractor requested 8 a report authored by one of the employees who originally concluded the gears needed to be 9 replaced, and JPL sent a copy of the report omitting the pages that recommended replacing the 10 gears. Id. The other employee who had originally recommended replacing the gears called the 11 NASA Inspector General’s office and reported that he “suspected fraud at JPL,” and later brought 12 a retaliation claim under the FCA. Id. 13 The district court granted summary judgment for the defense on the basis that the 14 employee did not engage in protected activity because the memo to the outside contractor denying 15 problems with the gears was not “directly related to” a payment by the government. Id. The 16 Ninth Circuit reversed, holding that a jury could conclude the employee “believed in good faith” 17 that the memo had been a lie intended “to speed up the release of the lien on the antenna and 18 ensure delivery of the antenna to NASA as scheduled, and, as a result, increase the amount of the 19 discretionary Incentive Award NASA would pay to JPL,” and could also conclude that “that a 20 reasonable employee in the same or similar circumstances might believe” the same. Id. 21 On the other hand, courts have held that where employees are motivated by concerns other 22 than investigating fraud against the government, they do not engage in conduct protected by the 23 FCA. Reversing a jury verdict in favor of a teacher who raised concerns about misconduct by a 24 school district that received federal funds for special education programs, the Ninth Circuit wrote: 25 The entire record fails to demonstrate Hopper was engaged in “furtherance of an action” under the FCA. Rather, the record quite 26 clearly shows Hopper was merely attempting to get the School District to comply with Federal and State regulations. Her numerous 27 written complaints, seventy letters and over fifty telephone calls were IEP evaluation sessions. She was not investigating fraud. She was not 1 whistleblowing as envisioned in the paradigm qui tam FCA action. United States ex rel. Fine v. Chevron, U.S.A., Inc., 72 F.3d 740 , 742 2 (9th Cir.1995) (en banc), cert. denied, 517 U.S. 1233 , 116 S.Ct. 1877 , 135 L.Ed.2d 173 (1996). Quite plainly, the thrust of her complaints 3 was that the School District was failing to meet its IDEA obligations to its students. Correcting regulatory problems may be a laudable 4 goal, but one not actionable under the FCA in the absence of actual fraudulent conduct. — 5 — 6 Hopper, 91 F.3d at 1269 . 7 In Boyd v. Accuray, Inc., a district court relied on Hopper to grant summary judgment for 8 the defendant where “the record quite clearly shows that Plaintiff was merely attempting to get 9 Accuray to comply with FDA’s ‘traceability’ regulatory requirement and was concerned about 10 patient safety, not fraud against the U.S. government.” 873 F. Supp. 2d 1156, 1164 (N.D. Cal. 11 2012) (Koh, J.), aff’d, 593 F. App’x 647 (9th Cir. 2015). The Boyd court rejected the plaintiff’s 12 “self-serving declaration in support of his opposition” presenting a theory that the regulatory 13 violations at issue enabled customs fraud, finding that it was a sham in light of contemporaneous 14 evidence that the plaintiff’s motives lay elsewhere and his own sworn testimony that he “could not 15 explain how any of the events that transpired . . . resulted in the U.S. government getting any less 16 money.” Id. at 1164–65; see also United States ex rel. Lockyer v. Hawaii Pac. Health, 490 F. 17 Supp. 2d 1062, 1083–84 (D. Haw. 2007) (granting summary judgment where the record made 18 clear the plaintiff was investigating discrepancies in his own pay, not fraud on the government, 19 despite his declaration to the contrary), aff’d, 343 F. App’x 279 (9th Cir. 2009). 20 This case does not resemble Moore, where: (1) the contract at issue included a significant 21 discretionary component to be determined by the government agency; (2) the plaintiff had recently 22 received a memo stressing the importance of prompt completion and minimizing lien-related 23 delays in order to make a good impression on that agency; and (3) the plaintiff specifically 24 reported that he “suspected fraud” in lifting a lien. See 275 F.3d at 846. Instead, it is more like 25 Hopper, Boyd, and Lockyer, where plaintiffs lodged complaints or started investigations for other 26 reasons, and only developed theories of fraud against the government after they experienced the 27 conduct they alleged to be retaliatory. 1 fired. Grove Decl. Ex. 3 (Williams Dep.) at 311:4–312:16. No one to whom he raised concerns 2 while employed at LLNS remembers him alleging fraud or similar misconduct. Grove Decl. Exs. 3 5, 22, 28–34. Evidence from after he was fired suggests an evolving theory of motive, beginning 4 with concerns of bad science and willful blindness after he was fired in 2017 and 2018, id. Ex. 2 at 5 14947–48, developing to a vague hypothesis in mid-2019 that Vitello was motivated by funding, 6 id. Ex. 48 at 1722, then to questions later that year as to whether Vitello’s work was fraudulent, id. 7 Ex. 47 at 3613–14, to being “absolutely confident” in July of 2020 that some as-yet-undetermined 8 claim for funds motivated Vitello’s shoddy work, id. Ex. 53 at 15255, and ultimately ending with 9 identifying a Department of Energy incentive program as the government funding mechanism on 10 which to hang his claim in 2021, e.g., id. Ex. 54 at 15188. 11 This evidenced alone might well be enough to warrant summary judgment on the element 12 of Williams’s subjective belief. Moreover, unlike in Boyd and Lockyer, Williams has not even 13 offered a declaration that he believed Vitello was engaged in defrauding the government when he 14 raised concerns about his model. His declaration makes clear that he believed Vitello’s work was 15 unscientific, and that it was important. See generally Williams Decl. But that is not the same as 16 fraud. See Wang, 975 F.2d at 1421 . He asserts in his opposition brief that he “suspected fraud 17 from mid-2016,” Opp’n at 14, but “a party cannot manufacture a genuine issue of material fact 18 merely by making assertions in its legal memoranda.” S. A. Empresa De Viacao Aerea Rio 19 Grandense (Varig Airlines) v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1982). 20 The only evidence that comes close to suggesting that Williams was concerned about 21 LLNS defrauding the government before he was fired is a passing statement in his deposition, 22 when asked if he ever told anyone that he “thought that Lawrence Livermore had made a false 23 certification or a false statement to the government,” that he “definitely had those concerns” but 24 did not tell anyone about them. Grove Decl. Ex. 3 (Williams Dep.) at 312:4–11. Neither party 25 addresses that testimony in their briefs. The FCA prohibits false statements for the purpose of 26 defrauding the government out of money, rather than making false statements at all, and 27 Williams’s comment that he harbored undisclosed concerns about false statements stops short of 1 To the extent there is any question of what Williams meant by that deposition testimony, 2 his YouTube video—the overall accuracy of which he reaffirmed at his deposition, id. at 318:6– 3 25—makes clear that a potential motive of Vitello or others at LLNS to obtain funding only 4 occurred to Williams after he lost his job. Grove Decl. Ex. 50 at 18:22–18:38 (“It all finally made 5 sense after I was fired . . . that somebody is trying to get money funneled in a certain place . . . .”). 6 Despite LLNS relying on that video in its motion, Williams does not address it in his opposition 7 brief. 8 Taking together Williams’s video statement that a funding motive only occurred to him 9 after he was fired, evidence suggesting that he developed his present theory of fraud in the years 10 afterwards, and the lack of any declaration or other evidence that he was concerned about 11 fraudulent claims for government funds when he worked at LLNS, no reasonable jury could find 12 that Williams’s complaints about Vitello’s work were intended to deter or uncover a fraudulent 13 claim within the meaning of the FCA. 14 Other potential motives Williams may have harbored—whether standing up for his own 15 work, championing the integrity of science for its own sake, or pursuing an effective nuclear 16 deterrent for national defense—might well be laudable, but Williams has asserted his claim under 17 the FCA, and he has not produced evidence that he engaged in the sort of conducted protected by 18 that statute. See Hopper, 91 F.3d at 1269 (“Correcting regulatory problems may be a laudable 19 goal, but one not actionable under the FCA in the absence of actual fraudulent conduct.”). 20 Because Williams cannot show on this record that he subjectively believed he was reporting a 21 fraudulent claim for government funds, LLNS is entitled to summary judgment on Williams’s sole 22 claim for retaliation in violation of the FCA. The Court does not reach the parties’ arguments 23 regarding the objective prong of the test for protected conduct. 24 2. Williams Has Not Shown LLNS’s Knowledge 25 Even if Williams could show that he harbored a belief that LLNS was engaged in some 26 sort of fraud on the government at the time he was challenging Vitello’s work, there is no evidence 27 that anyone at LLNS knew that Williams held such a belief or understood his conduct as an effort 1 A “whistleblower must show the employer had knowledge the employee engaged in 2 ‘protected activity,’ ” because “unless the employer is aware that the employee is investigating 3 fraud, the employer could not possess the retaliatory intent necessary to establish a violation of 4 § 3730(h).” Hopper, 91 F.3d at 1269 . “[W]hen an employee voices complaints but does not refer 5 to any allegations of fraudulent conduct against the government, the employer lacks the requisite 6 knowledge to make out a FCA retaliation claim.” Lockyer, 490 F. Supp. 2d at 1085. Even where 7 a defendant “may have engaged in retaliation for [the plaintiff’s] activities,” that does not violate 8 the FCA if the defendant had no reason to believe the activities at issue were connected to that 9 statute. Hopper, 91 F.3d at 1270 . 10 The Court is aware of no authority supporting Williams’s contention that he should be held 11 to a lower burden as to this element because he reasonably feared retaliation. The issue here is not 12 the reasonableness of Williams’s conduct, but whether LLNS knew he was investigating potential 13 fraud on the government. Of course, if there were other evidence that anyone at LLNS believed 14 that was his goal, Williams could satisfy this element even if he did not explicitly disclose such a 15 purpose. But the record contains no such evidence; to the contrary, every relevant LLNS 16 employee states that they did not understand Williams to be accusing Vitello of fraud or otherwise 17 suggesting fraud against the government. Grove Decl. Exs. 5, 22, 28–34. Williams must therefore 18 present evidence from which it is reasonable to infer, despite those denials, that someone at LLNS 19 knew he was pursuing a potential FCA violation. 20 Typically, such evidence would show that a plaintiff told the defendant what the plaintiff 21 was doing. See Lockyer, 490 F. Supp. 2d at 1085. It is not unusual that a plaintiff might fear 22 repercussions from accusing their employer of fraud, but that is the very purpose of the FCA’s 23 anti-retaliation provision—to protect employees from such consequences. To fall within that 24 protection, a whistleblower generally must blow their whistle loud enough for their employer to 25 hear it. If they do not, and there is no other evidence showing that the employer believed the 26 employee was pursuing an FCA claim or attempting to prevent an FCA violation, then the 27 employee cannot show that any subsequent adverse action was retaliation for activity protected by 1 By Williams’s own admission, he never overtly accused anyone of fraud against the 2 government or suggested that such fraud was occurring during the time he worked for LLNS. See 3 Grove Decl. Ex. 3 (Williams Dep.) at 311:4–312:16. He attempted to frame his concerns about 4 Vitello’s work diplomatically, rather than risk his job by leveling explosive accusations at a more 5 senior scientist. See, e.g., id. at 288:22–289:15. Williams is correct that he is not required to 6 “know the particulars of an FCA action or qui tam possibility or use appropriate language when 7 internally reporting wrongdoing,” but even the case on which he relies for that proposition makes 8 clear that he still “must set forth some connection to fraudulent or false claims against the federal 9 government” in order to support an inference that LLNS retaliated for his investigation of such 10 fraud. McKenzie v. BellSouth Telecommunications, Inc., 219 F.3d 508, 518 (6th Cir. 2000); see 11 Opp’n at 15. Merely expressing disagreement—even profound disagreement—with the merits of 12 a colleague’s work would not put others at LLNS on notice that Williams believed anyone there 13 was potentially defrauding the government. See, e.g., Grove Decl. Ex. 22 (Lorenz Decl.) ¶¶ 7–8 14 (stating that Lorenz shared Williams’s concerns about the merits of Vitello’s model but did not 15 consider those deficiencies to suggest fraud or dishonesty); id. Ex. 31 (Miller Decl.) ¶ 3 (“This 16 was not unusual—debate between the scientists about the various aspects, merits and 17 shortcomings of the models is a daily activity . . . .”). “Proof of one’s mistakes or inabilities is not 18 evidence that one is a cheat.” Wang, 975 F.2d at 1420 . 19 Williams suggests that because his extensive efforts to develop an alternative model went 20 beyond his assignments and LLNS’s expectations for his work, LLNS would have inferred that he 21 believed Vitello’s model was fraudulent. He relies on caselaw holding that where an employee’s 22 investigative efforts fall within the normal duties of their job, those efforts are not protected 23 conduct or the employer lacks the necessary knowledge that the employee was pursuing an FCA 24 claim. Opp’n at 15–16 (citing Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948 (5th Cir. 25 1994)). But that proposition does not support the converse, that any efforts outside of an 26 employee’s normal work would give rise to an inference that the employee suspected fraud. As 27 LLNS notes in its reply, “knowing that someone thinks he can come up with a better, scientifically ] Williams “gave LLNS no reason to think that he was trying to avoid a fraud by not doing his job 2 || and working on something else instead.” Reply at 4. 3 Accordingly, as a separate and sufficient reason beyond Williams’s failure to present 4 || evidence of his own contemporaneous belief that LLNS was perpetrating fraud on the government, 5 || LLNS is entitled to summary judgment because there is no evidence that it knew Williams was 6 || engaged in protected conduct. 7 || IV. CONCLUSION 8 For the reasons discussed above, LLNS’s motion for summary judgment is GRANTED. 9 || The Court does not reach the parties’ arguments as to what a reasonable employee in Williams’s 10 || position would have believed, and has no occasion to resolve other issues such as the merits of 11 Vitello’s model or the reason Williams was fired. 12 The Clerk shall enter judgment in favor of LLNS and close the case. g 13 IT ISSO ORDERED. 14 || Dated: January 2, 2023 5 J Aa JOSEPH C. SPERO A 16 ief Magistrate Judge — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —