Gregory Greer v. General Dynamics ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1235
GREGORY GREER,
Plaintiff - Appellant,
v.
GENERAL DYNAMICS INFORMATION TECHNOLOGY, INC., a Delaware
Corporation doing business in the State of Maryland,
Defendant - Appellee.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paul W. Grimm, District Judge. (8:18-cv-01193-PWG)
Submitted: March 19, 2020 Decided: April 13, 2020
Before WILKINSON, QUATTLEBAUM, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ralph S. Greer, LAW OFFICE OF RALPH GREER, Rockville, Maryland, for Appellant.
Christopher E. Humber, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
From 2011 to 2015, Gregory Greer was employed by General Dynamics
Information Technology Incorporated as a technical editor. Greer worked on projects
arising from General Dynamics’ contracts with the federal government, often collaborating
with employees of the Department of Defense. In early 2015, after a personnel shake-up
on the project to which he was assigned at Walter Reed National Military Medical Center,
Greer claims he was asked to work under the direct supervision of a government employee.
Believing such an arrangement to be illegal, Greer brought it to the attention of his
superiors at General Dynamics. Ultimately given the choice of accepting the arrangement
and continuing to work on the project at Walter Reed or resigning his position, Greer chose
to resign. He subsequently filed this lawsuit, contending that his resignation had been
coerced by circumstance and therefore constituted an unlawful constructive discharge. He
also alleged that General Dynamics had concealed from him his “true security clearance
level.” General Dynamics filed a motion to dismiss for failure to state a claim, which the
district court granted. We affirm.
I.
A motion to dismiss for failure to state a claim “tests the sufficiency of a complaint.”
King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). In order to survive such a motion,
the plaintiff must “‘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 complaint that lacks sufficient factual allegations or fails to identify a cognizable legal
theory cannot survive application of this standard. On appeal, “we review de novo the
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grant of a motion to dismiss for failure to state a claim.” Garnett v. Remedi Seniorcare of
Virginia, LLC, 892 F.3d 140, 142 (4th Cir. 2018).
A.
Greer’s primary contention is that General Dynamics constructively discharged him
by forcing him to choose between the new staffing arrangement (thereby becoming
complicit in what he believed to be illegal behavior) and resigning. That discharge, he
claims, violated the “anti-reprisal” provisions of 10 U.S.C. § 2409, the Defense Contractor
Whistleblower Protection Act (DCWPA). “The DCWPA prohibits retaliation against
employees of defense contractors who report certain types of misconduct.” United States
ex rel. Cody v. ManTech Int’l, Corp., 746 Fed. App. 166, 178 (4th Cir. 2018) (argued but
unpublished). A contractor who discloses to his employer (or certain statutorily identified
government entities or officials) information he “reasonably believes is evidence” of “a
violation of law, rule, or regulation related to a Department contract . . . or grant” cannot
be “discharged, demoted, or otherwise discriminated against” for having made the
disclosure. 10 U.S.C. § 2409(a)(1)(A). Greer contends that the Federal Acquisition
Regulations (FAR), 48 C.F.R. §§ 1 et seq., “prohibit[] a government employee from
directly supervising the employees of a contractor working on a nonpersonal services
contract.” Opening Br. 11. Thus, Greer argues, when he informed General Dynamics of
the new supervisory arrangement at Walter Reed, he made a disclosure regarding a
violation of a regulation related to a Department contract—that is, a disclosure covered by
the DCWPA—and General Dynamics engaged in an illegal reprisal when it forced him to
choose between participating in what he considered illegal conduct and resigning.
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In order to survive a motion to dismiss, Greer’s DCWPA claim must allege facts
sufficient to plausibly show that he engaged in a protected disclosure, that his employer
was on notice of that disclosure, and that, as a result of the disclosure, he was subjected to
an adverse employment action, such as a constructive discharge. See United States ex rel.
Cody v. Mantech Int’l Corp., 207 F. Supp. 3d 610, 621 (E.D. Va. 2016) (“[I]n order to
establish a prima facie case of unlawful retaliation [under the DCWPA], a whistleblower
plaintiff must establish that: (1) he engaged in protected activity; (2) his employer knew or
was reasonably on notice that he was engaged in protected activity; and (3) his employer
took adverse action against him as a result of his protected activity.”), aff’d 746 Fed. App.
166 (4th Cir. 2018).
The district court was unable to “discern from Greer’s pleadings” how the new
supervisory arrangement—in which Greer would work under the direct supervision of a
federal government employee—“violated [the] FAR.” Greer v. Gen. Dynamics Info. Tech.,
Inc., No. 8:18-cv-01193-PWG, 2019 WL 764018, at *4 (D. Md. Feb. 21, 2019). Nor has
Greer brought to our attention on appeal any authority supporting his contention that the
new arrangement violated the law. He points to FAR 7.503, which suggests that his
argument is premised on the notion that the arrangement constitutes a contract being “used
for the performance of [an] inherently governmental function[],” which is prohibited. 48
C.F.R. § 7.503(a). But the specific provision on which he relies—regarding “[c]ontractors
participating in any situation where it might be assumed that they are agency employees or
representatives”—is included in a list of examples “generally not considered to be [an]
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inherently governmental function[].” 48 C.F.R. § 7.503(d)(13) (emphasis added). Thus,
the only authority Greer cites appears to undercut, not bolster, his claim.
It is not clear, then, that Greer made a protected disclosure that would trigger the
anti-reprisal protection provided by the DCWPA. And even assuming he made a protected
disclosure, we agree with the district court that an employee’s mere discomfort with “a
supervisory situation contrary to his employer’s government contract” “simply do[es] not
rise to the level of [an] intolerable” condition necessary to transform a voluntary
resignation into a constructive discharge. Greer, 2019 WL 764018, at *4; see Williams v.
Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004) (“[D]ifficult or unpleasant working
conditions are not so intolerable as to compel a reasonable person to resign.” (internal
quotation marks omitted)). Either way, it is evident that Greer has not advanced a plausible
claim under the DCWPA, so dismissal of the first theory of liability set forth in his
complaint was appropriate.
B.
Greer’s second claim concerns General Dynamics’ purported concealment of his
level of security clearance. As outlined in the operative complaint, Greer accuses General
Dynamics of “erroneously inform[ing]” him that “the security clearance [General
Dynamics] had sponsored [him] for was a Public Trust clearance when in fact the clearance
was a Secret clearance.” J.A. 88. This “intentional[] and malicious[] conceal[ment]” of
his “true security clearance level,” Greer contends, was a “violation of Executive Order
12829.” J.A. 90.
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“As a general rule, ‘there is no private right of action to enforce obligations imposed
on executive branch officials by executive orders.’” Chen Zhou Chai v. Carroll, 48 F.3d
1331, 1338 (4th Cir. 1995) (quoting Facchiano Constr. Co. v. U.S. Dep’t of Labor, 987
F.2d 206, 210 (3d Cir. 1993)). Thus, an executive order is only “privately enforceable” if
it “is issued pursuant to a statutory mandate or delegation of congressional authority.” Id.
(citing, inter alia, U.S. Dep’t of Health & Human Servs. v. Fed. Labor Relations Auth., 844
F.2d 1087, 1095–1096 (4th Cir. 1987) (en banc) (“The executive branch . . . simply has no
power to make the law; that power rests exclusively with Congress.”)).
Executive Order 12829 was issued by President Bush in January 1993. The order
“establishes a National Industrial Security Program to safeguard Federal Government
classified information that is released to contractors, licensees, and grantees of the United
States Government.” Exec. Order No. 12829, 58 Fed. Reg. 3479 (Jan. 6, 1993). The order
contains various directives to executive branch officials designed to effectuate this
presidential policy objective. Nothing in the order, however, indicates that it was issued
pursuant to a statutory mandate or congressional delegation or otherwise suggests that it
was intended to create a privately enforceable right of action.
On appeal, Greer has identified no authority suggesting otherwise. Instead he
contends, for the first time, that his complaint raises a claim for “common law deceit.”
Opening Br. 4, 14. Although we retain the discretion to address arguments not previously
raised in the first instance before a lower tribunal, “[i]n this circuit, we exercise that
discretion sparingly.” In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014). “Absent
exceptional circumstances . . . we do not consider issues raised for the first time on appeal.”
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Volvo Const. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 603 (4th Cir. 2004);
see also Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (“As this court has
repeatedly held, issues raised for the first time on appeal generally will not be considered.
Exceptions to this general rule are made only in very limited circumstances . . . .” (citations
omitted)). The circumstances of this case fall well short of exceptional, and declining to
address Greer’s newly raised argument will not “result in a miscarriage of justice.” Nat’l
Wildlife Fed’n v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988). We therefore will not address
the argument raised for the first time on appeal. Left without a cognizable cause of action,
Greer’s second theory of liability also fails to state a claim.
* * *
The district court determined that Greer’s complaint could not survive the testing of
a motion to dismiss. Nothing on appeal indicates this conclusion was in error.
Accordingly, the decision of the district court is affirmed. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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