U.S. ex Rel. Tillson v. Lockheed Martin Energy Sys., Inc.

Full title: UNITED STATES OF AMERICA ex rel JOHN DAVID TILLSON PLAINTIFF v. LOCKHEED…

Court: United States District Court, W.D. Kentucky, Paducah Division

Date published: Sep 29, 2004

Civil Action Nos. 5:00CV-39-M, 5:99CV-170-M (W.D. Ky. Sep. 29, 2004)

Opinion

Civil Action Nos. 5:00CV-39-M, 5:99CV-170-M.

September 29, 2004

MEMORANDUM OPINION AND ORDER

JOSEPH McKINLEY, District Judge

This matter is before the Court on various motions by Defendants to dismiss the complaints filed in these cases and on a motion by the United States to Consolidate both cases. Oral arguments were held on these motions on September 14, 2004. Fully briefed and argued, these matters are ripe for decision.

I. STANDARD OF REVIEW

Upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the Court must construe the complaint in a light most favorable to the plaintiffs, accept all the factual allegations as true, and determine whether the plaintiffs undoubtedly can prove no set of facts in support of their claim that would entitle them to relief. Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996), cert. denied, 520 U.S. 1251 (1997). A judge may not grant a Fed.R.Civ.P. 12(b)(6) motion based on a disbelief of a complaint's factual allegations.Wright v. MetroHealth Medical Center, 58 F.3d 1130, 1138 (6th Cir. 1995), cert. denied, 516 U.S. 1158 (1996). A Fed.R.Civ.P. 12(b)(6) motion tests whether the plaintiffs have stated a claim for which the law provides relief. Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir. 1994). In deciding a motion to dismiss, the Court may consider all documents attached or incorporated in the complaint, as well as any matters of which judicial notice may be taken. Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); United States ex rel. Dingle v. BioPort Corporation, 270 F. Supp.2d 968, 971 (W.D. Mich. June 18, 2003). It is against this standard that the Court reviews the following facts.

II. BACKGROUND

Defendant, Martin Marietta Energy Systems, Inc. ("MMES"), a wholly owned subsidiary of Martin Marietta Corporation, operated the Paducah Gaseous Diffusion Plant ("PGDP") facility for the Department of Energy ("DOE") pursuant to a contract from April 1, 1984, through June 30, 1993, replacing Union Carbide Corporation as the operator. In October of 1992, Congress created the United States Enrichment Corporation ("USEC") for purposes of privatizing the government's uranium enrichment enterprise. Effective July 1, 1993, DOE leased PGDP's production operations facilities to USEC, with the rest of the PGDP still owned and controlled by DOE. Beginning on July 1, 1993 and extending through June 19, 1995, Martin Marietta Utility Services, Inc. ("MMUS"), also a subsidiary of Martin Marietta, was under contract with the USEC to operate PGDP's production facilities. During this time, MMES continued to work at PGDP with the DOE, but its focus shifted heavily to environmental restoration, waste management, and PGDP site custodial care. MMES also assumed responsibility for all facilities at PGDP not directly related to operation of the enrichment facility.

On June 19, 1995, Martin Marietta Corporation merged with Lockheed Corporation to form Defendant Lockheed Martin Corporation ("Lockheed Martin"). MMES became Lockheed Martin Energy Systems, Inc. ("LMES"), which assumed MMES's duties at the PGDP. MMUS became Lockheed Martin Utility Systems, Inc. ("LMUS"), which assumed MMUS's duties at the PGDP.

NRDC's Qui Tam Action

On June 1, 1999, Plaintiffs-Relators, Natural Resources Defense Council, Inc.("NRDC"), Thomas B. Cochran, Ronald B. Fowler, Charles F. Deuschle, and Garland E. Jenkins commenced this qui tam action under the False Claims Act, 31 U.S.C. § 3729, et seq., against Lockheed Martin Corporation, Lockheed Martin Energy Systems, Martin Marietta Corporation, and Martin Marietta Energy Systems by filing a complaint under seal as required by the Act. On July 29, 2002, the Plaintiffs-Relators filed a First Amended Complaint adding Defendants Lockheed Martin Utilities Systems and Martin Marietta Utility Systems alleging essentially the same facts and causes of action as the original complaint.

In Count I, NRDC alleges that Defendants, beginning in 1989 and continuing until the filing of the complaint, knowingly presented or caused to be presented to the DOE false and fraudulent claims pertaining to the collection, categorization, storage and disposal of all wastes in landfills C-746-S and C-746-T, and in other unauthorized locations on and off site as well. NRDC's Count II alleges that Defendants, beginning in 1989 and continuing to the filing of the complaint, knowingly presented or caused to be presented to the DOE false claims pertaining to the contamination of ditches, creeks, outfalls, and other locations at the PGDP site, with radioactive, toxic, and/or mixed wastes.

In Count V, the NRDC alleges Defendants MMES and Martin Marietta, in 1989 through 1991, knowingly presented or caused to be presented false claims for compensation pertaining to the two-part investigation of the extent of contamination discovered by the Kentucky Radiation Control Branch in 1988. In Count VI, the NRDC alleges that Defendants committed a reverse False Claims Act violation by submitting false information to the Government in order to avoid an obligation to remediate contamination on the site.¹

1 At the hearing, counsel for the NRDC moved to withdraw Count III (exposure of workers to radiation hazards) and Count IV (contamination of commercial metals supply). The Court granted that motion without prejudice to the United States.

Tillson's Qui Tam Action

On February 9, 2000, Plaintiff-Relator, John David Tillson, commenced this qui tam action under the False Claims Act, 31 U.S.C. § 3729, et seq., against Lockheed Martin Energy Systems, Inc. ("LMES"), and Martin Marietta Energy Systems, Inc. ("MMES"), by filing a complaint under seal as required by the Act. Tillson's original complaint alleges in a single count under the FCA that in the summer and fall of 1994, LMES and MMES engaged in a false and fraudulent billing scheme by making false reports and representations to the United States Department of Energy concerning the necessity of an asbestosdecontamination project for classified nickel ingots at the Paducah Gaseous Diffusion Plant (PDGP). Tillson alleges that the government was told the ingots were covered with asbestos, when in fact they were not, and therefore the costs charged to the government for removing the asbestos were unnecessary and constituted false claims.

On November 29, 2000, while the original qui tam complaint remained under seal, Tillson filed a First Amended Complaint under seal asserting six additional FCA counts against LMES and MMES, and a single FCA count against his former employer, Science Applications International Corporation (SAIC). Tillson's First Amended Complaint contained his original nickel ingot/asbestos-decontamination claim against LMES and MMES as its Count I. In Count II, Tillson alleges that SAIC made false representations and claims to the United States in connection with SAIC's scanning and certification of radioactive rubble piles located in and around the PGDP in 1995. Tillson's Count III alleges that beginning in 1990-91, MMES and LMES were awarded an environmental oversight contract that included preparation of the PGDP C-404 landfill for closure, and that the Defendants made false representations and statements when it represented to the government that certain technical requirements were met in connection with the original construction of the C-404 landfill.

In Count IV, Tillson alleges that MMES and LMES failed to disclose to the Department of Energy that soil contamination had not been rectified by the installation of the fabric silt fence in accordance with the Defendants' agreement with the DOE to contain contaminated soil and surface water. Tillson's Count V alleges that LMES failed to reveal or acknowledge that ditches around the C-404 landfill were contaminated and failed to notify workers of the PDGP that they had been exposed to contamination. Count VI alleges that LMES and MMES overcharged the government by refusing to "outsource" sampling and analytical work that could have been done more cost effectively and accurately by an outside company, as opposed to Defendants' subcontractors doing such work in-house. As a result, Tillson contends that Defendants samples and analyses was incorrect.

Count VII alleges that around 1993-1994 MMES made false representations to DOE regarding "cost-effective" containment methods for the Northwest Plume groundwater contamination by recommending a "barrier wall" solution and intentionally inflating the costs of the other containment solutions. DOE did not select the barrier wall option, and as a result, MMES "installed a significantly larger and more expensive than needed pump and treat system." In Count VIII, Tillson alleges that between 1994 and 1996, he learned of LMES's practice of failing to report improper waste handling practices and areas of contamination, including PCB waste pits, degreasing solvent disposal, C-410/420 sludge pits, and RCRA listed solvent waste and other hazardous and radioactive waste. According to Tillson, the Defendant's failure to report these improper practices allowed them to avoid fines, receive undeserved bonuses, and to bill DOE for unnecessary services and services not actually performed.

While his first amended complaint remained under seal, on March 28, 2002, Tillson filed a second amended complaint. The second amended complaint added two new claims. In Count IX, Tillson alleges that in 1995 he informed LMES of deficiencies in its Kentucky permit for its pollution discharge, LMES refused to seek revisions, and therefore did not properly monitor waste water contamination. In Count X, Tillson has brought a retaliation claim on his own behalf against Defendants LMES and SAIC under 31 U.S.C. 3730(h).² Tillson alleges that SAIC and LMES/MMES blacklisted him and eventually denied him further employment in retaliation for reporting unspecified contamination and waste management violations by MMES and LMES.

2 The Defendants argue that Tillson actually brought the retaliation claim pursuant to the Federal Whistleblower Protection Act ("WPA") and not the retaliation provision of the FCA. For the reasons set forth below, the Court will interpret Tillson's retaliation claim under the FCA.

United States' Notice of Intervention and Amended Complaint

On May 30, 2003, the United States filed a notice of its decision to intervene in part of the NRDC action. Under the notice, the United States intervened in those portions of NRDC's Amended Complaint concerning "the Paducah Gaseous Diffusion Plant (PGDP) contract (paragraphs 29-39 of the Complaint; paragraphs 31-43 of the First Amended Complaint); allowable costs under the contract (paragraphs 40-41 of the Complaint; paragraphs 42-43 of the First Amended Complaint); environmental, health, and safety (EHS) rules applicable to the contract (paragraphs 42-51 of the Complaint; paragraphs 44-53 of the First Amended Complaint); EHS reporting requirements in the contract (paragraphs 52-53 of the Complaint; paragraphs 54-55 of the First Amended Complaint); payment of fees under the contract (paragraphs 54-61 of the Complaint; paragraphs 56-63 of the First Amended Complaint); and the existence and use of unauthorized radioactive and waste storage and disposal sites (paragraphs 52-67 of the Complaint; paragraphs 64-69 of the First Amended Complaint)." [DN 58 in 5:99CV-170-M].

Similarly, on May 30, 2003, the United States filed its motion to intervene in Tillson stating that it was intervening in only Count VIII of Tillson's First Amended Complaint alleging that Defendants, Lockheed Martin Energy Systems, Inc. and Martin Marietta Energy Systems, Inc., violated the False Claims Act by failing to report improper waste handling practices and areas of contamination, but not limited to, degreasing solvent disposal, sludge pits, and Resource Conservation and Recovery Act-listed solvent wastes.

On August 28, 2003, the United States filed the same amended complaint in both the NRDC action and the Tillson action asserting claims against LMES, LMUS and Lockheed Martin Corporation (and their predecessors, MMES, MMUS, and Martin Marietta Corporation) for alleged violations of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. (Counts 1 through 5) and for violations of the False Claims Act, 31 U.S.C. § 3729, et seq. (Count 6). The United States also asserted claims against these Defendants for breach of contract (Count 7), payment by mistake (Count 8), and unjust enrichment (Count 9).

III. MOTION TO DISMISS TILLSON'S AMENDED COMPLAINT

Defendants Lockheed Martin Energy Systems and Martin Marietta Energy Systems move to dismiss Tillson's second amended complaint. First, Defendants argue that because the NRDC complaint was filed prior to Tillson's original complaint and contains the same material allegations as Tillson's complaint, Tillson's claims are barred by the FCA's first-to file rule. Second, Defendants argue that Tillson's complaint is also barred by the FCA's public disclosure doctrine because Tillson's allegations are based upon information disclosed publicly by the NRDC relators and because Tillson is not an original source of those allegations. Third, Defendants assert that Tillson fails to allege the time, place and contents of the alleged fraudulent representations and, as a result, his complaint must be dismissed pursuant to Fed.R.Civ.P. 9(b). Finally, Defendants maintain that Tillson's retaliation claim must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) because Tillson was not an employee of the federal government and because he was not an employee of LMES or MMES.

SAIC likewise moves to dismiss Count 2 and Count 10 of Tillson's complaint arguing that (1) the complaint is barred by the FCA's first-to-file rule, (2) Tillson fails to plead the FCA claim with sufficient particularity as required by Fed.R.Civ.P. 9(b), and (3) Tillson's retaliation claim is time-barred.

A. Jurisdiction

In the interest of avoiding parasitic suits, Congress has placed some jurisdictional limits on qui tam actions. United States ex rel. McKenzie v. Bellsouth Telecommunications, Inc., 123 F.3d 935, 938 (6th Cir. 1997), cert. denied, 522 U.S. 1077 (1998). Defendants maintain that dismissal of Tillson's Federal False Claims Act case is warranted because the Court lacks subject matter jurisdiction over the action due to the jurisdictional bars of the FCA: the first-to-file rule and the public disclosure doctrine.See 31 U.S.C. § 3730(b)(5) and 31 U.S.C. §§ 3730(e)(4)(A) and (B). Tillson argues that the question of whether his action is barred by the FCA's first-to-file and public disclosure rules goes to the question of Tillson's standing to sue, not jurisdiction. Contrary to Tillson's argument, defenses based upon the first-to-file rule and the public disclosure bar are challenges to a court's subject matter jurisdiction. See United States ex rel. Jones v. Horizon Healthcare Corp., 160 F.3d 326 (6th Cir. 1998); McKenzie, 123 F.3d at 938; United States ex rel. Bledsoe v. Community Health Systems, Inc., 342 F.3d 634, 645 (6th Cir. 2003).

When a defendant moves to dismiss on grounds of lack of subject matter jurisdiction, "the plaintiff bears the burden of establishing jurisdiction." Jones, 160 F.3d at 329; McKenzie, 123 F.3d at 938. All factual allegations in the complaint are accepted as true and construed in the light most favorable to the plaintiff. Id. In reviewing a Rule 12(b)(1) motion, "the court may consider evidence outside the pleadings to resolve factual disputes concerning jurisdiction, and both parties are free to supplement the record by affidavits." Nichols v. Muskingum College, 318 F.3d 674, 677 (6th Cir. 2003). For purposes of this jurisdictional challenge, the Court has considered the NRDC complaint, articles cited by the Defendants that were published in major newspapers, and the affidavit of Relator Tillson submitted in his response to the motion to dismiss [DN 96, Exhibit A].

1. First-to-File

Defendants argue that Tillson is barred from pursuing his claim since he was not the first individual to raise allegations that the Defendants defrauded the government in connection with environmental contamination and waste management at the Paducah facility. According to Defendants, the same allegations were made in the NRDC action.

The first-to-file rule precludes successive plaintiffs from bringing related actions based on the same underlying facts. The False Claims Act provides that "[w]hen a person brings [a qui tam action], no person other than the Government may intervene or bring a related action based on the facts underlying the pending action." 31 U.S.C. § 3730(b)(5). "An exception-free, first-to-file bar conforms with the dual purposes of the 1986 amendments: to promote incentives for whistle-blowing insiders and prevent opportunistic successive plaintiffs." United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 (9th Cir.), cert. denied, 534 U.S. 1040 (2001).

The first-to-file provision bars actions which allege "the same material elements of fraud described in an earlier suit, regardless of whether the allegations incorporate somewhat different details." Lujan, 243 F.3d at 1189. See also United States ex rel. Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d 214, 217 (D.C. Cir. 2003); United States ex rel. Walburn v. Lockheed Martin Corp., 312 F. Supp.2d 936 (S.D. Ohio. 2004). In other words, "the actions need not allege identical facts for the later suit to be barred." Id. at 939. "'[S]ection 3730(b)(5) precludes a subsequent relator's claim that alleges the defendant engaged in the same type of wrongdoing as that claimed in a prior action even if the allegations cover a different time period or location within a company.'" Lujan, 243 F.3d at 1188 (quotingUnited States ex rel. Capella v. United Technologies Corp., 1999 WL 464536, *9 (D. Conn. June 3, 1999)). This is because "such duplicative claims do not help reduce fraud or return funds to the federal fisc, since once the government knows the essential facts of a fraudulent scheme, it has enough information to discover related frauds." United States ex rel. LaCorte v. SmithKline Beecham Clinical Laboratories, Inc., 149 F.3d 227, 234 (3d Cir. 1998); United States ex rel. Ortega v. Columbia Healthcare, Inc., 240 F. Supp.2d 8 (D.D.C. 2003).

The Court must compare Tillson's complaint with the NRDC's complaint to determine whether any of Tillson's claims survive the statutory bar. See Capella, 1999 WL 464536. In a pending multi-count complaint, the court must conduct a "claim-by-claim analysis" in order to determine if the first-to file rule bars a given claim. United States ex rel Merena v. SmithKline Beecham Corp., 205 F.3d 97, 102 (3d Cir. 2000); Lacorte, 149 F.3d at 234 n. 6; United States ex rel. Urbanek v. Laboratory Corp. of America Holdings, Inc., 2003 WL 22795324, *2 (E.D. Pa. November 21, 2003). With this standard in mind, the Court will now examine each of Relator's Tillson's claims to determine if they are related to the claims filed in the NRDC action. Id.

In Count 1 of Tillson's second amended complaint, Tillson alleges that LMES/MMES engaged in a false and fraudulent billing scheme related to the costs of a multi-million dollar asbestos-decontamination project to remove asbestos from nickel ingots at the PGDP. (Tillson's complaint at ¶ 16). Tillson alleges that the government was told that the ingots were covered with asbestos, when in fact they were not, and therefore the costs charged to the government for removing the asbestos were unnecessary and constituted false claims. (Id. at ¶ 11-18). The Defendants failed to point to any allegations related to this alleged scheme in the NRDC complaint. The comparison of Count 1 of Tillson's second amended complaint and the NRDC complaint reveal different types of fraudulent schemes. The allegations in the NRDC complaint consisting of claims of improper waste handling and contamination at the PGDP did not put the government on notice that LMES/MMES made false claims for the payment for unnecessary work related to the asbestos-decontamination project. As a result, the government has the chance to uncover additional fraud and to recover additional damages. See Capella, 1999 WL 464536, *10. Consequently, Count 1 of Tillson's second amended complaint is not barred by the first-to-file rule.

In Count 2 of Tillson's second amended complaint, Tillson alleges that SAIC falsely and fraudulently obtained payment by filing false reports related to the existence of many rubble piles and the lack of radiation in the rubble piles. (Tillson second amended complaint at ¶¶ 20-28). The NRDC action alleges that Lockheed Martin, LMES, and LMUS falsely and fraudulently obtained payment from DOE by submitting annual environmental reports and other documents that failed to report accurately the levels of radioactive contamination. (NRDC complaint at 2-3). The Court finds that the first-to-file rule bars Tillson's claims alleged in Count 2. The Court sees no meaningful distinction between Tillson's allegations that SAIC filed false claims related to the radiation levels in rubble piles, on the one hand, and NRDC's allegations that the Defendants filed false claims related to the levels of radioactive contamination at the PGDP site. Tillson's allegations appear to be a continuing part of the same fraud alleged throughout the NRDC's complaint. Although the NRDC's complaint does not specifically mention rubble piles, it does allege that the Defendants presented false claims that involved the improper reporting of radiation measurements at the PGDP. Specifically, the NRDC alleges that the Defendants submitted false claims "concerning the presence, extent, and nature of such contamination" (NRDC complaint at ¶ 70) and concerning "the collection, categorization, and disposal of all waste . . . in other unauthorized locations . . ." (NRDC complaint at ¶ 88). Accordingly, the Court finds that the broad allegations in the NRDC complaint regarding false claims related to the levels of radioactive contamination at the PGDP site encompass Tillson's more detailed "rubble pile" claim, and, thus, Tillson's Count 2 is barred by the first-to-file rule.

In Count 3, Tillson alleges that LMES and MMES were awarded an environmental oversight contract that included preparation of the PDGP C-404 landfill for closure, and that the Defendants made false representations that the 404 pond had a clay liner which implied that it met certain technical requirements. Tillson alleges that as a result of this false representation, the Government has paid for "unnecessary services and/or services not actually performed." (Tillson second amended complaint at ¶¶ 30-35). The NRDC action alleges that the Defendants made numerous false statements in annual environmental reports and other documents to the Government "concerning waste disposal practices and the status of landfills for the purposes of supporting claims for compensation." (NRDC complaint at ¶ 65). The NRDC relators specifically mention landfills C-404, C-746-K, C-746-S, and C-746-T and "possibly others." (NRDC complaint at ¶¶ 62-63). The Court once again finds that the first-to-file rule bars Tillson's Count 3 claim. Tillson's claim is simply a more detailed claim of improper reporting of the status of landfills that the Defendants were either in charge of operating or cleaning up. The NRDC's complaint provided enough information to the government related to the improper conditions at the C-404 landfill to enable the government "to discover related frauds" — specifically the condition of the clay liner. See LaCorte, 149 F.3d at 234.

Similarly, the Court finds that the first-to-file rule bars Tillson's claim under Count 4 of his second amended complaint. Tillson alleges that MMES and LMES failed to disclose to the Government that soil contamination had not been rectified by the installation of a silt fence in the northwest corner of the PGDP in accordance with the Defendant's agreement with the DOE to contain contaminated soil and surface water. (Tillson second amended complaint at ¶¶ 37-43). The NRDC's complaint is replete with allegations that the Defendants falsely and fraudulently obtained payment from the DOE by filing false reports related to contamination of ditches, creeks, outfalls, and other locations at the PGDP site, with radioactive, toxic, and/or mixed wastes. (NRDC Complaint at ¶¶ 68, 93). Both the NRDC action and the Tillson action allege the same fraudulent conduct of failing to report accurately the existence and/or levels of contamination. Tillson's "silt fence" claim is simply a more detailed account of the fraudulent claims related to soil contamination alleged by the NRDC Relators, and as such, is barred by the first-to-file rule.

In Count 5, Tillson alleges that LMES failed to reveal or acknowledge that ditches around the C-404 landfill were contaminated and failed to notify workers at the PGDP that they had been exposed to contamination. (Tillson second amended complaint at ¶¶ 44-52). Similarly, the NRDC asserts fraud by Defendants in connection with groundwater contamination at the PGDP and that the alleged misrepresentations by Defendants exposed Paducah facility workers to radioactive contamination. (NRDC complaint at ¶¶ 84-86, ¶¶ 74-76). Once again, Tillson's allegations in Count 5 are simply a variation of the much broader allegations made in the NRDC complaint regarding fraud in connection with contamination in ditches, surface water, creeks, sediments, and surface soil on and off-site of the PGDP and in connection with PGDP employee's exposure to radiation hazards. Thus, Count 5 of Tillson's second amended complaint is barred by the first-to-file rule.

In Count 6, Tillson alleges that a study conducted by Lockheed Martin personnel indicated that cost savings of over $1 million could be saved by outsourcing certain sampling and analytical work at the PGDP. Tillson contends that many samples and analysis conducted by Lockheed Martin were invalid due to such failure to outsource. (Tillson second amended complaint at ¶ 54-55).³ Tillson claims that "[a]s a result of the false representations of Lockheed Martin regarding the validity of their samples and analyses and the failure to disclose potential cost savings by outsourcing, [the Government has] been billed for and [has] paid for unnecessary services and/or services not actually performed." (Tillson second amended complaint at ¶ 58). Essentially, Tillson alleges that because Lockheed Martin failed to outsource certain sampling and analytical work, the samples and analyses conducted by it were invalid. Likewise, the NRDC alleges throughout its complaint that Defendants made numerous false statements concerning the presence, extent, and nature of the contamination of the PGDP site and failed to report accurately the levels of radioactive contamination. (See, e.g., NRDC complaint at ¶ 70, pages 2-3). Clearly, Tillson and the NRDC have made similar allegations regarding the accuracy of the Defendants' reporting of the existence of contamination and the levels of contamination. As a result, Tillson's Count 6 is barred by the first-to-file rule.

3 Tillson does refer to the cost of the Northwest pump and treatment lab in this count; however, Tillson's allegations of overcharging for that pump and treatment system is contained in Count VII and will be considered in the Court's discussion of that claim.

On the other hand, the Court finds that Count 7 of Tillson's complaint is not barred by the first-to-file rule. In Count 7, Tillson alleges that MMES made false representations to DOE regarding cost-effective containment methods for the Northwest Plume groundwater contamination by recommending a barrier wall solution and intentionally inflating the costs of the other containment solutions. Ultimately, the DOE did not select the barrier wall option, and as a result, MMES "installed a significantly larger and more expensive than needed pump and treat system" for the Northwest Plume. (Tillson second amended complaint at ¶ 61-65). A review of the NRDC's complaint reveals that Tillson's allegations of false claims relating to the inflation of cost of containment methods for the Northwest Plume groundwater contamination, and subsequent, overcharging the government for the Northwest Plume pump and treatment system are distinct allegations not contained in the NRDC complaint. The NRDC's allegations accusing the Defendants of false claims concerning contamination, improper waste management, and reporting of hazardous waste did not put the government on notice that MMES filed false claims with the government inflating costs of containment methods for the Northwest Plume and ultimately overcharging the government for the pump and treat system. As a result, the government has a chance to uncover additional fraud and recover additional damages. See Capella, 1999 WL 464536, *10. Accordingly, Tillson's Count 7 is not barred by the first-to-file rule.

In Count 8, Tillson alleges that LMES failed to report improper waste handling and areas of contamination, including PCB waste pits, degreasing solvent disposal, C-410/420 sludge pits, and RCRA listed solvent waste and other hazardous and radioactive waste. Tillson contends that the Defendant's failure to report these improper practices allowed it to avoid fines, receive undeserved bonuses, and to bill the government for unnecessary services and services not actually performed. (Tillson's amended complaint at ¶¶ 67-70). Similarly, the NRDC relators allege misrepresentations regarding "waste management" and "contamination" (NRDC's complaint at 2-3). Specifically, the NRDC alleges that "Lockheed Martin Corporation/LMES . . . caused or acquiesced in the continued disposal by their employees of radioactive and possibly hazardous and/or toxic wastes . . . and, despite such acts and failures to act, knowingly and falsely stated and represented to the Government that such wastes had not and were not being disposed of in [several PGDP] landfills. . . ." (NRDC complaint at ¶ 64). Tillson maintains that Count 8 survives the first-to-file bar because he has set forth a description of the hazardous wastes and RCRA F-listed wastes. However, this type of detail is not enough to survive the first-to-file rule. The fact that Tillson specifically listed the F-listed waste in his complaint is immaterial and does not change the fact that both complaints allege the same elements with respect to this claim. See LaCorte, 149 F.3d at 234. As a result, because Tillson's Count 8 is a "related" to the allegations contained in the NRDC complaint, Count 8 is barred by the first-to-file rule.

In Count 9, Tillson alleges that he informed LMES of deficiencies in its Kentucky permit for its pollution discharge because it did not include all ongoing and historic discharges of TCE and PCBs and other hazardous and radioactive waste, LMES refused to seek revisions, and therefore, did not properly monitor waste water contamination. Tillson contends that as a result of LMES's failure to identify all ongoing and historic discharges of TCE and PCBs and other hazardous and radioactive wastes, LMES's groundwater protection plan required by the EPA was inaccurate and insufficient. (Tillson second amended complaint ¶¶ 72-77). Likewise, NRDC alleges that the Defendants failed to report accurately waste handling practices and the levels of radioactive contamination, (NRDC complaint at 2-3, ¶ 93) including fraud in connection with groundwater contamination at the PGDP. (NRDC complaint at ¶¶ 84-86). Clearly, the NRDC's allegations encompass Tillson's claim with respect to the waste water contamination. As a result, Tillson's Count 9 is barred by the first-to-file rule.

In Count 10, Tillson brought a retaliation claim on his own behalf against Defendants LMES and SAIC under 31 U.S.C. § 3730(h). Tillson's retaliation claim is clearly distinct from any of the allegations found in the NRDC complaint. As a result, the first-to-file rule does not bar Count 10 of Tillson's complaint.

In an effort to save all of the claims in his complaint, Tillson maintains that the NRDC relators have failed to allege with particularity and specificity hazardous waste contamination and discharges to the environment; and as a result, his allegations are more particular and should not be precluded by the first-to-file rule. However, a later-filed complaint is barred even if it contains "additional details as to the scope of the defendants' alleged fraudulent practices." Palladino ex rel. U.S. v. VNA of Southern New Jersey, Inc., 68 F. Supp.2d 455, 478 (D.N.J. 1999). As noted above, "such duplicative claims do not help reduce fraud or return funds to the federal fisc, since once the government knows the essential facts of a fraudulent scheme, it has enough information to discover related frauds." LaCorte, 149 F.3d at 234. While the Court would agree that Tillson has provided more detail regarding some of these false claims, the NRDC's complaint provided enough information to enable the government "to discover related frauds." The Court observes that Tillson has valuable information related to the improper waste handling and contamination claims alleged in Counts 2, 3, 4, 5, 6, 8 and 9; however, the NRDC relators beat Tillson to the courthouse with respect to these claims. Therefore, the Court concludes that the allegations made by Tillson in this case with respect to Counts 2, 3, 4, 5, 6, 8, and 9 are encompassed by the allegations raised by the Relators in the NRDC action. NRDC's complaint was filed on June 1, 1999. Tillson's original complaint was filed on February 9, 2000. Since the Tillson complaint with respect to these counts "fails to allege a different type of wrongdoing, based on different material facts" and since Tillson's complaint was filed second, the Court concludes that Counts 2, 3, 4, 5, 6, 8, and 9 are barred by the first-to-file rule. Ortega, 240 F. Supp.2d 8; Walburn, 312 F. Supp.2d at 941.

2. Public Disclosure

Defendants argue that Tillson's complaint is also barred by the FCA's public disclosure doctrine, 31 U.S.C. § 3730(e)(4)(A) and (B). According to the Defendants, Tillson's allegations concern fraudulent conduct materially identical to that previously disclosed by the NRDC relators both in their complaint unsealed on August 11, 1999 and in major media outlets beginning on August 8, 1999 with aWashington Post article.

Section 3730(e)(4) provides as follows:

(4)(A) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.

(B) For purposes of this paragraph, "original source" means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.

31 U.S.C. § 3730(e)(4).

The Sixth Circuit has created a four-part test to determine whether a relator's case is jurisdictionally barred by the public disclosure doctrine:

[I]t is useful to break the inquiry down into its elements: (A) whether there has been a public disclosure in a criminal, civil or administrative hearing; or congressional, administrative, or government report, hearing, audit, or investigation; or from the news media; (B) of the allegations or transactions that form the basis of the relator's complaint; (C) whether the relator's action is "based upon" the publicly disclosed allegations or transactions. If the answer is "no" to any of these questions, the inquiry ends and the qui tam action may proceed. If the answer to each of the above questions is "yes," then the final inquiry is (D) whether the relator qualifies as an "original source" under § 3730(e)(4)(B), which also would allow the suit to proceed.

Jones, 160 F.3d at 330.

Therefore, "[t]he first inquiry in determining whether the jurisdictional bar of the FCA applies is whether there has been a 'public disclosure' of the claims raised by" Tillson in his second amended complaint.Jones, 160 F.3d at 330. Because the Court has dismissed Counts 2, 3, 4, 5, 6, 8, and 9 of Tillson's second amended complaint based upon the first-tofile rule, the Court is considering only whether the public disclosure doctrine bars Counts 1, 7, and 10.

In support of its argument that Tillson's claims are barred by the public disclosure doctrine, the Defendants contend that the NRDC's complaint and Washington Post articles disclosed the alleged fraud in connection with contamination and waste management at the PGDP facility no later than August 11, 1999. However, the Court has previously concluded that the allegations contained in Counts 1, 7, and 10 of Tillson's second amended complaint are not related to the allegations contained in the NRDC complaint. Therefore, the unsealing of the NRDC complaint did not publically disclose any allegations contained in these three counts. Furthermore, as discussed above, Tillson's remaining claims involve allegations of fraudulent billing related to the asbestos decontamination project, of overcharging for the Northwest Plume pump and treatment system, and of retaliation against Tillson. Defendants have repeatedly characterized the information disclosed by the newspaper articles as related to alleged fraud in connection with environmental contamination, waste management, and worker exposure to radiation at the PGDP. The Defendants have failed to point to particular examples of disclosures of the information contained in these three claims. From a review of the exhibits tendered by Defendants, including the August 8, 1999 Washington Post article and the Index to Newspaper Articles chronicling titles and dates of articles related to the alleged contamination at the PGDP site, the Court concludes that the allegations made in Counts 1, 7 and 10 were not publicly disclosed prior to Tillson's original complaint or amended complaints, and therefore, these claims are not barred by the public disclosure doctrine.

Notwithstanding this decision, even if the Court found that Tillson's allegations in Counts 1, 7, and 10 were based upon publically disclosed allegations, the Court would conclude that Relator Tillson qualifies as an "original source" under § 3730(e)(4)(B). For a relator to qualify as an "original source," the Sixth Circuit has held that the relator must inform the Government of the alleged fraud before the information upon which the complaint is based has been publicly disclosed. Jones, 160 F.3d at 333-334. In addition to possessing "direct and independent knowledge of the information on which the [publicly disclosed] allegations are based," a putative relator will not qualify as an original source unless he "voluntarily provided" the publically disclosed information to the government "before filing the qui tam action and prior to any public disclosure."Bledsoe, 342 F.3d at 646.

Defendants maintain that Tillson cannot qualify as an original source of such allegations because he did not voluntarily provide this information to the Government prior to its public disclosure. According to the Defendants, in order to survive the public disclosure bar, the Washington Post article obliged Tillson to have voluntarily provided to the Government the information revealed by the article prior to August 8, 1999.

In response to the arguments by the Defendants that the public disclosure doctrine bars Tillson's claims, Tillson submits his affidavit and accompanying exhibits which demonstrate that Tillson contacted the government concerning his allegations regarding the "nickel ingot issues, and to discuss the adverse actions taken against [Tillson] by [his] employer and MMES" on April 20 and 25, 1995. (Tillson Affidavit at ¶ 38). Additionally, Tillson attached to his affidavit an official complaint he filed with the Office of Special Council in Washington, D.C. on March 3, 1997 in which he specifically disclosed to it his allegations concerning nickle ingots and retaliation by SAIC. Furthermore, Tillson testified that he met with Jack Kolar of the Department of Justice in June of 1999 and told him about the fraud occurring at the PGDP, including "falsification of information to justify extremely high expense of pump and treat." Tillson Affidavit at Exhibit 4 and ¶ 65.⁴

4 At the hearing, Defendants argue that Tillson alleges at paragraph 5 of his complaint that he provided to the government "contemporaneously" with the filing of his complaint, "a statement of all material evidence and information relating to the Complaint." Defendants maintain that this allegation proves that Tillson did not voluntarily provide the information regarding his claims to the government prior to its public disclosure. However, a review of paragraph 5 indicates that Tillson provided the government this information "as required by the False Claims Act, 31 U.S.C. Section 3730(a)(2)." Section 3730(a) does not have a subpart 2; however, § 3730(b)(2) provides that "[a] copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Government. . . ." Tillson placed this statement in his complaint to indicate that he had adhered to the requirements of § 3730(b)(2). This statement is in no way contrary to his averments in his affidavit regarding when he disclosed the false claims to the government.

While the Defendants object to the Court considering the affidavit of Tillson on this issue, the Defendants have recognized that in reviewing a Rule 12(b)(1) motion, "the court may consider evidence outside the pleadings to resolve factual disputes concerning jurisdiction, and both parties are free to supplement the record by affidavits." Nichols, 318 F.3d at 677. Clearly, Tillson's affidavit supports his argument that he is an original source of the information contained in Counts 1, 7, and 10.

For these reasons, the Court concludes that Tillson's claims found in Counts 1, 7, and 10 are not barred by the first-to-file rule or the public disclosure doctrine; and as a result, the Court has subject matter jurisdiction over these claims.

B. Pleading Fraud with Particularity

Claims brought under the False Claims Act must comply with Federal Rule of Civil Procedure 9(b). United States ex rel. Bledsoe v. Community Health Systems, Inc., 342 F.3d 634, 641 (6th Cir. 2003); Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 562-563 (6th Cir. 2003). "'[C]omplaints brought under the FCA must fulfill the requirements of Rule 9(b) — defendants accused of defrauding the federal government have the same protections as defendants sued for fraud in other contexts.'" Yuhasz, 341 F.3d at 563 (quoting Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001)); see also United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1997); Gold v. Morrison-Knudsen Co., 68 F.3d 1475, 1476 (2d Cir. 1995), cert. denied, 517 U.S. 1213 (1996); Cooper v. Blue Cross and Blue Shield of Florida, Inc., 19 F.3d 562, 568 (11th Cir. 1994). Federal Rule of Civil Procedure 9(b) provides that in any complaint averring fraud or mistake "the circumstances constituting fraud or mistake shall be stated with particularity."

"The purpose of Rule 9(b) is to provide the defendant with fair notice so as to allow him to prepare an informed pleading responsive to the specific allegations of fraud." Resource Title Agency, Inc. v. Morreale Real Estate Services, Inc., 314 F. Supp.2d 763, 775 (N.D. Ohio 2004) (citing Advocacy Organization for Patients and Providers v. Auto Club Ins. Ass'n, 176 F.3d 315, 322 (6th Cir. 1999)). The Sixth Circuit requires a plaintiff, at a minimum, to "'allege the time, place, and content of the alleged misrepresentation on which he or she relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud.'" Bledsoe, 342 F.3d at 643 (quotingCoffey v. Foamex L.P., 2 F.3d 157, 161-62 (6th Cir. 1993) (internal quotation marks and citations omitted)). See also United States ex rel. Branhan v. Mercy Health System of Southwest Ohio, 1999 WL 618018, at *1 (6th Cir. August 5, 1999)). The pleading requirements of Rule 9(b) may be relaxed where information is only within the opposing party's knowledge.Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 679 (6th Cir. 1988).

Upon a review of the remaining claims, the Court concludes that Counts 1 and 7 of Tillson's second amended complaint complies with the heightened pleading requirement of Rule 9(b).

"Keeping in mind that the primary purpose of the pleading standard is to ensure that Defendants receive notice of the charges against them," Counts 1 and 7 of the second amended complaint provide information as to the projects and/or contracts under which the fraudulent representations were allegedly made, the defendant(s) in the fraudulent scheme, the approximate dates that the fraudulent representations are alleged to have been made, the facility involved in the fraudulent scheme, the nature of the fraudulent representations, and the injury resulting from the false claims. United States ex rel. Pogue v. American Healthcorp, Inc., 977 F. Supp. 1329, 1333 (M.D. Tenn. 1997);United States ex rel Roby v. The Boeing Company, 184 F.R.D. 107, 110-111 (S.D. Ohio 1998). The Court finds that Tillson's claims set forth in Counts 1 and 7 meet the heighten pleadings standard of Rule 9 and are sufficient to place LMES/MMES on notice of its alleged misconduct. Therefore, the motion by Defendants to dismiss Tillson's remaining claims for failure to plead with particularity under Rule 9(b) is denied.

C. Retaliation

Defendants, LMES/MMES and SAIC, have moved to dismiss Count X of Tillson's Second Amended Complaint. Defendants argue that Tillson brought this retaliation claim under the Federal Whistleblower Protect Act which limits protection to federal employees. Defendants maintain that Tillson was not a federal employee and, therefore, he cannot state a claim for protection under the WPA. Quarles v. Colorado Sec. Agency, Inc., 843 F.2d 557, 559 (D.C. Cir. 1988). Tillson contends that he has stated a claim for retaliation under the False Claims Act, 31 U.S.C. § 3730(h), instead of the Federal Whistleblower Protection Act.

Federal Rule of Civil Procedure 8(f) states that "[a]ll pleadings shall be so construed as to do substantial justice." "[T]he Rules require that we not rely solely on labels in a complaint, but that we probe deeper and examine the substance of the complaint." Minger v. Green, 239 F.3d 793, 799 (6th Cir. 2001). The Sixth Circuit has made clear that "'the label which a plaintiff applies to a pleading does not determine the nature of the cause of action which he states.'" Id. (quoting United States v. Louisville Nashville R. Co., 221 F.2d 698, 701 (6th Cir. 1955)). Therefore, under the liberal notice pleading requirements of Rule 8, the reference to the Federal Whistleblower Protection Act in Tillson's second amended complaint is not fatal to his case:

A complaint need not point to the appropriate statute or law in order to raise a claim for relief under Rule 8. . . . [A] complaint sufficiently raises a claim even it points to no legal theory or even if it points to the wrong legal theory as a basis for that claim, as long as relief is possible under any set of facts that could be established consistent with the allegations.

Morales-Vallellanes v. Potter, 339 F.3d 9, 14 (1st Cir. 2003) (quoting Tolle v. Carroll Touch, Inc., 977 F.2d 1129, 1134 (7th Cir. 1992)). A reading of the second amended complaint reveals that Tillson has stated a retaliation claim under the False Claims Act, 31 U.S.C. § 3730(h).

The False Claims Act creates a cause of action in favor of employees against employers who retaliate against the employees who pursue or contribute to qui tam actions. Specifically, § 3730(h) provides that

[a]ny employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee or behalf of the employee or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole.

31 U.S.C. § 3730(h). For a retaliation claim to be successful, "the plaintiff must show that [he] was engaged in a protected activity and that [his] employer knew about it." McKenzie, 123 F.3d at 944. Additionally, "[t]o bring a retaliation claim against an organization, one must be an employee of that organization." United States ex rel. Hancock v. Regan, 1999 WL 594791, *1 (7th Cir. August 4, 1999). See also United States ex rel. Golden v. Arkansas Game Fish Com'n, 333 F.3d 867, 870-71 (8th Cir. 2003), cert. denied, 124 S.Ct. 1069 (2004); Vessell v. DPS Associates of Charleston, Inc., 148 F.3d 407, 412 (4th Cir. 1998).

1. Retaliation Claim against LMES/MMES

The False Claims Act protects employees against retaliation by their employers. See 31 U.S.C. § 3730(h). Tillson was employed by SAIC as an environmental specialist, not LMES. In fact, Tillson does not allege or argue that he was ever employed by LMES/MMES. Accordingly, Tillson's retaliation claim, Count 10, is dismissed as against LMES and MMES.

2. Retaliation Claim against SAIC

SAIC argues that Tillson's retaliation claim brought pursuant to 31 U.S.C. § 3730(h) is time-barred and should be dismissed. The statute of limitations provision in the False Claims Act, 31 U.S.C. § 3731(b), provides:

A civil action under section 3730 may not be brought —

(1) more than 6 years after the date on which the violation of section 3729 is committed, or

(2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.

31 U.S.C. § 3731(b).

SAIC argues that this provision does not apply to retaliation claims brought under § 3730(h) citing United States ex rel. Lujan v. Hughes Aircraft Co., 162 F.3d 1027, 1035 (9th Cir. 1998). The Ninth Circuit in Lujan held that § 3731(b)(1) did not apply to retaliation claims under the FCA, but was limited to only violations of § 3729. Id. The Lujan court reasoned that application of the statute of limitations found in the FCA to retaliation claims brought pursuant to § 3730(h) could lead to absurd results because the limitations period is not tied to the date of the employee's termination or the employer retaliation. See also United States ex rel. Truong v. Northrop Corp., 1991 U.S.Dist. Lexis 21802 (C.D. Cal. November 26, 1991). The Ninth Circuit held that in the absence of a specific statute of limitations prescribed for § 3730(h), the most closely analogous state statute of limitations (under the law of the forum state) controlled such claims. SAIC argues that the most closely analogous Kentucky statute is the "whistleblower" provision of KRS § 61.102 which prohibits reprisals against any public employees for disclosures of violations of law. KRS § 61.103 requires that an action under this statute must be brought within 90 days after the occurrence of the alleged violation. SAIC maintains that since Tillson did not make the allegations in Count X until the filing of his second amended complaint on March 28, 2002 and the reprisals and adverse consequences occurred in 1995, the statute of limitations for this claim has run.

Thus, the first question before the Court is what statute of limitations applies to Tillson's retaliation claim under § 3730(h). As discussed above, the FCA's limitation period, § 3731(b) provides that "[a] civil action under section 3730 may not be brought — (1) more than 6 years after the date on which the violation of section 3729 is committed. . . ." It is well settled that "'[c]ourts must apply the plain language of a statute except in the rare circumstance when there is a clearly expressed legislative intent to the contrary or when a literal application would frustrate the statute's purpose or lead to an absurd result.'" Storey v. Patient First Corp, 207 F. Supp.2d 431, 444 (E.D. Va. 2002) (quoting National Coalition for Students with Disabilities Education and Legal Defense Fund v. Allen, 152 F.3d 283, 288 (4th Cir. 1998)). The Court concludes that this language is plain and unambiguous. The effect of the statutory language as written is "to provide that an action under § 3730, which necessarily includes an action for retaliation under § 3730(h), may be brought no more than six years after the date on which the underlying violation was committed." United States ex rel. Wilson v. Graham County Soil Water Conservation Dist., 367 F.3d 245, 248 (4th Cir. 2004).See also Neal v. Honeywell, Inc., 33 F.3d 860, 865-66 (7th Cir. 1994). Section 3731(b) does not exclude § 3730(h), instead it states broadly that it applies to "[a] civil action under section 3730." Wilson, 367 F.3d at 251. Congress could have provided a different statute of limitations for the different types of claims under the FCA, but it did not.⁵ Storey v. Patient First Corporation, 207 F. Supp.2d 431, 444-445 (E.D. Va. 2002). Therefore, after a review of the statute in question and the existing case law, the Court concludes that § 3731(b)(1) provides the limitations period for retaliation actions under § 3730(h). See Wilson, 367 F.3d at 256; Neal, 33 F.3d at 865-66; Storey v. Patient First Corporation, 207 F. Supp.2d 431 (E.D. Va. 2002).

5 "Section 3730 creates three causes of action arising under the FCA: an action for compensation filed by the Attorney General; see § 3730(a); a qui tam action filed by an individual, see § 3730(b); and an action for retaliatory conduct predicated on identified protected activity, see § 3730(h)." Wilson, 367 F.3d at 248. Section 3729 creates and defines the parameters of liability for presenting false claim to the government. Id.

Having concluded that the statute of limitations for a retaliation claim brought under the FCA is six years, the Court must now determine whether Tillson's retaliation claim is time-barred. Section 3731(b)(1) directs that the limitations period for a retaliation claim begins when the violation of § 3729 by the Defendant is found to have occurred. Wilson, 367 F.3d at 251. Tillson brought his retaliation claim against SAIC in his second amended complaint filed on March 28, 2002. Accordingly, the alleged false claims underlying a § 3729 violation by SAIC must have occurred no later than March 28, 1996. At the hearing, counsel for both parties indicated that the exact date of SAIC's alleged § 3729 violation on which Tillson' retaliation claim is based is not known at the present time. Therefore, SAIC's motion to dismiss Tillson's retaliation claim is denied. Discovery should be structured so as to determine this threshold issue. After completion of discovery on this issue, counsel may file appropriate motions related to the statute of limitations.

IV. MOTION BY LMES/MMES AND LMUS/MMUS TO DISMISS THE UNITED STATES' AMENDED COMPLAINT

Defendants Lockheed Martin Energy Systems, Inc. (LMES) and Lockheed Martin Utility Services, Inc. (LMUS) move (1) to dismiss any and all RCRA claims (Counts 1-5) for the period prior to April 1, 1997, pursuant to Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 2462; (2) to dismiss the United States' False Claims Act count (Count 6) for failure to plead with particularity as required by Fed.R.Civ.P. 9(b) or, in the alternative, requiring the Government to amend its complaint in order to comply with the particularity requirements of Rule 9(b); and (3) dismissing the unjust enrichment claim (Count 9).

A. RCRA Claims

The United States seeks civil penalties in Counts 1 through 5 for violations of RCRA⁶ that allegedly occurred during the period from approximately 1984 to 1998. In their complaint, the United States alleges that from approximately 1984 to 1998, the Defendants generated large quantities of solid waste during their tenure operating the PGDP. In Count 1, the United States alleges that on numerous occasions between 1984 and 1998, the Defendants failed to properly determine in accordance with 40 C.F.R. § 262.11 ⁷ if the solid waste it generated was hazardous waste. In Count 2, the United States alleges that on numerous occasions between approximately 1984 and 1998, the Defendants failed to properly determine if the hazardous waste it generated at the PGDP required treatment; shipped hazardous waste to off-site treatment, storage, and disposal facilities without sending a notice indicating whether the material contained hazardous waste; failed to retain on-site a copy of all documentation; and failed to comply with the land disposal restriction requirements as required by 40 C.F.R. § 268.7. In Count 3, the United States alleges that on numerous occasions between 1984 and 1998, the Defendants transported or offered for transport hazardous waste to off-site facilities without preparing a proper manifest as required by 40 C.F.R. § 262 Subpart B; without properly packaging, labeling, or preparing the shipment in accordance with the requirements of 40 C.F.R. § 262, Subpart C; and without preparing and maintaining copies of reports and manifests as required by 40 C.F.R. 262, Subpart C. Court 4 alleges that Defendants operated the PGDP facility without a RCRA permit in violation of 42 U.S.C. § 6925(a). Count 5 alleges that since August 19, 1991, when MMES received a RCRA permit, Defendants failed to comply with various provisions of the permit in violation of 40 C.F.R. § 270.30(A).

Defendants argue that any claim for civil penalties under RCRA that accrued prior to April 1, 1997 is time-barred. While RCRA does not itself contain a statute of limitations, courts have held that the general federal statute of limitations for civil penalty actions by the United States set forth at 28 U.S.C. § 2462 applies to actions seeking civil penalties under RCRA. See 3M Co. v. Browner, 17 F.3d 1453, 1455-59 (D.C. Cir. 1994);United States v. WCI Steel, Inc., 72 F. Supp. 2d 810, 818 (N.D. Ohio. 1999). Title 28 U.S.C. § 2462 provides that "an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary, or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued." 28 U.S.C. § 2462.

On April 9, 2002, Lockheed Martin entered into a tolling agreement with the Government which tolled the statute of limitations for environmental enforcement actions beginning April 1, 2002. By virtue of this tolling agreement and the plain language of § 2462, Defendants contend that the Government may not recover penalties for violations that accrued before April 1, 1997 — five years prior to the beginning of the tolling period that began on April 1, 2002.

The United States disagrees arguing that the RCRA violations alleged in its complaint prior to April 1, 1997 are not time-barred. First, the United States argues that the RCRA claims did not accrue for purposes of the statute of limitations until the information establishing the violations was provided to the government. Second, the United States maintains that the RCRA claims relate back to the earliest filing date of the relators' qui tam complaints, June 1, 1999, and therefore, the United States may sue for RCRA violations going back five years before that date — June 1, 1994. Third, the United States contends that the fraudulent concealment doctrine tolls the statute of limitations period. The Court shall address these arguments in turn.

1. Discovery Rule

Title 28 U.S.C. § 2462 limits the time in which an action may be brought to five years from the date on which the claim accrues. The Court must decide when the United States' RCRA claims accrued for § 2462 purposes.

The Government maintains that where the duty to monitor and report regulatory compliance is placed on the regulated entity by statute or regulation, the statute of limitations begins to run when the violations are discovered. In support of this argument, the United States cites a Third Circuit and district court opinions as evidence that federal courts apply a variant of the discovery rule in penalty enforcement cases brought pursuant to the Clean Water Act, 33 U.S.C. § 1251- 1376. See Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 75 (3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991); L.E.A.D. v. Exide Corp., 1999 WL 124473 (E.D. Pa. Feb. 19, 1999); United States v. Material Service Corp., 1996 WL 563462 (N.D. Ill. Sept. 30, 1996); United States v. Aluminum Co. of America, 824 F. Supp. 640, 644-47 (E.D. Tex. 1993);North Carolina Wildlife Federation v. Woodbury, 1989 WL 106517 (E.D.N.C. April 25, 1989); Atlantic States Legal Foundation v. Al Tech Specialty Steal Corp., 635 F. Supp. 284 (N.D.N.Y. 1986). Each court held that the five year limitations period in 28 U.S.C. § 2462 commenced not when the company illegally discharged waste, but when the company filed its discharge reports (DMRs) with the EPA.⁸ The Third Circuit held that "this makes sense since the responsibility for monitoring effluent rests with the defendant, 33 U.S.C. § 1318(a)(4)(A), and the public cannot reasonably be deemed to have known about any violation until the permit holder files its DMRs." Public Interest Research Group, 913 F.2d at 75. According to the district court in L.E.A.D., 1999 WL 124473, "[a] number of policy concerns motivated these courts to apply the discovery rule to claims under the CWA, including: (1) the difficulty of detecting such violations; (2) the inevitable reliance of government agencies on a system of permits and self-reporting to enforce the act; and (3) the act's overall goal to restore integrity to the Nation's waters." Id. at *4. Using the above CWA cases as guidance, the Government argues that logic dictates that, under these circumstances, the RCRA claims do not accrue until the statutorily required information is provided to the government, and therefore, the five year statute of limitations under § 2462 did not begin to run until the information establishing the violations was provided to the government in this case, sometime in 1999.

8 The CWA permit contains detailed limits on the type and concentrations of pollutants a permit holder may discharge. The CWA requires permittees to install and maintain equipment to test its effluent. The test results must be reported to the EPA on Discharge Monitoring Reports ("DMRs"). A comparison of the permit limits with the reported concentrations reveals whether a permittee is complying with its permit.

The Defendants disagree and argue that a violation accrues under § 2462 when it first occurs, not when the Government discovers the violation. See Trawinski v. United Technologies, 313 F.3d 1295, 1298 (11th Cir. 2002) (Energy Policy and Conservation Act); 3M Co. v. Browner, 17 F.3d 1453, 1462-63 (D.C. Cir. 1994) (Toxic Substances Control Act). In support of its argument, the Defendants cite 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994). In 3M Co., the EPA filed suit against the 3M Company for violations of the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601- 2629. Upon discovery of violations of the TSCA, the company notified the EPA in July of 1986 that it had learned that some of its chemicals were new and imported and, as a result, the company should have provided the EPA with Premanufacture Notice pursuant to 15 U.S.C. § 2604(a)(1) prior to importation. Additionally, the company's brokers wrongfully certified to Customs officials that TSCA's requirements had been met. In response to EPA's complaint against the company for penalties associated with 3M's failure to file Premanufacture Notices and for submitting inaccurate Customs certifications, 3M argued that § 2462 barred proceedings to impose penalties against 3M for any violations five years prior to the EPA's complaint. Id. at 1454-1455.

In addressing when a claim for penalties under § 2462 "first accrued," the D.C. Circuit rejected the EPA's argument that the claim for penalties first accrued when it discovered 3M's violations, not beforehand when the company committed those violations. In doing so, the D.C. Circuit likewise rejected the EPA's argument that the Court should adopt the discovery rule because the violations are inherently undiscoverable and involves self-reporting rules.Id. at 1461-1462. The court recognized that an agency may experience problems in detecting statutory violations "because its enforcement effort is not sufficiently funded; or because the agency has not devoted an adequate number of trained personnel to the task; or because the agency's enforcement program is ill-designed or inefficient; or because the nature of the statute makes it difficult to uncover violations; or because of some combination of these factors and others." 3M Company, 17 F.3d at 1461. However, the D.C. Circuit concluded that "[a]n agency's failure to detect violations, for whatever reasons, does not avoid the problems of faded memories, lost witnesses and discarded documents in penalty actions brought decades after alleged violations are finally discovered." Id.

After a review of the arguments of the parties and the case law, the Court finds the reasoning of the D.C. Circuit in 3M Company persuasive and holds that an action to assess or impose a civil penalty for a RCRA violation "must be commenced within five years of the date of the violation giving rise to the penalty." Id. at 1462.

First, "nothing in the language of § 2462 even arguably makes the running of the limitations period turn on the degree of difficulty an agency experiences in detecting violations." 3M Company, 17 F.3d at 1461. In fact, the Fifth Circuit in United States v. Core Laboratories, Inc., 759 F.2d 480 (5th Cir. 1985), observed that the current § 2462 statute is derived from predecessor statutes dating from 1799 producing a "respectable" body of decisional law. Id. at 482. According to the Fifth Circuit, "[a] review of these cases clearly demonstrates that the date of the underlying violation has been accepted without question as the date when the claim first accrued, and, therefore, as the date on which the statute began to run." Id. The United States has failed to point to any cases that address § 2462 statute of limitations in the context of RCRA civil penalty actions. Furthermore, while not discussing the discovery rule, two district court cases in the Sixth Circuit have without objection run the statute of limitations under § 2462 from the date of the violation. See United States v. WCI Steel, Inc., 72 F. Supp.2d 810, 831 (N.D. Ohio 1999) (RCRA);United States v. American Electric Power Service Corp., 137 F. Supp.2d 1060, 1067 (S.D. Ohio. 2001) (Clean Air Act).

Second, the Court finds persuasive Defendants' argument that if Congress had intended the discovery rule to apply to RCRA, it could have provided for such a rule in the statute. See 42 U.S.C. § 9612(d) (limiting Comprehensive Environmental Response, Compensation, and Liability Act natural resources damages claim to three years from discovery); 28 U.S.C. § 2416(c) (establishing a discovery rule to the statute of limitations for government claims for money damages). Congress did not incorporate a discovery rule in RCRA or § 2462.

Third, even if the Court accepted the rationale articulated by the courts for applying the discovery rule to CWA causes of action, this rationale would not support the application of the discovery rule to RCRA causes of action. The regulatory scheme underlying RCRA appears to differ from that of the CWA. Significantly, RCRA requires regulatory agencies to conduct inspections of federally operated facilities such as the PGDP annually. 42 U.S.C. § 6927(c). In contrast, the CWA gives the government the authority to conduct facility inspections, but does not require it. 33 U.S.C. § 1318(a). Therefore, with a mandatory annual inspection, the RCRA regulatory scheme is less dependent on self-monitoring and self-reporting and violations of RCRA could be detected by these mandatory annual inspections by the federal government, absent any fraudulent concealment.

Therefore, unless the Government's claims relate back to the filing of the original qui tam action or unless the Government's claims are tolled under the doctrine of fraudulent concealment, the Government may not obtain civil penalties for any RCRA violations that occurred prior to April 1, 1997. See American Electric Power Service Corp., 137 F. Supp.2d 1060.⁹ 2. Relation Back

9 While § 2462 limits the time to five years in which civil penalties may be sought, it does not limit evidence of historical violations in a RCRA civil penalty action. See WCI Steel, Inc., 72 F. Supp.2d at 831("while the economic benefit WCI received from violating RCRA prior to May 11, 1993 may be relevant to an examination of the extent of the violations, the scope of injunctive relief, and WCI's good faith in remedying known violations," the assessment of a civil fine for the RCRA violation is limited to "five years from the date when the claim first accrued."); American Electric Power Service, 137 F. Supp.2d at 1067.

The United States argues that the intervening complaint relates back to the NRDC Relators' complaint filed June 1, 1999, and as a result, the Government may still maintain its claims for violations of RCRA dating back to June 1, 1994. The Defendants disagree arguing that the United States' complaint does not qualify as an amended pleading under Rule 15(c) and even if it did, the Government's RCRA claims did not arise out of the same conduct, transaction, or occurrence as the NRDC Relator's original qui tam complaint. Further, Defendants maintain that the FCA claims brought by the relators did not put them on notice of the Government's RCRA claims.

Federal Rule of Civil Procedure 15(c) permits an amended complaint to relate back to the date of the original pleading when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c)(2). Rule 15(c) is "'based on the idea that a party who is notified of litigation concerning a given transaction or occurrence is entitled to no more protection from statutes of limitations than one who is informed of the precise legal description of the rights sought to be enforced.'" United States ex rel. Campbell v. Lockheed Martin Corp., 282 F. Supp.2d 1324, 1336 (M.D. Fla. 2003) (quoting Woods Exploration Producing Co., Inc. v. Aluminum Co. of America, 438 F.2d 1286, 1299 (5th Cir. 1971)). See also Brown v. Shaner, 172 F.3d 927, 932 (6th Cir.) (Rule 15(c) is "based on the notion that once litigation involving particular conduct or a given transaction or occurrence has been instituted, the parties are not entitled to the protection of the statute of limitations against the later assertion by amendment of defenses or claims that arise out of the same conduct, transaction, or occurrence as set forth in the original pleading."), cert. denied, 528 U.S. 966 (1999).

The Sixth Circuit has interpreted Rule 15(c) to permit a party to add even a new legal theory in an amended pleading as long as it arises out of the same transaction or occurrence. Miller v. American Heavy Lift Shipping, 231 F.3d 242, 248 (6th Cir. 2000); Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973); Koon v. Lakeshore Contractors, 128 F.R.D. 650, 653 (W.D. Mich. 1988),aff'd, 889 F.2d 1087 (6th Cir. 1989). Similarly, "'[a]n amendment that alleges added events leading up to the same injury may relate back.'" Miller, 231 F.3d at 248 (quoting Koon, 128 F.R.D. at 653)). In ruling on a motion under Rule 15(c), it is also appropriate to consider "[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment." Miller, 231 F.3d at 250 (quoting Hageman, 486 F.2d at 484).

First, the Court finds that the Government's intervening complaint is an amendment of the relators' complaints, and not "an independent complaint by a separate party" as advocated by the Defendants. United States ex rel. Purcell v. MWI Corporation, 254 F. Supp.2d 69 (D.D.C. 2003); United States ex rel. Cosens v. Yale-New Haven Hosp., 233 F. Supp.2d 319, 325 (D. Conn. 2002). The United States is the real party in interest in every qui tam action. Thus, the Government's complaint may relate back to the date of the NRDC Relators' complaint if the Government's additional claims arose out of the same conduct, transaction, or occurrence as that set forth in the NRDC's complaint.

Second, the Court finds that Counts 1 through 5 of the Government's complaint are based upon the same conduct, transaction, and occurrences as those alleged in the NRDC Relator's original complaint. See, e.g., Campbell, 282 F. Supp.2d at 1336. The Court rejects the Defendants' argument that the Government's complaint does not arise out of the same conduct, transaction, or occurrence as the NRDC Relators' complaint because it does not set forth the facts required for the Government to prove any of the underlying RCRA allegations, because it arises under a new statutory scheme, and because it contains new operative facts. The test under Rule 15(c)(2) is not whether the original complaint alleged all of the facts necessary to prove the later asserted cause of action; it is simply whether the two claims involve common conduct, transactions or occurrences. For example, in Campbell, 282 F. Supp.2d 1324, a relator filed a FCA action in 1995 against defendant. The United States intervened in 2001 filing its own amended complaint, which, in addition to asserting claims under the FCA, also asserted claims under the Truth In Negotiation Act (TINA), an entirely separate statutory scheme prohibiting the submission to the Government of false "cost and pricing" data on contracts. Lockheed Martin moved for summary judgment on the TINA claim asserting the expiration of the statute of limitations. The district court held that the TINA claim, while providing the United States with a previously unasserted theory of recovery, was based upon the same conduct, transaction, and occurrences at issue in the relator's FCA complaint. Id. at 1336. See also Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574 (1945) (The wife of a railroad employee who was killed on the job sued the rail company under the Federal Employers Liability Act. The Supreme Court permitted an amendment of the complaint adding a new claim under the Federal Boiler Inspection Act).

In the present case, NRDC's complaint alleges that LMES was obligated by its contract with DOE to comply with RCRA; that LMES was a co-operator of the Paducah facility for RCRA purposes; and that it had primary responsibility for the preparation, submission and oversight of all RCRA permit applications, reports of noncompliances, unmanifested wastes, and solid waste management units. NRDC's complaint alleges that LMES knew hazardous and/or toxic waste were being disposed of illegally and in violation of the RCRA permit and other applicable environmental requirements. Specifically, the NRDC alleged that from 1989 to the filing of the complaint in 1999, Defendants knew that they were disposing of mixed wastes in violation of RCRA regulatory requirements, that Defendants concealed the RCRA violations; and that Defendants violated the False Claims Act by filing claims for the payment by DOE of contractual allowable costs for remediating RCRA wastes they in fact had not remediated. (See United States' surreply at 15). The Court agrees with the United States that its RCRA claims merely have amplified the core factual allegations regarding Defendants' violations of RCRA contained in the NRDC's original complaint by filling in specific details regarding the nature of the statutory and regulatory duties under RCRA and the precise ways in which Defendants violated those duties. Accordingly, the Court concludes that Counts 1 through 5 of the Government's complaint are based upon the same conduct, transaction, and occurrences as those alleged in the NRDC Relator's original complaint.

Third, Defendants maintain that the NRDC's complaint alleging FCA claims was insufficient to put them on notice of the Government's RCRA claims, and as a result, the RCRA claims do not relate back to the NRDC Relator's original complaint. A review of the NRDC complaint reveals that Defendants were on notice that RCRA violations were being alleged by the NRDC Relators as the basis for their allegations of the FCA violations. Further, Defendants have been on notice of the existence of the NRDC qui tam action since August 11, 1999, when the NRDC's complaint was unsealed by the Court. Thus, the Defendants knew or reasonably should have known that the Government, once it intervened, might ultimately assert a RCRA cause of action. See Campbell, 282 F. Supp.2d at 1335-36 (Government's TINA claim, breach of contract claim, and misrepresentation claim brought six years after original FCA action related back to the date the relator filed its action); United States ex rel. Purcell v. MWI Corp., 254 F. Supp.2d 69, 75 (D.D.C. 2003) (the government's unjust enrichment and payment by mistake claims related back to relator's FCA claim). Therefore, the Court concludes that the United States' RCRA claims relate back to the original qui tam action. Therefore, the Government can maintain its RCRA claims for violations dating back to June 1, 1994.¹⁰ 3. Fraudulent Concealment

10 In addition to arguing that the RCRA claims do not relate back to the original NRDC complaint, the Defendants also argue that the newly asserted common law claims should not relate back to the filing of the Relators' complaint because "[t]he prerequisite to the relation back doctrine, notice to the defendant, [is] not satisfied." See United States ex rel. Wilkins v. North American Const. Corp., 2001 WL 34109383, *13 (S.D. Tex. September 26, 2001). The Court likewise finds that the NRDC's complaint was sufficient to put the Defendants on notice of the United States' common law claims. The NRDC's original complaint alleged the existence of contracts and/or guarantees between Defendants and the government, that the Defendants failed to perform under the contracts, and that Defendants received payment for work not performed or inaccurately performed.

The United States argues that the fraudulent concealment doctrine tolls the statute of limitations period. The Defendants disagree arguing that the United States has failed to allege with sufficient particularity all three elements required under the fraudulent concealment doctrine.

The doctrine of equitable tolling for fraudulent concealment applies to the § 2462 limitations period. See 3M Co., 17 F.3d at 1462 n. 15; Federal Election Com'n v. Williams, 104 F.3d 237, 240 (9th Cir. 1996), cert. denied, 522 U.S. 1015 (1997);Core Laboratories, 759 F.2d at 484; United States v. Firestone Tire Rubber Co., 518 F. Supp. 1021, 1036 (N.D. Ohio 1981);Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946). Under the doctrine of fraudulent concealment, if a defendant conceals from the plaintiff the existence of a cause of action, the statute of limitations is tolled. Pinney Dock and Transport Co. v. Penn Central Corp., 838 F.2d 1445, 1465 (6th Cir.), cert. denied, 488 U.S. 880 (1988). To toll the statute of limitations, a plaintiff must prove the following: "(1) wrongful concealment of their actions by the defendants; (2) failure of the plaintiff to discover the operative facts that are the basis of his cause of action within the limitations period; and (3) plantiff's due diligence until discovery of the facts." Dayco Corp. v. Goodyear Tire Rubber Co., 523 F.2d 389, 394 (6th Cir. 1975); Pinney Dock, 838 F.2d at 1465; Hill v. United States Dept. of Labor, 65 F.3d 1331, 1335 (6th Cir. 1995). The burden of proving the elements of fraudulent concealment is upon plaintiff. Pinney Dock, 838 F.2d at 1465; Hill, 65 F.3d at 1335. Generally, fraudulent concealment requires affirmative acts of concealment.Pinney Dock, 838 F.2d at 1471. "Mere silence, or one's unwillingness to divulge one's allegedly wrongful activity" is not sufficient. Id. at 1472. However, affirmative acts are not required in "cases founded upon fraud or breach of fiduciary duty." Id. at 1471(citing Gaetzi v. Carling Brewing Co., 205 F. Supp. 615, 622 (E.D. Mich. 1962) ("[m]ere silence, where there is no duty to speak, does not toll the statute").

Applying these standards, the Court finds that the United States has pled adequately the elements of fraudulent concealment. The amended complaint alleges that LMES and LMUS had both statutory and contractual duties to disclose RCRA non-compliances to the government, represented to DOE that they were complying with these duties, and made false and fraudulent statements and claims to the government in both environmental assessments, inspections, and in environmental reports. The United States argues that the government's efforts to learn the truth were impeded and obstructed by false and misleading reports given by LMES and LMUS and that these false statements fostered a misimpression on the government's part that defendants were properly implementing RCRA at the PGDP. According to the Government, the Defendants knew of substantial, unreported noncompliances. The Amended Complaint alleges, not only that Defendants knowingly concealed these facts from regulators when they had a duty to speak, but also engaged in affirmative misrepresentations which concealed these facts. See (Amended Complaint ¶¶ 121-154). The Amended Complaint further alleges that the government did not discover the RCRA violations until August of 1999, at the earliest.

The question before the Court on Defendants' motion is whether the Government has alleged all of the elements necessary to establish fraudulent concealment. While these averments are sprinkled throughout the amended complaint, the Court is satisfied that the amended complaint alleges all of the required elements of fraudulent concealment sufficient to survive Defendants' motion to dismiss. Whether the United States will survive summary judgment or prevail at trial on this issue is another matter entirely. For these reasons, the motion by Defendants to dismiss all the United States' RCRA claims occurring prior to April 1, 1997, is denied.

B. Pleading Fraud with Particularity

Defendants argue that the Government has failed to plead its FCA claim, Count 6, with particularity as required by Fed.R.Civ.P. 9(b) and thus, the claim should be dismissed for failure to state a claim upon which relief may be granted. Defendants contend that the Government's Count 6 fails to specify the who, when and what of the alleged fraud. Specifically, the Defendants assert that the Government's amended complaint fails to (1) particularly describe who violated the FCA because the complaint improperly lumps the Defendants together without delineating their alleged roles in the fraud; (2) fails to identify the employees involved in the alleged fraud; (3) fails to plead the time of the events alleged to underlie and constitute the fraud; and (4) fails to properly plead what the fraud was.

As discussed in Section III(B) above, claims brought under the False Claims Act must comply with Federal Rule of Civil Procedure 9(b). Bledsoe, 342 F.3d at 641; Yuhasz, 341 F.3d at 562-563. Rule 9(b) provides that in any complaint averring fraud or mistake "the circumstances constituting fraud or mistake shall be stated with particularity." The Sixth Circuit requires a plaintiff, at a minimum, to "'allege the time, place, and content of the alleged misrepresentation on which he or she relied; the fraudulent scheme; the fraudulent intent of the defendants; and the injury resulting from the fraud.'" Bledsoe, 342 F.3d at 643 (quoting Coffey, 2 F.3d at 161-62 (internal quotation marks and citations omitted)). The Sixth Circuit has recognized that Rule 9(b) must be read in conjunction with Rule 8 which requires pleadings to set forth "'a short and plain statement of the claim showing that the pleader is entitled to relief. . . .'" Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 F.2d 674, 679 (6th Cir. 1988) (quoting Fed.R.Civ.P. 8(a)). The purpose of Rule 9(b) "is to provide a defendant fair notice of the substance of a plaintiff's claim in order that the defendant may prepare a responsive pleading."Id. See also Resource Title Agency, Inc., 314 F. Supp.2d at 775.

Contrary to the argument made by the Defendants at the hearing, neither Bledsoe or Yuhasz creates a higher Rule 9(b) standard for claims brought under the False Claims Act. Instead, as specifically recognized by the Sixth Circuit in Yuhasz, "'[c]omplaints brought under the FCA must fulfill the requirements of Rule 9(b) — defendants accused of defrauding the federal government have the same protections as defendants sued for fraud in other contexts.'" Yuhasz, 341 F.3d at 563 (quotingBly-Magee, 236 F.3d at 1018). With the Rule 9(b) standard in mind, the Court will address the Defendants' arguments.

First, the Court finds that the complaint contains sufficient particularity with respect to "who" violated the FCA and "what" each Defendant individually did which makes it liable. Initially, the Court finds that the United States has adequately alleged the FCA violations, including false statements regarding RCRA non-compliances, false statements concerning the TCE contamination and storage of hazardous waste without a RCRA permit, false claims with respect to the Radiation Area Reduction Project, and false statements regarding the costs of cleaning up the MSAs, with sufficient particularity. Contrary to Defendants' arguments, the Government's amended complaint differs from the complaint described in Yuhasz. In Yuhasz, the complaint contained "no particularized allegations of wrongdoing," and failed "to identify specific parties, contracts, or fraudulent acts." Yuhasz, 341 F.3d at 564. In contrast, in the present case, the Government's amended complaint identifies particularized allegations of wrongdoing, three parties, four contracts, and numerous fraudulent acts.

Furthermore, contrary to Defendants' assertions, Plaintiffs have not lumped Defendants, Lockheed Martin, LMES, and LMUS,¹¹ together, but have set forth specific actions attributable to each Defendant. Unlike the plaintiffs inBledsoe, the Government has not relied upon "blanket references to acts or omissions by all of the 'defendants.'" Bledsoe, 342 F.3d at 643. The Government's amended complaint clearly delineates the basis of liability of the parent corporation, Lockheed Martin, as being based on the guarantees it issued for the performance by its subsidiaries, LMES and LMUS, under their contract with the government. (Amended Complaint at ¶ 159).

11 The Government refers to the Defendants as Lockheed Martin, LMES, and LMUS, recognizing that prior to June 19, 1995, these entities were known as Martin Marietta, MMES and MMUS.

Likewise, the Government's amended complaint sets forth the individual role of LMES. The complaint alleges that LMES was under contracts with the DOE to operate the plant. (Amended Complaint at ¶ 8-11). LMES was responsible under its contracts to comply with RCRA in its treatment, storage, and disposal of solid and hazardous wastes (Amended Complaint at ¶¶ 23, 26, 29, 32, -36), including its duty to report to the government any and all non-compliances with RCRA. (Amended Complaint at ¶¶ 30, 32, 37, 39). The amended complaint alleges that LMES violated the FCA by submitting false and fraudulent statements regarding RCRA non-compliances to get claims paid and approved by the government. (Amended Complaint at ¶ 110,121). According to the amended complaint, had the government known of the false reports and misrepresentations, the government would have paid LMES less in costs, award fees, and incentive fees. (Amended Complaint at ¶ 110(d)).¹²

12 Additionally, the Government's amended complaint also provides details concerning LMES's involvement in making false statements regarding the status of material storage areas (MSAs) at the PGDP (Amended Complaint at ¶ 130) and regarding misrepresentations surrounding TCE usage at the PGDP (Amended Complaint at ¶¶ 149-155). See also (Amended Complaint at ¶ 132).

Similarly, the amended complaint sets forth the role played by LMUS in the FCA violations. The Government alleges that beginning in July of 1993 a portion of LMES's responsibility for operating the PGDP was shifted to the newly created subsidiary, LMUS. It had the responsibility for operating the uranium enrichment process at PGDP pursuant to its government contracts. (Amended Complaint at ¶¶ 9-12). These contracts also placed environmental compliance, including RCRA compliance, and truthful disclosure of this information on LMUS. (Amended Complaint at ¶¶ 42-47). Additionally, the Government alleges that LMUS assisted LMES in preparation of annual reports in 1996 and 1997 which were allegedly false and fraudulent because they failed to disclose RCRA non-compliance. (Complaint at ¶ 136, 141). Further, the amended complaint also specifically discusses LMUS's role in the alleged FCA violation related to the Radiation Area Reduction Project. (Amended Complaint 116-120).

Unlike the complaint described in Bledsoe, the amended complaint in the present case sufficiently delineates the role each individual Defendant played in the violations, including instances where the Government contends that both LMES and LMUS had a shared responsibility in the wrongdoing. In those instances in which the Government alleges that LMES and LMUS jointly participated in the wrongdoing, the United States accurately refers to the both as "defendants." This characterization is not a "blanket reference" to the Defendants, but instead a claim that both Defendants participated in the alleged violation. Therefore, the Court finds that the complaint provides sufficient notice to the Defendants regarding the "who" and "what" of the alleged FCA violations to enable the Defendants to prepare a responsive pleading.

Second, the Court rejects Defendants' argument that the Government's failure to specify the individuals at LMES and LMUS who made the alleged fraudulent statements warrants dismissal of the FCA claim under Rule 9(b). District courts in the Sixth Circuit "have recognized that Rule 9(b) requires only that the Plaintiff identify the parties and not the individual employees involved in the misconduct." United States v. United Technologies Corp., 2000 WL 988238, *6 (S.D. Ohio March 20, 2000); United States ex rel. Roby v. Boeing Co., 184 F.R.D. 107 (S.D. Ohio. 1998) ("We also conclude that the Amended Complaint adequately identify Boeing as a party involved in the alleged misconduct. Boeing's contention that the Amended Complaint must identify with specificity the person involved in the misconduct is overreaching. [Rule] 9(b) requires only . . . identification of the parties." Id. at 110); United States ex rel. Pogue v. American Healthcorp, Inc., 977 F. Supp. 1329, 1333 (M.D. Tenn. 1997) ("Although no specific dates or West Paces employees are identified, the complaint alleges that the hospital participated in a systematic, fraudulent scheme, spanning the course of 12 years; thus, reference to a time frame and to 'West Paces' generally is sufficient.").

As discussed above, the United States has clearly identified the parties involved in the FCA violations. Additionally, although the identification of individuals is not mandated under Rule 9, the Government has identified at least two individuals who have allegedly made some false statements or are aware of false statements and has referenced a number of documents containing alleged false statements from which the identity of other employees can be ascertained.

Third, the Court finds that the United States' complaint sufficiently alleges the time of the alleged fraud. The fraudulent conduct at issue in the present case took place over an extended period of time.¹³ "[W]hen an underlying fraudulent activity is alleged to have occurred systematically and continuously over a period of time it is sufficient to allege a general time frame of the fraud in question." United States v. NHC Healthcare Corp., 115 F.Supp.2d 1149, 1151 (W.D. Miss. 2000) (2-3 months); Pogue, 977 F. Supp. at 1333 (12 years). A review of the Government's complaint reflects that the Government has alleged specific dates (June 12, 1998), approximate dates ("In or about October 1997"), and time spans ("from late 1994 through approximately October of 1996"), sufficient to put the Defendants on notice of the time period of the alleged FCA violations.

13 However, it appears to the Court that the Government has limited its FCA claims to a period "[b]eginning in 1993 and continuing to 1999." (See ¶¶ 96 and 158). Whether this observation is accurate can be addressed at a later time.

Courts have consistently held that the purpose of Rule 9(b) "is to provide a defendant fair notice of the substance of a plaintiff's claim in order that the defendant may prepare a responsive pleading." Michaels Bldg. Co., 848 F.2d at 679. It was never intended to require a plaintiff to set forth every factual detail supporting its claim. See Hood v. Smith's Transfer Corp., 762 F. Supp. 1274, 1289 (W.D. Ky. 1991) ("Plaintiffs do not, however, have to plead detailed evidentiary matters" to satisfy Rule 9(b)). As this Court has previously recognized, "Rule 9(b) was designed not to prove a plaintiff's case, but to give notice to the defendants and ensure that the case is not being brought without any basis for the allegations."New England Health Care Employees Pension Fund v. Fruit of the Loom, Inc., 1999 WL 33295037, *6 (W.D. Ky. August 16, 1999).

For these reasons, the Court finds that the complaint adequately places the Defendants on notice of the basis of the FCA claim against them, thereby allowing them to prepare a responsive pleading. The motion by Defendants to dismiss the Government's complaint for failure to comply with Rule 9(b) is denied.

Additionally, at this stage of the litigation, the Court declines to address the merits of the False Claims Act cause of action as advocated at times by the Defendants. The question before the Court is whether the Government has alleged with sufficient particularity the FCA claim, not whether the Government will ultimately prevail at trial on this claim.

C. Common Law Claims

1. Unjust Enrichment

Defendants argue that Count 9 of the United States' amended complaint for unjust enrichment must be dismissed because the Government alleges that numerous contracts governed Defendants' activities at the PGDP. Defendants argue that "[t]he doctrine of unjust enrichment has no application in a situation where there is an explicit contract which has been performed." Codell Constr. Co. v. Commonwealth, 566 S.W.2d 161, 165 (Ky.App. 1977); Res-Care, Inc. v. Omega Healthcare Investors, Inc., 187 F. Supp.2d 714, 719 (W.D. Ky. 2001). Because the unjust enrichment claim merely duplicates the breach of contract claim, Defendants maintain that the unjust enrichment claim should be dismissed.

Generally, a plaintiff may not recover on both a claim for breach of contract and a claim for unjust enrichment. However, as pointed out by the Government, a party is permitted pursuant to Fed.R.Civ.P. 8(e)(2) to "state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, equitable, or maritime grounds." Fed.R.Civ.P. 8(a); MDCM Holdings, Inc. v. Credit Suisse First Boston Corp., 216 F. Supp.2d 251, 261 (S.D.N.Y. 2002); Tkachyov v. Levin, 1999 WL 782070, *5 (N.D. Ill. Sept. 27, 1999) (plaintiff may plead both breach of contract and unjust enrichment alternatively in a single complaint); Quadion Corp. v. Mache, 738 F. Supp. 270, 278 (N.D. Ill. 1990) (same); United States v. Kensington Hospital, 760 F. Supp. 1120, 1135 (E.D. Pa. 1991) (same). Accordingly, at this stage of the litigation, the Court shall permit the Government to retain both the breach of contract claim and an unjust enrichment claim as alternative claims.

2. Unjust Enrichment and Payment by Mistake

Defendants contend that pursuant to United States v. Henderson, 2004 WL 540278 (D. Minn. March 16, 2004), claims for unjust enrichment and payment under mistake of fact must be plead with particularity in accordance with Rule 9(b) where they are premised upon fraud. Defendants argue that the Government's unjust enrichment and payment under mistake of fact claims are similarly premised upon the same fraud alleged to be underlying the Government's FCA claims and should be dismissed under Rule 9(b) for lack of particularity as well. For the reasons set forth with regard to the Government's FCA claim, the Court concludes that the Government has pled the facts supporting these claims with sufficient particularity.

V. MOTION BY LOCKHEED MARTIN TO DISMISS THE UNITED STATES' AMENDED COMPLAINT

Defendant Lockheed Martin moves to dismiss the Government's amended complaint. First, Lockheed Martin argues that it cannot be liable under Resource Conservation and Recovery Act (RCRA) (Counts 1 through 5) because it is neither an "operator" of the PDGP or a "generator" of hazardous waste. Additionally, Lockheed Martin asserts that its guarantee of its subsidiaries' performances does not subject it to any statutorily created liability under RCRA that its subsidiaries may incur. Second, Lockheed Martin likewise argues that it cannot be liable under the False Claims Act (Count 6) for any statutorily created liability of its subsidiaries based on the guarantees in question. Lockheed states that it made no claims, false or otherwise, to the Government. Third, Lockheed Martin argues that the Government's breach of contract claim (Count 7) is barred by the six-year statute of limitation. Further, Lockheed Martin contends that it did not guaranteed MMES's or LMES's performance after September 29, 1989, and therefore, it is not liable as a guarantor for any breaches of contract by MMES or LMES after that date. Fourth, Lockheed argues that the claims for unjust enrichment and payment by mistake (Count 8 and Count 9) should be dismissed because they are equitable claims and fall outside the scope of any guarantee by Lockheed Martin of its subsidiaries' contract performances. The Court shall address these arguments in turn.

A. RCRA CLAIMS

The Government has alleged that all three Defendants are liable for the alleged RCRA violations contained in Counts 1 through 5 of the United States' Amended Complaint. Counts 1 through 3 allege that Defendants violated various EPA and Kentucky regulations outlining the obligations of "generators" of waste. The Government avers that the Defendants failed to make hazardous waste determinations (Count 1), failed to comply with land disposal restrictions for hazardous waste (Count 2), and failed to comply with hazardous waste shipment requirements (Count 3). Count 4 alleges that Defendants operated the PGDP facility without a RCRA permit in violation of 42 U.S.C. § 6925(a) and various EPA and Kentucky regulations. Count 5 alleges that since August 19, 1991, when MMES received a RCRA permit, Defendants failed to comply with various provisions of that permit in violation of 40 C.F.R. § 270.30(A) and Kentucky regulations.

Defendant Lockheed Martin moves to dismiss the RCRA claims arguing that it cannot be held liable for civil penalties under RCRA because the Government has not alleged any facts to show that Lockheed Martin is either an "operator" of the PGDP facility, a "generator" of hazardous waste, or a RCRA permit holder. See, e.g. United States v. Bestfoods, 524 U.S. 51 (1998) (defnition of operator); 40 C.F.R. § 260.10 (definition of generator); United States EPA ex rel McKeown v. Port Authority of New York and New Jersey, 162 F. Supp.2d 173, 189 (S.D.N.Y. 2001) (generator). The Government responds that it has not alleged that Lockheed Martin is liable under RCRA as an operator, generator, or permit holder, but instead liability is based on Lockheed Martin's guarantee of its subsidiaries' performance under the underlying contract. Therefore, the extent of Lockheed Martin's liability in this case turns on the scope of the guarantees given by Lockheed Martin/Martin Marietta of the subsidiaries' performances and the terms of the underlying contracts. For purposes of this motion to dismiss, the Court accepts as true the contract provisions and explanations contained in the United States' amended complaint.

The amended complaint alleges that, during the relevant time period, MMES/LMES was a party to two contracts with DOE to operate the Paducah Gaseous Diffusion Plant (PGDP), and that the parent corporation, Martin Marietta/Lockheed Martin guaranteed the full, prompt, and faithful performance by MMES/LMES. The amended complaint further alleges that, during the relevant time period, MMUS/LMUS, was a party to two contracts with the USEC to conduct environmental restoration, site custodial, waste management, and other related services and that the parent corporation, Martin Marietta/Lockheed Martin, guaranteed the full, prompt, and faithful performance by MMUS/LMUS. Each of the contracts governing the obligations of MMES, MMUS, LMES, and LMUS relating to the PGDP contained a provision requiring that either Lockheed Martin or Martin Marietta execute a guarantee of the performance of its subsidiary under the contract. For example, the Chairman of the Board of Martin Marietta executed a guarantee of MMES's performance of the 21400 Contract on March 28, 1984, that stated in relevant part:

For and in consideration of the execution by the United States of America of Contract No. DE-ACO5-840R21400, Martin Marietta Corporation . . . does hereby unconditionally guarantee to the United States of American the full, prompt, and faithful performance by Martin Marietta Energy Systems, Inc., of each of the provisions and conditions of Contract No. DE-AC05-840R21400 and any further modification thereof which may be executed in connection therewith.

The remaining guarantees contained similar language guaranteeing the "full, prompt, and faithful performance" of the underlying contract.¹⁴

14 The United States has alleged in the amended complaint that Lockheed Martin or Martin Marietta guaranteed all the contracts in question throughout the time period covered by the contracts with DOE and USEC. However, in its motion to dismiss, Lockheed Martin argues that Lockheed Martin nor Martin Marietta executed a guarantee of MMES's performance under the 0001 Contract, nor did they execute a guarantee of MMES's or LMES's performance under the 21400 Contract after MMES's responsibilities under that contract terminated in 1989. Under the standards governing a motion to dismiss under Rule 12(b)(6), the Government's allegations are accepted as true. This issue goes to the merits of the claim and should be addressed after discovery.

According to the averments contained in the United States' amended complaint, all the contracts in issue in this case encompassed duties by the subsidiaries to ensure RCRA compliance at the PGDP, to abide by any RCRA permits pertaining thereto, and to report to the government any and all non-compliances. (Amended Complaint ¶¶ 23, 27-30,¹⁵ 32-37, 39,42-49). Significantly, the amended complaint alleges that pursuant to a contract between the government and LMES/MMES, LMES/MMES was deemed a "co-operator" of the PGDP. Therefore, the provisions and conditions of the contracts obligated the subsidiaries to comply with RCRA and RCRA permits, and to report non-compliances to government regulators. The parent corporations agreed to guarantee "the full, prompt, and faithful performance" of "each of the provisions and conditions" of those contracts and any modifications thereof.

15 For example, ¶ 30 provides as follows:

Appendix D, in turn, provided that Energy Systems would sign the PGDP's RCRA permit as a "co-operator" with RCRA responsibilities for day-to-day operations including waste analysis and handling, monitoring, record keeping, reporting, and contingency planning; that DOE would sign the permit as owner and operator with responsibilities for policy, programmatic, funding, scheduling decisions, and general oversight; and that for purposes of the certification required by 40 C.F.R. Section 270.11(d), DOE's and Energy Systems' representatives would certify, to the best of their knowledge and belief, the truth, accuracy and completeness of the application for their respective areas of responsibility. Appendix D also provided that Energy Systems had primary responsibility for the preparation and submission of RCRA permit applications and permits, for spill reports, for reports of non-compliances that might endanger health and the environment, for reports of unmanifested wastes, for annual solid waste management units listings, and for land disposal restrictions. The agreement also expressly provided that "Energy Systems is expected to notify the regulators and DOE of newly discovered noncompliances."

After a review of the alleged provisions and conditions in the contracts and the language of the guarantees in question, the Court agrees with the Government that to the extent that the subsidiaries failed to comply with the RCRA provisions and conditions contained in the underlying contracts, the parents are liable. The guarantees issued by the parent companies were more than a simple guarantee of payment — they were a guarantee of performance. The subsidiaries were required to comply with RCRA and, by the terms of the unconditional guarantees, the parent companies were likewise required to comply with RCRA in the event the subsidiaries did not. As a result, the Court concludes that the parent companies are fully liable for any and all violations of RCRA committed by the subsidiaries. Accordingly, Defendant's motion to dismiss the RCRA claims against it is denied.

B. FCA Claim

Lockheed Martin also moves to dismiss the Government's FCA claim (Count 6) arguing that it cannot be held liable under the FCA because it did not submit claims to the government and because its guarantees did not encompass statutory penalties and damages under the FCA. Further, Lockheed Martin argues that it cannot be liable for the FCA claim solely as a parent of MMES, MMUS, LMES and LMUS. The Government responds that it has not alleged that Defendant is liable under the FCA because the Defendant actually submitted a false claim or because it is the parent corporation of the subsidiaries, but instead Lockheed Martin's liability is based on Lockheed's guarantees of its subsidiaries' performance under the underlying contracts. Therefore, like the RCRA claims, the question of the extent of Lockheed Martin's liability on the FCA claim turns on the scope of the guarantees given by Lockheed Martin/Martin Marietta of the subsidiaries' performances and the terms of the underlying contracts. The same underlying contracts and guarantees discussed above control the disposition of this issue as well.

The guarantees in question provide that Lockheed Martin/Martin Marietta would guarantee the "full, prompt, and faithful performance" of "each of the provisions and conditions" of the contracts. A review of the United States' amended complaint indicates that the underlying contracts do not explicitly obligate the subsidiaries to refrain from committing a violation of the False Claim Act. While the amended complaint does allege that the subsidiaries were contractually obligated to make truthful and accurate reports, this obligation cannot support a reading of the underlying contracts as specifically requiring compliance with the FCA. Similarly, the guarantees in question do not obligate the parent corporations to be liable for every civil or criminal violation committed by its subsidiaries. Instead, the guarantees limit liability to the "full, prompt, and faithful performance" of the conditions and provisions of the contracts.

Each contract specifically sets forth the obligations, duties and requirements of the subsidiaries with respect to RCRA. As a result of their guarantees, the parents corporations are liable for these RCRA violations. Similarly, each contract specifically sets forth obligations, duties, and requirements of the subsidiaries for truthful and accurate reporting. By virtue of their guarantees, the parent corporations would be liable for the damages incurred by the government for the breach of the truthful and accurate reporting by the subsidiaries under a breach of contract theory. No where in the contract does it purport to hold the subsidiaries liable for violations of the FCA. Unlike the RCRA requirements and resulting violations, the FCA statutory violations are separate from the particular conditions and provisions of the underlying contracts. As a result, the guarantors cannot be held liable for the subsidiaries' alleged violations of the FCA. Accordingly, the motion by Defendant to dismiss the Government's FCA claim is granted.

C. Breach of Contract

Count 7 of the Government's amended complaint alleges that MMES, MMUS, LMES and LMUS breached the PGDP contracts and seeks to hold Lockheed Martin liable for those breaches as a guarantor. Lockheed Martin moves to dismiss the breach of contract claim against it relating to the alleged breach by MMES or LMES. According to Defendant, the Government filed its amended complaint on August 28, 2003, contending that Lockheed Martin is liable as a guarantor for breaches of contract committed by MMES and LMES. Defendant argues that on the face of the amended complaint and pursuant to 28 U.S.C. § 2415(a), any breach of contract claim that accrued prior to August 28, 1997, is untimely. Further, Defendant claims that because it did not guarantee MMES's or LMES's obligations after 1989, and because the statute of limitations bars recovery against Lockheed Martin as a guarantor for claims arising before August 29, 1997, the Government's breach of contract claim against Lockheed Martin relating to any breaches by MMES or LMES must be dismissed.

The statute of limitations applicable to the Government's breach of contract claim is 28 U.S.C. § 2415(a) which provides in part that "[s]ubject to the provisions of section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues. . . ." Additionally, 28 U.S.C. § 2416 provides that

[f]or the purpose of computing the limitations periods established in section 2415, there shall be excluded all periods during which . . . (c) facts material to the right of action are not known and reasonably could not be known by an official of the United States charged with the responsibility to act in the circumstances.

28 U.S.C. § 2416. Under this statute, a cause of action does not "accrue" until a plaintiff knows or has reason to know of his injury. See United States ex rel. Wilkins v. North American Const. Corp., 2001 WL 34109383 (S.D. Tex. September 26, 2001). Therefore, courts must exclude time during which responsible government officials do not know, and reasonably could not know, the "facts material to the right of action." 28 U.S.C. § 2416.

First, the Court finds that the amended complaint charges that MMES/LMES and MMUS/LMUS operated the PGDP through April 1, 1998, that they engaged in a series of activities and actions that constituted breaches of their contracts with DOE and USEC, and that Lockheed guaranteed their full, prompt, and faithful performances of those contracts from 1984 through April 1, 1998. Taking the allegations in the amended complaint as true, the Court rejects the Defendant's argument that it did not guarantee any contracts of MMES/LMES after 1989. This argument goes to the merits of the claims and is not appropriate at this stage of the litigation.

Second, the Court finds that the Government's breach of contract claim relates back to the original qui tam action filed on June 1, 1999. For the same reasons set forth in the Court's discussion of the relation back of the Government's RCRA claims, the Court finds that the Government's breach of contract claim against Lockheed Martin arises out of the same conduct, transaction and occurrences set forth in the NRDC's complaint. The NRDC's original complaint alleges the existence of contracts and/or guarantees between the Defendants and the government, that the subsidiaries failed to perform under the contracts, and that the subsidiaries received payment for work not performed or inaccurately performed. Similarly, the Court finds that NRDC's complaint alleging FCA violations was sufficient to put the Defendants on notice of the Government's breach of contract claims. Therefore, the Government can at least maintain its breach of contract claim for breaches dating back to June 1, 1993.

Third, the Court finds that the Government has alleged facts in its amended complaint sufficient to satisfy the tolling of the statute of limitations pursuant to § 2416. The Government has predicated its breach of contract claim on the Defendant's duty, as well as its subsidiaries' duties, to comply with RCRA. At this stage of the litigation, the Government has sufficiently alleged that the Defendants have fraudulently concealed their RCRA violations and that the Government was not aware of those violations until at the earliest August of 1999. (See the fraudulent concealment discussion infra at IV(B)(3)). This determination does not foreclose the Court from later determining on a motion for summary judgment, after discovery, that sufficient evidence does not exist to support the Government's contention that "facts material to the right of action [were] not known and reasonably could not [have been] known by an official of the United States charged with the responsibility to act in the circumstances." 28 U.S.C. § 2416.

For these reasons, accepting as true the facts alleged in the amended complaint, the Court denies the motion to dismiss the breach of contract claim against Lockheed Martin.

D. Payment Under Mistake or Unjust Enrichment

As an alternative to its breach of contract claim, the United States asserts two common law theories of recovery: payment under mistake (Count 8) and unjust enrichment (Count 9). Lockheed Martin seeks to dismiss these claims. By the terms of the guarantees, Lockheed Martin and Martin Marietta guaranteed "the full, prompt, and faithful performance" of each of the provisions and conditions of the contracts between the subsidiary and the government. The Government's claims for payment under mistake and for unjust enrichment do not arise under these contracts, and, therefore, do not fall within the scope of Lockheed Martin's guarantees. For these reasons, the motion by Lockheed Martin to dismiss the Government's claims for payment under mistake and unjust enrichment is granted.

VI. MOTIONS BY DEFENDANTS LOCKHEED MARTIN, LMES AND LMUS TO DISMISS FIRST AMENDED COMPLAINT OF RELATORS NRDC

Lockheed Martin, LMES LMUS move to dismiss the NRDC Relators' FCA claims. At the hearing on the motions to dismiss, NRDC moved to dismiss Counts 3 and 4 of their first amended complaint. The Court granted the motion to dismiss Counts 3 and 4 without prejudice to the United States. The Court shall address the Defendants' motions to dismiss as it relates to the four remaining claims.

A. Lockheed Martin's Motion to Dismiss

Defendant Lockheed Martin moves to dismiss NRDC Relator's first amended complaint arguing that it cannot be held liable for the FCA claims because it did not submit claims to the government and because its guarantees did not encompass the statutory penalties and damages of the FCA.

The rationale set forth in the Court's discussion of Lockheed Martin's motion to dismiss the Government's FCA claim is applicable here. For the reasons set forth above, the Court finds that the guarantees do not impose liability upon Lockheed Martin for its subsidiaries violation of the FCA. However, this conclusion does not resolve Lockheed Martin's motion to dismiss. Unlike the Government, the NRDC Relators argue that Lockheed Martin and Martin Marietta were directly involved in the FCA violations.

The NRDC Relators have alleged that all the Defendants are liable for violating subsections (1), (2), and (7) of the FCA. Section 3729(a)(1) of the FCA holds liable "[a]ny person who . . . knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval." 31 U.S.C. § 3729(a)(1). Under section 3729(a)(2), liability attaches to "[a]ny person who . . . knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government." § 3729(a)(2). Likewise, section 3729(a)(7) also applies to "[a]ny person who . . . knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government." § 3729(a)(7).

The NRDC Relators argue that the plain text of the FCA eschews any notion that only the precise entity that physically sends the relevant claims or statements to the Government can be held liable. The statutory language makes clear that the FCA imposes liability on any entity causing a false claim to be presented, even if it does so through another, completely unrelated entity. See e.g. United States v. Bornstein, 423 U.S. 303 (1976) (holding that subcontractor who delivered falsely marked items to the prime contractor may be liable under the FCA even though the prime contractor presented the invoices to the Government). The NRDC Relators allege that the PGDP contracts carried with them a series of obligations to comply with a variety of health and safety requirements at the PGDP, and to submit truthful and accurate environmental reports. The NRDC Relators contend that because specific intent to defraud¹⁶ is no longer required to prove an FCA violation, if the parent corporation willfully buried its head in the sand, it could be held liable where it was under an obligation, as Lockheed Martin was, to ensure that its subsidiaries were truthful and accurate in all of their submissions. The NRDC Relators maintain that its complaint alleges that all of the Defendants, including the parent companies, knew or acted in reckless disregard or deliberate ignorance of the falsity of the reports; and as a result, NRDC has charged that Lockheed Martin knowingly presented or caused to be presented to the DOE false and fraudulent claims for payment.

16 Pursuant to the 1986 amendments to the FCA, specific intent to defraud is no longer required. Now, the Government must establish one of the following: "(1) [the defendant] has actual knowledge of the information; (2) [the defendant] acts in deliberate ignorance of the truth or falsity of the information; or (3) [the defendant] acts in reckless disregard of the truth or falsity of the information. . . ." 31 U.S.C. § 3729(b). The Sixth Circuit has referred to this as the constructive knowledge amendment.

The Court agrees with the NRDC that a person need not directly submit claims to the government to be liable. Bornstein, 423 U.S. at 309. However, "mere knowledge of the submission of claims and knowledge of the falsity of those claims is insufficient to establish 'causation' under the FCA." United States v. President and Fellows of Harvard College, 323 F. Supp. 2d 151, 186 (D. Mass. 2004). "Constructive knowledge that something illegal may have been in the offing is not enough to prove the government's case." United States v. Murphy, 937 F.2d 1032, 1038 (6th Cir. 1991). "The constructive knowledge amendment to the False Claims Act applies only to the information submitted." Id. at 1038-1039. As recognized by the Sixth Circuit, "[i]t does not eliminate the need under subsection (a)(1) for some action by the defendant whereby the claim is presented or caused to be presented." Id. at 1039. See also United States ex rel. Piacentile v. Wolk, 1995 WL 20833, *4 (E.D. Pa. Jan. 17, 1995).

The NRDC Relators have not alleged any facts in the first amended complaint to support the allegations Lockheed Martin "caused" the claims in question to be submitted. As noted by Lockheed Martin, the NRDC Relators put the cart before the horse when they argue that parties may be subject to liability under the FCA if they are willfully blind, or knowingly or recklessly disregard whether a statement is false. The scienter standards or constructive knowledge standards apply only to those who present a false claim to the government; they do not answer the question of whether a false claim was made in the first place. The first amended complaint contains no allegations to support the argument that Lockheed Martin engaged in any conduct that caused a false claim to be submitted. Being a parent corporation of a subsidiary that commits a FCA violation, without some degree of participation by the parent in the claims process, is not enough to support a claim against the parent for the subsidiary's FCA violation. NRDC has declined to pursue liability against Lockheed Martin on a piercing of the corporate veil theory. As a result, the Court concludes that the NRDC Relators have failed to allege facts that could establish the liability of Lockheed Martin or Martin Marietta for a violation of the FCA. For these reasons, the Court grants Defendant Lockheed Martin's motion to dismiss the NRDC Relators' first amended complaint against it.

B. LMES and LMUS Motion to Dismiss NRDC's first amended complaint

LMES and LMUS move to dismiss the NRDC's first amended complaint arguing that the NRDC Relators have failed to plead the FCA claims with particularity as required by Fed.R.Civ.P. 9(b). Defendants contend that the NRDC's FCA claims fail to specify who, when, what, and how of the alleged fraud. The majority of the arguments raised in the Defendants' motion to dismiss the NRDC's first amended complaint were also raised in the Defendants' motion to dismiss the Government's amended complaint. Keeping in mind the case law discussed above, the Court will address the Defendants' arguments in turn. (See infra IV(B)).

First, the Court finds that the NRDC's first amended complaint contains sufficient particularity with respect to "who" violated the FCA. Contrary to Defendants' assertions, Plaintiffs have not lumped the Defendants together, but have set forth specific actions attributable to each Defendant. The NRDC first amended complaint sets forth the individual roles of each Defendant including the specific contracts entered into by each of the subsidiary Defendants, the specific guarantees provided by the parent companies, and the specific fees received by the subsidiary Defendants. (NRDC First Amended Complaint at ¶¶ 12-15, 31-41, 59, 62). In the first amended complaint's "Factual Background" section, NRDC specifically enumerates the Defendants' roles in the underlying false claims.

The Court recognizes that Attachment A to the NRDC's first amended complaint, which sets forth the allegedly false statements at issue, attributes the statements to the "defendants" collectively without reference to whether Utility Systems¹⁷ or Energy Systems¹⁸ made the statements. While this could lead the Court to conclude that NRDC has relied upon "blanket references to acts or omissions by all of the 'defendants,'" Bledsoe, 342 F.3d at 643, such a conclusion is not appropriate in the present case. A review of Attachment A and the NRDC first amended complaint reveals that the majority of the eighty false statements listed by NRDC are statements contained in environmental reports submitted to the government. (First Amended Complaint Att. A at ¶¶ 1-10, 12-51, 53-70, 72-75, 77-80). NRDC has alleged in its first amended complaint that pursuant to the contracts in question, Utility Systems and Energy Systems both had a responsibility for the production of the environmental reports. (Complaint at ¶ 67). Clearly, the majority of the false statements listed in Attachment A are alleged to have be submitted or caused to be submitted jointly by Energy Systems and Utility Systems. Given the allegations set forth in the first amended complaint, as well as the false statements set forth in Attachment A, the Court finds that the NRDC complaint provides sufficient notice to the Defendants regarding the "who" of the alleged FCA violations to enable all the Defendants to prepare a responsive pleading.

17 LMUS or MMUS depending on the date of the alleged statement.

18 LMES or MMES depending on the date of the alleged statement.

Second, the Court rejects Defendants' argument that the NRDC's failure to specify the individuals at Energy Systems and Utility Systems who made the alleged fraudulent statements warrants dismissal of the FCA claims under Rule 9(b). As discussed above, district courts in the Sixth Circuit "have recognized that Rule 9(b) requires only that the Plaintiff identify the parties and not the individual employees involved in the misconduct." United Technologies Corp., 2000 WL 988238, *6; Roby, 184 F.R.D. 107 ("We also conclude that the Amended Complaint adequately identify Boeing as a party involved in the alleged misconduct. Boeing's contention that the Amended Complaint must identify with specificity the person involved in the misconduct is overreaching. [Rule] 9(b) requires only . . . identification of the parties." Id. at 110); Pogue, 977 F. Supp. at 1333 ("Although no specific dates or West Paces employees are identified, the complaint alleges that the hospital participated in a systematic, fraudulent scheme, spanning the course of 12 years; thus, reference to a time frame and to 'West Paces' generally is sufficient."). The NRDC has clearly identified the parties involved in the FCA violations. Additionally, the NRDC has referenced a number of documents containing alleged false statements from which the identity of the employees could be ascertained.

Third, the Court finds that the NRDC's first amended complaint sufficiently alleges the time of the alleged fraud. The fraudulent conduct at issue in the present case took place over an extended period of time. "[W]hen an underlying fraudulent activity is alleged to have occurred systematically and continuously over a period of time it is sufficient to allege a general time frame of the fraud in question." NHC Healthcare Corp., 115 F. Supp.2d at 1151 (2-3 months); Pogue, 977 F. Supp. at 1333(12 years). The NRDC has alleged that these schemes occurred throughout this extended period of time, not merely at some unspecified time during this period. Attachment A of the first amended complaint also reflects that not only has the NRDC provided Defendants with approximate dates of the false statements, but the citation to the actual documents on which the majority of these false statements were made. Clearly, the complaint sufficiently alleges the time frame of the FCA violations.

Finally, the Court finds that the NRDC sufficiently identified with particularity "what" the FCA violations were and "how" the fraud was committed. The Court finds that the NRDC has adequately alleged FCA violations, including false claims pertaining to the collection, categorization, storage and disposal of all waste in landfills (First Amended Complaint at ¶ 90, First Amended Complaint Att. A ¶¶ 1-14); pertaining to the contamination of ditches, creeks, and outfalls with radioactive toxic and/or mixed waste (First Amended Complaint at ¶ 93, First Amended Complaint Att. A ¶¶ 15 et seq.); and relating to a two-part investigation of the extent of contamination discovered by the Kentucky Radiation Control Branch in 1988 (First Amended Complaint at ¶ 108). The NRDC has attached a list of eighty false claims contained primarily in environmental reports submitted by the Defendants to the government. (First Amended Complaint Att. A). Additionally, the NRDC has alleged that each claim submitted under the PDGP contracts from June 1989 through June 2002 was false. (First Amended Complaint at ¶¶ 47, 48, 50, 52, 53, 56-63).See Roby, 184 F.R.D. 107 (denied motion to dismiss pursuant to Rule 9(b) because the plaintiff had alleged that the defendant had acted with the knowledge of falsity or reckless disregard for the truth with respect to every helicopter it delivered to the United States).

Essentially, Defendants requests the Court to require the NRDC Relators to plead detailed evidentiary matters to satisfy Rule 9(b). As this Court has previously recognized, "Rule 9(b) was designed not to prove a plaintiff's case, but to give notice to the defendants and ensure that the case is not being brought without any basis for the allegations." New England Health Care Employees Pension Fund, 1999 WL 33295037, *6. See also Hood, 762 F. Supp. at 1289 ("Plaintiffs do not, however, have to plead detailed evidentiary matters" to satisfy Rule 9(b)).

For these reasons, the Court finds that the complaint adequately places the Defendants on notice of the basis of the FCA claims against them, thereby allowing them to prepare a responsive pleading. The motion by Defendants to dismiss the NRDC's complaint for failure to comply with Rule 9(b) is denied.

VII. MOTION BY THE UNITED STATES TO CONSOLIDATE

The United States moves to consolidate the Tillson action and the NRDC action. Fed.R.Civ.P. 42(a) provides as follow: "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." The Court finds that the FCA claims in the NRDC and the Tillson actions involve common issues of law and fact. While the Court recognizes that each Relator has some unique claims, consolidation is still appropriate even where some questions are not common to both actions, so long as the common questions are central ones. 9 Wright Miller, Federal Practice and Procedure: Civil 2d § 2384 at 455-457. The consolidation of these two cases will streamline motion practice and discovery. Therefore, the motions by the United States to consolidate the actions with respect to the Relators' FCA claims are granted. However, at this stage of the litigation, the Court denies the Government's motion to consolidate with respect to Tillson's retaliation claim against SAIC.

VIII. CONCLUSION

For the reasons set forth above, and the Court being sufficiently advised, IT IS HEREBY ORDERED as follows:

1. The motion by Lockheed Martin Energy Systems, Inc. and Martin Marietta Energy Systems, Inc. to Dismiss Relator John David Tillson's Second Amended Complaint [DN 70 in Civil Action No. 5:00CV-39-M] is granted in part and denied in part. Counts 2, 3, 4, 5, 6, 8, and 9 are dismissed as barred by the first-to-file rule. Count 10 is dismissed as against LMES/MMES.

2. The motion by Defendant Science Applications International Corporation to Dismiss Relator John David Tillson's Second Amended Complaint [DN 65 in Civil Action No. 5:00CV-39-M] is granted in part and denied in part. Count 2 is dismissed as barred by the first-to-file rule.

3. The motions by Defendants Lockheed Martin Energy Systems, Inc. and Lockheed Martin Utility Services, Inc. to dismiss the United States' Amended Complaint [DN 71 in Civil Action No. 5:99CV170-M and DN 72 in Civil Action No. 5:00CV-39-M] are denied.

4. The motions by Defendant Lockheed Martin Corporation to Dismiss United States' Amended Complaint [DN 75 in Civil Action No. 5:99CV-170-M and DN 74 in Civil Action No. 5:00CV-39-M] are granted in part and denied in part. The Government's FCA claim (Count 6), payment by mistake claim (Count 8), and unjust enrichment claim (Count 9) against Lockheed Martin are dismissed.

5. The motion by Defendant Lockheed Martin Corporation to Dismiss the First Amended Complaint of Relators Natural Resources Defense Counsel [DN 77 in Civil Action No. 5:99CV-170-M] is granted. The NRDC Relators' first amended complaint is dismissed against Lockheed Martin.

6. The motion by Defendants Lockheed Martin Energy Systems and Lockheed Martin Utility Services to Dismiss the First Amended Complaint of Relators Natural Resources Defense Council [DN 73 in Civil Action No. 5:99CV-170-M] is denied.

7. Upon motion by Plaintiffs Relators Natural Resources Defense Council, Counts 3 and 4 of the Relators Natural Resources Defense Council's First Amended Complaint are dismissed against all the Defendants without prejudice to the United States.

8. The motions by the United States to Consolidate both cases [DN 100 in Civil Action No. 5:99CV-170-M and DN 107 in Civil Action No. 5:00CV-39-M] are granted in part and denied in part. Counts 1 and 7 of Tillson's second amended complaint and the Government's amended complaint in Civil Action No. 5:00CV-39-M are consolidated with Civil Action No. 5:99CV-170-M. Count 10 of Tillson's second amended complaint, Civil Action No. 5:00CV-39-M, is not consolidated.