ANGELINE v. ATCS PLLC (2025)

MEMORANDUM OPINION AND ORDER

Plaintiff Barry Angeline worked as a subcontractor in support of the Federal Emergency Management Agency's (“FEMA”) disaster recovery efforts in Puerto Rico, tasked with providing “Lean Six Sigma” (“LSS”) training to FEMA personnel. Angeline asserts that he was unlawfully terminated from the LSS task order in retaliation for his whistleblowing activities, which reported a variety of alleged mismanagement and malfeasance by FEMA staff. Angeline has brought a separate action against FEMA. In this case, he brings a claim against Defendant ATCS, PLLC (“ATCS”)—the prime contractor on the project—under the whistleblower-protection provisions of the National Defense Authorization Act (“NDAA”), 41 U.S.C. § 4712. ATCS has moved for summary judgment, Dkt. 51, primarily on the theory that Section 4712 permits only employees of government contractors or subcontractors to bring claims against their own employers. Angeline, ATCS insists, was never an ATCS employee, and therefore his claim fails as a matter of law. Dkt. 51-1 at 6. Angeline for his part, argues that Section 4712 allows his claim to proceed so long as he was an employee of a government subcontractor, even if ATCS did not employ him. Dkt. 53 at 9.

As explained below, neither party offers a convincing explication of the scope of Section 4712’s protections. Although the Court rejects Angeline's expansive theory that Section 4712 covers any suit brought by an employee of any government contractor against another, ATCS has yet to demonstrate—and may ultimately be unable to demonstrate—that Angeline's specific claims fall outside of the statute's coverage as a matter of law. The Court will, accordingly, DENY ATCS's motion for summary judgment.

I. BACKGROUND

41 U.S.C. § 4712, a version of which was first enacted in 2013 as a “pilot program” to protect employees of government contractors, see National Defense Authorization Act for Fiscal Year 2013 Pub. L. No. 112-239, § 828(a)(1), 126 Stat. 1837 (2013), provides that:

An employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to [certain designated persons] information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.

41 U.S.C. § 4712(a)(1). If a person believes that she has been subjected to a prohibited reprisal, she “may submit a complaint to the Inspector General of the executive agency involved,” who is typically required to “investigate the complaint and, upon completion of such investigation, submit a report of the findings of the investigation to the person, the contractor, subcontractor, grantee, subgrantee, or personal services contractor concerned, and the head of the agency.” Id. § 4712(b)(1). After receiving the report from the Inspector General, the head of the agency may deny relief or order “the contractor, subcontractor, grantee, subgrantee, or personal services contractor” at issue to reinstate the complainant, award compensatory damages, pay attorney's fees and costs, or otherwise “take affirmative action to abate the reprisal.” Id. § 4712(c)(1). If the agency head denies relief or otherwise fails to act, “the complainant may bring a de novo action at law or equity against the contractor, subcontractor, grantee, subgrantee, or personal services contractor to seek compensatory damages and other relief available under this section.” Id. § 4712(c)(2).

This case arises from an April 2018 FEMA task order assigned to ATCS, pursuant to a prior blanket purchase agreement between ATCS and FEMA. Dkt. 53-1 at 1 (Def.’s SUMF ¶¶ 1–2). The task order required ATCS to procure LSS training to improve FEMA's disaster recovery work in Puerto Rico. Id. In May 2018, ATCS engaged Novaces, LLC as a subcontractor on the project. Id. (Def.’s SUMF ¶ 4). Novaces then subcontracted with Cyberricade, Inc., a company that employed Angeline.¹ Id. at 2 (Def.’s SUMF ¶¶ 5–6, Pl.’s Response to Def.’s SUMF ¶ 6). At the direction of FEMA staff, Angeline began working as part of a team with other contractors “to train and certify key FEMA personnel in the LSS process improvement methodology.” Dkt. 20 at 3 (2d Am. Compl. ¶¶ 15–17). Angeline describes LSS as “a highly technical methodology that requires understanding of industrial engineering, operations research, and statistics.” Id. (2d Am. Compl. ¶ 17).

Angeline's tenure on the project was marked by repeated disagreements and frustrations with FEMA staff. The relevant FEMA team cycled through managers—none of whom Angeline believed had the requisite expertise to supervise his work—and Angeline contacted several congressional offices to report concerns of mismanagement, inadequate staffing, and inflated cost estimates. Id. at 4–5 (2d Am. Compl. ¶¶ 23, 25–26). Angeline also objected when FEMA staff requested that he provide copies of his LSS training materials for their own use, which he believed violated the scope of the project and sought to acquire his intellectual property without compensation. Id. at 5 (2d Am. Compl. ¶ 28). Finally, Angeline alleges that Tamiris Aldarondo, a FEMA employee who was supposed to be receiving the LSS training but who had failed to attend sessions or complete assignments, asked to be given the final exam answer key in advance so she could be certified without properly completing the course. Id. at 5–6 (2d Am. Compl. ¶¶ 29–32, 34). Angeline declined that request and reported it to the Department of Homeland Security's Office of the Inspector General and FEMA's Whistleblower Protection Coordinator. Id. at 6–7 (2d Am. Compl. ¶¶ 33, 37, 40–41).

Shortly after the clash with Aldarondo, an ATCS manager told Angeline that he had been terminated, and the entire LSS task order was ultimately cancelled. Id. at 8–9 (2d Am. Compl. ¶¶ 47, 50). Angeline argues that he lost his position in retaliation for his whistleblowing. Id. at 10 (2d Am. Compl. ¶ 59). ATCS, for its part, maintains that the contract was terminated after FEMA decided to end the project because of “a lack of measurable deliverables, missed deadlines, a lack of professionalism, and poor quality of work.” Dkt. 53-1 at 2–3 (Def.’s SUMF ¶¶ 8, 11–14).

Angeline does not explain precisely what he means when he alleges that he was “terminated” by an ATCS manager. Dkt. 20 at 8 (2d Am. Compl. ¶ 47). Presumably, Angeline does not mean that he was fired by his employer or otherwise separated from the position he held at that employer. To the contrary, Angeline seems to concede that he was not formally employed by ATCS or Novaces at the relevant time and, instead, posits that he worked for Cyberricade.² Dkt. 53 at 11; Dkt. 53-1 at 2 (Pl.’s Response to Def.’s SUMF ¶ 6). Perhaps he means that ATCS, acting in its capacity as the prime contractor, removed Angeline (or informed Angeline that FEMA had removed him) as a designated individual under the relevant task order. See, e.g., 48 C.F.R. § 52.216-18(a) (“Any supplies and services to be furnished under this contract shall be ordered by issuance of ․ task orders by the individuals ․ designated in the Schedule.”). On ATCS's telling, FEMA decided to terminate the LSS Task Order on May 15, 2019; it advised ATCS of that decision on May 22, 2019; and ATCS did not inform “Angeline that he was being released from the LSS project effective immediately” until the next day, May 23, 2019. Dkt. 53-1 at 3 (Def.’s SUMF ¶¶ 11, 13–14). The full LSS Task Order's final date of performance was not until June 30, 2019. Id. (Def.’s SUMF ¶ 15). Angeline does not dispute any of these assertions of fact. Id. (Pl.’s Response to Def.’s SUMF ¶¶ 11–15).

Following his “release[ ] from the LSS project,” id. (Def.’s SUMF ¶ 14), Angeline exhausted his administrative remedies and then filed this suit against ATCS and Novaces, asserting a single claim for relief under 41 U.S.C. § 4712, Dkt. 20 at 2, 9–10 (2d Am. Compl. ¶¶ 9, 53, 55–64).³ After the Court denied a pair of motions to dismiss that argued, among other things, that Angeline had not plausibly alleged that he was an employee of either ATCS or Novaces, see Dkt. 21; Dkt. 22; Dkt. 26; Min. Order (Mar. 1, 2024), the case proceeded to discovery. While discovery was ongoing, Angeline agreed to dismiss all claims against Novaces, leaving ATCS as the sole defendant in this case. Dkt. 39; Min. Order (May 7, 2024). ATCS's motion for summary judgment, Dkt. 51, is now before the Court.

II. LEGAL STANDARD

To prevail on a motion for summary judgment, the moving party bears the burden of demonstrating “that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment “bears the initial responsibility” of “identifying those portions” of the record that “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party carries this initial burden, the burden then shifts to the nonmoving party to show that sufficient evidence exists for a reasonable jury to find in the nonmoving party's favor with respect to the “element[s] essential to that party's case, and on which that party will bear the burden of proof at trial.” Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (citation modified). The nonmoving party's opposition, accordingly, must consist of more than unsupported allegations or denials, and must be supported by affidavits, declarations, or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324.

In considering a motion for summary judgment, the Court must resolve all factual disputes and draw “all justifiable inferences” in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Mastro v. Pepco, 447 F.3d 843, 850 (D.C. Cir. 2006). The Court must also resolve any disputed questions of law, such as the interpretation of relevant statutory terms. All. of Artists and Recording Cos., Inc. v. Gen. Motors Co., 306 F. Supp. 3d 422, 433 (D.D.C. 2018).

III. ANALYSIS

In its motion for summary judgment, ATCS argues that Angeline's claim fails as a matter of law because he was not an employee of ATCS, as required to bring a claim against the company under the NDAA's whistleblower protection provision. Dkt. 51-1 at 6. Citing the D.C. Circuit's decision in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979)—which establishes a multifactor test, centering on the “right to control the means and manner of the worker's performance,” to determine whether an employee relationship existed, Dkt. 51-1 at 6 (quoting Spirides, 613 F.2d at 831)—ATCS maintains that Angeline was a FEMA employee during his work on the LSS training project, id. at 7. ATCS emphasizes, moreover, that Angeline has filed a separate case against the Department of Homeland Security regarding his work for FEMA in Puerto Rico, naming the Secretary of Homeland Security as the defendant. Id. at 3, 7. In his complaint in that case, Angeline alleges that the nature of his work on the LSS project “changed [his] status from independent contractor to [FEMA] employee.” Amended Complaint at 2, Angeline v. Mayorkas, No. 23-cv-722 (D.D.C. June 06, 2024), Dkt. No. 26 (formatting altered); see also Dkt. 51-10 (attaching the amended complaint for No. 23-cv-722).

Angeline's brief in opposition to the pending motion for summary judgment does not argue that he was an ATCS employee under Spirides or any other potentially relevant standard identified by Angeline. Instead, he maintains that Section 4712 “does not require [him] to be an employee of ATCS to bring a claim thereunder.” Dkt. 53 at 9. All that is necessary, in his view, is that he was an employee of some “contractor, subcontractor, grantee, subgrantee, or personal services contractor,” even if that contractor is not the defendant of his suit. Id. (quoting 41 U.S.C. § 4712(a)(1)). Because, Angeline argues, he was an employee of Cyberricade, a federal subcontractor, at the relevant time, he satisfies the statutory preconditions. Id. at 9–10. The Court is unpersuaded that Section 4712 is best read to permit employees of federal contractors and subcontractors to bring lawsuits against any other federal contractor regardless of the nature of the relationship between the plaintiff and the object of the suit.

The Court begins, as it must, with the statutory text. See BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006). Section 4712 provides that “[a]n employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor may not be discharged, demoted, or otherwise discriminated against” in retaliation for certain protected activities. 41 U.S.C. § 4712(a)(1). The terms “discharge” and “demote” are most naturally read as describing actions undertaken by an employee's employer or its agent, not by unrelated third parties. “Discharge” means “[t]he firing of an employee,” and “demote” means to “lower [a person] in rank, position, pay, or other status.” Discharge, Black's Law Dictionary (10th ed. 2014) (def. 7); Demote, Black's Law Dictionary (10th ed. 2014). Definitionally, it is typically (and, indeed, almost always) the employer who can fire the employee or reduce that employee's position or pay. See Delebreau v. Danforth, 743 F. App'x 43, 44 (7th Cir. 2018) (holding that a plaintiff could not sue her supervisors in their personal capacities under Section 4712, as “in their personal capacities they cannot discharge, demote, or discriminate in employment” (emphasis in original)). And although the statute's additional catchall prohibition on a contractor “otherwise discriminat[ing] against” a person in reprisal might be read as including actions not so tied to an employer-employee relationship, the ejusdem generis canon of statutory interpretation instructs that such “general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Wash. State Dep't of Soc. and Health Servs. v. Guardianship Est. of Keffeler, 537 U.S. 371, 384 (2003) (citation modified). The Court thus concludes that Section 4712’s prohibition on discrimination should be interpreted as covering only actions that, like a discharge or a demotion, are naturally understood as carried out by an employer against an employee—or, at the very most, similar adverse actions taken by a person or entity able to exercise similar authority over the aggrieved party.

Other provisions of the relevant statute are also at odds with Angeline's expansive interpretation. An employee's whistleblowing conduct is protected if she discloses covered information to, among others, a manager at “the contractor, subcontractor, grantee, subgrantee, or personal services contractor.” 41 U.S.C. § 4712(a)(2)(G) (emphasis added). Once a complaint has been filed, the Inspector General is directed to investigate and then “submit a report of the findings of the investigation to ․ the contractor, subcontractor, grantee, subgrantee, or personal services contractor concerned.” Id. § 4712(b)(1) (emphasis added). The head of the relevant agency, after receiving that report, may conclude that “the contractor, subcontractor, grantee, subgrantee, or personal services contractor concerned” has violated the statute and may direct “the contractor, subcontractor, grantee, subgrantee, or personal services contractor” to remedy the situation. Id. § 4712(c)(1) (emphases added). And after exhausting administrative remedies, “the complainant may bring a de novo action at law or equity against the contractor, subcontractor, grantee, subgrantee, or personal services contractor.” Id. § 4712(c)(2) (emphasis added). “The consistent use of the definite article in reference to the [contractor] indicates that there is generally only one proper respondent to a given [complaint].” Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). As the statutory scheme focuses on a definite contractor or subcontractor that is potentially subject to a civil suit, the natural implication is that such a contractor is the same contractor who, by “employing” an “employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor,” allows a person to benefit from the statute's protections in the first place. 41 U.S.C. § 4712(a)(1).

Other textual cues point in this same direction. As ATCS notes in its reply brief, for example, the statute provides for “relief such as ‘reinstatement,’ ‘back pay,’ and restoration of ‘employment benefits’ ” that presupposes that the entity subject to a complaint is the employer of the employee who suffered retaliation. Dkt. 55 at 3 (quoting 41 U.S.C. § 4712(c)(1)(B)). The statute also includes an express provision protecting an employee from reprisal by her employer “even if [the action] is undertaken at the request of an executive branch official,” 41 U.S.C. § 4712(a)(3)(B), which suggests that liability turns on an adverse action taken by the whistleblower's employer, even if other actors may also bear some responsibility.

This reading of the statute is further supported by the Supreme Court's interpretation of the whistleblower-protection provisions of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, which bear a significant resemblance to Section 4712. The relevant language of Sarbanes-Oxley provides that “[n]o [public] company ․ or any officer, employee, contractor, subcontractor, or agent of such company ․ may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee” in retaliation for that employee's whistleblowing. Id. § 1514A(a). In Lawson v. FMR LLC, 571 U.S. 429 (2014), the Supreme Court was required to decide whether that prohibition on discriminating against “an employee” forbade a “contractor, subcontractor, or agent” of a public company from retaliating against its own employees who performed work on behalf of a public company, or only from retaliating against someone who was employed directly by a public company. Id. at 433. The Supreme Court adopted the former interpretation, noting that the relevant language, as applicable to contractors, could be reduced to “no contractor may discharge [or otherwise discriminate against] an employee,” and holding that “the ordinary meaning of ‘an employee’ in this proscription is the contractor's own employee.” Id. at 440 (citation modified).

Among other things, the Lawson Court emphasized that contractors regulated by the statute “are in control of their own employees, but are not ordinarily positioned to control someone else's workers,” such that a regulation aimed at protecting the latter group from contractors would defy “common sense.” Id. at 433. The Court also explained that Sarbanes-Oxley's “application to contractor employees [was] confirmed” by the statute's enumerated “prohibited retaliatory measures,” namely “discharge, demotion, suspension, threats, harassment, or discrimination in the terms and conditions of employment,” which were “commonly actions an employer takes against its own employees.” Id. at 441 (emphasis in original). Similarly, the statute permitted remedies such as “reinstatement with the same seniority status that the employee would have had, but for the discrimination,” as well as “the amount of back pay, with interest.” 18 U.S.C. § 1514A(c)(2). As “it is difficult, if not impossible, to see how a contractor or subcontractor could provide those remedies to an employee of a public company,” as opposed to one of its own employees, the Supreme Court concluded that “the most sensible reading ․ is that the provision's protections run between contractors and their own employees.” Lawson, 571 U.S. at 443 (citation modified).

Although not identical to Sarbanes-Oxley, Section 4712 contains many features similar to the provisions highlighted by the Supreme Court in Lawson. Section 4712’s prohibitions (“[a]n employee ․ may not be discharged, demoted, or otherwise discriminated against”) and remedies (“reinstate[ment]” and “compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken”) refer to mistreatment and remedies that are most apt in an employer-employee relationship. 41 U.S.C. § 4712(a)(1), (c)(1)(B). Only an employer, for example, can typically “discharge” or “demote,” and then “reinstate” the aggrieved party under the preexisting “terms and conditions of employment.” As with the contractors covered by Sarbanes-Oxley, the government contractors regulated by Section 4712 “are in control of their own employees” and are not “ordinarily positioned to control someone else's workers.” Lawson, 571 U.S. at 433.

Finally, if Section 4712 were read to allow a plaintiff to sue a government contractor who is not her employer or the equivalent, as Angeline advocates, there is no obvious textual hook for limiting such a cause of action to employees of other government contractors whose work involves the same project or contract. But without a textual limiting principle, Section 4712 would sweep in a vast array of remote claims of “other[ ] discriminat[ion]” suffered by whistleblowers employed by government contractors or subcontractors. 41 U.S.C. § 4712(a)(1). Angeline, for his part, offers no intelligible principle for distinguishing actionable retaliation from other slights and indignities. By contrast, the statute's limitation of relief to employees of government contractors—based on claims asserted against “the” contractor—reasonably defines the compass of the statute.

The conclusion that Section 4712 provides a cause of action for whistleblowing employees of government contractors to pursue against their employers also aligns with the consensus framing of the statute in precedent.⁴ See, e.g., Jacobs Mgmt. Co. v. Dep't of Interior, 64 F.4th 123, 125 (3d Cir. 2023) (“Section 4712(a) prohibits contractors from engaging in reprisals against their employees.”); DuPage Reg’1 Off. of Educ. v. Dep't of Educ., 58 F.4th 326, 330 (7th Cir. 2023) (“Under [Section 4712], a recipient of a federal grant is prohibited from retaliating against an employee.”); Armstrong v. Arcanum Grp., Inc., 897 F.3d 1283, 1287 (10th Cir. 2018) (“[Section 4712] prohibits a government contractor from discriminating against an employee.”); Fuerst v. Hous. Auth. of City of Atlanta, 38 F.4th 860, 863 (11th Cir. 2022) (“By its plain text, [Section 4712] protects employees of federal contractors, subcontractors, grantees, and subgrantees or personal services contractors from their employers’ retaliation.” (citation modified)); Scarlett v. Nat'l Sci. Found. Off. of Inspector Gen., No. 22-cv-188, 2022 WL 17830227, at *6 (D.D.C. Dec. 21, 2022) (“[Section 4712] protects employees of government contractors who report misconduct ․ [a]n employee who [reports misconduct] and who then experiences retaliation may, after exhausting administrative remedies, sue the contractor” (citation omitted)); Moses v. Neighborhood Reinvestment Corp., No. 23-cv-2246, 2024 WL 4103699, at *4 (D.D.C. Sep. 3, 2024) (“[Section 4712] makes it unlawful for employers to discharge or otherwise retaliate against employees.”) Arawole v. Master Sec. Co., LLC, No. 23-cv-2413, 2025 WL 947477, at *12 (D.D.C. Mar. 28, 2025) (“[Section 4712] provides whistleblower protections for employees of [f]ederal contractors, subcontractors, grantees, and subgrantees for claims of reprisal against their employers.”).

Although Angeline dismisses the question of whether he was an ATCS employee as “the reddest of red herrings,” Dkt. 53 at 12 (citation omitted), he cites no authority adopting his position that Section 4712 authorizes suits by a government-contractor employee against any government contractor, subcontractor, or grantee, regardless of the preexisting economic relationship between plaintiff and defendant. The only case of which the Court is aware that arguably supports Angeline's construction of the statute is Wykosky v. ATCS, PLLC, No. 22-cv-1881, 2023 WL 4547992 (D.D.C. July 14, 2023). In Wykosky—which, incidentally, arose from the same FEMA LSS contract at issue in this case—the plaintiff brought a claim under Section 4712 against both ATCS, the first-level subcontractor, and AYFI Group, the second-level subcontractor. Id. at *1. After AYFI moved to dismiss the complaint, the Court concluded that the plaintiff was eligible to proceed under Section 4712 because he had plausibly alleged that he was an employee of ATCS. Id. at *3. The Court rejected AYFI's argument that the plaintiff's claim against AYFI should be dismissed because the plaintiff “ha[d] not pleaded that [AYFI] was a ‘contractor’ under the FEMA contract,” as in the court's view “nothing in [Section 4712] [ ] limits whistleblower protection only to reprisals by government contractors” and so “even if [AYFI] is not one, that does not place [AYFI] beyond the Act's prohibitions.” Id. at *4. The Court then noted that AYFI had, regardless, described itself as a government subcontractor in its briefing. Id. The parties eventually stipulated to the dismissal of the claims against AYFI in that case before the Court had further cause to address the scope of Section 4712. Stipulation of Dismissal, Wykosky v. ATCS, PLLC, No. 22-cv-1881 (D.D.C. Oct. 21, 2024), Dkt. No. 53.

Wykosky’s suggestion that Section 4712 might permit suits by employees of government contractors against entities other than their employers does not support Angeline's broad reading of the statute. First, the language in Wykosky stating that a non-contractor might be amenable to suit under Section 4712—a possibility that, in the Court's view, is foreclosed by the statute's judicial review provision, which permits a plaintiff who exhausts her administrative remedies to “bring a de novo action at law or equity against the contractor, subcontractor, grantee, subgrantee, or personal services contractor to seek compensatory damages and other relief available under this section,” 41 U.S.C. § 4712(c)(2) (emphasis added)—was dicta. Wykosky went on to conclude that AYFI qualified as a government contractor regardless. 2023 WL 4547992, at *4. Second, Wykosky did not squarely conclude that the plaintiff in that case was not an employee of AYFI. To the contrary, the opinion noted that Wykosky alleged that AYFI was responsible for approving his hours and expenses. Id. at *1. To the degree Wykosky might nevertheless support Angeline's position, the Court must still disagree with that interpretation for the reasons outlined above.

Although the Court is unpersuaded that Section 4712 permits an employee of a government contractor to bring suit against any entity that retaliates against her for disclosing alleged gross mismanagement, that conclusion does not mean that ATCS is necessarily correct and that it is entitled to judgment as a matter of law. Rather, neither the law nor the undisputed facts are as clear as ATCS suggests.

As noted above, ATCS maintains that the statute requires that Angeline demonstrate that he was an ATCS employee and asserts that the D.C. Circuit's decision in Spirides provides the proper test to determine whether Angeline so qualifies. Dkt. 51-1 at 6–7. Under Spirides, whether an individual qualifies as an employee turns on a holistic “analysis of the ‘economic realities’ of the work relationship,” 613 F.2d at 831 (citations omitted), in which “[c]onsideration of all of the circumstances surrounding the work relationship is essential, and no one factor is determinative,” but “the extent of the employer's right to control the ‘means and manner’ of the worker's performance is the most important factor to review,” id. (citations omitted). The relevant factors:

include, among others, (1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the “employer” or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; [i.e.], by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the “employer”; (9) whether the worker accumulates retirement benefits; (10) whether the “employer” pays social security taxes; and (11) the intention of the parties.

Id. at 832. ATCS, relying heavily on Angeline's pleadings in his separate case against the Secretary of Homeland Security, argues that, by Angeline's own admission, it was FEMA, and not ATCS, who controlled his work on the LSS project. Dkt. 51-1 at 7–8.

The Court appreciates the force of this argument but is not yet convinced that Spirides provides the appropriate (or the exclusive) standard to determine whether ATCS's action against Angeline falls under the protection of Section 4712. As an initial matter, the Court notes that Section 4712, unlike comparable anti-retaliation statutes, does not expressly define which entities may or may not commit an actionable violation of a federal contractor's employee's rights. As discussed above, Sarbanes-Oxley, for example, provides that a “contractor [or] subcontractor” may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee,” 18 U.S.C. § 1514A(a), which, as the Supreme Court explained in Lawson, draws a direct link between the contractor and its employees, 571 U.S. at 440. Title VII's anti-retaliation clause similarly provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees” because of that employee's opposition to an unlawful employment practice or other participation in a Title VII investigation or proceeding. 42 U.S.C. § 2000e-3(a) (emphasis added).

Section 4712, in contrast, simply provides that “[a]n employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal,” 41 U.S.C. § 4712(a)(1), with no express limitation on who might or might not commit a prohibited act of discrimination. To be sure, as the Court explained above, Section 4712 does elsewhere specify that the object of a complaint or civil suit must be “the” federal contractor, subcontractor, or grantee, 41 U.S.C. § 4712(c)(2), and the statute's specific prohibitions and remedies presuppose a relationship between plaintiff and defendant that generally tracks a formal employer-employee relationship. But Congress's decision to omit any explicit requirement that the actor who “discharge[s], demote[s], or otherwise discriminate[s] against,” id. § 4712(a)(1), a complainant be her employer is noteworthy, given that such language was included in otherwise-similar protections.

It is also notable that Congress omitted such a requirement from Section 4712—as well as from the equivalent protections for whistleblowing employees of defense contractors in 10 U.S.C. § 4701(a)(1)—in a context in which, as Congress was surely aware, individuals working on federal contracts are often formally employed by a subcontractor several levels removed from the prime contractor and the customer. The facts giving rise to this suit serve as an illustrative example: Angeline was formally an employee of Cyberricade, which had subcontracted with Novaces, which had itself contracted with ATCS on the LSS training contract, but it was nonetheless an ATCS manager, rather than anybody affiliated with Cyberricade or Novaces, who “advised Angeline that he was being released from the LSS project effective immediately.” Dkt. 53-1 at 3 (Pl.’s Response to Def.’s SUMF ¶ 14). When considered in this context, it is at least possible (and perhaps likely) that Congress made a considered decision to depart from the more formalistic employer-employee standard used in other anti-retaliation statutes and to focus, instead, on the status of the whistleblower (e.g., the employee of a government subcontractor) and the nature of the adverse action taken against her (e.g., a discharge, demotion, or similar punishment) by one of the relevant prime or subcontractors.

To be sure, the Spirides test might, as ATCS urges, answer this concern by ensuring that the entity that most directly supervises and controls the day-to-day work and compensation of the aggrieved party is always prohibited from engaging in whistleblower retaliation even if it is not her formal employer. See Dkt. 51-1 at 6–7. But Spirides addressed whether an individual who provides services to the government as an independent contractor is properly “deemed an employee under Title VII,” which, in turn, required resorting to “the law of agency.” 613 F.2d at 831; see also Harris v. U.S. Att'y Gen., 657 F. Supp. 2d 1, 9 (D.D.C. 2009). Neither the Spirides test nor ATCS's brief addresses the separate, antecedent question whether Section 4712 should be read to reach a retaliatory action taken against an employee of a government contractor where that action is similar to “discharging” or “demoting” the employee (as required by the ejusdem generis canon), even when the action is taken by an entity with contracting authority but without the type of day-to-day supervisory authority necessary to satisfy the Spirides test. To take one example, imagine a prime contractor with authority to decide which employees of a subcontractor are included (or excluded) from the schedule of individuals designated to provide services under a task order, which removes an individual from that schedule as a reprisal for reporting gross mismanagement or gross waste by that prime contractor on the project at issue. That action would, at least arguably, fall within the statutory prohibition on “otherwise discriminat[ing] against [an employee of a subcontractor] as a reprisal for disclosing ․ gross mismanagement ․ relating to a Federal contract,” 41 U.S.C. § 4712(a)(1), and it could, at least arguably, be remedied by an order directing “the contractor ․ to take affirmative action to abate the reprisal,” id. § 4712(c)(1)(A).

ATCS's exclusive reliance on Spirides also raises a second question, which—once again—neither party addresses. When an individual works as an employee of one entity, such as a subcontractor, but argues that she should also be considered an employee of a separate entity that has “contract[ed] in good faith with” her employer, the D.C. Circuit has suggested in dicta that the Third Circuit's test from NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1123 (3d Cir. 1982) should apply. See Redd v. Summers, 232 F.3d 933, 938 (D.C. Cir. 2000); Al-Saffy v. Vilsack, 827 F.3d 85, 96–97 (D.C. Cir. 2016). Browning-Ferris addresses the question whether an individual should be deemed a “joint employee” of two entities at the same time. Harris, 657 F. Supp. 2d at 9. The answer to that question turns on whether “one employer[,] while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employee[ ] who [is] employed by the other employer.” Redd, 232 F.3d at 938 (first alteration in original) (quoting Browning-Ferris, 691 F.2d at 1123). The Spirides and Browning-Ferris tests are similar and both look to “the degree to which the purported ‘employer’ or ‘joint employer’ exercised control over the worker's performance and terms and conditions of his or her engagement.” Nguedi v. Admin. Off. of the U.S. Courts, No. 23-cv-2965, 2024 WL 4957266, at *4 (D.D.C. Dec. 3, 2024). But the tests are not identical, and, here, neither ATCS nor Angeline so much as mentions the Browning-Ferris test.

Browning-Ferris, moreover, suggests that “the question of ‘joint employer’ status is a factual one,” which “requires an examination into whether an employer who is claimed to be a ‘joint employer’ ‘possessed sufficient control over the work of the employee[ ] to qualify as a “joint employer” with [the actual employer].’ ” Browning-Ferris, 691 F.2d at 1121 (second alteration in original) (quoting Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964)). Yet, ATCS has failed to carry its burden of demonstrating that no reasonable jury could find, under the Browning-Ferris test, that Angeline was jointly employed by Cyberricade and ATCS (and, possibly, even FEMA as well).

Stated more generally, the problem for present purposes is that neither party has addressed whether Section 4712 should be construed to permit a claim for an adverse action of the type at issue here, which is at least arguably the functional equivalent of an adverse employment action. On the question of the governing law, neither party has discussed whether and how the Browning-Ferris test might apply to this dispute or whether an alternative test, tailored to Section 4712’s unique text, might apply. On Angeline's telling, almost any adverse action taken against a government contractor as a reprisal is covered, while on ATCS's telling, Section 4712 applies only to adverse actions taken by the aggrieved party's employer, as determined under the Spirides test. But neither considers any middle ground that might permit recovery for retaliatory conduct taken by a different government contractor—i.e., not a direct employer—that is nonetheless the functional equivalent of an adverse employment action.

As for the facts of the case, neither party has adequately explained the practical realities of the relationship between Angeline and ATCS. Angeline, for example, does not argue that he was an ATCS “employee” under the Spirides test, and he seems to concede in his brief in opposition that he was not employed by ATCS. But he expressly disputes ATCS's assertion that he lacked “a direct contractual relationship with ATCS,” Dkt. 53-1 at 2 (Pl.’s Response to Def.’s SUMF ¶ 7), and he testified at his deposition that he had “an implied” contractual relationship with ATCS, as evidenced by the fact that ATCS “fired” him, Dkt. 51-8 at 2 (Angeline Dep. at 32:2–8). On the critical question of Angeline's “termination,” the parties do not meaningfully address whether ATCS took any specific adverse action against Angeline, such as removing him from the task order schedule, or merely reported to Angeline that FEMA had taken such an action.⁵ On that disputed factual question alone, ATCS's motion for summary judgment would likely fail.

The Court declines to express a final view on any of these legal or factual issues without the benefit of more complete briefing and factual development by the parties. Section 4712 might (or might not) reach beyond an actual “employment” relationship as defined by Spirides or Browning-Ferris and apply to actions taken by other contractors (i.e., prime or subcontractors in the relevant contracting chain other than the aggrieved parties’ actual employers) that are the functional equivalent of adverse employment actions. ATCS might (or might not) have performed such a covered action by removing Angeline from the relevant project. Without definitive answers to these and other questions, the Court cannot conclude that ATCS has carried its burden of demonstrating “that there is no genuine dispute as to any material fact and” that it “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Finally, beyond disputing Angeline's statutory eligibility to bring his claim, ATCS's motion for summary judgment also raises a number of discrete attacks on the availability of some of his requested damages. Dkt. 51-1 at 13–19. The question whether and how Section 4712 applies in the first place, however, is logically antecedent to the scope of relief available under the statute. The kinds of relief available, for example, will likely turn on the types of relationships that the statute regulates. Because the parties have yet to address the issues identified above, and because resolution of those issues may either obviate the need to address damages or may elucidate the scope of relief available under the statute, the Court will defer resolution of ATCS's alternative arguments pending additional briefing on the proper understanding of the statute.

CONCLUSION

For the foregoing reasons, ATCS's motion for summary judgment, Dkt. 51, is hereby DENIED without prejudice.

SO ORDERED.

FOOTNOTES

1.   ATCS claims that Angeline both “owned, and was the president of, Cyberricade.” Dkt. 53-1 at 2 (Def.’s SUMF ¶ 6). Angeline at times denies owning Cyberricade, and states instead that he was “one of four Cyberricade employees,” id. (Pl.’s Response to Def.’s SUMF ¶ 6), but elsewhere describes himself as “an employee, and ultimately the owner of Cyberricade,” Dkt. 53 at 9. The dispute over whether Angeline owned Cyberricade is immaterial for purposes of the pending motion, which instead turns on the nature of the relationship between Angeline and ATCS.

2.   Although Plaintiff asserts in his Response to Defendant's Statement of Undisputed Material Facts that “an implied contract existed between” ATCS and him, Dkt. 53-1 at 2 (Pl.’s Response to Def.’s SUMF ¶ 7), he does not rely on or otherwise develop this assertion in his opposition brief. As explained further below, Angeline maintains in a separate case that he was jointly employed by Cyberricade and FEMA at the relevant time. See Amended Complaint at 2, 7–8, Angeline v. Mayorkas, No. 23-cv-722 (D.D.C. June 06, 2024), Dkt. No. 26; see also Dkt. 51-10 (attaching the amended complaint for No. 23-cv-722).

3.   Angeline's original complaint did not reference 41 U.S.C. § 4712 but instead asserted a claim under a different statute, the Defense Contractor Whistleblower Protection Act (“DCWPA”), 10 U.S.C. § 4701. Dkt. 1 at 7–8 (Compl. ¶¶ 25–33). After Defendants moved to dismiss on the ground that the DCWPA did not cover Angeline's work, because this work was not performed pursuant to a defense contract, Dkt. 6-1 at 7–8, Angeline amended his complaint to instead proceed under Section 4712, Dkt. 9 at 7–8 (Am. Compl. ¶¶ 34–43). Although Defendants argued that the amended complaint should be dismissed under Section 4712’s two-year statute of limitations, 41 U.S.C. § 4712(c)(2), Dkt. 11-1 at 5–7; Dkt.13 at 1, the Court held that the amended complaint could relate back to the (timely) original complaint under Rule 15(c), Dkt. 26 at 32–33.

4.   The Court acknowledges that the standard recitation of the elements of a Section 4712 retaliation claim, which requires that “a plaintiff must show that (1) she was an employee of a government contractor, (2) she disclosed information that she reasonably believed was evidence of a rule violation related to a federal contract to the required person, and (3) her disclosure was a contributing factor in the action taken against her,” does not specify that the defendant must be the government contractor who employed the plaintiff. See, e.g., Omwenga v. United Nations Found., No. 15-cv-786, 2019 WL 4860818, at *12 (D.D.C. 2019) (citation modified). Nonetheless, for the reasons discussed in this opinion, the Court concludes that a requirement of, at a minimum, something like an employment relationship is implied by the statutory text.

5.   Although Section 4712(a)(3)(B) provides that a covered reprisal is “prohibited even if it is undertaken at the request of an executive branch official,” the defendant must still take a covered, adverse action. If the defendant did not itself “discharge[ ], demote[ ], or otherwise discriminate[ ]” against the employee of the contractor, 41 U.S.C. § 4712(a)(1), the defendant has not violated the statute.

RANDOLPH D. MOSS, United States District Judge