from the United States District Court for the District of
Colorado (D.C. No. 1:16-CV-01015-MSK-CBS)
A. McGuire, III, Robert McGuire Law Firm, Lone Tree, Colorado
M. Feldkamp, Kelly & Walker, LLC, Denver, Colorado for
HARTZ, MURPHY, and McHUGH, Circuit Judges.
Armstrong was employed by The Arcanum Group, Inc., which
serves as a placement agency to staff federal-government
positions. She was placed with the Real Estate Leasing
Services Department of the Bureau of Land Management (BLM).
After she complained that BLM employees were falsifying
lease-related records, the BLM demanded that Arcanum remove
her from the placement. Her Arcanum supervisor, Steven Cota,
could not find an alternative placement for Armstrong and
therefore terminated her employment. Armstrong sued Arcanum
in the United States District Court for the District of
Colorado, claiming that Arcanum retaliated against her for
her falsification complaints, in violation of the
antiretaliation provisions of the False Claims Act (FCA) and
the National Defense Authorization Act (NDAA). The district
court granted Arcanum summary judgment, and Armstrong
appeals. We affirm because Armstrong did not produce
sufficient evidence that Cota had knowledge of her complaints
before he terminated her.
2014, Arcanum contracted to provide the BLM with workers for
three positions. Arcanum hired Armstrong to be a BLM lease
administrator. She began work in July 2014. One of
Armstrong's duties was to prepare a quarterly report that
the BLM would submit to the Department of the Interior. Part
of the task was to review leases to check the accuracy of a
spreadsheet of BLM leases called the Master Report. The BLM
leased some space from the General Services Administration
(GSA) and some from private lessors. Armstrong believed she
found two systematic errors.
error concerned the distinction between usable
square feet (USF) and rentable square feet (RSF).
RSF includes the tenant's share of common areas in the
measure of leased space, while USF excludes such areas.
Before 2000 many BLM leases referred to USF. But all later
leases used RSF; and the GSA charged the BLM rent based on
RSF amounts. The BLM did not remeasure leased spaces to
convert the older USF leases to the RSF measure. Rather, it
approximated the RSF value by multiplying the USF value by
1.15 (the "blanket factor") for use in various
documents, including the Master Report. Armstrong believed
this was improper under governing GSA policies.
Armstrong believed the Master Report incorrectly omitted
measures of no-cost space. When private lessors
allowed the BLM, as part of a lease, to use certain space for
free (the lease reflected the space, but the BLM did not pay
more for it), the BLM did not include that space in its
Master Report. (As best we can tell, lessors treat leased
spaced as no-cost space to keep within square-footage limits
in bid specifications.) Leases with no-cost space thus had
area measurements differing from those in the Master Report.
Armstrong believed GSA policies made this improper as well.
told Barbra Burns-Fink-an Arcanum employee working at the BLM
as a realty specialist-that lease data were being falsified.
Burns-Fink suggested that Armstrong raise her concerns with
Terry Baker, the team lead for the Real Estate Leasing
Services Department, but Armstrong did not do so at that
time. At a team meeting a week later, however, Armstrong
asked to speak to Baker privately. Baker responded that she
had heard of Armstrong's accusations and insisted that no
fraud was occurring. After the meeting another BLM employee
met with Armstrong and showed her a BLM policy provision
authorizing the use of the blanket-factor conversion, though
Armstrong still did not believe that BLM staff had the
authority to overrule other operative rules.
days later, on October 3, 2014, Baker had two meetings with
Armstrong during which they discussed Armstrong's
falsification claims and Armstrong expressed
"confus[ion] as to what [her] actual job duties
were." Aplt. App., Vol. 2 at 271 (Armstrong deposition).
Later that day Baker emailed Tina Hamalak, who was the BLM
contracting officer for the Arcanum contract, to complain
about Armstrong. The email requested that Armstrong be
removed from her BLM position for a variety of reasons,
including Armstrong's falsification accusation, her
inadequate Excel skills, her failure to ask Baker for
guidance when she was confused about her role, and her
inability to adjust to the BLM's "unstructured
environment." Id. at 346.
called Cota's assistant Chelsea Peterson to tell her to
remove Armstrong from the BLM position, and Peterson relayed
the message to Cota. Cota called Hamalak to ask about the
reasons for removal, but Hamalak provided no details and her
confirming email said only that Armstrong was "not
working out." Id. at 348. Before
Armstrong's termination, Hamalak did not send Cota or
anyone else at Arcanum a copy of Baker's email
complaining about Armstrong. Cota checked whether Arcanum had
any other open positions suitable for Armstrong. Finding
none, he decided, without consulting anyone else, to
terminate Armstrong. He held an exit interview with Armstrong
later that afternoon. After he informed her that she was
being terminated, she told him-for the first time-of her
falsification complaints. He apparently did not indicate that
he had previously heard of the complaints; and he testified
at his deposition that he had not heard of her complaints
until she told him.
district-court complaint alleged that Arcanum retaliated
against her in violation of the FCA, 31 U.S.C. §
3730(h), and the NDAA, 41 U.S.C. § 4712(a), and
wrongfully discharged her in violation of Colorado common
law. The district court granted Arcanum summary judgment on
the FCA and NDAA claims, and then declined to exercise
supplemental jurisdiction over her state-law
The Governing Statutes' Knowledge Requirement
is the federal government's "primary tool for
redressing fraud claims against the Government." Claire
M. Sylvia, The False Claims Act: Fraud Against the Government
§ 1:1, at 3 (3d ed. 2016) (hereafter Sylvia). It
"supplements the Government's enforcement efforts by
authorizing private citizens with information about fraud to
initiate a civil action [a 'qui tam' action] on the
Government's behalf." Id. This
"provides the Government a powerful means of combating
fraud through an action for multiple damages and
penalties." Id. To protect whistleblowers, the
FCA has an antiretaliation provision that imposes liability
on an employer if an employee is "discriminated against
in the terms and conditions of employment because of
lawful acts done by the employee . . . in furtherance of . .