Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ROBERT EVAN WEBB,

Plaintiff,

vs. Case No. 5:03cv272-MCR/WCS

COMPATH, INC.

Defendant.

 /

FIFTH REPORT AND RECOMMENDATION

This case has been remanded to the undersigned after a default judgment was

entered against Defendant Compath, Inc., in favor of Plaintiff. Docs. 63, 64. United

States District Judge Casey Rodgers referred this case for a determination of the

amount of damages that should be awarded Plaintiff. Doc. 68. Plaintiff was directed to

come forward with evidence showing the amount and extent of his injuries so that a

proper award of monetary damages could be determined. Docs. 59, 63, 67, 68, and 69. 

Plaintiff has now done so. Docs. 79, 71.

Case 5:03-cv-00272-MCR-WCS Document 72 Filed 05/20/05 Page 1 of 7
Page 2 of 7

 1 Plaintiff's requests to file subsequent amended complaints were denied. Docs. 40,

48, 51, 57, 59, and 63. 

 2 "The Major Fraud Act contains an anti-retaliation provision that is identical to that of

the False Claims Act for all purposes relevant to this case." Moore v. Cal. Inst. of Tech.

Jet Propulsion Lab., 275 F.3d 838, 845 (9th Cir. 2002), citing 18 U.S.C. § 1031(h). 

 3 Plaintiff is not entitled to the "windfall" that would result if he were awarded

damages on both claims for the identical conduct. The purpose in this statute is clear:

"to provide an aggrieved plaintiff with complete compensation for any injuries incurred

as a result of the employer's retaliatory conduct, namely 'all relief necessary to make the

employee whole.' " Wilkins v. St. Louis Housing Authority, 198 F.Supp.2d 1080, 1089-

1090 (E.D.Mo. 2001), aff'd 314 F.3d 927 (8th Cir. 2002), quoting 31 U.S.C. § 3730(h). 

Plaintiff is made whole through damages under one statute.

 4

 The Major Fraud Act permits monetary relief to persons who were discharged,

demoted, or otherwise discriminated against "by an employer because of lawful acts

done by the employee . . . in furtherance of a prosecution under this section (including

investigation for, initiation of, testimony for, or assistance in such prosecution)," so long

as the employee "was not a participant in the unlawful activity that is the subject of said

prosecution . . . ." 18 U.S.C. § 1031(h).

Case No. 5:03cv272-MCR/WCS

In the first Amendment complaint,1 Plaintiff brought claims against Defendant

under the False Claims Act, 31 U.S.C. § 3730(h), and the Major Fraud Act (a criminal

statute), 18 U.S.C. § 1031(h). The relief available under both provisions is identical.2

Thus, the more applicable civil statute (§ 3730(h)) will be utilized in determining the

damages which should be awarded Plaintiff.3 Moreover, the False Claims Act provision

should be utilized because no criminal prosecution has been shown to have been

initiated against Compath. See Boeing North American, Inc. v. Roche, 298 F.3d 1274,

1288, n.16 (Fed. Cir. 2002) (stating "a private party's cause of action under the Major

Fraud Act is predicated on participation in a criminal prosecution that was initiated by

the government against the contractor.").4

 Without that nexus to a criminal prosecution,

Plaintiff is only entitled to damages under the civil statute. Boeing North American, Inc.,

298 F.3d at 1288, n.16. Indeed, at least one court has held that Congress did not

Case 5:03-cv-00272-MCR-WCS Document 72 Filed 05/20/05 Page 2 of 7
Page 3 of 7

 5 Reinstatement is not possible in this case because the Defendant corporation is

defunct. 

Case No. 5:03cv272-MCR/WCS

intend to provide for a private right of action under the Major Fraud Act. Pentagen

Technologies Intern., Ltd. v. CACI Intern. Inc., 1996 WL 435157, at *11-12 (S.D.N.Y.

Aug. 2, 1996), adhered to on Reconsid. by Pentagen Technologies Intern., Ltd. v. CACI

Intern. Inc., 1996 WL 434551 (S.D.N.Y. Aug. 2, 1996).

Under the False Claims Act, a wronged whistleblower is entitled to "... all relief

necessary to make the employee whole." 31 U.S.C. § 3730(h). The statute provides in

relevant part:

Such relief shall include reinstatement with the same seniority status such

employee would have had but for the discrimination, 2 times the amount of

back pay, interest on the back pay, and compensation for any special

damages sustained as a result of the discrimination, including litigation

costs and reasonable attorneys' fees. 

31 U.S.C. § 3730(h).5

 Plaintiff has submitted his claims for relief and his justification for

those claims. Docs. 70 and 71.

Plaintiff's employment with Compath, Inc. began on October 6, 2001, and ended

on December 6, 2001. Doc. 21, p. 20; doc. 70; doc. 71. Plaintiff's salary while at

Compath was $75,000.00 per year with an additional stipend of $413.00 per week for

meals and other expenses. Doc. 71. Plaintiff accepted another job on January 6, 2002,

with Pegasus Satellite making $65,000.00, plus a ten percent annual bonus. Id.

Therefore, Plaintiff was unemployed for a total of four weeks, or one month. Plaintiff

also claims injury to his personal credit when he was left with an American Express bill

for $1,297.00. Docs. 70, 71. Plaintiff seeks the following as relief: (1) $5,768.00 in lost

wages for the month he was unemployed; (2) $7,000.00 difference between salaries

Case 5:03-cv-00272-MCR-WCS Document 72 Filed 05/20/05 Page 3 of 7
Page 4 of 7

 6 Plaintiff does not explain why he has chosen 88 weeks here. However, since the

claim for backpay for two years is reasonable, the court need not question this aspect of

the claim.

 7

 Compath did not go out of business until after this two year period ended so, in the

absence of evidence from Compath, it would be reasonable to conclude that Plaintiff

would have been employed by Compath for this two years had he not been terminated.

Case No. 5:03cv272-MCR/WCS

(based on a two year period); (3) $36,344.00 in lost fringe benefits (calculated at

$413.00 per week for 88 weeks6); (4) $250,000.00 for damages to Plaintiff's personal

credit report. Doc. 70. Plaintiff seeks a total amount of $299,112 which he argues

should be doubled pursuant to 18 U.S.C. § 1031(h). Docs. 21, 70.

The difference between Plaintiff's salary at Defendant Compath and his new

employer (including the $6,500 annual bonus) is $3,500.00 per year for a total of

$7,000.00 for a two year period, just as Plaintiff requests.7 Pursuant to 31 U.S.C. §

3730(h), Plaintiff is entitled to two times the amount of back pay for a total of

$14,000.00. 

Plaintiff also seeks $5,768.00 in lost wages for the one month he was employed. 

This is compensable. That amount should also be doubled for a total of $11,536.00.

Plaintiff has demonstrated that he was to receive $413.00 each week in

employee "fringe benefits" for meals and other expenses. Doc. 70. Such benefits are

appropriately included in a "back pay" award in Title VII cases and should be included

here. See Crabtree v. Baptist Hosp. of Gadsden, Inc., 749 F.2d 1501, 1502 (11th Cir.

1985), cited in Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1348 (11th Cir. 2000). 

"Because the object of the backpay provisions of Title VII is to make employees whole

for losses suffered on account of unlawful discrimination," fringe benefits should be

included in backpay awards under False Claims Act cases where the purpose is the

Case 5:03-cv-00272-MCR-WCS Document 72 Filed 05/20/05 Page 4 of 7
Page 5 of 7

 8 This figure was reached by assuming that if Plaintiff's employment had not been

terminated, and he arrived in Korea on October 6, 2001, then Plaintiff would have

returned home three months later on January 6, 2002. Plaintiff would have then

returned to Korea on April 6, 2002, for three months, and so forth. Those calculations

provide two trips to Korea per year, each trip lasting 13 weeks in length.

 9

 This figure has not been reduced by the weeks Plaintiff worked in Korea because

Plaintiff alleged in the complaint that he "never received any of his outstanding per diem

payments." Doc. 21, p. 16.

Case No. 5:03cv272-MCR/WCS

same – "to make the employee whole." Crabtree, 749 F.2d at 1502, citing Albemarle

Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975);

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 252 (5th Cir. 1974); 31 U.S.C. §

3730(h). 

Review of Plaintiff's first amended complaint, however, reveals that Plaintiff was

to receive a "payment of 413.00 per week to cover meals and incidentals." Doc. 21, p.

6. Payment of this sort usually occurs when an employee is required to travel away

from home, but typically is not be needed for work done at home. Plaintiff has not

shown that this payment was intended to cover meals and incidentals other than for

travel away from home. Plaintiff alleged in the first amended complaint that a "rotation"

to Korea would last "approximately ninety days. Doc. 21, p. 6. Thus, Plaintiff's request

for $36,344.00 representing $413.00 per week for 88 weeks should be reduced by the

applicable period of time he would have been at "home" and not in Korea. The

calculation should also be determined based on Plaintiff's statement in the amended

complaint that a rotation lasts approximately three months.8

 Over the course of two

years employment, that figure is 52 weeks which amounts to $21,476.00.9

 Doubling

that figure brings the total for lost fringe benefits to $42,952.00. 

Case 5:03-cv-00272-MCR-WCS Document 72 Filed 05/20/05 Page 5 of 7
Page 6 of 7

Case No. 5:03cv272-MCR/WCS

Plaintiff additionally seeks compensation for damage to Plaintiff's personal credit

in the amount of $250,000.00. Doc. 70. The statute allows "compensation for any

special damages sustained as a result of the discrimination," and Plaintiff is entitled to

an award. However, Plaintiff has submitted a copy of the credit report showing an

account balance of $1,297.00 overdue more than 120 days on an American Express bill

which was referenced in the first amended complaint. Doc. 21, pp. 6, 16-18; doc. 71. 

From allegations of the complaint it appears that most of the charges on this credit card

were business expenses of Defendant for which Plaintiff was not reimbursed despite his

repeated requests. Plaintiff is at least entitled to reimbursement for the entire amount. 

However, there has been no showing that this adverse credit item caused Plaintiff any

real harm, that is, that he lost a business opportunity for lack of good credit. Thus, the

total amount of special damages should be $1,297.00. This is not backpay, and is not

subject to doubling. Neal v. Honeywell, Inc., 191 F.3d 827, 832 (7th Cir. 1999).

Finally, Plaintiff is entitled to "litigation costs" in bringing this suit as part of his

"special damages." 31 U.S.C. § 3730(h); Hammond v. Northland Counseling Cntr., Inc.,

218 F.3d 886, 894 (8th Cir. 2000). Plaintiff requested such in the amended complaint,

doc. 21, p. 24, although he did not present a factual basis for these costs in his

statement, doc. 71, or response to the prior court order, doc. 70. At any rate, judicial

notice is taken that Plaintiff submitted the $150.00 filing fee for this case when he filed

the initial complaint. Doc. 1. 

Case 5:03-cv-00272-MCR-WCS Document 72 Filed 05/20/05 Page 6 of 7
Page 7 of 7

Case No. 5:03cv272-MCR/WCS

The total amount to be awarded Plaintiff, thus, consists of the following: back

pay of $14,000.00; lost wages of $11,536.00; lost fringe benefits of $42,952.00; special

damages of $1,297.00; and litigation costs of $150.00. Plaintiff should be awarded

$69,935.00 in total damages pursuant to 31 U.S.C. § 3730(h). 

In light of the foregoing, it is respectfully RECOMMENDED that the Clerk be

directed to enter final judgment in favor of Plaintiff and against Defendant in the amount

of $69,935.00.

IN CHAMBERS at Tallahassee, Florida, on May 20, 2005.

s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

Case 5:03-cv-00272-MCR-WCS Document 72 Filed 05/20/05 Page 7 of 7