PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1406

BRIAN K. SMITH,

Plaintiff – Appellant,

and

UNITED STATES OF AMERICA ex rel. BRIAN K. SMITH,

Plaintiff,

v.

CLARK/SMOOT/RUSSELL, a Joint Venture; CLARK CONSTRUCTION 

GROUP, LLC; SMOOT CONSTRUCTION COMPANY OF WASHINGTON, D.C.; 

H.J. RUSSELL AND COMPANY, INC., a/k/a H.J. Russell and 

Company; SHIRLEY CONTRACTING COMPANY, LLC; SHIRLEY 

CONTRACTING COMPANY, LLC, d/b/a Metro Earthworks; SHELTON 

FEDERAL GROUP, LLC; SHELTON/METRO, a Joint Venture; HSU 

DEVELOPMENT, INC.; HSU DEVELOPMENT, INC., d/b/a HSU 

Builders,

Defendants – Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. 

(8:13−cv−00009−RWT)

Argued: March 24, 2015 Decided: August 10, 2015

Before WYNN, FLOYD, and HARRIS, Circuit Judges.
2

Affirmed in part, reversed in part, vacated in part, and 

remanded for further proceedings by published opinion. Judge 

Wynn wrote the opinion, in which Judge Floyd and Judge Harris 

concurred.

ARGUED: Jerry Alfonso Miles, II, DEALE SERVICES, LLC, Rockville, 

Maryland, for Appellant. Randall A. Brater, ARENT FOX LLP, 

Washington, D.C., for Appellees. ON BRIEF: William W. Goodrich, 

Patrick R. Quigley, Karen S. Vladeck, ARENT FOX LLP, Washington, 

D.C., for Appellees.
3

WYNN, Circuit Judge

To bring an action under the False Claims Act, a relator

must, among other things, file his complaint under seal and 

maintain that seal for a period of sixty days. Although the 

False Claims Act complaint in this matter was properly filed 

under seal, the relator’s attorney revealed to the relator’s 

employer the existence of the complaint well before the end of 

the sixty day waiting period. Finding a violation of the seal 

requirement, the district court dismissed the relator’s action

with prejudice. 

On appeal, we conclude that the dismissal of Smith’s case 

with prejudice was inappropriate under the False Claims Act 

because the seal violation did not incurably frustrate the 

seal’s statutory purpose. Furthermore, neither of the district 

court’s alternative reasons for dismissing Smith’s claims—the 

doctrine of primary jurisdiction and failure to comply with

Civil Procedure Rule 9(b)—warrant dismissal with prejudice. We 

also conclude that the district court erred when it dismissed 

Smith’s retaliation claim. Accordingly, we reverse the

dismissals and remand for further proceedings.

 

I.

A.
4

Relator Brian K. Smith worked on several federal 

construction projects in 2012 and 2013: the City Market on O 

Street project (“City Market”), the Smithsonian Institution’s 

National Museum of African-American History and Culture 

(“African-American Museum”), and the Smithsonian National Zoo 

project (“National Zoo”). Due to their size, these projects 

were subject to the Davis-Bacon Act, 40 U.SC. §§ 3141–3144, 

3146, 3147. 

The Davis-Bacon Act requires contractors and subcontractors 

performing federally funded or assisted contracts of more than 

$2,000 to set forth stipulations in covered contracts agreeing 

to pay their workers no less than the locally prevailing wages.1 

Id. § 3142. The Secretary of Labor sets the prevailing wages, 

which fall under four wage schedules (Building, Residential, 

Highway, and Heavy) and several different labor categories 

(painter, plumber, laborer, bricklayer, etc.). Id. When a 

dispute arises regarding the proper classification of a 

particular type of work, the Department of Labor makes a 

determination of the prevailing wage. 29 C.F.R. § 5.11(a). 

In this matter, the complaint named several defendants. 

However, only Defendants Shirley Contracting Co., LLC, which 

 1 For purposes of the Davis-Bacon Act (and this opinion), 

the term “wages” includes the basic hourly rates of pay, 

overtime, fringe benefits, and other forms of compensation. 
5

does business as Metro Earthworks (“Shirley/Metro”), and Clark 

Construction Group, LLC (“Clark”) (collectively, “Defendants”)

are properly before us because Smith did not raise the dismissal 

of the other defendants on appeal. See, e.g., United States v.

Al–Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004).

Defendants are construction companies that performed 

construction work on one or more of the projects. 

Shirley/Metro, a subsidiary of Clark, employed Smith. Smith 

believed that Defendants failed to pay him the required DavisBacon Act wages for the work he performed on the City Market, 

African-American Museum, and National Zoo projects. 

B.

On the City Market project, Smith was employed from April 

through late-August 2012 as a bobcat operator, flagman, 

jackhammer operator, roller, and unskilled general laborer. He

alleges that his City Market wages should have been paid under 

the Heavy wage schedule but Defendants misclassified his work 

under a lower-paying schedule. He also alleges Defendants’ 

outright failure to pay certain fringe benefits due, regardless 

of the applicable schedule.

On the African-American Museum project, Smith worked from 

August 27 until November 13, 2012, as a flagman and a general 

laborer. The contract for the African-American Museum project

included two different Davis-Bacon Act wage schedules, Building 
6

and Heavy, with the latter generally paying more for the same 

labor category. Smith received appropriate payment under the 

Building schedule, but alleges that he should have been paid 

under the higher-paying Heavy schedule for his work as a 

flagman.

In September 2012, Smith lodged an oral complaint with the 

Department of Labor’s Wage and Hour Division, alleging that on 

both projects his pay was less than the Davis-Bacon Act 

required. The Department of Labor initiated an investigation, 

and Smith alleges that the investigator concluded that he was 

not being paid appropriate wages under the Davis-Bacon Act. 

On November 14, 2012, Defendants temporarily reassigned 

Smith and his team members to a residential contract that was 

not subject to the Davis-Bacon Act. This transfer resulted in 

decreased wages, increased commuting costs, and a substantially 

longer commute. After working at the residential site for two 

weeks, Smith began working on the National Zoo project, where he 

worked as a general laborer, flagman, and shoveler. Between 

December 24 and December 31, 2012, Smith was scheduled to work 

only eight hours, which he alleges was a reduction.

C.

On January 2, 2013, Smith filed a False Claims Act

complaint, alleging, inter alia, that (1) Defendants’ 

certification of Davis-Bacon Act compliance on payrolls they 
7

submitted for payment constituted false claims because he was 

not paid appropriate wages on the City Market, African-American 

Museum, and National Zoo projects; and (2) the November 2012 

reassignment and the alleged December 2012 hours reduction were 

retaliatory. 

As required by Section 3730(b)(2), Smith’s attorney filed 

the complaint under seal in camera. The next day, however, 

Smith’s attorney called defendant Clark’s in-house counsel to 

inform him that he had recently filed a False Claims Act case in 

which Clark was a defendant. During this phone call, the 

attorney requested that Clark cease retaliating against Smith.

[J.A. 247-48] When Clark’s in-house counsel asked for a copy of 

the complaint, Smith’s attorney told him that he could not 

provide a copy because it had to remain under seal for sixty 

days. The next day, Smith’s attorney contacted a Shirley/Metro 

human resources employee to request Smith’s employment records

and stated that he had recently filed a False Claims Act 

complaint in which Shirley/Metro was a defendant.

On January 23, 2013, Smith’s attorney served the Government 

with a copy of the complaint. And on February 7, 2013, an 

attorney representing Shirley/Metro contacted the Government 

regarding the communications his client had received from 

Smith’s attorney. Recognizing that there was “little point in 

maintaining the fiction of a seal when the defendants are aware 
8

of the filing,” the Government moved for a partial lifting of 

the seal. J.A. 169. In its memorandum in support of the 

motion, the Government noted that a partial lifting “may allow 

the government to better evaluate the relator’s claims and speed 

the determination about whether the government will intervene in 

this case.” J.A. 169. Smith’s attorney consented to the 

Government’s motion, and the district court granted it on 

February 20, 2013. 

After requesting and receiving an extension on the deadline 

by which it had to decide whether to intervene, the Government 

ultimately elected not to intervene in the case. Defendants 

then jointly filed a motion to dismiss pursuant to Civil 

Procedure Rules 12(b)(1) and 12(b)(6). After hearing arguments 

regarding the motion to dismiss, the district court dismissed 

all ten counts contained in the complaint with prejudice. Smith 

appeals only the dismissals of Counts I (Knowingly Presenting 

False Claims to the Government), II (Knowingly Making False 

Statements or Records to the Government), and IV (violation of 

False Claims Act Anti-Retaliation Provision). 

II.

Smith first argues that the district court erred when it 

dismissed Counts I and II with prejudice. The district court 

grounded its dismissal of those counts primarily upon the “very 
9

serious matter” of the “violation of the statutory seal.” J.A. 

488. Smith’s attorney undoubtedly violated the False Claims 

Act’s seal requirement by publicly discussing the complaint. 

Am. Civil Liberties Union v. Holder, 673 F.3d 245, 254 (4th Cir. 

2011) (recognizing that “the seal provisions [prevent] the 

relator . . . from publicly discussing the filing of the qui tam

complaint”); U.S. ex rel. Lujan v. Hughes Aircraft Co., 67 F.3d 

242, 244 (9th Cir. 1995) (holding that plaintiff “clearly 

violated the seal provision . . . by making statements to [a 

newspaper about] the existence and nature of her qui tam suit”).

The real dispute here centers on whether the district court 

properly dismissed Smith’s case in response to the violation.

The procedural requirements of the False Claims Act, 

including its seal provision, “are not jurisdictional, and 

violation of those requirements does not per se require 

dismissal.” Lujan, 67 F.3d at 245. Further, “[n]o provision of 

the False Claims Act explicitly authorizes dismissal as a 

sanction for disclosures in violation of the seal requirement.” 

Id. Thus, the False Claims Act, on its face, neither mandates 

nor expressly supports dismissal with prejudice.

But we recognize that every other circuit to consider this 

issue has read such authority into the False Claims Act. See, 

e.g., U.S. ex rel. Summers v. LHC Grp., Inc., 623 F.3d 287 (6th 

Cir. 2010) (holding that violation of the seal requirements bars 
10

qui tam plaintiffs from qui tam status); Lujan, 67 F.3d 242 (9th 

Cir. 1995) (creating a ‘no harm, no foul’ balancing test for 

determining whether seal violation warrants dismissal); United 

States ex rel. Pilon v. Martin Marietta Corp., 60 F.3d 995, 998

(2d Cir. 1995) (adopting a test that analyzes whether seal 

violations “incurably frustrated” the provision’s statutory 

purpose). Because we find its rationale to be persuasive, we 

join the Second Circuit and hold that a violation that results 

in an incurable and egregious frustration of the “statutory 

objectives underlying the filing and service requirements,” 

Pilon, 60 F.3d at 998, merits dismissal with prejudice under the 

False Claims Act.

The False Claims Act’s seal provision serves several 

purposes: “(1) to permit the United States to determine whether 

it already was investigating the fraud allegations (either 

criminally or civilly); (2) to permit the United States to 

investigate the allegations to decide whether to intervene; (3) 

to prevent an alleged fraudster from being tipped off about an 

investigation; and, (4) to protect the reputation of a defendant 

in that the defendant is named in a fraud action brought in the 

name of the United States, but the United States has not yet 
11

decided whether to intervene.” Am. Civil Liberties Union, 673 

F.3d at 250.2 

Here, the seal violation did not incurably frustrate these 

purposes. Although Smith’s attorney’s breach of the seal 

requirement tipped off Defendants, the Government was still able 

to investigate the alleged fraud and determine whether it was 

already investigating the same issue. The Government even 

suggested that the fact that Defendants knew about the False 

Claims Act claim would allow for early responses to the 

Government’s questions, allowing it to “better evaluate the 

relator’s claims and speed the determination about whether [to 

intervene].” See Appellant’s Br. at 22. Additionally, because 

the seal violation involved disclosure between the parties 

rather than the public, Defendants’ reputations suffered no 

harm. Accordingly, the False Claims Act does not support the 

district court’s dismissal of Smith’s claims with prejudice.3

 2 But see Lujan, 67 F.3d at 247 (concluding that “protecting 

the rights of defendants is not an appropriate consideration 

when evaluating the appropriate sanction for a violation of the 

seal provision”).

3 We in no way minimize the significance of the violation in 

this case: By directly informing the Defendants of Smith’s qui 

tam claim, Smith’s attorney risked serious interference with the 

Government’s opportunity to investigate the alleged fraud. That 

risk appears not to have materialized in this case. But such 

disclosures have the potential to frustrate the purposes of the 

seal provision in a way that merits dismissal with prejudice, 

(Continued)
12

III.

The district court offered two additional rationales for 

dismissing the case: (1) the doctrine of primary jurisdiction, 

and (2) Rule 9(b) pleadings deficiencies. We address each in 

turn.

A.

The district court stated that if its other reasons for 

dismissal were inadequate, it “would still dismiss or at least 

stay [the case] pending the outcome of any inquiry by the 

Department of Labor” regarding “the appropriate wage scale” 

under the Davis-Bacon Act. J.A. 489. It stated that it would 

take this step as “a simple matter of prudence.” J.A. 489. 

This particular prudential judicial maneuver is known as the 

doctrine of primary jurisdiction.

The doctrine of primary jurisdiction “is designed to 

coordinate administrative and judicial decision-making by taking 

advantage of agency expertise and referring issues of fact not 

within the conventional experience of judges or cases which 

require the exercise of administrative discretion.” Envtl. 

Tech. Council v. Sierra Club, 98 F.3d 774, 789 (4th Cir. 1996). 

The doctrine of primary jurisdiction “requires the court to 

 

and qui tam claimants are well advised to comply strictly with 

the FCA’s seal requirements.
13

enable a ‘referral’ to the agency, staying further proceedings 

so as to give the parties reasonable opportunity to seek an 

administrative ruling.” Reiter v. Cooper, 507 U.S. 258, 268 

(1993). Notably, such a referral of an issue to an

administrative agency “does not deprive the court of 

jurisdiction; it has discretion either to retain jurisdiction 

or, if the parties would not be unfairly disadvantaged, to 

dismiss the case without prejudice.” Id. at 268-69. We review 

a district court’s primary jurisdiction determination for an 

abuse of discretion. Envtl. Tech. Council, 98 F.3d at 789.

Here, Smith alleges two types of fraud under the False 

Claims Act. First, he alleges that he was misclassified (that 

is, paid under the wrong Davis-Bacon Act wage schedule) on the 

African-American Museum project. Smith’s allegations involving 

misclassification implicate primary jurisdiction: Pursuant to 

Davis-Bacon Act regulations, the Administrator of the Wage and 

Hour Division of the Department of Labor is responsible for 

resolving “disputes of fact or law concerning payment of 

prevailing wage rates, overtime pay, or proper classifications.” 

29 C.F.R. § 5.11(a).4 

 4 See also U.S. ex rel. Windsor v. DynCorp, Inc., 895 F. 

Supp. 844, 851 (E.D. Va. 1995) (“[I]t is impossible to determine 

whether DynCorp submitted a false claim to the government 

without first determining whether DynCorp actually misclassified 

an employee [under the Davis-Bacon Act] in a given instance.”).
14

Second, Smith alleges that he was paid a wage that did not 

correlate with any Davis-Bacon Act wage schedule on the City 

Market and National Zoo projects. These allegations do not seem 

to implicate primary jurisdiction. To assess the merit of these 

claims, the district court need only compare Smith’s pay stub 

with the applicable Davis-Bacon wage schedules to determine

whether the pay matches up. See, e.g., U.S. ex rel. Wall v. 

Circle C Const., L.L.C., 697 F.3d 345, 354 (6th Cir. 2012) 

(holding that primary jurisdiction referral was unnecessary 

because “the core dispute here involve[d] misrepresentation, not 

misclassification”).

Although it may be proper for a district court to invoke 

the doctrine of primary jurisdiction in the face of this mixed 

picture and thereby stay or dismiss the matter without prejudice 

pending an agency determination, the district court dismissed 

Smith’s entire complaint with prejudice. Relying on the 

doctrine of primary jurisdiction to dismiss Smith’s suit with 

prejudice would constitute an abuse of discretion and thus also 

does not support the district court’s dismissal order. 

B.

The district court’s third and final rationale for 

dismissing Counts I and II is inadequate pleading under Civil 

Procedure Rule 9(b). Yet this rationale, like the others, 

provides no basis for dismissing Smith’s fraud claims. 
15

Rule 9(b) of the Federal Rules of Civil Procedure provides 

that “[i]n all averments of fraud or mistake, the circumstances 

constituting fraud or mistake shall be stated with 

particularity. Malice, intent, knowledge, and other condition 

of mind of a person may be averred generally.” Fed. R. Civ. P. 

9(b). We treat a lack of compliance with Rule 9(b)’s pleading 

requirements as a failure to state a claim under Rule 12(b)(6), 

which we review de novo. Harrison v. Westinghouse Savannah 

River Co., 176 F.3d 776, 783 n.5 (4th Cir. 1999). 

“Rule 9(b) requires that ‘[a False Claims Act] plaintiff 

must, at a minimum, describe the time, place, and contents of 

the false representations, as well as the identity of the person 

making the misrepresentation and what he obtained thereby.’” 

United States v. Triple Canopy, Inc., 775 F.3d 628, 634 (4th 

Cir. 2015) (quoting United States ex rel. Wilson v. Kellogg 

Brown & Root, Inc., 525 F.3d 370, 379 (4th Cir. 2008)). And 

generally, “[a] court should hesitate to dismiss a complaint 

under Rule 9(b) if the court is satisfied (1) that the defendant 

has been made aware of the particular circumstances for which 

she will have to prepare a defense at trial, and (2) that 

plaintiff has substantial prediscovery evidence of those facts.” 

Harrison, 176 F.3d at 784. 

Our review of Smith’s complaint leads us to conclude that 

Smith did indeed allege the “who, what, when, where and how of 
16

the alleged fraud.” J.A. 491. In his long and detailed 

complaint, Smith alleged, for example, that “Defendants, by 

virtue of Davis-Bacon Act noncompliant compensation and billing 

practices, have been defrauding the United States Government, 

District of Columbia, and other state and local governments and 

instrumentalities in a variety of ways, including, but not 

limited to, knowingly providing false information via certified 

payrolls in exchange for payment . . . .” J.A. 17. Smith’s 

complaint detailed which Defendants were awarded and working on 

which government contracts, including details about where the 

construction work that was the subject of the contracts was to 

occur, the award date for the contracts, and even some contract 

numbers. See J.A. 21-24. 

Smith’s complaint specified which government entities 

funded pertinent contracts on which he worked and alleged that 

all were funded in part by the United States. Smith’s complaint 

stated that Defendants “certif[ied] compliance with the Davis 

Bacon Act” and “have received payment in relation to the 

reliance of cognizant government agencies . . . upon falsely 

certified payrolls and other Davis Bacon Act certifications made 

in relation to [] performance” of the identified contracts. 

J.A. 25. Smith’s complaint included charts detailing DavisBacon pay and fringe benefit rates and what Defendants actually 

and deliberately wrongly paid him under the identified 
17

contracts. Smith alleged that, “[a]s a result of these 

misrepresentations, the federal government has been damaged by 

paying a higher amount for wages that were not paid to Brian 

Smith and potentially other affected employees.” J.A. 34. And 

Smith’s complaint identified several other employees whom 

Defendants allegedly misclassified and underpaid under the 

Davis-Bacon Act. See J.A. 42-45.

In sum, Smith’s complaint identified who committed fraud—

Defendants; alleged that the Davis-Bacon Act applied to the 

pertinent contracts; contended that Defendants paid Smith and 

others less than the Davis-Bacon Act required, specifically 

identifying Smith’s pay and comparing it to the applicable 

Davis-Bacon Act pay scales; and alleged that Defendants falsely 

certified their compliance with the Davis-Bacon Act to the 

Government, which caused the Government to make improperly 

inflated payments to Defendants. These allegations pass Rule

9(b) muster. See, e.g., Harrison, 352 F.3d at 921. That rule 

therefore could not properly serve as a basis to dismiss Smith’s 

claims with prejudice.5

 5 Smith’s attorney orally moved to amend the complaint to 

address the district court’s Rule 9(b) concerns. The district 

court ostensibly denied this motion. Because Smith had already 

satisfied Rule 9(b), we affirm the district court’s denial of 

this motion as moot.
18

Having reviewed all of the district court’s stated 

rationales for dismissing Smith’s complaint with prejudice, we 

find ourselves unable to affirm any. We therefore reverse the 

district court’s dismissal of Counts I and II.

IV.

Count IV of Smith’s complaint sought relief under the False 

Claims Act’s anti-retaliation provision, 31 U.S.C. § 3730(h). 

The district court dismissed Count IV with prejudice, holding 

that Smith failed to successfully allege retaliation.

The False Claims Act’s whistleblower provision, which 

Congress broadened in 2009, prohibits retaliation “because of 

lawful acts done . . . in furtherance of an action under this 

section or other efforts to stop 1 or more violations of this 

subchapter.” 31 U.S.C. § 3730(h). To plead retaliation under 

Section 3730(h), a plaintiff must allege that (1) he engaged in

protected activity, (2) the employer knew about the activity, 

and (3) the employer took adverse action against him as a 

result. Glynn v. EDO Corp., 710 F.3d 209, 214 (4th Cir. 2013). 

These allegations need pass only Civil Procedure Rule 8(a)’s 

relatively low notice-pleadings muster—in contrast to Rule 

9(b)’s specificity requirements discussed above. See, e.g.,

Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th 
19

Cir. 2008); United States ex rel. Williams v. Martin-Baker 

Aircraft Co., 389 F.3d 1251, 1259-60 (D.C. Cir. 2004). 

Here, the district court assumed that Smith satisfied the 

first prong—protected activity—but concluded that he failed to 

demonstrate that Defendants knew of his conduct or took adverse 

action against him because of those acts—the second and third 

prongs. In its ruling from the bench, the district court noted 

no “factual basis for alleging that the defendants were aware 

that [Smith] was pursuing a claim of a fraudulent false claim

with the United States.” J.A. 493 (emphasis added). 

Accordingly, it held that “there cannot be any sufficient 

pleading of the employers taking action as a result of acts that 

it never had knowledge of and there’s been no allegation that 

they did have knowledge of them.” J.A. 493. 

It strains credulity to believe that Congress would require 

a defendant to have knowledge of a sealed action for a 

retaliation claim to survive the pleading stage. What’s more, 

the statute in its current form plainly does not limit protected 

activity to “lawful acts done . . . in furtherance of an action” 

under the False Claims Act, but rather expressly includes “other 

efforts to stop 1 or more violations” of the False Claims Act. 

31 U.S.C. § 3730(h). While we have not yet spelled out the 

contours of “other efforts to stop” a False Claims Act

violation, it plainly encompasses more than just activities 
20

undertaken in furtherance of a False Claims Act lawsuit. See

id.; see also U.S. ex rel. Grenadyor v. Ukrainian Vill. 

Pharmacy, Inc., 772 F.3d 1102, 1108 (7th Cir. 2014) (Posner, J.) 

(indicating that amended statute covers more than prior 

version). Thus, even assuming for the sake of argument that 

Smith provided no “factual basis for alleging that the 

defendants were aware that [Smith] was pursuing a claim of a 

fraudulent false claim,” J.A. 493 (emphasis added), that would

not necessarily mean he has pled no plausible factual 

underpinning for a retaliation claim.6 Further, Smith pled that 

Defendants knew that he had pursued an investigation with the 

Department of Labor, and the facts salient to that investigation 

make up the bulk of the facts supporting Smith’s False Claims 

Act qui tam claims. This suffices to fulfill the knowledge 

prong.

Turning to the third prong required to make out a 

retaliation claim, the district court made only the conclusory 

statement that the defendants did not “[take] action against 

 6 Neither the district court nor the parties appear to have 

recognized that 31 U.S.C. § 3730(h) was amended, much less the 

amendment’s potential import. Regardless, we must apply the 

correct law, here the amended version of the statute. See Kamen 

v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When an 

issue or claim is properly before the court, the court is not 

limited to the particular legal theories advanced by the 

parties, but rather retains the independent power to identify 

and apply the proper construction of governing law.”).
21

[Smith] as a result of those acts.” J.A. 493. Upon reviewing 

Smith’s complaint, however, we cannot reach the same conclusion. 

An employer undertakes a materially adverse action opening 

it up to retaliation liability if it does something that “well 

might have ‘dissuaded a reasonable worker from making or 

supporting a charge of discrimination.’” Burlington Northern & 

Santa Fe Ry. v. White, 548 U.S. 53, 67–68 (2006) (quoting Rochon 

v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). Here, Smith 

alleged that after lodging a complaint with the Department of 

Labor that resulted in an investigation, he was transferred to a 

lower-paying job site that substantially increased his commute 

time and transportation costs. This action might well dissuade 

a reasonable worker from whistleblowing. And while Defendants 

muster a couple of easily distinguishable cases to support their 

argument to the contrary, none of those mandates a holding that 

reassignments that increase commute time and costs and decrease 

pay are insufficient, as a matter of law, to support a 

retaliation claim. 

We hold that Smith has successfully pled retaliation under 

Section 3730(h). The district court thus erred when it granted 

Defendants’ motion to dismiss that claim.
22

V.

In sum, we hold that the district court erred when it 

dismissed Counts I, II, and IV of Smith’s complaint with 

prejudice. In light of this holding, the district court’s award 

of costs to Defendants is also improper. Cf. Kollsman, a Div. 

of Sequa Corp. v. Cohen, 996 F.2d 702, 706 (4th Cir. 1993) 

(holding that defendant was a prevailing party eligible to 

receive costs where there had been a dismissal with prejudice); 

Fed. R. Civ. P. 54 (“Unless a federal statute, these rules, or a 

court order provides otherwise, costs--other than attorney’s 

fees--should be allowed to the prevailing party.”).

For the aforementioned reasons, we affirm the district 

court’s denial of Smith’s oral motion to amend, reverse the 

order granting a dismissal with prejudice as to counts I, II, 

and IV—the only counts on appeal, vacate the costs order, and 

remand to the district court for further proceedings in 

accordance with this opinion.

AFFIRMED IN PART, REVERSED IN PART,

VACATED IN PART, AND REMANDED

FOR FURTHER PROCEEDINGS