1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0297P (6th Cir.)

File Name: 03a0297p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

RICHARD M. YUHASZ,

Plaintiff-Appellant,

v.

BRUSH WELLMAN, INC.,

Defendant-Appellee.

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No. 02-3087

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 00-07237—James G. Carr, District Judge.

Argued: August 1, 2003

Decided and Filed: August 20, 2003 

Before: KENNEDY, GILMAN and GIBBONS, Circuit

Judges.

_________________

COUNSEL

ARGUED: Dennis E. Murray, Jr., MURRAY & MURRAY,

Sandusky, Ohio, for Appellant. Geoffrey J. Ritts, JONES

DAY, Cleveland, Ohio, for Appellee. ON BRIEF: Dennis

E. Murray, Jr., Charles M. Murray, Barbara Quinn Smith,

2 Yuhasz v. Brush Wellman, Inc. No. 02-3087

MURRAY & MURRAY, Sandusky, Ohio, for Appellant.

Geoffrey J. Ritts, Dennis M. Kelly, JONES DAY, Cleveland,

Ohio, for Appellee. 

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Relator Richard

M. Yuhasz brought a qui tam action against defendantappellant Brush Wellman, Inc. (Brush), claiming that Brush

violated the False Claims Act (FCA), 31 U.S.C. § 3729 et

seq., and wrongfully terminated him in retaliation for his

allegations of wrongdoing. After the United States declined

to intervene, Brush moved to dismiss the case pursuant to

Rules 9(b) and 12(b)(6) of the Federal Rules of Civil

Procedure, and the district court granted the motion. For the

reasons set forth below, we affirm the judgment of the district

court.

I.

Relator Yuhasz was employed as a laboratory manager for

Brush at Brush’s bronze alloy manufacturing facility in

Lorain, Ohio, between September 1996 and January 2000. At

this facility, Brush produces “‘super’ alloys, spinodal alloys,

and other specialty alloys” that are supplied to the United

States both directly and through intermediaries, including

distributors, for use in aerospace and military aviation. Some

of the alloys, supplied under requirements of and pursuant to

contracts with the United States, are subjected to further

processing and manufacturing before being delivered to the

United States.

Yuhasz was hired to design and establish, and then operate

as manager, a testing laboratory for its Lorain facility. The

laboratory was established to conduct chemical, mechanical,

and physical testing of Brush’s alloys. At the laboratory,
No. 02-3087 Yuhasz v. Brush Wellman, Inc. 3

Yuhasz established the specifications for the laboratory

equipment and both conducted and supervised testing

procedures.

In order to claim or receive payments under government

contracts, Brush must submit “certifications of compliance

with technical specifications stating, representing, and

warranting that the alloys were in strict conformity with

specifications and that [Brush] was, thereby, legally entitled

to claim and receive payment.” These certifications include

certification pursuant to Aerospace Materials Specifications,

certification as to compliance with “QQC” specifications (a

government standard), and certification pursuant to the

specifications of the American Society for Testing and

Materials.

On April 14, 2000, Yuhasz filed this qui tam action,

alleging that Brush violated the FCA by making false

certifications by itself or through intermediaries and that

Brush wrongfully terminated him in retaliation for his

allegations of improper conduct. After investigating

Yuhasz’s allegations, the United States declined to intervene

on July 11, 2001. On September 7, 2001, Brush moved to

dismiss the case for failure to state a claim pursuant to Federal

Rule of Civil Procedure 12(b)(6). The district court granted

Brush’s motion to dismiss on December 14, 2001. On

January 8, 2002, Yuhasz filed his notice of appeal.

II.

A district court’s grant of a motion to dismiss pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure is

reviewed de novo. Goad v. Mitchell, 297 F.3d 497, 500 (6th

Cir. 2002). Pursuant to Rule 12(b)(6), an action may be

dismissed if the complaint fails to state a claim upon which

relief can be granted. When considering a motion to dismiss,

all well-pleaded allegations in the complaint are treated as

true, and the dismissal of the complaint is deemed proper

“only ‘if it appears beyond doubt that the plaintiff can prove

4 Yuhasz v. Brush Wellman, Inc. No. 02-3087

no set of facts in support of its claims that would entitle it to

relief[.]’” Id. (citing Kostrzewa v. City of Troy, 247 F.3d 633,

638 (6th Cir. 2001)); see also Conley v. Gibson, 355 U.S. 41,

45-46 (1957). 

III.

According to the FCA:

Any person who (1) knowingly presents, or causes to be

presented, to an officer or employee of the United States

Government or a member of the Armed Forces of the

United States a false or fraudulent claim for payment or

approval; (2) knowingly makes, uses, or causes to be

made or used, a false record or statement to get a false or

fraudulent claim paid or approved by the Government . . .

is liable to the United States Government for a civil

penalty of not less than $5,000 and not more than

$10,000, plus 3 times the amount of damages which the

Government sustains because of the act of that person. 

31 U.S.C. § 3729. The purpose of the FCA is “to encourage

any individual knowing of Government fraud to bring that

information forward.” United States ex rel. McKenzie v.

BellSouth Telecomm., Inc., 123 F.3d 935, 938 (6th Cir. 1997)

(McKenzie I) (quoting S. Rep. No. 99-345 (1986), reprinted

in 1986 U.S.C.C.A.N. 5266); see also United States ex rel.

Dick v. Long Island Lighting Co., 912 F.2d 13, 18 (2d Cir.

1990) (“‘[T]he purpose of the qui tam provisions of the False

Claims Act is to encourage private individuals who are aware

of fraud being perpetrated against the Government to bring

such information forward.’”) (quoting H.R. Rep. No. 99-660,

at 22 (1986)). If, as in this case, the government does not

assert its statutory right to take over the case, the relator can

recover between twenty-five and thirty percent of any monies

recovered from a settlement or judgment, in addition to

reasonable expenses and attorneys’ fees and costs. 31 U.S.C.

§ 3730(d)(2).
No. 02-3087 Yuhasz v. Brush Wellman, Inc. 5

Yuhasz claims that Brush, by itself or through

intermediaries,submitted fraudulent certifications and claims

for payment to the United States and received payment from

the United States for alloys not meeting government

specifications, in violation of the FCA. Specifically, Yuhasz

alleges that Brush

had actual knowledge and/or acted in deliberate disregard

or ignorance of the truth or falsity of: (i) alloy product

that was off-specification due to defects such as cracks;

(ii) false and fraudulent certifications of compliance with

technical specifications; (iii) improper traceability and

identifibility controls with respect to lots of alloy bar

stock; (iv) beryllium contamination in alloys, rendering

such alloys off-specification; (v) [Brush’s] failure to

perform requisite tests on the alloys, such as the

mercurious nitrate testing; and, (vi) the fact that requisite

internal controls were not in place, rendering alloy

products untraceable and unidentifiable.

The district court granted Brush’s motion to dismiss,

concluding that since the complaint “did not state a specific

false claim submitted to the government,” Yuhasz “did not

allege a FCA claim with sufficient particularity as required

under Rule 9(b).” Yuhasz v. Brush Wellman, Inc., 181

F.Supp.2d 785, 794 (N.D.Ohio 2001). 

Pursuant to Federal Rule of Civil Procedure 9(b), in any

complaint averring fraud or mistake, “the circumstances

constituting fraud or mistake shall be stated with

particularity.” The heightened pleading standard set forth in

Rule 9(b) applies to complaints brought under the FCA.

“[C]omplaints brought under the FCA must fulfill the

requirements of Rule 9(b) – defendants accused of defrauding

the federal government have the same protections as

defendants sued for fraud in other contexts.” Bly-Magee v.

California, 236 F.3d 1014, 1018 (9th Cir. 2001); see also

United States ex rel. Thompson v. Columbia/HCA Healthcare

Corp., 125 F.3d 899, 903 (5th Cir. 1997); Gold v.

6 Yuhasz v. Brush Wellman, Inc. No. 02-3087

Morrison-Knudsen Co., 68 F.3d 1475, 1476 (2d Cir. 1995);

United States ex rel. Cooper v. Blue Cross & Blue Shield of

Florida, Inc., 19 F.3d 562, 568 (11th Cir. 1994). The

requirement that fraud be plead with particularity need not be

relaxed in FCA cases in order to protect the public because

the government’s ability to intervene on the basis of

information brought to its attention vindicates the public

interest. The Sixth Circuit interprets Rule 9(b) as requiring

plaintiffs to “allege the time, place, and content of the alleged

misrepresentation on which he or she relied; the fraudulent

scheme; the fraudulent intent of the defendants; and the injury

resulting from the fraud.” Coffey v. Foamex L.P., 2 F.3d 157,

161-162 (6th Cir. 1993) (quotation omitted). 

The district court correctly found that Yuhasz had failed to

allege an FCA claim with sufficient particularity as required

by Rule 9(b). Yuhasz’s complaint is short on specifics. For

example, the complaint notes only that “certain testing that

was outsourced according to a particular EAB number did not

match-up to any heat number for alloy bar stock” and that

“certain alloys of [Brush] may have been mismarked.”

(emphasis added). However, the complaint contains no

particularized allegations of wrongdoing. The failure to

identify specific parties, contracts, or fraudulent acts requires

dismissal. See United States ex rel. Clausen v. Lab. Corp. of

Am., Inc., 290 F.3d 1301, 1312 (11th Cir. 2002) (“failure to

allege with any specificity if – or when – any actual improper

claims were submitted to the Government is indeed fatal”);

U.S. ex rel. Walsh v. Eastman Kodak Co., 98 F.Supp.2d 141,

147 (D. Mass. 2000) (“Relator’s First Amended Complaint,

in essence, sets out a methodology by which the vendors

might have produced false invoices, which in turn could have

led to false claims. Without citing a single false claim arising

from an allegedly false invoice, Relator has not met even a

bare-bones Rule 9(b) test.”); United States ex rel. Butler v.

Magellan Health Serv.,Inc., 101 F.Supp.2d 1365, 1369 (M.D.

Fla. 2000) (“Plaintiff does plead a fraudulent scheme of

conduct which may well be prohibited by law. However,

Plaintiff pleads no specific occurrences of a false claim. . . .
No. 02-3087 Yuhasz v. Brush Wellman, Inc. 7

[T]he absence of specific allegations of fraudulent false

claims is determinative.”). 

Yuhasz concedes that he “is unable to identify a specific

claim submitted directly to the United States by a prime

contractor who incorporated [Brush’s] metal alloys into the

finished product sold to the government,” but argues that he

“is entitled to a relaxed standard of pleading due to the length

and complexity of [Brush’s] fraud.” Yuhasz notes that the

complaint “alleges fraudulent acts occurring over a period

exceeding two years, and affecting virtually every alloy

manufactured by [Brush] during that period.” As the district

court observed, however, a plaintiff should not be able to

avoid the specificity requirements of Rule 9(b) by “relying

upon the complexity of the edifice which he created.” United

States ex rel. Clausen v. Lab. Corp. of Am., 198 F.R.D. 560,

563 (N.D. Ga. 2000), aff’d, 290 F.3d 1301 (11th Cir. 2002).

Moreover, none of the cases upon which Yuhasz principally

relies, United States ex rel. Roby v. Boeing Co., 184 F.R.D.

107 (S.D. Ohio 1998), United States v. United Technologies,

No. C-3-99-093, 2000 WL 988238 (S.D. Ohio March 20,

2000), and United States v. Pogue, 977 F. Supp. 1329 (M.D.

Tenn. 1997), supports his position. 

In Roby, the plaintiff alleged that defendant The Boeing

Corporation (Boeing) and its supplier violated the FCA “by

manufacturing and selling defective transmission gears to the

United States via Boeing’s CH-47(D) Chinook Army

helicopters.” 184 F.R.D. at 108. Boeing filed a motion to

dismiss, arguing that “because of the breadth of the

accusation against it, [defendant] can only speculate as to

which of the 300 . . . gears in service today are alleged to be

nonconforming.” Id. at 110. The district court denied

Boeing’s motion and noted that the complaint alleged that

Boeing “acted with the knowledge of falsity or reckless

disregard for the truth with respect to every CH-47(D)

helicopter it delivered to the United States.” Id. (emphasis

added). 

8 Yuhasz v. Brush Wellman, Inc. No. 02-3087

Yuhasz argues that the “facts of the instant case are

strikingly similar to those before the court in Roby.” This is

not correct. In the instant case, Yuhasz asserts in its brief

only that “virtually every certification” was fraudulent and

that “virtually every alloy certified by [Brush] during the time

specified in the Complaint was non-compliant.” (emphasis

added). The language of the complaint itself is even less

specific, stating only that “certain testing that was outsourced

according to a particular EAB number did not match-up to

any heat number for alloy bar stock,” that “certain alloys may

have been mismarked,” that “Yuhasz, upon accessing the

original certifications, often discovered that the requisite

mercurious nitrate testing had not been performed,” that

“approximately 5% of the product, and particularly smaller

diameter product, failed to meet the requisite tensile

strength,” that “drums were often not labeled,” and that “many

of the certifications of compliance indicated the wrong alloy.”

(emphasis added). Furthermore, in Roby the plaintiff

identified the specific contract at issue (the CH47(D)

helicopter contract) and stated when, where, and how false

statements were made to the government (on Forms DD-250

presented to the government). 184 F.R.D. at 110. In the

instant case, Yuhasz provides no such information. Roby thus

is easily distinguishable. 

In United Technologies, the government alleged that Pratt

and Whitney (Pratt), a division of defendant United

Technologies Corporation (UTC), fraudulently submitted a

contract bid that “knowingly overstated” the prices to be

charged by Pratt’s subcontractors. 2000 WL 988238 at *1.

The government further alleged that each bill, invoice, and

price later presented by Pratt to the government reflected

these inflations. Id. Pratt filed a motion to dismiss, arguing

that the government failed to specify which of its invoices

were false claims. Id. at *5. The district court denied Pratt’s

motion, noting that the complaint alleged that “all of the

invoices, bills, and prices submitted by Pratt to the Air Force

were based on that initial ‘inflation,’” and as a result “UTC

should be able to identify the invoices, bills, and prices at
No. 02-3087 Yuhasz v. Brush Wellman, Inc. 9

issue.” Id. at *8 (emphasis in original). In the instant case,

however, not only has Yuhasz not identified any invoices

submitted by Brush to the government based on the alleged

fraud, the indefinite nature of his allegations does not provide

Brush with any way of identifying those invoices. Moreover,

in United Technologies the plaintiff identified the document

presented to the government that contained the false

information (Pratt’s “best and final offer”) and identified both

the parties and the specific contract that was entered into

based upon that false information (a contract between the

government and United Technologies to provide the Air

Force with high-performance jet engines). Id. at *1. That

level of specificity is completely absent here. 

Finally, in Pogue, the plaintiff alleged that defendants West

Paces Medical Center (West Paces), Diabetes Treatment

Centers of America (DTCA), and a group of Atlanta

physicians engaged in a scheme to defraud the government of

Medicare and Medicaid funds. 977 F. Supp. at 1331. The

defendants filed a motion to dismiss, arguing that the

complaint failed “to specify ‘when, where, or how Plaintiff

contends that West Paces learned of this alleged fraud, or the

identity of, or position held by, the person or persons who had

such knowledge, and whose knowledge should be attributed

to West Paces.’” Id. at 1332. The district court denied

defendants’ motion and stated that “[a]lthough no specific

dates or West Paces employees are identified, the complaint

alleges that the hospital participated in a systematic,

fraudulent scheme, spanning the course of twelve years; thus,

reference to a time frame and to ‘West Paces’ generally is

sufficient.” Id. at 1333. Yuhasz argues that in this case, as in

Pogue, the court should not require “the specific dates on

which the invoices were submitted.” However, Yuhasz fails

to recognize that in Pogue the lack of specificity with regard

to the invoices was balanced against the fact that the plaintiff

identified the specific parties and contracts at issue (between

West Paces and DTCA and between DTCA and the Atlanta

physicians). Here, the only party that Yuhasz identifies is

Brush.

10 Yuhasz v. Brush Wellman, Inc. No. 02-3087

In his briefs to this court, Yuhasz also argues that he should

not be required to plead the specifics of information “within

[Brush’s] control.” By failing to state specifically that

Brush’s control is exclusive, the position taken by Yuhasz on

appeal differs from that taken in the complaint, which stated:

With respect to the alloy products produced or processed

by [Brush] for the requirements of the government

pursuant to government contracts, [Brush] is in a position

of superior knowledge, and possessed exclusive control

over the means of access to information, as to the

specific nature of such requirements or contracts.

(emphasis added). In its response to Brush’s motion to

dismiss, Yuhasz also claimed that “an exception exists when

certain information is within the exclusive possession of the

defendant.” (emphasis added). The district court rejected this

argument, explaining that Yuhasz “is not entitled to a relaxed

standard because the information he seeks is not exclusively

in the possession of Brush.” Yuhasz, 181 F.Supp.2d at 793.

Although Yuhasz now argues that he should not be required

to plead information over which Brush has “constructive

control,” nowhere in his briefs to this court does he state that

Brush’s control is exclusive. Thus, Yuhasz apparently has

now conceded that third parties possess information

concerning the specific contracts at issue and the claims

submitted for payment. As the district court correctly

determined, “[c]ourts have held that [Rule 9(b)] may be

relaxed where information is only within the opposing party’s

knowledge.” Michaels Bldg. Co. v. Ameritrust Co., N.A., 848

F.2d 674, 680 (6th Cir. 1988) (emphasis added).

Furthermore, although Yuhasz argues that he “cannot obtain

the information demanded by the trial court absent

discovery,” there is no general right to discovery upon filing

of the complaint. The very purpose of Fed. R. Civ. P.

12(b)(6) “is to enable defendants to challenge the legal

sufficiency of complaints without subjecting themselves to

discovery.” Rutman Wine Co. v. E. & J. Gallo Winery, 829
No. 02-3087 Yuhasz v. Brush Wellman, Inc. 11

F.2d 729, 738 (9th Cir. 1987). For all of these reasons,

dismissal of Yuhasz’s FCA claim is appropriate. 

IV.

The FCA protects employees who pursue, investigate, or

otherwise contribute to an action exposing fraud against the

government. Section 3730(h) of the FCA states: 

Any employee who is discharged, demoted, suspended,

threatened, harassed, or in any other manner

discriminated against in the terms or conditions of

employment by his or her employer because of lawful

acts done by the employee on behalf of the employee or

others in furtherance of an action under this section,

including investigation for, initiation of, testimony for, or

assistance in an action filed or to be filed under this

section, shall be entitled to all relief necessary to make

the employee whole. 

31 U.S.C. § 3730(h). In order to establish a claim for

retaliatory discharge, a plaintiff must show: (1) he engaged in

a protected activity; (2) his employer knew that he engaged in

the protected activity; and (3) his employer discharged or

otherwise discriminated against the employee as a result of

the protected activity. McKenzie v. BellSouth Telecomm.,

Inc., 219 F.3d 508, 513-514 (6th Cir. 2000) (McKenzie II).

The district court properly dismissed Yuhasz’s retaliatory

discharge claim, finding that Yuhasz had failed to allege that

Brush had the required notice of Yuhasz’s participation in

protected activity. 

“When seeking legal redress for retaliatory discharge under

the FCA, plaintiff has the burden of pleading facts which

would demonstrate that defendants had been put on notice

that plaintiff was either taking action in furtherance of a

private qui tam action or assisting in an FCA action brought

by the government.” United States ex. rel. Ramseyer v.

Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir.

12 Yuhasz v. Brush Wellman, Inc. No. 02-3087

1996). Yuhasz claims that he “specifically informed and

advised [Brush] of the unlawful and illegal nature of its

certifications of compliance” and “specifically raised with

[Brush], through Feldhouse, that other companies had

incurred liabilities under the False Claims Act for submission

of false and fraudulent claims.” However, these allegations

are insufficient to show that Brush knew Yuhasz was

pursuing an FCA case when it discharged him.

In Ramseyer, the Tenth Circuit dismissed a retaliatory

discharge action brought pursuant to the FCA, noting that

“the monitoring and reporting activities described in

plaintiff’s complaint were exactly those activities plaintiff

was required to undertake in fulfillment of her job duties.” 90

F.3d at 1523. The court added that the plaintiff “took no steps

to put defendants on notice . . . that she was furthering or

intending to further an FCA action rather than merely

warning the defendants of the consequences of their conduct.”

Id. (emphasis added). Similarly, the concerns about potential

liability under the FCA raised by Yuhasz in this case were

entirely within the scope of his duties, and thus did not put

Brush on notice that he was engaging in protected activity.

The complaint describes Yuhasz’s duties as follows: 

[Brush] hired Yuhasz to design and establish, and then

operate as a manager, a testing laboratory for its Lorain

facility. . . . The laboratory was established to conduct

certain chemical, mechanical and physical testing.

Yuhasz also established the specifications for the

laboratory equipment. 

***

Yuhasz conducted and or supervised testing procedures

for [Brush’s] Lorain facility.

***
No. 02-3087 Yuhasz v. Brush Wellman, Inc. 13

1

Yuhasz’s reliance on McKenzie I is misplaced. In McKenzie I,

although the court found that by “show[ing] her supervisors a newspaper

article about a similar fraud being perpetrated” against another company,

plaintiff had placed the employer on notice, the court specifically noted

that the plaintiff’s “activities were not within the scope of her

employment.” 123 F.3d at 945. In the instant case, Yuhasz’s activities

fit squarely within the scope of his employment. 

On or about August, 1998, Yuhasz was appointed as the

[Brush] employee charged with submitting the required

certifications of compliance with the technical

specifications of the alloys. 

By informing Brush that its certifications were illegal and that

other companies had incurred liability under the FCA for false

claims, Yuhasz was simply performing his ordinary duties as

a supervisor of laboratory testing. Brush cannot be charged

with notice on this basis. See Robertson v. Bell Helicopter

Textron, Inc., 32 F.3d 948, 952 (5th Cir. 1994) (employer did

not have notice where plaintiff’s actions “were consistent

with the performance of his duty”).

1

 The mere fact that

Yuhasz told Brush that its certifications of compliance were

“unlawful and illegal” does not establish notice. As the Sixth

Circuit noted in McKenzie II, “a plaintiff still must show that

his employer was aware of his protected activity. Merely

grumbling to the employer about . . . regulatory violations

does not satisfy the requirement.” 219 F.3d at 518 (quoting

United States ex rel. Yesudian v. Howard Univ., 153 F.3d

731, 743 (D.C. Cir. 1998)). 

Yuhasz argues that this interpretation of the notice

requirement “grants immunity to an employer who terminates

the employee most likely to have information relevant to a qui

tam action.” This is not the case. As the court noted in

Ramseyer, employees charged with investigating potential

fraud are not automatically precluded from bringing a Section

3730(h) action. 90 F.3d at 1523 n. 7. In light of their

ordinary responsibilities, however, such persons “must make

clear their intentions of bringing or assisting in an FCA action

14 Yuhasz v. Brush Wellman, Inc. No. 02-3087

in order to overcome the presumption that they are merely

acting in accordance with their employment obligations.” Id.

V. 

Yuhasz argues that the district court erred in dismissing his

claim for wrongful discharge in violation of Ohio common

law and public policy. In his complaint, Yuhasz asserts:

It is the public policy of Ohio that an employee shall not

be discharged, or otherwise subjected to a hostile work

environment, for refusing his employer’s directives to

violate applicable laws and regulations. That public

policy is manifested in the FCA, 31 U.S.C. § 3730(h), as

well as in [Federal Acquisition Regulations] by reason of

the strict certifications of compliance that are required. 

The district court dismissed this claim, concluding that

because the complaint failed to show a violation of the FCA,

the complaint also failed to state a claim that Brush

wrongfully discharged him in violation of Ohio public policy.

This decision was correct. 

In order to prevail on a wrongful discharge claim in

violation of public policy under Ohio law, a plaintiff must

show:

(1) a ‘clear public policy existed and was manifested in

a state or federal constitution, statute or administrative

regulation, or in the common law;’ (2) that ‘dismissing

employees under circumstances like those involved in the

plaintiff’s dismissal would jeopardize the public policy;’

(3) ‘[t]he plaintiff’s dismissal was motivated by conduct

related to the public policy;’ and (4) ‘[t]he employer

lacked overriding legitimate business justification for the

dismissal.’

Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 311

(6th Cir. 2000) (quoting Painter v. Graley, 70 Ohio St.3d 377,
No. 02-3087 Yuhasz v. Brush Wellman, Inc. 15

384 n. 8 (Ohio 1994)). In Parry, the Sixth Circuit held that a

plaintiff could not maintain a wrongful discharge claim in

violation of Ohio public policy when the public policy was

derived from an Ohio statute “substantially similar to the

ADA” and the ADA claim had been dismissed. Id. at 312.

The court explained that “[p]laintiff, having failed to show a

viable claim under the ADA, is necessarily precluded from

claiming that his termination violated public policy.” Id.

Similarly, since Yuhasz has failed either to state an FCA

claim or to identify the specific provision of the Federal

Acquisition Regulations manifesting the alleged “clear public

policy,” Ohio public policy cannot serve as a basis for his

wrongful discharge action. 

Yuhasz concedes that “if he is unable to demonstrate a

violation of the FCA, he may not bring a claim for discharge

in violation of the public policy therein,” but argues that

dismissal is not appropriate because “this public policy is also

independently and more broadly embodied in the common

law of Ohio.” Under Ohio law, however, “when the

employee’s discharge is not actionable under the law that

establishes the ‘clear public policy,’ the companion commonlaw claim for relief likewise fails as a matter of law.”

Arsham-Brenner v. Grande Point Health Care Cmty., No.

74835, 2000 WL 968790, at *7 (Ohio App. July 13, 2000).

Since the only “applicable laws and regulations” that Yuhasz

alleges he was directed to violate are the FCA and the Federal

Acquisition Regulations, and the complaint fails to state a

claim with respect to either of these authorities, his common

law public policy claim also must be dismissed. 

VI.

Yuhasz requested leave to amend his complaint in his

October 5, 1999, response to Brush’s motion to dismiss, and

he contends that the district court abused its discretion by

failing to grant his request. This argument lacks merit. 

16 Yuhasz v. Brush Wellman, Inc. No. 02-3087

The district court declined to grant Yuhasz leave to amend,

but it failed to specify the reasons for its decision. Pursuant

to Fed. R. Civ. P. 15(a), a court should freely give leave to

amend a complaint “when justice so requires.” However,

leave to amend may be denied where the amendment would

be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). When

a district court denies a plaintiff’s motion for leave to amend

his complaint, this court generally reviews the decision for an

abuse of discretion. Begala v. PNC Bank, Ohio, Nat’l Ass’n,

214 F.3d 776, 783 (6th Cir. 2000). When the district court

bases its decision to deny leave to amend on a legal

conclusion that amendment would be futile, however, this

court reviews the decision de novo. Inge v. Rock Fin. Corp.,

281 F.3d 613, 625 (6th Cir. 2002). Since the district court did

not specify its reasons for denying leave to amend, the panel

should conduct a de novo review. See McKethan-Jones v.

Ohio Dept. of Health, 7 Fed. Appx. 475, 482, 2001 WL

345782, at *6 (6th Cir. 2001) (finding that “[t]he district

court, by refusing to grant leave to amend the original

complaint . . . , must implicitly have decided that such a claim

was futile,” and conducting de novo review). 

According to Fed. R. Civ. P. 15(a), “[a] party may amend

the party’s pleading once as a matter of course at any time

before a responsive pleading is served.” The term

“responsive pleading” is defined by reference to Fed. R. Civ.

P. 7(a), which distinguishes between pleadings and motions,

and provides an exclusive list of pleadings: a complaint

(including a third party complaint), an answer to a complaint

or a cross-claim, and a reply to a counterclaim. In this case,

Brush never filed an answer. Consequently, Yuhasz was free

to file an amended complaint at any time prior to the district

court’s entry of judgment. Yuhasz did not do so, but instead

claimed in his response to Brush’s motion to dismiss that he

“has pled all the facts that he knows.” In light of Yuhasz’s

admission, amendment would be futile. See Old Republic Ins.

Co. v. Hansa World Cargo Service, Inc., 170 F.R.D. 361,

383-384 (S.D.N.Y. 1997). (“[B]ecause [plaintiff] has

conceded that it possesses no further facts to plead . . . , this
No. 02-3087 Yuhasz v. Brush Wellman, Inc. 17

Court finds that leave to replead [plaintiff’s] . . . claims

should be denied as futile.”) Because Yuhasz did not amend

as a matter of right under Rule 15(a) and because amendment

would have been futile in any event, the district court’s denial

of Yuhasz’s request for leave to amend was proper.

Yuhasz also directly requests leave to amend from this

court. This request is procedurally defaulted. The district

court entered a final judgment dismissing the case on

December 14, 2001. “Following entry of final judgment, a

party may not seek leave to amend their complaint without

first moving to alter, set aside or vacate the judgment

pursuant to either Rule 59 or Rule 60 of the Federal Rules of

Civil Procedure.” Morse v. McWhorter, 290 F.3d 795, 799

(6th Cir. 2002). Since Yuhasz never filed a Rule 59 or 60

motion following the district court’s entry of judgment, he

cannot now seek leave to amend.

VII.

For all of the foregoing reasons, we affirm the judgment of

the district court.