1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0297P (6th C ir.) File Name: 03a02 97p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
R ICHA RD M. Y UHASZ ,

Plaintiff- Appellant

,

v.

B RUSH W ELL MAN , I NC ., Defendant-Appellee. X

- - - -
> , - - - - N 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

Befor e: KENNEDY, GI

LMAN and GI BBONS, Circuit Judges.

_________________ COUNSEL

ARGUED: Dennis E. Mu rr ay, Jr., MURRAY & MURRAY, Sa nd us ky, Ohio, for Appellant. Geoffre y J. Ritts, JONES DAY, Cleveland, Ohio, for Appellee. ON BRI EF: Dennis E. Murray

, Jr., Charl es M. Murr

ay , Barba ra Quinn Sm ith
, 2 Yuhasz v. Brush Wellman, Inc. No. 02-3087

MURRAY & MURRAY, Sa ndusky , Ohio, for Appella nt. Geoffrey J. Ritts, Dennis M. Kelly, JONES DAY, Cleveland, Ohio, for Appellee.

_________________ OPINION

_________________ JU LIA SMITH

GIB BONS, Cir

cuit Judge. Relator Richard M. Yuhasz brought a qui tam action ag ai nst defendantappellant Brush Wellman, Inc. (Brus h), clai ming tha t Brush violated the False Claims Act (FCA), 31 U. S .C. § 3729 et seq. , and wrongfully

terminated him in retaliation for hi s allegations of wrongdoing. Af ter the United

States declined to intervene, Br ush mov ed to dismis s the cas e pursua nt to Rules 9 (b ) and 12(

b)(6) of the Fed eral Rule s 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 a

lloy manufacturing f

acility in Lorain, Ohio, between September 1996 and January 2000. At this facility, Br

ush produces “‘super ’ alloy s, spinoda l alloys, and other specialty a

lloys” that are supplied to the Unit ed States both dire ctly

and throu

gh inter media ri es, including distributors, for use in aerospace and military aviation . Some of the alloy s, supplie d under r

equirements of a

nd pursua nt to cont racts with the U

nited State s, are su

bjected to furth e r processingand manufacturing before be ing delivered to the United Sta

tes.
Yuhasz was hired to design and establish, and then o perate
as manage

r, a testi ng labo rato ry for i ts Lorain facility . The laboratory

was established to conduct c hemical, mechani cal, and phy sical tes ting of B rush’s a ll oys . A t t he la bo ra to ry,No. 02-3087 Yuhasz v. Brush Wellman, Inc. 3

Yuhasz established the specifications for the laboratory equipment

and both conducted and supervised testing procedu res.
Inorder to claim or receive pay ments under go vernment contracts, Brush mu st submit “ce rtifications of compliance with technical speci f

ications 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.” The se certifications include certification

pursuant to Aerospace Materia

ls Specif ications, certification

as to c ompliance with “QQC” specifications (a gov ernment

standard), and certification pursuant to t h e specifications of the American Soci et y f or Testing and Materia ls.

OnA pr il 14, 2000, Yuhasz fil ed this qui tam action,
a llegin g that Bru sh violate d the FCA by making f

alse certi fi cations by itself or throug h intermediaries and that Brush wrongfully

terminated him in re tal iation for his allegations of improper conduct. Af ter investigating Yuhasz’s allegations, the United Sta tes decl ined to intervene
on Ju ly 11, 200 1. On Septe mber 7, 20 01, 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 Brus h’s motion to dismiss on December 14, 2001. O n January 8, 2002, Y

uhasz file d his notic e of appe al.

II.

A district court ’s gran t of a motion to dismiss p ursuant t o R ule 12(b)(6) of the Federal Rules of Civil Proced ure i s reviewed de novo

. Goad v. M itchell , 297 F.3d 497, 500 (6 th Cir. 2002). Pursuant to Rul e 12 (b)(6), an action may be dismissedif the complaint fa ils to state

a claim upon whi ch relief can be gra nted. When

consider ing a mot ion to dismis s, all well-pl eaded allegations in the complaint are treated as true, and the di smissal of the complaint is deemed proper “only ‘if it appea

rs 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 t

hat would entitle it t

o relief[.]’” Id. (citi ng Kostrzewa v. City of Troy , 247 F.3d 633, 638 (6 th Cir. 2001)); see also Conley v. Gibson , 355 U.S. 41, 45-46 (1957).

III. According to the FCA: Any person who (1) knowing ly presents, or causes to be presented, to anofficer or employ ee of the United States Government

or a member of the Armed Force s of the United States a f alse or fraudulent claim for pay ment or approva l; (2 ) knowi ngly make s, 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 t

he United

States Gov ernment

f or a civil penalty of not les s than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Gove r nment

sustains because of the act of that person.

31 U.S. C. § 3 729. T he pur pose o f the FC A is “t o enco urage any individual knowing of Governm en t fraud to bring that informationforward.” Unit ed States ex rel. McKenzie v. BellSouthTelecomm., 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 Unite d States e x rel. Dick v. Lo ng Island

Lighting Co. , 912 F.2d 13, 18 (2d Cir. 1990) (“‘[T]he purpose of the qui tam provision s of the F alse Claims Act

is to enco urage private individua ls who are aware of fraud being perpetra

ted aga inst the Government to bring suchinformation forward.’”) (quoting H.R. Rep. No. 99-660, at 22 (1986)). If, as in t

his case , the government does not assert its statutory right to take ove r the case, the relator can
recover between twenty-five and thirty pe rcent of any monies recovered from a settlement or judg ment, in addition to
reasona ble expenses and

attorneys’ f

ees and costs. 31 U.S.C. § 3730(d)(2).No. 02-3087 Yuhasz v. Brush Wellman, Inc. 5

Yuhasz claims tha t Br

us h, by its elf or throu gh intermed iaries, su bmitted fr audulent certifi cations a

nd claims for payment to the United States and r eceived pay

ment from the United States for alloys not meeting government specific ations, in violation of the FCA. Specific ally , Yuhasz allege s that Br

ush

had actual k nowledg e and/or

acte d in deliber ate disregard
or ignorance of the truth or falsity of: (i) alloy product that was off-spe cificat

ion due to d

efects such as c racks; (ii) false and fraudulent

certifi cations o f complia

nce with technical spe ci fications; (iii) improper traceability and identi fibility

controls with respect to lots of alloy ba r stock; (iv) ber

ylli um contam

inati on in alloys, rendering suchalloy s off-sp ecifica tion; (v) [B rush’s] fa

ilure to perform req ui site tests on the alloys, such as the mercurious nitrate t

esting; and, (vi)

the fac t that req

uisite i nternal controls were not in place, rendering al lo y products untraceable and unidentifiable.

The district c ourt gr

anted B rush’s m otio n to dismiss, concluding that since

the compl aint “did

not state a

specific f alse claim submitted to the government,” Yuhasz “did n o t 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
co mplaintaverring fraud or mistake, “the circumstanc e s constituting fraud or

mistake shall be sta ted with particularity.” The heig

htened pl eading

standar d set for thin Rule 9(b) applies to complaints brought under the FCA

. “[C]omplaint s brough

t under th e FCA must fulfill t he require ments of Rule 9(b) –

defendants accused

of defrauding the federal government have t h e same protections as defenda nts sued for fr audin other contexts.” Bly-Magee v. California
, 236 F.3d 1 014, 1018 ( 9th Cir. 200 1); see also United States ex rel. Th ompson v. Columbia/H CA Healthca re Corp. , 125 F.3d 899, 903 (5th C ir. 1997) ; Gold v. 6 Yuhasz v. Brush Wellman, Inc. No. 02-3087

Morrison-Knudsen Co. , 68 F.3d 1475, 1 476 (2d Cir. 1995); United States ex rel. Co oper v. Blue Cross &Blue Shield of Florida, Inc. , 19 F.3d 562, 568 (11th Cir. 1994). The requirement

that fraud be plead wit h particularity ne ed not be relaxed in FCA cases in orde r to prote ct the pub lic beca use the government’s ability to intervene on

th e basis of informationbrought

to its attent

ion vindic ates the

public interest

. The S ixt h Circuit interprets Rule 9(b) as requiring plaintiffs to “allege the time, place, and content of the alleged misrepresentation

on which he or she r

elied; the fraudul e n t 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 c ourt cor

rectly found tha t Yuhasz ha

d failed to allege an FCA claim with sufficient particularity a s required by R ule 9(b) . Yuhasz’ s complain t is short on sp ecifics

. For example, the compl aint note s only that “ cer tai n testing that
was outsourced according to a particula r EAB number di d

not match-up to any heat number for alloy bar

sto ck” and that

“ certain alloys of [Brush] may have been mismarked.” (e mpha sis added). However, the complaint contains no pa r ticularized

allega tions of wr

ongdoin g. The f

ailure 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 (11 th Cir. 2002 ) (“fa ilure to allege with any

specific ity i f

– or when – any

actual improper claims were su

bmitted to t

he Gover nment i s ind eed fatal”); U.S. ex rel. Walsh v. Eastman Kodak Co. , 98 F.Supp.2d 141, 147 (D. Mass. 2000) (“ Relator’ s First Amended Com plaint, i n essenc e, sets out a methodology by which the vendors might have produced false invoices, which in turn could have led to false claims. Withoutciti ng a single false claim arising froman alleg edly

false invoice, Re lator ha s not me t even a bare-bones Rule 9(b) tes t.”); United States ex rel. Butler v. Magellan Health S

erv., Inc. , 101 F.Supp.2d 1365, 1369 (M.D. Fla. 2000) (“Plaintiff

does p lead a fraudulent scheme of conduct which may

well be pr

ohibite d b y law. However, Plaintiff pleads no spec ific occu rrences of a false claim. . . .No. 02-3087 Yuhasz v. Brush Wellman, Inc. 7

[T]he absence of spe cific allega tions of fr

audulent false claims is determinative.”).

Yuhasz conced es that he “is unab le to iden

tify a specif ic claim submitted d

irectly to the Unit

ed States by a prime
con tractor

who incorporated [Brush’s] metal alloy s into the finished product s old to the government,” but argue s thathe “is entitled to arelaxed standard of pleading due to the length and complexity of [Brush’s] fraud.” Yuhas z note s that the complaint “alleg es frau

dule nt act s occurring over a period exceeding two y

ears, a nd affe cti ng virtually every alloy manufactured

by [Brush] during that

period.” As the district court observed, however, a plaintiff sho u ld not be a ble to avoid the specificity re quirements of Rule 9(b) by “relying upon the compl exity

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 pr incipally 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 plai

ntiff all eged that def

endant 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) Ch inook Army helicopt ers. ” 184 F.R .D. at 108 . Boeing filed a mo tion to dismiss, arguin g t hat “because of the breadth of the accusation

against it, [defendant] ca n only specula te as to which of the 300 . . . gears in service today are alleged to be nonconforming.” Id. at 110. The d istrict court denied Boeing’s motion and noted th at the complaint alleged that Boeing “ac ted with the kn

owledg e of fal sity

or reck less disregard for the truth with respect to every CH-47(D) helicopter it d elivered to the United States.” Id. (emphas is added). 8 Yuhasz v. Brush Wellman, Inc. No. 02-3087

Yuhasz argue s that the “facts of the instant case are strikingly similar to those before the court in Roby .” This is notcor rect . In the instant case, Yuhasz asserts in its brief only that “ virtually every c ertification” was fraudulent and that “ virtually every a

lloy certified by

[Brush] during the time specif ie d in the Compl aint was n

on-compl iant.” ( emphasis added). The langua g e of the c omplaint it self is ev en less specific, stating

only that “ certain testing that

was outsourced
accor d ing to a part

icular E AB numbe

r did not ma

tch-up to any heat number for alloy

bar stock,” that “ certain alloys may have been mismarked ,” that “Yuhasz, upon accessing the original certifications, often discover ed that t he requisite mercurious nitrate testing had not been performed,” tha t

“ approxim ately

5% of the produ ct, an d particularly smaller diameter product, failed to

meet the r

equisit e ten sile strength,” that “d

r ums were often not label ed,” and that “ many of the certifications of compliance indicated the wrong alloy .” (emphas is added). Furthermore, in Robythe plaintiff identified the sp ecifi c contract at issue (the CH47(D) helicopter contract) and stated when, where, a nd how fal s e statemen ts were made to th e gove

rnment (on FormsDD-250 presented to the governmen

t). 184 F.R.D. at 110. In the instantcase, Yuhasz provides no such information. Robythus is easily distinguishable.

In United Technologies , the go vernmen t alleg ed that Pr

att and Whitney (Pratt), a division of defenda n t United Technologies Corporation (UTC), fraudulently submitted a contract bid that “

knowing ly o verstate d” the prices to be charged by Pratt’s subcontrac

tors. 2000 WL 988238 at *1. The government further alleg ed that each bi l l, invoice, and price later presented by

Pratt to the g overnment reflected these inflations. Id. Pratt filed a motion to dismiss, arguing that the gov ernment

failed to specify which of its i nvoices
were false claims. Id. at *5. The districtcourt denied Pratt’s motion, noting that the compl aint alle ged tha t “ all of the invoices
, bills, andprices submitted by Pratt to the Air For ce were bas ed on that initial ‘inflation,’” and as a result “UTC should be able to identify the invoice s, bills, and p rices atNo. 02-3087 Yuhasz v. Brush Wellman, Inc. 9

issue.” Id. at

*8 (emphasis in original). In the instant case, however, not on

ly has Y uhas z n ot iden tified any invoices
s ubmittedby Brush to the government based on the a llege d fraud, the indefinite nature of his allegations does notprovide Brush with any way of identif yin g those invoices. Moreover, in United Technologies the plaintiff identified the document pre sent ed to the governmen

t that con

tained th e false information(Pratt’s “best and final offer”) and ident ified both the parties and the specific contract that was

entere d into based upon that f

alse in formation (a contract between the g overnment

and Unite d Techno logies t o provide the Air Force with high-performance je t engines). Id. at *1. That level of specificity

is completely absent her

e.
Fi na ll y, in Pogue , the plai

ntiff all eged that defe

ndants Wes t Paces Medical Cent er (West Paces), Diabetes Treatment Centers of America (DTCA), an d a g roup of A tlanta physiciansengag ed in

a scheme to defraud thegovernment of Me dicare and Medicaid funds. 977 F. Supp. at 1331. The defenda nts filed a moti on to dism iss, arguin g t hat th e complaint failed “to specify

‘when, wher e , 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 knowledg e should be attributed to West Paces.’” Id. at 1332. T he dis trict court denied defenda nts’ motion a nd stated

that “[a]lthough no s

pecific dates or West Paces employee s are identified, the complaint alleges that the hospital pa r ticipated in a systematic, fraudulent

scheme, spanning

the course of twelve ye ars; thus, reference to a ti me f

rame an d to ‘West Pa

ces’ g eneral ly is sufficient.” Id. at 1333. Y uhasz arg ues that in

this case , as in Pogue , the court should not require “the spec if ic dates on whichthe invoices were submitted.” However, Yuhasz fa ils to recognize that

in Pogue the lack

of speci ficity

with regard to the invoices was balanced aga inst the fact that the plaintiff identified the specific parties and contr acts at issue (between West Paces an d DTCA and

betwee n DTCA and

the Atlan ta physicians). Here, the o nly party that Yuha sz identifi es is Brush. 10 Yuhasz v. Brush Wellman, Inc. No. 02-3087

Inhis brief

s to this court, Y

uhasz also

argue s that he s hould not be required

to plead t he speci fics of information “within [Brush’s ] control.” By fa iling to state specifically that Brush’s control is exclusive, the position taken by Yuhasz on appeal differs from that taken in the complain t, which stated:

Withrespect to the alloy products produce d or processed by [Bru sh] for th e requirements of the government pursuant t o government contracts, [Brush] is in a position of superior knowledge, and possessed exclusive control
over t he means of access to information, as to the specific nature o f such re quireme nts or con tracts. (emphas is 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 re jected th is argume nt, explaining that

Yuhasz “is not entitled to a relaxed standard because theinformation he seeks is not exclusive ly in the possession of Brush.” Yuhasz , 181 F.Supp.2d at 793.

Alth ough Yuhasz now argues that he should not be required to plead information over which Brush has “construct iv e control,” nowhere in his briefs to this court does he st

ate that Brush’s cont rol is exclusive. Thus, Yuhasz apparently has
now conceded that third parties possess information concerning

the specific contracts at issue and the claims submittedfor pay

ment. As the district court c orrect ly determined, “[ c] ou rt s h av e h el d t ha t [ Ru le 9( b) ] m ay b e 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 de man ded by the trial cour t absent discovery,”

there is no general right to discovery upon filing of th e c om pl ai nt . T he ve ry purpose of Fed. R. Civ. P. 1 2(b)( 6) “is to enable defendants to challenge the legal sufficiency

of complaints without subjecting t hemselve s to d iscove ry.” Rutman W

ine Co. v. E. &

J. Gallo W

inery , 829No. 02-3087 Yuhasz v. Brush Wellman, Inc. 11

F.2d 729, 738 ( 9th Cir. 198 7). For all of the se reas ons, dismissal of Yuhasz’s FCA claim is appropriate.

IV.

The FCA prote cts employ ees w ho pursue, investigate, or otherwis e contribute to an action exposing fraud against the gover nment. Sec

tion 3730(

h) of the FCA state s: Any empl oyee who is discha

rged, demoted, suspended, thre atened, harassed, or in any other manne r discriminated

against in the terms or co ndit ions of employment

by his or her employ

er because of lawful acts done by the

employee on be

half of the employee or others in furtherance of an action under this section, including investigation for, initiation of, t estim ony for, or assistance in an action filed o r to be file d under th is section, shall be e

ntitled to a

ll re lief necessary

to make the employee w

hole.

31 U. S.C. § 373 0(h). In order to esta blish a claim for retaliatory

discharge, a

plaintiff must show: (1)he eng aged in
a pr ot ec te d a ct iv it y; (2) his employer kne w that he eng aged in the protect

ed acti vi ty; and (3) his employer discharged or otherwi se discriminated against the employ ee as a result of the protected activity. McKenzie v. BellSouth Telec om m., Inc. , 219 F.3d 508, 513-514 (6t h C ir. 2000) (

McKenzie II

). The district cou r t properly dismissed Yuhasz’s retaliator y disch arge claim, finding that Yuhasz had failed to allege that Brush had the required notice of Yuhasz’s pa rt icipation

in protected activity.

“Whenseeking legal

redress for retaliatory

discharge under the FCA, pla

intiff ha s the burd

en of ple ading f

acts whic h would demo nstrate that defendants had been put on notice that plaintiff was eithe

r taking actio n in fur therance 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 cla

ims that he

“specif ically informed and
a dvis ed [Brush] of

the unlaw ful and ill egal na ture of it s ce rtifications of complia nce” an d “speci fically

raised w it h [Bru sh], through

Feldhou se, that o th er

companies had incurred liabilities under the

False Claims Act for submission of false and fraudulent claims.” However
, t hese allegations
are insufficient to sho w th at Brush knew Yuhasz was pursuing an FCA c ase whe

n it discha

rged h im.

In Ramseyer , th e T enth Circuit dismissed a retaliatory disch arge action br

ought pu rsuant to the FCA
, noting that “th e monitoring and reporting activities described i n plaintiff’s complain

t were exactly

those acti vitie s 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 noti ce . . . that she was furthering or intending to furthe

r an FCA

ac tion rather than merely

w arning thedefendants of the consequences of their conduct .” Id. (e mp ha si s a dd ed ). Si mi la rl y, the concerns about potential liability under the FCA raised by Yuhasz in t his ca se were ent irely within the scope of his duties, and thus did not pu t Brush on notice tha t he w as en ga gi ng in pr ot ec te d a ct iv it y. The comp laint desc

ribes Yuhasz’s dutie s as follow s: [Brush] hire d Yuhasz to design and establish, and then operate as a m an ag er , a te st in g l ab or at or y for its Lora in fa ci li ty. . . . The laboratory was e stablished to conduct certain chemi cal, m echani cal and physical testi ng. Yuhasz also es tabl ished the specifications for the laboratory e quipment.

***

Yuhasz conducted and

or supervised testingprocedures fo r [ Br us h’ s] Lor ai n f

ac il it y.

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

1 Yu hasz’s reliance on McKenzie I is mispla ced

. In Mc Kenzie I , although the court found that by “ show[in g] hersupervi sors a ne wspaper article about a similar fraud being perp etrated” aga inst another com pan y, plaintiff had pl aced the empl oyer on not ice, the cour t speci fica lly

noted that the pl aint iff

’s “ acti vit ies wer e no t wit hin t he scope of h er emp loyme nt.” 123 F.3d at 9 45. In the inst ant cas e, Yuhasz’ s acti vit ies fit square ly within the sc ope of his em ploym ent. Onor about

August, 1998, Yuhasz was appointed as the [Brush] employ

ee char ged wit h submitting the required certi f ications of compliance with the technical specifications of the alloy s. By informing Brush that its certifications wereillegal and that other companies had

incurred liability under the FCA for f alse claims, Yuhasz

was simply performing

his ordinary duties as
a supervisor of laboratory

testing . B rush cannot be charged with notice on th is basis. See Robertson v. Bell Helicopter Textron, Inc. , 32 F.3d 9 48, 952 (5 th Cir. 1994 ) (employ er did

n othave noti ce wher

e plaintif f’s acti ons “wer

e consist en t with the p erforman ce of his duty”)

. 1 The mere fact that Yuhasz told Brush that

its certifications of compliance were “unlawful and illeg al” does not e stablish no tice. As t he Sixth Circuit noted in McKenzie II

, “a plaintiff

still must show that his employ

er was a ware of his prote cted ac tivity . Merely grumblingto the emp loy er about . . . r egulatory violations does not satisfy the req

uirement .” 219 F.3d at 518 (quoting United States ex rel. Yesudia n v. Howar

d Univ

. , 153 F.3d 731, 743 (D.C. Cir. 1998)).

Yuhasz argues that this interpretation of the notice requirement

“grants immunity to an e

mployer who terminates the employee most likely

to have information

relevant to a qui tam actio n .” This is n

ot the ca se. As the

court not

ed in Ramseyer , empl o yees cha rged with investigating potential fraud are not a utomatica lly preclu ded fro m brin ging a Section 3730(h) action. 90 F.3d at 1523 n . 7. In li ght of th eir 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

inorder to ov ercome t he presu mption that

they are mer ely acting inaccordancewith their employment obligations.” Id.

V.

Yuhasz argues that the district court erred in dismissing his claim f or wrongful discharge in violation of Ohio c ommon law and p ublic polic

y. I n his compl aint, Yuh asz asser ts:

It is the public policy

of Ohio that an employee shall not be dischar

ged, or otherwis e su

bjec ted to a hostile work environment, for

re fusing h

is employ

er’s dir ectives to violate ap pl icable la

ws and re gulations. That p ublic policy is manife sted in

the FCA, 31 U.S.C. § 3730(h), as well as in [Federal Acquisition Regula tions] by reason of the strict certifications of compliance that are required.

The district court dismissed thi s cl aim, concluding that because the complaint failed

to show a violation of the FCA, the complain

t also fai led to stat

e a claim

that Bru sh wrongf ully discharged

him in viola

tion of Ohi o publicpo li cy. This decision was correct.

Inorder to prevail on a wrongful dischar ge cla im in violation of public policy under Ohio law, a plaintiff must show: (1) a ‘clear publ ic policy

existed an

d was man

ifested i n a stat e o r federal constitution, statute or administrative regulation, or in the c ommon law; ’ (2) tha t ‘dis mi ssing employees

unde r circumstanc es like those involved in the plaintiff’s dismissal would jeopard ize the pub lic policy ;’ (3) ‘[t]he plaintiff’s dismissal was motivated by conduct related to the public policy;’ and (4) ‘ [t]he e mp lo ye r lacked overrid ing legitimate bu siness justification for the dismissal.’ Parry v. Mohawk Motors of Mich., Inc. , 236 F.3d 299, 311 (6th Cir. 2000) (quot ing 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

wrongf ul discha rge cl aim in violation of Ohio public po licy when the public policy wa s derived from an Ohi o statute “substantially similar to the ADA” and the ADA claim had been dism issed. Id. at 312. The court explained that

“[p]laintiff, having failed to show a v iable claim under the ADA, is necessarily precluded fro m claiming that his termination violat ed publ ic policy.” Id. Si mi la rl y, since Yuhasz has fa iled either to state an FCA claim or to identify the specif ic provision of the Federal Acquisition Regulations manifes t ing the a lleged “clear public policy,” Ohio public policy cannot se rve as a basis for his wrongful discharge a

ction.

Yuhasz concedes that “if he is unable to demonstrate a violation of

the FCA, he may not br ing a cl aim fo r disc harge inviolation o f the publ ic policy therein ,” but a

rgu es that dismissal is not appropriate because “this public policy is also ind epen dently

and more broadly

embodied in the common law of Ohio.” Under Ohio law, however , “wh en the employee’s

discharge is not action ab le under the law that establishes the ‘clear

public policy,’ the companioncommonlaw claim fo r rel ief 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

“applic able laws and

regula tions” tha t Yuhasz alleges he was di

rected to violate are the FCA and theFederal Acquisition Regulations, and the complaint fails to state a claim with respect

to either of these authoriti es, his common law public policy claim also must be dismissed.

VI.
Yuhasz request ed leave to amend h

is complai

nt 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 arg ument lacks merit. 16 Yuhasz v. Brush Wellman, Inc. No. 02-3087

The district c ourt dec lined to g rant Yuh asz leave to

amend, butit failed to specify the r easons for its decision. Pursuant to Fed. R. Civ. P. 15( a), a court sho uld free ly g

ive leav e to amend a complaint “when justice so requ ires.” However, leave t o amend ma

y be denied w here the amendme

nt 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 complain

t, this cou rt gene rally reviews the decision for an abuseof discretion. Begala v. PNC Bank, Ohio, Nat’l Ass’n , 214 F.3d 776, 783 (6th Cir. 2000). When the district cour t bases its decis ion to deny leave to amend on a legal conclusionthat amendment wo uld 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 deny

ing leave to amend, the panel should conduct a de novo review. See McKethan-Jones v. Ohio Dept. of H

ealth , 7 Fe d. Ap

px. 475 , 482, 2001 W

L 345782, at *6 ( 6th C ir. 20 01) (fi ndin g that “[t]he district court, by re fusing to grant leave to amend the or iginal complaint
. . . , must implicitly have decided that such a claim was fu tile ,” and condu cting de novo review).

Accord in g to Fe d. R. Civ. P. 15(a), “[a] party may amend the party’s plea

ding once as a matter of cou rse a t any time before a respo nsiv e plead ing i s serv ed.” The term “responsive pleading” is defined by reference to Fed. R. Civ. P. 7(a), w hich d isti nguis hes be tween plead ings and motions, and provi des an exclusive list of pleadings: a complaint (including a third pa

rty complain t), an an swer toa

complaint
or a cross-claim, and

a reply to a

counterclaim. In this case, Brush never filed an

answer . Conseque

ntly , 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 resp onse to Brush’s motion to dismiss that he “has pled all the facts that he knows.” I n light of Yuhasz’s
a dm ission, amendment would be futile. See Old R epublic I ns. 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 . .

. , thisNo. 02-3087 Yuhasz v. Brush Wellman, Inc. 17

Courtfinds tha

t lea ve to rep lead [plai

ntiff’s] . . . claims should be denied as futile.”) Becau se Yuhas z did not amend
as a matter of

right un der Rule 1 5(a) an

d becau se amendment would have been futile in any

event, the district

court’s denial of Yuhasz’s request for leave to amend was prope r.
Yuhasz also dire ctly

request s leave t o amend f rom this court. This requ

est i s procedurally

defaulted. The district court entered a final judgment dismissing the case on Decemb er 14, 2001. “Following entry of final judgment, a party may not seek l eave to a

mend thei

r compla int wi thout first m ovin g t o alter, set aside or vacate the judgme nt pursuant to either Rule 59 or Rule 60 of the Federal Rules of Ci vil Procedure.” Morse v. McWhorter , 290 F.3d 795, 79 9 (6th Cir. 20 02). Since Yuhasz never filed a Rule 59 or 60 motion follow ing the district court’s entry of judgment, he cannot now seek leave to amend.

VII.

For all of the foregoing rea sons, we affirm the judgment of the distri ct court

.