Case 3:16-cv-01107-JD Document 123 Filed 06/28/22 Page 1 of 18
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`UNITED STATES ex rel. JAHR et al.,
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`Plaintiffs,
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`v.
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`TETRA TECH EC, INC. et al.,
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`Defendants.
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`UNITED STATES ex rel. SMITH,
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`Plaintiff,
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`v.
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`TETRA TECH EC, INC. et al.,
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`Defendants.
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`Case No. 13-cv-03835-JD
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`ORDER RE MOTIONS TO DISMISS
`RELATORS’ COMPLAINTS
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`Case No. 16-cv-01106-JD
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`UNITED STATES ex rel. WADSWORTH
`et al.,
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`Case No. 16-cv-01107-JD
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`Plaintiffs,
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`v.
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`TETRA TECH EC, INC. et al.,
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`Defendants.
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`UNITED STATES ex rel. MCLAUGHLIN,
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`Case No. 14-cv-01509-JD
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`Plaintiff,
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`v.
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`SHAW ENVIRONMENTAL &
`INFRASTRUCTURE, INC. et al.,
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`Defendants.
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`Case 3:16-cv-01107-JD Document 123 Filed 06/28/22 Page 2 of 18
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`INTRODUCTION
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`These qui tam cases under the False Claims Act (FCA), 31 U.S.C. §§ 3729-3733, are part
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`of the sweeping litigation before the Court that challenges work by government contractors to
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`remediate radiation contamination in the soil at the former Hunters Point Naval Shipyard in San
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`Francisco. The Hunters Point cases are the functional equivalent of an intra-district MDL
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`proceeding, in that the Court has related multiple complex lawsuits within the District to be
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`managed much as an MDL case would be handled.
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`This order resolves motions to dismiss the relators’ complaints. Dkt. Nos. 171, 176, 178,
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`200.1 The parties’ familiarity with the record, including the Court’s many prior orders on other
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`aspects of the litigation, is assumed.
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`The rather convoluted procedural history of the FCA cases is our starting point. On
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`August 19, 2013, relators Arthur R. Jahr, III, Elbert G. Bowers, Susan V. Andrews, and Archie R.
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`Jackson (Jahr relators) filed the first FCA qui tam complaint under seal, naming as defendants
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`Tetra Tech EC, Inc., Tetra Tech, Inc., New World Environmental, Inc. dba New World
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`Technology, and Aleut World Solutions. Dkt. No. 1. On April 1, 2014, relator Kevin McLaughlin
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`filed a complaint, naming Shaw Environmental & Infrastructure, Inc. and Chicago Bridge & Iron
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`Company N.V. McLaughlin Dkt. No. 1. Relator Anthony Smith filed a complaint on March 4,
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`2016, against Tetra Tech EC, Inc., Radiological Survey & Remediation Services, LLC (RSRS),
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`the Shaw Group, Shaw Environmental and Infrastructure, Inc., and Chicago Bridge & Iron, Inc.
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`Smith Dkt. No. 1. Relators Donald K. Wadsworth and Robert McLean (Wadsworth relators) filed
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`a complaint on the same day, naming Tetra Tech EC, Inc., RSRS, and IO Environmental &
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`Infrastructure Incorporated (IO Environmental). Wadsworth Dkt. No. 1.
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`After several years of investigation, during which the complaints remained sealed and
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`inactive, the United States filed on January 14, 2019, the same complaint-in-intervention in the
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`three cases filed by the Jahr relators, Smith, and the Wadsworth relators. See Dkt. No. 28; Smith
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`1 Unless otherwise noted, all docket number references are to the ECF docket in the Jahr action,
`Case No. 13-cv-03835-JD.
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`Case 3:16-cv-01107-JD Document 123 Filed 06/28/22 Page 3 of 18
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`Dkt. No. 23; Wadsworth Dkt. No. 23. In McLaughlin, the government declined intervention, and
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`the Court unsealed the case on July 1, 2019. McLaughlin Dkt. No. 30.
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`On July 15, 2019, the United States filed a first amended complaint alleging FCA claims
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`against Tetra Tech EC, Inc. only. Dkt. No. 82. This is the operative complaint-in-intervention in
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`Jahr, Smith, and Wadsworth. On February 27, 2020, the Jahr, Smith, and Wadsworth relators
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`filed in Jahr a combined second amended complaint (CSAC), which is the operative complaint for
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`these relators. Dkt. No. 148. The allegations and claims by the Jahr relators are the same as those
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`made by the United States in the complaint-in-intervention. See id. ¶ 22. The Smith and
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`Wadsworth relators made allegations that they say were not encompassed by the United States’
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`complaint. See id. ¶¶ 23-97. On February 27, 2020, relator McLaughlin filed a third amended
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`complaint (TAC), which is his operative complaint. McLaughlin Dkt. No. 61.
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`Defendants fired a cannonade of attacks on the relators’ complaints. Defendants Tetra
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`Tech EC, Inc., Tetra Tech, Inc., IO Environmental, RSRS, Daryl DeLong, and Brian Henderson
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`jointly ask to dismiss all relators’ complaints based on various statutory bars in the False Claims
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`Act. Dkt. No. 171. The Shaw defendants (Shaw Environmental & Infrastructure, Chicago Bridge
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`& Iron Co., Aptim Corp., Aptim Federal Services, and Aptim Environmental & Infrastructure)
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`joined this motion. Dkt. No. 201. Defendants RSRS, DeLong, and Henderson ask to dismiss the
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`Jahr CSAC and the TAC in McLaughlin. Dkt. No. 176. IO Environmental filed a motion to
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`dismiss the McLaughlin TAC, and relator Wadsworth’s allegations in the Jahr CSAC. Dkt.
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`No. 178. The Shaw defendants also ask to dismiss McLaughlin’s TAC, and relator Smith’s
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`allegations in the Jahr CSAC. Dkt. No. 200.
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`DISCUSSION
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`I.
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`STATUTORY BACKGROUND
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`The Court has extensively analyzed the False Claims Act and its qui tam provisions in
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`other cases.2 See Silbersher v. Valeant Pharmaceuticals Int’l, Inc., 445 F. Supp. 3d 393, 400-02
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`2 “Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte
`sequitur, which means ‘who pursues this action on our Lord the King’s behalf as well as his
`own.’” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 768
`n.1 (2000).
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`Case 3:16-cv-01107-JD Document 123 Filed 06/28/22 Page 4 of 18
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`(N.D. Cal. 2020). “The FCA, which Congress originally enacted in 1863, is the government’s
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`‘primary litigative tool for combatting fraud’ against the federal government.” United States ex
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`rel. Kelly v. Boeing Co., 9 F.3d 743, 745 (9th Cir. 1993). The statute imposes civil liability on any
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`person who “knowingly presents, or causes to be presented, a false or fraudulent claim for
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`payment or approval” by the United States government. 31 U.S.C. § 3729(a)(1)(A). The qui tam
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`provisions of the FCA permit a private individual, as a “relator,” to bring an action alleging an
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`FCA violation “in the name of the Government.” Kelly, 9 F.3d at 745-46 (quoting 31 U.S.C.
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`§ 3730(b)(1)).
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`Since its enactment over 150 years ago, the FCA has gone through a number of significant
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`amendments. The three statutory bars at issue here -- (1) the first-to-file bar (31 U.S.C.
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`§ 3730(b)(5)); (2) the government action bar (31 U.S.C. § 3730(e)(3)); and (3) the public
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`disclosure bar (31 U.S.C. § 3730(e)(4)(A)) -- were added by the 1986 amendments, which sought
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`“to promote incentives for whistle-blowing insiders and prevent opportunistic successive
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`plaintiffs.” United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1187 (9th Cir.
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`2001); see also Silbersher, 445 F. Supp. 3d at 401 (“the 1986 amendments were intended to
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`encourage more private enforcement lawsuits,” and “[a]t the same time, Congress sought to ‘bar a
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`subset of those suits that it deemed unmeritorious or downright harmful.’”) (citations omitted;
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`emphasis in original).3 While there is no question that Congress added these bars “in an effort to
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`strike a balance between encouraging private persons to root out fraud and stifling parasitic
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`lawsuits,” courts have wrestled with the 1986 amendments because “Congress was never
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`completely clear about what kind of ‘parasitic’ suits it was attempting to avoid.” Graham County
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`Soil and Water Conservation District v. United States ex rel. Wilson, 559 U.S. 280, 295 & 296
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`n.15 (2010) (quotations and citation omitted).
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`II.
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`INTERVENTION AND THE FCA
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`Before determining how the statutory bars might apply here, there is a question of whether
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`3 The public disclosure bar was amended again in 2010. See Silbersher, 445 F. Supp. 3d at 401-
`02. These cases were filed after those amendments, and there is no suggestion by any party that
`the pre-2010 version of the statute applies.
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`Case 3:16-cv-01107-JD Document 123 Filed 06/28/22 Page 5 of 18
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`the relators in Jahr, Smith, and Wadsworth can proceed at all under the FCA. Defendants contend
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`that “[o]nce the United States intervenes in an FCA case, nothing in the Act permits a relator to
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`continue separately prosecuting an FCA claim in that same case.” Dkt. No. 171 at 16. In effect,
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`defendants say that once the government takes the field, all other players are excluded.
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`The point is not well taken. Defendants do not cite an express provision of the FCA for
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`their position, but suggest that it emanates as an abstract but perceptible principle from two
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`indirect sources: (1) Section 3730(b)(4)(A), which states that if the United States elects to
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`intervene, it “shall proceed with the action, in which case the action shall be conducted by the
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`Government”; and (2) Section 3730(c)(1), which states that “[i]f the Government proceeds with
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`the action, it shall have the primary responsibility for prosecuting the action, and shall not be
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`bound by an act of the person bringing the action.” See Dkt. No. 171 at 16.
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`These portions of the FCA do not carry the load that defendants posit. Leaving aside the
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`question of whether divining emanations is a sound approach to statutory construction, which is
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`doubtful, nothing in the text of the provisions necessarily excludes a relator from a case after
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`government intervention. The government may have “primary” responsibility for the litigation,
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`but that does not mean “exclusive” responsibility. Defendants also overlook the fact that another
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`provision in the FCA expressly contemplates that relators may litigate FCA claims in intervened
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`cases. Section 3730(c)(1) plainly states that in cases where the government has elected to
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`“proceed[] with the action,” the “person bringing the action . . . shall have the right to continue as
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`a party to the action,” subject to certain limitations, such as the government’s right to seek an
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`order “limiting the participation by the [relator] in the litigation” upon a “showing . . . that
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`unrestricted participation . . . by the person initiating the action would interfere with or unduly
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`delay the Government’s prosecution of the case, or would be repetitious, irrelevant, or for
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`purposes of harassment.” 31 U.S.C. § 3730(c)(2)(C).
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`Overall, the plain language of the FCA closes the door to defendants’ theory. For this
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`reason, the Court concludes, as many other courts have concluded, that the FCA does not
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`automatically bar relators from the litigation after the government intervenes. See, e.g., United
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`States ex rel. Landis v. Tailwind Sports Corp., 51 F. Supp. 3d 9, 28 (D.D.C. 2014) (“Nothing in
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`Case 3:16-cv-01107-JD Document 123 Filed 06/28/22 Page 6 of 18
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`the text of section 3730 indicates that a relator no longer has standing following intervention by
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`the Attorney General.”); United States ex rel. Dresser v. Qualium Corp., No. 5:12-cv-01745-BLF,
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`2016 WL 3880763, at *10 (N.D. Cal. Jul. 18, 2016) (“Because the United States has partially
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`intervened, its Amended Complaint is the operative complaint for the intervened claims,” and
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`“[t]he allegations in the Second Amended Complaint are operative only as to the claims that
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`Dresser is pursuing on her own”). The Supreme Court has also said as much in Rockwell
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`International Corp. v. United States, 549 U.S. 457 (2007). The United States intervened, after
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`which the “Government and [relator] filed a joint amended complaint,” and “both [the relator’s]
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`counsel and the Government’s counsel” presented closing arguments to the jury at trial. Id. at
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`464-66. It also bears notice that the government here filed a statement expressing the view that
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`“relators have the right to litigate those causes of action as to which the United States did not
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`intervene.” Dkt. No. 245 at 10.
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`Consequently, dismissal is denied on the ground that “the Jahr, Smith, and Wadsworth
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`Relators are required to cede prosecution of the entire action to the United States.” Dkt. No. 171
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`at 16. Because this conclusion does not involve a controlling question of law over which there is a
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`substantial ground for a difference of judicial opinion, and an immediate appeal would unduly
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`delay the fair and efficient management of this intra-district MDL, defendants’ request to certify
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`an interlocutory appeal is denied. See 28 U.S.C. § 1292(b); James v. Price Stern Sloan, Inc., 283
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`F.3d 1064, 1067 n.6 (9th Cir. 2002) (“Section 1292(b) is a departure from the normal rule that
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`only final judgments are appealable, and therefore must be construed narrowly.”).
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`III. THE COURT’S JUNE 14, 2019 ORDER
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`Defendants’ suggestion that the Jahr CSAC should be dismissed because it “defied this
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`Court’s June 14, 2019 order” is also denied. Dkt. No. 171 at 4. The Court’s minute entry stated
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`that “[t]he relators’ amended complaint should focus on those allegations that are not related to
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`Hunters Point as to which the relators wish to proceed. For the allegations related to Hunters
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`Point, the United States will have the primary responsibility for prosecuting the action. 31 U.S.C.
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`§ 3730(c)(1).” Dkt. No. 75 at 2. The Court did not “order” the relators “to drop” any allegations
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`Case 3:16-cv-01107-JD Document 123 Filed 06/28/22 Page 7 of 18
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`relating to Hunters Point, Dkt. No. 171 at 4, and a request for dismissal with prejudice on the basis
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`of this order is an overreach by defendants.
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`IV. GOVERNMENT ACTION BAR
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`The FCA states: “In no event may a person bring [a qui tam action under 31 U.S.C.
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`§ 3730(b)] which is based upon allegations or transactions which are the subject of a civil suit or
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`an administrative civil money penalty proceeding in which the Government is already a party.” 31
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`U.S.C. § 3730(e)(3). Defendants say this “government action bar” forecloses the “claims
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`regarding Hunters Point in the Jahr Combined Complaint,” and relator McLaughlin’s “claims
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`against defendants for FCA violations at Hunters Point,” because they are “based on the same
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`allegations and transactions at issue in the U.S. Complaint.” Dkt. No. 171 at 4-7.
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`Case law on Section 3730(e)(3) is sparse, and the issue appears to be rarely disputed. The
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`First Circuit has concluded that Section 3730(e)(3) is “ambiguous” and should be applied “with
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`caution.” United States ex rel. S. Prawer and Co. v. Fleet Bank of Maine, 24 F.3d 320, 322, 328
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`(1st Cir. 1994). Defendants rely almost entirely on United States ex rel. Bennett v. Biotronik, Inc.,
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`876 F.3d 1011 (9th Cir. 2017), see Dkt. No. 171 at 4-7, which is largely irrelevant, as will be
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`shown shortly. Most helpful is our circuit’s observation in United States ex rel. Kelly v. Boeing
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`Co., 9 F.3d 743, 746 (9th Cir. 1993), which construed Section 3730(e)(3) to mean that, if “the
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`government files an action to enforce the FCA, a would-be relator may not later bring any action
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`based on the same underlying facts.” That was the same scenario presented by the handful of
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`circuit cases that have addressed the bar, including Biotronik. See Biotronik, 876 F.3d at 1014-15
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`(considering applicability of the government action bar to a qui tam complaint filed by relator
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`Bennett in October 2014, following the United States’ May 2014 intervention in relator Sant’s
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`earlier-filed case); see also Costner v. URS Consultants, Inc., 153 F.3d 667, 672-73, 676 (8th Cir.
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`1998) (considering potential applicability of bar where relators filed qui tam action following
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`“previous suits and administrative proceedings in which the government has participated”); S.
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`Prawer and Co., 24 F.3d at 323-24 (concluding government action bar did not apply; qui tam
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`action at issue was filed in June 1993, following Federal Deposit Insurance Corporation’s
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`commencement of an earlier action in November 1992). These decisions indicate that Section
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`3730(e)(3) operates to bar copycat lawsuits filed by relators after the government acts on a claim.
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`That is not the circumstance here. The Jahr, McLaughlin, Smith, and Wadsworth relators
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`filed their qui tam complaints between August 2013 and March 2016. The United States did not
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`become a party to any of these actions until January 2019. The relator actions pre-dated the claims
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`asserted by the United States by years, and appear to have been the catalysts that motivated the
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`government to act at all. Consequently, it cannot be said that the relators brought a claim “based
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`upon allegations or transactions which are the subject of a civil suit . . . in which the Government
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`is already a party.” 31 U.S.C. § 3730(e)(3). Defendants’ view of the government action bar also
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`suffers from relying on the same untenable theory about the preclusive effect of government
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`intervention that the Court has rejected. See, e.g., Dkt. No. 171 at 6 (relators cannot go forward
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`with their Hunters Point claims because the United States has already “intervened as to some, but
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`not all, of the allegations at Hunters Point”). Dismissal under Section 3730(e)(3) is denied.
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`V.
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`FIRST-TO-FILE BAR
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`The FCA states: “When a person brings an action under this subsection, no person other
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`than the Government may intervene or bring a related action based on the facts underlying the
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`pending action.” 31 U.S.C. § 3730(b)(5). Defendants cite this “first-to-file bar” as another
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`ostensible ground of dismissal. Dkt. No. 171 at 7-12.
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`Our circuit discussed the first-to-file question in United States ex rel. Lujan v. Hughes
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`Aircraft Co., 243 F.3d 1181 (9th Cir. 2001), and in United States ex rel. Hartpence v. Kinetic
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`Concepts, Inc., 792 F.3d 1121 (9th Cir. 2015) (en banc). In Lujan, the circuit held that “Section
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`3730(b)(5)’s plain language unambiguously establishes a first-to-file bar, preventing successive
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`plaintiffs from bringing related actions based on the same underlying facts.” 243 F.3d at 1187.
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`That a case might benefit the U.S. Treasury is no exception to the bar. Id. “The first-filed claim
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`provides the government notice of the essential facts of an alleged fraud, while the first-to-file bar
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`stops repetitive claims.” Id. The bar “precludes a subsequent relator’s claim that alleges the
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`defendant engaged in the same type of wrongdoing as that claimed in a prior action even if the
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`allegations cover a different time period or location within a company”; it applies to “later-filed
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`Case 3:16-cv-01107-JD Document 123 Filed 06/28/22 Page 9 of 18
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`actions alleging the same material elements of fraud described in an earlier suit, regardless of
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`whether the allegations incorporate somewhat different details.” Id. at 1188-89.
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`The circuit court, sitting en banc, subsequently determined in Hartpence that “related but
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`distinct fraud claims” are not barred by the first-to-file bar. 792 F.3d at 1131. The decision
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`underscored that the “two alleged frauds are materially different: the KX fraud allegations are
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`based on government payment for devices which were used, but unnecessary for treatment, while
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`the DWOs fraud allegations are based on the government paying for devices that were never used
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`at all. The alleged frauds, in short, exist completely independent of one another.” Id. Because
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`“Godecke’s second and third claims [we]re based on different material facts than the claims
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`contained in Hartpence’s earlier-filed complaint,” they were “not precluded by the first-to-file
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`bar.” Id. at 1132.
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`The question here is whether the claims in the relators’ actions are similar enough to
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`earlier-filed claims to be barred under Lujan, or distinct enough to go forward under Hartpence.
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`For the answer, the Court will use the relators’ allegations as presently stated, see Rockwell Int’l
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`Corp. v. United States, 549 U.S. 457, 473 (2007),4 to determine if they are precluded because the
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`government was previously notified “of the essential facts of [the] alleged fraud” by an earlier-
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`filed complaint. Lujan, 243 F.3d at 1188.
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`A.
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`Relator Smith’s Claims
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`Defendants jointly say that relator Smith’s claims are barred because they are “premised on
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`the same alleged material elements of fraud underlying the qui tam complaint in Jahr, which was
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`filed two and a half years before Smith filed his qui tam complaint.” Dkt. No. 171 at 8 (citing
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`Jahr Dkt. No. 1). This argument calls for a comparison of the pertinent allegations in the original
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`Jahr complaint to Smith’s claims in the Jahr CSAC to see if they essentially copied the original.
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`4 In Rockwell, the Supreme Court asked the question, “Which of the relator’s allegations are the
`relevant ones?” in the context of the public disclosure bar. 549 U.S. at 473 (emphasis in original).
`But the Rockwell court’s reasoning for looking at the allegations “as amended” is equally
`applicable here. See id. This is so even though the first-to-file bar speaks of an “action” rather
`than of “allegations” as in the public disclosure bar. See Hartpence, 792 F.3d at 1131-32
`(applying the first-to-file bar on a claim-by-claim basis). In any event, it makes little practical
`sense to ask whether allegations that have now been superseded by amendment might have been
`subject to preclusion under the first-to-file bar.
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`Case 3:16-cv-01107-JD Document 123 Filed 06/28/22 Page 10 of 18
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`Defendants focus on (1) paragraphs 32 and 33 of the Jahr original complaint as alleging “that
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`TtEC knowingly submitted false soil samples”; (2) paragraphs 47, 48, and 51 as alleging “that
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`TtEC managers ordered fraudulent soil sampling”; and (3) paragraph 55 as alleging “that TtEC
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`committed fraud in operating the portal monitor at Hunters Point.” Dkt. No. 171 at 9 & nn.17-19.
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`Paragraphs 32 and 33 are much too general to preclude Smith’s allegations about soil
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`sampling in the Jahr CSAC. Paragraph 33 of the Jahr original complaint says that “[d]efendant
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`Tetra Tech EC, Inc. certified and implied certification [sic] that all soils and materials processed at
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`Hunters Point were processed, evaluated, and correctly designated as having met the Remediation
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`Goals, or had failed the Remediation Goals (RG) imposed by the contract with the United States
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`Navy contract, rules, regulations, and protocols.” Dkt. No. 1 ¶ 33. There are no details about the
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`“how” of the fraud, or any specifics about the allegedly false soil sampling. Such broad and
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`nonspecific allegations would not have provided the government with notice of the material facts
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`of the fraud alleged by Smith in the Jahr CSAC, see Lujan, 243 F.3d at 1187, which presents far
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`more detailed statements like, “Radiation Control Technicians were ordered by their Tetra Tech
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`EC supervisors to appear to take samples from spray painted marked sample spots, but to actually
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`take samples from areas in the vicinity of the marked spots within the survey unit, usually within
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`25 feet or so.” Dkt. No. 148 ¶ 37.
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`Paragraphs 47, 48, and 51 of the Jahr original complaint have a heavy focus on Jane
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`Taylor and Marie Winder, who are alleged to have been lacking in qualifications, among other
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`facts. See, e.g., Dkt. No. 1 ¶ 13 (“Jane Taylor was hired by New World Environmental, Inc. to
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`perform nuclear radiation RCT safety, remediation and oversight work for Tetra Tech on the
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`United States Navy remediation project at Hunters Point Naval Shipyard despite [New World]
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`being advised of [her] lack of qualifications”). Paragraph 51 alleged that “[s]upervisors and
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`management of Tetra Tech EC, Inc. observed the failures of Jane Taylor, Marie Winder and the
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`non-RTC laborers they supervised to test and sample the Survey Unit soil according to the terms
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`and conditions required by the United States Navy, and were informed of the failures of Jane
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`Taylor, Marie Winder and the non-RTC laborers they supervised. Supervisors and management of
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`Tetra Tech EC, Inc. did not intercede and compel proper surveys and sampling of Survey Unit
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`Case 3:16-cv-01107-JD Document 123 Filed 06/28/22 Page 11 of 18
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`soils by Jane Taylor and Marie Winder. . . . The failure of supervisors and management of Tetra
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`Tech EC, Inc. to intercede and enforce proper surveys and sampling of Survey Unit soil was due
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`in part to the protected status of Jane Taylor due to her sexual relationship with Tetra Tech EC,
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`Inc. Construction Superintendent, Dennis McWade.” Dkt. No. 1 ¶ 51.
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`These allegations, and others of similar specificity, would plausibly have provided the
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`government with notice of the material facts of similar claims by Smith about fraudulent soil
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`sampling and surveying at Hunters Point with Jane Taylor’s involvement. Paragraph 27 of the
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`Jahr CSAC alleges, for example, that “Tetra Tech EC management . . . pressured New World
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`Environment General Manager Mike Wilson to have the conveyer belt system alarm less
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`frequently to save costs. Mike Wilson pressured his brother, Gary Wilson, and Jane Taylor, an HP
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`who was in a sexual relationship with Gary Wilson at that time, to take steps so the conveyer belt
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`system did not alarm properly in violation of the contractual terms with the Navy. . . . Gary
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`Wilson and Jane Taylor decreased the sensitivity and then later in late 2005 and early 2006 turned
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`off the PCB Hot Spot alarm.” These allegations are dismissed under the first-to-file bar.
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`Paragraph 55 of the Jahr original complaint alleged that in December 2010, “[t]he portal
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`monitor was shut down and packed away,” and two tankfuls of “chemical and liquid wastes from a
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`Radiologically Controlled Area” were permitted out of Hunter Point without being “subjected to
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`portal monitor screening, nor screening upon leaving the Hunters Point Shipyard by radiation
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`remediation RCT specialists.” Dkt. No. 1 ¶ 55. Smith’s claims in the Jahr CSAC similarly allege
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`that radioactive waste was improperly removed from Hunters Point via manipulation of the portal
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`monitor. See Dkt. No. 148 ¶ 30 (“Tetra Tech EC also took steps to obtain false portal monitor
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`clearance of the PCB Hot Spot soil. Tetra Tech EC had Hubbard and Joe Lavelle harass HPs to
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`give clearance to trucks processed through the portal monitor. Tetra Tech also falsely shut down
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`the portal monitor under the guise of needs for repair when PCB Hot Spot soil shipments were
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`planned to go through the portal monitor.”); ¶ 47 (“Pipe that was falsely given clearance as non-
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`radioactive waste was loaded into large tractor trailers. At times, when a large number of trucks of
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`falsely scanned and cleared pipes and debris were to be shipped off Hunters Point, TTEC would
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`Case 3:16-cv-01107-JD Document 123 Filed 06/28/22 Page 12 of 18
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`not permit the portal monitor to operate claiming it was not working properly”). These allegations
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`are also dismissed.
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`Relator Smith’s claims are not barred simply because other relators had alleged earlier than
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`Smith “that the Tetra Tech Defendants violated the FCA at Hunters Point.” Dkt. No. 171 at 9.
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`That is much too nondescript to have provided the government with notice of the material facts of
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`the specific frauds alleged by Smith.5 Defendants did not identify any other portions of the Jahr
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`original complaint or any other complaint, and so the Court declines to dismiss Smith’s other
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`claims under the first-to-file bar at this time.
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`B. Wadsworth Relators’ Claims
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`For the Wadsworth relators’ claims, defendants have pointed to paragraph 55 of the Jahr
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`original complaint as alleging that “vehicles and loads were not properly scanned at the portal
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`monitor.” Dkt. No. 171 at 9. The Wadsworth relators do not make any allegations about the
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`portal monitor in the Jahr CSAC, see Dkt. No. 148, so there is no preclusion on this basis.
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`Defendants also pointed to paragraph 44 of the Jahr original complaint as making
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`“allegations concerning IO Environmental.” Dkt. No. 171 at 9. The paragraph alleged that IO
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`Environmental improperly hired Thorpe Miller, who was the son of a Navy RASO Radiological
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`Site Manager, as well as his wife, Karisa Miller, on the basis of “nepotis[m]” and “without a
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`competitive hiring process.” Dkt. No. 1 ¶ 44. The Wadsworth relators’ claims in the Jahr CSAC
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`contain the allegation that “Thorpe Miller knew that he did not have the education, training, skills,
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`and experience . . . and that he was hired into the position in large part due to the request of his
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`mother,” and that “Karisa Miller . . . was offered the position due to the involvement of TTEC
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`General Manager Dougherty due to her in-law relationship with RASO manager Laurie Lowman.”
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`Dkt. No. 148 ¶ 62. These claims are repetitive of the earlier-filed Jahr claims, and are dismissed.
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`Defendants’ suggestion that “[b]ecause the Court deemed Wadsworth related to Jahr, as a
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`matter of law, the later-filed Wadsworth case is barred,” Dkt. No. 171 at 10, is not well taken.
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`5 The same is true of the Shaw defendants’ argument that “McLaughlin precludes Smith under the
`first-to-file bar” because “both Relator Smith and Relator McLaughlin allege[d] supposed fraud at
`Treasure Island, and Relator McLaughlin filed his complaint first.” Dkt. No. 201 at 5.
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`Case 3:16-cv-01107-JD Document 123 Filed 06/28/22 Page 13 of 18
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`Cases are related under our District’s Civil Local Rule 3-12(a) when: “(1) The actions concern
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`substantially the same parties, property, transaction, or event; and (2) It appears likely that there
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`will be an unduly burdensome duplication of labor and expense or conflicting results if the cases
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`are conducted before different Judges.” This is not at all the inquiry of “relatedness” for purposes
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`of the first-to-file bar. See Lujan, 243 F.3d at 1189 (bar applies to “later-filed actions alleging the
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`same material