United States Ex Rel. Yesudian v. Howard University

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 1997 Decided September 1, 1998

No. 96-7225

United States of America, ex rel. Daniel Yesudian,

Appellant/Cross-Appellee

v.

Howard University, et al.,

Appellees/Cross-

Appellants

Consolidated with

No. 96-7226

Appeals from the United States District Court

for the District of Columbia

(No. 93cv01791)

James L. Kestell argued the cause and filed the briefs for
appellant/cross-appellee.

Timothy F. McCormack argued the cause and filed the
briefs for appellees/cross-appellants. Charles S. Fax entered
an appearance.

Before: Wald, Henderson and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Howard University terminated
Dr. Daniel Yesudian from his job in the University's Purchas-
ing Department on May 1, 1992. The University said he was
terminated for insubordination; Yesudian claimed he was
discharged in retaliation for whistleblowing activities protect-
ed by the False Claims Act, 31 U.S.C. ss 3729-3733. Yesudi-
an sued the University and three of his supervisors, alleging
submission of false claims in violation of the False Claims Act,
retaliation for reporting the alleged false claims, and breach
of contract. The jury returned verdicts for Yesudian on his
retaliation claim against one of his supervisors, Joseph Par-
ker, and on his breach of contract claim against the Universi-
ty, and awarded $180,000 in back pay. It found against
Yesudian on his allegation that false claims were submitted in
violation of the Act, and on his allegations that the University
and the supervisors other than Parker had retaliated against
him.

After the verdicts, the district court granted Parker's mo-
tion under Fed. R. Civ. P. 50 for judgment as a matter of law
against Yesudian on the retaliation claim, but denied the
University's Rule 50 motion on the breach of contract claim.
See United States ex rel. Yesudian v. Howard Univ., 946
F. Supp. 31 (D.D.C. 1996). Both Yesudian and the defen-
dants appealed. We conclude there was sufficient evidence to
support the jury's verdict on both claims. We therefore
reverse the grant of judgment as a matter of law on the
retaliation claim and affirm the denial of judgment as a
matter of law on the contract claim.

I

Yesudian began working at Howard in 1971. After several
promotions, he was transferred to the Purchasing Depart-

ment in 1983. From 1984 to 1992, Yesudian discovered and
repeatedly complained to upper-level University officials
about financial improprieties allegedly committed by the
Purchasing Department and its director, Joseph Parker.1
Specifically, Yesudian charged that Parker falsified time and
attendance records for his administrative assistant, provided
inside information to favored vendors to aid them in the
bidding process, accepted bribes from vendors, permitted
payments to vendors who did not provide services to the
University, and took University property home.

Yesudian brought these problems to the attention of the
University's Director of Accounting in 1984 and to the Execu-
tive Assistant to the Vice President for Business and Fiscal
Affairs in 1986. The latter told him: "You know, Dan, you
don't want to be the whistle-blower." App. 57. Beginning in
1987, Yesudian attempted to bring his complaints to Melvin
W. Jones, the University's Vice President for Business and
Fiscal Affairs. Yesudian finally met with Jones in the sum-
mer of 1989 to discuss his complaints. See Def.'s Ex. 44. On
May 11, 1990, Yesudian sent Jones a memorandum detailing
his charges, see id., and on May 16, Jones wrote back, noting
that Yesudian had "made a number of charges against the
Purchasing Department which are of serious concern to me."
Def.'s Ex. 43. Jones specifically listed Yesudian's allegations
of "cooperating in the cheating of the University with the
Time and Attendance Records," "[p]roviding 'Inside Informa-
tion' to selected vendors," "[a]ccepting bribes from vendors,"
and "[t]aking University property home." Id.; see Trial Tr.
234-35. Meanwhile, on several occasions from 1987 through
1990, Parker and his deputy, George Varghese, took disciplin-
ary action against Yesudian assertedly for misconduct and
various forms of insubordination.

In 1991, Yesudian sent a letter detailing his concerns to the
President of the University, whose executive assistant re-

__________
1 In reviewing a district court's decision on a motion for judg-
ment as a matter of law, we view the evidence in the light most
favorable to the nonmoving party--here, Yesudian. See Smith v.
Washington Sheraton Corp., 135 F.3d 779, 782 (D.C. Cir. 1998).

ferred him to the new Vice President for Business and Fiscal
Affairs, James Fletcher II. In March 1992, Fletcher met
with Yesudian. Yesudian told him of his findings, including
false entries on the attendance records of Parker's assistant
and payments to vendors who did not provide services to the
University. Yesudian also gave Fletcher a packet of docu-
ments he said supported the claims. See App. 74-75.
Fletcher told Yesudian he was interested in the allegations
and would investigate. On April 16, 1992, Parker called
Yesudian into his office and, with Varghese present, read him
verbatim the allegations Yesudian had made against Parker
in the documents Yesudian had given Fletcher. Parker
asked if Yesudian had made the allegations to Fletcher and,
when Yesudian admitted that he had, Parker became visibly
upset. Varghese then warned Yesudian, "[I]f you do this
kind of stuff, you're not going to be in this department."
App. 80. After the meeting, Yesudian sent Fletcher a letter
reporting that Parker and Varghese had "threatened [him]
with severe actions for inaccurately representing the efficient
operation of the department to [Fletcher]," App. 82-83, and
that he had "been told that somehow [he] would be 'gotten rid
of' because [he] brought to [Fletcher's] attention some of the
corrupt practices ... extant in the department." App. 220.

The day after the confrontation between Parker, Varghese,
and Yesudian, Parker told Yesudian to obtain from the Gen-
eral Services Administration (GSA) a copy of a contract
between the University and a fuel vendor. On the next
business day, Yesudian spoke with his contact at GSA, who
said she would send the contract over with two other Howard
employees who were scheduled to attend a fuel users' meet-
ing at GSA the next morning, April 21. When Yesudian told
Varghese of these arrangements, Varghese insisted that Ye-
sudian personally go that day to pick up the contract. Yesu-
dian explained that he was without a car and had no way to
get to GSA. On the morning of April 21, Varghese gave
Yesudian a letter directing him to attend the fuel users'
meeting that day. Yesudian refused to open the letter and
told Varghese he felt sick. Yesudian requested permission to
go to the employee health clinic, which Varghese refused.

Parker, however, authorized Yesudian to go to the clinic on
the understanding that Yesudian would attend the GSA meet-
ing if cleared to return to work. The clinic found that
Yesudian had high blood pressure and advised him to go
home. Although Parker approved Yesudian's leaving for the
rest of the day, Yesudian remained at work.

On April 23, 1992, Varghese accused Yesudian of insubordi-
nation for not attending the fuel users' meeting and for
refusing to open the letter. Varghese recommended three
months' probation and threatened termination for future in-
fractions. Parker, however, recommended that Yesudian be
fired, and Vice President Fletcher approved Yesudian's termi-
nation effective May 1. Yesudian appealed through the Uni-
versity's grievance procedure. Although the hearing officer
found Yesudian had failed to meet his burden of showing he
was terminated in retaliation for his complaints, she found the
charges of insubordination unsupported and Yesudian's termi-
nation "unfair." App. 217. She did not, however, recommend
reinstatement because of Yesudian's "lack of respect for the
abilities and commitment of [his superiors]." App. 218. In-
stead, she recommended that Howard remove the termination
from Yesudian's record if he agreed to accept an "early out"
or retirement. Yesudian refused the offer.

II

We review de novo a district court's ruling on a motion for
judgment as a matter of law. See Smith v. Washington
Corp., 135 F.3d 779, 782 (D.C. Cir. 1998). Entry of such a
judgment is warranted only if "no reasonable juror could
reach the verdict rendered in th[e] case." Anderson v. Group
Hospitalization, Inc., 820 F.2d 465, 473 (D.C. Cir. 1987). "In
making that determination, a court may not assess the credi-
bility of witnesses or weigh the evidence." Hayman v.
National Academy of Sciences, 23 F.3d 535, 537 (D.C. Cir.
1994). Moreover, "[b]ecause a judgment as a matter of law
intrudes upon the rightful province of the jury, it is highly
disfavored." Boodoo v. Cary, 21 F.3d 1157, 1161 (D.C. Cir.
1994).

III

The district court granted Parker judgment as a matter of
law on Yesudian's claim of retaliatory discharge under the
False Claims Act.2 The Act imposes a civil penalty and
treble damages upon any person who, among other things,
"knowingly presents, or causes to be presented, to an officer
or employee of the United States Government ... a false or
fraudulent claim for payment or approval." 31 U.S.C.
s 3729(a). Section 3730(b) provides that "private persons,"
commonly known as "relators," may bring a civil action for a
violation of s 3729 "in the name of the Government." 31
U.S.C. s 3730(b). The statute permits the government to
take over the action and conduct it itself, or to decline to take
over the action, in which case the relator has the right to
conduct it. See id. The relator is entitled to different
percentages of any recovery from a successful False Claims
Act suit, depending upon whether the relator or the govern-
ment conducts the action. See 31 U.S.C. s 3730(d)(1)-(2).

Congress passed the precursor of the present statute, also
referred to as the "Lincoln Law," to combat widespread fraud
in defense contracts during the Civil War. See S. Rep. No.
99-345, at 8 (1986), reprinted in 1986 U.S.C.C.A.N. 5266,
5273; Anna M.W. Burke, Qui Tam: Blowing the Whistle for
Uncle Sam, 21 Nova L. Rev. 869, 872 (1997). The provision
for private actions, commonly known as qui tam suits,3 was
included to augment the government's own limited enforce-

__________
2 We note that the parties' fierce contest over this claim may be
much ado about nothing. The court below entered judgment for
Yesudian in the amount of $180,000 on his contract claim, which we
uphold infra. In the course of granting judgment against Yesudian
on the retaliation claim, the court suggested that Yesudian would
not have been entitled to an additional recovery on that claim in any
event. See Yesudian, 946 F. Supp. at 36 n.8.

3 "Qui tam" is an abbreviation of the phrase "qui tam pro
domino rege quam pro si ipso in hac parte sequitur," which means
"[w]ho sues on behalf of the King as well as for himself." Black's
Law Dictionary 1251 (6th ed. 1990).

ment resources. See S. Rep. No. 99-345, at 7, 23, 26, reprint-
ed in 1986 U.S.C.C.A.N. at 5272, 5288, 5291.

In 1986, in response to concern that employees who ex-
posed false claims were being punished by their companies,
Congress amended the False Claims Act "to provide for
'whistleblower' protection." Id. at 34, reprinted in 1986
U.S.C.C.A.N. at 5299. The new subsection, s 3730(h), states:

Any employee who is discharged, demoted, suspended,
threatened, harassed, or in any other manner discrimi-
nated against in the terms and conditions of employment
by his or her employer because of lawful acts done by the
employee ... in furtherance of an action under this
section, including investigation for, initiation of, testimo-
ny 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. s 3730(h). The purpose of the provision, the
Senate Judiciary Committee said, was to "assure those who
may be considering exposing fraud that they are legally
protected from retaliatory acts." S. Rep. No. 99-345, at 34,
reprinted in 1986 U.S.C.C.A.N. at 5299.

As s 3730(h) suggests, to make out a claim of retaliation,
an employee must demonstrate that: (1) he engaged in
protected activity, that is, "acts done ... in furtherance of an
action under this section"; and (2) he was discriminated
against "because of" that activity. To establish the second
element, the employee must in turn make two further show-
ings. The employee must show that: (a) "the employer had
knowledge the employee was engaged in protected activity";
and (b) "the retaliation was motivated, at least in part, by the
employee's engaging in [that] protected activity." S. Rep. No.
99-345, at 35, reprinted in 1986 U.S.C.C.A.N. at 5300. See
generally United States ex rel. McKenzie v. BellSouth Tele-
communications, Inc., 123 F.3d 935, 944 (6th Cir. 1997);
United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1269
(9th Cir. 1996).4

__________
4 According to the Senate Report, "[o]nce these elements have
been satisfied, the burden of proof shifts to the employer to prove

The district court concluded there was no evidence from
which the jury could reasonably have found the first element
of a retaliation claim--that Yesudian had engaged in protect-
ed conduct--because "he never initiated a government inves-
tigation or a private qui tam suit" during the time he was
making his complaints. Yesudian, 946 F. Supp. at 33. The
court also concluded there was no evidence to support the
first part of the second element--that the defendant knew
Yesudian was engaged in protected activity--because Yesudi-
an "never suggested to defendant that he intended to utilize
his allegations in furtherance of a False Claims Act action"
and "gave no suggestion that he was going to report the
alleged improprieties to government officials." Id. Defen-
dant Parker asserts an additional reason in support of the
court's conclusion on the first element: because there was no
evidence that a false claim ever was presented to the U.S.
Government, Parker contends, Yesudian cannot establish that
he was engaged in protected conduct.

We consider each of these arguments below, beginning with
Parker's additional argument, which he raised in the district
court but upon which the court did not rely. See Dimond v.
District of Columbia, 792 F.2d 179, 187 (D.C. Cir. 1986) ("An
appellate court ... can consider any argument made on
appeal that supports the judgment of the District Court.").
We conclude that all of these arguments misapprehend the
requirements of a retaliation claim, and further conclude that
there was sufficient evidence for a reasonable jury to have
found those elements satisfied in this case.

A

Parker contends that Yesudian cannot establish he was
engaged in protected conduct because a viable qui tam action
requires that the alleged false claims be presented to the U.S.
Government, and not just to a grantee of federal funds like
Howard University. As there was no evidence that any false

__________
affirmatively that the same decision would have been made even if
the employee had not engaged in protected activity." Id.; see also
Mikes v. Strauss, 889 F. Supp. 746, 754 (S.D.N.Y. 1995).

claim was transmitted by Howard to the United States,
Parker contends there was no viable False Claims Act case
here. Yesudian, on the other hand, argues that a False
Claims case can be made out by proof of the submission of
false claims to a grantee alone. Although we consider this
dispute about the requirements of a successful qui tam action
below, we conclude that we need not ultimately resolve it in
order to decide the retaliation case before us.

As Parker points out, s 3729(a)(1) requires that the alleged
false claim be "present[ed] or cause[d] to be presented, to an
officer or employee of the United States Government." Prior
to 1986, some courts did read this to exclude claims presented
only to grantees of federal funds from coverage under the
Act. See S. Rep. No. 99-345, at 21, reprinted in 1986
U.S.C.C.A.N. at 5286 (citing, inter alia, United States ex rel.
Salzman v. Salant & Salant, Inc., 41 F. Supp. 196 (S.D.N.Y.
1938) (claim against the Red Cross)). But Congress amended
the Act in 1986 by inserting--in addition to the whistleblower
provision noted above--a new definition of "claim":

For purposes of this section, "claim" includes any request
or demand ... for money or property which is made to a
contractor, grantee, or other recipient if the United
States Government provides any portion of the money or
property which is requested or demanded, or if the
Government will reimburse such contractor, grantee, or
other recipient for any portion of the money or property
which is requested or demanded.

31 U.S.C. s 3729(c).

The purpose of this new definition, both the Senate and
House Reports state, was to "clarif[y] that the statute per-
mits the Government to sue under the False Claims Act for
frauds perpetrated on Federal grantees, including States and
other recipients of federal funds." S. Rep. No. 99-345, at 21,
reprinted in 1986 U.S.C.C.A.N. at 5286; see also id. at 10,
reprinted in 1986 U.S.C.C.A.N. at 5275; H.R. Rep. No. 99-
660, at 21 (1986). The Senate Judiciary Committee indicated
that the new subsection was inserted in response to the
earlier court holdings that "a fraud against the grantee does

not constitute a fraud against the Government of the United
States" where "once the United States has made the grant to
the State ... or other institution, it substantially relinquishes
all control over the disposition of the money." S. Rep. No.
99-345, at 21, reprinted in 1986 U.S.C.C.A.N. at 5286 (citing
Salzman, 41 F. Supp. 196). At the same time, the Committee
approvingly cited cases that appeared to cover claims against
grantees regardless whether those claims were retransmitted
to the United States. See id. at 10, 22, reprinted in 1986
U.S.C.C.A.N. at 5275, 5287 (citing United States ex rel. Davis
v. Long's Drugs, Inc., 411 F. Supp. 1144, 1146-47 (S.D. Cal.
1976)).

It is still possible, of course, to argue that Congress did not
quite achieve the objective of making all false claims to
grantees subject to the Act. The new subsection is merely
entitled "Claim defined," while for the Act's "liability" provi-
sion we still must look to s 3729(a). If we put the two
subsections together, we have a requirement that the defen-
dant "knowingly present[ ], or cause[ ] to be presented, to an
officer or employee of the United States ... a false or
fraudulent .... request ... to a ... grantee ... if the
United States Government provides any portion of the money
... which is requested ..., or if the Government will reim-
burse [the] ... grantee ... for any portion of the money ...
which is requested." 31 U.S.C. s 3729(a), (c). This could be
read narrowly to mean that requests to a grantee which are
in turn presented by the grantee to the United States are
covered, but that Congress dropped a stitch if it also meant to
cover--as it indicated it did--the situation where the govern-
ment already has given the money to the grantee but has
"relinquishe[d] all control over the disposition of the money"
before the false claim is made. S. Rep. No. 99-345, at 21,
reprinted in 1986 U.S.C.C.A.N. at 5286.

Although it is possible to read the statute in this narrow
way, such a reading would leave intact those court opinions
Congress seemingly intended to overrule. As Yesudian sug-
gests, it is also possible to read the language to cover claims
presented to grantees, but "effectively" presented to the
United States because the payment comes out of funds the

federal government gave the grantee. Such a reading would
be in harmony with the legislative history. As the Senate
Judiciary Committee put it, without adding any "presenta-
tion" caveat, "a false claim to the recipient of a grant from the
United States or to a State under a program financed in part
by the United States is a false claim to the United States."
Id. at 10, reprinted in 1986 U.S.C.C.A.N. at 5275.5

It may be that this reading--that a claim to a grantee is
effectively a claim to the United States--should not apply to
all grantees. It may not be appropriate, for example, where
the grantee's federal funds are an insubstantial percentage of
its total budget, where there is little likelihood that any of a
defendant's money actually came from the federal grant, or
where there is little continuing contact between the grantee
and the government once the grant is made.

Parker is correct in noting that the legislative history of the
False Claims Act amendments states that "a false claim is
actionable although the claims or false statements were made
to a party other than the Government, if the payment thereon
would ultimately result in a loss to the United States." S.
Rep. No. 99-345, at 10, reprinted in 1986 U.S.C.C.A.N. at
5275 (emphasis added); see H.R. Rep. No. 99-660, at 21.6

__________
5 The Supreme Court's decision in United States ex rel. Marcus
v. Hess, 317 U.S. 537 (1943), cited approvingly by the Senate
Judiciary Committee, see S. Rep. No. 99-345, at 10, reprinted in
1986 U.S.C.C.A.N. at 5275, includes dicta supportive of Yesudian's
reading. The Court said that "[federal] funds [granted to the
states] are as much in need of protection from fraudulent claims as
any other federal money, and the statute does not make the extent
of their safeguard dependent upon the bookkeeping devices used for
their distribution." 317 U.S. at 544 (footnote omitted). In Marcus,
however, estimates of the false claims were transmitted to the
government.

6 It is not necessary, however that a loss actually result; it is
sufficient that the defendant makes a false claim that would result
in a loss if it were paid. See S. Rep. No. 99-345, at 8, reprinted in
1986 U.S.C.C.A.N. at 5273 ("A forfeiture may be recovered from
one who submits a false claim though no payments were made on
the claim."); see also Rex Trailer Co. v. United States, 350 U.S. 148,

Although the statute itself does not contain this requirement,
it may be another way of saying that before a claim on a
grantee can be considered a claim on the United States, there
must be a sufficiently close nexus between the two such that a
loss to the former is effectively a loss to the latter.

Such possible caveats are not relevant here, however, be-
cause Howard University is a relatively unique grantee in all
of these respects. According to the testimony at trial, over
80% of Howard's money comes from the federal government.7
Congress has authorized annual appropriations of federal
funds for Howard, see 20 U.S.C. s 123, and has authorized
the Secretary of Education to make matching grants for the
University's endowment, see id. s 130aa-1. Howard is also
authorized to make purchases through the General Services
Administration. See id. s 130. Moreover, the University is
required by federal statute "at all times [to] be open to
inspection by the Secretary of Education and shall be inspect-
ed by the said Secretary at least once each year." Id. s 123.
And each year, Howard must submit to the Secretary of
Education "a statement showing the receipts of the institution
and from what sources, and its disbursements, and for what
objects." Id. s 121 (emphasis added).

In addition, the Senate Judiciary Committee made clear
that it intended the concept of loss to the United States to be
considered broadly. As the Committee noted, the Seventh
Circuit had held in United States v. Azzarelli Construction
Co., 647 F.2d 757 (7th Cir. 1981), that there was no loss to the
United States, and hence no viable False Claims Act suit,
where the federal government had contributed a fixed sum to
Illinois for highway projects and thus would have paid out the

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152-53 & n.5 (1956) (discussing United States ex rel. Marcus v.
Hess, 317 U.S. 537 (1943)).

7 Yesudian testified to this figure, based on his "personal
knowledge." Notwithstanding an invitation from the trial judge to
cross-examine Yesudian on this point, defendants failed to contest
the testimony at trial. See App. 62-63. At oral argument, defen-
dants contended that 60% of Howard's budget is provided by the
federal government through a direct line-item appropriation.

same amount regardless whether contractors submitted false
claims to the State. The Committee made clear it disap-
proved of this result, and expressly "intend[ed] the new
subsection ... to overrule Azzarelli and similar cases which
have limited the ability of the United States to use the act to
reach fraud perpetrated on federal grantees, contractors or
other recipients of Federal funds." S. Rep. No. 99-345, at 22,
reprinted in 1986 U.S.C.C.A.N. at 5287.

Congress, then, plainly regarded a false claim as causing a
loss to the United States in the Azzarelli situation, notwith-
standing that the false claim would not lead to an additional
pay-out of federal funds. Much the same is true here.
Whether or not the United States Government would be out
additional money beyond that already appropriated for How-
ard, it would suffer a loss if the money appropriated for
legitimate purposes were instead wasted on a false claim.
And given the testimony that 80% of Howard's funds come
from the federal government, the likelihood is high that the
government would suffer this kind of loss if Howard were to
pay a false claim.

B

Although the above analysis suggests that a qui tam suit
brought against defendant Parker for submitting a false claim
to Howard University could prevail even without evidence
that the claim was resubmitted to the federal government, we
need not resolve that question today. We do not, after all,
have before us an appeal from a judgment against Yesudian
on his qui tam claim. The jury decided against Yesudian on
that claim and he has not appealed. Instead, the issue before
us is an appeal from a judgment as a matter of law against
Yesudian on his claim that Parker retaliated against him
because of his protected conduct. And the protected conduct
element of such a claim does not require the plaintiff to have
developed a winning qui tam action before he is retaliated
against. See S. Rep. No. 99-345, at 35, reprinted in 1986
U.S.C.C.A.N. at 5300; United States ex rel. Ramseyer v.
Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir.

1996).8 It requires only that the plaintiff have engaged in
"acts ... in furtherance of an action under this section." 31
U.S.C. s 3730(h) (emphasis added).

There is nothing in that language to suggest that the
employee must already have discovered a completed case.
To the contrary, s 3730(h) expressly includes "investigation
for ... an action filed or to be filed" within its protective
cover. This manifests Congress' intent to protect employees
while they are collecting information about a possible fraud,
before they have put all the pieces of the puzzle together. See
Neal v. Honeywell Inc., 33 F.3d 860, 864 (7th Cir. 1994).
Indeed, it is for this reason that courts have held employees'
activities protected although they have not filed qui tam suits.
See id. at 864-65; Childree v. UAP/GA AG Chem., Inc., 92
F.3d 1140, 1144, 1146 (11th Cir. 1996); Ramseyer, 90 F.3d at
1522. And it is for this reason that the district court erred in
holding Yesudian's conduct was unprotected because "he nev-
er initiated ... a private qui tam suit." 946 F. Supp. at 33.

As even defendant concedes, therefore, it is sufficient that a
plaintiff be investigating matters that "reasonably could lead"
to a viable False Claims Act case. Def. Br. at 21. This view
is in accord with that of the other Circuits. See Childree, 92
F.3d at 1146 (11th Cir. 1996) (requiring only "distinct possibil-
ity" of suit); Hopper, 91 F.3d at 1269 (9th Cir. 1996) (holding
that "plaintiff must be investigating matters which are calcu-
lated, or reasonably could lead, to a viable FCA action");
Neal, 33 F.3d at 864 (7th Cir. 1994) (holding that s 3730(h)
covers situation where litigation was a "distinct possibility" or
"could be filed legitimately"). Mere dissatisfaction with one's
treatment on the job is not, of course, enough. Nor is an
employee's investigation of nothing more than his employer's

__________
8 Cf. Passaic Valley Sewerage Comm'rs v. Department of La-
bor, 992 F.2d 474, 479 (3d Cir. 1993) ("[A]n employee's non-frivolous
complaint should not have to be guaranteed to withstand ...
external review in order to merit protection under [the Clean Water
Act] for the obvious reason that such a standard would chill
employee initiatives in bringing to light perceived discrepancies in
the workings of their agency.").

non-compliance with federal or state regulations. See Hop-
per, 91 F.3d at 1269; Ramseyer, 90 F.3d at 1523; see also
Zahodnick v. IBM Corp., 135 F.3d 911, 914 (4th Cir. 1997)
("Simply reporting his concern of a mischarging to the
government to his supervisor does not suffice to establish that
Zahodnick was acting 'in furtherance of' a qui tam action.")
(emphasis added). To be covered by the False Claims Act,
the plaintiff's investigation must concern "false or fraudulent"
claims. See 31 U.S.C. s 3729(a); see also McKenzie, 123
F.3d at 944; Childree, 92 F.3d at 1145; Hopper, 91 F.3d at
1269.

There was more than enough evidence for a reasonable
juror to conclude that Yesudian was engaged in such an
investigation. He repeatedly advised Parker's superiors that
he had evidence Parker falsified time and attendance records,
provided inside information to favored vendors to aid them in
the bidding process, accepted bribes from vendors, permitted
payments to vendors who did not provide services to the
University, and took University property home for personal
use. Vice President Jones asked him to provide "more
specific information regarding these charges ... so that they
can be properly investigated." Def's Ex. 43. Yesudian col-
lected evidence from other employees to corroborate the
claim that Parker's assistant had not worked the days for
which she received credit. See App. 56-57, 161-62. He also
took photographs of University property he believed Parker
had taken for personal use. And he collected further docu-
mentation which he provided to Vice President Fletcher. See
App. 75.

Moreover, Yesudian knew that 80% of Howard's money
came from the United States Government. Hence, even if
resubmission of a false claim to the federal government were
required for a successful action, the 80% figure gave Yesudian
a good faith basis for going forward at the time of the
retaliation. Given the information he had about Howard's
finances, it would have been reasonable to conclude there was
a "distinct possibility" he would find evidence of resubmission
of the claims. Indeed, that is the kind of information a
plaintiff normally cannot acquire until he files a suit and

obtains the benefits of court-sanctioned discovery. Yet, as we
have noted, such filing is not required to gain the protection
of the statute. See 31 U.S.C. s 3730(h) (providing protection
for an "investigation for ... an action filed or to be filed").

The fact that Yesudian may have failed to find such evi-
dence in the end means only that--if such evidence were
necessary to prove a False Claims Act case--he ultimately
would not be entitled to recover on his qui tam claim.
Indeed, it is only one of many ways he could come up short.
But there is no requirement that to be protected, a plaintiff
must have gathered all of the evidence by the time of the
retaliation. Indeed, if there were, the failure of Yesudian's
contemporaneous qui tam claim would alone have warranted
judgment as a matter of law on his retaliation claim--yet
neither the district court nor the defendant have taken that
position.

Nor was it necessary for Yesudian to "know" that the
investigation he was pursuing could lead to a False Claims
Act suit. See Childree, 92 F.3d at 1143, 1145-46 (noting that
employee never considered bringing False Claims Act case
and had not heard of Act at time of discharge); Hopper, 91
F.3d at 1269 (protected activity does not require "[s]pecific
awareness of the FCA"); Neal, 33 F.3d at 864 (noting that
plaintiff was not informed that she could file a qui tam
action). An initial investigation may well further an action
under the Act, even though the employee does not know it at
the time of the investigation. Were that not the case, only
lawyers--or those versed in the law--would be protected by
the statute, as only they would know from the outset that
what they were investigating could lead to a False Claims Act
prosecution. There is no suggestion in the legislative history
that Congress meant to extend protection only to lawyers, or
to others only after they have consulted with lawyers.

It could be argued that the phrase "to be filed" in s 3730(h)
refers to the plaintiff's intent--i.e., that an action "to be filed"
means one contemplated at the time of the conduct. But the
courts have read the phrase to mean the equivalent of an
action that reasonably could be filed. See Childree, 92 F.3d

at 1146 (where the filing of an action was a "distinct possibili-
ty"); Hopper, 91 F.3d at 1269 (where the plaintiff is investi-
gating matters that "reasonably could lead" to an FCA ac-
tion); Neal, 33 F.3d at 864 (where litigation is a "distinct
possibility" or "could be filed legitimately").

More importantly, the "to be filed" language in s 3730(h)
does not define protected conduct; it is simply part of the
language that describes examples of what is "includ[ed]"
within that category. See 31 U.S.C. s 3730(h) ("acts done ...
in furtherance of an action under this section, including
investigation for ... an action filed or to be filed") (emphasis
added). There is no indication that Congress intended the
examples to encompass the entire category. See McKenzie,
123 F.3d at 944 ("The statute provides examples of the types
of activity that are protected, including investigation, initi-
ation of a suit, and testimony, but these examples are not
exclusive and the legislative history indicates that '[p]rotected
activity should ... be interpreted broadly.' ") (quoting S. Rep.
No. 99-345, at 35, reprinted in 1986 U.S.C.C.A.N. at 5300)
(omission in original).9 The protected conduct itself is simply
"acts done ... in furtherance of an action under this section,"
and even an investigation conducted without contemplation
of--or knowledge of the legal possibility of--a False Claims
Act suit can end up being "in furtherance" of such an action.

__________
9 Indeed, several courts have said that internal reporting of
false claims is itself an example of a protected activity. See
McKenzie, 123 F.3d at 944; Ramseyer, 90 F.3d at 1523; Robertson,
32 F.3d at 951; Mikes, 889 F. Supp. at 752. And many courts,
including this one, have held that internal reporting is sufficient to
bring an employee within the protection of the whistleblower provi-
sions of other federal statutes. See, e.g., Phillips v. Interior Bd. of
Mine Operations Appeals, 500 F.2d 772, 778, 779 (D.C. Cir. 1974)
(Mine Safety Act); Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d
926, 931-33 (11th Cir. 1995) (Energy Reorganization Act); Passaic
Valley, 992 F.2d at 478-79 (3d Cir. 1993) (Clean Water Act); see
also Passaic Valley, 992 F.2d at 479 ("[O]ur sister courts of appeals
have consistently construed [other] statutes to lend broad protective
coverage to internal complainants.") (citing cases).

As our previous discussion makes clear, the district court
was wrong in suggesting that Yesudian's activity was unpro-
tected because he had not initiated a private suit by the time
of his termination. The court was also wrong in suggesting
that Yesudian's conduct was unprotected because he had not,
as an alternative, "initiated a government investigation," Ye-
sudian, 946 F. Supp. at 33. Although the statute does
require a qui tam relator to serve a copy of his complaint on
the government and to disclose material evidence and infor-
mation to it, those requirements do not take effect until the
relator files a complaint with the court. See 31 U.S.C.
s 3730(b). Nothing in the statute suggests that any kind of
earlier communication with the government--or with anyone
outside of his employing institution--is required to satisfy the
"acts in furtherance" requirement. See McKenzie, 123 F.3d
at 944; see also supra note 9; cf. Bechtel Constr. Co. v. Sec'y
of Labor, 50 F.3d 926, 932 (11th Cir. 1995) ("[T]his interpreta-
tion [of the Energy Reorganization Act] ... avoids the unwit-
ting consequence of preemptive retaliation, which would allow
whistleblowers to be fired or otherwise discriminated against
with impunity for internal complaints before they have a
chance to bring them before an appropriate agency."). To
the contrary, as Judge Easterbrook put it, "s 3730(h) pro-
tects 'investigation' as well as reports of fraud, and an 'inves-
tigation' precedes communication." Neal, 33 F.3d at 865; cf.
NLRB v. Scrivener, 405 U.S. 117, 121 (1972) (construing
National Labor Relations Act provision, protecting employee
who "has filed charges or given testimony," as including "the
investigative stage"). Indeed, in arguing the need for the
1986 whistleblower amendment, one of the prime examples
noted by the Senate Judiciary Committee was the harassment
of a Rockwell International employee after he told his super-
visors he no longer would mischarge his time cards. See
S. Rep. No. 99-345, at 5, reprinted in 1986 U.S.C.C.A.N. at
5270.

Nor would it be in the interest of law-abiding employers for
the statute to force employees to report their concerns out-
side the corporation in order to gain whistleblower protection.
Such a requirement would bypass internal controls and hot-

lines, damage corporate efforts at self-policing, and make it
difficult for corporations and boards of directors to discover
and correct on their own false claims made by rogue employ-
ees or managers. Cf. Passaic Valley Sewerage Comm'rs v.
Department of Labor, 992 F.2d 474, 478-79 (3d Cir. 1993)
("Employees should not be discouraged from the normal
route of pursuing internal remedies before going public ....
[as this] facilitate[s] prompt voluntary remediation and com-
pliance with the Clean Water Act."); Bechtel, 50 F.3d at 931-
33 (applying same analysis to Energy Reorganization Act).

In sum, we conclude that a reasonable juror could readily
have found that Yesudian satisfied the first element of his
retaliation claim against defendant Parker, by engaging in
activity protected by the whistleblower provision of the False
Claims Act.

C

The district court also concluded there was no evidence to
support the first part of the second element of Yesudian's
retaliation claim--that defendant Parker knew Yesudian was
engaged in protected activity.10 This was so, the court said,
because Yesudian "never suggested to defendant that he
intended to utilize his allegations in furtherance of a False
Claims Act action" and "gave no suggestion that he was going
to report the alleged improprieties to government officials."
Yesudian, 946 F. Supp. at 33.

But since there is no requirement that a plaintiff know his
investigation could lead to a False Claims Act action, there
likewise can be no requirement that he "suggest[ ] to defen-
dant" that he is contemplating such an action. A plaintiff
who need not even have heard of the False Claims Act can
hardly be required to inform his supervisor that he "intend[s]
to utilize his allegations in furtherance of" an action under
that Act. Instead, the kind of knowledge the defendant must

__________
10 The district court did not find, and Parker does not contend,
that there was no evidence to support the second part of this
element: a showing that Yesudian was terminated in retaliation for
his activity.

have mirrors the kind of activity in which the plaintiff must
be engaged. What defendant must know is that plaintiff is
engaged in protected activity as defined above--that is, in
activity that reasonably could lead to a False Claims Act case.
As already discussed, such activity includes the investigation
of "false or fraudulent claims" made to federal grantees like
Howard. But like the plaintiff, the defendant need not know,
or be advised, that such claims would violate the False Claims
Act itself. Cf. Bryan v. United States, 118 S. Ct. 1939, 1946
(1998) (charge of possession of unregistered machinegun re-
quires proof that defendant knew weapon had the characteris-
tics that brought it within statutory definition of machinegun,
but not proof that defendant knew such possession was
unlawful).

Indeed, requiring a plaintiff to advise his employer that he
has filed or is contemplating filing a qui tam complaint would
contravene the qui tam section of the Act itself, which dic-
tates that such complaints be filed in camera, remain under
seal for at least sixty days (extendable upon government
motion), and "not be served on the defendant until the court
so orders." 31 U.S.C. s 3730(b). The purpose of these
provisions is to "protect the Government's interest in criminal
matters" by enabling the government to investigate the al-
leged fraud without " 'tip[ping] off' investigation targets" at
"a sensitive stage." S. Rep. No. 99-345, at 24, reprinted in
1986 U.S.C.C.A.N. at 5289. To require a plaintiff to advise
his employer of his intentions in order to enjoy whistleblower
protection would frustrate this congressional concern.

For much the same reasons, there also is no requirement
that a plaintiff tell, or threaten, his employer that he will
report his allegations to the government--or to anyone out-
side of the employing institution. As the statute does not
require the employee to make an outside complaint in order
to render his conduct protected, he cannot be required to
advise of or threaten such a complaint. Moreover, as with a
requirement that an employee tell his employer he is contem-
plating filing a qui tam suit, a requirement that an employee
announce he has gone outside the institution would undercut
the statutory purpose of encouraging employees to expose

fraud. See id. at 4-5, 34, reprinted in 1986 U.S.C.C.A.N. at
5269-70, 5299. Such an announcement necessarily creates
the kind of adversary confrontation that mere internal report-
ing does not. And even though it may protect the employee
from termination, it would also end any hopes he may have
for normal advancement as a "loyal" employee. Many an
employee may well decide that kind of protection is not worth
obtaining, and so forego an investigation altogether. See
Mikes v. Strauss, 889 F. Supp. 746, 753 (S.D.N.Y. 1995) ("To
insist upon an express or even an implied threat of such
action would impose a requirement which is wholly unrealistic
in an employment context.").

Nonetheless, a plaintiff still must show that his employer
was aware of his protected activity. Merely grumbling to the
employer about job dissatisfaction or regulatory violations
does not satisfy the requirement--just as it does not consti-
tute protected activity in the first place. Threatening to file a
qui tam suit or to make a report to the government, on the
other hand, clearly is one way to make an employer aware.
But it is not the only way.

The steps Yesudian took in this case were sufficient for a
reasonable juror to conclude that Parker was on notice Yesu-
dian was engaged in protected activity. Yesudian repeatedly
told Parker's superiors that Parker had falsified time and
attendance records, accepted bribes from vendors, provided
inside information to favored vendors, permitted payments to
vendors who did not provide services, and taken University
property home for personal use. A juror could reasonably
conclude that Parker's superiors advised him of these
charges, particularly since they told Yesudian they intended
to investigate them. A juror could also conclude that the
charges--many in the form of letters from Yesudian to
University officials--would have been made available to Par-
ker. And a reasonable juror could reach a similar conclusion
from the timing of at least one incident in which Parker
disciplined Yesudian, assertedly for insubordination, shortly

after Yesudian made a complaint against him. See App. 58-
60.

Indeed, there was even some evidence that Parker may
have thought Yesudian actually was planning a qui tam case.
On December 20, 1989, Parker's deputy, Varghese, sent Yesu-
dian a disciplinary letter, complaining that "during work
hours you went throughout the department taking photo-
graphs claiming that you may need these documents to
support your case." App. 310. Although the letter does not
explain which "case" Varghese was concerned about, the only
photographs otherwise mentioned in the record are ones
Yesudian took of University property he said Parker had
taken home for his personal use. See App. 536. A reason-
able juror could conclude that Parker knew of his deputy's
letter and concerns.

Finally, the incident involving Yesudian's meeting with Vice
President Fletcher, and the subsequent confrontation Yesudi-
an had with Parker and Varghese, provides direct evidence
that Parker was aware of Yesudian's protected activities. As
noted above, in March 1992 Yesudian met with Fletcher, told
him of his findings, and gave him a packet of documents he
said supported the claims. See App. 74-75. Within a month,
Parker called Yesudian into his office and read him verbatim
the allegations Yesudian had made against Parker in the
documents Yesudian had given Fletcher. Varghese then
warned Yesudian: "[I]f you do this kind of stuff, you're not
going to be in this department." App. 80. After the meeting,
Yesudian reported the threats to Fletcher. A reasonable
juror could readily have concluded from Yesudian's account of
these events, as well as from the other incidents discussed
above, that Parker knew his subordinate was engaged in
protected activity.

Neither United States ex rel. Hopper v. Anton, 91 F.3d
1261 (9th Cir. 1996), nor Robertson v. Bell Helicopter Tex-
tron, Inc., 32 F.3d 948 (5th Cir. 1994), cited by Parker, is to
the contrary. The plaintiff in Hopper was a special education
teacher who complained that her school district was failing to
comply with federal and state laws pertaining to the handling
of special education children. But she made no allegations of
fraud. "[U]nless the employer is aware that the employee is
investigating fraud," the court said, "the employer could not

possess the retaliatory intent necessary to establish a viola-
tion of s 3730(h)." Hopper, 91 F.3d at 1269.

The plaintiff's case in Robertson had both the same weak-
ness as Hopper's and an additional one. The plaintiff in
Robertson, a contract administrator employed by Bell Heli-
copter, became concerned about a "lack of verification" for
maintenance and repair charges Bell was making on a gov-
ernment contract. See 32 F.3d at 949-50. He reported his
concerns to his superiors and sought to substantiate the
charges by requesting additional information from Bell man-
agers. Although the court recognized that internal reporting
has been held to constitute protected activity, it distinguished
Robertson's internal reports because--like the plaintiff in
Hopper--he had not told his employer he was concerned
about possible fraud. See id.

Robertson also argued that his investigation into the sub-
stantiation for the maintenance charges constituted protected
activity. In response, Bell noted a second problem. It
contended it had no way to know Robertson's investigation
was protected activity because substantiating charges was
part of his job as a contract administrator. The court agreed.
Because "Robertson never characterized his concerns as in-
volving illegal, unlawful, or false-claims investigations.... [,]
Robertson [never] expressed any concerns to his superiors
other than those typically raised as part of a contract admin-
istrator's job." Id. at 952.

The plaintiff in United States ex rel. Ramseyer v. Century
Healthcare Corp. also had both of the problems of the Robert-
son plaintiff. Like Robertson (and Hopper), Ramseyer com-
plained to her employer only of regulatory "non-compliance"
and "shortcomings." And like Robertson, the weakness of
her case was exacerbated by the fact 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. As did the
Robertson court, Ramseyer "acknowledge[d] that intracorpo-
rate complaints may fall within the protective scope of section
3730(h)." Id. But given that those complaints were indistin-

guishable from the reporting expected as part of her job, the
court held she had to do something more to "make clear [her]
intentions of bringing or assisting in [a False Claims Act]
action in order to overcome the presumption that [she was]
merely acting in accordance with [her] employment obli-
gations." Id. at 1523 n.7 (emphasis added).

Yesudian's case did not have these weaknesses. First, the
nature of Yesudian's charges could not have been mistaken
for a complaint about mere regulatory compliance. He as-
serted a classic false claim by contending that Parker was
"falsifying" time and attendance records so that his assistant
would be paid for work she did not do. He effectively
charged Parker with defrauding Howard by taking bribes
from vendors, providing them with inside information to aid
them in the bidding process, and permitting payments to
vendors who did not provide services to the University. He
further charged that Parker had converted University prop-
erty to his personal use. Vice President Jones characterized
the false statement charge as a charge of "cooperating in the
cheating of the University with the Time and Attendance
Records." Def.'s Ex. 43. Yesudian himself characterized the
complaints as charges of "corruption" and "corrupt practices."
App. 220.

Second, Yesudian's duties at the University did not include
oversight of Purchasing Department operations, monitoring
of other employees' time and attendance records, or tracking
the use of University property. Thus, his investigation and
complaints regarding falsification, bribery, and corruption
could not have been mistaken for routine actions in accor-
dance with his employment obligations. To the contrary, the
trial record indicates that Yesudian's supervisors knew of and
were distressed by his whistleblowing activities: according to
Yesudian, Parker and Varghese threatened him for bringing
to light "the corrupt practices and inefficiencies extant in the
department." App. 220. Hence, unlike the plaintiffs in Rob-
ertson and Ramseyer, he had no "presumption" to overcome.

We conclude that a reasonable juror could have found that
Yesudian engaged in activity protected by the False Claims

Act, and that defendant Parker knew of that protected activi-
ty. We therefore reverse the grant of judgment as a matter
of law on Yesudian's retaliation claim.

IV

Yesudian also asserted claims against Howard based on
breach of contract and promissory estoppel. He alleged that
the Howard University Employee Handbook constituted a
contract between him and the University, that he had relied
upon it to his detriment, and that he had been fired in
derogation of its provisions limiting the bases upon which,
and the procedures through which, an employee could be
terminated. After the jury returned a verdict for Yesudian,
Howard moved for judgment as a matter of law on the
ground that there was no contract or reliance,11 arguing that:
(1) the Handbook contained a disclaimer which, as a matter of
law, prevented any statement it contained from rising to the
level of a binding obligation; and (2) even if it could constitute
a binding obligation, Yesudian had given no additional consid-
eration for the promises he alleged it contained and had not
relied upon them to his detriment. The district court held
that "[g]iven the contradictory language of the manual provi-
sions, ... the issue of whether the employee manual consti-
tuted a contract was an issue for the jury[,]" and that "the
jury was justified in finding that plaintiff reasonably relied on
the provisions of the employee handbook to his detriment in
that he followed the handbook grievance procedures at the
expense of much time and money." Yesudian, 846 F. Supp.
at 35-36. We concur with the conclusion of the district court
for these and additional reasons.

All parties agree that this issue is governed by District of
Columbia law. Last year, in Sisco v. GSA National Capital
Federal Credit Union, 689 A.2d 52, 55 (D.C. 1997), the
District of Columbia Court of Appeals summarized District
law on the subject. The presumption in the case of an

__________
11 Howard does not argue it was entitled to judgment as a
matter of law on the ground that it complied with the Handbook's
requirements.

employee like Yesudian--who lacks an express employment
contract for a specified time--is that he is an employee at-will
who may be fired at the employer's discretion. See id. at 53;
Nickens v. Labor Agency, 600 A.2d 813, 816 (D.C. 1991). An
employee manual, however, overcomes the at-will presump-
tion "where it set[s] forth a distinction between probationary
and permanent employees, providing that the first could be
discharged summarily but the latter only .... [after] 'specific
preconditions had [been] met.' " Sisco, 689 A.2d at 54 (quot-
ing Washington Welfare Ass'n v. Wheeler, 496 A.2d 613, 615-
16 (D.C. 1985)). "[S]uch manuals," the court said, "generally
create 'a factual question for the jury' as to the existence of a
contract." Id. (quoting Nickens, 600 A.2d at 817); see also
Washington Welfare Ass'n, 496 A.2d at 615.

The Handbook at issue here meets the Sisco test. As the
district court--writing before Sisco was handed down--found,
the Handbook expressly "distinguishes between temporary
and probationary employees on the one hand, and regular
employees, such as the plaintiff here, on the other." Yesudi-
an, 946 F. Supp. at 35. The Handbook makes clear that the
latter can be discharged only for cause and after specified
procedures:

Temporary and Probationary Employees may be termi-
nated at any time their services are found to be unsatis-
factory, or not in the best interests of the University....
However, in the case of Regular employees, termination
on grounds of unsatisfactory work performance is in
order only when employees fail to make satisfactory
work improvement within thirty (30) calendar days after
their supervisors have given them written notice of warn-
ing.... Charges against an employee of serious neglect
of duty or conduct incompatible with the welfare of the
University must be substantiated by the supervisor.
Failure of the employee to refute successfully such
charges constitutes grounds for dismissal.

Howard University Employee Handbook (Non-Faculty)
s 1.11 (Apr. 1, 1980) (App. 638) (emphasis added). The

Handbook also sets out a detailed grievance procedure to
which employees in Yesudian's status are "entitled" whenever
a complaint alleges "a violation, misapplication or misinter-
pretation of applicable rules, regulations, policies, laws, or
orders resulting in an actual or anticipated unfair or unrea-
sonable personnel procedure." Id. s 1.16; see Yesudian, 946
F. Supp. at 35 & n.4. Indeed, the District of Columbia Court
of Appeals has twice held that juries could find Howard
University employee handbooks to constitute employment
contracts.12

Notwithstanding these provisions, the University contends
the Handbook cannot be considered a contract because it
contains two other provisions that constitute effective dis-
claimers of any binding obligations. First, the Handbook
states that "[t]he University reserves the right unto itself to
maintain exclusive discretion to exercise the customary func-
tions of management including, but not limited to, the discre-
tion to select, hire, promote, demote, ... [or] terminate...."
Handbook s 1.15. Second, the Handbook states that "[t]his
document is not to be construed as a contract." Id. at ii.

Sisco governs these contentions as well. It holds that
promises meeting the test described above--those "that are
clear enough in limiting the right to terminate to specific
causes or events"--effectively "reverse the normal presump-
tion: to make them unenforceable at law, a manual purport-
ing to restrict the grounds for termination must contain
language clearly reserving the employer's right to terminate
at will." Sisco, 689 A.2d at 55 (emphasis added).

The Handbook's reservation of management rights does not
satisfy the Sisco standard for rebutting the reverse presump-

__________
12 See Howard Univ. v. Baten, 632 A.2d 389, 390 (D.C. 1993);
Law v. Howard Univ., Inc., 558 A.2d 355, 356 & n.1 (D.C. 1989).
Because at oral argument both parties stated they were uncertain
whether the handbook at issue here was the same as that at issue in
Law, we do not consider whether the doctrine of offensive collateral
estoppel would otherwise be applicable. See generally Jack Faucett
Assocs. v. American Tel. & Tel., 744 F.2d 118, 124-26 (D.C. Cir.
1984).

tion. The employee manual at issue there similarly reserved
management's rights "to discipline or discharge employees
for any other cause," yet the court found this provision
"insufficient to overcome the assurance conveyed by an objec-
tive reading of the entire document that termination will be
governed by its terms." Id. The Sisco court also rejected
the argument "that the employer's reserved right to modify
the manual's terms unilaterally tends to show that any 'offer'
made by the [employer] in distributing the manual was
illusory." Id. at 57 (internal quotation omitted) (alteration in
original). The employee's reasonable expectation of perfor-
mance by the employer continues, the court said, "so long as
the employer does not revoke the manual or disclaim its
binding character." Id. As the district court found here,
"the provisions in the handbook relating to termination of
employment are phrased in such a manner as to lead an
employee to believe that the University does not have unfet-
tered discretion in its termination decisions," despite the
reservation of rights clause. Yesudian, 946 F. Supp. at 35.

The Handbook's statement that "[t]his document is not to
be construed as a contract" also fails to meet the Sisco
standard. Although it states an ultimate conclusion, it does
not "contain language clearly reserving the employer's right
to terminate at will," which Sisco requires to make the
promises of a Handbook like this "unenforceable at law."
Sisco, 689 A.2d at 55. In fact, "[n]owhere does the manual
state that a 'Regular employee' may be terminated at will."
Yesudian, 946 F. Supp. at 35. In each of the District of
Columbia cases in which a disclaimer of contract status has
been held to negate the inference of a binding obligation from
an employee handbook, the disclaimer has stated both that
the manual is not a contract and that employees may be
terminated at will.13 Although the District of Columbia Court

__________
13 See Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624,
627 n.3 (D.C. 1997) ("The employee handbook expressly states that
it is not an employment contract and that 'nothing in this Handbook
is intended to affect the "at-will" employment relationship.' ") (em-
phasis added); Smith v. Union Labor Life Ins. Co., 620 A.2d 265,
269 n.1 (D.C. 1993) ("This handbook is ... not an employment

of Appeals has not yet decided a case involving a disclaimer
lacking the latter provision, numerous other courts have held
disclaimers insufficient to keep cases from juries where they
denied the existence of a contract but failed expressly to
advise employees they could be terminated at will.14 Given

__________
contract and does not guarantee any fixed terms and conditions of
employment.... Employment for management personnel is for no
definite period [and] is terminable at will...."); Goos v. National
Ass'n of Realtors, 715 F. Supp. 2, 4 (D.D.C. 1989) ("This handbook
does not constitute an employment contract.... As an employee
... you are considered to be an employee-at-will.").

14 See, e.g., Jones v. Central Peninsula Gen. Hosp., 779 P.2d
783, 787-88 (Alaska 1989) (finding inadequate a disclaimer providing
that manual "is not a contract of employment," but "not appris[ing]
the employee that his or her job is 'terminable at the will of the
employer with or without reason' "); Perman v. Arcventures, Inc.,
554 N.E.2d 982, 985, 987 (Ill. App. Ct. 1990) (finding that "language
in [employer's] manual of personnel policies and procedures created
enforceable contractual rights despite its disclaimer" that the manu-
al did "not constitute an employment contract"); Preston v. Clar-
idge Hotel & Casino, Ltd., 555 A.2d 12, 15 (N.J. Super. Ct. App.
Div. 1989) (finding inadequate a disclaimer stating that handbook
was "not intended to create, nor should [it] be construed to consti-
tute, a contract of employment," and holding that "if [employer]
wished to advise its employees that they could be discharged at will,
such a warning should have been set forth expressly"); Russell v.
Board of County Comm'rs, 952 P.2d 492, 503 (Okla. 1997) ("While
the manual states that ... the personnel policies do not represent
an 'employment contract,' conflicting inferences may be drawn from
other statements made in the same handbook."); Johnson v. Nasca,
802 P.2d 1294, 1295-97 (Okla. Ct. App. 1990) (finding insufficient a
disclaimer providing that employee handbook "should not be consid-
ered a contract" and that employer "reserves the right at any time
to take any action it deems necessary in its sole discretion"). See
generally Stephen F. Befort, Employee Handbooks and the Legal
Effect of Disclaimers, 13 Indus. Rel. L.J. 326, 353 (1992) ("[S]uch a
disclaimer is unclear because it speaks in terms of the technicalities
of contract status without plainly stating the practical impact of the
disclaimer on apparent promises of job security contained elsewhere
in the handbook.") (citing Preston, 555 A.2d at 15).

Sisco 's insistence that to overcome the reverse presumption
in a case like this, the disclaimer "must contain language
clearly reserving the employer's right to terminate at will,"
Sisco, 689 A.2d at 55, we conclude the District of Columbia
Court of Appeals would reach the same result.

Moreover, as the district court pointed out, the same
paragraph of the Handbook that says it is not to be construed
as a contract also says the Handbook is "intended to promote
a better understanding of what staff employees can expect
from the University and what the University can expect from
them in return." Handbook at ii (emphasis added). These
two statements are, as the district court found, "contradicto-
ry." Yesudian, 946 F. Supp at 35. When taken together
with the other provisions of the Handbook that clearly limit
Howard's right to terminate "to specific causes or events,"
Sisco, 689 A.2d at 55, the disclaimers asserted by Howard do
no more than produce the kind of ambiguity that creates a
jury question as to whether the Handbook constitutes "a
promise of continued employment to [regular] employees
terminable only for cause in accordance with its provisions,"
id. at 56.

We also cannot ignore the fact that in its answer to
Yesudian's complaint, Howard actually conceded that the
Handbook constituted a contract. Compare Compl. p 31 with
Answer p 31. Ordinarily, we would consider such a conces-
sion in a pleading to constitute a binding judicial admission
which Howard could not contradict either at trial or on
appeal. See Keller v. United States, 58 F.3d 1194, 1198 n.8
(7th Cir. 1995); Michael H. Graham, Federal Practice and
Procedure s 6726 (interim ed. 1992). Here, however, Yesu-
dian failed to note Howard's admission or otherwise object
when Howard did contest the point at trial. Under such
circumstances, the Ninth Circuit has found one in Yesudian's
position to have waived the argument that the issue was
conclusively settled. See American Title Ins. Co. v. Lacelaw
Corp., 861 F.2d 224, 227 (9th Cir. 1988). Because Yesudian's
claim that the Handbook was a contract survives a motion for
judgment as a matter of law under Sisco in any event, we do
not need to decide whether there was a waiver here. We do

note, however, that Howard's admission may have misled
Yesudian into thinking he did not need to put anything more
into evidence than the Handbook itself in order to establish
that he had a contract.

Howard also contends that because Yesudian gave no con-
sideration for the Handbook's promises, no binding obligation
was created. This argument is also foreclosed by Sisco,
which held that "remaining with an employer after receipt of
a personnel manual promising job security supplies the neces-
sary consideration to make the promise legally enforceable."
Sisco, 689 A.2d at 56.15 Because Yesudian testified that he
remained with Howard after receiving the Handbook, he
satisfied the Sisco requirement. Accordingly, even without
adding in Yesudian's detrimental reliance on the grievance
procedures noted by the district court, we conclude that the
Handbook's promises were supported by adequate consider-
ation and that the district court properly denied Howard's
motion for judgment as a matter of law.

V

For the foregoing reasons, we reverse the district court's
grant of judgment as a matter of law on Yesudian's retaliation
claim and affirm the district court's denial of judgment as a
matter of law on Yesudian's claim for breach of contract.

__________
15 Under District of Columbia law, Yesudian did not need to
introduce evidence that he had read the Handbook. See Nickens,
600 A.2d at 817 n.2. The fact that Yesudian followed the Hand-
book's grievance procedures, however, suggests that he had in fact
read it.

Karen LeCraft Henderson, Circuit Judge, dissenting in part:

The district court's Rule 50 judgment on Yesudian's False
Claims Act retaliation claim should be affirmed because Yesu-
dian never produced evidence to show, as the majority ac-
knowledges he must, "that his employer was aware of his
protected activity." Maj. Op. at 21. Such a showing requires
a plaintiff to have put the employer on notice not only that he
is investigating fraud but also that the fraud is against the
federal government, so as to potentially support a qui tam
suit or a direct suit by the government. See United States ex
rel. McKenzie v. Bellsouth Telecommunications, Inc., 123
F.3d 935, 944 (6th Cir. 1997) (" '[A]n employee must supply
sufficient facts from which a reasonable jury could conclude
that the employee was discharged because of activities which
gave the employer reason to believe that the employee was
contemplating a qui tam action against it.' ") (quoting Mikes
v. Strauss, 889 F. Supp. 746, 753 (S.D.N.Y. 1995)) (alteration
by McKenzie court); Robertson v. Bell Helicopter Textron,
Inc., 32 F.3d 948, 951 (5th Cir. 1994) (employee must put the
employer on notice that he is "concerned about the company
defrauding the government"); United States ex rel. Ramsey-
er v. Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir.
1996) ("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. Hopper
v. Anton, 91 F.3d 1261, 1269-70 (9th Cir. 1996) (concluding
school principal who reprimanded teacher did not have requi-
site "retaliatory intent" because even if she knew of teacher's
complaints to California Department of Education, teacher
"never gave any indication she was investigating the School
District for defrauding the federal government"). Because
Yesudian offered no evidence that he put his employer on
such notice, I dissent from the majority's reversal of the
district court's False Claim Act judgment.