United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2001 Decided November 13, 2001
No. 00-7280
Daniel Yesudian, ex rel. United States of America,
Appellant
v.
Howard University, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 93cv01791)
James L. Kestell argued the cause for appellant. With him
on the briefs was Michael P. Deeds.
Timothy F. McCormack argued the cause for appellees.
With him on the brief was David E. Ralph.
Before: Ginsburg, Chief Judge, Henderson, Circuit Judge,
and Williams, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
Williams.
Williams, Senior Circuit Judge: Suing in district court,
Daniel Yesudian recovered a jury verdict against his employ-
er Howard University for breach of contract, and against
Joseph Parker, his former supervisor at Howard, for retalia-
tion under the False Claims Act, 31 U.S.C. s 3730(h). The
jury rejected Yesudian's s 3730(h) claim against Howard.
The district court granted judgment as a matter of law for
Parker on the s 3730(h) retaliation claim, Yesudian v. How-
ard University, 946 F. Supp. 31, 37 (D.D.C. 1996), but we
reversed, Yesudian v. Howard University, 153 F.3d 731 (D.C.
Cir. 1998).
On remand, Yesudian renewed a prior claim that Parker
and (vicariously) Howard should be liable on the retaliation
claim for the statutory remedies in s 3730(h), including rein-
statement, double backpay, interest, special damages, and
attorneys' fees. The district court denied the relief. It
reasoned that the jury had found Howard not liable on the
s 3730(h) retaliation claim, and that Parker was not Yesudi-
an's "employer" for purposes of that statute.
On appeal Yesudian offers no serious analysis of s 3730(h)
to support his claim that that section authorizes liability for a
supervisor as opposed to an employer. Rather, he claims
that Parker has forfeited the argument by failing to raise it
before the district court in the remand proceedings, and by
not having raised it before this court in the first appeal. We
find neither forfeiture argument compelling. Reaching the
merits, we affirm.
* * *
The contention that Parker failed to raise the argument in
the remand proceedings is about half right. Counsel resisted
Yesudian's claim to s 3730(h) remedies on the ground that
Parker "was not Plaintiff's employer and, therefore, has no
power to reinstate him." Defendants' Memorandum in Oppo-
sition to Plaintiff's Renewed Motion for Relief at 8; see also
Defendants' Memorandum in Opposition to Plaintiff's Motion
for Post-verdict Equitable Relief at 13.
This formulation presents the statutory issue very impre-
cisely. It makes no mention of the statute itself--the sole
source of liability and sole relevant source of the term "em-
ployer." But the reference to "employer" logically led the
district court to the statute and thus to the controlling issue.
Further, whether s 3730(h) covered a mere supervisor at all
was an issue " 'antecedent to ... and ultimately dispositive of'
the dispute," United States National Bank of Oregon v.
Independent Insurance Agents of America, Inc., 508 U.S.
439, 447 (1993) (quoting Arcadia v. Ohio Power Co., 498 U.S.
73, 77 (1990)), and thus legitimately before the court, id.
Yesudian also argues that Parker's filing was in any event a
week late under then-applicable Local Court Rule 108(b), and
should not have been considered at all. But the rule states
only that when such an opposition paper is not timely filed,
the court "may treat the motion [that it opposes] as con-
ceded." D.D.C. R. 108(b) (1994) (emphasis added). Yesudian
also cites Fed. R. Civ. P. 6(b), which says that the court may
accept late filings "upon motion" and a showing of "excusable
neglect." Cf. Lujan v. National Wildlife Federation, 497
U.S. 871, 895-97 (1990). We think the motion requirement
could have been deemed satisfied by defendants' "Memoran-
dum in Opposition to Plaintiff's Motion to Strike." As for
"excusable neglect," the standard typically deployed comes
from Pioneer Investment Services Co. v. Brunswick Associ-
ates Limited Partnership, 507 U.S. 380 (1993), where the
Court (construing Bankruptcy Rule 9006(b), whose text is
substantively similar to Rule 6(b)) held that this "equitable"
inquiry should rest on
the danger of prejudice to the debtor, the length of the
delay and its potential impact on judicial proceedings, the
reason for the delay, including whether it was within the
reasonable control of the movant, and whether the mov-
ant acted in good faith.
Id. at 395; see also id. at 391-92 (discussing Rule 6(b));
Sugarbaker v. SSM Health Care, 187 F.3d 853, 855-56 (8th
Cir. 1999) (applying Pioneer to Rule 6(b)).
Here, though without a formal finding of excusable neglect,
the district court simply pointed to the lack of any prejudice
to plaintiff and to the general preference for resolving cases
on the merits. The Court's lead item, lack of prejudice to the
other side, is fully conceded by plaintiff. The delay was brief,
and there is no suggestion that it had a material effect on the
proceedings. The remaining factors relate to the explanation
of the error--here evidently a mistaken reliance on the D.C.
Superior Court rules in lieu of those for the federal district
court for the District of Columbia. Foolish as this may have
been, there is no suggestion of bad faith. Further, although
defense counsel gives no reason for this error, we note that a
researcher looking in Westlaw under "Local Federal Court
Rules by State" will indeed be led to the Superior Court rules
rather than those of the federal district court. Thus, given
the great deference we owe district courts in what are
effectively their "case-management decisions," Maldonado-
Denis v. Castillo-Rodriguez, 23 F.3d 576, 583-84 (1st Cir.
1994), there was no reversible error in the court's decision to
accept Parker's late filing. Cf. Hetzel v. Bethlehem Steel
Corp., 50 F.3d 360, 367 (5th Cir. 1995).
Yesudian invokes another theory of forfeiture, arguing that
Parker abandoned the argument by failing to raise it in the
district court before the first appeal, and then failing to
present it on that appeal. See Crocker v. Piedmont Aviation,
Inc., 49 F.3d 735, 738-41 (D.C. Cir. 1995). But any forfeiture
from failure to raise an issue in an initial appeal is far from
absolute, especially where, as here, the party failing to pres-
ent the issue was the appellee, defending on a field of battle
defined by the appellant. Id. at 740-41. Moreover, the
"antecedent" and "dispositive" character of the statutory is-
sue, United States National Bank of Oregon, 508 U.S. at 447,
here too militates against forfeiture. Cf. Crocker, 49 F.3d at
741 (reasoning that the possibility that resolving an issue will
obviate the need for future litigation complexities militates in
favor of addressing an issue that might be treated as forfeit-
ed).
Finally, Yesudian argues that the judgment in the first
appeal assumed that Parker could be liable as an employer,
and that therefore this conclusion became the "law of the
case." But the law of the case doctrine does not apply where
an issue was not raised before the prior panel and thus was
not decided by it. See, e.g., LaShawn A. v. Barry, 87 F.3d
1389, 1395 n.7 (D.C. Cir. 1996). For an issue not raised, the
pertinent doctrine (if any) is forfeiture, see Crocker, 49 F.3d
at 739, discussed above.
At last we reach the merits. Section 3730(h) provides as
follows:
Any employee who is discharged ... by his or her
employer because of lawful acts done by the employee on
behalf of the employee or others in furtherance of an
action under this section ... shall be entitled to all relief
necessary to make the employee whole. Such relief shall
include reinstatement with the same seniority status such
employee would have had but for the discrimination, 2
times the amount of back pay, interest on the back pay,
and compensation for any special damages sustained as a
result of the discrimination, including litigation costs and
reasonable attorneys' fees.
31 U.S.C. s 3730(h).
Section 3730(h) plainly mentions only the "employer" as
incurring liability, and the word "employer" does not normal-
ly apply to a supervisor in his individual capacity. Parker did
not--in his individual capacity--"employ" Yesudian. Even in
cases arising under Title VII, which explicitly defines "em-
ployer" as including "any agent of such a person [a person
engaged in commerce and employing 15 or more persons],"
see 42 U.S.C. s 2000e(b), we and all other circuits have held
that the word "employer" does not cover a supervisor in his
personal capacity. Gary v. Long, 59 F.3d 1391, 1399 (D.C.
Cir. 1995); see also Tomka v. Seiler Corp., 66 F.3d 1295,
1313-17 (2d Cir. 1995); Dici v. Pennsylvania, 91 F.3d 542,
552 (3d Cir. 1996); Lissau v. Southern Food Service, Inc., 159
F.3d 177, 180-81 (4th Cir. 1998); Harvey v. Blake, 913 F.2d
226, 227-28 (5th Cir. 1990); Hiler v. Brown, 177 F.3d 542, 546
(6th Cir. 1999); Williams v. Banning, 72 F.3d 552, 553-55
(7th Cir. 1995); Smith v. St. Bernards Regional Medical Ctr.,
19 F.3d 1254, 1255 (8th Cir. 1994); Miller v. Maxwell's
International, Inc., 991 F.2d 583, 587-88 (9th Cir. 1993);
Haynes v. Williams, 88 F.3d 898, 898-901 (10th Cir. 1996);
Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991).
We (and other circuits) have reasoned that the reference to
an "agent" was simply for the purpose of incorporating
respondeat superior liability into the statute. Gary, 59 F.3d
at 1399; Miller, 991 F.2d at 587; Lissau, 159 F.3d at 180.
As s 3730(h) does not mention an "agent" of the employer as
possibly liable, the inference of coverage here would be far-
fetched and in flat contradiction of Gary.
Further, all the s 3730(h) remedies are phrased in manda-
tory language (the employee "shall be entitled," etc.) and yet
include remedies such as reinstatement, which a mere super-
visor could not possibly grant in his individual capacity.
Yesudian nonetheless maintains that Parker should be lia-
ble in his official capacity. But any claim against Parker in
his official capacity (assuming such a claim to exist in any
intelligible sense) necessarily merges with the claim against
Howard. Gary v. Long, 59 F.3d at 1399. The jury exculpat-
ed Howard, and thus no judgment directly contradicting that
finding could properly be entered. Yet Yesudian offers no
argument in favor of the change that seemingly would be
necessary to allow a coherent judgment in his favor against
Parker in his official capacity--namely a setting aside, as a
matter of law under Fed. R. Civ. P. 50, of the jury's verdict in
favor of Howard on the s 3730(h) claim.
* * *
Accordingly, the judgment of the district court is
Affirmed.