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United States ex rel. Bias v. Tangipahoa Parish School Board

United States District Court, E.D. Louisiana

October 31, 2014



ELDON C. FALLON, District Judge.

Before the Court is the Relator's Objection to the Magistrate Judge's Order Dismissing Motion for Leave of Court to File Second Amended Complaint. (Rec. Doc. 85). Having considered the applicable law and the parties' briefs, the Court now issues this order and reasons.


This action arises out of an alleged misappropriation of United States Marine Corps funds and resulting retaliation. On November 1, 2006, Mr. Bias retired from the Marine Corps as a lieutenant colonel. Following his retirement, he was employed by the Tangipahoa Parish School Board ("TPSB") as a senior marine instructor for the Junior Officers' Training Corps ("JROTC") at Amite High School. On June 18, 2009, the Marine Corps contacted Mr. Bias to inform him that it had mistakenly allowed him to retire too early-he had served only 18 years, nine months, and 24 days of a required 20 years. As a result of this error, the Marine Corps had paid Mr. Bias $106, 000 for which he had been ineligible. Accordingly, he was provided with the option of repaying those benefits or re-enlisting for a period of 15 months so as to become eligible for retirement. Mr. Bias chose the latter.

Ordinarily, JROTC positions are filled by retired officers who are certified by the Marine Corps but employed by the schools themselves, as Mr. Bias had been. Perhaps in recognition of the difficulty caused by its error, the Marine Corps varied from its usual policy and assigned Mr. Bias to the JROTC at Amite High School, where he was to continue as a senior marine instructor. Unlike the usual JROTC officer, he would be employed by the Marine Corps. He received his orders on July 10, 2009, and began work shortly thereafter. According to Mr. Bias, he was informed that he would remain at the Amite High School assignment for 15 months, at which point he could either re-enlist or retire.

As the senior marine instructor, Mr. Bias supervised Mr. Foster, a marine instructor and retired master sergeant in the Marine Corps, and reported to Mr. Stant, principal of Amite High School. Both Mr. Foster and Mr. Stant were employees of the Tangipahoa Parish School Board. Soon after he was assigned to Amite High School, Mr. Bias became aware that Mr. Foster planned to request that the Marine Corps reimburse him for non-JROTC activities, including an out-of-state trip by the school's cross-country team. Mr. Bias then notified both Mr. Stant and the Marine Corps of Mr. Foster's intentions. However, with Mr. Stant's approval, Mr. Foster persisted and made the request, which was denied. As a result, Mr. Foster was decertified as a senior instructor with the JROTC. Mr. Bias alleges that, because he had reported the misconduct, Mr. Stant contacted Mr. Bias' Marine Corps supervisor and asked the supervisor to transfer Mr. Bias.

On April 12, 2010, Mr. Bias was informed that he would be transferred if he did not retire. Mr. Bias asserts that this transfer constituted retaliation. (In addition to bringing this action, Mr. Bias also reported Mr. Stant's conduct to the Inspector General of the Marine Corps on October 26, 2010, who determined that the transfer was not a reprisal because Mr. Bias had previously been informed that he would be transferred from Amite High School after the 15 months he needed to obtain retired status had elapsed.) Mr. Bias retired on October 31, 2010, and was reemployed as the senior marine instructor at Amite High School on November 3, 2010.

Mr. Bias brought his original complaint on September 5, 2012, asserting several FCA claims against the Tangipahoa Parish School Board, Mr. Stant, and Mr. Foster. (Rec. Doc. 1). On, February 15, 2013, Mr. Bias moved for leave to file an amended complaint, which was set for submission on March 6, 2013. (Rec. Doc. 16). On February 26, 2013, and before the amended complaint had been filed, the Tangipahoa Parish School Board, Mr. Stant, and Mr. Foster filed an answer.[1] (Rec. Doc. 24). On March 6, 2013, the Court granted the motion for leave to file an amended complaint (Rec. Doc. 25) and, on the same day, the amended complaint was filed into the record. (Rec. Doc. 26). On July 3, 2013, the Tangipahoa Parish School Board, Mr. Stant, and Mr. Foster, moved to dismiss. (Rec. Doc. 44). On March 26, 2014, the Court issued an order granting the motion in part and denying it in part. (Rec. Doc. 62). Specifically, it dismissed Mr. Bias' FCA retaliation claim, his § 1983 claims, and his state law claims, leaving only his FCA qui tam claim.

Mr. Bias moved for reconsideration of the March 26, 2014 order. (Rec. Doc. 64). Mr. Bias argued that the Court erred in dismissing the § 1983 and state law claims as prescribed because the Defendants had failed to plead an affirmative defense of prescription. Second, he argued that the Court erred in dismissing his FCA retaliation claim because the Court needed additional information to determine whether he was an employee of the Tangipahoa Parish School Board. Mr. Bias also asserted that the Court misrepresented the fact that his assignment was extended from 15 or 16 months to 24 months and notes that the Inspector General of the Marine Corps had no authority to investigate the Tangipahoa Parish School Board.

The Court denied Mr. Bias's motion for reconsideration on May 15, 2014. (Rec. Doc. 70). The Court found that the Defendants' Motion to Dismiss constituted a responsive pleading to Mr. Bias's amended complaint and that the Defendants had thus properly raised the affirmative defense of prescription as to Mr. Bias's § 1983 and state law claims in the Motion to Dismiss. (Rec. Doc. 70 at 7-8). The Court held that no additional information was needed to determine whether Mr. Bias was a Tangipahoa Parish School Board employee because that determination had no effect on the Court's decision to dismiss the FCA retaliation claim. (Rec. Doc. 70 at 9). Finally, the Court found that the omission of the alleged extension of Mr. Bias's assignment did not necessitate reconsideration. (Rec. Doc. 70 at 10).

Following the Court's denial of Mr. Bias's motion for reconsideration, the Court issued a scheduling order on May 22, 2014. Pursuant to this scheduling order, the deadline for amendments to pleadings was June 23, 2014. (Rec. Doc. 72 at 1-2). The trial is scheduled for February 2, 2015. (Rec. Doc. 72 at 2).

Mr. Bias took no action to amend his complaint prior to the June 23, 2014 deadline, but he sought leave to file a second amended complaint on August 13, 2014. (Rec. Doc. 75). Mr. Bias explained the reason for his untimely filing and stated:

The reason Relator did not move for leave to amend prior to the scheduled June 23, 2014 is that he was lulled into thinking the issues with the dismissed claims could not be remedied with [an] amended complaint. Granted, the dismissal was without prejudice but counsel had found no obvious deficiency correctable after reading the Court's orders issued in response the motions to dismiss and alter judgment. Note, too, this is a case of first impression involving joint employers under the hybrid economic realities that involved one employer being the ...

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