[Post updated Jan. 2019] Last year, a former aviation maintenance technician for United Airlines filed a federal whistleblower lawsuit against the company and accused the airline of shoddy aircraft maintenance. Last week a federal judge in Charleston, South Carolina tossed the suit but said he would give the whistleblower thirty days to file a new complaint with better facts.
Whistleblower “Qui Tam” Suit Against United Airlines
David Grant gave United Airlines 28 years of his life. Starting with the company in 1986, he worked his way up to an aviation maintenance technician and for the last two years with the company, was a lead technician. He worked at the Charleston Air Force Base.
If you are wondering why an airline would have technicians at an air force base, United has a multimillion dollar contract with the Air Force to help inspect, service and maintain large C-17 cargo planes. Called the “Globemaster,” C-17s can carry 171,000 lbs. of cargo and over 35,000 gallons of fuel.
Although the Air Force has its own mechanics, it also contracts with Boeing, Pratt & Witney and United Airlines for maintenance. United ‘s contract calls for the company to overhaul and maintain the aircraft’s engines.
I previously had the privilege of representing an aviation company involved in jet aircraft propulsion systems. The tolerances in jet engine parts are often measured in increments as small as a millionth of an inch. There is no room for error in jet aircraft, passenger or military. Unlike a lawn mower engine or even a car, there is absolutely no room for error on jet engine maintenance. If an engine stalls or seizes in the air or during takeoff, people can die.
Grant claims that United Airlines failed its duties to properly perform its maintenance duties under the contract. Specifically, he claims the company defrauded the Air Force by:
- Welding brackets and braces, obtained from trash materials that should have been destroyed, on cracked hangers, contrary to Pratt & Whitney technical bulletins and prevalent safety standards and billing the United States for new parts;
- Failing to properly certify the tools used to repair the C-17 engines; specifically, certifying that the tools are being calibrated according to manual specifications when they were not.
- Failing to properly calibrate torque wrenches, thereby rendering the tools uselessfor their intended purposes;
- Failing to properly calibrate swedgers, thereby rendering the swedgers useless for their intended purposes and manufacturing faulty and unserviceable hydraulic connections [a swage is a metal working tool];
- Failing to properly calibrate quarter-inch air ratchets, which are used to assemble the C-17’s engines and engine components. Using un-calibrated air ratchets, which do not meet the torque specifications outlined in the C-17’s engine’s maintenance manuals, exposes the C-17’s engine and components to malfunction during flight operations;
- Failing to perform required maintenance and safety checks on components, tools, and equipment essential to the proper maintenance of the C-17’s engines;
- Falsifying inspection records required by the maintenance program for the C-17’s engine.
- Falsifying non-destructive testing inspection records of the C-17’s engine;
- Falsifying the certification of serviceable parts into the spare engine parts pool and billing United States for same, when part was actually unserviceable;
- Failing to train and certify inspectors to meet industry standard inspection criteria to certify the C-17’s engines as airworthy;
- Failing to train mechanics on how to certify the C-17’s engines as airworthy;
- Failing to perform liquid fluorescent penetrant inspections (FPI) according to established maintenance procedures to find cracks in critical engine components;
- Fraudulently certifying components that required fluorescent penetrant inspections;
- Failing to use the proper tools and/or properly calibrated tools to repair engines and components that required fluorescent penetrant inspections;
- Failing to provide mechanics with the necessary equipment and tools to maintain properly the C-17’s engine;
- Refusing to purchase or provide proper equipment and tools for the use of rivets, resulting in the improper repair to nose cowls, which are then more likely to sustain further damage during flight operations;
- Failing to properly test engines on which repairs had been done;
- Failing to tear down and build up the C-17’s engines according to job instruction cards;
- Fraudulently representing to the government that all repairs were done correctly according to job inspection cards and other governing maintenance documents; and
- Actively retaliating against aviation maintenance technicians and employees who opposed the Defendant’s unlawful actions.
If true, the allegations are quite serious. Falsifying test records? Retaliating against technicians who spoke up about the fraud? Using trash materials? As to the latter, Grant’s complaint alleges that one supervisor said when questioned about dumpster diving for jet engine parts, “that’s not garbage, that’s gold.” Making things worse, Grant claims that United billed the Air Force for new parts even when using recycled junk.
Judge Dismisses Whistleblower Case
Why did the court dismiss Grant’s claims?
Grant’s whistleblower complaint against United Airline was filed in Charleston, South Carolina. The case was filed there because that is where the maintenance activities took place.
On November 18, 2016 U.S. District Court Judge David Norton dismissed Grant’s case. Although Grant provided tremendous detail in how the fraud took place, South Carolina is a state where some judges require actual examples of fraud to be identified in the complaint.
That means although Grant worked at United Airlines for 28 years and had plenty of knowledge of aircraft maintenace, his lawsuit is in trouble without specific examples. In other words, the “who, what, when and where.”
There is a difference between providing a detailed account of the wrongdoing (the “how”) and actual examples. Even though Grant has firsthand knowledge of the misconduct, it becomes hard to provide actual examples when you are no longer employed by the wrongdoer. An example in this case could include dates and times when United Airlines falsely claimed they had tested certain engines.
In about one half the states, heightened pleading standards require that the whistleblower assert specific examples. This is not a requirement in all states, however.
Grant was told he was being terminated just 3 days after he complained to management about the company’s illegal practices. We know of several cases where the whistleblower was escorted off the premises within minutes of complaining. Once an employee is let go, gathering evidence or coming up with names, dates and times for examples in the complaint becomes very difficult.
Future of United Airlines Case and Lessons Learned
[Ed. Note: Keep reading for 2019 update.] We will be closely following David Grant’s case. As noted above, we see plenty of cases where we know there is fraud, have a great whistleblower and yet cannot get access to specific examples of misconduct.
If you believe that your employer is committing fraud, talk to us before making waves and before potentially finding yourself on the unemployment line. Also document your concerns and keep the documentation at home and never on the employer’s premises or on a company computer.
Not only is Grant’s whistleblower claim in trouble, so is his retaliation claim.
Even though Grant complained to management about the company’s wrongdoing, a mere complaint isn’t always enough to trigger anti-retaliation laws. To successfully pursue a retaliation claim, the whistleblower must prove that his employer knew he was engaging in a protected activity. In this case, Judge Norton said, “here Grant’s complaints to his supervisors are couched in terms of ‘concerns and suggestions, not threats or warnings of [False Claims Act] litigation,’ and are therefore insufficient to constitute notice.”
Judge Norton gave Grant 30 days to amend his complaint and find examples. Being on the outside for over 2 years, however, will make that task extremely difficult. Of course, that doesn’t stop a current employee of United Airlines with inside knowledge of these frauds from coming forward and pursuing new claims or helping out in Grant’s case.
Jan. 2019 Update Grant did timely amend his complaint. Once again, United Airlines filed another motion to dismiss.
On September 7, 2017 Judge Norton again dismissed the complaint, this time “with prejudice” meaning it couldn’t be refiled.
Properly following the law in South Carolina, the Court said, “Although ‘[m]alice, intent, knowledge, and other conditions of a person’s mind
may be alleged generally,’ when a party alleges ‘fraud or mistake,’ he or she ‘must state with particularity the circumstances constituting fraud or mistake.’ Particularity requires that the claimant state ‘the time, place and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.”
In layman’s terms, that means providing actual examples and is the most common reason given by courts when whistleblowers lose. It isn’t that the judge didn’t believe Grant. It simply means he couldn’t provide examples.
This is common whenever waits to file a complaint after they quit or are terminated. Government intervention cures that problem but if the government doesn’t intervene it may mean that the whistleblower’s own lawyers can’t proceed either.
After losing in 2017, Grant appealed to the U.S. Fourth Circuit Court of Appeals. On December 26th, 2018 David Grant received a very unwanted Christmas present.
Although the Court mostly affirmed the trial court’s decision, one judge on the three judge panel agreed with Grant. The two judge majority also acknowledged they were sympathetic “to the practical challenges that complainants may face, especially where billing practices and records are not readily ascertainable to certain categories of employees within a company.”
There was other good news too. All three judges agreed that the trial judge shouldn’t have dismissed Grant’s retaliation complaint.
Unless the U.S.Supreme Court takes up the case, the whistleblower reward case alleging fraud is dead. Grant may still have his day in court, however, on his retaliation claims.
The takeaway of this post is that whistleblowers are well served to seek experienced whistleblower counsel as soon as possible. Getting a lawyer as early as possible can help protect you against retaliation and maximize the chances that you will receive an award. We can do more if we are hired before you are terminated or quit. That includes taking steps to insure that you can avail yourself of all legal protections in case you are fired or suffer other forms of retaliation.
While employed by the wrongdoer, try to gather as much information as possible but don’t store it on a work computer or on the employer’s premises. Don’t take steal anything from your employer either like confidential records. Again, speak to a lawyer first.
The whistleblower lawyers at MahanyLaw have helped clients recover tens of millions of dollars in reward moneys. (Over $100 million in the last 5 years!) Our consultations are confidential and without obligation. Our services are performed on a contingent or “success” fee basis meaning we are not paid unless you receive an award.
For more information, contact attorney Brian Mahany at or by phone at (direct). Feel free to also visit our defense contractor fraud whistleblower page.
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