Andresen v. Intepros Federal, Inc

• Court: District Court, District of Columbia
• Decided: September 12, 2024
• Docket: Civil Action No. 2015-0446
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JENSINE ANDRESEN,

Plaintiff,

v. Civil Action No. 15-446 (EGS)

INTEPROS FEDERAL, INC.,

Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiff Dr. Jensine Andresen (“Dr. Andresen”), proceeding

pro se, brings this action against Defendant IntePros Federal,

Inc. (“IntePros”). Dr. Andresen asserts various federal claims

under the Age Discrimination in Employment Act of 1967 (“ADEA”),

29 U.S.C. § 621, et seq.; Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.; the Fair Labor

Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201, et seq.; the

National Defense Authorization Act for Fiscal Year 2013 (“2013

NDAA”), Pub. L. No. 112-239, 126 Stat. 1632 (2013); and 10

U.S.C. § 2409, a section of the 2013 NDAA that provides

whistleblower protections for contractor employees, Pub. L. No.

112-239, § 827, 126 Stat. 1632, 1833-37 (2013). 1 See Am. Compl.,

1 This statute has been renumbered from 10 U.S.C. § 2409 to 10 U.S.C. § 4701. However, the earlier version of this statute, 1 ECF No. 53 at 105-13 ¶¶ 469-513. 2 Dr. Andresen also advances

District of Columbia statutory claims under the District of

Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401, et

seq.; and the District of Columbia Wage Payment and Collection

Law (“DCWPCL”), D.C. Code § 32-1301, et seq. See id. at 105-10

¶¶ 469-97. Dr. Andresen alleges that while rendering services to

IntePros as an information technology (“IT”) analyst, she

suffered discriminatory and retaliatory conduct based on her

age, gender, and disclosure of certain information to the U.S.

Department of Defense Inspector General (“DoD IG”), and that she

was denied overtime pay. Id. at 1 ¶ 1, 3 ¶ 15.

On February 27, 2017, the Court granted IntePros’ motion to

compel arbitration, stayed this action pending the conclusion of

arbitration, and referred Dr. Andresen’s claims to an arbitrator

to assess their arbitrability, see Order, ECF No. 24 at 1;

following which an appointed arbitrator from the American

Arbitration Association (“AAA”) determined that her claims were

“arbitrable in their entirety[,]” Joint Status Report, ECF No.

27 at 1. On June 6, 2019, after a telephonic hearing on the

parties’ dispositive motions, the arbitrator made an award in

before later amendments occurred, is the relevant version to Dr. Andresen’s claims, so the Court refers to this statute under its earlier numbering throughout this Memorandum Opinion. 2 When citing electronic filings throughout this Memorandum

Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 2 favor of IntePros that “dismissed, denied, and disallowed” all

of Dr. Andresen’s pending claims in this matter. Award, Ex. 2 to

Def.’s Mot. to Dismiss, ECF No. 35-2 at 11. About a month later,

IntePros moved to dismiss Dr. Andresen’s “currently stayed

claims . . . due to the completion of arbitration[,]” and it

argues that “this matter is now ready for one final act:

dismissal.” Def.’s Mot. to Dismiss, ECF No. 35 at 1.

Pending before the Court is IntePros’ motion to dismiss.

See Def.’s Mot. to Dismiss, ECF No. 35. Also pending is Dr.

Andresen’s cross-motion to permit litigation of two retaliation

claims in this Court, see Pl.’s Cross-Mot. to Permit Litigation

of Two Retaliation Claims in D.C. District Ct. (“Pl.’s Cross-

Mot. to Litigate”), ECF No. 38; 3 her motion for leave to file a

second amended complaint (“SAC”) that she alleges corrects

“drafting error[s]” in the Amended Complaint pertaining to those

two claims, see Pl.’s Mot. to File SAC, ECF No. 42 at 2-3; 4 and

3 Although docketed at ECF No. 38, the briefing for Dr. Andresen’s cross-motion to litigate her two retaliation claims is combined with her memorandum in opposition to IntePros’ motion to dismiss, which is docketed at ECF No. 37. Therefore, the Court cites to the ECF header page number from ECF No. 37 when citing to both Dr. Andresen’s cross-motion to litigate and her opposition to IntePros’ motion to dismiss. See Pl.’s Opp’n to Def.’s Mot. to Dismiss & Cross-Mot. to Litigate Two Retaliation Claims in D.C. District Ct. (“Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate”), ECF No. 37. 4 Also relatedly pending before the Court is: (1) Dr. Andresen’s

motion requesting an extension of time to file a late reply to IntePros’ opposition to her motion for leave to file a SAC, see Pl.’s Mot. for Extension of Time to File Reply, ECF No. 60; and 3 her motion to lift the stay in this matter, see Pl.’s Mot. to

Lift Stay, ECF No. 70. In addition, Dr. Andresen has filed a

motion to vacate the arbitration award, see Pl.’s Mot. to

Vacate, ECF No. 45; and IntePros has filed a cross-motion to

confirm the award, see Def.’s Cross-Mot. to Confirm, ECF No. 55; 5

both of which are also pending before the Court.

Upon careful consideration of the arbitration award before

the AAA Commercial Tribunal, Dr. Andresen’s Amended Complaint

before the Court, the various pending motions and cross-motions,

the oppositions and replies thereto, the applicable law, and the

entire record herein, the Court GRANTS IntePros’ motion to

dismiss; DENIES Dr. Andresen’s cross-motion to litigate her two

retaliation claims in this Court; DENIES Dr. Andresen’s motion

for leave to file a SAC; DENIES Dr. Andresen’s motion to vacate

the arbitration award; and GRANTS IntePros’ cross-motion to

confirm the arbitration award. The Court therefore DENIES as

moot Dr. Andresen’s motion to lift the stay in this action.

(2) IntePros’ opposition to Dr. Andresen’s motion requesting this extension of time and cross-motion to strike her untimely reply, see Def.’s Opp’n to Mot. for Extension of Time & Cross- Mot. to Strike, ECF No. 58. 5 IntePros’ cross-motion for confirmation of the arbitration

award, docketed at ECF No. 55, is identical to its memorandum in opposition to Dr. Andresen’s motion to vacate the award, docketed at ECF No. 54. Hereinafter, the Court cites to the ECF header page number from ECF No. 55 when citing to both IntePros’ opposition to Dr. Andresen’s petition for vacatur and its cross- motion to confirm the arbitration award. See Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55. 4 II. Background

A. Factual Background

IntePros is a privately-owned federal contractor, based in

Washington, D.C., that provides IT services to various agencies

and departments of the federal government. Am. Compl., ECF No.

53 at 2 ¶ 5. On June 13, 2013, Dr. Andresen entered into a

contract with IntePros, entitled “Sub Contractor Agreement IT

Consulting” (the “Sub Contractor Agreement”), wherein she

contracted with IntePros to perform work on a government

contract with TRICARE Management Activity, which has since

become the Defense Health Agency (“DHA”). Id. at 3 ¶ 13; see Sub

Contractor Agreement, Ex. A, ECF No. 12-1. The Sub Contractor

Agreement contains an arbitration clause that reads in full:

Any and all disputes, controversies and claims arising out of or relating to this Agreement or concerning the respective rights or obligation[s] hereunder of the parties hereto shall be settled and determined by arbitration before the Commercial Panel of the American Arbitration Association in accordance with the Commercial Arbitration Rules. The arbitrators shall have the power to award specific performance or injunctive relief and reasonable attorneys’ fees and expenses to any party in any such arbitration. However, in any arbitration proceeding arising under this Agreement, the arbitrators shall not have the power to change, modify or alter any express condition, term or provision hereof, and to that extent the scope of their authority is limited. The arbitration award shall be final and binding upon the parties and judgment thereon may be entered in any court having jurisdiction thereof.

5 Sub Contractor Agreement, Provision 9(f), Ex. A, ECF No. 12-1 at

6.

Dr. Andresen worked for IntePros pursuant to the Sub

Contractor Agreement as an “Information Technology Analyst I” at

DHA, specifically at a Department of Defense site in Falls

Church, Virginia, for twelve months until she was terminated on

June 16, 2014. See Am. Compl., ECF No. 53 at 3 ¶¶ 14-15, 39 ¶

174; Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at 2.

During this time, Dr. Andresen alleges that she experienced age

discrimination, sex discrimination, unlawful retaliation, denial

of overtime compensation, and ultimately, unlawful termination

related to “protected whistleblowing” activities she engaged in

by disclosing information related to IntePros’ contract with DHA

to the DoD IG, among other agencies, departments, and officers

of DHA and IntePros. See, e.g., Am. Compl., ECF No. 53 at 81 ¶

370, 85-90 ¶¶ 387-406, 105-13 ¶¶ 469-513.

B. Procedural Background

1. Initiation of Dr. Andresen’s Suit in District Court and IntePros’ Motion to Compel Arbitration

On March 26, 2015, Dr. Andresen filed the instant action.

See Compl., ECF No. 1. Pursuant to the Sub Contractor

Agreement’s arbitration provision, IntePros subsequently filed a

motion to compel arbitration under the Federal Arbitration Act

(“FAA”), 9 U.S.C. § 1, et seq. See Def.’s Mot. to Compel

6 Arbitration, ECF No. 5. Prior to the Court resolving that

motion, on November 25, 2015, Dr. Andresen filed a motion to

amend the complaint to add two claims of unlawful termination,

related to her alleged protected disclosures to the DoD IG, as

Counts V and VI. See Pl.’s Mot. to Amend Compl., ECF No. 10;

Pl.’s Mot. to Vacate, ECF No. 45 at 10. IntePros opposed this

motion and filed a renewed motion to compel arbitration. See

Def.’s Renewed Mot. to Compel Arbitration, ECF No. 11. On March

29, 2016, the Court granted Dr. Andresen’s motion to amend, see

Am. Compl., ECF No. 53; and, in light of the renewed motion to

compel arbitration, denied as moot IntePros’ initial motion to

compel arbitration, see Min. Order (Mar. 29, 2016).

compel arbitration and ordered the parties to proceed to

arbitration “for an arbitrator to determine, in the first

instance, whether the claims in this action are arbitrable[,]”

and it stayed the action during the pendency of the arbitration.

Order, ECF No. 24 at 1; see Andresen v. IntePros Fed., Inc., 240

F. Supp. 3d 143, 149-50, 163 (D.D.C. 2017) (discussing the

arbitration clause’s incorporation of the AAA rules and

concluding that “the question of arbitrability is properly

reserved for arbitral resolution”). 6 The Court also ordered the

6 The Court’s Memorandum Opinion is docketed at ECF No. 25. 7 parties to file a joint status report—following an arbitrator’s

determination of whether Dr. Andresen’s claims were arbitrable—

to inform the Court whether any claims remained for the Court to

address. Order, ECF No. 24 at 1. Finally, the Court noted that

if the arbitrator determined that all claims in this case were

arbitrable, then IntePros could “at that time seek dismissal.”

Andresen, 240 F. Supp. 3d at 163.

2. Early Phases of Arbitration—Limited to Assessing the Arbitrability of Dr. Andresen’s Claims, and Jurisdictional, Exhaustion, and Other Preliminary Issues Regarding Those Claims

In compliance with the Court’s Order, on March 22, 2017,

Dr. Andresen submitted her first demand for arbitration with the

AAA, see Ex. 2 to Def.’s Reply to Pl.’s Opp’n to Mot. to Dismiss

& Opp’n to Pl.’s Cross-Mot. to Litigate (“Def.’s Mot. to Dismiss

Reply & Opp’n to Cross-Mot. to Litigate”), ECF No. 43-2 at 2;

“limited to the issue of the arbitrability of [her] federal and

state employment discrimination, retaliation and whistleblower

charges[,]” Ex. 10 to Def.’s Mot. to Dismiss Reply & Opp’n to

Cross-Mot. to Litigate, ECF No. 43-10 at 3-4. 7 On October 17,

2017, AAA arbitrator Peter F. Healey (“Arbitrator Healey”)

7 IntePros’ reply to Dr. Andresen’s opposition to its motion to dismiss and its opposition to Dr. Andresen’s cross-motion to litigate her two retaliation claims in D.C. District Court is a combined filing that is docketed at both ECF Nos. 43 and 44. These filings are thus identical in substance. Hereinafter, the Court cites only to the ECF header page number from ECF No. 43 when citing to these identical documents. 8 issued an “Affirmative Determination of Arbitrability and

Order,” in which he concluded that Dr. Andresen’s “federal and

District of Columbia statutory claims [were] arbitrable in their

entirety[,]” id. at 10; which led Dr. Andresen to submit her

second demand in arbitration on October 25, 2017, seeking

arbitral resolution of her various state and federal claims, see

Ex. 3 to Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to

Litigate, ECF No. 43-3 at 2. Two days later, on October 27,

2017, the parties filed a joint status report informing the

Court that the arbitrator determined that Dr. Andresen’s claims

were fully arbitrable, and “[t]hus, there [were] no claims

remaining for the Court to address.” Joint Status Report, ECF

No. 27 at 1. Based on this report, the Court further stayed this

action “pending the outcome of arbitration proceedings.” Min.

Order (Oct. 31, 2017).

Arbitration proceeded forward, and on January 23, 2018,

Arbitrator Healey entered a discovery and scheduling order,

consented to by the parties, that bifurcated the arbitration

proceedings into two phases. Ex. 3 to Pl.’s Mot. to Vacate, ECF

No. 45-4 at 3, 6. This order limited “Phase One” of the

proceedings to “potential jurisdictional, exhaustion, and other

preliminary issues” related to Dr. Andresen’s ability to

“maintain her claims as a matter of law[,]” notably whether she

should be considered IntePros’ “employee,” and thus eligible for

9 the requested statutory relief, as opposed to a statutorily

ineligible “independent contractor.” Id. at 3. The order further

stated that the next phase of arbitration would commence only

“if the case continue[d]” following the arbitrator’s rulings on

any Phase One dispositive motions. Id. at 3-4.

3. Dr. Andresen’s Statement of Claims in Arbitration and Her Attempt to Later Submit a “Corrected” Version—Objected to by IntePros

Pursuant to the deadline in the scheduling order, Dr.

Andresen filed her statement of claims in arbitration

(“Statement of Claims”) on February 2, 2018, id. at 4; which

mirrored the Amended Complaint and its six counts, see Ex. 5 to

Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate,

ECF No. 43-5 (redline comparison of the Statement of Claims to

the Amended Complaint). The six counts delineated in both

documents are as follows: (1) Count I, age discrimination in

violation of the ADEA and the DCHRA; (2) Count II, sex

discrimination in violation of Title VII and the DCHRA; (3)

Count III, retaliation in violation of the ADEA, Title VII, and

the DCHRA; (4) Count IV, denial of overtime compensation in

violation of the FLSA and the DCWPCL; (5) Count V, unlawful

termination in violation of the 2013 NDAA; and (6) Count VI,

unlawful termination in violation of 10 U.S.C. § 2409. See id.

at 120-32 ¶¶ 468-513. However, on April 18, 2018, following Dr.

Andresen filing a motion to withdraw her claims under the DCHRA

10 and the DCWPCL, Arbitrator Healey entered a consent order

dismissing her D.C. statutory claims with prejudice. Ex. 1 to

Def.’s Mot. to Dismiss, ECF No. 35-1 at 2; Ex. 2 to Pl.’s Mot.

to Vacate, ECF No. 45-3 at 1.

After the deadline for the submission of claims had passed,

on September 7, 2018, Dr. Andresen emailed the AAA case

administrator, Megan Beyer (“Ms. Beyer”), without copying

IntePros’ counsel, to provide a “corrected” Statement of Claims.

Ex. 6 to Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to

Litigate, ECF No. 43-6 at 2. In this email, she stated:

Please see attached a corrected version of the complaint. Essentially, the version submitted by prior counsel referenced all the relevant statutes but did not organize the paragraphs correctly under Counts V and VI. I have corrected this drafting error here. The number of paragraphs remains the same[,] but the information is slightly reordered.

Id. Ms. Beyer responded on September 10, 2018, copying IntePros’

counsel, that she was in receipt of “the corrected version of

the complaint,” and that it was “on the case file at [that]

time.” Id. That same day, IntePros requested that Dr. Andresen

“provide a blackline comparison between the previously-filed”

Statement of Claims and “the ‘corrected version.’” Ex. 8 to

Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate,

ECF No. 43-8 at 3. Upon receiving this comparison document, see

Ex. 7 to Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to

11 Litigate, ECF No. 43-7 at 2-108 (redline comparison between the

original Statement of Claims and the “corrected” version);

IntePros objected to Dr. Andresen’s “filing for a number of

reasons[,]” Ex. 8 to Def.’s Mot. to Dismiss Reply & Opp’n to

Cross-Mot. to Litigate, ECF No. 43-8 at 2. IntePros wrote:

[T]he comparison reveals that the ‘corrected version’ does significantly more than correct a ‘drafting error’ and ‘organize the paragraphs correctly under Counts V and VI.’ The ‘corrected version’ materially alters the complaint by adding new claims, including claims under District of Columbia law, all of which have been dismissed with prejudice, a claim under 31 U.S.C. § 3730, [the False Claims Act (“FCA”),] and a claim under Section 827 of the NDAA. In light of these substantial and material revisions, your description of the purpose of the revisions as merely correcting a ‘drafting error’ misrepresented their purpose and effect and indicates bad faith or dilatory motive . . . and permitting new claims at this stage will impose undue prejudice on IntePros Federal.

Id. IntePros further argued that Dr. Andresen’s filing of the

“corrected” Statement of Claims was improper under the AAA

Commercial Rules, specifically Rule R-6(b), which prohibits a

claimant from changing its claims or adding “‘new or different

claim[s]’” after an arbitrator has been appointed “‘except with

the arbitrator’s consent.’” Id. (quoting Commercial Arbitration

Rule R-6(b) (2013)). Because Dr. Andresen did “not obtain[] the

arbitrator’s consent,” but had sought to add new claims, notably

a retaliation claim under 31 U.S.C. § 3730 of the FCA, IntePros

12 contended that her filing was “not appropriate.” Id.; see Def.’s

Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No.

43 at 9-11.

Dr. Andresen responded to IntePros’ email on September 13,

2018, claiming that she followed AAA procedure and guidance

provided to her by Ms. Beyer for submitting the “corrected”

Statement of Claims, which she argued did “not introduce a

single new claim . . . or statute[].” Ex. 9 to Def.’s Mot. to

Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43-9 at

2. Dr. Andresen elaborated on her reasons for not viewing the

“corrected” statement as a “material alteration” of the original

version, including that she was: (1) clarifying Count V by

“point[ing] out” that 10 U.S.C. § 2409 was “amended by [section]

827 of the 2013 NDAA[,]” by “group[ing] all the paragraphs of

the original [statement] pertinent to 10 U.S.C. [§] 2409 into

the same place,” and by “helpfully expand[ing] upon the burden

of proof under the 2013 NDAA[;]” (2) editing the title of Count

VI in the Statement of Claims to “discuss[] 31 U.S.C. [§] 3730,

specifically section h of this [FCA] statute” because her

“original [statement] already raised [her] claims under this

statute[;]” and (3) not “reinserting” her previously-dismissed

D.C. law claims. Id.

Dr. Andresen further explained in her email to IntePros

that she had told her prior attorneys about the “drafting error”

13 but that to her knowledge, they did not contact the AAA about

it, which was why she discharged them and brought the issue “to

the attention of the AAA” herself. Id.; see also Ex. F to Pl.’s

Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37-8

at 1-2 (emails between Dr. Andresen and her prior counsel during

arbitration, Cook Craig & Francuzenko, PLLC, dated May 29, 2018,

regarding rectifying the “error” in Counts V and VI of the

Statement of Claims); Def.’s Opp’n to Pl.’s Mot. to Vacate &

Cross-Mot. to Confirm, ECF No. 55 at 10 (noting that Cook Craig

& Francuzenko, PLLC withdrew as Dr. Andresen’s arbitration

counsel on June 8, 2018, with Dr. Andresen then proceeding pro

se); Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate,

ECF No. 37 at 16.

IntePros argues that following its email exchange with her,

Dr. Andresen “failed to take any action to seek the arbitrator’s

consent to amend the February 2018 Statement of Claims until her

response to IntePros’ [Phase One] dispositive motion on April 5,

2019[,]” Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to

Litigate, ECF No. 43 at 11; in which she argued that her

original statement “invoked § 3730(h)” of the FCA, but that if

Arbitrator Healey deemed this claim “new or different,” she then

requested his consent to assert this claim as stated in her

“corrected” Statement of Claims, see Ex. D to Pl.’s Opp’n to

Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37-6 at 34-35.

14 4. Continued Disputes Between the Parties During Arbitration, Leading to the Removal of Their First Arbitrator

As Phase One arbitration proceedings progressed, the

parties became embroiled in a discovery dispute regarding

depositions. See, e.g., Ex. 1 to Def.’s Opp’n to Pl.’s Mot. to

Vacate & Cross-Mot. to Confirm, ECF No. 55-1 at 2-15 (email

chain between the parties from September to October 2018

regarding this dispute). To address the dispute, Arbitrator

Healey scheduled a status conference for October 15, 2018, and

he requested that the parties confer in good faith prior to that

date. Ex. 4 to Pl.’s Mot. to Vacate, ECF No. 45-5 at 4-5.

On October 12, 2018, Dr. Andresen emailed Arbitrator

Healey, copying IntePros’ counsel, to inform him that the

parties met and conferred by email but were unable to resolve

the issues, which she then detailed. See id. at 2-4. On October

15, 2018, counsel for IntePros also emailed Arbitrator Healey by

“replying all” to Dr. Andresen’s previous email and attaching

copies of earlier emails IntePros sent to Dr. Andresen, dated

September 24, 2018 and October 12, 2018, that “addresse[d] the

substance of the claims raised” in Dr. Andresen’s email to

Arbitrator Healey. Id. at 1-2. In the attached September 24,

2018 email, IntePros’ counsel referred to an earlier motion

filed by Dr. Andresen to have Arbitrator Healey removed as the

parties’ arbitrator. See Ex. 1 to Def.’s Opp’n to Pl.’s Mot. to

15 Vacate & Cross-Mot. to Confirm, ECF No. 55-1 at 6 (“I understand

that Arbitrator Healey will not be on the call due to Claimant’s

motion to remove him, which is pending.”). After learning of Dr.

Andresen’s motion to remove him as arbitrator through IntePros’

attached email correspondence, Arbitrator Healey recused himself

on the day of the scheduled status conference. See Ex. 4 to

Pl.’s Mot. to Vacate, ECF No. 45-5 at 1 (“In fairness to all

concerned, I believe my withdrawal is appropriate under the

present circumstances.”). 8

5. Arbitration Continues with a New Arbitrator and a Telephonic Hearing on the Parties’ Phase One Dispositive Motions

On November 16, 2018, the AAA appointed a new arbitrator,

Julie C. Janofsky (“Arbitrator Janofsky”), Pl.’s Mot. to Vacate,

ECF No. 45 at 10-11; who entered a scheduling order setting the

briefing schedule for the parties’ Phase One dispositive

motions, which noted that any hearing requested on the motions

8 Dr. Andresen argues that IntePros violated Commercial Arbitration Rule R-19(a) when its counsel sent Arbitrator Healey the attached email correspondence that referenced Dr. Andresen’s pending motion to remove him as the parties’ arbitrator. Pl.’s Mot. to Vacate, ECF No. 45 at 10. IntePros counters that its email does not violate Rule R-19(a) because it was “not sent ex parte as Dr. Andresen claims.” Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 11. The Court notes that IntePros has confused Rule R-19(a), discussing disqualification of an arbitrator, and Rule R-20(a), prohibiting ex parte communications with an arbitrator, but it does not otherwise find it necessary to address these arguments in relation to the claims in the various pending motions. 16 would be limited to “telephonic oral argument only,” with “no

evidence [being] taken.” Ex. 2 to Def.’s Opp’n to Pl.’s Mot. to

Vacate & Cross-Mot. to Confirm, ECF No. 55-2 at 2. Pursuant to

this order, the parties submitted dispositive motions on the

Phase One issues, including IntePros’ “Phase One Dispositive

Motion and Memorandum,” Dr. Andresen’s “Phase One Dispositive

Cross-Motion and Memorandum, which also contain[ed] an

opposition to [IntePros’] Dispositive Motion[,]” and reply

memoranda from both parties. Award, Ex. 2 to Def.’s Mot. to

Dismiss, ECF No. 35-2 at 2-3; see Exs. 5-8 to Pl.’s Mot. to

Vacate, ECF Nos. 45-6-45-9. IntePros’ dispositive motion “sought

dismissal of all counts on the basis that Dr. Andresen was an

independent contractor and therefore not protected by the

relevant statutes[,]” and it also argued for dismissal of Counts

II, III, V, and VI due to her alleged failure to exhaust

administrative remedies. Def.’s Opp’n to Pl.’s Mot. to Vacate &

Cross-Mot. to Confirm, ECF No. 55 at 16. Dr. Andresen’s cross-

motion and opposition argued that her claims must survive Phase

One to proceed to the merits. Id. at 16-17.

At Dr. Andresen’s request, on May 29, 2019, a telephonic

hearing was held regarding the motions, attended by Dr. Andresen

in pro se capacity and IntePros’ counsel. Award, Ex. 2 to Def.’s

Mot. to Dismiss, ECF No. 35-2 at 3. Both parties agreed during

the hearing, “and so advised the AAA case manager in writing,

17 that [Arbitrator Janofsky] ha[d] their mutual consent to decide

the issues . . . based solely on the written submissions and the

telephonic hearing, without the necessity of holding an

evidentiary hearing.” Id.; see Ex. 3 to Def.’s Opp’n to Pl.’s

Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55-3 at 2-3.

6. The Arbitrator Enters an Award in Favor of IntePros—Dismissing, Denying, and Disallowing All of Dr. Andresen’s Claims, Including Those Raised in Her “Corrected” Statement of Claims

On June 6, 2019, Arbitrator Janofsky entered “a reasoned

award” in favor of IntePros that granted its Phase One

dispositive motion seeking dismissal of all six counts of Dr.

Andresen’s Statement of Claims, including “as amended,” and

“dismissed, denied, and disallowed” “[a]ll other claims brought

by either party.” Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF

No. 35-2 at 3, 11. As to Counts I to IV (age discrimination, sex

discrimination, retaliation, and unpaid overtime), Arbitrator

Janofsky stated that the viability of those claims depended on

Dr. Andresen “first establishing that she was an employee,

rather than an independent contractor,” as the federal statutes

upon which those counts were based—the ADEA, Title VII, and the

FLSA—“all provide redress only for employees, and not for

independent contractors.” Id. at 3. To address this question,

Arbitrator Janofsky applied the six factors of the “economic

realities” test for determining whether a worker is “an employee

18 covered under the FLSA,” in addition to a blend of the factors

from “the hybrid test” and “the common law agency test” for

determining “the existence of an employee-employer relationship

for purposes of the federal anti-discrimination laws.” See id.

at 3-7. Arbitrator Janofsky concluded that Dr. Andresen was not

IntePros’ employee under any of these tests and that she

therefore had “no cause of action under the FLSA, Title VII or

the ADEA for unpaid overtime pay, discrimination or retaliation

in Counts [I] through [IV].” Id. at 9.

Next, Arbitrator Janofsky reviewed Count V of the amended

Statement of Claims, alleging unlawful termination in violation

of the NDAA, 10 U.S.C. § 2409. Id. Arbitrator Janofsky noted

that “[u]nder that statute as it existed at the relevant time of

[Dr. Andresen’s] engagement,” Dr. Andresen had to be an IntePros

employee, “and not an independent contractor, in order to have a

cause of action under the NDAA.” Id. Because she already found

that Dr. Andresen was not an employee of IntePros, Arbitrator

Janofsky denied her NDAA retaliation claim in Count V. Id.

Finally, Arbitrator Janofsky turned to Count VI of the

“corrected” Statement of Claims, alleging that IntePros violated

the FCA, 31 U.S.C. § 3709, by terminating Dr. Andresen “in

retaliation for certain alleged whistleblower activities.” Id.

at 10. Arbitrator Janofsky first noted that Dr. Andresen “did

not file her FCA retaliatory discharge claim within the

19 scheduling order deadlines set by the prior arbitrator[,]” as

Dr. Andresen’s initial Statement of Claims, filed by the

February 2, 2018 deadline, “made no mention or reference

whatsoever to the FCA, nor did it set forth the elements of a

claim under that law.” Id. As a result, Arbitrator Janofsky

concluded that IntePros did not have sufficient notice, prior to

submitting its written discovery requests due the following

month, that Dr. Andresen “intended to pursue a retaliation claim

based on the FCA in this arbitration[,]” id. at 10; nor was this

claim mentioned in the nearly identical Amended Complaint filed

in this Court or in Dr. Andresen’s first or second arbitration

demands filed with the AAA, id. at 10 n.2.; see also Def.’s Mot.

to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43

at 9 (noting that Dr. Andresen’s second arbitration demand

“listed numerous federal statutes other than the FCA”).

Rather than seek arbitrator consent to either alter the

scheduling order or add an FCA retaliation claim, as Dr.

Andresen was required to do pursuant to AAA Commercial Rule R-

6(b)’s mandate regarding the addition of a “new or different

claim,” Arbitrator Janofsky stated that Dr. Andresen “first

raised her FCA retaliation claim in an amendment to her

[Statement of Claims] submitted to the [AAA] case manager, over

[IntePros’] objection, on September 7, 2018.” Award, Ex. 2 to

Def.’s Mot. to Dismiss, ECF No. 35-2 at 10. Arbitrator Janofsky

20 concluded that because Rule R-6(b) “is so explicit, simply

filing an amended [statement of claims] unilaterally with the

case manager, as [Dr. Andresen] did over [IntePros’] objection,

was not effective in and of itself to add a ‘new or different’

claim.” Id. Then, Arbitrator Janofsky rejected Dr. Andresen’s

claim that her September 7, 2018 amendment was “just a minor

correction of a technical error made in a single line of the

original [Statement of Claims].” Id. She wrote:

[A] comparison of [the] original [Statement of Claims] with the amended version shows that [this] argument is disingenuous. In fact, extensive changes of substance were made to the heading and every paragraph of Count [VI] in an attempt to introduce a retaliation claim brought under the FCA. Extensive changes were also made to Count [V] in order to distinguish the retaliation claim brought under the NDAA from the one brought under the FCA in Count [VI]. Indeed, in her Reply Memorandum, at 27, [Dr. Andresen] herself characterizes her FCA claim in Count [VI] as a ‘separate’ retaliation claim. Based on all of this, I find that the FCA claim contained in Count [VI] of the September 7, 2018 [Statement of Claims] was not simply a minor technical correction, but instead, was a new claim, which was indeed ‘separate’ and also different in substance from all the other claims previously asserted in the February 2, 2018 [Statement of Claims]. All of the other claims contained in the February Complaint, including all the other whistleblower and retaliation claims, were brought under distinct statutes other than the FCA, and therefore required proof of entirely different elements.

Id. at 10-11 (emphasis added). Arbitrator Janofsky also

concluded that approving Dr. Andresen’s amendment would, at that

21 point, prejudice IntePros because it had no opportunity “to

propound additional discovery requests to test whether [Dr.

Andresen] met the elements of” an FCA claim prior to the filing

of the dispositive motions. Id. at 11. For all of these reasons,

Arbitrator Janofsky disallowed Dr. Andresen’s “untimely,

unilateral attempt to amend her [Statement of Claims] to add the

new FCA retaliation claim after the scheduling order deadline

and without arbitrator consent,” and dismissed that claim and

“[a]ll other claims not expressly granted,” ultimately

concluding that the award was “in full satisfaction of all

claims presented by the parties in this arbitration.” Id.

7. Dr. Andresen Rejects IntePros’ Request to File a Joint Motion to Voluntarily Dismiss the Stayed Action in District Court

Following the award, on June 10, 2019, IntePros’ counsel

contacted Dr. Andresen’s counsel of record in the stayed action

before this Court, Ari Wilkenfeld (“Mr. Wilkenfeld”), to request

that the parties move for a voluntary dismissal with prejudice.

Ex. 3 to Def.’s Mot. to Dismiss, ECF No. 35-3 at 4-5. On June

17, 2019, Mr. Wilkenfeld replied that Dr. Andresen had “directed

[him] to hold off on filing anything in the federal case while

she consider[ed] her options.” Id. at 4. IntePros’ counsel asked

what options Dr. Andresen was considering, and after not

receiving an answer from Mr. Wilkenfeld, informed him that

IntePros would take all steps necessary to dismiss this case and

22 would seek fees if Dr. Andresen continued to be “recalcitrant”

in “engag[ing] on this issue.” See id. at 2-4. Shortly

thereafter, Mr. Wilkenfeld withdrew as Dr. Andresen’s counsel,

see Min. Order (June 27, 2019); which led IntePros’ counsel to

contact Dr. Andresen directly to request her cooperation in

dismissing with prejudice the stayed claims before the Court “in

light of their resolution in arbitration[,]” Ex. 4 to Def.’s

Mot. to Dismiss, ECF No. 35-4 at 6-7. After an exchange of

emails, Dr. Andresen rejected this request. See id. at 2-7.

Then, on July 11, 2019, Dr. Andresen sent IntePros’ counsel a

letter claiming that under the FAA, she had “90 days from the

date of the arbitrator’s decision on June 6, 2019 to decide

whether to request that the court vacate the award.” Ex. 5 to

Def.’s Mot. to Dismiss, ECF No. 35-5 at 2-3. She stated that she

was continuing to consider her options and would not be

“coerce[d] [ ] into giving up [her] statutory rights.” Id. at 3.

8. IntePros Moves to Dismiss Dr. Andresen’s Action in District Court and Confirm the Arbitration Award, While Dr. Andresen Files a Cross-Motion to Litigate Two Retaliation Claims in District Court, a Motion for Leave to File a Second Amended Complaint, a Motion to Vacate the Arbitration Award, and a Motion to Lift the District Court’s Stay of this Action

The next day, based on Dr. Andresen’s “refus[al] to dismiss

her claims,” IntePros moved to dismiss this case with prejudice

pursuant to the FAA and Federal Rules of Civil Procedure 12 and

23 56. See Def.’s Mot. to Dismiss, ECF No. 35 at 1. IntePros argues

that with all of Dr. Andresen’s claims in arbitration “either

dismissed with prejudice voluntarily or decided against her by

the arbitrator at the dispositive motion stage[,]” “there is

nothing left for this Court to do as to the stayed claims . . .

except to dismiss them.” Id. at 3-4. On July 25, 2019, Dr.

Andresen filed, in one memorandum, her opposition to IntePros’

motion to dismiss and a cross-motion to litigate two retaliation

claims under the 2013 NDAA and the FCA in this district court.

See Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF

No. 37; see also Pl.’s Cross-Mot. to Litigate, ECF No. 38. In a

combined memorandum, on August 1, 2019, IntePros replied to Dr.

Andresen’s opposition to its motion to dismiss and opposed her

cross-motion to litigate her two retaliation claims, see Def.’s

Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No.

43; to which Dr. Andresen replied on August 12, 2019, see Pl.’s

Reply to Def.’s Opp’n to Pl.’s Cross-Mot. to Litigate Two

Retaliation Claims in D.C. District Ct. (“Pl.’s Reply to Def.’s

Opp’n to Cross-Mot. to Litigate”), ECF No. 52.

While IntePros’ motion to dismiss was pending, on August

1, 2019, pursuant to Federal Rule of Civil Procedure 15, Dr.

Andresen filed a motion for leave to file a SAC for the alleged

purposes of “correct[ing] the drafting error in Counts V and VI”

of the Amended Complaint and “updat[ing] the Complaint, which is

24 now almost four years old.” Pl.’s Mot. to File SAC, ECF No. 42

at 3. IntePros filed its opposition on August 9, 2019. See

Def.’s Opp’n to Pl.’s Mot. to File SAC, ECF No. 49. On August

19, 2019, Dr. Andresen filed her reply and included as an

exhibit a motion for extension of time to file that reply, which

was due by August 16, 2019 pursuant to the seven-day response

time permitted by Local Civil Rule 7(d). See Pl.’s Reply to

Def.’s Opp’n to Pl.’s Mot. to File SAC, ECF No. 57; Ex. 1 to

Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. to File SAC, ECF No.

57-1 at 1-3. That same day, IntePros filed its opposition to Dr.

Andresen’s request for an extension of time and a cross-motion

to strike her untimely reply brief, see Def.’s Opp’n to Mot. for

Extension of Time & Cross-Mot. to Strike, ECF No. 58; to which

Dr. Andresen replied also on August 19, 2019, see Pl.’s Reply to

Def.’s Opp’n to Mot. for Extension of Time & Opp’n to Cross-Mot.

to Strike, ECF No. 59.

Additionally, on August 2, 2019, “eight days after filing a

‘cross-motion to litigate’ [her] two [retaliation] claims (ECF

No. 38) and one day after filing a motion to amend the Amended

Complaint (ECF No. 42)[,]” Def.’s Opp’n to Pl.’s Mot. to Vacate

& Cross-Mot. to Confirm, ECF No. 55 at 12; Dr. Andresen filed a

petition for vacatur of the arbitration award in favor of

IntePros under “the exclusive, statutory grounds for vacatur

delineated in § 10 of the [FAA,]” see Pl.’s Mot. to Vacate, ECF

25 No. 45 at 8. She requests that the Court vacate the award and

remand to arbitration her claims under the ADEA, Title VII, and

the FLSA, as well as her D.C. law claims under the DCHRA and the

DCWPCL which she “wishes to reassert,” while permitting her to

litigate her two retaliation claims under 10 U.S.C. § 2409,

“which corresponds to § 827 of the” 2013 NDAA, and “under §

3730(h)” of the FCA. Id. at 8-9. Furthermore, Dr. Andresen

requests that when ruling on her cross-motion to litigate these

two retaliation claims, see ECF Nos. 37 & 38; if the Court

disagrees that these claims are “inarbitrable,” as Dr. Andresen

argues, then the Court should “remand all her claims, including

these two, back to arbitration” so the parties can “begin anew”

with the arbitration process, Pl.’s Mot. to Vacate, ECF No. 45

at 9. On August 16, 2019, IntePros simultaneously filed its

opposition to Dr. Andresen’s petition for vacatur and a cross-

motion to confirm the arbitration award, arguing that Dr.

Andresen has failed “to assert any cognizable basis to vacate

the arbitrator’s award[,]” see Def.’s Opp’n to Pl.’s Mot. to

Vacate & Cross-Mot. to Confirm, ECF No. 55 at 7; to which Dr.

Andresen replied on August 23, 2019, see Pl.’s Reply to Def.’s

Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm,

ECF No. 63. 9 On August 30, 2019, IntePros filed its reply in

9 Although docketed at ECF No. 64, Dr. Andresen’s memorandum in opposition to IntePros’ cross-motion to confirm the award is 26 support of its cross-motion to confirm the arbitration award.

See Def.’s Cross-Mot. to Confirm Reply, ECF No. 65.

Most recently, on December 14, 2023, Dr. Andresen filed a

motion requesting that the Court lift the stay in this action

given the completion of arbitration proceedings and the presence

of various motions before the Court regarding next steps. See

Pl.’s Mot. to Lift Stay, ECF No. 70 at 1.

The parties’ various motions and cross-motions, including

IntePros’ motion to dismiss and cross-motion to confirm the

arbitration award, and Dr. Andresen’s cross-motion to litigate

her two retaliation claims, her motion for leave to file a SAC,

her motion to vacate the arbitration award, and her motion to

lift the stay in this matter are now ripe and ready for the

Court’s adjudication.

III. Standard of Review

A. Motion to Dismiss Following the Completion of Arbitration Pursuant to the Federal Arbitration Act

IntePros has filed a motion to dismiss “pursuant to the

[FAA], Fed. R. Civ. P. 12, [and] Fed. R. Civ. P. 56[.]” Def.’s

Mot. to Dismiss, ECF No. 35 at 1. IntePros does not specify

under which subsection of Rule 12 it seeks dismissal, nor does

it address any applicable standard of review under Rule 12 or

combined with her reply to IntePros’ opposition to her petition for vacatur and docketed at ECF No. 63. Thus, hereinafter, the Court cites to ECF No. 63 when citing to this combined filing. 27 Rule 56 in its motion, which is also true of Dr. Andresen’s

opposition brief. Both parties have attached documents to their

briefings regarding IntePros’ motion to dismiss from outside of

the pleadings, including the Sub Contractor Agreement at issue;

various materials from the arbitration proceedings, such as the

arbitrator’s “Affirmative Determination of Arbitrability and

Order” and the final award in favor of IntePros; and email

exchanges between the parties from both during and after

arbitration. The Court therefore considers IntePros’ motion to

dismiss as the sequel to its earlier motion to compel

arbitration, and the motion follows the Court’s instruction, in

granting that motion to compel, that IntePros could “seek

dismissal” following an arbitrator’s determination “that all

claims in this case are arbitrable[.]” Andresen, 240 F. Supp. 3d

at 163.

Accordingly, IntePros’ motion to dismiss technically “does

not come[] within the ambit of Rule 12(b) of the Federal Rules

of Civil Procedure, which allows a defendant to move to dismiss

on, among other things, grounds that the court lacks subject

matter jurisdiction or that the plaintiff’s claim fails to state

a claim upon which relief can be granted.” Brown v. Dorsey &

Whitney, LLP, 267 F. Supp. 2d 61, 66 (D.D.C. 2003) (citation and

internal quotation marks omitted). As a result, the Court turns

28 to the relevant provisions of the FAA that govern arbitration

for guidance on discerning the appropriate standard of review.

Section 2 of the FAA provides that “[a] written provision

in . . . a contract evidencing a transaction involving commerce

to settle by arbitration a controversy thereafter arising out of

such contract . . . shall be valid, irrevocable, and

enforceable, save upon such grounds as exist at law or in equity

for the revocation of any contract.” 9 U.S.C. § 2. The FAA “also

establishes procedures by which federal courts implement § 2’s

substantive rule.” Rent-A-Center, West, Inc. v. Jackson, 561

U.S. 63, 68, 130 S. Ct. 2772, 177 L. Ed. 2d 403 (2010). “Under §

3, a party may apply to a federal court for a stay of the trial

of an action ‘upon any issue referable to arbitration under an

agreement in writing for such arbitration[,]’” id. (quoting 9

U.S.C. § 3); and the court must stay the action “until such

arbitration has been had in accordance with the terms of the

agreement,” 9 U.S.C. § 3. “Under § 4, a party ‘aggrieved’ by the

failure of another party ‘to arbitrate under a written agreement

for arbitration’ may petition a federal court ‘for an order

directing that such arbitration proceed in the manner provided

for in such agreement.’” Rent-A-Center, 561 U.S. at 68 (quoting

9 U.S.C. § 4).

Defendants can move to compel arbitration pursuant to 9

U.S.C. § 4 of the FAA and to dismiss the action all in the same

29 motion. See, e.g., Martin v. Citibank, Inc., 567 F. Supp. 2d 36,

39 (D.D.C. 2008) (defendant “seeking an Order to Dismiss and to

Compel Arbitration”); Brown, 267 F. Supp. 2d at 63 (“Currently

before the Court is the defendant’s Motion to Dismiss and Compel

Arbitration[.]”); Haire v. Smith, Currie & Hancock LLP, 925 F.

Supp. 2d 126, 127 (D.D.C. 2013) (“Before the Court is [the

defendant’s] motion to dismiss or to stay and compel

arbitration.”); Grynberg v. BP P.L.C., 596 F. Supp. 2d 74, 76

(D.D.C. 2009) (defendant seeking “to dismiss [the] plaintiffs’

complaint and to compel arbitration”). As such, district courts

may simultaneously determine whether to compel arbitration and

whether to dismiss the action in the same decision, see, e.g.,

Ryan v. BuckleySandler, LLP, 69 F. Supp. 3d 140, 149 (D.D.C.

2014) (granting “the defendants’ Motion to Dismiss and Compel

Arbitration” and dismissing the case); W & T Travel Servs., LLC

v. Priority One Servs., Inc., 69 F. Supp. 3d 158, 167-68, 172-74

(D.D.C. 2014) (denying the plaintiff’s motion to stay

arbitration and granting the defendant’s motion to dismiss); or,

as is the case here, they may rule on a motion for dismissal

following the completion of arbitration, see White v. Four

Seasons Hotels & Resorts, 999 F. Supp. 2d 250, 263 (D.D.C. 2013)

(staying proceedings “pending the outcome of [ ] arbitration,”

to, at that time, determine whether dismissal was appropriate).

30 In such situations, “the proper approach to employ in

reviewing the defendant’s motion to dismiss and[/or to] compel

arbitration is to apply the same standard of review that governs

Rule 56 motions” for summary judgment. See Brown, 267 F. Supp.

2d at 67 (explaining that courts are not, in these instances,

converting a Rule 12 motion to dismiss into a Rule 56 motion for

summary judgment but “rather construing the motion for what it

really is—a motion to compel arbitration pursuant to 9 U.S.C. §

4—and applying the Rule 56 standard of review in addressing the

merits of the motion”); accord Martin, 567 F. Supp. 2d at 41;

see also Technetronics, Inc. v. Leybold-Graeus GmbH, No. 93-

1254, 1993 WL 197028, at *2 (E.D. Pa. June 9, 1993) (“Although

styled as a motion to dismiss, in a motion to stay proceedings

and/or compel arbitration, the appropriate standard of review

for the district court is the same standard used in resolving

summary judgment motions pursuant to Fed. R. Civ. P. 56(c).”).

The Court reviewed IntePros’ motion to compel arbitration

pursuant to Rule 56(c)’s standard. See Andresen, 240 F. Supp. 3d

at 148. Accordingly, because IntePros’ motion to dismiss

accompanies its earlier motion to compel arbitration and

attaches matters outside of the pleadings, the Court again “will

employ the standard of review applicable to the resolution of

summary judgment motions.” Brown, 267 F. Supp. 2d at 68.

31 “Under Federal Rule of Civil Procedure 56, summary judgment

shall be granted ‘if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to a

judgment as a matter of law,’ upon consideration of ‘materials

in the record’ that establish the absence or presence of a

genuine dispute.” Ryan, 69 F. Supp. 3d at 144 (quoting Fed. R.

Civ. P. 56(a), (c)). While “[t]he movant bears the burden of

demonstrating the absence of a genuine dispute of material

fact[,]” Grynberg, 596 F. Supp. 2d at 77 (citing Celotex Corp.

v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265

(1986)); “[t]he evidence is to be viewed in the light most

favorable to the nonmoving party and the court must draw all

reasonable inferences in favor of the nonmoving party[,]”

Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct.

2505, 91 L. Ed. 2d 202 (1986)). It is appropriate for the court

to compel arbitration and/or grant dismissal if the non-moving

party has failed to “establish more than the ‘mere existence of

a scintilla of evidence’ in support of its position.” Martin,

567 F. Supp. 2d at 41 (quoting Anderson, 477 U.S. at 252). If

the evidence favoring the non-moving party “is merely colorable,

or is not significantly probative, summary judgment may be

granted.” Anderson, 477 U.S. at 249-50 (internal citations

omitted).

32 B. Motion to File an Amended Complaint Pursuant to Federal Rule of Civil Procedure 15(a)

Federal Rule of Civil Procedure 15(a) allows a party to

amend its pleading “once as a matter of course” within: (1) “21

days after serving it, or[;]” (2) “if the pleading is one to

which a responsive pleading is required, 21 days after service

of a responsive pleading or 21 days after service of a motion

under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R.

Civ. P. 15(a)(1)(A)-(B). “In all other cases, a party may amend

its pleading only with the opposing party’s written consent or

the court’s leave[,]” which “[t]he court should freely give [ ]

when justice so requires.” Fed. R. Civ. P. 15(a)(2). Although

the district court has sole discretion to grant or deny leave to

amend, Walker v. Pharm. Rsch. & Mfrs. of Am., 256 F.R.D. 234,

238 (D.D.C. 2009); it is an abuse of discretion for the court to

deny leave without “provid[ing] a sufficiently compelling

reason,” Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101,

113–114 (D.D.C. 2002). Such reasons may include “undue delay,

bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of

the amendment, [or] futility of amendment[.]” Foman v.

Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962).

“The burden is on the defendant to show that leave to file an

33 amended complaint should be denied.” Afram v. United Food & Com.

Workers Unions & Participating Emps. Health & Welfare Fund, 958

F. Supp. 2d 275, 278 (D.D.C. 2013).

C. Motion to Vacate an Arbitration Award Pursuant to 9 U.S.C. § 10(a) of the Federal Arbitration Act

Pursuant to the FAA, “[a]s [the Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”)] ha[s] repeatedly

recognized, ‘judicial review of arbitral awards is extremely

limited[.]’” Kurke v. Oscar Gruss & Son, Inc., 454 F.3d 350, 354

(D.C. Cir. 2006) (quoting Teamsters Local Union No. 61 v. United

Parcel Serv., Inc., 272 F.3d 600, 604 (D.C. Cir. 2001) (some

citations and internal quotation marks omitted)). “This ‘limited

judicial review’ is necessary to ‘maintain[] arbitration’s

essential virtue of resolving disputes straightaway.’” Mesa

Power Grp., LLC v. Gov’t of Canada, 255 F. Supp. 3d 175, 183

(D.D.C. 2017) (quoting Oxford Health Plans LLC v. Sutter, 569

U.S. 564, 568, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013) (some

citations and internal quotation marks omitted)). Because it was

enacted to create a “national policy favoring arbitration,”

Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126

S. Ct. 1204, 163 L. Ed. 2d 1038 (2006); the FAA supplies only

three mechanisms for judicial review of arbitration awards: “a

judicial decree confirming an award, an order vacating it, or an

order modifying or correcting it[,]” Hall St. Assocs., LLC v.

34 Mattel, Inc., 552 U.S. 576, 582, 128 S. Ct. 1396, 170 L. Ed. 2d

254 (2008) (citing to sections 9 through 11 of the FAA). “Under

the terms of [section] 9, a court ‘must’ confirm an arbitration

award ‘unless’ it is vacated, modified, or corrected ‘as

prescribed’ in [sections] 10 and 11.” Id.

“Under the FAA, courts may vacate an arbitrator’s decision

‘only in very unusual circumstances.’” Oxford Health Plans, 569

U.S. at 568 (quoting First Options of Chi., Inc. v. Kaplan, 514

U.S. 938, 942, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995)).

Section 10(a) of the FAA “provide[s] the FAA’s exclusive grounds

for” vacating an arbitration award. Hall St., 552 U.S. at 584.

The grounds for vacatur include: “(1) where the award was

procured by corruption, fraud, or undue means; (2) where there

was evident partiality or corruption in the arbitrators, or

either of them; (3) where the arbitrators were guilty of

misconduct in refusing to postpone the hearing, upon sufficient

cause shown, or in refusing to hear evidence pertinent and

material to the controversy; or of any other misbehavior by

which the rights of any party have been prejudiced; or (4) where

the arbitrators exceeded their powers, or so imperfectly

executed them that a mutual, final, and definite award upon the

subject matter submitted was not made.” 9 U.S.C. § 10(a)(1)-(4).

These grounds for vacatur “sharply limit the judicial

review of the evidentiary and legal findings of” the arbitrator,

35 Coyne v. Hewlett-Packard Co., 308 F. Supp. 3d 207, 210 (D.D.C.

2018); and “restate the longstanding rule that, [i]f [an

arbitration] award is within the submission, and contains the

honest decision of the arbitrator[], after a full and fair

hearing of the parties, a court . . . will not set [the award]

aside for error, either in law or fact[,]” Mesa Power, 255 F.

Supp. 3d at 183 (citations and internal quotation marks

omitted). District courts are thus “not authorized to reconsider

the merits of an award even though the parties may allege that

the award rests on errors of fact or on misinterpretation of the

contract[,]” United Paperworkers Int’l Union, AFL-CIO v. Misco,

Inc., 484 U.S. 29, 36, 108 S. Ct. 364, 98 L. Ed. 2d 286 (1987);

and must instead uphold the award “even if it offered no

explanation at all because the alternative, requiring a

particular level of detail for every response to each party’s

theories, would unjustifiably undermine the speed and thrift

sought from arbitration proceedings[,]” Republic of Argentina v.

AWG Grp. LTD., 894 F.3d 327, 338 (D.C. Cir. 2018) (citation and

internal quotation marks omitted).

IV. Analysis

The Court divides the parties’ various pending motions and

cross-motions into three groups to analyze below. First, the

Court will address IntePros’ motion to dismiss, see ECF No. 35;

and Dr. Andresen’s opposition to this motion and accompanying

36 cross-motion requesting permission to litigate two retaliation

claims under: (1) section 827 of the 2013 NDAA, 10 U.S.C. §

2409; and (2) 31 U.S.C. § 3730(h) of the FCA, see ECF Nos. 37 &

38. Second, the Court will address Dr. Andresen’s motion for

leave to file a SAC, see ECF No. 42; IntePros’ opposition to

this motion, see ECF No. 49; and the various briefings regarding

Dr. Andresen’s motion requesting an extension of time to file

her reply to this opposition and IntePros’ cross-motion to

strike her untimely reply, see ECF Nos. 58-62. Finally, the

Court will turn to Dr. Andresen’s motion to vacate the

arbitration award, see ECF No. 45; and IntePros’ simultaneous

opposition to this motion and cross-motion to confirm the award,

see ECF Nos. 54 & 55.

A. The Court Grants IntePros’ Motion to Dismiss and Denies Dr. Andresen’s Cross-Motion to Litigate Two Retaliation Claims in District Court

In its motion to dismiss, IntePros argues that “[a]fter

more than [eight] years of litigation and arbitration, this

matter is now ready for one final act: dismissal.” Def.’s Mot.

to Dismiss, ECF No. 35 at 1. Specifically, IntePros argues that

following: (1) the Court’s referral of Dr. Andresen’s claims to

arbitration to assess their arbitrability; (2) an arbitrator’s

determination that these claims were “‘arbitrable in their

entirety’ and that ‘there [were] no claims remaining for the

Court to address[;]’” and (3) the completion of arbitration in

37 the form of an award in favor of IntePros fully resolving and

dismissing Dr. Andresen’s claims in arbitration, “[t]here is

nothing left for this Court to do but to dismiss Dr. Andresen’s

[stayed] claims”—with prejudice. See id. at 1-3 (quoting Joint

Status Report, ECF No. 27 at 1).

Dr. Andresen contests the propriety of dismissal at this

stage in the litigation and argues that her two retaliation

claims, appearing in Counts V and VI of the Amended Complaint,

“remain properly in front of this Court, on the grounds that”

these claims “never existed in the arbitral forum” because the

arbitrator did not permit her to correct a “drafting error”

involving these claims. Pl.’s Opp’n to Mot. to Dismiss & Cross-

Mot. to Litigate, ECF No. 37 at 7-8. She argues that her

retaliation claims, “marred by [this] unfortunate drafting

error,” were actually meant to be asserted separately under

section 827 of the 2013 NDAA—10 U.S.C. § 2409—and 31 U.S.C. §

3730(h) of the FCA, “both at the time she amended her lawsuit

and later in arbitration,” and that, unlike the arbitrator, the

Court should permit her to litigate these claims because they

are both “alive in this Court” and “not arbitrable,” and

therefore, dismissing these claims would prejudice her. Id. at

7-8, 13-14. In addition, Dr. Andresen requests that the Court

“undertake a fulsome judicial review of the arbitrability

determination made by the first arbitrator[.]” Id. at 20.

38 IntePros rejects each of these arguments in its reply brief

as “requests to re-litigate issues already decided [against Dr.

Andresen] by this Court and the arbitrator.” Def.’s Mot. to

Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43 at

6. It also argues that Dr. Andresen’s “cross-motion to litigate”

“is not a cognizable mechanism to challenge the arbitrator’s

rulings” under the FAA, and further that she “is judicially

estopped from contesting the arbitrability of the claims raised

in the Amended Complaint.” Id. at 18, 20.

1. The Court Rejects Dr. Andresen’s Central Contention That a “Drafting Error” “Marred” Her FCA Retaliation Claim, as the Amended Complaint Cannot Reasonably Be Construed to Plead Such a Claim, and It Thus Cannot Be Litigated Now

Dr. Andresen’s combined briefing for her opposition to

IntePros’ motion to dismiss and her cross-motion to litigate

raises various arguments, but each is based on her central

contention that a “drafting error” by her legal counsel “marred”

her intended FCA retaliation claim, both in her Amended

Complaint before the Court and in her Statement of Claims in

arbitration. Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to

Litigate, ECF No. 37 at 14. The Court therefore begins its

analysis of the propriety of granting IntePros’ motion to

dismiss with this “central argument made by Dr. Andresen,” which

IntePros argues is nothing more than “disingenuous gymnastics to

try to persuade th[e] Court to ignore the adverse [arbitration]

39 rulings against her,” Def.’s Mot. to Dismiss Reply & Opp’n to

Cross-Mot. to Litigate, ECF No. 43 at 6; specifically, the

arbitrator’s rejection of her “untimely, unilateral attempt . .

. to add [a] new FCA retaliation claim” to an amended version of

her Statement of Claims, Award, Ex. 2 to Def.’s Mot. to Dismiss,

ECF No. 35-2 at 11.

Dr. Andresen’s explanation of the alleged “drafting error”

begins on November 25, 2015, when she moved to amend the

complaint in this Court “to include new claims of retaliation

and wrongful termination.” Pl.’s Mot. to Amend Compl., ECF No.

10 at 1. She claims that this amendment added “two new counts—

not one—because it was [her] intention to cite to the NDAA/10

U.S.C. § 2409, on the one hand, and the FCA/31 U.S.C. § 3730(h),

on the other[,]” but that her then-trial counsel, Mr.

Wilkenfeld, incorrectly “commingle[d] language between both

statutes” when drafting Counts V and VI of the Amended

Complaint. Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to

Litigate, ECF No. 37 at 14.

To demonstrate this error, Dr. Andresen directs the Court

to paragraph 504 of the Amended Complaint—appearing under “Count

V: Unlawfull [sic] Termination in Violation of the 2013 [NDAA]”—

which states: “Defendant’s actions complained of constitute a

willful violation of Section 3730(h) of the NDAA Whistleblower

Protection Act.” Id.; Am. Compl., ECF No. 53 at 111 ¶ 504. She

40 explains that “‘Section 3730(h)’ does not exist anywhere else in

the law other than in the context of the FCA . . . [and thus]

never could have referred to the NDAA, which does not contain

[a] ‘Section 3730(h).’” Pl.’s Opp’n to Mot. to Dismiss & Cross-

Mot. to Litigate, ECF No. 37 at 15. As such, Dr. Andresen claims

that where paragraph 504 states “Section 3730(h),” it should

have instead referred to 10 U.S.C. § 2409, which codifies

section 827 of the 2013 NDAA. Id. at 14-15. In addition, Dr.

Andresen contends that “‘Section 3730(h)’ should have [instead]

been part of Count VI, and the title of Count VI should have

referenced the FCA[,]” id.; but was mistakenly titled “Count VI:

Unlawfull [sic] Termination in Violation of [ ] 10 U.S.C. §

2409,” Am. Compl., ECF No. 53 at 111; thereby leading to a

“drafting error” that “incorrectly divides the NDAA and 10

U.S.C. § 2409 between Counts V and VI,” Pl.’s Opp’n to Mot. to

Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 15. In sum, Dr.

Andresen argues that had it not been for Mr. Wilkenfeld’s

“drafting error,” Count V of the Amended Complaint would have

pled allegations exclusively under section 827 of the 2013 NDAA

(10 U.S.C. § 2409) and Count VI would have pled allegations

solely under the FCA (31 U.S.C. § 3730(h)). See id. at 14-15.

Dr. Andresen then claims that this “drafting error” bled

into arbitration when her attorneys from Cook Craig &

Francuzenko, PLLC submitted a Statement of Claims in arbitration

41 on her behalf on February 2, 2018 that left Counts V and VI

“identical in wording to how Mr. Wilkenfeld had presented them”

in the Amended Complaint, and additionally failed to correct the

error once Dr. Andresen brought it to their attention on May 29,

2018. Id. at 15-16; Ex. F to Pl.’s Opp’n to Mot. to Dismiss &

Cross-Mot. to Litigate, ECF No. 37-8 at 1-2. She explains that

this inaction led her to discharge her counsel, represent

herself pro se, and send to Ms. Beyer a “corrected version” of

the Statement of Claims on September 7, 2018 that “corrected

th[e] drafting error.” Pl.’s Opp’n to Mot. to Dismiss & Cross-

Mot. to Litigate, ECF No. 37 at 16; Ex. G to Pl.’s Opp’n to Mot.

to Dismiss & Cross-Mot. to Litigate, ECF No. 37-9 at 1. Dr.

Andresen claims that she believed “she was merely correcting a

drafting error in the amended portions of her” Statement of

Claims rather than “asserting a new claim in arbitration[,]” and

therefore she did not think she needed to submit a formal motion

to amend her statement with the AAA. Pl.’s Opp’n to Mot. to

Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 16-17 n.5.

In the award, Arbitrator Janofsky called this explanation

“disingenuous” and concluded that Dr. Andresen had falsely

characterized her amended Statement of Claims “as just a minor

correction of a technical [drafting] error” when “[i]n fact,

extensive changes of substance were made” to Counts V and VI, in

both their headings and several paragraphs, in an attempt to:

42 (1) introduce a retaliation claim under the FCA; and (2)

distinguish her already-raised retaliation claim brought under

the NDAA from the new one sought under the FCA. Award, Ex. 2 to

Def.’s Mot. to Dismiss, ECF No. 35-2 at 10. “Based on all of

this,” Arbitrator Janofsky determined that the FCA retaliation

claim contained in the corrections to Count VI of the amended

Statement of Claims “was not simply a minor technical

correction,” but the addition of “a new claim” that was

“‘separate’ and also different in substance from all the other

claims previously asserted.” Id.; see also Ex. 7 to Def.’s Mot.

to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43-7

(redline comparison between the February 2018 Statement of

Claims and the September 2018 “corrected” version).

So too here does IntePros call Dr. Andresen’s explanation

of the “drafting error” in the Amended Complaint “disingenuous,”

and it argues that “[t]he facts . . . contradict [Dr.

Andresen’s] assertion that an FCA retaliation claim” was ever

pled therein. Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot.

to Litigate, ECF No. 43 at 6-7. Instead, IntePros contends that

“Counts V and VI both purport to allege claims under the

NDAA[,]” as “the legal standards of the law” cited in both

counts refer to the NDAA and “bear no relation to the FCA.” Id.

at 7-9. As such, IntePros argues that “an accurate account of

the facts” shows that the Amended Complaint “does not contain

43 any reference to the FCA” or “describe any ‘false claims[,]’”

and is therefore “bereft” of any FCA retaliation claim. Id.

IntePros urges the Court to follow Arbitrator Janofsky’s lead

and reject Dr. Andresen’s “misleading attempts” to construe the

existence of an FCA claim in the Amended Complaint based on the

“disingenuous” narrative of a “drafting error.” See id. at 9-12.

The Court agrees with IntePros and rejects Dr. Andresen’s

contention that either Counts V or VI of the Amended Complaint,

identical in substance to their counterparts in the original

Statement of Claims, see Ex. 5 to Def.’s Mot. to Dismiss Reply &

Opp’n to Cross-Mot. to Litigate, ECF No. 43-5 at 129-132 ¶¶ 498-

513 (redline comparison of the two documents); 10 can be construed

to assert a retaliation claim under section 3730(h) of the FCA.

First, the Court’s review of “Count V: Unlawfull [sic]

Termination in Violation of the 2013 [NDAA,]” indicates that

this count can only reasonably be construed to refer to the

NDAA, as it not only “expressly refer[s] to the NDAA itself[,]”

but it also states “the legal standards in both 10 U.S.C. § 2409

[and] 41 U.S.C. § 4712, which are sister [whistleblower]

statutes under the NDAA[.]” Def.’s Mot. to Dismiss Reply & Opp’n

to Cross-Mot. to Litigate, ECF No. 43 at 7-8. The 2013 NDAA

10The only noteworthy difference between Counts V and VI in the Amended Complaint and Counts V and VI in Dr. Andresen’s original Statement of Claims is that the term “Defendant,” as used to name IntePros as a party, is changed to “Respondent.” 44 amended 10 U.S.C. § 2409, which offers whistleblower protections

to contractor employees working on contracts with the Department

of Defense, and it also created 41 U.S.C. § 4712 to offer

similar whistleblower protections to contractor employees

working on contracts with other federal governmental agencies.

See id. at 8 n.1 (explaining that “whereas the anti-retaliation

language in 10 U.S.C. § 2409 refers to the Department of

Defense, the language in 41 U.S.C. § 4712 refers broadly to the

‘Federal’ government”); 2013 NDAA, Pub. L. No. 112-239, §§ 827,

4712, 126 Stat. 1632, 1833-41 (2013).

Here, paragraphs 499 and 500 of Count V quote language from

41 U.S.C. § 4712(a)(1) and (a)(2), which detail that statute’s

“prohibition of reprisals” for a contractor disclosing protected

information related to a federal contract to certain covered

“persons and bodies,” and from 10 U.S.C. § 2409(a)(2), which

similarly prohibits reprisals for a contractor disclosing

protected information about a Department of Defense contract to

covered “persons and bodies,” including “employee[s] of the

Department of Defense.” See Am. Compl., ECF No. 53 at 110 ¶¶

499-500. Following Count V’s recitation of these standards, it

then pleads allegations regarding “a close temporal proximity”

between Dr. Andresen’s alleged protected disclosures to the DoD

IG and her termination, see id. ¶¶ 501-03; as opposed to “any

action that could be reasonably characterized as a false

45 claim[,]” Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to

Litigate, ECF No. 43 at 23. Thus, paragraph 504’s statement that

IntePros’ actions “constitute[d] a willful violation of Section

3730(h) of the NDAA Whistleblower Protection Act,” Am. Compl.,

ECF No. 53 at 111 ¶ 504; does appear to be a “drafting error,”

but not regarding the FCA as Dr. Andresen alleges, see Pl.’s

Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37 at

14-15. Rather, based on the surrounding allegations in Count V

and its title, the Court concludes that paragraph 504 should

have cited to either 41 U.S.C. § 4712 or 10 U.S.C. § 2409, or

both, instead of a non-existent section of the NDAA-“Section

3730(h).” See Am. Compl., ECF No. 53 at 111 ¶ 504.

The Court next turns to “Count VI: Unlawfull [sic]

Termination in Violation of [ ] 10 U.S.C. § 2409,” which in

accordance with this title, replicates the legal standards set

forth in 10 U.S.C. § 2409 and cites to that statute’s provisions

throughout the paragraphs contained therein. See id. at 111-12

¶¶ 506-11, 513. For example, paragraph 506 quotes language from

10 U.S.C. § 2409(a)(1)(A) prohibiting reprisals for a

contractor’s disclosure of information regarding “a Department

of Defense contract or grant” or “Department funds,” and

paragraph 507 quotes language from 10 U.S.C. § 2409(a)(2)(A)-(G)

which enumerates the entire list of covered “persons and bodies”

under the statute to whom protected disclosures can be made. Id.

46 at 111-12 ¶¶ 506-07. The remaining paragraphs of Count VI then

specifically identify to whom Dr. Andresen made protected

disclosures pursuant to 10 U.S.C. § 2409(a)(1) and (a)(2), plead

“a close temporal proximity” between those disclosures and her

termination, and conclude with an allegation that IntePros’

actions “constitute[d] a willful violation of [ ] 10 U.S.C. §

2409.” Id. at 112-13 ¶¶ 508-13. Although Count VI differs from

Count V in that it solely refers to contracts with the

Department of Defense rather than also incorporating 41 U.S.C. §

4712’s language related to other federal contracts, Count VI,

like Count V, “does not describe any ‘false claims’” or refer to

the FCA in its title, substance, or delineated legal standards.

See Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to

Litigate, ECF No. 43 at 8-9.

Based on the above analysis of Counts V and VI in the

Amended Complaint, the Court agrees with IntePros and concludes

that any “drafting error” between the two counts can only

reasonably be construed as amounting to an incorrect divide

between the NDAA’s sister whistleblowing statutes, 41 U.S.C. §

4712 and 10 U.S.C. § 2409, see Def.’s Mot. to Dismiss Reply &

Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 22-23; as opposed

to between “the NDAA/10 U.S.C. § 2409, on the one hand, and the

FCA/31 U.S.C. § 3730(h), on the other[,]” as Dr. Andresen

contends, Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to

47 Litigate, ECF No. 37 at 14. This explanation for the alleged

“drafting error” is not “mathematically implausible” as Dr.

Andresen contends, see Pl.’s Reply to Def.’s Opp’n to Cross-Mot.

to Litigate, ECF No. 52 at 7-10; but rather the only reasonable

construction based on the titles of Counts V and VI, and the

substance, legal standards, and citations contained within them.

Furthermore, it accounts for the existence of the two separate

counts that Dr. Andresen added in the Amended Complaint. See

Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No.

37 at 13 n.1, 14-15. Overall, as IntePros summarizes, “[b]oth

counts repeatedly [and] expressly refer to and quote [the] two

NDAA statutes[,]” [b]oth counts cite standards belonging to the

two statutes[,]” and both “counts are even titled as [ ] arising

from the NDAA—not the FCA.” Def.’s Mot. to Dismiss Reply & Opp’n

to Cross-Mot. to Litigate, ECF No. 43 at 22.

Nonetheless, Dr. Andresen takes issue with IntePros’

labeling of paragraph 504’s incorrect citation to “Section

3730(h) of the NDAA Whistleblower Protection Act” as a “stray

reference,” Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot.

to Litigate, ECF No. 43 at 23; because she argues that it was

“the correct reference to the correct section of the FCA that

addresses retaliation for whistleblowing[,]” Pl.’s Reply to

Def.’s Opp’n to Cross-Mot. to Litigate, ECF No. 52 at 8

(emphasis in original). She adds that while the Amended

48 Complaint “does mention ‘Section 3730(h),’” it “never mentions

41 U.S.C. § 4712 anywhere in any of her pleadings.” Id. at 9.

The Court rejects this argument and agrees with IntePros that

Count V’s one reference to “‘Section 3730(h)’ does not come

close to offsetting the numerous express references and the

standards cited belonging to 41 U.S.C. § 4712 and 10 U.S.C. §

2409.” Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to

Litigate, ECF No. 43 at 23. Nowhere in Counts V and VI does Dr.

Andresen similarly plead the FCA’s legal standard or enumerate

allegations regarding “an FCA violation,” i.e., “a false or

fraudulent claim.” Id. (citing U.S. ex rel. Bender v. N. Am.

Telecomms., Inc., 686 F. Supp. 2d 46, 52 (D.D.C. 2010)). In Dr.

Andresen’s words, the explanation “requiring the least

speculation is usually correct[,]” Pl.’s Reply to Def.’s Opp’n

to Cross-Mot. to Litigate, ECF No. 52 at 9; and here, this lone

reference to “Section 3730(h),” without more, would have

inappropriately required IntePros to “divine the meaning” to

this non-existent citation in law, Def.’s Mot. to Dismiss Reply

& Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 23; see

Caldwell v. Argosy Univ., 797 F. Sup. 2d 25, 28 (D.D.C. 2011)

(stating the requirement that a complaint must give “defendants

fair notice of the claims against them”).

Accordingly, because the Court has determined that the

Amended Complaint cannot reasonably be interpreted to plead an

49 FCA retaliation claim, 11 it rejects Dr. Andresen’s argument that

this claim is somehow “alive” and can now be litigated in this

district court. Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to

Litigate, ECF No. 37 at 7, 13; see Def.’s Mot. to Dismiss Reply

& Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 22 (“Dr.

Andresen never pleaded [an FCA] retaliation claim with this

Court and cannot litigate a claim never pleaded.”). As such, the

Court also rejects Dr. Andresen’s argument that her FCA claim

“is central, . . . not new, futile, or time-barred” because

construing the Amended Complaint to include such a claim would

amount to more than the mere correction of an “inartful”

drafting error, but rather the addition of an entirely new

claim, even if “derived from the same set of underlying facts as

[her] NDAA claim,” that would prejudice not Dr. Andresen but

IntePros at this stage in the litigation. See Pl.’s Opp’n to

Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 18-19. 12

11 Dr. Andresen’s reply argument that the “claim” underlying her FCA retaliation claim is valid, specifically that she “need not have filed an FCA qui tam action in order to have a valid FCA retaliation claim” is therefore irrelevant. See Pl.’s Reply to Def.’s Opp’n to Cross-Mot. to Litigate, ECF No. 52 at 22-23. 12 The Court also rejects Dr. Andresen’s argument that “even if

forced to concede that her FCA claim is ‘new,’ . . . the claim still is timely under the three-year FCA statute[] of limitations.” Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 19. Arguments regarding the timeliness of such an “amended claim” and its “relation back” to the original pleading are irrelevant if the so-called “amended claim” was never actually pled. Id. 50 It is also irrelevant that Arbitrator Janofsky refused to

permit Dr. Andresen to correct the alleged “drafting error”

regarding her FCA retaliation claim. Id. at 7. Such a refusal

does not mean her FCA retaliation claim “never existed in the

arbitral forum[,]” id. at 7-8, 10; but rather that Arbitrator

Janofsky considered the merits of Dr. Andresen’s FCA “drafting

error” argument, rejected its genuineness, and “dismissed” that

claim, Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at

10-11. 13 Therefore, because Dr. Andresen’s FCA retaliation claim

13Dr. Andresen is thus wrong in her claim that the arbitration award made “an incorrect assumption” that she was adding a new claim. Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 17 n.5. Rather than make any “assumption,” Arbitrator Janofsky compared the Statement of Claims to the proposed “corrected” version to discern substantive changes between the two, such as the renaming of Count VI to state the FCA, the addition of “a whole new paragraph purporting to recite the standard for [an] FCA retaliation claim[,]” and the replacement of citations to 10 U.S.C. § 2409 with citations and express references to 31 U.S.C. § 3730. See Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 10; Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at 10. As such, Dr. Andresen, contrary to AAA Commercial Rule R-6(b), was incorrect to contend that her changes to the Statement of Claims could be characterized as mere “corrections” rather than “a formal ‘amendment.’” Pl.’s Opp’n to Mot. to Dismiss & Cross- Mot. to Litigate, ECF No. 37 at 16. The Court therefore rejects Dr. Andresen’s “view that [IntePros] had accepted the corrected version of the Statement of Claims,” id. at 17 n.5; as the record indicates that IntePros objected, in writing, to her “corrected” filing, see Ex. G to Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37-9 at 4; and made clear “that the onus was on Dr. Andresen to move to amend seeking arbitrator approval if she wanted to add another claim[,]” Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 24. Furthermore, Dr. Andresen’s argument that since IntePros “did not file any claim or counterclaim within 51 was dismissed in arbitration and was not otherwise properly pled

in this district court, 14 and because Arbitrator Janofsky also

the 14-calendar-day time period stipulated by Rule R-6(b)” is illogical, since she is claiming that she did not need to follow that rule at all since she assumed she was not formally adding a new claim in arbitration with her amended Statement of Claims. Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 17. 14 Although the Court has concluded that an FCA retaliation claim

was not properly pled in the Amended Complaint and cannot be added now based on the false premise of a simple “drafting error,” the Court notes that some of Dr. Andresen’s exhibits indicate “sincerity” in her claim that she intended to assert retaliation claims under both the NDAA and the FCA in amending the complaint, Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 7, 13; but that her intention was hindered by substantive legal errors committed by her various attorneys. For example, Dr. Andresen’s declaration, attached as an exhibit to her reply to IntePros’ opposition to her cross- motion to litigate, states that following a phone conversation with Mr. Wilkenfeld in November 2015, “it was decided that Mr. Wilkenfeld’s firm would prepare a Motion to Amend [the] Complaint that included two retaliation claims, one under 10 U.S.C. § 2409 and one under 31 U.S.C. § 3730(h).” Ex. 3 to Pl.’s Reply to Def.’s Opp’n to Cross-Mot. to Litigate, ECF No. 52-4 at 1. In this same declaration, Dr. Andresen details a 2019 conversation that she had with Mr. Wilkenfeld, in which he stated that if subpoenaed, he would explain that although it had been his intention to add an FCA retaliation claim via the Amended Complaint, his firm had erred in so drafting it. Id. Similarly, Dr. Andresen also attaches as exhibits emails between her and her attorneys at Cook Craig & Francuzenko, PLLC indicating both that she: (1) informed them of her “claims in the IntePros matter . . . under 10 U.S.C. [§] 2409 and Section H of the FCA” prior to them signing their representation agreement; and (2) later informed them that they submitted a Statement of Claims in arbitration that replicated Mr. Wilkenfeld’s errors in Counts V and VI of the Amended Complaint. See Exs. 1 & 2 to Pl.’s Reply to Def.’s Opp’n to Cross-Mot. to Litigate, ECF No. 52-2-52-3. This evidence suggests that subpar lawyering prohibited Dr. Andresen from properly pleading her intended FCA retaliation claim, both in this Court and in arbitration. The Court cannot rectify these legal errors to Dr. 52 denied her NDAA retaliation claim in the arbitration award, see

id. at 9-10; the Court declines to “permit[] [Dr. Andresen] to

litigate these two[] retaliation claims in D.C. District

Court[,]” Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to

Litigate, ECF No. 37 at 7.

2. The Court Rejects Dr. Andresen’s Request for the Court’s “Fulsome Judicial Review of the Arbitrability Determination” and Her Argument That Her NDAA Claim and Her (Non-Existent) FCA Retaliation Claim Are Not Arbitrable

Dr. Andresen next challenges Arbitrator Healey’s

“Affirmative Determination of Arbitrability” for all of her

claims, see Ex. 10 to Def.’s Mot. to Dismiss Reply & Opp’n to

Cross-Mot. to Litigate, ECF No. 43-10; and she asks the Court to

“undertake a fulsome judicial review of [this] arbitrability

determination,” Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to

Litigate, ECF No. 37 at 20. She bases this request on 9 U.S.C. §

10(a)(4) of the FAA and claims that Arbitrator Healey “‘exceeded

[his] powers’ because his arbitrability determination did not

draw its essence from the [parties’] contract” containing the

arbitration clause. Id. at 20-21 (quoting 9 U.S.C. § 10(a)(4)).

IntePros responds that Dr. Andresen is “attempt[ing] to rehash

issues already decided either by this Court or by the

arbitrator” and that a cross-motion to litigate “is not a valid

Andresen’s benefit now based on her false characterization of them as minor technical changes. 53 mechanism” to do so under the FAA. Def.’s Mot. to Dismiss Reply

& Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 12-13. For the

reasons discussed below, the Court agrees with IntePros.

To begin, the Court notes that it previously ordered the

parties to “proceed to arbitration in order for an arbitrator to

determine, in the first instance, whether the claims in this

action [were] arbitrable.” Order, ECF No. 24 at 1. In compelling

arbitration, the Court determined that the arbitration clause’s

incorporation of the AAA rules, “which, in turn, empower an

arbitrator to rule on the question of arbitrability, . . .

constitutes clear and unmistakable evidence that [the parties]

intended to delegate the question of arbitrability to an

arbitrator.” Andresen, 240 F. Supp. 3d at 149-50; see also W & T

Travel Servs., 69 F. Supp. 3d at 167 (“[A]n arbitration clause

adopting the rules of the AAA makes the issue of arbitrability

one for the arbitrator, not the court.”); Chevron Corp. v.

Republic of Ecuador, 949 F. Supp. 2d 57, 66 (D.D.C. 2013) (“To

the extent that the parties here have ‘clearly and unmistakably’

agreed to arbitrate arbitrability, then, this Court must give

substantial deference to that decision.”), aff’d, 795 F.3d 200

(D.C. Cir. 2015), cert. denied, 578 U.S. 1023, 136 S. Ct. 2410,

195 L. Ed. 2d 780 (2016); Howsam v. Dean Witter Reynolds, Inc.,

537 U.S. 79, 83, 123 S. Ct. 588, 154 L. Ed. 2d 491 (2002) (“The

question whether the parties have submitted a particular dispute

54 to arbitration, i.e., the ‘question of arbitrability,’ is an

issue for judicial determination [u]nless the parties clearly

and unmistakably provide otherwise.” (citation and some internal

quotation marks omitted)).

Despite this conclusion, Dr. Andresen now substantively

challenges Arbitrator Healey’s determination that her claims

were “arbitrable in their entirety[,]” Ex. 10 to Def.’s Mot. to

Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43-10

at 10. 15 The Court rejects this challenge, as it has already

detailed its reasons for concluding that “the question of

arbitrability is [one] properly reserved for arbitral

resolution” and that it could “appropriately defer to the

arbitrator on the question of arbitrability” in Dr. Andresen’s

case. Andresen, 240 F. Supp. 3d at 163. As IntePros notes, “the

law does not provide a district court with the special ability

to refer to arbitration the question of arbitrability and then

scrutinize the arbitrator’s decision on the issue outside of the

limited review available in a formal motion to vacate or modify

pursuant to 9 U.S.C. § 10-or 9 U.S.C. § 11.” Def.’s Mot. to

Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43 at

13-14. The Court agrees, as the FAA’s “exclusive” grounds for

15Notably, Dr. Andresen does not challenge the Court’s prior decision to compel arbitration, only Arbitrator Healey’s “Affirmative Determination of Arbitrability and Order.” 55 vacatur and modification under sections 10 and 11 “sharply limit

the judicial review of the evidentiary and legal findings of” an

arbitrator. Coyne, 308 F. Supp. 3d at 210.

Here, Dr. Andresen admits that her cross-motion to litigate

is not a motion to vacate or modify under sections 10 or 11 of

the FAA. See, e.g., Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot.

to Litigate, ECF No. 37 at 7, 12, 17 n.6. And yet, she asserts:

(1) her request for judicial review of the arbitrability

decision pursuant to 9 U.S.C. § 10(a)(4), which states one of

the FAA’s “exclusive” grounds for vacatur—when arbitrators

“exceed[] their powers,” id. at 20; and (2) her “ability to

litigate her claims” pursuant to 9 U.S.C. § 10(b), which allows

a court to “direct a rehearing by the arbitrators” only after an

award is vacated pursuant to a vacatur petition, Pl.’s Reply to

Def.’s Opp’n to Cross-Mot. to Litigate, ECF No. 52 at 12. The

Court agrees with IntePros that Dr. Andresen’s two citations to

9 U.S.C. § 10 do “not outweigh her other express statements and

convert the Cross-Motion into a motion to vacate[,]” Def.’s Mot.

to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43

at 14 n.4; or somehow appropriately commingle the two. This

conclusion is bolstered by the fact that at the time of filing

her cross-motion to litigate, Dr. Andresen had not yet filed her

petition for vacatur, which she filed as an individual motion a

56 week later, see Pl.’s Mot. to Vacate, ECF No. 45; and which the

Court addresses separately below, see infra section IV.C.

Instead of being a proper way “to vindicate her rights in

court after the process of arbitration[,]” Pl.’s Reply to Def.’s

Opp’n to Cross-Mot. to Litigate, ECF No. 52 at 12; the Court

concludes that a “cross-motion to litigate” is “not a valid

mechanism” for challenging the merits of an arbitration

decision, Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to

Litigate, ECF No. 43 at 12. Although a litigant may challenge an

arbitration determination outside of the “exclusive regimes for”

review provided for by sections 10 and 11 of the FAA, for

example “under state statutory or common law,” see Hall St., 552

U.S. at 590 (“The FAA is not the only way into court for parties

wanting review of arbitration awards[.]”); which Dr. Andresen

recognizes, see Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to

Litigate, ECF No. 37 at 20 (“It does not appear necessary to

cite to one of the exclusive, statutory bases for vacatur when

requesting the court’s de novo review of an arbitrability

determination.”); she fails to identify any “other possible

avenue[]” for judicial review of Arbitrator Healey’s affirmative

arbitrability determination that could be resolved via her

cross-motion to litigate, see Hall St., 552 U.S. at 590.

Instead, in her putative cross-motion to litigate, Dr.

Andresen challenges the substance of Arbitrator Healey’s

57 decision, see Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to

Litigate, ECF No. 37 at 20-21, 31 (arguing that the

“arbitrability determination did not draw its essence from the

contract”); and also specific legal conclusions from the award,

see Pl.’s Reply to Def.’s Opp’n to Cross-Mot. to Litigate, ECF

No. 52 at 24-28 (arguing that the arbitrators did not correctly

consider the threshold issue of whether “independent contractors

have employee status” for purposes of evaluating Dr. Andresen’s

NDAA retaliation claim); Pl.’s Opp’n to Mot. to Dismiss & Cross-

Mot. to Litigate, ECF No. 37 at 31-32 (same); which she is not

permitted to do without a proper legal basis, see Misco, 484

U.S. at 38 (“Courts . . . do not sit to hear claims of factual

or legal error by an arbitrator as an appellate court does in

reviewing decisions of lower courts.”); Def.’s Mot. to Dismiss

Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 16

(rejecting Dr. Andresen’s “substantive objection” to Arbitrator

Janofsky’s award conclusion regarding her “employment status

under the NDAA” because she “has not set forth any ground to

challenge [that] decision” in this cross-motion). As a result,

the Court declines to consider Dr. Andresen’s substantive

arguments raised in her cross-motion to litigate that should

have been advanced in a formal petition for vacatur pursuant to

the grounds stated in section 10 of the FAA.

58 The Court is furthermore unpersuaded by the cases Dr.

Andresen cites to support her claim that the Court can conduct

de novo review of arbitration determinations in ruling on a

cross-motion to litigate. For example, Kaplan v. First Options

of Chicago, Inc., 19 F.3d 1503 (3d Cir. 1994), aff’d sub nom.

First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct.

1920, 131 L. Ed. 2d 985 (1995); and Regnery Publishing, Inc. v.

Miniter, 601 F. Supp. 2d 192 (D.D.C. 2009), aff’d, 368 F. App’x

148 (D.C. Cir. 2010); both involved motions/cross-motions to

either vacate or confirm an arbitration award. In Kaplan, the

Court of Appeals for the Third Circuit granted a request to

vacate the arbitration award because it concluded that the

arbitration panel lacked jurisdiction over the parties since

there was no arbitration clause in the signed agreement (which

is also not factually the case here). See 19 F.3d at 1505. In

Regnery, the arbitration award was challenged under 9 U.S.C. §

10(a)(1) and (4) of the FAA and on common law grounds, and this

Court denied those challenges, thereby confirming the award. See

601 F. Supp. 2d at 194-96. Thus, in neither Kaplan nor Regnery

did the party challenging the arbitration award seek to do so

via a cross-motion to litigate requesting judicial review of an

arbitrability determination, and therefore, the Court concludes

that these cases are not analogous to the instant situation.

59 The same is true for the remaining cases to which Dr.

Andresen cites. For example, the procedural posture of Chevron

Corp. v. Republic of Ecuador, 949 F. Supp. 2d 57 (D.D.C. 2013)

involved a motion to confirm an arbitration award, not a cross-

motion to litigate. Id. at 60. Likewise, Davis v. Chevy Chase

Financial Ltd., 667 F.2d 160 (D.C. Cir. 1981) involved an appeal

to the D.C. Circuit challenging the district court’s affirmation

of the arbitration award on a motion for vacatur or modification

under sections 10 and 11 of the FAA, in which the D.C. Circuit

considered whether the arbitrator exceeded his authority

pursuant to 9 U.S.C. 10(a)(4) when reevaluating the district

court’s decision. See id. at 163-64. Lastly, Dr. Andresen cites

Salsitz v. Kreiss, 198 Ill. 2d 1 (Ill. 2001), which apart from

being a non-binding state court decision, also makes no

reference to a litigant being able to use a “cross-motion to

litigate” to challenge an arbitrability determination and oppose

the other party’s motion to dismiss following the completion of

arbitration.

Despite proffering no caselaw to support her claim that the

arbitrability decision can be judicially reviewed on a cross-

motion to litigate, Dr. Andresen next argues that dismissal is

“premature” because, contrary to Arbitrator Healey’s decision,

both of her retaliation claims under the NDAA and the FCA are

“properly before this Court” and not “arbitrable under the

60 limited scope of the parties’ arbitration agreement[,]” and that

she should therefore be permitted to litigate them in this

district court via her cross-motion. Pl.’s Opp’n to Mot. to

Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 10, 12-13.

Even if the Court were to overlook the fact that Dr.

Andresen’s challenges to the arbitrability decision are not

advanced in a proper petition to vacate or modify, many of the

cases she cites indicate that arbitrators’ determinations are

entitled to “great deference,” Davis, 667 F.2d at 166; and

“‘considerable leeway,’” such that they are set aside “‘only in

certain narrow circumstances[,]’” Chevron Corp., 949 F. Supp. 2d

at 67 (quoting Kaplan, 514 U.S. at 943). For example, the D.C.

Circuit stated in Davis that “[w]hen a reviewing court is called

upon to determine whether an arbitrator, in passing on a matter

concededly within his jurisdiction, misconstrued the contract in

question, great deference is appropriate[,]” and that the

arbitration award should not be upset “if it represents a

plausible interpretation of the contract.” 667 F.2d at 166.

Similarly, in Chevron Corp., another judge in this district

court noted that “the ‘beyond the scope [of the arbitration

clause]’ defense to confirmation should be construed narrowly,”

as the party resisting confirmation on that basis must “overcome

a powerful presumption that the arbitral body acted within its

61 powers.” 949 F. Supp. 2d at 67 (citation and internal quotation

marks omitted).

This deferential review to arbitrability decisions is

balanced against the longstanding principle that “[n]either

arbitrators nor courts . . . have the prerogative to redraft an

arbitration clause to require parties to arbitrate matters that

they did not initially agree to arbitrate.” Davis, 667 F.2d at

167. Here, contrary to the “limited arbitration clause” in the

contract in Davis, which the D.C. Circuit concluded did not

“empower[] an arbitrator to make largely nonreviewable decisions

regarding his jurisdiction[,]” id.; the arbitration clause in

the parties’ Sub Contractor Agreement contains “broad language,”

Ex. 10 to Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to

Litigate, ECF No. 43-10 at 6; providing that “[a]ny and all

disputes, controversies and claims arising out of or relating to

[the] Agreement or concerning the respective rights or

obligation[s] hereunder of the parties [ ] shall be settled and

determined by arbitration[,]” Sub Contractor Agreement,

Provision 9(f), Ex. A, ECF No. 12-1 at 6.

Thus, although Dr. Andresen argues that her NDAA claim and

(non-existent) FCA retaliation claim do “not ‘arise under and

relate to obligations’ having to do with her employment

agreement with” IntePros, Pl.’s Opp’n to Mot. to Dismiss &

Cross-Mot. to Litigate, ECF No. 37 at 30; the Court disagrees

62 based on the sweeping “plain text” of the Sub Contractor

Agreement’s arbitration clause, Chevron Corp., 949 F. Supp. 2d

at 68; see Orcutt v. Kettering Radiologists, Inc., 199 F. Supp.

2d 746, 750, 753-56 (S.D. Ohio 2002) (concluding that

arbitration of an FCA retaliation claim was proper and “within

the scope of the arbitration provision” when the employment

agreement “broadly” required arbitration of “[a]ny controversy

or claim arising out of or relating to” that agreement); cf.

U.S. ex rel. Paige v. BAE Sys. Tech. Sols. & Servs., Inc., 566

F. App’x 500, 504 (6th Cir. 2014) (excluding the plaintiff’s FCA

retaliation claim from arbitration where the terms of the

employment agreement were “narrow[]” and “explicitly limit[ed]

the scope of the [arbitration] clause to the disputes arising

‘under the terms of th[e] agreement’ and [did] not include

claims ‘related’ to the agreement or that ar[o]se out of the

relationship between the parties”). As such, the Court concludes

that even if it could review Arbitrator Healey’s arbitrability

decision via the instant cross-motion to litigate, his decision

would “survive[] the deferential review required in this

circumstance,” Chevron Corp., 949 F. Supp. 2d at 69; as the

Court does not conclude that his determination of arbitrability

for the “entirety” of Dr. Andresen’s claims, Ex. 10 to Def.’s

Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No.

43-10 at 10; “did not draw its essence from the contract[,]” or

63 was outside “the scope of the arbitration clause,” Pl.’s Opp’n

to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 21,

23.

In furtherance of this analysis, the Court rejects Dr.

Andresen’s claims that her alleged FCA retaliation claim and her

NDAA retaliation claim under 10 U.S.C. 2409 are “not

arbitrable.” Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to

Litigate, ECF No. 37 at 26, 30. First, the Court has already

determined that the Amended Complaint does not reasonably plead

an FCA retaliation claim, see supra section IV.A.1; such that

the Court concludes that this claim is not “properly before this

Court,” and there is no need to determine whether it is “not

arbitrable” and can now be litigated, Pl.’s Opp’n to Mot. to

Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 10, 26. 16

16The Court therefore declines to apply the “two methodologies” advanced by Dr. Andresen in her cross-motion to litigate for discerning the arbitrability of an FCA retaliation claim. See Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 22-30. And, “[i]n any event, courts routinely compel arbitration of FCA retaliation claims.” Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 15; see, e.g., Skrynnikov v. Fed. Nat’l Mortg. Ass’n, 943 F. Supp. 2d 172, 178 (D.D.C. 2013) (requiring the plaintiff’s FCA retaliation claim to “be submitted to the arbitrator who [would] decide arbitrability issues”); U.S. ex rel. McBride v. Halliburton Co., No. 05-0828, 2007 WL 1954441, at *4-5 (D.D.C. July 5, 2007) (concluding that “there is nothing particularly unique about the policies of FCA—and in particular § 3730(h)— relative to those of other federal statutes creating arbitrable causes of action” and mandating that the plaintiff’s FCA retaliation claim “be arbitrated”); cf. U.S. ex rel. Welch v. My Left Foot Child.’s Therapy, LLC, 871 F.3d 791, 799-800 (9th Cir. 64 Second, Dr. Andresen already lost this “not arbitrable”

argument when the Court compelled arbitration “in the first

instance” of all of her claims, Order, ECF No. 24 at 1;

including her federal statutory claims under the NDAA, see

Andresen, 240 F. Supp. 3d at 161-63. In the Court’s earlier

Memorandum Opinion, it concluded that a valid and enforceable

delegation provision, i.e., “[a] written agreement memorializing

the parties’ agreement to arbitrate the threshold question of

arbitrability,” was in place (following the Court’s removal of

an unenforceable cost-prohibitive provision), and that the

question of arbitrability “must [be] reserve[d] . . . for

arbitral resolution.” Id. at 149 (emphasis added). At no point

prior to that decision did Dr. Andresen argue that her claims

under the NDAA could never be arbitrated, and the Court is

unpersuaded by her new arguments to that effect here, as

discussed further below.

Dr. Andresen first cites Nguyen v. City of Cleveland, 121

F. Supp. 2d 643 (N.D. Ohio 2000) to argue that “incompatibility

2017) (concluding that FCA fraud claims “always belong to the government,” have “no direct connection with” a plaintiff’s employment, and are therefore “not arbitrable,” in contrast to FCA retaliation claims, which relate to a plaintiff’s individualized wrongful termination from his or her employment for whistleblower activities, see Orcutt v. Kettering Radiologists, Inc., 199 F. Supp. 2d 746, 756 (S.D. Ohio 2002) (distinguishing between FCA false claims and FCA retaliation claims pursuant to 31 U.S.C. § 3730(h))). 65 exists between compulsory arbitration and federal jurisdiction”

in the context of the NDAA due to employees being “‘forced by

unequal bargaining power to accept a forum demanded as a

condition of employment by the very party on which [s]he

informed.’” Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to

Litigate, ECF No. 37 at 30-31 (quoting Nguyen, 121 F. Supp. 2d

at 647). However, Nguyen addresses the arbitrability of an FCA

retaliation claim, not an NDAA claim, see Nguyen, 121 F. Supp.

2d at 645-47; and regardless, many courts “have uniformly

rejected Ngyuen’s reasoning[,]” see U.S. ex rel. Cassaday v.

KBR, Inc., 590 F. Supp. 2d 850, 862-63 (S.D. Tex. 2008)

(collecting cases and noting that “the Nguyen court is the only

court to find FCA retaliation claims are not arbitrable because

an inherent conflict exists between arbitration and the

underlying purposes of the FCA”); U.S. ex rel. McBride v.

Halliburton Co., No. 05-0828, 2007 WL 1954441, at *4-5 (D.D.C.

July 5, 2007) (finding Nguyen’s reasoning to be “unpersuasive”).

Next, Dr. Andresen claims that the language in 10 U.S.C. §

2409 “is so clear” that “the appropriate district court” should

determine the arbitrability of an NDAA claim. Pl.’s Opp’n to

Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 30

(quoting 10 U.S.C. § 2409(c)(2)). The Court rejects this

argument and is instead persuaded by the reasoning in Robertson

v. Intratek Computer, Inc., 976 F.3d 575 (5th Cir. 2020), cert.

66 denied, 142 S. Ct. 2708, 212 L. Ed. 2d 777 (2022); which found

NDAA retaliation claims to be arbitrable, see id. at 572-82. In

Robertson, the Court of Appeals for the Fifth Circuit (“Fifth

Circuit”) concluded that the plaintiff employee could not use 41

U.S.C. § 4712, the sister whistleblowing statute to 10 U.S.C. §

2409, “to escape the arbitration agreement he signed.” Id. at

578-79. The Fifth Circuit analyzed 41 U.S.C. § 4712’s statutory

text, specifically the sections regarding the “exhaustion of

remedies” and “rights and remedies not waivable” to conclude

that Congress did not intend to “override” the FAA and prohibit

arbitration for claims based on 41 U.S.C. § 4712. See id. at

579-82. Although Dr. Andresen argues that Robertson is

inapplicable here because it deals with 41 U.S.C. § 4712, a

“distinct” statute from 10 U.S.C. § 2409, Pl.’s Reply to Def.’s

Opp’n to Cross-Mot. to Litigate, ECF No. 52 at 20 n.5-21; the

Court rejects this argument, as the statutory provisions of 41

U.S.C. § 4712 examined by the Fifth Circuit to reach its

conclusion are identical to those appearing in 10 U.S.C. § 2409,

compare 41 U.S.C. § 4712(c)(2), (c)(7), with 10 U.S.C. §

2409(c)(2), (c)(7). As such, Robertson’s reasoning indicates

that claims under 10 U.S.C. § 2409 are arbitrable, and the Court

rejects Dr. Andresen’s attempt at “a do-over . . . in light of

the unsatisfactory result she received in arbitration” by

requesting permission to litigate her NDAA retaliation claim in

67 this Court via the present cross-motion. 17 Def.’s Mot. to Dismiss

Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 12.

Accordingly, for all the above reasons, the Court DENIES

Dr. Andresen’s Cross-Motion to Permit Litigation of Two

Retaliation Claims in D.C. District Court under 31 U.S.C. §

3730(h) of the FCA and 10 U.S.C. § 2409 of the 2013 NDAA. See

ECF No. 38. Dr. Andresen has not demonstrated that she pled an

17As noted earlier, this includes the Court rejecting Dr. Andresen’s request to re-visit Arbitrator Janofsky’s substantive conclusion that her NDAA retaliation claim “[could not] stand” because she was a statutorily ineligible “independent contractor” and not IntePros’ “employee.” Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at 9. “[I]n light of the jurisdictional rules governing arbitrability,” this issue could only be “reopened” pursuant to a motion “to confirm or vacate an arbitration award[,]” for which the standard of review “is extremely deferential[.]” United Parcel Serv., Inc. v. Int’l Brotherhood of Teamsters, AFL-CIO, 999 F. Supp. 70, 73, 77 (D.D.C. 1998). And, in any event, another judge in this district court recently concluded that “the most important factor to consider” in “determining whether an individual is an employee,” as opposed to an independent contractor, under the NDAA, is “the extent of the employer’s right to control the ‘means and manner’ of the worker’s performance.” Wykosky v. ATCS, PLLC, No. 22- 1881, 2023 WL 4547992, at *3 (D.D.C. July 14, 2023) (citation and some internal quotation marks omitted). Arbitrator Janofsky engaged in this exact inquiry prior to concluding that Dr. Andresen did not have a cause of action under the NDAA. See Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at 5, 9. Furthermore, as Arbitrator Janofsky noted, and Dr. Andresen admits, it was not until the 2015 amendments to 10 U.S.C. § 2409 that “the scope of” the NDAA was “broaden[ed]” to offer whistleblower protections to independent contractors, which was after Dr. Andresen’s engagement with IntePros ended. Id. at 9 n.1; Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 31 n.22. Thus, there is no legitimate basis for the Court to entertain Dr. Andresen’s additional arguments on this point. See Pl.’s Reply to Def.’s Opp’n to Cross-Mot. to Litigate, ECF No. 52 at 24-28. 68 FCA retaliation claim in the Amended Complaint that can now be

litigated, even absent the arbitration award disallowing this

claim, and she has failed to persuade the Court that it can

review Arbitrator Healey’s affirmative arbitrability

determination, including regarding the arbitrability of these

two retaliation claims, on a cross-motion to litigate, as

opposed to under a petition for vacatur pursuant to the

appropriate provisions of the FAA. 18 Having so concluded, and

given that arbitration is now complete, the Court next turns to

whether dismissal is appropriate, as IntePros contends. 19

18 In fact, Dr. Andresen has proffered no reply arguments regarding the cognizability of a “cross-motion to litigate” for challenging arbitration decisions in district court. 19 IntePros proffers three additional arguments for why Dr.

Andresen’s cross-motion to litigate should be “barred,” specifically pursuant to: (1) the “law-of-the-case doctrine;” (2) principles of res judicata; and (3) the equitable doctrine of judicial estoppel. See Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 17-18, 20-22. Given its denial of Dr. Andresen’s cross-motion to litigate, the Court declines to consider these arguments in detail. However, the Court briefly notes that judicial estoppel, which “prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase[,]” Pegram v. Herdrich, 530 U.S. 211, 227 n.8, 120 S. Ct. 2143, 147 L. Ed. 2d 164 (2000); is inapplicable here since Dr. Andresen did not “prevail” or “succeed” in an earlier stance in litigation on which she now “renege[s].” See New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001); Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 20. Rather, the Joint Status Report, to which IntePros points, relayed the outcome of the arbitrability decision and the parties’ joint view that the Court should further stay proceedings pending the outcome of arbitration. Joint Status Report, ECF No. 27 at 1. In addition, the “law-of- the-case doctrine,” which “refers to a family of rules embodying 69 3. The Court Concludes That Dismissal of Dr. Andresen’s Stayed Action Is Now Appropriate Due to the Completion of Arbitration Resulting in a Binding Award in Favor of IntePros on All Claims

IntePros argues that since all of Dr. Andresen’s claims in

arbitration “were either dismissed with prejudice voluntarily or

decided against her by the arbitrator at the dispositive motion

stage[,]” Def.’s Mot. to Dismiss, ECF No. 35 at 3-4; “[n]ow is

the time to dismiss this suit, rather than awaiting any judicial

confirmation of the Award or the adjudication of any petition to

vacate[,]” Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to

Litigate, ECF No. 43 at 24. Dr. Andresen responds that dismissal

is “premature” because she contends that the language of 9

U.S.C. § 3 indicates that the issuance of an award means that

“arbitration has reached a provisional status rather than a

final one[,]” and that “arbitration is not over” until the Court

has had “the opportunity to evaluate whether the award should be

the general concept that a court involved in later phases of a lawsuit should not re-open questions decided (i.e., established as the law of the case) by that court or a higher one in earlier phases[,]” Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995); applies to support the Court’s conclusion that it need not reconsider its earlier decision compelling arbitration, but it does not apply to prohibit review of Arbitrator Healey’s arbitrability determination, as he does not represent this Court “or a higher one,” id.; cf. Int’l Brotherhood of Teamsters, 999 F. Supp. at 72, 75 (applying the law-of-the-case doctrine to preclude the district court from revisiting its “prior ruling on the arbitrability of th[e] dispute” when that court, not an arbitrator, previously determined that “the dispute was arbitrable”). 70 confirmed, modified, or vacated.” Pl.’s Opp’n to Mot. to Dismiss

& Cross-Mot. to Litigate, ECF No. 37 at 11-12. For the reasons

discussed below, the Court rejects Dr. Andresen’s arguments.

First, caselaw from this circuit indicates that courts may

dismiss an action “even before an award [is] entered in the

corresponding arbitration.” Def.’s Mot. to Dismiss Reply & Opp’n

to Cross-Mot. to Litigate, ECF No. 43 at 25. For example, a

judge from this district court has stated that section 3 of the

FAA, see 9 U.S.C. § 3 (contemplating a stay of proceedings until

“arbitration has been had in accordance with the terms of the

agreement”); “does not preclude a court from dismissing an

action all together in the proper circumstances, including where

all issues raised in the complaint must be submitted to

arbitration[,]” Aliron Int’l, Inc. v. Cherokee Nation Indus.,

Inc., No. 05-151, 2006 WL 1793295, at *3 (D.D.C. June 28, 2006)

(citation and internal quotation marks omitted), aff’d, 531 F.3d

863 (D.C. Cir. 2008). In Aliron, that judge concluded that “all

of [the p]laintiff’s claims must be submitted to arbitration,

since the arbitration clause applie[d] to any dispute . . .

between the parties[,]” and that “[s]ince there [was] no further

action to be taken by th[e c]ourt, it [was] appropriate to

dismiss th[e] case in its entirety[,]” i.e., before arbitration

had drawn to a close. Id. at *3-4. Two other cases from this

district court summarized a circuit split over whether a lawsuit

71 should be “dismissed or stayed pending the outcome of [ ]

arbitration” before deciding to “follow the majority rule

regarding the propriety of dismissing a case where all of the

claims are subject to arbitration.” See Ryan, 69 F. Supp. 3d at

147-49; W & T Travel Servs., 69 F. Supp. 3d at 172-74; see also

United Parcel Serv., Inc. v. Int’l Brotherhood of Teamsters,

AFL-CIO, 999 F. Supp. 70, 73 (D.D.C. 1998) (“If a dispute is

arbitrable, the court should proceed no further. The lawsuit

should be dismissed, and the parties should arbitrate their

dispute.”).

Here, dismissal is even more appropriate because after the

Court granted IntePros’ motion to compel arbitration, Arbitrator

Healey affirmatively determined the arbitrability of all of Dr.

Andresen’s claims, see Joint Status Report, ECF No. 27 at 1; and

Arbitrator Janofsky issued a final, binding arbitration award

that “dismissed, denied, and disallowed” each of those claims,

thereby concluding arbitration in this matter and leaving no

claims left for the Court to resolve, see Award, Ex. 2 to Def.’s

Mot. to Dismiss, ECF No. 35-2 at 11 (granting dismissal of all

counts in the amended Statement of Claims and denying “[a]ll

other claims not expressly granted herein”). In addition, as

discussed above, there are no unarbitrable retaliation claims

pending before the Court that can now be litigated. See supra

section IV.A.2. Therefore, “the only matter left for the Court”

72 is to dismiss this suit that was previously “stayed pending the

outcome of the arbitration[,]” see W & T Travel Servs., 69 F.

Supp. 3d at 172-73; which aligns with the Court’s earlier

invitation to IntePros to move to dismiss this case even before

the completion of arbitration, see Andresen, 240 F. Supp. 3d at

163 (“If an arbitrator determines that all [of Dr. Andresen’s]

claims in this case are arbitrable, IntePros may at that time

seek dismissal.”).

Second, the Court agrees with IntePros that Dr. Andresen’s

pending petition for vacatur of the arbitration award “has no

bearing” on the propriety of dismissal of this action, as the

requested relief in a motion to dismiss is separate and apart

from that requested in a motion to vacate, modify, or correct,

or as IntePros states, “exist[s] in different lanes.” Def.’s

Mot. to Dismiss, ECF No. 35 at 5. As the above caselaw shows,

district courts can grant dismissal of a suit prior to the

conclusion of arbitration and thus prior to the filing of a

vacatur petition. Therefore, the Court rejects Dr. Andresen’s

claim that arbitration is not complete until the Court confirms,

modifies, or vacates the award, as it agrees with IntePros that

“[u]nder [her] faulty logic, an arbitration award would never

carry preclusive power unless a party elected to pursue the

optional step of seeking judicial confirmation of the award.”

Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate,

73 ECF No. 43 at 25 (emphasis added). Furthermore, although Dr.

Andresen uses section 12 of the FAA to support her argument, see

Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No.

37 at 11-12; that section provides for staying enforcement of an

arbitration award to give the parties “three months after the

award is filed or delivered” to then serve upon their opponents

“[n]otice of a motion to vacate, modify, or correct [that]

award,” 9 U.S.C. § 12. Thus, nothing in its statutory language

counsels against the dismissal of a case that was previously

stayed pursuant to 9 U.S.C. § 3. See Def.’s Mot. to Dismiss

Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 26.

At the same time, however, the Court rejects IntePros’

argument that a motion to vacate, modify, or correct an award

must be “filed as a separate suit,” i.e., as “a standalone

action,” and that the Court therefore lacks jurisdiction over

Dr. Andresen’s later-filed petition for vacatur. See Def.’s Mot.

to Dismiss, ECF No. 35 at 4-6; Def.’s Mot. to Dismiss Reply &

Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 18 n.7

(“reserv[ing] all rights to challenge venue in this Court” with

regards to Dr. Andresen’s forthcoming petition to vacate). 20 To

20In its motion to dismiss, IntePros argued that motions to vacate or modify can only be filed in the district court where the arbitration award is made, and that the Court “is not empowered to entertain [Dr. Andresen’s vacatur] motion because the Award was not ‘made’ in the District of Columbia” but rather via a telephonic hearing by an arbitrator “located in Maryland.” 74 start, the Supreme Court has recognized that the sections of the

FAA governing motions to confirm, vacate, or modify arbitration

awards “together provide for liberal choice of venue.” See

Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S.

193, 197-204, 120 S. Ct. 1331, 146 L. Ed. 2d 171 (2000)

(rejecting “the restrictive reading of §§ 9-11” of the FAA in

favor of “permitting, not limiting, venue choice today”).

Additionally, another judge in this district court followed

the Supreme Court’s permissive view of the FAA when it rejected

the defendant’s contention that the court lacked jurisdiction to

entertain the plaintiff’s motion to vacate when the plaintiff

filed it in the same, ongoing civil action, as opposed to in a

new, separate action focused exclusively on vacating the

arbitration award. See Owen-Williams v. BB & T Inv. Servs.,

Inc., 717 F. Supp. 2d 1, 12-15 (D.D.C. 2010). Using caselaw from

other circuits, that judge concluded that “courts retain

jurisdiction to hear a motion to vacate even when the original

order compelling arbitration dismissed the plaintiff’s claims.”

See id. at 13-14. Other courts have made similar conclusions.

See Def.’s Mot. to Dismiss, ECF No. 35 at 5-6. However, IntePros “abandons this argument” in its reply and opposition to Dr. Andresen’s cross-motion to litigate, see Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 18 n.7; so the Court does not address it or Dr. Andresen’s arguments to the contrary, see Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37 at 33-35. 75 See, e.g., Smiga v. Dean Witter Reynolds, Inc., 766 F.2d 698,

705 (2d Cir. 1985) (“[A] court which orders arbitration retains

jurisdiction to determine any subsequent application involving

the same agreement to arbitrate, including a motion to confirm

an arbitration award.”), cert. denied, 475 U.S. 1067, 106 S. Ct.

1381, 89 L. Ed. 2d 607 (1986); Collins v. D.R. Horton, Inc., 361

F. Supp. 2d 1085, 1091 (D. Ariz. 2005) (“While it is true that

the Court dismissed Plaintiffs’ claims in favor of

arbitration[,] . . . courts have held that once a court obtains

jurisdiction in an action and enters an order compelling

arbitration, that court retains jurisdiction with respect to

subsequent motions to confirm or vacate.”), aff’d, 505 F.3d 874

(9th Cir. 2007), cert. denied, 552 U.S. 1295, 128 S. Ct. 1739,

170 L. Ed. 2d 539 (2008).

Applied here, the Court concludes that it has jurisdiction

to review IntePros’ motion to dismiss and Dr. Andresen’s vacatur

petition “together” as Dr. Andresen has requested, see Pl.’s

Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37 at

8, 12; but that it can, as IntePros argues, rule on the instant

motion to dismiss independently, i.e., separately from its

forthcoming conclusions regarding Dr. Andresen’s vacatur

petition and IntePros’ cross-motion to confirm the arbitration

award, see infra section IV.C.; see also Def.’s Mot. to Dismiss,

ECF No. 35 at 6 (“[T]he FAA’s creation of a process to vacate,

76 modify, or correct an arbitration award has no bearing on this

Court’s decision to dismiss this suit.”). As such, pursuant to

the above analysis, the Court concludes that given the binding

completion of arbitration “in full satisfaction of all claims

presented by the parties,” Award, Ex. 2 to Def.’s Mot. to

Dismiss, ECF No. 35-2 at 11; “it is appropriate to dismiss this

case in its entirety[,]” Aliron, 2006 WL 1793295, at *3.

However, prior to formally granting IntePros’ motion to dismiss

and determining whether Dr. Andresen’s claims should be

dismissed with prejudice, the Court next addresses the merits of

the remaining pending motions: (1) Dr. Andresen’s motion for

leave to file a SAC; (2) Dr. Andresen’s vacatur petition; and

(3) IntePros’ cross-motion to confirm the arbitration award.

B. The Court Denies Dr. Andresen’s Motion for Leave to File a Second Amended Complaint

Less than a month after IntePros filed its motion to

dismiss, on August 1, 2019, Dr. Andresen filed a motion for

leave to file a SAC aimed at correcting the alleged “drafting

error in Counts V and VI” of the Amended Complaint made by her

prior counsel that she also previously “sought to correct during

arbitration” but was “not grant[ed]” leave to do so. Pl.’s Mot.

to File SAC, ECF No. 42 at 2-3. IntePros argues that this motion

“is a quintessential example of when leave to amend should not

be granted[,]” as it represents Dr. Andresen’s “attempt to skirt

77 the adverse [arbitration] award against her . . . by making

bogus representations to th[e] Court about a so-called ‘drafting

error’ in the Amended Complaint.” Def.’s Opp’n to Pl.’s Mot. to

File SAC, ECF No. 49 at 6.

1. The Court Denies Dr. Andresen’s Request for an Extension of Time to File Her Reply to IntePros’ Opposition to Her Motion to Amend the Complaint, and Grants IntePros’ Cross-Motion to Strike Dr. Andresen’s Untimely Reply Due to a Lack of “Good Cause” and “Excusable Neglect”

Before proceeding to the merits of the parties’ arguments,

the Court first addresses the untimeliness of Dr. Andresen’s

reply to IntePros’ opposition to her motion for leave to file a

SAC. Dr. Andresen filed her motion to amend on August 1, 2019,

see Pl.’s Mot. to File SAC, ECF No. 42; and IntePros filed and

served her with its opposition to this motion on August 9, 2019,

see Def.’s Opp’n to Pl.’s Mot. to File SAC, ECF No. 49; Fed. R.

Civ. P. 5(b)(2)(E) (permitting service via the district court’s

electronic-filing system). Pursuant to the seven-day response

time permitted by Local Civil Rule 7(d), Dr. Andresen’s reply

brief was due by August 16, 2019. See LCvR 7(d) (“Within seven

days after service of the memorandum in opposition the moving

party may serve and file a reply memorandum.”). However, she did

not file her reply until August 19, 2019, see Pl.’s Reply to

Def.’s Opp’n to Pl.’s Mot. to File SAC, ECF No. 57; and she

concurrently included as an exhibit a motion requesting an

78 extension of time to file that reply, see Ex. 1 to Pl.’s Reply

to Def.’s Opp’n to Pl.’s Mot. to File SAC, ECF No. 57-1 at 1-3;

which she refiled as a standalone motion the next day, see Pl.’s

Mot. for Extension of Time to File Reply, ECF No. 60.

Also on August 19, 2019, IntePros filed its opposition to

Dr. Andresen’s motion requesting an extension of time and a

cross-motion to strike her untimely reply, see Def.’s Opp’n to

Mot. for Extension of Time & Cross-Mot. to Strike, ECF No. 58;

to which Dr. Andresen replied that same day, see Pl.’s Reply to

Def.’s Opp’n to Mot. for Extension of Time & Opp’n to Cross-Mot.

to Strike, ECF No. 59. 21 Dr. Andresen does not dispute the

tardiness of the filing of her reply brief “and sincerely

apologizes to the Court.” Pl.’s Mot. for Extension of Time to

File Reply, ECF No. 60 at 1. She requests that the Court allow

her late reply because she is “not well assimilated [with] the

Local Civil Rules,” and she “mistakenly conflated” “the seven-

day time period for filing replies . . . with the fourteen-day

21On August 20, 2019, after Dr. Andresen refiled her motion for an extension of time to file her reply as a standalone motion, rather than as an exhibit to the reply itself, see Pl.’s Mot. for Extension of Time to File Reply, ECF No. 60; IntePros refiled its opposition to Dr. Andresen’s motion for an extension of time and its cross-motion to strike her untimely reply as ECF No. 61 (previously docketed at ECF No. 58), and Dr. Andresen refiled her reply to that opposition and her opposition to IntePros’ cross-motion to strike as ECF No. 62 (previously docketed at ECF No. 59). For clarity, the Court hereinafter cites to these filings using ECF Nos. 60, 61, and 62. 79 time period for filing oppositions[,]” which she argues amounts

to “good cause” and “excusable neglect” under Federal Rule of

Civil Procedure 6(b). Id. at 1-2.

Federal Rule of Civil Procedure 6(b) states that “[w]hen an

act may or must be done within a specified time” pursuant to the

Federal Rules, local court rules, or by court order, “the court

may, for good cause, extend the time . . . on motion made after

the time has expired if the party failed to act because of

excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Consequently,

the Court may only consider Dr. Andresen’s extension request and

tardy reply if she “show[s] cause and ‘excusable neglect.’”

Wilson v. Prudential Fin., 218 F.R.D. 1, 3 (D.D.C. 2003).

“Four factors guide the Court’s determination of when a

late filing may constitute ‘excusable neglect’: ‘(1) the danger

of prejudice to the [opposing party], (2) the length of delay

and its potential impact on judicial proceedings, (3) the reason

for the delay, including whether it was within the reasonable

control of the movant, and (4) whether the movant acted in good

faith.’” Miley v. Hard Rock Hotel & Casino Punta Cana, 537 F.

Supp. 3d 1, 4-5 (D.D.C. 2021) (quoting In re Vitamins Antitrust

Class Actions, 327 F.3d 1207, 1209 (D.C. Cir. 2003) (citing

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507

U.S. 380, 395, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993))). “The

moving party’s fault is the most important single factor.” Id.

80 (citations and internal quotation marks omitted); see also

Wilson, 218 F.R.D. at 3 (calling fault the “key factor” in a

court’s analysis of excusable neglect). As for pro se litigants,

although they “are provided with some latitude in maneuvering

through the trial process,” they are nonetheless “obligated to

prosecute [their] lawsuit in accordance with the Federal Rules

of Civil Procedure and the local rules of th[e] court.” Akers v.

Liberty Mut. Grp., 274 F.R.D. 346, 349 (D.D.C. 2011).

Here, the Court concludes that Dr. Andresen has not shown

“good cause” or “excusable neglect” that would enable the Court

to consider her untimely reply. Although her three-day delay was

not long enough to substantially delay proceedings or prejudice

IntePros, and there is no reason to believe that she acted in

bad faith, Dr. Andresen was, as IntePros notes, “entirely in

control of when to file her Reply,” and therefore at “fault” in

the delay, see Def.’s Opp’n to Mot. for Extension of Time &

Cross-Mot. to Strike, ECF No. 61 at 3-4; Wilson, 218 F.R.D. at 3

(noting that “fault” focuses on whether the litigant “clearly

had control over the events leading to the delay”); which she

admits to the Court, Pl.’s Mot. for Extension of Time to File

Reply, ECF No. 60 at 1. Dr. Andresen’s only explanation for her

delayed reply brief was that she miscalculated the deadline

based on a misunderstanding of the Court’s Local Civil Rules.

Id. at 1-2; Pl.’s Reply to Def.’s Opp’n to Mot. for Extension of

81 Time & Opp’n to Cross-Mot. to Strike, ECF No. 62 at 2. However,

“‘[m]is-calendaring’ or miscalculating the due date for a

responsive filing does not constitute ‘excusable neglect.’” See

Miley, 537 F. Supp. 3d at 5 (making this finding in relation to

a pro se plaintiff’s late opposition brief filing). Nor do

“inadvertence, ignorance of the rules, or mistakes construing

the rules [of procedure] . . . usually constitute ‘excusable’

neglect[.]” Pioneer Inv. Servs., 507 U.S. at 392; see also

Clariett v. Rice, No. 04-2250, 2005 WL 3211694, at *4 (D.D.C.

Oct. 18, 2005) (“Even a pro se litigant . . . must comply with

the Federal Rules of Civil Procedure.”).

Furthermore, Dr. Andresen was provided with “ample notice

of the importance of compliance with th[e] Court’s rules[.]”

Def.’s Opp’n to Mot. for Extension of Time & Cross-Mot. to

Strike, ECF No. 61 at 5. For example, on July 31, 2019, the

Court entered an order directing the parties “to read the

attached Standing Order Governing Civil Cases” and “comply with

[its] directives,” one of which states that “pro se litigants

are expected to comply with the Local Civil Rules of this

Court.” See Standing Order, ECF No. 41 at 1 (providing a

hyperlink to the Court’s local rules). In a separate Minute

Order that same day, the Court “advise[d] Dr. Andresen to comply

with the Local Civil Rules for all future filings” and directed

her “to carefully read the Pro Se Non-Prisoner Handbook.” Min.

82 Order (July 31, 2019). In addition, on August 2, 2019, following

Dr. Andresen’s failure to remove “personal identifiers” from her

motion to vacate and “the exhibits thereto,” the Court warned

that any of her future filings “that fail to comply with the

Court’s Orders and the Local Civil Rules will be summarily

denied or stricken.” Min. Order (Aug. 2, 2019). As Dr. Andresen

admits, the Court’s “Standing Order of 7/31/19 and [its] Minute

Order of 8/2/19 both reinforced the importance of the Local

Civil Rules[,]” Pl.’s Mot. for Extension of Time to File Reply,

ECF No. 60 at 1; such that the Court is unpersuaded that there

is any valid reason for her failing to follow Local Civil Rule

7(d)’s time requirements for filing her reply brief.

Accordingly, the Court concludes that Dr. Andresen’s excuse

of misreading the Local Civil Rules as to the deadline for

filing her reply does not amount to “good cause” or “excusable

neglect” but rather “fault” on her part for the delay. The Court

therefore DENIES her motion requesting an extension of time to

file her reply to IntePros’ opposition to her motion to amend

the complaint, see ECF No. 60; and it GRANTS IntePros’ cross-

motion to strike her untimely reply, see ECF Nos. 58/61. Dr.

Andresen’s reply brief in support of her motion for leave to

file a SAC, see ECF No. 57; is hereby deemed untimely and the

Court does not consider it.

83 2. The Court Denies Dr. Andresen Leave to File a Second Amended Complaint as a Matter of Course Pursuant to Fed. R. Civ. P. 15(a)(1)(B)

Because of the untimeliness of Dr. Andresen’s reply, the

Court only considers the arguments Dr. Andresen advances in her

motion for leave to file a SAC, specifically that she should be

granted such leave to amend pursuant to Federal Rule of Civil

Procedure 15(a)(1)(B), 22 see Pl.’s Mot. to File SAC, ECF No. 42

at 1, 3; and IntePros’ contrary arguments, see Def.’s Opp’n to

Pl.’s Mot. to File SAC, ECF No. 49 at 8-11 (arguing that the

“circumstances” of Rule 15(a)(1)(B) “do not apply here”).

Federal Rule of Civil Procedure 15(a)(1)(B) provides that

“[a] party may amend its pleading once as a matter of course . .

. if the pleading is one to which a responsive pleading is

required” by no later than “21 days after service of a

responsive pleading or 21 days after service of a motion under

Rule 12(b), (e), or (f), whichever is earlier.” “The part of the

Rule allowing the right to amend once as a matter of course

within 21 days after service of a motion under Rule 12(b), (e),

or (f), was the result of an amendment made in 2009.” Barnes v.

22In her untimely reply, Dr. Andresen attempted to switch the basis for her motion to amend from Fed. R. Civ. P. 15(a)(1)(B) to Fed. R. Civ. P. 15(a)(2). See Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. to File SAC, ECF No. 57 at 7. Because the Court has stricken her reply, the Court does not consider the arguments Dr. Andresen advances therein pursuant to Fed. R. Civ. P. 15(a)(2). 84 Dist. of Columbia, 42 F. Supp. 3d 111, 115 (D.D.C. 2014). This

amendment revised Rule 15 so that “the right to amend once as a

matter of course [now] terminates 21 days after service of a

motion under Rule 12(b), (e), or (f).” Fed. R. Civ. P. 15

advisory committee’s note to 2009 amendment. This change “was

intended to ‘force the pleader to consider carefully and

promptly the wisdom of amending to meet the arguments in the

motion’ and thereby ‘avoid the need to decide the motion,’

reduce ‘the number of issues to be decided,’ ‘expedite

determination of issues that otherwise might be raised seriatim’

and ‘advance other pretrial proceedings.’” Barnes, 42 F. Supp.

3d at 115 (quoting Fed. R. Civ. P. 15 advisory committee’s note

to 2009 amendment).

To serve these purposes, the Advisory Committee’s note to

the amendment further states: “The 21-day periods to amend once

as a matter of course after service of a responsive pleading or

after service of a designated motion are not cumulative. If a

responsive pleading is served after one of the designated

motions is served, for example, there is no new 21-day period.”

Fed. R. Civ. P. 15 advisory committee’s note to 2009 amendment.

“In other words, the Notes clarify that if a 12(b) motion is

served and then subsequently a response is filed, the responsive

pleading does not revive [a] plaintiff’s right to amend the

85 complaint.” Schubarth v. Fed. Republic of Germany, No. 14-2140,

2020 WL 13065292, at *12 (D.D.C. Mar. 12, 2020).

As relevant here, Dr. Andresen filed the original Complaint

on March 26, 2015, see Compl., ECF No. 1; to which IntePros

responded on May 20, 2015 by moving to compel arbitration

pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (3),

and (6), see Def.’s Mot. to Compel Arbitration, ECF No. 5 at 1.

On November 25, 2015, Dr. Andresen filed a motion to amend the

complaint pursuant to Federal Rule of Civil Procedure 15(a)(2),

see Pl.’s Mot. to Amend Compl., ECF No. 10 at 1; presumably

because she had responded significantly beyond 21 days after

being served with IntePros’ motion under Rule 12(b), and thus

could not amend “as a matter of course” due to her delay, see

Fed. R. Civ. P. 15(a)(1)(B). Following the filing of her motion

to amend, IntePros renewed its motion to compel arbitration

pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (3),

and (6), see Def.’s Renewed Mot. to Compel Arbitration, ECF No.

11 at 1; after which the Court granted Dr. Andresen’s motion to

amend and stayed the filing of IntePros’ answer to the Amended

Complaint pending the Court’s resolution of the renewed motion

to compel arbitration, see Min. Order (Mar. 29, 2016). As

already discussed, the Court then granted IntePros’ motion to

compel arbitration, Arbitrator Healey deemed Dr. Andresen’s

claims arbitrable, and Arbitrator Janofsky entered a binding

86 award in favor of IntePros that fully satisfied all pending

claims in arbitration, at which point IntePros moved to dismiss

this action in its entirety pursuant to the FAA and Federal

Rules of Civil Procedure 12 and 56 on July 12, 2019. See Def.’s

Mot. to Dismiss, ECF No. 35 at 1. Dr. Andresen then filed her

motion for leave to file a SAC on August 1, 2019, and she claims

that it should be granted because she filed it “within the 21

days stated by Federal Rule of Civil Procedure 15(a)(1)(B).”

Pl.’s Mot. to File SAC, ECF No. 42 at 3.

The Court disagrees. First, as IntePros argues, and the

Court agrees, IntePros’ motion to dismiss “is not a ‘motion

under Rule 12(b), (e), or (f)’ as contemplated by Rule

15(a)(1)(B)” but rather “presents other, independent grounds of

authority for dismissal of this case” outside of Rule 12,

including the FAA and the summary judgment standard pursuant to

Federal Rule of Civil Procedure 56. Def.’s Opp’n to Pl.’s Mot.

to File SAC, ECF No. 49 at 9-10. As the Court explains above,

IntePros’ motion to dismiss is the sequel to its earlier motion

to compel arbitration pursuant to 9 U.S.C. § 4 of the FAA, see

supra section III.A.; and in situations where a defendant is

seeking dismissal due to the arbitrability of the claims,

“‘[a]lthough styled as a motion to dismiss, . . . the

appropriate standard of review for the district court’” to

employ in reviewing the merits of the motion is the summary

87 judgment standard pursuant to Rule 56, Hughes v. CACI, Inc., 384

F. Supp. 2d 89, 93 (D.D.C. 2005) (quoting Technetronics, 1993 WL

197028, at *2); accord Brown, 267 F. Supp. 2d at 66 (concluding

that a motion to dismiss that works in tandem with a motion to

compel arbitration “does not come[] within the ambit of Rule

12(b) of the Federal Rules of Civil Procedure” (citation and

internal quotation marks omitted)); Martin, 567 F. Supp. 2d at

40-41 (same). “Simply put, IntePros’ Motion to Dismiss is not a

qualifying motion under Rule 12(b) for purposes of Rule

15(a)(1)(B)[,]” and thus, Dr. Andresen “cannot avail herself of

an amendment as a matter of course” to file the proposed SAC.

Def.’s Opp’n to Pl.’s Mot. to File SAC, ECF No. 49 at 9-10.

Second, even if the Court were to assume that IntePros’

present motion to dismiss and prior accompanying motions to

compel arbitration were all qualifying motions under Rule 12(b)

for purposes of Rule 15(a)(1)(B), see Def.’s Mot. to Compel

Arbitration, ECF No. 5 at 1 (made pursuant to Fed. R. Civ. P.

12(b)(1), (2), (3), and (6)); Def.’s Renewed Mot. to Compel

Arbitration, ECF No. 11 at 1 (same); as opposed to non-

qualifying motions under Rule 56, the 2009 amendment to Rule 15

made it so that “the right to amend once as a matter of course

terminates 21 days after service of a motion under Rule 12(b).”

Fed. R. Civ. P. 15 advisory committee’s note to 2009 amendment

(emphasis added). This right to amend as a matter of course does

88 not renew each time a defendant files “a responsive pleading

(either an answer or a responsive motion) to a particular

version of the complaint[,]” U.S. ex rel. D’Agostino v. EV3,

Inc., 802 F.3d 188, 192-93 (1st Cir. 2015); as the Advisory

Committee’s note on the amendment specifically states that the

21-day period to amend once as a matter of course after service

of a designated motion is “not cumulative,” see Fed. R. Civ. P.

15 advisory committee’s note to 2009 amendment (explaining that

“there is no new 21-day period” after each of a defendant’s Rule

12 motions). In other words, “once a 12(b) . . . motion is

served, the plaintiff has 21 days to amend as of right, period,

and any subsequent amendment after that particular Rule 12

motion was served requires leave of court.” Schubarth, 2020 WL

13065292, at *11 (emphasis in original).

Here, pursuant to Rule 12(b) and the FAA, IntePros filed

its motion to compel arbitration on May 20, 2015, and it renewed

that motion under the same grounds on December 9, 2015. Dr.

Andresen’s ability to amend once as of right terminated 21 days

later, and therefore, her “window for amending the complaint [as

a matter of course] . . . is long past.” Id. at *12. The Court

therefore concludes that Dr. Andresen is not entitled to an

amendment as a matter of course, and it denies her leave to file

a SAC pursuant to Federal Rule of Civil Procedure 15(a)(1)(B).

89 3. The Court Denies Dr. Andresen Leave to File a Second Amended Complaint Because Justice Does Not So Require It Pursuant to Fed. R. Civ. P. 15(a)(2)

Once the time to amend a pleading once as a matter of

course elapses, a plaintiff may amend the complaint with leave

of the court. Fed. R. Civ. P. 15(a)(2). The Rule directs courts

to “freely give leave” to amend a complaint “when justice so

requires.” Id. “If the underlying facts or circumstances relied

upon by a plaintiff may be a proper subject of relief, [s]he

ought to be afforded an opportunity to test [her] claim on the

merits.” Foman, 371 U.S. at 182. However, courts have discretion

to deny leave to amend if there is “a sufficiently compelling

reason,” Robinson, 211 F. Supp. 2d at 113-14; which may include

“undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by

virtue of allowance of the amendment, [or] futility of

amendment,” Foman, 371 U.S. at 182. In considering the presence

or absence of these factors, courts must appropriately

“balanc[e] the interests of the party seeking the amendment and

those of the party objecting to it.” Barnes, 42 F. Supp. 3d at

115 (citation and internal quotation marks omitted).

Here, Dr. Andresen has failed to move to amend the Amended

Complaint pursuant to Rule 15(a)(2), and all of her arguments

90 regarding that portion of the rule have been stricken due to

them only appearing in her untimely reply brief. See supra note

22. Nonetheless, because amendments pursuant to Rule 15(a)(2)

“are to be liberally granted” in the absence of a justifying

reason, Abdullah v. Washington, 530 F. Supp. 2d 112, 114-15

(D.D.C. 2008); and because Dr. Andresen is a pro se litigant,

see, e.g., Ning Ye v. Holder, 644 F. Supp. 2d 112, 116 (D.D.C.

2009) (affording greater latitude to pro se plaintiffs than

those with counsel); the Court briefly addresses IntePros’

argument that “Dr. Andresen’s [m]otion implicates nearly all of

the recognized grounds for denying leave to amend[,]” see Def.’s

Opp’n to Pl.’s Mot. to File SAC, ECF No. 49 at 11-12.

a. Dr. Andresen’s Motion to Amend Must Be Denied Due to Her Bad Faith and Dilatory Motives

The Court begins with IntePros’ argument that Dr.

Andresen’s motion for leave to amend should be denied due to her

“bad faith and dilatory motives.” Def.’s Opp’n to Pl.’s Mot. to

File SAC, ECF No. 49 at 18. As IntePros notes, Dr. Andresen’s

“core justification” for requesting leave to amend, id.; centers

on “correct[ing] the drafting error [made by her prior counsel]

in Counts V and VI” of the Amended Complaint so as to separately

assert an FCA retaliation claim under 31 U.S.C. § 3730(h), which

she was “disallowed” from doing in arbitration via the

“corrected” Statement of Claims, see Pl.’s Mot. to File SAC, ECF

91 No. 42 at 2-4; Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No.

35-2 at 10-11. IntePros argues that “th[is] ‘drafting error’

explanation . . . is bogus” and is Dr. Andresen’s attempt “to

skirt the arbitration award” and “resurrect claims clearly

disposed of in arbitration.” Def.’s Opp’n to Pl.’s Mot. to File

SAC, ECF No. 49 at 18.

The Court agrees. Seemingly knowing that the Amended

Complaint does not presently state an FCA retaliation claim

(contrary to the arguments in her cross-motion to litigate), Dr.

Andresen’s proposed SAC attempts “to transform Count VI into an

FCA retaliation claim [ ] grounded in the misrepresentation that

the Amended Complaint filed in November 2015 omitted” this claim

due to a technical “drafting error.” Id. at 18. The Court has

already rejected Dr. Andresen’s earlier contention that her FCA

retaliation claim was “marred” by this alleged “drafting error,”

see supra section IV.A.1.; like Arbitrator Janofsky, who

similarly concluded that the “corrected” Statement of Claims

improperly added a new FCA retaliation claim under the guise of

“a minor correction of a technical error,” Award, Ex. 2 to

Def.’s Mot. to Dismiss, ECF No. 35-2 at 10. These same

conclusions apply here, as the proposed SAC proffers identical

substantive changes in Counts V and VI to the changes Dr.

Andresen attempted to make to those counts in her “corrected”

version of the Statement of Claims that Arbitrator Janofsky

92 rejected as “disingenuous.” Id.; compare Ex. 1 to Pl.’s Mot. to

File SAC, ECF No. 42-2 at 104-08 ¶¶ 506-21 (Counts V and VI of

the proposed SAC), and Ex. 2 to Pl.’s Mot. to File SAC, ECF No.

42-3 at 105-09 ¶¶ 506-21 (redline comparison of the Amended

Complaint to the proposed SAC), with Ex. 7 to Def.’s Mot. to

Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43-7 at

102-06 ¶¶ 498-513 (redline comparison showing the changes Dr.

Andresen made to Counts V and VI of her “corrected” Statement of

Claims, as compared to the original version).

So too here does the Court conclude that Dr. Andresen’s

“drafting error” explanation for the proposed SAC is

disingenuous, as her thinly veiled summary of the changes in the

SAC, see Pl.’s Mot. to File SAC, ECF No. 42 at 3-6; hides

“extensive changes of substance” to Count V and especially to

Count VI, Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2

at 10; most notably the addition of the legal standard for an

FCA retaliation claim under 31 U.S.C. § 3730(h), specific

citations to that section, and a revamp of the factual

allegations in the accompanying paragraphs under Count VI, see

Ex. 2 to Pl.’s Mot. to File SAC, ECF No. 42-3 at 105-09 ¶¶ 506-

21.

Dr. Andresen’s continued use of the false “drafting error”

narrative to assert an FCA retaliation claim is exemplary of bad

faith and dilatory motives precisely because she lost this exact

93 argument in arbitration. See Def.’s Opp’n to Pl.’s Mot. to File

SAC, ECF No. 49 at 21 (arguing that “Dr. Andresen is requesting

leave to amend her complaint in order to pursue” her FCA

retaliation claim “that she botched in arbitration”). Dr.

Andresen also takes her bad faith a step further by reasserting

claims under the DCHRA and the DCWPCL in the proposed SAC, see

Ex. 1 to Pl.’s Mot. to File SAC, ECF No. 42-2 at 100-04 ¶¶ 477-

505 (Counts I to IV of the proposed SAC that include both

federal and D.C. law claims); that she consented to dismissing

in arbitration with prejudice, Ex. 1 to Def.’s Mot. to Dismiss,

ECF No. 35-1 at 2 (“Consent Order” signed by Dr. Andresen’s

counsel). The Court agrees with IntePros that “Dr. Andresen’s

attempt to prosecute claims that she agreed to dismiss is the

definition” of bad faith and “should not be countenanced.”

Def.’s Opp’n to Pl.’s Mot. to File SAC, ECF No. 49 at 22.

IntePros directs the Court to a similarly situated case

decided by the Fifth Circuit. In Southern Constructors Group,

Inc. v. Dynalectric Co., 2 F.3d 606 (5th Cir. 1993), the Fifth

Circuit concluded that the district court did not abuse its

discretion in denying the plaintiff’s motion to amend its

complaint when the plaintiff “suffered its loss after a full

arbitration on the merits of its claims[,]” “arbitration was

consented to by” the plaintiff, and only after losing in

arbitration did the plaintiff “attempt to proffer new grounds

94 for recovery” via an amended complaint. Id. at 612. The Fifth

Circuit explained that the plaintiff’s “attempt to amend its

complaint was nothing more than an attempt to try its theories

of recovery seriatim[,]” which it rejected because of the need

to “protect the efficacy of [arbitration] award[s,]” to “avoid

adding to the already burgeoning dockets of the district

courts[,]” and to allow defendants to reasonably trust that

arbitration can conclusively resolve disputes. See id. at 609,

612. As the district court had observed in denying the

plaintiff’s motion to amend the complaint:

In sum, more than two and half years after the filing of the original complaint, after numerous filings, . . . after arbitration of all issues raised before arbitration . . . , and, amazingly enough, after [the plaintiff] consented to the entry of judgment dismissing all of its claims against [the defendant], [the plaintiff] now seeks to amend its complaint. Unfortunately for [the plaintiff], its train has not merely left the station—it has already reached its destination and discharged its cargo.

S. Constructors Grp., Inc. v. Dynalectric Co., No. 90-2942, 1993

WL 85964, at *2 (E.D. La. Mar. 15, 1993), aff’d, 2 F.3d 606 (5th

Cir. 1993). The Court is persuaded by this reasoning, and it too

rejects Dr. Andresen’s bad faith attempt to use a motion to

amend to “revive” this dispute, including claims she previously

agreed to dismiss, “solely based on her dissatisfaction with her

losing result in arbitration.” Def.’s Opp’n to Pl.’s Mot. to

95 File SAC, ECF No. 49 at 11, 20; see Dynalectric Co., 2 F.3d at

611 (expressing “serious[] doubt whether [Rule 15’s] liberal

standards would apply to amendment of a judgment after . . .

completion of arbitration”).

b. Dr. Andresen’s Motion to Amend Must Be Denied Due to Her Undue Delay, Undue Prejudice to IntePros, and Futility

IntePros next argues that Dr. Andresen’s motion for leave

to file a SAC should be denied because the amendment was brought

“after undue delay,” would “result in undue prejudice to

IntePros,” and would be futile. See Def.’s Opp’n to Pl.’s Mot.

to File SAC, ECF No. 49 at 11-18, 22-23. For similar reasons to

the above regarding Dr. Andresen’s bad faith and dilatory

motives, the Court agrees with each of these three arguments.

First, as IntePros discusses, Dr. Andresen has moved to

file a SAC more than four years after litigation commenced,

after already amending the complaint once, and only after fully

losing in arbitration. See id. at 6, 18 (noting that Dr.

Andresen’s request to amend comes “more than twenty-nine months

after this Court decided that the arbitrability of her claims

should be decided by an arbitrator, more than twenty-one months

after the arbitrator determined that all of her claims were

arbitrable, and nearly two months after her claims were already

dismissed on their merits in arbitration”). As noted, the

proposed SAC changes are identical to those Dr. Andresen tried

96 to make in arbitration to her Statement of Claims on September

7, 2018, and yet, she waited nearly a full year before seeking

to identically update the Amended Complaint before the Court on

August 1, 2019. This “is the very picture of undue delay.” See

Bode & Grenier, LLP v. Knight, 808 F.3d 852, 860-61 (D.C. Cir.

2015) (concluding that moving to amend four years after

litigation began and one year after dispositive motions were

decided “bears the hallmarks of gamesmanship, [thereby]

defeating the orderly character of [arbitration,] . . . a legal

process grounded in sound policy”).

Second and for analogous reasons, allowing Dr. Andresen to

amend the complaint after the completion of arbitration would

cause IntePros undue prejudice by requiring it to engage in

further unnecessary and costly litigation. See Def.’s Opp’n to

Pl.’s Mot. to File SAC, ECF No. 49 at 22-23. As the Fifth

Circuit affirmed in Dynalectric Co., granting a motion to amend

after the end of arbitration “would be unfairly prejudicial to

[defendants]” because it would “subject[ them] to renewed

litigation when [they should have] a reasonable and justifiable

expectation that [ ] arbitration [can] conclusively resolve[]

[such] dispute[s].” 2 F.3d at 609; see also Hamel-Schwulst v.

Countryplace Mortg., Ltd., No. 1:08-cv-195, 2010 WL 606761, at

*3 (S.D. Miss. Feb. 17, 2010) (denying a plaintiff leave to file

a third party complaint pursuant to Fed. R. Civ. P. 15(a)(2)

97 because “allowing an amendment to a complaint to include

tangentially related claims after the parties have proceeded to

arbitration would be prejudicial to [the defendant]”), aff’d,

406 F. App’x 906 (5th Cir. 2010). The Court is “mindful of the

extensive time and resources that have been expended” by

IntePros and its counsel, Abdullah, 530 F. Supp. 2d at 115 n.2;

as IntePros states that it has “incurred well over $100,000 in

attorneys’ fees, not to mention its substantial arbitration fees

and costs, relating to Dr. Andresen’s [ ] claims in the past

calendar year alone[,]” Def.’s Opp’n to Pl.’s Mot. to File SAC,

ECF No. 49 at 23. Thus, “[i]n addition to [IntePros’]

demonstrated prejudice, the Court concludes that principles of

fairness and judicial economy weigh heavily against granting the

motion to amend[,]” Abdullah, 530 F. Supp. 2d at 115; especially

given “the national policy favoring arbitration” following

Congress’ enactment of the FAA, Cardegna, 546 U.S. at 443.

Lastly, the Court concludes that granting Dr. Andresen’s

requested amendment would be futile. “An amendment would be

futile if it merely restates the same facts as the original

complaint in different terms, reasserts a claim on which the

court previously ruled, fails to state a legal theory, or could

not withstand a motion to dismiss.” Robinson, 211 F. Supp. 2d at

114 (citing 3 MOORE’S FEDERAL PRACTICE § 15.15[3] (3d ed. 2000)).

Here, the proposed SAC is futile because it merely reasserts

98 claims Dr. Andresen consented to dismissing with prejudice

during arbitration and proposes changes to Counts V and VI

already rejected as “disingenuous” by both Arbitrator Janofsky

and the Court. Furthermore, nothing in the proposed SAC changes

the fact that the Court previously compelled arbitration, which

led to an affirmative determination of arbitrability for the

“entirety” of Dr. Andresen’s claims, Ex. 10 to Def.’s Mot. to

Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43-10

at 10; and a binding arbitration award “in full satisfaction of”

those claims, Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No.

35-2 at 11. Because of this conclusive end to arbitration, the

Court has now concluded that dismissal of Dr. Andresen’s stayed

action is appropriate, see supra section IV.A.3.; and thus, any

amendment at this point in the litigation is futile. 23

Because Dr. Andresen is not entitled to amend the complaint

as a matter of course pursuant to Federal Rule of Civil

Procedure 15(a)(1)(B) or pursuant to the liberal standards of

Federal Rule of Civil Procedure 15(a)(2) due to the presence of

23IntePros proffers additional arguments for why “[t]he requested amendment is futile,” including that “it would be barred by res judicata, the parties’ arbitration agreement, and judicial estoppel,” and that Dr. Andresen’s alleged FCA retaliation claim “would not survive a motion to dismiss.” See Def.’s Opp’n to Pl.’s Mot. to File SAC, ECF No. 49 at 11-17. The Court concludes it is unnecessary to reach any of these arguments. 99 sufficiently compelling reasons to the contrary, the Court

DENIES her motion for leave to file a SAC. See ECF No. 42.

C. The Court Denies Dr. Andresen’s Motion to Vacate the Arbitration Award and Grants IntePros’ Cross-Motion to Confirm the Arbitration Award

The Court lastly addresses Dr. Andresen’s petition to

vacate the arbitration award, which she filed on August 2, 2019—

eight days after filing her cross-motion to litigate and one day

after filing her motion for leave to file a SAC. See Pl.’s Mot.

to Vacate, ECF No. 45. Dr. Andresen seeks vacatur based on three

grounds under the FAA and alleges that the award should be

vacated because Arbitrator Janofsky: (1) exceeded her authority

pursuant to 9 U.S.C. § 10(a)(4) of the FAA; (2) is guilty of

misconduct and misbehavior pursuant to 9 U.S.C. § 10(a)(3) of

the FAA; and (3) exhibited evident partiality pursuant to 9

U.S.C. § 10(a)(2) of the FAA. 24 See Pl.’s Mot. to Vacate, ECF No.

24As IntePros correctly notes, Dr. Andresen’s vacatur petition “does not challenge [Arbitrator Healey’s] earlier award from October 2017 finding Dr. Andresen’s claims to be arbitrable[,]” and instead exclusively challenges Arbitrator Janofsky’s award made on June 6, 2019. See Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 8. Dr. Andresen replies by contending that she “requested that the Court review the arbitrability determination in her Cross-Motion” to litigate. Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 20. For all the reasons already discussed, the Court has rejected Dr. Andresen’s request, in her non-cognizable “cross-motion to litigate,” for the Court’s “fulsome judicial review” of Arbitrator Healey’s arbitrability decision and her argument that her NDAA and non- existent FCA retaliation claims are not arbitrable. See supra section IV.A.2. Furthermore, given that briefing regarding 100 45 at 11-47. She additionally argues for a “public policy

exception as [another] reason for vacatur of [the] arbitration

award” grounded in “general common law.” See id. at 47-52. Based

on these four grounds, Dr. Andresen requests that the Court

vacate the award and remand to arbitration her federal claims

under the ADEA, Title VII, and the FLSA, and her D.C. law claims

under the DCHRA and the DCWPCL, id. at 8; which she “wishes to

reassert” even though “her prior counsel dismissed [them] during

the arbitration,” id. at 8 n.3. In addition, Dr. Andresen

requests that she be permitted to litigate her two alleged

retaliation claims under the NDAA and the FCA in this district

court, as argued in her cross-motion to litigate, or

alternatively, that the Court remand all of her claims back to

arbitration to “begin anew” with another arbitrator. Id. at 8-9.

IntePros argues that Dr. Andresen “improperly challenges

the merits of the arbitrator’s decision” and that her grounds

for vacatur must fail because: (1) Dr. Andresen has ignored the

fundamental fairness of the arbitration proceedings; (2)

IntePros’ motion to dismiss and Dr. Andresen’s cross-motion to litigate was nearly complete before Dr. Andresen filed her motion to vacate, Dr. Andresen was on notice of IntePros’ argument that she needed to challenge the arbitrability decision in a formal petition for vacatur pursuant to the FAA’s enumerated grounds, as opposed to in an invalid “cross-motion to litigate.” Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43 at 12, 18-20. Nonetheless, Dr. Andresen has failed to properly re-raise these challenges in her motion to vacate, so the Court declines to consider them here. 101 Arbitrator Janofsky did not exceed her authority in making the

arbitration award; (3) Arbitrator Janofsky did not engage in

misconduct but rather provided Dr. Andresen with an opportunity

to prosecute her claims; (4) Arbitrator Janofsky was not

partial, as she had no improper interests or motives in deciding

this case; and (5) Dr. Andresen’s public policy claim must fail.

Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm,

ECF No. 55 at 7, 15, 40-41. Based on these same arguments,

IntePros has filed a cross-motion to confirm the award. Id. The

Court addresses the parties’ arguments in turn below.

1. The Arbitrator Did Not Exceed Her Authority Pursuant to 9 U.S.C. § 10(a)(4) of the Federal Arbitration Act in Making the Arbitration Award

Dr. Andresen first argues for vacatur of the arbitration

award pursuant to 9 U.S.C. § 10(a)(4) of the FAA, see Pl.’s Mot.

to Vacate, ECF No. 45 at 11-18; which “permits vacatur ‘where

the arbitrators exceeded their powers [under the arbitration

agreement], or so imperfectly executed them that a mutual,

final, and definite award upon the subject matter submitted was

not made[,]’” Mesa Power, 255 F. Supp. 3d at 183 (quoting 9

U.S.C. § 10(a)(4)); Republic of Argentina, 894 F.3d at 337. “A

party seeking relief under [this] provision [of the FAA] bears a

heavy burden[,]” as “‘[i]t is not enough . . . to show that the

[arbitrator] committed an error—or even a serious error.’”

Oxford Health Plans, 569 U.S. at 569 (quoting Stolt-Nielsen S.A.

102 v. AnimalFeeds Int’l Corp., 559 U.S. 662, 671, 130 S. Ct. 1758,

176 L. Ed. 2d 605 (2010)).

Rather, “[i]t is only when [an] arbitrator strays from

interpretation and application of the [parties’] agreement and

effectively dispense[s] [her] own brand of industrial justice

that [the] decision may be unenforceable”—because “the task of

an arbitrator is to interpret and enforce a contract, not to

make public policy.” Stolt-Nielsen, 559 U.S. at 671-72 (citation

and internal quotation marks omitted); see also Republic of

Argentina, 894 F.3d at 337 (“The bar [for success] is high:

courts may disturb an award only if the challenger can show that

it was inconsistent with the [arbitrator’s] own understanding of

the award that was authorized by the agreement.”). In other

words, “[o]nly if ‘the arbitrator act[s] outside the scope of

[her] contractually delegated authority’—issuing an award that

‘simply reflect[s] [her] own notions of [economic] justice’

rather than ‘draw[ing] its essence from the contract’—may a

court overturn [her] determination.” Oxford Health Plans, 569

U.S. at 569 (quoting E. Associated Coal Corp. v. United Mine

Workers of Am., 531 U.S. 57, 62, 121 S. Ct. 462, 148 L. Ed. 2d

354 (2000) (quoting Misco, 484 U.S. at 38)). As such, “the

excess-of-authority provision” of the FAA is to be construed

narrowly and does not “confer on courts a general equitable

power to substitute a judicial resolution of a dispute for an

103 arbitral one; rather, where the interpretation of a contract is

at issue, [i]t is the arbitrator’s construction which was

bargained for, and not that of the courts.” Davis, 667 F.2d at

165 (citation and internal quotation marks omitted); see also

Oxford Health Plans, 569 U.S. at 569 (“Because the parties

bargained for the arbitrator’s construction of their agreement,

an arbitral decision even arguably construing or applying the

contract must stand, regardless of a court’s view of its

(de)merits.” (citations and internal quotation marks omitted)).

Dr. Andresen argues that Arbitrator Janofsky exceeded her

authority pursuant to 9 U.S.C. § 10(a)(4) because she claims

that the arbitration award “is not rationally inferable, nor

does it draw its essence, from the dual contracts that governed

[her] employment situation[,]” specifically: (1) her Sub

Contractor Agreement with IntePros, dated June 13, 2013, see Ex.

L to Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate,

ECF No. 37-14; and (2) IntePros’ contract with the Department of

Defense (the “DHA Contract” or “Federal Contract”), dated June

17, 2013, see Ex. 9 to Pl.’s Mot. to Vacate, ECF No. 45-10

(formally titled, “Order for Supplies or Services”); Pl.’s Mot.

to Vacate, ECF No. 45 at 13. Dr. Andresen argues, as she did

during arbitration, that her Sub Contractor Agreement with

IntePros “incorporates by reference the DHA Contract[,]” and

that Arbitrator Janofsky neglected to consider both contracts

104 “together,” thereby failing to acknowledge that Dr. Andresen

“had joint employers” and erroneously drawing conclusions

regarding who supervised Dr. Andresen and that she was not an

employee of IntePros. Pl.’s Mot. to Vacate, ECF No. 45 at 13-16.

IntePros responds that Dr. Andresen’s “challenge to the Award on

the basis of the arbitrator’s authority” is “nothing more than

her unreasonable disagreements with the [merits of the]

arbitrator’s findings and conclusions.” Def.’s Opp’n to Pl.’s

Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 19, 21.

Under 9 U.S.C. § 10(a)(4), “the sole question” for the

Court “is whether the arbitrator (even arguably) interpreted the

parties’ contract [at all], not whether [s]he got its meaning

right or wrong.” Oxford Health Plans, 569 U.S. at 569, 573.

Thus, so long as Arbitrator Janofsky “‘even arguably’” construed

or applied the relevant contract and acted “‘within the scope of

[her] authority,’” the Court cannot correct any errors she may

have made, even “serious” ones, or “‘overturn [her] decision.’”

E. Associated Coal Corp., 531 U.S. at 62 (quoting Misco, 484

U.S. at 38); see also Davis, 667 F.2d at 166 (“[T]he

arbitrator’s award should not be upset . . . if it represents a

plausible interpretation of the contract.”).

Here, as discussed above, first Arbitrator Healey examined

the text of the Sub Contractor Agreement between IntePros and

Dr. Andresen, including “the broad language of [its] arbitration

105 clause,” before concluding that all of Dr. Andresen’s claims

were arbitrable, Ex. 10 to Def.’s Mot. to Dismiss Reply & Opp’n

to Cross-Mot. to Litigate, ECF No. 43-10 at 6-8, 10; which the

Court has also concluded included her NDAA retaliation claim and

(non-existent) FCA retaliation claim, see supra section IV.A.2.

at 61-64 (concluding that Arbitrator Healey’s arbitrability

determination drew “its essence” from the Sub Contractor

Agreement). Following this determination, which Dr. Andresen is

not challenging in this motion to vacate, see supra note 24;

Arbitrator Janofsky, “vested [with authority] by the Subcontract

to decide” the claims raised in Dr. Andresen’s Statement of

Claims, Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to

Confirm, ECF No. 55 at 18, 20; then examined the Phase One

issues, notably whether Dr. Andresen should be considered an

employee or an independent contractor pursuant to “her written

‘Sub-contractor Agreement’ of June 13, 2013 with” IntePros, see

Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at 2-3.

In deciding this question, Arbitrator Janofsky looked to

various factors regarding the relationship between IntePros and

Dr. Andresen pursuant to the “economic realities” test under the

FLSA and similar tests under the federal anti-discrimination

laws, and she also examined the text of the Sub Contractor

Agreement and the parties’ arguments regarding that text before

concluding that “[t]he parties’ clear and deliberate intention

106 to engage [Dr. Andresen] as an independent contractor, and not

as an employee, was memorialized by the written contract of June

13, 2013.” See id. at 3-7 (summarizing items excluded from the

Sub Contractor Agreement, such as any mentioning of annual

leave, relocation assistance, health insurance, and “other

benefits typical of those given to employees”). Therefore, the

Court concludes that Arbitrator Janofsky “employed all of the

standard interpretative tools that a court or arbitration panel

would normally use when interpreting a text[,]” Mesa Power, 255

F. Supp. 3d at 185; and “arguably” construed the Sub Contractor

Agreement on the employee versus independent contractor

question, rather than “abandon[ing] [her] interpretative role”

and exceeding her authority as defined by 9 U.S.C. § 10(a)(4),

Oxford Health Plans, 569 U.S. at 569-71.

Although Dr. Andresen argues that Arbitrator Janofsky

exceeded her authority because she did not consider the Sub

Contractor Agreement “together” with IntePros’ separate contract

with the federal government—the DHA Contract—the Court rejects

this argument. See Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate

& Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 7-11;

Pl.’s Mot. to Vacate, ECF No. 45 at 13-18. First, it is not the

DHA contract, to which Dr. Andresen was not even a party, that

provided to the arbitrators their contractually delegated

authority to hear and decide Dr. Andresen’s claims, but rather

107 the Sub Contractor Agreement and the broad arbitration clause

contained therein. See Sub Contractor Agreement, Provision 9(f),

Ex. A, ECF No. 12-1 at 6; Ex. L to Pl.’s Opp’n to Mot. to

Dismiss & Cross-Mot. to Litigate, ECF No. 37-14. Dr. Andresen

seemingly admits this when she states that “an arbitrator’s

authority derives from the contract between the parties,” which,

again, the DHA contract is not. Pl.’s Reply to Def.’s Opp’n to

Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No.

63 at 8 (emphasis added). Second and relatedly, if Dr. Andresen

had issues with which contract(s) governed the arbitration

dispute and believed that the DHA Contract somehow restricted an

arbitrator’s authority to decide her claims in this matter, then

she should have raised any such challenges much earlier in this

litigation, for example, before the Court ruled on IntePros’

motion to compel arbitration or at the arbitrability stage when

Arbitrator Healey engaged in his analysis of “the plain language

of the [governing] Agreement.” Ex. 10 to Def.’s Mot. to Dismiss

Reply & Opp’n to Cross-Mot. to Litigate, ECF No. 43-10 at 6. The

time for this type of challenge has long passed.

Thirdly, although Dr. Andresen claims that her agreement

with IntePros “incorporates by reference the DHA Contract,” such

that the terms of both contracts would “interrelated[ly]” govern

an arbitrator’s authority in this matter as one “contract in its

entirety,” Pl.’s Mot. to Vacate, ECF No. 45 at 12 n.6-13; Pl.’s

108 Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-

Mot. to Confirm, ECF No. 63 at 8; this is not chronologically

possible, as she entered into the Sub Contractor Agreement with

IntePros on June 13, 2013, while IntePros’ DHA Contract with the

government did not become effective until four days later, on

June 17, 2013, Pl.’s Mot. to Vacate, ECF No. 45 at 13 n.9-10.

Dr. Andresen cites caselaw indicating than an earlier document

may be incorporated by reference into a subsequent contract, see

id. at 13 n.11 (citing Priority One Servs., Inc. v. W & T Travel

Servs., LLC, 825 F. Supp. 2d 43, 53 (D.D.C. 2011) (explaining

that an “earlier document is made a part of the second document”

when it is “incorporated by reference” (citations and internal

quotation marks omitted))); and yet, she improperly argues for

the reverse—that the earlier in time Sub Contractor Agreement

somehow incorporates the second, later in time, DHA Contract,

see Pl.’s Mot. to Vacate, ECF No. 45 at 13 n.11.

Furthermore, the Court agrees with IntePros that Dr.

Andresen “does not [ ] cite any portion of the Subcontract that

actually incorporates the Federal Contract by reference.” Def.’s

Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No.

55 at 20. Instead, Dr. Andresen claims, without textual

evidence, that “Addendum: Exhibit A – SC Work Schedule” in her

Sub Contractor Agreement with IntePros, see Ex. L to Pl.’s Opp’n

to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No. 37-14 at 6;

109 incorporates by reference the DHA Contract because “one must

refer to the DHA Contract to see how the position of

‘Information Technology Analyst’ [as] stated in [this addendum

to the] IntePros Agreement is defined[,]” Pl.’s Mot. to Vacate,

ECF No. 45 at 15. This statement is unsupported because there is

no reference in this addendum or elsewhere in the Sub Contractor

Agreement to the DHA Contract between IntePros and the federal

government. In addition, contrary to Dr. Andresen’s claims,

instead of needing to refer to the DHA Contract to define “the

requirements of the Information Technology Analyst position that

[she] held[,]” id.; the Sub Contractor Agreement broadly defines

her requested “consulting services” as “such information

technology services as are identified to the Sub Contractor[,

i.e., Dr. Andresen] by IntePros[,]” and also includes relevant

employment conditions such as her work location, start and end

dates, and pay rate, see Ex. L to Pl.’s Opp’n to Mot. to Dismiss

& Cross-Mot. to Litigate, ECF No. 37-14 at 1, 6. 25

25Although the Sub Contractor Agreement does not incorporate by reference the DHA Contract to define Dr. Andresen’s position description or work conditions, Arbitrator Janofsky’s award indicates that she did look to the Federal Contract to fill in certain gaps when conducting her analysis, see, e.g., Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at 2 (explaining that Dr. Andresen was engaged by IntePros “to render services as an Information Technology Analyst in connection with a contract that [IntePros] had with the federal government”), 5 (noting that Dr. Andresen’s hours were “constrained to . . . [the] hours that were specified in the federal contract”), 5-6 (noting that “the federal contract was a fixed price contract” that impacted 110 Instead of properly challenging, pursuant to 9 U.S.C. §

10(a)(4), the authority granted to Arbitrator Janofsky by the

parties’ arbitration agreement to decide the issues, Dr.

Andresen, as IntePros contends, incorrectly uses IntePros’ DHA

Contract to challenge the “merits of the decision against

her[,]” including Arbitrator Janofsky’s conclusions regarding:

(1) the issue of joint employment; (2) the interplay between the

Sub Contractor Agreement and the Federal Contract; and (3) who

supervised Dr. Andresen. Compare Def.’s Opp’n to Pl.’s Mot. to

Vacate & Cross-Mot. to Confirm, ECF No. 55 at 19, 22-24, with

Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s

Cross-Mot. to Confirm, ECF No. 63 at 8 (arguing that Arbitrator

Janofsky “did not consider critical elements of the DHA Contract

that relate[d] to [Dr. Andresen’s] employment situation”). The

Court is “not authorized to reconsider the merits of” the

arbitration award even though Dr. Andresen “allege[s] that the

award rests on errors of fact or on misinterpretation of the

Dr. Andresen’s opportunities for profit and loss), 6 (noting that “[t]he parties’ relationship was project-based because it was tied to the requirements of a single federal contract”); thereby contradicting Dr. Andresen’s claims that Arbitrator Janofsky “ignor[ed] how the two contracts function together” to “determine the salient conditions of [Dr. Andresen’s] employment[,]” see Pl.’s Mot. to Vacate, ECF No. 45 at 15-16; Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 8 n.4 (improperly arguing that Arbitrator Janofsky “never once mentioned or acknowledged the relationship between [Dr. Andresen’s] two contracts”). 111 contract[,]” which includes not weighing in on “whether there is

particular language in the written instrument which will support

[her] claim.” Misco, 484 U.S. at 36-37 (citations and internal

quotation marks omitted). As such, the Court only concludes that

Arbitrator Janofsky arguably construed the text of the governing

Sub Contractor Agreement, together with the parties’ arguments

and evidentiary submissions, to decide the threshold issue of

Dr. Andresen’s status as an employee or independent contractor.

Therefore, Arbitrator Janofsky “did what the parties requested:

[She] provided an interpretation of the contract resolving that

disputed issue.” Oxford Health Plans, 569 U.S. at 573.

That Arbitrator Janofsky’s “interpretation went against

[Dr. Andresen], maybe mistakenly so[,]” does not entitle her “to

rerun the matter in [this C]ourt.” Id. In other words, even if

Arbitrator Janofsky was wrong about aspects of the interplay

between the Sub Contractor Agreement and the DHA Contract,

“criticize[d] improperly [Dr. Andresen’s] reliance on” certain

caselaw, or “followed [IntePros’] arguments while disregarding

[Dr. Andresen’s] arguments” on the issues of joint employment

and supervision, see Pl.’s Mot. to Vacate, ECF No. 45 at 14-18;

Dr. Andresen’s efforts to re-raise these same claims are merely

“challenges to the merits of the Award [ ] masked as challenges

to the arbitrator’s authority,” Def.’s Opp’n to Pl.’s Mot. to

Vacate & Cross-Mot. to Confirm, ECF No. 55 at 24; that the Court

112 will address no further, see Davis, 667 F.2d at 165 (explaining

that courts “ill serve” arbitration’s aims “by engaging in any

more rigorous review than is necessary to ensure compliance with

[the FAA’s] statutory standards”); Misco, 484 U.S. at 38

(prohibiting courts from “hear[ing] claims of factual or legal

error by an arbitrator as an appellate court does in reviewing

decisions of lower courts”).

Because Dr. Andresen has not shown that Arbitrator Janofsky

“strayed from [her] delegated task of interpreting” the Sub

Contractor Agreement in determining the appropriate award in

this matter, Arbitrator Janofsky’s construction, “which was

bargained for[,] . . . holds, however good, bad, or ugly.”

Oxford Health Plans, 569 U.S. at 572-73 (citation and internal

quotation marks omitted); see also Mesa Power, 255 F. Supp. 3d

at 186 (explaining that even if an arbitrator might have been

wrong, “[t]he potential for those mistakes is the price of

agreeing to arbitration” (citation and internal quotation marks

omitted)). Therefore, there is no basis for the Court to vacate

the arbitration award pursuant to section 10(a)(4) of the FAA.

2. The Arbitrator Is Not Guilty of Misconduct or Misbehavior Pursuant to 9 U.S.C. § 10(a)(3) of the Federal Arbitration Act

Dr. Andresen’s second argument for vacatur of the

arbitration award is pursuant to 9 U.S.C. § 10(a)(3) of the FAA,

see Pl.’s Mot. to Vacate, ECF No. 45 at 19-31; which permits

113 vacatur “where the arbitrators were guilty of misconduct . . .

in refusing to hear evidence pertinent and material to the

controversy; or of any other misbehavior by which the rights of

any party have been prejudiced[,]” 9 U.S.C. § 10(a)(3).

“The scope of review under § 10(a)(3) is [ ] narrow[,]” and

“is focused on whether the [arbitrator] refused to hear material

evidence, or otherwise employed an improper procedure.” Mesa

Power, 255 F. Supp. 3d at 184. It is “generally not enough . . .

to complain that the arbitrator made procedural missteps[.]”

White v. Four Seasons Hotel & Resorts, 244 F. Supp. 3d 1, 5

(D.D.C. 2017). “This is because, ‘in making evidentiary

determinations,’ arbitrators ‘need not follow all the niceties

observed by the federal courts.’” Id. at 4 (quoting Lessin v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 481 F.3d 813, 816

(D.C. Cir. 2007)). Rather, “[t]he arbitrator need only grant the

parties a fundamentally fair hearing[,]” Lessin, 481 F.3d at 816

(citation and internal quotation marks omitted); which “requires

only notice, opportunity to be heard and to present relevant and

material evidence and argument before the decision makers, and

that the decision makers are not infected with bias[,]” White,

244 F. Supp. 3d at 5 (citation and internal quotation marks

omitted). “[D]istrict courts are [thus] not empowered to second-

guess [an arbitrator’s] decisions—procedural or substantive—even

if there is evidence that the arbitrator erred[,]” ARMA, S.R.O.

114 v. BAE Sys. Overseas, Inc., 961 F. Supp. 2d 245, 264 (D.D.C.

2013); and may vacate an award only if the arbitrator’s “refusal

to hear pertinent and material evidence prejudice[d] the rights

of the parties to the arbitration proceedings[,]” Lessin, 481

F.3d at 818 (citation and internal quotation marks omitted).

“With this narrow scope of review in mind, the Court turns

to the issues at hand.” Mesa Power, 255 F. Supp. 3d at 184. Dr.

Andresen argues that Arbitrator Janofsky “committed two

instances of misbehavior by which [her] rights were prejudiced

under § 10(a)(3)[.]” Pl.’s Mot. to Vacate, ECF No. 45 at 19.

First, she argues that Arbitrator Janofsky arbitrarily and

capriciously abused her discretion in refusing to permit Dr.

Andresen to correct “a drafting error” in the Statement of

Claims related to her alleged FCA retaliation claim. Id. at 19,

22-23. Second, Dr. Andresen contends that Arbitrator Janofsky

“wall[ed] herself off from hearing evidence ‘pertinent and

material to the controversy.’” Id. at 19-20 (citation omitted).

The Court assesses each argument in turn below to determine

whether Dr. Andresen’s complained-of arbitrator conduct deprived

her of a fundamentally fair hearing. Lessin, 481 F.3d at 819.

115 a. Arbitrator Janofsky Did Not Engage in Misconduct or Misbehavior When She Denied Dr. Andresen’s Attempt to Amend the Statement of Claims to Add an FCA Retaliation Claim Under the Guise of a “Drafting Error”

Dr. Andresen first argues that Arbitrator Janofsky’s

refusal to permit her to “correct a drafting error” in her

Statement of Claims involving her alleged FCA retaliation claim

“constitute[d] an arbitrary and capricious abuse of discretion,”

and therefore “an instance of misbehavior under § 10(a)(3) of

the FAA.” Pl.’s Mot. to Vacate, ECF No. 45 at 21. She explains,

as she did in her cross-motion to litigate, that during

arbitration, she “believed she was merely correcting a drafting

error, not amending her Statement of Claims to add a ‘new or

different claim[,]’” and that “even if the arbitrator disagreed

and . . . construe[d] the change more formally as an amendment,”

Arbitrator Janofsky should have “freely given” Dr. Andresen

leave to amend her statement pursuant to Federal Rule of Civil

Procedure 15(a)’s “liberal relation back standard” for amending

a pleading. Id. at 22 (citing Fed. R. Civ. P. 15(a)(2)). Dr.

Andresen contends that Arbitrator Janofsky’s refusal to apply

this “lenient” and “well-known” standard was “arbitrary and

capricious” conduct that “disregard[ed] [ ] procedural norms”

and therefore rises to “misbehavior” capable of vacating the

arbitration award under the FAA. Id. at 20, 22-23.

116 i. The Administrative Procedure Act’s “Arbitrary and Capricious” Standard for Review of Agency Action Cannot Be Used to “Illuminate” the FAA’s Statutory Bases for Vacatur of an Arbitration Award

IntePros first takes issue with “Dr. Andresen’s repeated

attempts to equate the FAA’s limited grounds for vacatur with

[the Administrative Procedure Act’s (‘APA’)] ‘arbitrary and

capricious standard’” for review of agency action, despite her

admitting that this standard “does not constitute an independent

ground for vacatur[.]” Def.’s Opp’n to Pl.’s Mot. to Vacate &

Cross-Mot. to Confirm, ECF No. 55 at 14. Although Dr. Andresen

replies that she is “draw[ing] on the arbitrary and capricious

standard to illuminate—not replace—the bases [for vacatur]

outlined in the FAA[,]” Pl.’s Reply to Def.’s Opp’n to Mot. to

Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at

11; specifically by explaining how “misbehavior” can result from

the prejudicial impact of an arbitrator’s arbitrary and

capricious decision-making, Pl.’s Mot. to Vacate, ECF No. 45 at

21 n.20; the Court agrees with IntePros that Dr. Andresen’s

argument “miscites and misapplies many authorities[,]” and that

the APA’s arbitrary and capricious standard has no rightful

place in analyzing vacatur pursuant to 9 U.S.C. § 10(a)(3) of

the FAA, see Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot.

to Confirm, ECF No. 55 at 14-15.

117 For example, Dr. Andresen claims that the district court in

Foulger-Pratt Residential Contracting, LLC v. Madrigal

Condominiums, LLC, 779 F. Supp. 2d 100 (D.D.C. 2011) “upheld the

arbitrary and capricious standard when it is fixed to a

‘plausible statutory basis.’” Pl.’s Mot. to Vacate, ECF No. 45

at 21 n.20. However, the Foulger-Pratt court did the opposite,

instead concluding that the respondent “ha[d] failed to raise

any [ ] plausible statutory basis for applying the arbitrary and

capricious standard,” and that “vacatur [could not] be granted

based on this erroneous standard of review.” 779 F. Supp. 2d at

124. Although Foulger-Pratt analyzed vacatur of an arbitration

award pursuant to the grounds enumerated in the D.C. Revised

Uniform Arbitration Act (“DCRAA”), as opposed to those in the

FAA, that court noted that under the DCRAA, similar to the FAA,

“an arbitration award can only be set aside or vacated on

clearly specified statutory grounds[,]” and that judicial review

of an award is thus “extremely limited.” Id. at 123. As such,

contrary to Dr. Andresen’s claims, nothing in Foulger-Pratt

suggests that she can be “successful” in “attach[ing] the

[APA’s] arbitrary and capricious standard to” any statutory

basis under the FAA, including but not limited to section

10(a)(3). Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n

to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 12.

118 Dr. Andresen also incorrectly argues that the arbitrary and

capricious standard “was recognized as a basis for vacatur” in

Union Pacific Railroad Co. v. Surface Transportation Board, 358

F.3d 31 (D.C. Cir. 2004). Pl.’s Mot. to Vacate, ECF No. 45 at 21

n.20. In response to IntePros’ arguments to the contrary, see

Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm,

ECF No. 55 at 15 n.5; Dr. Andresen admits that she “misread[]”

this case, and that in it, the D.C. Circuit analyzed whether an

agency—the Surface Transportation Board, properly governed by

the APA—“not a private arbitration panel, behaved arbitrarily

and capriciously[,]” Pl.’s Reply to Def.’s Opp’n to Mot. to

Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 11

n.11; see also Pl.’s Mot. to Vacate, ECF No. 45 at 21 n.19

(admitting that while the APA provides for judicial review of

agency decisions, “the AAA is not an ‘agency’”). She also

acknowledges in her reply brief that Union Pacific Railroad Co.

“does not link the [APA’s] arbitrary and capricious standard to

one of the bases for vacatur in the FAA[.]” Pl.’s Reply to

Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to

Confirm, ECF No. 63 at 12. As such, the Court is unpersuaded

that this case provides any support for using the arbitrary and

capricious standard for review of agency action under the APA to

“illuminate” the FAA’s statutory basis for vacatur of an

arbitrator’s award under 9 U.S.C. § 10(a)(3). Id. at 11, 13.

119 Furthermore, one circuit court of appeals to consider the

issue has concluded that “arbitrariness and capriciousness” must

also be rejected “as an independent nonstatutory ground for

vacatur under the FAA” because the “established rules of

deference foreclose all but the most limited [judicial] review.”

See Brabham v. A.G. Edwards & Sons Inc., 376 F.3d 377, 385-86

(5th Cir. 2004) (concluding that “[b]ecause [courts] must remain

exceedingly deferential to arbitration, . . . the district court

erred in vacating the award as arbitrary and capricious”).

Accordingly, the Court rejects Dr. Andresen’s arguments for

using the APA’s arbitrary and capricious standard “to fill out”

what “misbehavior” pursuant to 9 U.S.C. § 10(a)(3) “mean[s] in

practice[,]” Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate &

Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 13; and

assesses only whether Arbitrator Janofsky “employed an improper

procedure” that denied Dr. Andresen “a fundamentally fair

hearing” on the issue of the FCA retaliation claim she sought to

include in a “corrected” version of her Statement of Claims,

Mesa Power, 255 F. Supp. 3d at 184; Lessin, 481 F.3d at 816. 26

26Dr. Andresen also argues that by rejecting her “drafting error” explanation and denying her permission to amend the Statement of Claims to include an FCA retaliation claim, Arbitrator Janofsky not only acted arbitrarily and capriciously, but also “displayed manifest disregard for procedural norms[,]” specifically the norm of Federal Rule of Civil Procedure 15(a) “granting a liberal ability to amend.” Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, 120 ii. Dr. Andresen Has Not Shown That Arbitrator Janofsky Denied Her a “Fundamentally Fair Hearing” as to Her Alleged FCA Retaliation Claim

Because arbitrators must “grant the parties a fundamentally

fair hearing[,]” Lessin, 481 F.3d at 816 (citation and internal

quotation marks omitted); courts will not enforce an arbitration

award if given “a compelling reason to suspect that the award

resulted from an unfair process[,]” Republic of Argentina, 894

F.3d at 332. However, the FAA “requires enforcement even when

arbitration proceedings do not provide the full process

protections that courts provide because the ‘primary purpose’ of

the Act is not to turn arbitration panels into private federal

courts but to ‘ensure that private agreements to arbitrate are

ECF No. 63 at 13 n.12; Pl.’s Mot. to Vacate, ECF No. 45 at 22 n.21. In so arguing, Dr. Andresen invokes the “manifest disregard of the law” theory for vacating an arbitration award, which was rendered “an uncertain proposition” after the Supreme Court’s decision in Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. 576, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008). See Coyne v. Hewlett-Packard Co., 308 F. Supp. 3d 207, 210 (D.D.C. 2018) (citing Hall St., 552 U.S. at 586; and summarizing subsequent Supreme Court caselaw indicating “that manifest disregard may not have survived its Hall Street decision”). Although Dr. Andresen claims that she is not arguing “that the arbitrator’s actions meet the standard of ‘manifest disregard for the law[,]’” she contends that this standard “can be repurposed to articulate the idea of manifest disregard for procedural norms[,]” which she claims, like arbitrary and capricious conduct, is “one species of misbehavior under § 10(a)(3) of the FAA.” Pl.’s Mot. to Vacate, ECF No. 45 at 22 n.21. However, Dr. Andresen does not cite any authorities to support her argument, and thus, the Court rejects her attempt to link “misbehavior” under section 10(a)(3) to her self-created “idea of manifest disregard for procedural norms.” Id. 121 enforced according to their terms.’” Id. (quoting Stolt-Nielsen,

559 U.S. at 682). The burden to prove the existence of unfair

process during arbitration “falls on the challenger’s shoulders,

and it is ‘onerous.’” Id. at 333 (quoting Al-Harbi v. Citibank,

N.A., 85 F.3d 680, 683 (D.C. Cir. 1996), cert. denied, 519 U.S.

981, 117 S. Ct. 432, 136 L. Ed. 2d 331 (1996)). This is because

“[i]f it were easy to call into question the fairness of an

arbitration, losing parties would have every reason to challenge

the process in court[,]” id.; which would contradict

“arbitration’s essential virtue of resolving disputes

straightaway” and would “open[] the door to the full-bore legal

and evidentiary appeals that can rende[r] informal arbitration

merely a prelude to a more cumbersome and time-consuming

judicial review process,” Hall St., 552 U.S. at 588 (citation

and internal quotation marks omitted).

Here, Dr. Andresen argues that Arbitrator Janofsky engaged

in procedural “misbehavior” by: (1) refusing to allow her to

correct a “drafting error” involving an alleged FCA retaliation

claim in her “corrected” Statement of Claims; and (2) denying

her permission, in the alternative, to formally amend her

Statement of Claims to include this claim. Pl.’s Mot. to Vacate,

ECF No. 45 at 21. Contrary to these arguments, however, the

record shows that Arbitrator Janofsky “granted Dr. Andresen a

‘fundamentally fair’ opportunity to present reasons why an FCA

122 retaliation claim should be included” as an “eleventh-hour

request” at such a late stage in the arbitration process—i.e.,

after IntePros had filed its Phase One dispositive motion and

long after the deadline had passed for Dr. Andresen to submit

her Statement of Claims. See Def.’s Opp’n to Pl.’s Mot. to

Vacate & Cross-Mot. to Confirm, ECF No. 55 at 25-26.

First, Dr. Andresen was permitted to present written

arguments and “pertinent and material” evidence regarding her

position that Arbitrator Janofsky should accept an FCA

retaliation claim via the September 7, 2018 “corrected”

Statement of Claims that Dr. Andresen emailed to the AAA case

manager—nearly seven months after the scheduling order deadline.

In her combined Phase One dispositive cross-motion and

opposition to IntePros’ Phase One dispositive motion (a briefing

accompanied by approximately 300 hundred pages of evidentiary

submissions), see Ex. 6 to Pl.’s Mot. to Vacate, ECF No. 45-7 at

1-325; Dr. Andresen argued that her original Statement of Claims

“invoked” an FCA retaliation claim, but that if Arbitrator

Janofsky viewed this claim as “new or different,” she requested,

for the first time, arbitrator consent to assert this claim as

an amendment because she argued that it “involve[d] neither

surprise nor prejudice to IntePros[,]” id. at 35-36. Dr.

Andresen proffered similar arguments in her reply in support of

her Phase One dispositive cross-motion, and also argued, as she

123 does now, that Federal Rule of Civil Procedure 15(a)’s “liberal

standard” should govern Arbitrator Janofsky’s decision regarding

her proposed amendments to the Statement of Claims. See Ex. 8 to

Pl.’s Mot. to Vacate, ECF No. 45-9 at 28-31.

Second, rather than refuse to receive Dr. Andresen’s briefs

and evidence, Arbitrator Janofsky considered them, alongside

IntePros’ submissions, see Ex. 5 to Pl.’s Mot. to Vacate, ECF

No. 45-6 (IntePros’ Phase One dispositive motion); Ex. 7 to

Pl.’s Mot. to Vacate, ECF No. 45-8 (IntePros’ reply to Dr.

Andresen’s cross-motion and her opposition to its Phase One

dispositive motion); and she also heard the oral arguments

presented by both parties on this issue at the May 29, 2019

telephonic hearing, Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF

No. 35-2 at 3. During this hearing, the parties mutually agreed

that Arbitrator Janofsky could “decide the issues raised in the

pending motions based solely on the written submissions and the

evidentiary hearing.” Id. As such, following this hearing,

Arbitrator Janofsky properly entered an award in favor of

IntePros, in which she discussed and rejected several of Dr.

Andresen’s arguments for why an FCA retaliation claim should be

included at that stage in the arbitration, including that Dr.

Andresen “did not file her FCA retaliatory discharge claim

within the scheduling order deadlines[;]” did not “mention or

124 reference” the FCA “whatsoever” in her original Statement of

Claims; “never sought arbitrator consent, either to alter the

scheduling order, or to add the FCA claim” (until the Phase One

dispositive motion phase); and “disingenuous[ly]” characterized

her amendment “as just a minor correction of a technical error”

when such an “extensive” amendment “at th[at] point would [have]

prejudice[d]” IntePros. Id. at 10-11. Ultimately, Arbitrator

Janofsky concluded, based on the evidence, that Dr. Andresen was

at fault for not following the AAA rules governing how to amend

her Statement of Claims to properly plead an FCA retaliation

claim in arbitration, and she dismissed that claim. See id.

As such, the Court concludes that Dr. Andresen has not met

her “onerous” burden under 9 U.S.C. § 10(a)(3) to show unfair

process in the way Arbitrator Janofsky considered and addressed

her FCA retaliation claim arguments. Al-Harbi, 85 F.3d at 683.

As explained above, Arbitrator Janofsky provided several reasons

for denying Dr. Andresen’s “untimely, unilateral attempt to

amend” her Statement of Claims to include this claim, all of

which were supported by the record. Award, Ex. 2 to Def.’s Mot.

to Dismiss, ECF No. 35-2 at 11. Notably, Dr. Andresen did not

formally ask for arbitrator consent to amend her Statement of

Claims until her April 5, 2019 Phase One dispositive cross

motion and opposition to IntePros’ Phase One dispositive motion,

see Ex. 6 to Pl.’s Mot. to Vacate, ECF No. 45-7 at 35-36; even

125 though she was put on notice nearly seven months earlier of AAA

Commercial Rule R-6(b)’s requirement to seek arbitrator consent

to amend by IntePros’ objection to her September 7, 2018 email

to Ms. Beyer, in which IntePros explained why Dr. Andresen’s

emailed “corrected” statement was “not appropriate[,]” Ex. 8 to

Def.’s Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate,

ECF No. 43-8 at 2. It was therefore unreasonable for Dr.

Andresen to “rel[y] upon Ms. Beyer’s representation that the AAA

had received the change as a ‘correction’ and not an amendment”

or to “assume[] that the matter was concluded.” Pl.’s Reply to

Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to

Confirm, ECF No. 63 at 15.

In addition, Dr. Andresen claims that she discovered the

“drafting error” in her Statement of Claims on May 29, 2018,

made her attorneys aware of it that same day, and following

their inaction, discharged them. Id. at 14-15. Thus, by her own

admission, ten months passed following her discovery of the

“error” before Dr. Andresen, as a then-pro se litigant, sought

arbitrator consent to amend. It is no excuse that her attorneys

misunderstood the law or the AAA Commercial Rules, or that they

“did not plead [her] FCA retaliation claim artfully,” id. at 15

n.14; as such issues only show that the delay in moving to amend

her Statement of Claims was “not due to events outside of [her]

control” and that Arbitrator Janofsky had a “reasonable basis

126 for [her] decision[,]” see Lykins v. Citicorp Credit Servs.,

Inc., No. 1:13-mc-11, 2013 WL 1987275, at *1-2 (S.D. Ohio May

13, 2013) (refusing to vacate an award pursuant to 9 U.S.C. §

10(a)(3) because it was reasonable for the arbitrator to

conclude that the plaintiff’s request to amend his arbitration

complaint to add a retaliation claim was “too late” when he

“waited at least six months after becoming aware of evidence”

supporting that claim to move to amend, and he admitted that the

delay “was caused by his own attorneys’ misunderstanding of the

arbitration rules”). 27 As IntePros notes, “Dr. Andresen cannot

appeal for clemency on the basis of the alleged failures of her

attorneys, her freely-selected agents acting within the scope of

their representation.” Def.’s Opp’n to Pl.’s Mot. to Vacate &

Cross-Mot. to Confirm, ECF No. 55 at 30 (citing Irwin v. Dep’t

of Veteran Affs., 498 U.S. 89, 92, 111 S. Ct. 453, 112 L. Ed. 2d

435 (1990) (explaining that litigants are “bound by the acts of”

their lawyers and are “considered to have notice of all facts,

notice of which can be charged upon the[ir] attorney[s]”

(citation and internal quotation marks omitted))).

27Dr. Andresen tries to distinguish the findings in this case, see Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 17; but the Court is unpersuaded, as it views the facts from Lykins v. Citicorp Credit Servs., Inc., No. 1:13-mc-11, 2013 WL 1987275 (S.D. Ohio May 13, 2013) as directly analogous to Dr. Andresen’s untimely request to amend her Statement of Claims in arbitration. 127 Rather than “credibly claim” that she was “denied a

‘fundamentally fair’ . . . opportunity to present argument and

evidence about adding an FCA retaliation claim[,]” IntePros

argues, and the Court agrees, that “a close reading” of Dr.

Andresen’s arguments merely indicates her attempt to repeat

claims she raised during arbitration, see Def.’s Opp’n to Pl.’s

Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 17 n.6, 28

(arguing that Dr. Andresen’s vacatur petition “simply rehashe[s]

arguments and points already made and disputed in the parties’

[arbitration] briefings”); and to get the Court to “reconsider

the merits” of Arbitrator Janofsky’s decisions, which the Court

is not permitted to do, see Misco, 484 U.S. at 36.

For example, Dr. Andresen argued in arbitration that

Arbitrator Janofsky should have freely given her leave to amend

her Statement of Claims pursuant to Federal Rule of Civil

Procedure 15(a)’s “liberal” relation back standard because she

alleged that her FCA retaliation claim arose “out of exactly the

same conduct, transaction[,] or occurrence as [her] NDAA claim.”

See Ex. 8 to Pl.’s Mot. to Vacate, ECF No. 45-9 at 29-30 (Dr.

Andresen’s arbitration Phase One reply memorandum). Despite

losing this argument, Dr. Andresen now reasserts it, admittedly

exactly as she “stated in her [arbitration] papers and testified

to during the [May 29, 2019] telephonic hearing,” but this time

under the guise of “misbehavior” by claiming that Arbitrator

128 Janofsky improperly disregarded Rule 15’s “procedural norms.”

Pl.’s Mot. to Vacate, ECF No. 45 at 22-23. The Court declines to

reassess the merits of this regurgitated argument. And, in any

event it must fail because, as Dr. Andresen admits, the Federal

Rules of Civil Procedure do not govern arbitrations conducted

pursuant to the AAA Commercial Rules, id. at 22 n.21; nor are

arbitrators required to follow the same procedural “niceties

observed by the federal courts[,]” Lessin, 481 F.3d at 816

(citation and internal quotation marks omitted). If anyone

disregarded “procedural norms,” it was Dr. Andresen, who failed

to observe AAA Rule R-6(b)’s requirements for adding new claims.

Similarly, Dr. Andresen contests Arbitrator Janofsky’s

conclusion that adding an FCA retaliation claim at that point in

the arbitration would have prejudiced IntePros, Award, Ex. 2 to

Def.’s Mot. to Dismiss, ECF No. 35-2 at 11; by reasserting the

exact arguments she lost in arbitration, compare Ex. 6 to Pl.’s

Mot. to Vacate, ECF No. 45-7 at 36 (arguing in arbitration that

the inclusion of an FCA retaliation claim would not prejudice

IntePros because there was “no additional discovery that

IntePros could have taken, but was prevented from taking, by

virtue of any belated assertion of this claim, particularly in

Phase One” because Phase One was “limited to ‘threshold’ issues

relating to exhaustion and employee status[,]” which are not

required to assert an FCA retaliation claim), and Ex. 8 to Pl.’s

129 Mot. to Vacate, ECF No. 45-9 at 31 (same), with Pl.’s Mot. to

Vacate, ECF No. 45 at 23-24 (arguing now that Arbitrator

Janofsky’s conclusions regarding prejudice were “unfair” because

“Phase One of [ ] arbitration was limited to questions of [Dr.

Andresen’s] employment status and exhaustion of administrative

remedies[,]” which are not “requirements” of an FCA claim, and

because there was no “additional discovery specific to the FCA

claim that [IntePros] was prevented from taking for purposes of

the threshold Phase One motion”), and Pl.’s Reply to Def.’s

Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm,

ECF No. 63 at 15-16 (same).

Dr. Andresen’s “continued dispute about the legal validity

of [these] point[s] shows that [her] disagreement is over

whether the law was correctly applied, not over whether”

Arbitrator Janofsky “engaged in ‘misbehavior by which the

rights’ of [Dr. Andresen] ‘were prejudiced’ under § 10(a)(3).”

Mesa Power, 255 F. Supp. 3d at 188. In other words, Arbitrator

Janofsky “simply reached a legal conclusion [on prejudice] that

[Dr. Andresen] does not agree with[,]” id. at 189; which is not

grounds for the Court to interfere with the arbitration award,

even if Arbitrator Janofsky did err in some respects in her

prejudice analysis, see id. at 183 (prohibiting courts from

setting aside an arbitration award “for error, either in law or

fact[,]” so long as the award represents “the honest decision of

130 the arbitrator[], after a full and fair hearing of the parties”

(citations and internal quotation marks omitted)); Misco, 484

U.S. at 38 (disallowing courts from “hear[ing] claims of factual

or legal error by an arbitrator”).

Accordingly, because Dr. Andresen has failed to meet her

burden to show that the arbitration proceedings “deviated

significantly from the [FAA’s] standards of fair adjudication”

in regard to Arbitrator Janofsky’s consideration of her

“drafting error”/Rule 15 amendment arguments for belatedly

including an FCA retaliation claim in her Statement of Claims,

Republic of Argentina, 894 F.3d at 332; the Court need not

address whether Arbitrator Janofsky was correct in rejecting

these arguments and “disallow[ing]” this claim, Award, Ex. 2 to

Def.’s Mot. to Dismiss, ECF No. 35-2 at 11. 28 As IntePros states,

28Were the Court to consider “the ‘rightness’ of the arbitrator’s decision,” Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 28; which it is not required by the FAA to do in a vacatur petition, the Court notes that it would likely endorse Arbitrator Janofsky’s denial of Dr. Andresen’s FCA retaliation claim and her conclusion that Dr. Andresen’s characterization of these amendments to the Statement of Claims as a simple drafting error was “disingenuous,” Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at 10; as the Court has similarly rejected Dr. Andresen’s attempt to use the “drafting error” narrative to include an FCA retaliation claim in the Amended Complaint or in the proposed SAC as false and misleading, see supra sections IV.A.1, IV.B.3. This reinforces the Court’s conclusion that it has no occasion to consider Dr. Andresen’s “newly articulated theory of FCA retaliation,” see Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 30-31 n.8; including the question of whether the Phase One arbitration issues of employment status and exhaustion 131 Arbitrator Janofsky “provided Dr. Andresen with a full and fair

opportunity to prosecute her FCA retaliation claim, which was

all that was required” according to 9 U.S.C. § 10(a)(3). Def.’s

Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No.

55 at 31.

b. Arbitrator Janofsky Did Not Engage in Misconduct or Misbehavior by Improperly “Walling” Herself Off from Pertinent and Material Evidence

Dr. Andresen’s second argument for vacatur under 9 U.S.C. §

10(a)(3) is that Arbitrator Janofsky “improperly walled herself

off from hearing pertinent and material evidence” contained in

the DOD IG’s “Report on Investigation” that Dr. Andresen

submitted as an exhibit in arbitration. Pl.’s Mot. to Vacate,

ECF No. 45 at 25-26; see DoD IG Report of Investigation: Mr.

David M. Bowen, ECF No. 46 (unredacted and under seal); Ex. I to

Pl.’s Opp’n to Mot. to Dismiss & Cross-Mot. to Litigate, ECF No.

37-11 (redacted version of this exhibit). This report contains

the findings of a DoD IG investigation related to Dr. Andresen’s

alleged “protected disclosures” that she made to the DoD IG

about “improper collusion in contract procurement between

[IntePros’] prior Vice President of Business Development . . .

of remedies apply to such a claim, contrary to Dr. Andresen’s claims, see Pl.’s Mot. to Vacate, ECF No. 45 at 23-24. 132 and the prior Chief Information Officer” at DHA, David M. Bowen.

Pl.’s Mot. to Vacate, ECF No. 45 at 9-10.

Dr. Andresen argues that parts of the award’s analysis on

her employment status as an independent contractor were directly

contradicted by the DoD IG’s report, as well as by a letter she

submitted as another exhibit in arbitration from the DoD IG

Whistleblower Reprisal Investigations (“WRI”) Directorate

indicating that “that office considered her to be an employee of

[IntePros] for purposes of maintaining her NDAA claim.” See id.

at 26-29; Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2

at 9. As such, Dr. Andresen contends that Arbitrator Janofsky

“inappropriately discount[ed]” her evidence, thereby exhibiting

bias in favor of IntePros, “misbehavior” under 9 U.S.C. §

10(a)(3), and “evident partiality” under 9 U.S.C. § 10(a)(2).

See Pl.’s Mot. to Vacate, ECF No. 45 at 26-28. IntePros responds

by arguing that Dr. Andresen’s claims are nothing “more than

challenges to the arbitrator’s considered conclusions[,]” as she

“fails to identify one instance when she tried to submit

evidence and argument and was thwarted in doing so.” Def.’s

Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No.

55 at 31-32.

The Court agrees with IntePros, as a close look at Dr.

Andresen’s claims reveals that she is not arguing that

133 Arbitrator Janofsky “refused to hear or consider any evidence or

argument” as required by FAA section 10(a)(3). Id. at 32.

First, Dr. Andresen takes issue with Arbitrator Janofsky’s

conclusion that “‘[a]lthough [IntePros] wrote the description of

the work [Dr. Andresen] was to perform for the [DoD], that fact

is not fatal to [her] status as a contractor, because in a

typical contract situation, a prime contractor would be expected

to describe the work that its subcontractors would perform in

the contract documents.’” Pl.’s Mot. to Vacate, ECF No. 45 at 26

(quoting Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at

5). She argues that this conclusion was improper because the DoD

IG’s report stated that IntePros violated applicable government

contracting regulations—the Federal Acquisition Regulations (the

“FAR”)—by being involved in writing the work statement for the

contract services and then competing for those services, thereby

causing it to “control[] the conditions of the position [Dr.

Andresen] held even more than [was] permitted.” Id. at 26, 26

n.27. However, this argument challenges the merits of this

portion of Arbitrator Janofsky’s reasoning on the employee

versus independent contractor issue based on content contained

in the DoD IG report. It does not allege, per the requirements

of 9 U.S.C. § 10(a)(3), that Arbitrator Janofsky “refus[ed] to

hear evidence pertinent and material to the controversy”

contained in the DoD IG report, and instead touches on a topic

134 that had little, if any, “bearing on the question of employee

status”—IntePros’ alleged violation of the FAR, Def.’s Opp’n to

Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 32.

Rather, the portion of the award to which Dr. Andresen

cites specifically indicates that Arbitrator Janofsky considered

evidence addressing the issue of IntePros writing Dr. Andresen’s

work description. Despite this fact, Dr. Andresen attempts to

bolster her argument by distinguishing between the terms

“misbehavior” and “misconduct” as stated in 9 U.S.C. § 10(a)(3),

and claiming that the statute prohibits both “misconduct”—“when

an arbitrator refuses to hear pertinent and material evidence”—

and “misbehavior”—when an arbitrator “wall[s] herself off from

hearing” such evidence. Pl.’s Mot. to Vacate, ECF No. 45 at 19

n.13, 27 n.29; see also Pl.’s Reply to Def.’s Opp’n to Mot. to

Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 14

n.13, 20-21 (arguing that Arbitrator Janofsky did not commit

“misconduct” but “misbehavior” because she engaged in “a walling

[herself] off from evidence, not a blatant refusal to hear it”).

The Court rejects Dr. Andresen’s unsupported distinction between

these terms, see Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate &

Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 14 n.13

(defining each term according to “Plaintiff’s view”); especially

since she has drawn her “wall” terminology from one inapposite

case which referred to an arbitrator’s improper use of a

135 “Chinese wall” in his attempt to ignore rather than investigate

a conflict of interest he had in regard to his participation in

that arbitration matter, see Pl.’s Mot. to Vacate, ECF No. 45 at

27 (citing Applied Indus. Materials Corp. v. Ovalar Makine

Ticaret Ve Sanayi, A.S., 492 F.3d 132, 134 (2d Cir. 2007)).

There are no such similar facts here.

Second, Dr. Andresen also fails to show that Arbitrator

Janofsky refused to consider the DoD IG WRI’s letter stating

that it considered Dr. Andresen an employee of IntePros for

purposes of her NDAA claim. Instead, the award clearly indicates

that Arbitrator Janofsky considered this letter but declined to

follow “its bare conclusion as to [Dr. Andresen’s] status”

because it failed “to recite any facts[;]” provide information,

if any, obtained from IntePros as to Dr. Andresen’s status; or

elaborate on what standard was applied to reach its overall

conclusion that Dr. Andresen was an “employee” of IntePros.

Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at 9.

Dr. Andresen tries to salvage her argument by claiming that

she told Arbitrator Janofsky during the telephonic hearing that

prior to the DoD IG WRI’s office issuing its letter, she had

supplied that office “with material in support of [her] argument

that she was [IntePros’] employee[,]” but that Arbitrator

Janofsky “showed no interest in asking [Dr. Andresen] to

describe this material in any way” or what it “consisted of,”

136 thereby “walling herself off” from it. Pl.’s Mot. to Vacate, ECF

No. 45 at 28-29. However, this claim lacks merit, first because

it does not address Arbitrator Janofsky’s concern in the award

that the DoD IG WRI’s letter failed to discuss what information

it obtained from IntePros—not Dr. Andresen—as to her employment

status, and second, because Dr. Andresen does not allege that

she asked to submit during arbitration the evidence she

previously provided to the DoD IG WRI and that Arbitrator

Janofsky denied her request. Instead, Dr. Andresen could have

submitted this evidence alongside the many other exhibits she

filed with her Phase One arbitration briefings, but she did not,

and she cannot now claim that Arbitrator Janofsky “refused” to

look at evidence that she never submitted in the first place.

Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s

Cross-Mot. to Confirm, ECF No. 63 at 21 n.20.

Furthermore, Dr. Andresen’s qualms with the arbitrator’s

“dismissive tone” and perceived “disinterest” are insufficient

evidence of “misbehavior” under section 10(a)(3) or “evident

partiality” under section 10(a)(2) (discussed further below).

Pl.’s Mot. to Vacate, EC No. 45 at 28-29. Instead, the record

indicates that in concluding that Dr. Andresen was an

independent contractor and not IntePros’ employee for purposes

of negating her NDAA claim, Arbitrator Janofsky considered all

the evidence presented written and orally by both parties, see,

137 e.g., id. at 28 n.31 (summarizing some of this evidence that Dr.

Andresen produced as exhibits in arbitration); including the

“preclusive effect” of the DoD IG’s report and letter, Dr.

Andresen’s complaint to the DoD IG, and documentation from the

Equal Employment Opportunity Commission determining that Dr.

Andresen was not IntePros’ employee but rather an independent

contractor, Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2

at 9; evidence which Dr. Andresen conveniently disregards in her

vacatur petition.

This conclusion is not, contrary to Dr. Andresen’s claims,

negated by Arbitrator Janofsky’s request during the telephonic

hearing that IntePros email her a copy of the text of the 2013

version of the NDAA—to which it cited in its Phase One brief to

argue that Dr. Andresen’s contractual engagement was covered by

that version of the statute—which did not yet offer NDAA

protections to independent contractors. See Pl.’s Mot. to

Vacate, ECF No. 45 at 29-30 (arguing that Arbitrator Janofsky

sought out evidence from IntePros on the question of her

“employment status vis-à-vis” IntePros but “walled herself off

from learning evidence beneficial to [Dr. Andresen’s]

argument”); Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate &

Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 22 (arguing

that Arbitrator Janofsky was “eager” to receive a copy of the

prior version of 10 U.S.C. § 2409 but was disinterested in the

138 evidence that Dr. Andresen submitted to the DoD IG WRI on the

topic of her employment status). Arbitrator Janofsky’s request

does not indicate “misbehavior” or “evident partiality” but

rather her due diligence in verifying the parties’ arguments and

providing them with a reasoned and legally correct arbitration

award. See Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to

Confirm, ECF No. 55 at 34 n.11.

Finally, Dr. Andresen argues that Arbitrator Janofsky

“misbehaved by urgently requesting that the [p]arties send her

emails expressly giving her permission to make her decision

without an evidentiary hearing[,] . . . although she was aware

[that] she did not have pertinent evidence upon which the DoD IG

WRI . . . relied to determine that [Dr. Andresen] was

[IntePros’] employee[.]” Pl.’s Mot. to Vacate, ECF No. 45 at 30-

31. In conjunction with the above reasons rejecting Dr.

Andresen’s arbitrator “misbehavior” claims as to her DoD IG WRI

evidence, the Court also rejects this argument because the

record indicates, and Dr. Andresen “does not, and cannot, deny,”

Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm,

ECF No. 55 at 34; that both she and IntePros’ counsel agreed at

the beginning of the telephonic hearing that Arbitrator Janofsky

could “decide the issues raised in the pending motions based

solely on the written submissions and the telephonic hearing,

139 without the necessity of holding an evidentiary hearing[,]”

Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at 3.

As IntePros argues, and the Court agrees, Dr. Andresen

instead takes issue with Arbitrator Janofsky’s “ensuing requests

for the parties to promptly memorialize their consent in an

email to the AAA, claiming that she felt pressured to do so.”

Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm,

ECF No. 55 at 34. However, Dr. Andresen orally consented to a

decision of the Phase One issues on the written submissions and

telephonic oral arguments, Award, Ex. 2 to Def.’s Mot. to

Dismiss, ECF No. 35-2 at 3; and she then complied with

Arbitrator Janofsky’s request to memorialize her consent via

submission of a written email statement, see Ex. 3 to Def.’s

Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No.

55-3 at 3. Dr. Andresen thus had two opportunities to object to

an arbitration decision on the papers and telephonic hearing and

to waiving any further evidentiary hearings, and she cannot now

belatedly claim that she did not object for fear that doing so

“would bias the arbitrator against her.” Pl.’s Mot. to Vacate,

ECF No. 45 at 30. Furthermore, the Court agrees with IntePros

that it was not “unreasonable” for Arbitrator Janofsky to seek

the parties’ consent to decide the Phase One issues without

holding an evidentiary hearing given the parties’ lengthy Phase

One dispositive motion submissions (i.e., briefings and

140 exhibits) and the lack of requests from either side during the

telephonic hearing to either add more evidence or object to any

existing evidence in the record. Def.’s Opp’n to Pl.’s Mot. to

Vacate & Cross-Mot. to Confirm, ECF No. 55 at 35.

Ultimately, the Court concludes that the record before it,

including the arbitration award itself, indicates that during

arbitration, Dr. Andresen was provided with a full and fair

opportunity to advance her evidence and arguments against

IntePros, that she was never denied the opportunity to present

“pertinent and material” evidence to the controversy, and that

no arbitrator “misconduct” or “misbehavior” occurred during the

telephonic hearing that could have prejudiced her rights. 9

U.S.C. § 10(a)(3). Accordingly, there is no basis for the Court

to vacate the award pursuant to section 10(a)(3) of the FAA. 29

3. The Arbitrator Did Not Exhibit Evident Partiality Pursuant to 9 U.S.C. § 10(a)(2) of the Federal Arbitration Act

Dr. Andresen’s third argument for vacatur of the

arbitration award is pursuant to 9 U.S.C. § 10(a)(2) of the FAA,

29Dr. Andresen also argues that Arbitrator Janofsky “was inappropriately cavalier” during arbitration, “once comparing arbitration to ‘the Wild West.’” Pl.’s Mot. to Vacate, ECF No. 45 at 12 n.5; see Ex. 1 to Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63-2 at 1 (“Declaration of Dr. Jensine Andresen” attesting to Arbitrator Janofsky’s “the Wild West” remark). Even assuming the truth of this allegation, it does not rise to “misbehavior” sufficient to vacate the award pursuant to 9 U.S.C. § 10(a)(3). 141 see Pl.’s Mot. to Vacate, ECF No. 45 at 31-47; which permits

vacatur “where there was evident partiality or corruption in the

arbitrators, or either of them[,]” 9 U.S.C. § 10(a)(2). This

standard is designed to “impose[] duties on arbitrators with

significant interests in the parties,” and a district court’s

first step in considering whether “evident partiality” applies

to vacate an arbitration award is asking whether an arbitrator’s

interest is “significant,” as opposed to merely “trivial.”

Republic of Argentina, 894 F.3d at 334-35 (citing Commonwealth

Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145, 89 S. Ct. 337,

21 L. Ed. 2d 301 (1968)). “[A] challenger to an arbitrator’s

partiality has a steep slope to climb[,]” id. (citing Al-Harbi,

85 F.3d at 683); as “[i]t is well established that a mere

appearance of bias is insufficient to demonstrate evident

partiality[,]” Owen-Williams, 717 F. Supp. 2d at 19 (citation

and internal quotation marks omitted). Instead, “[a] challenger

can satisfy its heavy burden of proof only be presenting

‘specific facts that indicate improper motives on the part of an

arbitrator.’” Republic of Argentina, 894 F.3d at 335 (quoting

Al-Harbi, 85 F.3d at 683).

Dr. Andresen argues that Arbitrator Janofsky showed “bias”

rising to the level of evident partiality under 9 U.S.C. §

10(a)(2) for four main reasons, which amounted to ten total

errors in the arbitration award. See Pl.’s Mot. to Vacate, ECF

142 No. 45 at 31-32, 47. She argues that Arbitrator Janofsky: (1)

“display[ed] confirmation bias in favor of [IntePros] at least

twice, relating to two factors of the hybrid employment test—

control over hours, and opportunity for profit and loss;” (2)

“often adopt[ed] [IntePros’] own language and arguments while

ignoring [Dr. Andresen’s] arguments altogether;” (3) “cite[d] as

‘facts’ statements on which no evidence exists[;]” and (4)

interpreted the “actual facts” in a manner that was “biased” in

IntePros’ favor. Id.; see also Pl.’s Reply to Def.’s Opp’n to

Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No.

63 at 23 (arguing that Arbitrator Janofsky “made 10 major

errors” that were all in IntePros’ favor and did “not make a

single error in [Dr. Andresen’s] favor,” and that “[a] 10/10

track record in one party’s favor certainly indicates bias”) In

sum, Dr. Andresen argues that “a reasonable person can conclude

that [Arbitrator Janofsky] was biased, since a close textual

reading of [her] remarks suggests that [she] evaluated the

[parties’] pleadings with her mind already made up in favor of

[IntePros].” Pl.’s Mot. to Vacate, ECF No. 45 at 31.

In opposition, IntePros argues that “Dr. Andresen

fundamentally misconstrues and misrepresents” the standard under

section 10(a)(2), “has submitted no evidence of partiality[,]”

and attempts to disguise her disagreement with the merits of

Arbitrator Janofsky’s “reasonable legal and factual findings as

143 ‘evident partiality’ based on drummed-up grounds and perceived

slights.” Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to

Confirm, ECF No. 55 at 36-37. For the reasons discussed below,

the Court agrees with IntePros.

a. Dr. Andresen Misconstrues and Misrepresents the “Evident Partiality” Standard Under 9 U.S.C. § 10(a)(2)

Contrary to the “heavy burden of proof” required for

vacatur pursuant to 9 U.S.C. § 10(a)(2), Republic of Argentina,

894 F.3d at 335; Dr. Andresen contends that evident partiality

can simply be “inferred if an arbitration award had been

‘biased’ or ‘inappropriate[,]’” Pl.’s Mot. to Vacate, ECF No. 45

at 31. However, in the D.C. Circuit, it is established that “a

mere appearance of bias is insufficient to demonstrate evident

partiality.” Hammad v. Lewis, 638 F. Supp. 2d 70, 75 (D.D.C.

2009) (citation and internal quotation marks omitted) (emphasis

added); and instead, Dr. Andresen is required to provide

“specific facts” indicating improper motives on the part of

Arbitrator Janofsky, Al-Harbi, 85 F.3d at 683.

The one case Dr. Andresen cites to support her statement,

Regnery Publishing, Inc. v. Miniter, 601 F. Supp. 2d 192 (D.D.C.

2009), aff’d, 368 F. App’x 148 (D.C. Cir. 2010), says nothing

about inferring evident partiality from evidence of bias in an

arbitration award, and regardless, it analyzed vacatur pursuant

to sections 10(a)(1) and 10(a)(4) of the FAA, not 10(a)(2). See

144 id. at 194-95 (explaining that the claimant’s claim was not

about whether “the arbitrator was biased” and that the claimant

had failed to “meet the heavy burden of establishing that the

arbitration award was inappropriate because he ha[d] not . . .

demonstrated that ‘the award was procured by corruption, fraud,

or undue means’ or that ‘the arbitrator[] exceeded [his] powers,

or so imperfectly executed them that a mutual, final, and

definite award upon the subject matter submitted was not made’”

(citing 9 U.S.C. § 10(a)(1) & (4))). 30

Dr. Andresen takes her misinterpretation of section

10(a)(2)’s “evident partiality” standard a step further by using

a non-binding case from the Court of Appeals for the Second

Circuit (“Second Circuit”), Morelite Construction Corp. v. New

York City District Council Carpenters Benefit Funds, 748 F.2d

79, 84 (2d Cir. 1984), to argue that evident partiality exists

“‘where a reasonable person would have to conclude that an

arbitrator was partial to one party to the arbitration.’” Pl.’s

30Although the words “evident partiality or corruption” from the text of 9 U.S.C. § 10(a)(2) appear in Regnery, as Dr. Andresen notes, see Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 25-26 (citing Regnery, 601 F. Supp. 2d at 194-95); nothing in the actual analysis of that case addresses vacatur pursuant to section 10(a)(2). Regnery therefore does not, as Dr. Andresen contends, “establish[] a direct link between evident partiality and an award being ‘inappropriate’” or “biased” pursuant to 9 U.S.C. § 10(a)(2). Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 26. 145 Mot. to Vacate, ECF No. 45 at 31 (quoting Morelite, 748 F.2d at

84). Dr. Andresen argues that in her “view,” Morelite’s

“‘reasonable person’ standard does well to bring the ‘clear,

obvious, apparent’ sense of the word ‘evident’ to the fore” in

properly defining “what constitutes ‘evident partiality[,]’”

Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s

Cross-Mot. to Confirm, ECF No. 63 at 23-24; especially since it

is “‘often impossible[] to ‘prove’” actual bias, Pl.’s Mot. to

Vacate, ECF No. 45 at 31 (quoting Morelite, 748 F.2d at 84).

However, the Court is unpersuaded by Dr. Andresen’s use of

Morelite, not only because it assessed the existence of evident

partiality for “a father-son relationship between an arbitrator

and the [p]resident of an international labor union, a district

union of which [was] a party to the arbitration[,]” 748 F.2d at

84; facts which are extremely inapposite to the instant case,

but also because it is “an out-of-circuit opinion” that differs

from the law in this circuit, Def.’s Opp’n to Pl.’s Mot. to

Vacate & Cross-Mot. to Confirm, ECF No. 55 at 36 n.13.

For comparison, in both Morelite and a D.C. Circuit case,

Republic of Argentina v. AWG Group LTD., 894 F.3d 327 (D.C. Cir.

2018), the Second Circuit and the D.C. Circuit divergently

examined the Supreme Court’s plurality decision in Commonwealth

Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S.

Ct. 337, 21 L. Ed. 2d 301 (1968), which left courts “in the dark

146 as to whether an ‘appearance of bias’ will suffice to meet the

seemingly more stringent ‘evident partiality’ standard of 9

U.S.C. § 10.” Morelite, 748 F.2d at 83. The Second Circuit in

Morelite noted that much of the plurality opinion, written by

Justice Black, “must be read as dicta,” and “[a]gainst this

murky backdrop of Supreme Court precedent,” it turned to “prior

decisions in” the Second Circuit “to delineate” its “reasonable

person” standard for “‘evident partiality’ within the meaning of

9 U.S.C. § 10,” a result which strikes a balance between “the

mere ‘appearance of bias’ to vacate an arbitration award” and

“proof of actual bias.” Id. at 83-84. Meanwhile, the D.C.

Circuit in Republic of Argentina noted that “the Justices could

not agree on a single rationale” in Commonwealth Coatings, and

it reviewed the differing rules proffered by Justice Black in

the plurality opinion and Justice White in his concurrence. 894

F.3d at 334. The D.C. Circuit explained that while Justice

Black’s “rule would require arbitrators to disclose ‘any

dealings that might create an impression of possible bias[,]’”

Justice White’s rule would “relieve[] arbitrators from a duty to

disclose trivial interests” and would require disclosure only

when an arbitrator “‘has a substantial interest in a firm which

has done more than trivial business with a party [to the

arbitration].’” Id. (citing Commonwealth Coatings, 393 U.S. at

147-52). Ultimately, the D.C. Circuit decided to follow Justice

147 White’s rule for assessing evident partiality with a focus on

the significance of an arbitrator’s interest in the parties, as

opposed to Justice Black’s rule that focused on the possible

“appearance of bias.” See id. at 334-35.

Therefore, the standard for determining what constitutes

“evident partiality” in the D.C. Circuit is not the Second

Circuit’s “reasonable person” standard for assessing bias, as

Dr. Andresen contends, Pl.’s Reply to Def.’s Opp’n to Mot. to

Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at

23, 27; but rather whether arbitrators have “‘a substantial

interest’” in the arbitration proceedings such that their

participation would “‘indicate[] improper motives,’” Republic of

Argentina, 894 F.3d at 334-35 (citing Commonwealth Coatings, 393

U.S. at 150-52; Al-Harbi, 85 F.3d at 683). Accordingly, the

Court rejects Dr. Andresen’s “view” on the “reasonable person”

standard and “[w]hat [she] likes about the Morelite . . . case,”

as it is not the law in this circuit. Pl.’s Reply to Def.’s

Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm,

ECF No. 63 at 23-24.

b. Dr. Andresen Has Failed to Demonstrate That Arbitrator Janofsky Had Improper Interests in the Arbitration Proceedings or Acted with Improper Motives

Using the governing D.C. Circuit standard for assessing

evident partiality pursuant to 9 U.S.C. § 10(a)(2), the Court

148 next turns to the question of whether Dr. Andresen has met her

“heavy” burden in “establish[ing] specific facts that indicate”

Arbitrator Janofsky had any “significant,” and thereby improper,

interests in the arbitration proceedings, and acted with

“improper motives” based on such interests. Al-Harbi, 85 F.3d at

683; Republic of Argentina, 894 F.3d at 335. IntePros argues

that “Dr. Andresen has not presented any factual evidence that

the arbitrator deciding the Award had ‘a significant[] interest

in the parties’” or acted with “any improper motive.” Def.’s

Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No.

55 at 37 (quoting Republic of Argentina, 894 F.3d at 334).

Instead, IntePros contends that “[n]o interest at all is even

alleged here[,]” and that Dr. Andresen’s evident partiality

challenge under section 10(a)(2) must therefore fail. Id.

(emphasis in original).

The Court agrees with IntePros that Dr. Andresen’s petition

fails to set forth “specific facts” that meet the “high

standard” for vacatur pursuant to 9 U.S.C. § 10(a)(2). Republic

of Argentina, 894 F.3d at 335. Despite allocating more than

fifteen pages of her brief to advocating for vacatur pursuant to

this FAA statutory ground, Dr. Andresen never alleges nor

provides evidence that Arbitrator Janofsky had “significant” or

“substantial” interests in the parties to the arbitration, as is

required by the evident partiality standard in this circuit. See

149 Republic of Argentina, 894 F.3d at 334-35. In fact, Dr. Andresen

never alleges that Arbitrator Janofsky had any “degree of

interest” in the parties, let alone “a trivial interest” or

“remote” “connection” to them, which would still have been

insufficient “to satisfy the [FAA’s] high standard of proof” for

demonstrating evident partiality on the part of an arbitrator.

Id. at 335-37. Instead of advancing facts indicative of

Arbitrator Janofsky’s interests in either IntePros or Dr.

Andresen as an arbitration party that could “set[] out a factual

basis for concluding that [Arbitrator Janofsky] acted with

improper motives[,]” Hammad, 638 F. Supp. 2d at 75; Dr. Andresen

dedicates the entirety of this portion of her vacatur brief to

challenging the merits of the arbitration award based on her

improper “reasonable person” standard, see Pl.’s Mot. to Vacate,

ECF No. 45 at 31-47. However, as IntePros correctly argues, Dr.

Andresen’s “disagreements with the merits of the arbitrator’s

opinion” are “not proper grounds for a petition to vacate” under

section 10(a)(2). Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-

Mot. to Confirm, ECF No. 55 at 37; see Misco, 484 U.S. at 36-38.

Dr. Andresen digs herself deeper into a losing argument

when she claims in her reply brief, contrary to D.C. Circuit

law, that “improper interest[s] aris[ing] from an arbitrator’s

prior relationship with one of the parties . . . is irrelevant

to [her] argument under ‘evident partiality.’” Pl.’s Reply to

150 Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to

Confirm, ECF No. 63 at 27. To the contrary, an arbitrator’s

“improper interest” in the parties is the wholesale criteria for

succeeding on a claim of evident partiality under the FAA. For

example, on a petition for vacatur pursuant to section 10(a)(2)

in Republic of Argentina, the D.C. Circuit analyzed the

significance of the arbitrator’s interest when she had served on

the board of directors of a financial services company that had

passively invested over two billion dollars in parties to the

arbitration. See 894 F.3d at 333-37. The D.C. Circuit concluded

that the arbitrator’s interest as “a passive investor” was

merely a “trivial” interest rather than “a substantial one”

“creat[ing] evident partiality,” and it denied the petition on

that basis. Id. at 336-37.

Similarly, in Al-Harbi v. Citibank, N.A., 85 F.3d 680 (D.C.

Cir. 1996), the D.C. Circuit refused to vacate an arbitration

award when the arbitrator’s former law firm had previously

represented a party to the arbitration on matters unrelated to

the arbitration dispute because it concluded that such an

insufficient interest could not “indicate improper motives on

[his] part.” See id. at 682-83; accord Hammad, 638 F. Supp. 2d

at 75 (denying vacatur when the plaintiff failed to provide

“factually-based allegations of evident partiality” or “improper

motives” by the arbitrator). Thus, as IntePros states, the D.C.

151 Circuit “has rejected petitions to vacate awards pursuant to

[s]ection 10(a)(2) even when the movant has demonstrated some

interest on [the] part of the arbitrator[,]” Def.’s Opp’n to

Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 37;

and here, Dr. Andresen has not provided any facts or evidence

demonstrating even the slightest of interests by Arbitrator

Janofsky in the parties to the arbitration, let alone an

“improper” one, Republic of Argentina, 894 F.3d at 335.

c. Dr. Andresen’s Self-Created, Non-Cognizable Theories of Evident Partiality Constitute Impermissible Challenges to the Merits of the Arbitration Award

Instead of showing that Arbitrator Janofsky had some kind

of relationship with or connection to the arbitration parties

that would indicate a “significant” interest and evident

partiality capable of vacating the arbitration award, Dr.

Andresen creates her own “unrecognized theories” of evident

partiality. Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to

Confirm, ECF No. 55 at 38. Specifically, Dr. Andresen argues

that Arbitrator Janofsky “demonstrate[d] evident partiality in

the form of . . . confirmation bias;” “unequal weighting of the

parties’ arguments,” including by “drawing heavily from

[IntePros’] language and arguments over” Dr. Andresen’s language

and arguments; “citing as ‘facts’ statements on which no

evidence exists[;]” and interpreting facts in a biased manner in

152 favor of IntePros “without engaging in [an] independent analysis

of her own.” Pl.’s Mot. to Vacate, ECF No. 45 at 31-32, 47;

Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s

Cross-Mot. to Confirm, ECF No. 63 at 24-25.

However, Dr. Andresen does not cite a single authority to

support the existence of any of these “form[s]” of evident

partiality under this circuit’s law. See, e.g., Pl.’s Mot. to

Vacate, ECF No. 45 at 32 (tentatively claiming, without legal

support, that “[c]onfirmation bias is likely one of the most

robust proofs of evident partiality to be found” (emphasis

added)), 36 (claiming, without legal support, that “[a]nother

example of” evident partiality is when an arbitrator

“consistently” and favorably weighs one party’s arguments while

“disregarding” those of the other party), 40-41 (arguing that

evident partiality can be “display[ed] . . . by citing as

‘facts’ statements on which no evidence or testimony exists” but

using an inapposite case about the APA’s “arbitrary and

capricious” standard to do so); Pl.’s Reply to Def.’s Opp’n to

Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No.

63 at 24-25 (relisting her theories of evident partiality, again

devoid of legal support or citation).

Rather, a close look at the lengthy portion of Dr.

Andresen’s brief elaborating on her section 10(a)(2) theories

demonstrates that it merely replicates full passages from the

153 arbitration award in an attempt to challenge the reasoning and

the arbitrator’s factual findings and legal conclusions;

“revisit[s]” arguments from “her papers” and testimony in

arbitration on which she already lost; and weaves in arguments

from earlier sections of her vacatur motion which the Court has

by now rejected. 31 See Pl.’s Mot. to Vacate, ECF No. 45 at 32-47.

IntePros provides a bulleted summary of Arbitrator Janofsky’s

“findings and conclusions” that Dr. Andresen improperly disputes

pursuant to section 10(a)(2) of the FAA, including Arbitrator

Janofsky’s conclusions regarding Dr. Andresen’s work hours, her

opportunities for profit or loss, her lack of contact with

IntePros personnel, her negotiation with IntePros over the terms

of the subcontract, the nature of her work, the nature of

31For example, Dr. Andresen claims in a footnote, in a conclusory manner and without legal support, that the existence of confirmation bias indicates, in addition to evident partiality under section 10(a)(2), that the “arbitrators do their jobs imperfectly under [section] 10(a)(4)[.]” Pl.’s Mot. to Vacate, ECF No. 45 at 32 n.36. However, the Court has already rejected Dr. Andresen’s arguments for vacatur pursuant to 9 U.S.C. § 10(a)(4), see supra section IV.C.1.; and in any event, it “need not consider cursory arguments made only in a footnote,” Hutchins v. Dist. of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999); see also CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (stating that “[a] footnote is no place to make a substantive legal argument”). The same conclusion applies to Dr. Andresen’s footnote argument that the “arbitrary and capricious” standard, whose application she argued for in the context of section 10(a)(3), should also apply in analyzing “bias and evident partiality,” Pl.’s Mot. to Vacate, ECF No. 45 at 40 n.40; especially since the Court has already rejected the use of this standard for “illuminating” the FAA’s various grounds for vacatur, see supra section IV.C.2.a.i. 154 IntePros’ recruitment of Dr. Andresen, the requirement that Dr.

Andresen provide and maintain her own business insurance, and

IntePros’ lack of control over the means and manner of Dr.

Andresen’s work performance. See Def.’s Opp’n to Pl.’s Mot. to

Vacate & Cross-Mot. to Confirm, ECF No. 55 at 38-40 (comparing

the challenges advanced in Dr. Andresen’s vacatur petition with

IntePros’ arguments on these same subjects from its arbitration

Phase One dispositive motion briefings); see also Pl.’s Mot. to

Vacate, ECF No. 45 at 32-47 (providing many arguments for

challenging the substance of the arbitrator’s factual and legal

conclusions).

IntePros’ bulleted summary shows that instead of Dr.

Andresen’s various arguments being legally cognizable ways to

demonstrate evident partiality under section 10(a)(2), they

merely “constitute impermissible challenges to the merits of the

arbitrator’s award.” Def.’s Opp’n to Pl.’s Mot. to Vacate &

Cross-Mot. to Confirm, ECF No. 55 at 38. As noted throughout

this Memorandum Opinion, the Court is not permitted to revisit

the merits of arbitration awards, and it must uphold an award

even if it rests on factual or legal errors, see Misco, 484 U.S.

at 36-38; and “even if it offered no explanation at all because

the alternative, requiring a particular level of detail for

every response to each party’s theories, would unjustifiably

undermine the speed and thrift sought from arbitration

155 proceedings[,]” Republic of Argentina, 894 F.3d at 338 (citation

Accordingly, the Court declines to delve into a

reconsideration of the substance of the numerous arbitration

award conclusions that Dr. Andresen now disputes in-depth based

on her non-cognizable theories of evident partiality, especially

since her “only argument seems to be that, because [she] did not

get the result [she] wanted, the only possible explanation must

be that the [arbitrator] elected to base [her] decision solely

on [the other party’s arguments and] alleged misstatements.” See

ARMA, S.R.O., 961 F. Supp. 2d at 265-66 (denying the

petitioner’s vacatur motion after finding its many “sundry

complaints” with the arbitrator’s conduct to be “so trivial that

an extended analysis [was] not warranted”). As such, there is no

basis for the Court to vacate the arbitration award pursuant to

section 10(a)(2) of the FAA.

4. The Arbitrator’s Award Does Not Violate Public Policy Pursuant to General Common Law

Dr. Andresen’s final argument for vacatur of the

arbitration award is that considerations of public policy make

the award unenforceable. See Pl.’s Mot. to Vacate, ECF No. 45 at

47-52. Specifically, she argues that it is a “‘[p]ublic law’

right[]” pursuant to various federal laws that employers cannot

discriminate or retaliate against their workers, and thus, any

156 employment contract that, by its terms, takes away this right or

makes it waivable violates public policy. Id. at 48. Using this

statement as a starting point, Dr. Andresen then argues that the

arbitration award, which concluded, as a Phase One threshold

determination, that she was an “independent contractor” and not

IntePros’ “employee” for purposes of disallowing her claims

under the ADEA, Title VII, the FLSA, and the NDAA from moving

forward to the merits, see Award, Ex. 2 to Def.’s Mot. to

Dismiss, ECF No. 35-2 at 3-9, 11; cannot stand because it

“compels [IntePros] to violate clear public policy . . . since

it requires [IntePros] to withhold from [her] the

[whistleblower] protections Congress intends for her to have

under the NDAA against retaliation for making protected

disclosures to the DoD IG” and “to withhold anti-discrimination

protections [under Title VII and the ADEA] from anyone

improperly classified as an independent contractor[,]” Pl.’s

Mot. to Vacate, ECF No. 45 at 50-51. In other words, according

to Dr. Andresen, the arbitration award violates public policy

because its conclusion signifies that workers who “accept

independent contractor status instead of employee status” can

“lose their statutory protections simply because they signed

independent contractor agreements.” Id. at 51-52. As such, Dr.

Andresen claims that in addition to “fall[ing] within the scope

of multiple, statutory bases for vacatur” under the FAA, the

157 award can also be vacated “according to the public policy

exception found in common law.” Id. at 52.

IntePros counters that “[n]one of the authorities cited by

Dr. Andresen . . . demonstrate[] that the ‘public policy’ basis

for vacatur is still recognized” following the Supreme Court’s

2008 decision in Hall Street Associates, LLC v. Mattel, Inc.,

552 U.S. 576, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008), which

emphasized “the exclusivity of the grounds set forth in

[s]ection 10 to vacate an arbitration award under the FAA.”

Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm,

ECF No. 55 at 40. And, “[i]n any event,” IntePros argues that

Dr. Andresen’s public policy arguments must fail because they

are actually only challenges regarding the already-determined

arbitrability of her NDAA, Title VII, and ADEA claims, and to

“the merits of the arbitrator’s decision[,]” in which Arbitrator

Janofsky engaged in “a reasoned analysis of whether Dr. Andresen

was an employee or not under the [governing] laws” and their

standards. Id. at 40-41.

The Court begins by assessing and accepting the validity of

Dr. Andresen’s public policy exception as a reason for vacatur

of an arbitration award under common law. The Supreme Court has

recognized that a court may refuse to enforce an arbitrator’s

award under a contract, specifically under a collective

bargaining agreement, as “contrary to public policy,” because it

158 “is a specific application of the more general doctrine, rooted

in the common law, that a court may refuse to enforce contracts

that violate law or public policy.” Misco, 484 U.S. at 42

(citing W.R. Grace & Co. v. Local Union 759, Int’l Union of the

United Rubber, Cork, Linoleum, & Plastic Workers of Am., 461

U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983) (“If the

contract as interpreted by [the arbitrator] violates some

explicit public policy, [courts] are obliged to refrain from

enforcing it.”); Hurd v. Hodge, 334 U.S. 24, 34-35, 68 S. Ct.

847, 92 L. Ed. 1187 (1948)); see also Prestige Ford v. Ford

Dealer Computer Servs., Inc., 324 F.3d 391, 396 (5th Cir. 2003)

(following “the Supreme Court’s lead” in recognizing “some

circumstances in which a court may refuse to enforce an

arbitration award that is contrary to public policy”), cert.

denied, 540 U.S. 878, 124 S. Ct. 281, 157 L. Ed. 2d 141 (2003);

Nat’l Football League Players Ass’n v. Pro-Football, Inc., 857

F. Supp. 71, 75 (D.D.C. 1994) (“Decisions of arbitrators are

given deference even if the arbitrator makes errors of fact and

law, unless the arbitrator’s award ‘compels the violation of law

or conduct contrary to accepted public policy.’” (quoting

Washington-Balt. Newspaper Guild, Local 35 v. Washington Post

Co., 442 F.2d 1234, 1239 (D.C. Cir. 1971))), vacated, 56 F.3d

1525 (D.C. Cir. 1995), aff’d in part and vacated in part on

reh’g, 79 F.3d 1215 (D.C. Cir. 1996). This public policy

159 exception “derives from the basic notion that no court will lend

its aid to one who founds a cause of action upon an immoral or

illegal act[.]” Misco, 484 U.S. at 42. 32

However, “[s]uch public policy arguments, much like Hail

Mary passes [in NFL football], are usually unsuccessful.” See

Nat’l Football League, 857 F. Supp. at 75-76 (calling public

policy “the ‘Hail Mary’ of challenges to an arbitrator’s

decision”). This is because “a court’s refusal to enforce an

arbitrator’s interpretation of [the relevant] contract[] is

limited to situations where the contract as interpreted would

violate ‘some explicit public policy’ that is ‘well defined and

dominant, and is to be ascertained ‘by reference to the laws and

32The Court therefore rejects IntePros’ counter argument that Dr. Andresen has failed to “demonstrate[] that the ‘public policy’ basis for vacatur is still recognized.” Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 40. While the Court agrees with IntePros that the Supreme Court’s decision in Hall Street Associates, LLC v. Mattel, Inc., 552 U.S. 576, 128 S. Ct. 1396, 170 L. Ed. 2d 254 (2008) “stresse[d] the exclusivity of the grounds set forth in [s]ection 10 to vacate an arbitration award under the FAA[,]” Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 40; see Hall St., 552 U.S. at 586-90 (concluding that FAA sections 10 and 11 “provide exclusive regimes for the review provided by the statute”); Dr. Andresen is not arguing that the public policy exception comes from the FAA. Rather, she argues that it “derives from common law.” Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 28. And, Hall Street specifically states that the Supreme Court was “speak[ing] only to the scope of . . . judicial review under §§ 9, 10, and 11 [of the FAA], [whilst] deciding nothing about other possible avenues for judicial enforcement of arbitration awards” outside of the FAA. 552 U.S. at 590. 160 legal precedents and not from general consideration of supposed

public interests.’” Misco, 484 U.S. at 43 (citing W.R. Grace,

461 U.S. at 766 (quoting Muschany v. United States, 324 U.S. 49,

66, 65 S. Ct. 442, 89 L. Ed. 744 (1945))). Thus, for a court to

refuse to enforce an arbitration award as contrary to public

policy, the award must create an “explicit conflict with other

‘laws and legal precedents’” as opposed to general public

interests, and the violation of the alleged public policy “must

be clearly shown.” Id. (quoting W.R. Grace, 461 U.S. at 766);

see also Seymour v. Blue Cross/Blue Shield, 988 F.2d 1020, 1025

(10th Cir. 1993) (stating that “a public policy violation

sufficient to overturn [an] arbitrator’s award” must amount to a

violation of “a clearly expressed law”).

Here, Dr. Andresen argues that the award creates an

“explicit conflict” with the 2013 version of the NDAA, Title

VII, and the ADEA because she contends that since it classified

her as an independent contractor after failing to “consider

economic realities,” the award therefore “compels” IntePros to

withhold from her the protections Congress “intends for her to

have under” those statutes. See Pl.’s Mot. to Vacate, ECF No. 45

at 50-52; Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n

to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 29. While

“[v]oluntary compliance with” federal statutes “is an important

public policy[,]” enforcement of Arbitrator Janofsky’s

161 arbitration award “will not inappropriately affect this public

policy[,]” W.R. Grace, 461 U.S. at 770-71; because all of these

statutes “provide redress only for employees, and not for

independent contractors[,]” Award, Ex. 2 to Def.’s Mot. to

Dismiss, ECF No. 35-2 at 3; see, e.g., Khaksari v. Chairman,

Broad. Bd. of Governors, 689 F. Supp. 2d 87, 91 (D.D.C. 2010)

(explaining that “[i]ndependent contractors are not protected

under either” Title VII or the ADEA, but employees are); Wykosky

v. ATCS, PLLC, No. 22-1881, 2023 WL 4547992, at *3 (D.D.C. July

14, 2023) (stating that only employees, as opposed to

independent contractors, are “covered by the” NDAA).

Pursuant to this threshold statutory requirement for

advancing claims under the NDAA, Title VII, and the ADEA,

Arbitrator Janofsky correctly engaged in an assessment of “the

true nature of [Dr. Andresen’s] employment” with IntePros and

applied “the tests set out” under the various “federal anti-

discrimination statutes,” including the “most important factor”—

“the extent of the employer’s right to control the ‘means and

manner’ of the worker’s performance”—to “conclude as a matter of

law that, although [Dr. Andresen’s] engagement had some features

found in an employer-employee relationship, it had more of the

features of an independent contractor relationship[.]” Award,

Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at 5; Khaksari,

689 F. Supp. 2d at 91. This assessment represents “a reasoned

162 analysis” of the primary Phase One issue that was the “central

thrust of the Award.” Def.’s Opp’n to Pl.’s Mot. to Vacate &

Cross-Mot. to Confirm, ECF No. 55 at 41. Therefore, contrary to

her claims now, Dr. Andresen is not legally entitled to the

statutory anti-discrimination and anti-retaliatory whistleblower

protections collectively provided by the NDAA, Title VII, and

the ADEA, and as a result, no violation of “an explicit, well-

defined and dominant public policy” is compelled by the

arbitration award. Prestige Ford, 324 F.3d at 396; Misco, 484

U.S. at 43; see also E. Associated Coal Corp., 531 U.S. at 66

(rejecting a public policy claim when the arbitration award

“violate[d] no specific provision of any law or regulation”).

Thus, rather than demonstrate a violation of a clearly

established public policy like that inherent in an applicable

federal statute, Dr. Andresen uses this common law basis for

vacatur to inappropriately challenge the merits of Arbitrator

Janofsky’s determination that Dr. Andresen was an independent

contractor and not IntePros’ employee. As she states, “[t]he

Award compels a public policy violation because of the way it is

incorrect,” and she urges the Court to “evaluate the merits of

[the] arbitral decision” on this basis. Pl.’s Reply to Def.’s

Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm,

ECF No. 63 at 29, 29 n.31 (emphasis in original); Pl.’s Mot. to

Vacate, ECF No. 45 at 52. Such an argument “fall[s] well short

163 of establishing” any violation of an explicit public policy as

required by the public policy exception, 33 Prestige Ford, 324

F.3d at 396; and “[i]n fact, enforcing the award here should

encourage . . . voluntary compliance with federal employment

discrimination law[,]” W.R. Grace, 461 U.S. at 771; because it

is the law that such statutes apply only to employees and not

independent contractors. 34 Instead, Dr. Andresen’s challenge to

33 So too does Dr. Andresen’s argument that the award “directly contradicts this Court’s Opinion” fail to establish vacatur pursuant to public policy grounds. See Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 7, 30. Although the Court stated in its earlier Memorandum Opinion granting IntePros’ motion to compel arbitration that Dr. Andresen’s “status vis-à-vis IntePros [was] sufficiently analogous to the status of the employee in Cole [v. Burns International Security Services, 105 F.3d 1465 (D.C. Cir. 1997)] vis-à-vis his employer to categorize Dr. Andresen as an ‘employee’ as that term was understood in Cole[,]” Andresen v. IntePros Fed., Inc., 240 F. Supp. 3d 143, 153 n.5 (D.D.C. 2017); this statement was made in a footnote to the Court’s discussion of Cole’s “per se rule that arbitration agreements that contemplate an employee paying arbitral expenses other than those analogous to federal court filing fees and administrative expenses are unenforceable unless the arbitrator’s fees are paid by the employer[,]” id. at 152. Therefore, it is inapplicable to Arbitrator Janofsky’s analysis “on the threshold issue of [Dr. Andresen’s] status as either an employee or independent contractor” under the relevant tests and federal statutes named in Dr. Andresen’s Statement of Claims. Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at 3. 34 Although Dr. Andresen directs the Court to a case from this

district court, which stated that the defendants’ public policy argument was “intertwined with the merits” of the arbitrator’s decision, that situation is not analogous to the instant case. See Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 28; Nat’l Football League Players Ass’n v. Pro-Football, Inc., 857 F. Supp. 71, 76 (D.D.C. 1994). In that case, the district court judge found that the defendants had presented a credible public policy argument 164 the correctness of Arbitrator Janofsky’s analysis of her

employment status—veiled as a public policy challenge—must fail

because “courts are forbidden to use imprecise notions of public

policy which would allow ill-defined considerations to negate

the rule favoring judicial deference.” Gulf Coast Indus. Workers

Union v. Exxon Co., U.S.A., 991 F.2d 244, 249 (5th Cir. 1993)

(citing Misco, 484 U.S. at 43), cert. denied, 510 U.S. 965, 114

S. Ct. 441, 126 L. Ed. 2d 375 (1993). To allow Dr. Andresen to

generically invoke public policy concerns based solely on her

disagreements with Arbitrator Janofsky’s conclusions would be to

“sanction a broad judicial power to set aside arbitration awards

as against public policy[,]” Misco, 484 U.S. at 43; which the

Court is not permitted to do pursuant to the “narrow” parameters

of this common law doctrine as described in Supreme Court

precedent, E. Associated Coal Corp., 531 U.S. at 63. 35

“based upon the law of Virginia” and concluded that it must “review the merits of the arbitrator’s decision de novo in order to determine whether or not it compel[led] a violation of Virginia law.” Id. at 76. Here, however, Dr. Andresen has not shown that the arbitration award contemplates a violation of the 2013 NDAA, Title VII, or the ADEA, as none of their protections apply to independent contractors. Therefore, since the award does not compel any public policy violation, there is no similar basis here for the Court to review its merits. 35 The Court thus concludes that it is unnecessary to consider

IntePros’ contention that Dr. Andresen’s public policy arguments must fail because they are “in substance” “no more than” challenges regarding the arbitrability of her NDAA, Title VII, and ADEA claims. See Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 40-41. Furthermore, the Court agrees with Dr. Andresen that “[i]t is unclear” how 165 Ultimately, because Dr. Andresen has not demonstrated a

valid or appropriate basis for vacating the arbitration award

pursuant to 9 U.S.C. § 10 of the FAA or the public policy

exception found in common law, the Court DENIES her petition for

vacatur. See ECF No. 45. 36

5. Because Dr. Andresen Has Not Shown That Vacatur Is Proper, the Court Grants IntePros’ Cross- Motion to Confirm the Arbitration Award

Because Dr. Andresen’s vacatur petition fails, the Court

next turns to IntePros’ cross-motion to confirm the arbitration

award. IntePros moves for confirmation of the award pursuant to

section 9 of the FAA, see Def.’s Opp’n to Pl.’s Mot. to Vacate &

Cross-Mot. to Confirm, ECF No. 55 at 41-43; which states:

If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant

IntePros read her public policy arguments “as referring primarily to issues of arbitrability.” Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate & Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 29 n.32. 36 In a footnote to her vacatur petition, Dr. Andresen states

that she wishes to reassert her D.C. law claims under the DCHRA and the DCWPCL. Pl.’s Mot. to Vacate, ECF No. 45 at 8 n.3. Not only is a vacatur motion an inappropriate place for Dr. Andresen to attempt this, but also, as already discussed, she voluntarily dismissed these claims with prejudice in a consent order during arbitration, see Ex. 1 to Def.’s Mot. to Dismiss, ECF No. 35-1 at 2; and she has “not set forth any grounds challenging that consent order” in her motion to vacate, Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 8. 166 such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.

9 U.S.C. § 9. The Supreme Court has interpreted this provision

to conclude that “[o]n application for an order confirming [an]

arbitration award, the court ‘must grant’ the order ‘unless the

award is vacated, modified, or corrected,’” and it has stated

that “[t]here is nothing malleable about ‘must grant,’ which

unequivocally tells courts to grant confirmation in all cases,

except when one of the ‘prescribed’ exceptions applies.” Hall

St., 552 U.S. at 587; see also Int’l Thunderbird Gaming Corp. v.

United Mexican States, 473 F. Supp. 2d 80, 83 (D.D.C. 2007)

(“[I]n the absence of a legal basis to vacate, this court has no

discretion but to confirm the award.” (citing 9 U.S.C. § 9)),

aff’d, 255 F. App’x 531 (D.C. Cir. 2007).

Here, the parties’ arbitration agreement specifies that

“[t]he arbitration award shall be final and binding upon the

parties[,] and judgment thereon may be entered in any court

having jurisdiction thereof.” Sub Contractor Agreement,

Provision 9(f), Ex. A, ECF No. 12-1 at 6. Furthermore, the award

represents a “final” award subject to judicial confirmation. See

Award, Ex. 2 to Def.’s Mot. to Dismiss, ECF No. 35-2 at 11

(“This award is in full satisfaction of all claims presented by

167 the parties in this arbitration.”); Michaels v. Mariforum

Shipping, S.A., 624 F.2d 411, 413 (2d Cir. 1980) (“In order to

be ‘final,’ an arbitration award must be intended by the

arbitrators to be their complete determination of all claims

submitted to them.”). 37 Therefore, “[u]nder the plain language of

9 U.S.C. § 9, [the parties’] agreement permits [IntePros] to

apply to the United States court in and for the district within

which the award was made for confirmation of the award.” Owen-

Williams, 717 F. Supp. 2d at 21. Although the arbitration

hearing took place telephonically, Award, Ex. 2 to Def.’s Mot.

to Dismiss, ECF No. 35-2 at 3; the agreed upon locale for the

hearing was Washington, D.C., see Exs. R & S to Pl.’s Opp’n to

Mot. to Dismiss & Cross-Mot. to Litigate, ECF Nos. 37-20 at 1,

37-21 at 1 (determination by the AAA that “this matter shall be

conducted in the original locale of Washington, D.C.”). In

addition, the Court has already determined that it has

37Dr. Andresen argues, via two sentences in a footnote, that Arbitrator Janofsky failed to make “a final award on the subject matter of the arbitration,” and that this is a basis for vacatur pursuant to 9 U.S.C. § 10(a)(4) of the FAA. Pl.’s Mot. to Vacate, ECF No. 45 at 19 n.15. The Court declines to consider this unsupported argument made only in a footnote. See Hutchins v. Dist. of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999); CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014); White v. Four Seasons Hotel & Resorts, 244 F. Supp. 3d 1, 5 (D.D.C. 2017). Regardless, the Court agrees with IntePros that “this argument is self-defeating[,] as it would leave the [C]ourt without jurisdiction to review [Dr. Andresen’s vacatur] Petition.” Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot. to Confirm, ECF No. 55 at 42 n.15. 168 jurisdiction to simultaneously review IntePros’ motion to

dismiss, alongside Dr. Andresen’s vacatur petition and IntePros’

cross-motion for confirmation. See supra section IV.A.3; see

also Smiga, 766 F.2d at 705 (“[A] court which orders arbitration

retains jurisdiction to determine any subsequent application

involving the same agreement to arbitrate, including a motion to

confirm an arbitration award.”). Thus, IntePros’ “application

for confirmation of the award to this Court is [ ] proper.”

Owen-Williams, 717 F. Supp. 2d at 21.

Furthermore, the Court has discussed and rejected each of

Dr. Andresen’s grounds for vacatur of the arbitration award, and

Dr. Andresen has not asserted any grounds for modification.

Because she “has not demonstrated that the arbitration award

must be vacated or modified, the Supreme Court has made clear

that this Court ‘must grant’ [IntePros’] application for an

order confirming the arbitration award.” Id. at 21 (citing Hall

St., 552 U.S. at 587). Accordingly, the Court GRANTS IntePros’

cross-motion for confirmation of the arbitration award pursuant

to 9 U.S.C. § 9, see ECF No. 55; and hereby confirms the award.

Given this conclusion and in conjunction with its above

reasoning, the Court also officially GRANTS IntePros’ motion to

dismiss. See ECF No. 35. Moreover, the Court dismisses this case

and Dr. Andresen’s stayed claims with prejudice so as to prevent

Dr. Andresen from further attempting to circumvent the

169 arbitration outcome and revive her failed claims, which would

“result[] in a repetitious waste of resources and time on the

part of the parties” and the Court, Barnes, 42 F. Supp. 3d at

120; and would undermine “arbitration’s essential virtue of

resolving disputes straightaway[,]” Hall St., 552 U.S. at 588.

As such, the Court lastly DENIES as moot Dr. Andresen’s motion

to lift the stay in this action. See ECF No. 70.

D. IntePros’ Request for Time to Pursue Sanctions and an Award of Attorney’s Fees and Costs Against Dr. Andresen

Finally, IntePros has requested in its various briefings

that it be given two weeks after the dismissal of this case to

pursue sanctions and reasonable attorney’s fees and costs

against Dr. Andresen related to opposing her vacatur petition,

her cross-motion to litigate in opposition to IntePros’ motion

to dismiss, and her motion for leave to file a SAC because it

contends that they “are without merit and should have never been

pursued.” See Def.’s Opp’n to Pl.’s Mot. to Vacate & Cross-Mot.

to Confirm, ECF No. 55 at 43; Def.’s Mot. to Dismiss, ECF No. 35

at 6-7; Def.’s Opp’n to Pl.’s Mot. to File SAC, ECF No. 49 at

23. IntePros contends that even though she is a pro se litigant,

Dr. Andresen “is well-aware of the costs caused by her

litigiousness, [and] will make sprawling, meritless legal

arguments in a specious effort to sustain her claims.” Def.’s

Mot. to Dismiss Reply & Opp’n to Cross-Mot. to Litigate, ECF No.

170 43 at 27. Dr. Andresen opposes IntePros’ request for time to

pursue sanctions and attorney’s fees and costs, stating that she

“has diligently read a significant amount of caselaw to find a

legal path forward, and nothing about her effort has been

frivolous.” Pl.’s Reply to Def.’s Opp’n to Mot. to Vacate &

Opp’n to Def.’s Cross-Mot. to Confirm, ECF No. 63 at 30.

Pursuant to Federal Rule of Civil Procedure 54, IntePros’

claim for attorney’s fees and costs “must be made by motion . .

. no later than 14 days after the entry of judgment;” “specify

the judgment and the statute, rule, or other grounds entitling

[IntePros] to the award;” “state the amount sought or provide a

fair estimate of it;” and “disclose, if the court so orders, the

terms of any agreement about fees for the services for which the

claim is made.” Fed. R. Civ. P. 54(d)(2)(B)(i)-(iv); see also

LCvR 54.2(a) (stating that if the district court does not enter

an order and schedule a post-judgment status conference

regarding the determination of attorney’s fees, then “the

parties are to proceed with motions for attorney’s fees pursuant

to Fed. R. Civ. P. 54(d)(2)”). Similarly, a motion for sanctions

pursuant to Federal Rule of Civil Procedure 11 “must be made

separately from any other motion and must describe the specific

conduct that allegedly violates Rule 11(b).” Fed. R. Civ. P.

11(c)(2).

171 Therefore, pursuant to the governing local and federal

rules, IntePros may request attorney’s fees and costs and/or

move for sanctions by no later than 14 days from the entry of

judgment in this case.

V. Conclusion

The Court concludes by reiterating that “the scope of

judicial review of an arbitrator’s decision is the ‘narrowest

known in the law.’” Nat’l Football League, 857 F. Supp. at 75

(quoting S. Pac. Transp. Co. v. United Transp. Union, 789 F.

Supp. 9, 13 (D.D.C. 1992)). “[W]hen parties agree to

arbitration, they agree to accept whatever reasonable

uncertainties may arise from the process[,]” and “[u]ndoubtedly

one party will emerge from an arbitration feeling that they were

in some way shortchanged. That, however, does not alter or

affect the limited role of the courts in reviewing arbitration

awards.” Prestige Ford, 324 F.3d at 397.

Accordingly, for the foregoing reasons, the Court GRANTS

IntePros’ motion to dismiss, ECF No. 35; DENIES Dr. Andresen’s

cross-motion to permit litigation of her two retaliation claims

in this district court, ECF No. 38; DENIES Dr. Andresen’s motion

for leave to file a SAC, ECF No. 42—which includes DENYING her

motion for an extension of time to file her reply to IntePros’

opposition to her motion to amend the complaint, ECF No. 60, and

GRANTING IntePros’ cross-motion to strike this untimely reply,

172 ECF No. 58; DENIES Dr. Andresen’s motion to vacate the

arbitration award, ECF No. 45; GRANTS IntePros’ cross-motion to

confirm the arbitration award, ECF No. 55; and DENIES AS MOOT

Dr. Andresen’s motion to lift the stay in this action, ECF No.

70. An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 12, 2024