Kini v. Tata Consultancy Services, Ltd

• Court: District Court, District of Columbia
• Decided: February 7, 2024
• Docket: Civil Action No. 2017-2526
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA ex rel. ANIL KINI,

Plaintiff, Civil Action No. 17-cv-2526 (TSC) v.

TATA CONSULTANCY SERVICES, LTD.,

Defendant.

MEMORANDUM OPINION

Relator Anil Kini filed this action against Tata Consultancy Services, alleging that

Defendant violated the False Claims Act (“FCA”) by failing to obtain H-1B visas for, and pay

the proper H-1B wage rate to, employees who were engaged in H-1B visa work, as well as

retaliating against Relator for investigating the scheme. Relator’s allegations, however, do not

state a claim for relief because Defendant was not obligated, within the meaning of the FCA, to

pay higher payroll taxes for its employees or pay application fees for applications it never

sought. Relator, in turn, was not engaged in an investigation that could reasonably lead to a FCA

case, and therefore failed to state a retaliation claim as well.

Thus, having considered the record and the parties’ briefing, the court will GRANT

Defendant’s Motion to Dismiss, ECF No. 24.

I. BACKGROUND

Relator Anil Kini is a U.S. permanent resident who worked for Defendant for over a

decade. Am. Compl., ECF No. 39-1, ¶¶ 4, 29–30. Relator initially worked for Defendant in

India, but in 2012, was relocated to the United States on an L-1A visa to serve as a consultant

Page 1 of 14 and was eventually promoted to Business Relationship Manager. Id. ¶¶ 29, 31. Defendant is a

multinational corporation that provides IT-related services headquartered in India with 22 offices

in the United States. Id. ¶¶ 5, 12. Most of Defendant’s U.S.-based workers have H-1B, L-1 or

B-1 visas. Id. ¶¶ 11, 14. H-1B visas are for foreign workers in specialty occupations requiring

theoretical or technical expertise, id. ¶ 15, L-1 visas are for management-level employees and

subject matter experts, id. ¶ 22, and B-1 visas are for consulting with business associates,

traveling for business meetings and conventions, and other temporary business activities, id.

¶ 26.

To apply for an H-1B visa, an employer must submit a Labor Condition Application

(“LCA”), attesting that the job actually exists and that it will pay the employee a required wage

rate, id. ¶ 17, and pay application fees of approximately $6,460 per visa, id. ¶ 21. Because H-1B

visas are limited and highly sought after, companies must compete for them through a lottery

system. Id. ¶ 19. L-1 visas are not similarly capped and an application for an L-1 visa costs

approximately $1,000 less than an H-1B visa. Id. ¶¶ 23, 25.

Relator alleges that Defendant engages in two related fraudulent schemes. First, to

quickly staff “cheap visa employees” in U.S. jobs, Defendant “submits far more petitions for H-

1B visas than it has open positions” to maximize its chances of securing the highest number of

visas through the lottery system, id. ¶ 34, and then “pays these workers less than the required

wage, in violation of the U.S. visa laws,” id. ¶ 36. Consequently, Defendant pays significantly

lower payroll taxes to the U.S. government than it would have to if it paid its H-1B visa

employees at the proper rate. Id. ¶ 44, 89.

Second, Defendant “improperly secures” L-1 and B-1 visas for IT employees working in

non-managerial roles and positions that do not require specialized knowledge of the company.

Page 2 of 14 Id. ¶¶ 45, 60. Put another way, Defendant uses L-1 and B-1 visas—which are easier to obtain—

for employees that require harder to obtain H-1B visas. To do so, Defendant “falsifies

individuals’ job titles and work responsibilities” on their visa applications, id. ¶ 45, and takes

steps to mask its deception from United States Customs and Immigration Services during visits,

id. ¶ 48. Relator alleges that this scheme wrongfully deprives the government “of significant

visa application fees,” because L-1 and B-1 visas fees are less expensive than H-1B visas. Id.

¶¶ 59, 61, 90.

On May 1, 2017, Relator submitted an initial whistleblower report to Defendant’s CEO

detailing the fraudulent visa practices. Id. ¶ 63. Over the course of the next year, Relator

submitted three follow-up reports and discussed his reports with an independent investigator

Defendant retained to assist in verifying the allegations. Id. ¶¶ 64–72. Relator alleges that

Defendant retaliated against him starting on May 1, 2017, by cutting his pay, stalling his

promotion, removing him from projects, and eventually terminating him. Id. ¶¶ 73–81.

Relator filed the initial Complaint under seal on November 22, 2017. See Compl., ECF

No. 1. The United States declined to intervene. See Notice of Election to Decline Intervention,

ECF No. 15. Accordingly, the court unsealed the Complaint. Order, ECF No. 16. While

awaiting the United States’ decision on intervention, Relator was terminated from his position.

Am. Compl. ¶ 30. He therefore filed an Amended Complaint, see ECF No. 39-1.

In the Amended Complaint, Relator alleges two violations of the FCA: (1) that Defendant

falsely attested and falsified wage information in LCAs for H-1B visas and fraudulently applied

for cheaper L-1 and B-1 visas for work it knew required an H-1B visa, thus decreasing its payroll

tax obligation, underpaying H-1B visa employees, and fraudulently directing employees to

perform work that required an H-1B visa who did not have that visa, in violation of 31 U.S.C.

Page 3 of 14 § 3729; and (2) that Defendant retaliated against Relator for reporting its fraudulent conduct and

refusing to participate in subsequent acts of visa fraud, in violation of 31 U.S.C. § 3730(h). Am.

Compl. ¶¶ 97–106. Defendant moved to dismiss, ECF No. 24.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 9(b)

A plaintiff alleging fraud “must state with particularity the circumstances constituting”

the fraud. Fed. R. Civ. P. 9(b). To plead fraud with particularity, the plaintiff must “set[] forth

in sufficient detail the time, place, and manner” of the fraudulent scheme, U.S. ex rel. Heath v.

AT&T, Inc., 791 F.3d 112, 123 (D.C. Cir. 2015), including “who precisely was involved in the

fraudulent activity,” U.S. ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1257

(D.C. Cir. 2004). If the plaintiff fails to plead fraud with particularity, the court will dismiss the

claim. See, e.g., id. at 1256–59 (affirming dismissal of fraud claim under the FCA pursuant to

Federal Rule of Civil Procedure 9(b) where the plaintiff failed to plead fraud with particularity).

B. Federal Rule of Civil Procedure 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citation omitted). In other words, the plaintiff must plead “factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citation omitted).

In deciding a motion to dismiss, the court presumes the truth of the factual allegations in

the complaint and affords the plaintiff “every favorable inference that may be drawn from the

allegations of fact.” Laughlin v. Holder, 923 F. Supp. 2d 204, 208–09 (D.D.C. 2013) (citing Page 4 of 14 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The court does not, however, “accept as true ‘a

legal conclusion couched as a factual allegation,’ nor inferences that are unsupported by the facts

set out in the complaint.” Id. at 209 (citation omitted).

III. ANALYSIS

A. Count One

Count One alleges that Defendant falsely attested and falsified wage information in LCAs

for H-1B visas and fraudulently applied for cheaper L-1 and B-1 visas for work it knew required

an H-1B visa, thus decreasing its payroll tax obligation, underpaying H-1B visa employees, and

fraudulently directing employees without H-1B visas to perform work that required an H-1B

visa, in violation of 31 U.S.C. § 3729 (a “reverse false claim”). Am. Compl. ¶¶ 97–101.

i. Pleading requirements for a reverse false claim

The FCA punishes any person who “knowingly makes, uses, or causes to be made or

used, a false record or statement material to an obligation to pay or transmit money or property to

the government, or knowingly conceals or knowingly and improperly avoids or decreases an

obligation to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G).

A “reverse false claim is any fraudulent conduct that results in no payment to the government

when a payment is obligated.” U.S. ex rel. Scott v. Pac. Architects & Eng’rs, 270 F. Supp. 3d

146, 155 (D.D.C. 2017) (citation omitted). As relevant here, to state a reverse false claim, the

relator must allege with particularity that the defendant’s actions affected an “obligation” to pay

or transmit money or property to the government. See 31 U.S.C. § 3729(a)(1)(G); Fed. R. Civ.

P. 9(b).

The FCA defines the term “obligation” as “an established duty, whether or not fixed,

arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship,

from a fee-based or similar relationship, from statute or regulation, or from the retention of any Page 5 of 14 overpayment.” 31 U.S.C. § 3729(b)(3). In construing this definition, the D.C. Circuit has held

that “an unassessed potential penalty for regulatory noncompliance does not constitute an

obligation that gives rise to a viable FCA claim.” Hoyte v. Am. Nat’l Red Cross, 518 F.3d 61, 67

(D.C. Cir. 2008); accord U.S. ex rel. Schneider v. JPMorgan Chase Bank, 878 F.3d 309, 315

(D.C. Cir. 2017) (potential exposure to penalties is not an “obligation”). Nor does the

government’s ability to pursue reimbursement for overpayments or fraudulently induced

payments. U.S. ex rel. Morsell v. NortonLifeLock, Inc., 651 F. Supp. 3d 95, 189–90 (D.D.C.

2023).

The FCA, moreover, “does not apply to claims, records, or statements made under the

Internal Revenue Code.” 31 U.S.C. § 3729(d). The Second Circuit applies this “tax bar”

provision to a FCA claim if the “case depends entirely on a purported violation of the Tax Code”

and “the IRS has authority to recover the precise amounts [the plaintiff] is seeking.” U.S. ex rel.

Lissack v. Sakura Glob. Cap. Mkts., Inc., 377 F.3d 145, 153 (2d Cir. 2004). That test is in

keeping with the tax bar’s intent to “reserve[] discretion to prosecute tax violations to the IRS

and bar[] FCA actions based on tax violations.” Id. at 152–53 (citations omitted). Defendant

argues that courts in this district have adopted a broader reading of the tax bar than the Second

Circuit, but that is not the case. See Def.’s Mot. to Dismiss, ECF No. 24 at 19 (“Motion”).

Rather, courts in this district have merely recognized that obligations to pay taxes arising from

the Internal Revenue Code cannot support a viable FCA claim. See, e.g., Canen v. Wells Fargo

Bank, N.A., 118 F. Supp. 3d 164, 170 (D.D.C. 2018) (citing 31 U.S.C. § 3729(d)); accord

Ananiev v. Freitas, 37 F. Supp. 3d 297, 307 (D.D.C. 2014). Although its decision is not binding,

the Second Circuit’s test for determining whether the tax bar provision applies is well-founded,

and the court finds it persuasive.

Page 6 of 14 ii. Relator failed to plead a reverse false claim with particularity

Relator claims that Defendant “falsely attested and falsified wage information in LCAs

for H-1B visas,” “wrongfully decreased its obligation to pay the U.S. government payroll taxes

by fraudulently and unlawfully underpaying H-1B visa employees,” and “decreased its

obligation to pay H-1B visa application[] fees by fraudulently applying for cheaper” visas and

for H-1B visa work. Am. Compl. ¶¶ 98–99. Those claims fail because Defendant did not have

an “obligation” under the FCA to pay its employees higher wages. Accordingly, the court need

not reach the issue of whether Relator properly alleged that Defendant acted “knowingly.”

The D.C. Circuit has clearly stated that “an unassessed potential penalty for regulatory

noncompliance does not constitute an obligation that gives rise to a viable FCA claim.” Hoyte,

518 F.3d at 67. Thus, even though Relator alleges that Defendant took unlawful actions—

underpaying employees and failing to obtain the proper visa for those employees—those actions

are regulatory violations that may give rise to potential penalties, not “established dut[ies].” 31

U.S.C. § 3729(b)(3). As in Hoyte, Defendant did not have “an obligation to pay or transmit

money to the Government,” but rather, engaged in “mere regulatory noncompliance.” 518 F.3d

at 68.

Relator’s arguments to the contrary are unpersuasive. First, he argues that unassessed

penalties are “obligations” under the FCA if their assessment do not require the exercise of

government discretion. Relator’s Opp’n to Def.’s Mot. to Dismiss, ECF No. 32 at 16–18

(“Opp’n”). But that argument is inconsistent with Hoyte, which emphasized the need for a

present “obligation to pay or transmit money” to the government. 518 F.3d at 68. Nor does

Relator’s argument that unassessed penalties can be “obligations” if they do not involve

government discretion align with the FCA’s purpose. As the D.C. Circuit has recognized, a 2009

Page 7 of 14 amendment to the FCA “modified its language to require that an obligation be ‘established,’”

thus confirming that “unassessed” penalties do not give “rise to a viable FCA claim.” Schneider,

878 F.3d at 315 (citations omitted). And as the Supreme Court has explained, the FCA is not a

“vehicle for punishing garden-variety . . . regulatory violations.” Universal Health Servs., Inc. v.

U.S. ex rel. Escobar, 579 U.S. 176, 194 (2016). Extending an “obligation” under the FCA to

non-discretionary fees, fines, or penalties would undermine the purpose of the 2009 amendment

and render “garden-variety” regulatory violations FCA cases.

Second, Relator contends that Defendant owed a payroll tax obligation because although

it owed and paid these taxes, it underpaid them. Opp’n at 18–19. But Relator does not allege

that Defendant’s payroll tax contribution did not accord with the wages it paid its employees.

See Am. Compl. ¶ 89 (“[B]y fraudulently certifying and failing to pay its H-1B employees the

required wage rate, [Defendant] has reduced the amount of federal payroll tax it otherwise would

have been required to pay the federal government.”); Opp’n at 35–40 (explaining that Defendant

did not violate the Tax Code, but rather, underpaid its employees, indirectly resulting in tax

underpayment). Thus, any obligation to pay higher payroll taxes was contingent on Defendant

paying its employees at higher rates. At bottom, Relator’s claim is that Defendant violated

immigration laws by failing to pay its employees at the required H-1B visa rate; not that

Defendant engaged in a fraudulent scheme to underpay the government in violation of the FCA.

Finally, Relator argues that Defendant had an “obligation” to apply for H-1B visas, and

thus, had an obligation to pay the fees for those applications. Opp’n at 20–28 (citing U.S. ex rel.

Bahrani v. Conagra, Inc., 465 F.3d 1189 (10th Cir. 2006); Franchitti v. Cognizant Tech. Sols.

Corp., 555 F. Supp. 3d 63 (D.N.J. 2021)). Once again, Relator’s theory is too attenuated. “The

lesson of Hoyte is that, in the absence of acknowledged liability, whether an ‘obligation’ exists

Page 8 of 14 depends entirely on what the relevant legal instrument . . . requires a party to do” in a “self-

executing” manner. U.S. ex rel. Landis v. Tailwind Sports Corp., 160 F. Supp. 3d 253, 272

(D.D.C. 2016). In other words, had Defendant applied for H-1B visas, regulations would have

created an obligation for it to pay the application fees. But here, Defendant did not owe

application fees because it did not apply for H-1B visas; it applied for L-1 and B-1 visas.

Conagra and Franchitti do not tip the balance in Relator’s favor. First, Conagra is

distinguishable. The Tenth Circuit there held that the defendant had an “obligation” to pay fees

for replacement certificates once the government determined its original certificates contained

major errors and that replacement certificates would be necessary. 465 F.3d at 1202–03. Here,

in contrast, the government did not determine that Defendant needed to apply for H-1B visas

rather than L-1 or B-1 visas. In any event, to the extent that Conagra held that application fees

are “obliged” for certificates the defendant did not apply for, “Conagra” is “flatly inconsistent

with the D.C. Circuit’s reasoning in Hoyte.” Landis, 160 F. Supp. 3d at 272.

Franchitti is likewise unpersuasive. In that case, the District of New Jersey held that

there was “implied contractual” relationship between the government and the defendant because

the defendant “desired” an H-1B visa, despite obtaining L-1 and B-1 visas instead, and thus was

required to “pay the appropriate fee for” the H-1B visa. 555 F. Supp. 3d at 71. But the notion

that Defendant “desired” H-1B visas rests on a legal fiction, not Relator’s allegations. Relator

did not allege that Defendant sought H-1B visas or hoped to receive H-1B visas when it applied

for L-1 and B-1 visas. Rather, Relator alleged that Defendant sought and received L-1 and B-1

visas where, according to statutes and regulations, Defendant should have instead sought H-1B

visas. Those allegations do not support a conclusion that Defendant here “desired” H-1B visas.

Indeed, Franchitti reached a different conclusion than Lesnik v. Eisenmann SE, 374 F. Supp. 3d

Page 9 of 14 293, 940 (N.D. Cal. 2019), which also addressed a similar fact pattern and held that “the

obligation to pay the government only arises upon applying for a visa.” The court concurs with

Lesnik.

The court, however, declines Defendant’s invitation to apply the tax bar. Defendant

argues that the court should apply the FCA’s tax bar provision to dismiss Relator’s reverse false

claim because it relates to payroll taxes. Motion at 19–21. That argument is unpersuasive

because Relator’s claim does not rest on a violation of the Tax Code and the IRS does not have

authority to recover the amount Relator seeks. See Lissack, 377 F.3d at 152–53. As Relator

explained, the Immigration and Nationality Act (“INA”)—not the Tax Code—obliges Defendant

to pay H-1B visa holders a required wage rate. See Opp’n at 39. Thus, Relator does not allege

that Defendant violated the Tax Code by underpaying payroll taxes for H-1B visa employees, but

rather, that Defendant underpaid H-1B visa employees, thus making its tax obligations lower

than they otherwise would have been if it had complied with the INA. And the INA’s wage-

requirement provision is enforced by the Secretary of Labor, not the IRS. See 8 U.S.C.

§ 1182(n)(2)(A), (D), (G). Consequently, the tax bar is inapplicable.

In sum, Relator failed to state a reverse false claim because, tax bar aside, he did not

allege that Defendant had an “obligation” to pay higher payroll taxes or H-1B visa application

fees to the government. The court will therefore grant Defendant’s motion to dismiss Count

One.

B. Count Two

Count Two alleges that Defendant retaliated against Relator for reporting its fraudulent

behavior and refusing to take part in its fraudulent acts. Am. Compl. ¶¶ 102–06.

Page 10 of 14 i. Stating a retaliation claim

To state a claim for retaliation under 18 U.S.C. § 3730(h)(1), a relator must allege that

they (1) “engaged in protected activity,” and (2) “experienced discrimination ‘because of’” that

activity. Shekoyan v. Sibley Int’l, 409 F.3d 414, 422 (D.C. Cir. 2005) (quoting 31 U.S.C.

§ 3730(h)). “The purpose of this provision” is “to ‘assure those who may be considering

exposing fraud that they are legally protected from retaliatory acts.’” U.S. ex rel. Yesudian v.

Howard Univ., 153 F.3d 731, 736 (D.C. Cir. 1998) (quoting S. Rep. No. 99-345 at 34 (1986)).

First, to plead engagement in protected activity, a plaintiff must allege they were

“investigating matters that reasonably could lead to a viable [FCA] case.” Hoyte, 518 F.3d at 66

(formatting modified). This element “does not require the plaintiff to have developed a winning

qui tam action before he is retaliated against,” but their investigation “must concern false or

fraudulent claims,” not just “his employer’s non-compliance with federal or state regulations.”

Yesudian, 153 F.3d at 739–40. This inquiry is “fact specific.” Shekoyan, 409 F.3d at 423

(citation omitted).

The D.C. Circuit in Yesudian, for example, concluded that the relator was engaged in an

investigation that reasonably could lead to a viable FCA case because he repeatedly told his

supervisors at Howard University that he had evidence of an employee falsifying time and

attendance records, providing inside information to vendors to aid them in bidding, accepting

bribes from vendors, paying vendors who did not provide services to the university, and taking

property home for personal use. 153 F.3d at 740. Even though there was no direct evidence of

submitting false claims to the government, the court concluded that the relator would have had a

“good faith basis” to bring a FCA claim because he “knew that 80% of Howard’s money came

from the United States Government.” Id.

Page 11 of 14 By contrast, the D.C. Circuit concluded that an employee was not engaged in protected

activity where the complaints he raised with his supervisor were based on being denied the use of

project vehicles, not that others were engaged in fraudulent conduct by using these vehicles for

personal reasons. Shekoyan, 409 F.3d at 423. Similarly, in Hoyte, the D.C. Circuit concluded

that the employee’s “investigation was into mere regulatory noncompliance,” not false claims.

518 F.3d at 68.

Second, to plead that they experienced discrimination “because of” their protected

activity, a relator must show that their “employer had knowledge” that they were “engaged in

protected activity” (the intent requirement) and that “retaliation was motivated, at least in part,

by the employee’s engaging in that protected activity” (the causation requirement). Yesudian,

153 F.3d at 736 (formatting modified). “[T]he kind of knowledge the defendant must have” to

fulfill the intent requirement “mirrors the kind of activity in which the plaintiff must be

engaged.” Id. at 742. And to fulfill the causation requirement, the relator must allege that their

protected activity was a motivating factor in an adverse employment action. See Hamilton v.

Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (citing Woodruff v. Peters, 482 F.3d 521, 529

(D.C. Cir. 2007)) (applying the causation standard used for Title VII, the Americans with

Disabilities Act, and the Rehabilitation Act to the FCA’s retaliation provision).

ii. Relator failed to state a claim for retaliation

Relator’s retaliation claim under the FCA fails because Relator was not engaged in

protected activity. He alleges three instances of protected activity: (1) investigating the reports

in his Complaint and reporting them to Defendant; (2) assisting his counsel in preparing the

Complaint; and (3) preparing to disclose Defendant’s scheme to government officials. Am.

Compl. ¶ 103. But all of these activities concerned potential statutory and regulatory violations,

Page 12 of 14 which do not give rise to a FCA action. Supra Section III.A.ii. Thus, because the conduct

Relator was investigating “could not have reasonably led to a viable claim under section 3729 of

the FCA,” his “investigation of it was not protected activity” that could “support a retaliation

claim” under § 3730. Hoyte, 518 F.3d at 68.

Relator claims that Singletary v. Howard University, 939 F.3d 287, 296 (D.C. Cir. 2019),

supports his claim that he was engaged in protected activity because he had “an objectively

reasonable belief that” Defendant was violating the FCA. Opp’n at 42–44. Relator’s argument,

however, refers to a different “prong” of the protected activity analysis than his Amended

Complaint does—that is, Relator argues he was seeking to prevent future violations of the FCA,

rather than investigating existing violations. See id.; Singletary, 939 F.3d at 236 (explaining that

this “prong” “is met as long as the employee has an objectively reasonable belief that the

employer is violating, or will violate, the False Claims Act”). Thus, the allegations in the

Amended Complaint do not support the theory that Relator was trying to prevent Defendant from

violating the FCA rather than investigating violations. See Am. Compl. ¶¶ 102–06. In any

event, Singletary held that the relator’s complaints “went far beyond grumbling about regulatory

violations” because she was attempting to prevent Howard from submitting false claims of

animals’ conditions to the government that would be “necessary for Howard to receive and

retail” federal funding. 939 F.3d at 302–03. Relator’s allegations, however, do not go “far

beyond” “regulatory violations.” Thus, that Singletary had an “objectively reasonable belief”

that her employer was violating the FCA does not say the same for Relator in this case.

In sum, Relator failed to allege that he was engaged in protected activity under the FCA.

Thus, he cannot state a retaliation claim.

Page 13 of 14 IV. CONCLUSION

For the foregoing reasons, the court will GRANT Defendant’s Motion to Dismiss, ECF

No. 24. An Order will accompany this Memorandum Opinion.

Date: February 7, 2024

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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