Richard M. Yuhasz v. Brush Wellman, Inc.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0297P (6th Cir.)
File Name: 03a0297p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RICHARD M. YUHASZ,
Plaintiff-Appellant,
v.
BRUSH WELLMAN, INC.,
Defendant-Appellee.
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No. 02-3087
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 00-07237—James G. Carr, District Judge.
Argued: August 1, 2003
Decided and Filed: August 20, 2003
Before: KENNEDY, GILMAN and GIBBONS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Dennis E. Murray, Jr., MURRAY & MURRAY,
Sandusky, Ohio, for Appellant. Geoffrey J. Ritts, JONES
DAY, Cleveland, Ohio, for Appellee. ON BRIEF: Dennis
E. Murray, Jr., Charles M. Murray, Barbara Quinn Smith,
2 Yuhasz v. Brush Wellman, Inc. No. 02-3087
MURRAY & MURRAY, Sandusky, Ohio, for Appellant.
Geoffrey J. Ritts, Dennis M. Kelly, JONES DAY, Cleveland,
Ohio, for Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Relator Richard
M. Yuhasz brought a qui tam action against defendant-
appellant Brush Wellman, Inc. (Brush), claiming that Brush
violated the False Claims Act (FCA), 31 U.S.C. § 3729 et
seq., and wrongfully terminated him in retaliation for his
allegations of wrongdoing. After the United States declined
to intervene, Brush moved to dismiss the case pursuant to
Rules 9(b) and 12(b)(6) of the Federal Rules of Civil
Procedure, and the district court granted the motion. For the
reasons set forth below, we affirm the judgment of the district
court.
I.
Relator Yuhasz was employed as a laboratory manager for
Brush at Brush’s bronze alloy manufacturing facility in
Lorain, Ohio, between September 1996 and January 2000. At
this facility, Brush produces “‘super’ alloys, spinodal alloys,
and other specialty alloys” that are supplied to the United
States both directly and through intermediaries, including
distributors, for use in aerospace and military aviation. Some
of the alloys, supplied under requirements of and pursuant to
contracts with the United States, are subjected to further
processing and manufacturing before being delivered to the
United States.
Yuhasz was hired to design and establish, and then operate
as manager, a testing laboratory for its Lorain facility. The
laboratory was established to conduct chemical, mechanical,
and physical testing of Brush’s alloys. At the laboratory,

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No. 02-3087 Yuhasz v. Brush Wellman, Inc. 3
Yuhasz established the specifications for the laboratory
equipment and both conducted and supervised testing
procedures.
In order to claim or receive payments under government
contracts, Brush must submit “certifications of compliance
with technical specifications stating, representing, and
warranting that the alloys were in strict conformity with
specifications and that [Brush] was, thereby, legally entitled
to claim and receive payment.” These certifications include
certification pursuant to Aerospace Materials Specifications,
certification as to compliance with “QQC” specifications (a
government standard), and certification pursuant to the
specifications of the American Society for Testing and
Materials.
On April 14, 2000, Yuhasz filed this qui tam action,
alleging that Brush violated the FCA by making false
certifications by itself or through intermediaries and that
Brush wrongfully terminated him in retaliation for his
allegations of improper conduct. After investigating
Yuhasz’s allegations, the United States declined to intervene
on July 11, 2001. On September 7, 2001, Brush moved to
dismiss the case for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6). The district court granted
Brush’s motion to dismiss on December 14, 2001. On
January 8, 2002, Yuhasz filed his notice of appeal.
II.
A district court’s grant of a motion to dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure is
reviewed de novo. Goad v. Mitchell, 297 F.3d 497, 500 (6th
Cir. 2002). Pursuant to Rule 12(b)(6), an action may be
dismissed if the complaint fails to state a claim upon which
relief can be granted. When considering a motion to dismiss,
all well-pleaded allegations in the complaint are treated as
true, and the dismissal of the complaint is deemed proper
“only ‘if it appears beyond doubt that the plaintiff can prove
4 Yuhasz v. Brush Wellman, Inc. No. 02-3087
no set of facts in support of its claims that would entitle it to
relief[.]’” Id. (citing Kostrzewa v. City of Troy, 247 F.3d 633,
638 (6th Cir. 2001)); see also Conley v. Gibson, 355 U.S. 41,
45-46 (1957).
III.
According to the FCA:
Any person who (1) knowingly presents, or causes to be
presented, to an officer or employee of the United States
Government or a member of the Armed Forces of the
United States a false or fraudulent claim for payment or
approval; (2) knowingly makes, uses, or causes to be
made or used, a false record or statement to get a false or
fraudulent claim paid or approved by the Government . . .
is liable to the United States Government for a civil
penalty of not less than $5,000 and not more than
$10,000, plus 3 times the amount of damages which the
Government sustains because of the act of that person.
31 U.S.C. § 3729. The purpose of the FCA is “to encourage
any individual knowing of Government fraud to bring that
information forward.” United States ex rel. McKenzie v.
BellSouth Telecomm., Inc., 123 F.3d 935, 938 (6th Cir. 1997)
(McKenzie I) (quoting S. Rep. No. 99-345 (1986), reprinted
in 1986 U.S.C.C.A.N. 5266); see also United States ex rel.
Dick v. Long Island Lighting Co., 912 F.2d 13, 18 (2d Cir.
1990) (“‘[T]he purpose of the qui tam provisions of the False
Claims Act is to encourage private individuals who are aware
of fraud being perpetrated against the Government to bring
such information forward.’”) (quoting H.R. Rep. No. 99-660,
at 22 (1986)). If, as in this case, the government does not
assert its statutory right to take over the case, the relator can
recover between twenty-five and thirty percent of any monies
recovered from a settlement or judgment, in addition to
reasonable expenses and attorneys’ fees and costs. 31 U.S.C.
§ 3730(d)(2).

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No. 02-3087 Yuhasz v. Brush Wellman, Inc. 5
Yuhasz claims that Brush, by itself or through
intermediaries, submitted fraudulent certifications and claims
for payment to the United States and received payment from
the United States for alloys not meeting government
specifications, in violation of the FCA. Specifically, Yuhasz
alleges that Brush
had actual knowledge and/or acted in deliberate disregard
or ignorance of the truth or falsity of: (i) alloy product
that was off-specification due to defects such as cracks;
(ii) false and fraudulent certifications of compliance with
technical specifications; (iii) improper traceability and
identifibility controls with respect to lots of alloy bar
stock; (iv) beryllium contamination in alloys, rendering
such alloys off-specification; (v) [Brush’s] failure to
perform requisite tests on the alloys, such as the
mercurious nitrate testing; and, (vi) the fact that requisite
internal controls were not in place, rendering alloy
products untraceable and unidentifiable.
The district court granted Brush’s motion to dismiss,
concluding that since the complaint “did not state a specific
false claim submitted to the government,” Yuhasz “did not
allege a FCA claim with sufficient particularity as required
under Rule 9(b).” Yuhasz v. Brush Wellman, Inc., 181
F.Supp.2d 785, 794 (N.D.Ohio 2001).
Pursuant to Federal Rule of Civil Procedure 9(b), in any
complaint averring fraud or mistake, “the circumstances
constituting fraud or mistake shall be stated with
particularity.” The heightened pleading standard set forth in
Rule 9(b) applies to complaints brought under the FCA.
“[C]omplaints brought under the FCA must fulfill the
requirements of Rule 9(b) – defendants accused of defrauding
the federal government have the same protections as
defendants sued for fraud in other contexts.” Bly-Magee v.
California, 236 F.3d 1014, 1018 (9th Cir. 2001); see also
United States ex rel. Thompson v. Columbia/HCA Healthcare
Corp., 125 F.3d 899, 903 (5th Cir. 1997); Gold v.
6 Yuhasz v. Brush Wellman, Inc. No. 02-3087
Morrison-Knudsen Co., 68 F.3d 1475, 1476 (2d Cir. 1995);
United States ex rel. Cooper v. Blue Cross & Blue Shield of
Florida, Inc., 19 F.3d 562, 568 (11th Cir. 1994). The
requirement that fraud be plead with particularity need not be
relaxed in FCA cases in order to protect the public because
the government’s ability to intervene on the basis of
information brought to its attention vindicates the public
interest. The Sixth Circuit interprets Rule 9(b) as requiring
plaintiffs to “allege the time, place, and content of the alleged
misrepresentation on which he or she relied; the fraudulent
scheme; the fraudulent intent of the defendants; and the injury
resulting from the fraud.” Coffey v. Foamex L.P., 2 F.3d 157,
161-162 (6th Cir. 1993) (quotation omitted).
The district court correctly found that Yuhasz had failed to
allege an FCA claim with sufficient particularity as required
by Rule 9(b). Yuhasz’s complaint is short on specifics. For
example, the complaint notes only that “certain testing that
was outsourced according to a particular EAB number did not
match-up to any heat number for alloy bar stock” and that
“certain alloys of [Brush] may have been mismarked.”
(emphasis added). However, the complaint contains no
particularized allegations of wrongdoing. The failure to
identify specific parties, contracts, or fraudulent acts requires
dismissal. See United States ex rel. Clausen v. Lab. Corp. of
Am., Inc., 290 F.3d 1301, 1312 (11th Cir. 2002) (“failure to
allege with any specificity if – or when – any actual improper
claims were submitted to the Government is indeed fatal”);
U.S. ex rel. Walsh v. Eastman Kodak Co., 98 F.Supp.2d 141,
147 (D. Mass. 2000) (“Relator’s First Amended Complaint,
in essence, sets out a methodology by which the vendors
might have produced false invoices, which in turn could have
led to false claims. Without citing a single false claim arising
from an allegedly false invoice, Relator has not met even a
bare-bones Rule 9(b) test.”); United States ex rel. Butler v.
Magellan Health Serv., Inc., 101 F.Supp.2d 1365, 1369 (M.D.
Fla. 2000) (“Plaintiff does plead a fraudulent scheme of
conduct which may well be prohibited by law. However,
Plaintiff pleads no specific occurrences of a false claim. . . .

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No. 02-3087 Yuhasz v. Brush Wellman, Inc. 7
[T]he absence of specific allegations of fraudulent false
claims is determinative.”).
Yuhasz concedes that he “is unable to identify a specific
claim submitted directly to the United States by a prime
contractor who incorporated [Brush’s] metal alloys into the
finished product sold to the government,” but argues that he
“is entitled to a relaxed standard of pleading due to the length
and complexity of [Brush’s] fraud.” Yuhasz notes that the
complaint “alleges fraudulent acts occurring over a period
exceeding two years, and affecting virtually every alloy
manufactured by [Brush] during that period.” As the district
court observed, however, a plaintiff should not be able to
avoid the specificity requirements of Rule 9(b) by “relying
upon the complexity of the edifice which he created.” United
States ex rel. Clausen v. Lab. Corp. of Am., 198 F.R.D. 560,
563 (N.D. Ga. 2000), aff’d, 290 F.3d 1301 (11th Cir. 2002).
Moreover, none of the cases upon which Yuhasz principally
relies, United States ex rel. Roby v. Boeing Co., 184 F.R.D.
107 (S.D. Ohio 1998), United States v. United Technologies,
No. C-3-99-093, 2000 WL 988238 (S.D. Ohio March 20,
2000), and United States v. Pogue, 977 F. Supp. 1329 (M.D.
Tenn. 1997), supports his position.
In Roby, the plaintiff alleged that defendant The Boeing
Corporation (Boeing) and its supplier violated the FCA “by
manufacturing and selling defective transmission gears to the
United States via Boeing’s CH-47(D) Chinook Army
helicopters.” 184 F.R.D. at 108. Boeing filed a motion to
dismiss, arguing that “because of the breadth of the
accusation against it, [defendant] can only speculate as to
which of the 300 . . . gears in service today are alleged to be
nonconforming.” Id. at 110. The district court denied
Boeing’s motion and noted that the complaint alleged that
Boeing “acted with the knowledge of falsity or reckless
disregard for the truth with respect to every CH-47(D)
helicopter it delivered to the United States.” Id. (emphasis
added).
8 Yuhasz v. Brush Wellman, Inc. No. 02-3087
Yuhasz argues that the “facts of the instant case are
strikingly similar to those before the court in Roby.” This is
not correct. In the instant case, Yuhasz asserts in its brief
only that “virtually every certification” was fraudulent and
that “virtually every alloy certified by [Brush] during the time
specified in the Complaint was non-compliant.” (emphasis
added). The language of the complaint itself is even less
specific, stating only that “certain testing that was outsourced
according to a particular EAB number did not match-up to
any heat number for alloy bar stock,” that “certain alloys may
have been mismarked,” that “Yuhasz, upon accessing the
original certifications, often discovered that the requisite
mercurious nitrate testing had not been performed,” that
“approximately 5% of the product, and particularly smaller
diameter product, failed to meet the requisite tensile
strength,” that “drums were often not labeled,” and that “many
of the certifications of compliance indicated the wrong alloy.”
(emphasis added). Furthermore, in Roby the plaintiff
identified the specific contract at issue (the CH47(D)
helicopter contract) and stated when, where, and how false
statements were made to the government (on Forms DD-250
presented to the government). 184 F.R.D. at 110. In the
instant case, Yuhasz provides no such information. Roby thus
is easily distinguishable.
In United Technologies, the government alleged that Pratt
and Whitney (Pratt), a division of defendant United
Technologies Corporation (UTC), fraudulently submitted a
contract bid that “knowingly overstated” the prices to be
charged by Pratt’s subcontractors. 2000 WL 988238 at *1.
The government further alleged that each bill, invoice, and
price later presented by Pratt to the government reflected
these inflations. Id. Pratt filed a motion to dismiss, arguing
that the government failed to specify which of its invoices
were false claims. Id. at *5. The district court denied Pratt’s
motion, noting that the complaint alleged that “all of the
invoices, bills, and prices submitted by Pratt to the Air Force
were based on that initial ‘inflation,’” and as a result “UTC
should be able to identify the invoices, bills, and prices at

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No. 02-3087 Yuhasz v. Brush Wellman, Inc. 9
issue.” Id. at *8 (emphasis in original). In the instant case,
however, not only has Yuhasz not identified any invoices
submitted by Brush to the government based on the alleged
fraud, the indefinite nature of his allegations does not provide
Brush with any way of identifying those invoices. Moreover,
in United Technologies the plaintiff identified the document
presented to the government that contained the false
information (Pratt’s “best and final offer”) and identified both
the parties and the specific contract that was entered into
based upon that false information (a contract between the
government and United Technologies to provide the Air
Force with high-performance jet engines). Id. at *1. That
level of specificity is completely absent here.
Finally, in Pogue, the plaintiff alleged that defendants West
Paces Medical Center (West Paces), Diabetes Treatment
Centers of America (DTCA), and a group of Atlanta
physicians engaged in a scheme to defraud the government of
Medicare and Medicaid funds. 977 F. Supp. at 1331. The
defendants filed a motion to dismiss, arguing that the
complaint failed “to specify ‘when, where, or how Plaintiff
contends that West Paces learned of this alleged fraud, or the
identity of, or position held by, the person or persons who had
such knowledge, and whose knowledge should be attributed
to West Paces.’” Id. at 1332. The district court denied
defendants’ motion and stated that “[a]lthough no specific
dates or West Paces employees are identified, the complaint
alleges that the hospital participated in a systematic,
fraudulent scheme, spanning the course of twelve years; thus,
reference to a time frame and to ‘West Paces’ generally is
sufficient.” Id. at 1333. Yuhasz argues that in this case, as in
Pogue, the court should not require “the specific dates on
which the invoices were submitted.” However, Yuhasz fails
to recognize that in Pogue the lack of specificity with regard
to the invoices was balanced against the fact that the plaintiff
identified the specific parties and contracts at issue (between
West Paces and DTCA and between DTCA and the Atlanta
physicians). Here, the only party that Yuhasz identifies is
Brush.
10 Yuhasz v. Brush Wellman, Inc. No. 02-3087
In his briefs to this court, Yuhasz also argues that he should
not be required to plead the specifics of information “within
[Brush’s] control.” By failing to state specifically that
Brush’s control is exclusive, the position taken by Yuhasz on
appeal differs from that taken in the complaint, which stated:
With respect to the alloy products produced or processed
by [Brush] for the requirements of the government
pursuant to government contracts, [Brush] is in a position
of superior knowledge, and possessed exclusive control
over the means of access to information, as to the
specific nature of such requirements or contracts.
(emphasis added). In its response to Brush’s motion to
dismiss, Yuhasz also claimed that “an exception exists when
certain information is within the exclusive possession of the
defendant.” (emphasis added). The district court rejected this
argument, explaining that Yuhasz “is not entitled to a relaxed
standard because the information he seeks is not exclusively
in the possession of Brush.” Yuhasz, 181 F.Supp.2d at 793.
Although Yuhasz now argues that he should not be required
to plead information over which Brush has “constructive
control,” nowhere in his briefs to this court does he state that
Brush’s control is exclusive. Thus, Yuhasz apparently has
now conceded that third parties possess information
concerning the specific contracts at issue and the claims
submitted for payment. As the district court correctly
determined, “[c]ourts have held that [Rule 9(b)] may be
relaxed where information is only within the opposing party’s
knowledge.” Michaels Bldg. Co. v. Ameritrust Co., N.A., 848
F.2d 674, 680 (6th Cir. 1988) (emphasis added).
Furthermore, although Yuhasz argues that he “cannot obtain
the information demanded by the trial court absent
discovery,” there is no general right to discovery upon filing
of the complaint. The very purpose of Fed. R. Civ. P.
12(b)(6) “is to enable defendants to challenge the legal
sufficiency of complaints without subjecting themselves to
discovery.” Rutman Wine Co. v. E. & J. Gallo Winery, 829

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No. 02-3087 Yuhasz v. Brush Wellman, Inc. 11
F.2d 729, 738 (9th Cir. 1987). For all of these reasons,
dismissal of Yuhasz’s FCA claim is appropriate.
IV.
The FCA protects employees who pursue, investigate, or
otherwise contribute to an action exposing fraud against the
government. Section 3730(h) of the FCA states:
Any employee who is discharged, demoted, suspended,
threatened, harassed, or in any other manner
discriminated against in the terms or conditions of
employment by his or her employer because of lawful
acts done by the employee on behalf of the employee or
others in furtherance of an action under this section,
including investigation for, initiation of, testimony for, or
assistance in an action filed or to be filed under this
section, shall be entitled to all relief necessary to make
the employee whole.
31 U.S.C. § 3730(h). In order to establish a claim for
retaliatory discharge, a plaintiff must show: (1) he engaged in
a protected activity; (2) his employer knew that he engaged in
the protected activity; and (3) his employer discharged or
otherwise discriminated against the employee as a result of
the protected activity. McKenzie v. BellSouth Telecomm.,
Inc., 219 F.3d 508, 513-514 (6th Cir. 2000) (McKenzie II).
The district court properly dismissed Yuhasz’s retaliatory
discharge claim, finding that Yuhasz had failed to allege that
Brush had the required notice of Yuhasz’s participation in
protected activity.
“When seeking legal redress for retaliatory discharge under
the FCA, plaintiff has the burden of pleading facts which
would demonstrate that defendants had been put on notice
that plaintiff was either taking action in furtherance of a
private qui tam action or assisting in an FCA action brought
by the government.” United States ex. rel. Ramseyer v.
Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir.
12 Yuhasz v. Brush Wellman, Inc. No. 02-3087
1996). Yuhasz claims that he “specifically informed and
advised [Brush] of the unlawful and illegal nature of its
certifications of compliance” and “specifically raised with
[Brush], through Feldhouse, that other companies had
incurred liabilities under the False Claims Act for submission
of false and fraudulent claims.” However, these allegations
are insufficient to show that Brush knew Yuhasz was
pursuing an FCA case when it discharged him.
In Ramseyer, the Tenth Circuit dismissed a retaliatory
discharge action brought pursuant to the FCA, noting that
“the monitoring and reporting activities described in
plaintiff’s complaint were exactly those activities plaintiff
was required to undertake in fulfillment of her job duties.” 90
F.3d at 1523. The court added that the plaintiff “took no steps
to put defendants on notice . . . that she was furthering or
intending to further an FCA action rather than merely
warning the defendants of the consequences of their conduct.”
Id. (emphasis added). Similarly, the concerns about potential
liability under the FCA raised by Yuhasz in this case were
entirely within the scope of his duties, and thus did not put
Brush on notice that he was engaging in protected activity.
The complaint describes Yuhasz’s duties as follows:
[Brush] hired Yuhasz to design and establish, and then
operate as a manager, a testing laboratory for its Lorain
facility. . . . The laboratory was established to conduct
certain chemical, mechanical and physical testing.
Yuhasz also established the specifications for the
laboratory equipment.
***
Yuhasz conducted and or supervised testing procedures
for [Brush’s] Lorain facility.
***

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No. 02-3087 Yuhasz v. Brush Wellman, Inc. 13
1Yuhasz’s reliance on McKenzie I is misplaced. In M cKenzie I,
although the court found that by “show[ing] her supervisors a newspaper
article about a similar fraud being perp etrated” against another company,
plaintiff had placed the employer on notice, the court specifically noted
that the plaintiff’s “activities were not within the scope of her
emp loyment.” 123 F.3d at 945. In the instant case, Yuhasz’s activities
fit squarely within the scope of his employm ent.
On or about August, 1998, Yuhasz was appointed as the
[Brush] employee charged with submitting the required
certifications of compliance with the technical
specifications of the alloys.
By informing Brush that its certifications were illegal and that
other companies had incurred liability under the FCA for false
claims, Yuhasz was simply performing his ordinary duties as
a supervisor of laboratory testing. Brush cannot be charged
with notice on this basis. See Robertson v. Bell Helicopter
Textron, Inc., 32 F.3d 948, 952 (5th Cir. 1994) (employer did
not have notice where plaintiff’s actions “were consistent
with the performance of his duty”).1 The mere fact that
Yuhasz told Brush that its certifications of compliance were
“unlawful and illegal” does not establish notice. As the Sixth
Circuit noted in McKenzie II, “a plaintiff still must show that
his employer was aware of his protected activity. Merely
grumbling to the employer about . . . regulatory violations
does not satisfy the requirement.” 219 F.3d at 518 (quoting
United States ex rel. Yesudian v. Howard Univ., 153 F.3d
731, 743 (D.C. Cir. 1998)).
Yuhasz argues that this interpretation of the notice
requirement “grants immunity to an employer who terminates
the employee most likely to have information relevant to a qui
tam action.” This is not the case. As the court noted in
Ramseyer, employees charged with investigating potential
fraud are not automatically precluded from bringing a Section
3730(h) action. 90 F.3d at 1523 n. 7. In light of their
ordinary responsibilities, however, such persons “must make
clear their intentions of bringing or assisting in an FCA action
14 Yuhasz v. Brush Wellman, Inc. No. 02-3087
in order to overcome the presumption that they are merely
acting in accordance with their employment obligations.” Id.
V.
Yuhasz argues that the district court erred in dismissing his
claim for wrongful discharge in violation of Ohio common
law and public policy. In his complaint, Yuhasz asserts:
It is the public policy of Ohio that an employee shall not
be discharged, or otherwise subjected to a hostile work
environment, for refusing his employer’s directives to
violate applicable laws and regulations. That public
policy is manifested in the FCA, 31 U.S.C. § 3730(h), as
well as in [Federal Acquisition Regulations] by reason of
the strict certifications of compliance that are required.
The district court dismissed this claim, concluding that
because the complaint failed to show a violation of the FCA,
the complaint also failed to state a claim that Brush
wrongfully discharged him in violation of Ohio public policy.
This decision was correct.
In order to prevail on a wrongful discharge claim in
violation of public policy under Ohio law, a plaintiff must
show:
(1) a ‘clear public policy existed and was manifested in
a state or federal constitution, statute or administrative
regulation, or in the common law;’ (2) that ‘dismissing
employees under circumstances like those involved in the
plaintiff’s dismissal would jeopardize the public policy;’
(3) ‘[t]he plaintiff’s dismissal was motivated by conduct
related to the public policy;’ and (4) ‘[t]he employer
lacked overriding legitimate business justification for the
dismissal.’
Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 311
(6th Cir. 2000) (quoting Painter v. Graley, 70 Ohio St.3d 377,

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No. 02-3087 Yuhasz v. Brush Wellman, Inc. 15
384 n. 8 (Ohio 1994)). In Parry, the Sixth Circuit held that a
plaintiff could not maintain a wrongful discharge claim in
violation of Ohio public policy when the public policy was
derived from an Ohio statute “substantially similar to the
ADA” and the ADA claim had been dismissed. Id. at 312.
The court explained that “[p]laintiff, having failed to show a
viable claim under the ADA, is necessarily precluded from
claiming that his termination violated public policy.” Id.
Similarly, since Yuhasz has failed either to state an FCA
claim or to identify the specific provision of the Federal
Acquisition Regulations manifesting the alleged “clear public
policy,” Ohio public policy cannot serve as a basis for his
wrongful discharge action.
Yuhasz concedes that “if he is unable to demonstrate a
violation of the FCA, he may not bring a claim for discharge
in violation of the public policy therein,” but argues that
dismissal is not appropriate because “this public policy is also
independently and more broadly embodied in the common
law of Ohio.” Under Ohio law, however, “when the
employee’s discharge is not actionable under the law that
establishes the ‘clear public policy,’ the companion common-
law claim for relief likewise fails as a matter of law.”
Arsham-Brenner v. Grande Point Health Care Cmty., No.
74835, 2000 WL 968790, at *7 (Ohio App. July 13, 2000).
Since the only “applicable laws and regulations” that Yuhasz
alleges he was directed to violate are the FCA and the Federal
Acquisition Regulations, and the complaint fails to state a
claim with respect to either of these authorities, his common
law public policy claim also must be dismissed.
VI.
Yuhasz requested leave to amend his complaint in his
October 5, 1999, response to Brush’s motion to dismiss, and
he contends that the district court abused its discretion by
failing to grant his request. This argument lacks merit.
16 Yuhasz v. Brush Wellman, Inc. No. 02-3087
The district court declined to grant Yuhasz leave to amend,
but it failed to specify the reasons for its decision. Pursuant
to Fed. R. Civ. P. 15(a), a court should freely give leave to
amend a complaint “when justice so requires.” However,
leave to amend may be denied where the amendment would
be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). When
a district court denies a plaintiff’s motion for leave to amend
his complaint, this court generally reviews the decision for an
abuse of discretion. Begala v. PNC Bank, Ohio, Nat’l Ass’n,
214 F.3d 776, 783 (6th Cir. 2000). When the district court
bases its decision to deny leave to amend on a legal
conclusion that amendment would be futile, however, this
court reviews the decision de novo. Inge v. Rock Fin. Corp.,
281 F.3d 613, 625 (6th Cir. 2002). Since the district court did
not specify its reasons for denying leave to amend, the panel
should conduct a de novo review. See McKethan-Jones v.
Ohio Dept. of Health, 7 Fed. Appx. 475, 482, 2001 WL
345782, at *6 (6th Cir. 2001) (finding that “[t]he district
court, by refusing to grant leave to amend the original
complaint . . . , must implicitly have decided that such a claim
was futile,” and conducting de novo review).
According to Fed. R. Civ. P. 15(a), “[a] party may amend
the party’s pleading once as a matter of course at any time
before a responsive pleading is served.” The term
“responsive pleading” is defined by reference to Fed. R. Civ.
P. 7(a), which distinguishes between pleadings and motions,
and provides an exclusive list of pleadings: a complaint
(including a third party complaint), an answer to a complaint
or a cross-claim, and a reply to a counterclaim. In this case,
Brush never filed an answer. Consequently, Yuhasz was free
to file an amended complaint at any time prior to the district
court’s entry of judgment. Yuhasz did not do so, but instead
claimed in his response to Brush’s motion to dismiss that he
“has pled all the facts that he knows.” In light of Yuhasz’s
admission, amendment would be futile. See Old Republic Ins.
Co. v. Hansa World Cargo Service, Inc., 170 F.R.D. 361,
383-384 (S.D.N.Y. 1997). (“[B]ecause [plaintiff] has
conceded that it possesses no further facts to plead . . . , this

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No. 02-3087 Yuhasz v. Brush Wellman, Inc. 17
Court finds that leave to replead [plaintiff’s] . . . claims
should be denied as futile.”) Because Yuhasz did not amend
as a matter of right under Rule 15(a) and because amendment
would have been futile in any event, the district court’s denial
of Yuhasz’s request for leave to amend was proper.
Yuhasz also directly requests leave to amend from this
court. This request is procedurally defaulted. The district
court entered a final judgment dismissing the case on
December 14, 2001. “Following entry of final judgment, a
party may not seek leave to amend their complaint without
first moving to alter, set aside or vacate the judgment
pursuant to either Rule 59 or Rule 60 of the Federal Rules of
Civil Procedure.” Morse v. McWhorter, 290 F.3d 795, 799
(6th Cir. 2002). Since Yuhasz never filed a Rule 59 or 60
motion following the district court’s entry of judgment, he
cannot now seek leave to amend.
VII.
For all of the foregoing reasons, we affirm the judgment of
the district court.

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