output per breathing cycle requires or does not require a given type of testing which differs from what was provided, such facts and how defendants' practice differed from applicable norms must be set forth.
A plaintiff is not required to provide at the complaint stage information unavailable to the pleader, especially if in the exclusive possession of the adversary. See Datskow v. Teledyne, 899 F.2d 1298 (2d Cir), cert. denied 498 U.S. 854, 111 S. Ct. 149, 112 L. Ed. 2d 116 (1990); Dayse v. Schuldt, 894 F.2d 170, 173-74 (5th Cir 1990); see also Mary Ann Pensiero, Inc v. Lingle, 847 F.2d 90, 95 (2d Cir 1988).
Where technical matters raised, however, are necessarily within the scope of knowledge of a plaintiff, such facts as are available to the plaintiff must be set forth in order to permit the court to determine whether full litigation with its inherent costs is justified. This is particularly necessary in the context of Rule 9(b). See Connecticut National Bank v. Fluor Corp, 808 F.2d 957, 962 (2d Cir 1987); Ross v. AH Robins Co, 607 F.2d 545, 558 (2d Cir 1979), cert. denied 446 U.S. 946, 64 L. Ed. 2d 802, 100 S. Ct. 2175 (1980).
Plaintiff's complaint alleges that defendants failed to withhold required taxes and improperly treated personnel as independent contractors who should have been characterized as employees. The Qui Tam Act (31 USC 3730) refers to the False Claims Act (31 USC 3729) but not to the Internal Revenue Code in defining types of claims which can be raised under the Qui Tam provision. Such a clear statutory distinction cannot properly be ignored. See Sea Robin Pipeline Co. v. FERC, 254 U.S. App. D.C. 137, 795 F.2d 182, 184 n 1 (DC Cir 1986) (R. Ginsburg, J.).
The Internal Revenue Code (Title 26 of the United States Code) is an intricate statute of the type sometimes called "reticulated," containing separate remedies for violations, many of them administrative and others confided to the judiciary under distinctive tax-specific provisions; indeed 26 USC 7623 permits the IRS is permitted to pay informants for reporting tax frauds where appropriate. Government contract monitoring is an almost equally specialized field, covered in significant detail in Title 31 of the United States Code and elsewhere. Neither statute, of course, removes judicial jurisdiction over matters related to them, nor abrogates otherwise applicable laws or procedural rules except as specifically provided. See cases cited, Pyramid Petroleum Corp v. United States, 1994 WL 150811, 1994 U.S. Dist. LEXIS 5204 (SDNY Apr 20, 1994). The reticulated nature of such statutes warns, nevertheless, against ready cross-fertilization of provisions intended to be specialized, such as utilizing tax law to expand the Qui Tam Act or vice versa, where not intended by Congress.
This concern has a pragmatic basis: the intricacy of tax provisions, employing large numbers of governmental and private auditors and leading to many adjustments of disagreements annually, would permit almost any significant entity to become subject to Qui Tam suits were taxation swept into the orbit of the Qui Tam Act. This would give every employee enormous leverage against an employer where any financial aspect of its business - even if correctly conducted - might conceivably be challenged.
If an amended complaint is filed, the claim that defendants filed to transmit tax funds to the United States must be deleted and that matter reported to the Internal Revenue Service, to permit it to determine what inquiries, if any, may be called for under the circumstances.
Plaintiff's retaliation claim under 31 USC 3730 (h) fails to allege that plaintiff was terminated because of investigation or other steps in connection with pursuit of litigation under the False Claims Act, and contains no facts as opposed to conclusions to support allegations of harassment or termination. These shortfalls must be rectified if that claim is to be asserted in an amended complaint.
Plaintiff has filed a claim of discharge for reporting hazards to public health and safety in violation of New York's "whistleblower" Act, NY Labor Law 740. Subsection 7 of that statute provides that:
. . . institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.
That provision bars concurrent § 740 and other lawsuits based on the same circumstances. The purpose is to prevent § 740 from being used as an adjunct to other litigation. One need not invoke § 740, but if so, cannot pursue other remedies for the same wrongs. See Gonzalez v. John T. Mather Memorial Hospital, 147 Misc. 2d 1082, 559 N.Y.S.2d 467 (Suffolk Co. 1990); McGrane v. Reader's Digest, 1993 WL 525127, 1993 U.S. Dist. LEXIS 17790 (SDNY 1993); compare Keene Corp v. United States, 113 S. Ct. 2035, 124 L. Ed. 2d 118 (1993) (bringing suit in another court bars resort to United States Court of Federal Claims under 28 USC § 1500).
Plaintiff makes a syllogistic argument playing upon the intricacies of our federal system of government, pointing out correctly that (a) under the Supremacy Clause, Article VI § 2 of the Constitution of the United States, a state law such as Labor Law 740 cannot bar resort to a federal statute such as the Qui Tam act,
and (b) neither the Qui Tam Act nor other federal law preempts such state statutes as Labor Law § 740. See Lingle v. Norge Division of Magic Chef, 486 U.S. 399, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988).
On the surface this argument may appear persuasive. It suffers, however, from the unarticulated assumption that each source of law can be called upon only to limit the scope of other sources of law, and not to determine when it itself should be deemed limited by the existence of other remedies. This kind of assumption if permitted to pass unnoticed can lead to situations of the type described by F. Pollock in a letter to Justice Holmes in 1 Holmes-Pollock Letters 182 (Howe ed 1961) in which an argument lacks merit "but it is very difficult to prove it so in solemn didactic form." There is, however, no ground for accepting the assumption.
Plaintiff's argument if accepted would require the court to bypass the objective of Labor Law § 740(7), namely to avoid overlapping claims one of which is brought under § 740. That purpose should be achieved if possible. That objective was an important part of the grand equation bargained out by the New York Legislature in enacting the "whistleblower" statute. Protection was given to employees reporting health or safety hazards, but under subsection 5 only equitable relief made available. Under subsection 7, the statute cannot be used as an adjunct to lawsuits for damages based upon varying grounds under any legal theory, grounded upon claims that an adverse personnel action was improper. To permit the use of the "whistleblower" provision for such purposes notwithstanding subsection 7 would alter the critical balance among three vital interests: that of the public to avoid health and safety hazards, that of employees not to be unfairly treated because of relative lack of bargaining power in dealing with employers, and that of the public as well as employers and employees to see that economic activity can proceed without being hamstrung by abusive litigation. Proper interpretation of the statute must take each of these objectives fully into account.
As described by Justice (later Chief Justice) Harlan F. Stone in the context of a constitutional case:
To decide, we turn to the words . . . read in their historical setting as revealing the purposes of its framers, and search for admissible meanings of its words which, in the circumstances of their application, will effectuate those purposes.