PubKLaw™

Recent Decisions

• United States Supreme Court
• Court of Appeals for the Federal Circuit
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United States Supreme Court

ALLISON ENGINE CO., INC., ET AL. v. UNITED STATES EX REL. SANDERS ET AL., SC No. 07-214, June 09, 2008. Court vacates and remands to the Sixth Circuit this qui tam FCA case. Unanimous decision by Justice Alito. Syllabus by the Reporter of Decisions
Held: 1. It is insufficient for a plaintiff asserting a §3729(a)(2) claim to show merely that the false statement’s use resulted in payment or approval of the claim or that Government money was used to pay the false or fraudulent claim. Instead, such a plaintiff must prove that the defendant intended that the false statement be material to the Government’s decision to pay or approve the false claim. Pp. 5-8.
(a) The Sixth Circuit’s interpretation of §3729(a)(2) impermissibly deviates from the statute’s language, which requires the defendant to make a false statement “to get” a false or fraudulent claim “paid or approved by the Government.” Because “to get” denotes purpose, a person must have the purpose of getting a false or fraudulent claim “paid or approved by the Government” in order to be liable. Moreover, getting such a claim “paid . . . by the Government” is not the same as getting it paid using “government funds.” Under §3729(a)(2), a defendant must intend for the Government itself to pay the claim. Eliminating this element of intent would expand the FCA well beyond its intended role of combating “fraud against the Government.” Rainwater v. United States, 356 U. S. 590, 592. Pp. 5-6.
(b) The Government’s contention that “paid . . . by the Government” does not mean literal Government payment is unpersuasive. The assertion that it is customary to say that the Government pays a bill when a recipient of Government funds uses those funds to pay involves a colloquial usage of the phrase “paid by” that is not customarily employed in statutory drafting, where precision is important and expected. Section 3729(c)’s definition of “claim” does not support the Government’s argument. The definition allows a request to be a “claim” even if it is not made directly to the Government, but, under §3729(a)(2), it is necessary that the defendant intend that a claim be “paid by the Government,” not by another entity. Pp. 6-7.
(c) This does not mean, however, that §3729(a)(2) requires proof that a defendant’s false statement was submitted to the Government. Because the section requires only that the defendant make the false statement for the purpose of getting “a false or fraudulent claim paid or approved by the Government,” a subcontractor violates §3729(a)(2) if it submits a false statement to the prime contractor intending that contractor to use the statement to get the Government to pay its claim. However, if a subcontractor makes a false statement to a private entity but does not intend for the Government to rely on the statement as a condition of payment, the direct link between the statement and the Government’s decision to pay or approve a false claim is too attenuated to establish liability. The Court’s reading gives effect to Congress’ efforts to protect the Government from loss due to fraud but also ensures that “a defendant is not answerable for anything beyond the natural, ordinary, and reasonable consequences of his conduct.” Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 470. Pp. 7-9.
2. Similarly, it is not enough under §3729(a)(3) for a plaintiff to show that the alleged conspirators agreed upon a fraud scheme that had the effect of causing a private entity to make payments using money obtained from the Government. Instead, it must be shown that they intended “to defraud the Government.&lrdquo; Where their alleged conduct involved the making of a false statement, it need not be shown that they intended the statement to be presented directly to the Government, but it must be established that they agreed that the statement would have a material effect on the Government’s decision to pay the false or fraudulent claim.

RICHLIN SECURITY SERVICE CO. v. CHERTOFF, SECRETARY OF HOMELAND SECURITY, SC No. No. 06-1717, June 02, 2008. CAFC decision reversed, Supreme Court holds that a prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the Government at prevailing market rates.

JOHN R. SAND & GRAVEL COMPANY, PETITIONER v. THE UNITED STATES, No. 06-1164, January 08, 2008. The Court affirms the decision of the CAFC that the six year statute of limitations, 28 USC 2501, cannot be waived. Justices Stevens and Ginsberg file separate dissents.

KSR INTERNATIONAL CO., PETITIONER v. TELEFLEX INC. ET AL., SC No. 04-1350, April 30, 2007. Not a contract case, but an anxiously waited Supreme Court decision the addressing 35 USC § 103, Conditions for patentability; non-obvious subject matter. In an unanimous opinion, the Court reverses the CAFC and begins by “rejecting the rigid approach of the Court of Appeals.” The Court holds (from the syllabus) that “The Federal Circuit addressed the obviousness question in a narrow, rigid manner that is inconsistent with §103 and this Court’s precedents. KSR provided convincing evidence that [a feature of the device] was a design step well within the grasp of a person of ordinary skill in the relevant art and that the benefit of doing so would be obvious. Its arguments, and the record, demonstrate that the Engelgau patent’s claim 4 is obvious.”

ROCKWELL INTERNATIONAL CORP. et al. v. UNITED STATES et al, SC No. 05-1272, March 27, 2007. False Claims Act case. The Court reverses the Tenth Circuit and holds that the relator Stone, was not an original source. From the Courts’ Syllabus:
Held:
1. Section 3730(e)(4)’s original-source requirement is jurisdictional. Thus, regardless of whether Rockwell conceded Stone’s original-source status, this Court must decide whether Stone meets this jurisdictional requirement.
2. Because Stone does not meet §3730(e)(4)(B)’s requirement that a relator have “direct and independent knowledge of the information on which the allegations are based,” he is not an original source.
     (a) The “information” to which subparagraph (B) speaks is the information on which the relator’s allegations are based rather than the information on which the publicly disclosed allegations that triggered the public-disclosure bar are based. The subparagraph standing on its own suggests that disposition. And those “allegations” are not the same as the allegations referred to in subparagraph (A), which bars actions based on the “public disclosure of allegations or transactions” with an exception for cases brought by “an original source of the information.” Had Congress wanted to link original-source status to information underlying public disclosure it would have used the identical phrase, “allegations or transactions.” Furthermore, it is difficult to understand why Congress would care whether a relator knows about the information underlying a publicly disclosed allegation when the relator has direct and independent knowledge of different information supporting the same allegation.
     (b) In determining which “allegations” are relevant, that term is not limited to “allegations” in the original complaint, but includes the allegations as amended. The statute speaks of the relator’s “allegations,” simpliciter. Absent some limitation of §3730(e)(4)’s requirement to the initial complaint, this Court will not infer one. Here, where the final pretrial order superseded prior pleadings, this Court looks to the final pretrial order to determine original-source status.
     (c) Judged according to these principles, Stone’s knowledge falls short. The only false claims found by the jury involved insolid pondcrete discovered after Stone left his employment. Thus, he did not know that the pondcrete had failed; he predicted it. And his prediction was a failed one, for Stone believed the piping system was defective when, in fact, the pondcrete problem would be caused by a foreman’s actions after Stone had left the plant. Stone’s original-source status with respect to a separate, spray-irrigation claim did not provide jurisdiction over all of his claims. Section 3730(e)(4) does not permit jurisdiction in gross just because a relator is an original source with respect to some claim.
3. The Government’s intervention in this case did not provide an independent basis of jurisdiction with respect to Stone. The statute draws a sharp distinction between actions brought by a private person under §3730(b) and actions brought by the Attorney General under §3730(b). An action originally brought by a private person, which the Attorney General has joined, becomes an action brought by the Attorney General only after the private person has been ousted.

PAT OSBORN, PETITIONER v. BARRY HALEY et al., No. 05-593, January 22, 2007. Not a contracts case, instead a FTCA case where petitioner Osborn, a contractor employee, alleges that she was fired because Haley, a Forest Service employee, tortiously interfered with her employment. The United States Attorney, serving as the Attorney General’s delegate, certified, pursuant to the Westfall Act, that Haley was acting within the scope of his employment at the time of the conduct alleged in Osborn’s complaint and had the case removed to the Federal District court. After the US asserted that the alleged wrongdoing never occurred, the District Court, relying in Osborn’s allegations, entered an order that rejected the Westfall Act certification, denied the Government’s motion to substitute the United States as defendant in Haleyr’s place, and remanded the case to the state court. The Sixth Circuit vacated the District Court’s order, holding that a Westfall Act certification is not improper simply because the United States denies the occurrence of the incident on which the plaintiff centrally relies. The Supreme Court affirms. In an opinion by Justice Ginsburg the court holds that the Attorney General’s certification is conclusive for purposes of removal, i.e., once certification and removal are effected, exclusive competence to adjudicate the case resides in the federal court, and that court may not remand the suit to the state court.

BP AMERICA PRODUCTION CO. v. BURTON, No. 05-669, December 11, 2006. Writing for the Court, Justice Altio summarizes the case as follows-“This case presents the question whether administrative payment orders issued by the Department of the Interior’s Minerals Management Service (MMS) for the purpose of assessing royalty underpayments on oil and gas leases fall within 28 U. S. C. §2415(a), which sets out a 6-year statute of limitations for Government contract actions. We hold that this provision does not apply to these administrative payment orders, and we therefore affirm.”

GARY KENT JONES, PETITIONER v. LINDA K. FLOWERS et al. No. 04-1477, April 26, 2006. Not a contract case. Supreme Court holds that where certified mail notices of tax delinquency and subsequent sale of property are returned “unclaimed” that State must take reasonable additional effort to notify property owner.

GRAHAM COUNTY SOIL & WATER CONSERVATION DISTRICT et al. v. UNITED STATES ex rel. WILSON, No. 04-169, June 20, 2005. False Claims Act case. The Court reverses and remands to the Fourth Circuit.
Syllabus The False Claims Act (FCA) prohibits a person from making false or fraudulent claims for payment to the United States. 31 U.S.C. § 3729(a). That prohibition may be enforced in suits filed by the Attorney General, §3730(a), and in qui tam actions brought by private individuals in the Government’s name, §3730(b)(1). A 1986 amendment to the FCA created a private cause of action for an individual retaliated against by his employer for assisting an FCA investigation or proceeding, §3730(h), and revised the FCA’s statute of limitations, §3731(b). Section 3731(b) provides that “[a] civil action under section 3730 may not be brought ... more than 6 years after the date on which the violation of section 3729 is committed.” In 2001, respondent Wilson brought an FCA qui tam action against petitioners, along with an FCA retaliation claim. Petitioner Graham County Soil and Water Conservation District employed Wilson as a secretary. Wilson alleged that petitioner county officials retaliated against her for alerting federal officials to the purported fraud and for cooperating with the ensuing investigation, ultimately forcing her 1997 resignation from the District. Petitioners successfully moved to dismiss the retaliation claim as untimely, on the ground that North Carolina’s 3-year statute of limitations governed Wilson’s FCA action and barred it. Reversing, the Fourth Circuit found it unnecessary to borrow a state limitations period because one was supplied by §3731(b)(1).

Held: Section 3731(b)(1)’s limitations period does not govern §3730(h) retaliation actions. Instead, the most closely analogous state statute of limitations applies. Pp. 4-13.

(a) To determine the applicable statute of limitations for a cause of action created by federal statute, this Court asks first whether the statute expressly supplies a limitations period. If not, the most closely analogous state limitations period applies. Pp. 4-5.

(b) Section 3730(h) is a subsection of §3730, but §3731(b)(1) is nonetheless ambiguous about whether a §3730(h) retaliation action is “a civil action under section 3730” as that phrase is used in §3731(b)(1). Another reasonable reading is that §3731(b)(1)’s limitations period applies only to §§3730(a) and (b) actions. Section 3731(b)(1) starts the limitations period running on “the date on which the violation of section 3729 is committed,” that is, on the date the false claim was actually submitted. That language casts doubt on whether §3731(b)(1) specifies a limitations period for retaliation actions. For even a well-pleaded retaliation complaint need not allege that the defendant submitted a false claim, leaving the limitations period without a starting point if §3731(b)(1) is applicable. By contrast, the section naturally applies to well-pleaded §§3370(a) and (b) actions. Those actions require a plaintiff to plead that the defendant submitted a false claim and therefore necessarily specify when §3731(b)(1)’s time limit begins. At a minimum this anomaly shows that §3731(b)(1) is ambiguous about whether “action under section 3730” means all actions arising under that section. Pp. 5-7.

(c) Two considerations show that the better way to resolve this ambiguity is to read the 6-year period to govern only §§3370(a) and (b) actions. First, the very next subsection, §3730(c), uses the similarly unqualified phrase “action brought under section 3730” to refer only to §§3370(a) and (b) actions. Second, reading §3731(b)(1) to apply only to those actions is in keeping with the default rule that Congress generally drafts statutes of limitations to begin when the plaintiff has a complete and present cause of action. Where, as here, there are two plausible constructions, this Court should adopt the construction that starts the time limit running when the cause of action (here retaliation) accrues. This approach resolves §3731(b)(1)’s ambiguity in petitioners’ favor. Reading §3731(b)(1) to exclude retaliation actions will generally start the limitations period running when the cause of action accrues, for the likely analogous state statutes virtually all start when the retaliatory action occurs. However, under the reading favored by Wilson and the Government, the limitations period would begin at best on the date an actual or suspected FCA violation occurred, which would precede the retaliatory conduct. Pp. 7-12.

(d) The Court of Appeals should determine in the first instance the appropriate state statute of limitations to borrow. Pp. 12-13.

CHEROKEE NATION OF OKLA. V. LEAVITT (02-1472), No. 02-1472, 311 F.3d 1054, reversed; No. 03-853, 334 F.3d 1075, affirmed; and both cases remanded. March 1, 2005. Supreme Court affirms the Federal Circuit decision which had affirmed an IBCA decision.
Syllabus: The Indian Self-Determination and Education Assistance Act (Act) authorizes the Government and Indian tribes to enter into contracts in which tribes promise to supply federally funded services that a Government agency normally would provide, 25 U.S.C. § 450(f); and requires the Government to pay, inter alia, a tribe’s “contract support costs,” which are “reasonable costs” that a federal agency would not have incurred, but which the tribe would incur in managing the program, §450j-1(a)(2). Here, each Tribe agreed to supply health services normally provided by the Department of Health and Human Services’ Indian Health Service, and the contracts included an annual funding agreement with a Government promise to pay contract support costs. In each instance, the Government refused to pay the full amount promised because Congress had not appropriated sufficient funds. In the first case, the Tribes submitted administrative payment claims under the Contract Disputes Act of 1978, which the Department of the Interior (the appropriations manager) denied. They then brought a breach-of-contract action. The District Court found against them, and the Tenth Circuit affirmed. In the second case, the Cherokee Nation submitted claims to the Department of the Interior, which the Board of Contract Appeals ordered paid. The Federal Circuit affirmed.
Held: The Government is legally bound to pay the “contract support costs” at issue.
A list member notes there were sufficient unrestricted appropriations each year to cover the costs, even though the agency had spent them on “higher priority” needs and then claimed lack of appropriated funds.

SCARBOROUGH v. PRINCIPI, No. 02-1657, May 3, 2004. Court reverses Federal Circuit. Holds that a timely fee application, pursuant to 28 USC §2412(d), may be amended after the 30-day filing period has run to cure an initial failure to allege that the Government’s position in the underlying litigation lacked substantial justification. Thus, Scarborough’s fee application, as amended, qualifies for consideration and determination on the merits. (SC Syllabus)

NATIONAL PARK HOSPITALITY ASSOCIATION v. DEPARTMENT OF THE INTERIOR et al., No..02-196, May 27, 2003. Writing for the Court, Justice Thomas vacates and remands a DC Circuit decision which held that the Contract Disputes Act did not apply to National Park Service concession contracts. Justice Thomas’ opinion holds that the controversy is not yet ripe for resolution and judicial resolution of the question presented here should await a concrete dispute about a particular concession contract. Justice Breyer, with whom Justice O’Connor joins, dissents.

COOK COUNTY, ILLINOIS v. UNITED STATES ex rel. CHANDLER, No. 01-1572, March 10, 2003. Court affirms the seventh circuit decision and holds that local governments are “persons” subject to qui tam actions under the False Claims Act (FCA), 31 U.S.C. §§ 3729-3733.

ELDRED et al. v. ASHCROFT, ATTORNEY GENERAL, N0. 01-618, January 15, 2003. Court affirms opinion below and finds that the Copyright Term Extension Act ("CTEA") which extended the term of a copyright from creation to 70 years after author’s death, is constitutional.

FRANCONIA ASSOCIATES, et al., v. US, No. 01-455, June 10, 2002

FESTO CORP. v. SHOKETSU KINZOKU KOGYOKABUSHIKI CO., No. 00-1543, May 28, 2002.

LUJAN v. G & G FIRE SPRINKLERS, INC., No. 00-152, April 17, 2001. Finding that the California Labor Code, which provides for withholding sums from a contractor where its subcontractors were not paying proper prevailing wages, did not deprive the subcontractor of due process, the Court reverses the 9th Circuit. Writing for the Court, Chief Justice Rehnquist notes that "... if California makes ordinary judicial process available to respondent for resolving its contractual dispute, that process is due process." Finding that such existed the Court reversed.

MOBIL OIL EXPLORATION & PRODUCINGSOUTHEAST, INC. v. UNITED STATES (99-244) 177 F.3d 1331, reversed and remanded. Justice Breyer delivered the opinion of the Court, and summarized the opinion as follows:"  Two oil companies, petitioners here, seek restitution of $156 million they paid the Government in return for lease contracts giving them rights to explore for and develop oil off the North Carolina coast. The rights were not absolute, but were conditioned on the companies’ obtaining a set of further governmental permissions. The companies claim that the Government repudiated the contracts when it denied them certain elements of the permission-seeking opportunities that the contracts had promised. We agree that the Government broke its promise; it repudiated the contracts; and it must give the companies their money back."
[Opinion cites the Restatment of Contracts, Farnsworth, Williston, Corbin and other contract law Hornbook references.]

VERMONT AGENCY OF NATURAL RESOURCES v.UNITED STATES ex rel. STEVENS (98-1828) 162 F.3d 195, reversed. Justice Scalia delivered the opinion of the Court which held "... that a private individual has standing to bring suit in federal court on behalf of the United States under the False Claims Act, 31 U.S.C. § 3729-3733, but that the False Claims Act does not subject a State (or state agency) to liability in such actions. The judgment of the Second Circuit is reversed." The Eleventh Amendment issue was not reached.

ADARAND CONSTRUCTORS v.SLATER US SupCt, No.99-295, January 12, 2000.align="center" [Another decision in this long drawn out case. See the case for the facts and background.] On writ of certiorari to the 10th Circuit Court of Appeals, the Court reverses and remands to the 10th Circuit its decision which found the action to be moot. Finding that the 10th Circuit had "confused mootness with standing" and that the respondent did not meet the heavy burden of asserting mootness. The Opinion concludes with the following: align="center""It is no small matter to deprive a litigant of the rewards of its efforts, particularly in a case that has been litigated up to this Court and back down again. Such action on grounds of mootness would be justified only if it were absolutely clear that the litigant no longer had any need of the judicial protection that it sought. Because that is not the case here, the petition for writ of certiorari is granted, the judgment of the United States Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.align="center" It is so ordered."

ARIZONA DEPARTMENT OF REVENUE, PETITIONER v. BLAZE CONSTRUCTION COMPANY, INC., US SupCt, No. 97-1536, March 2, 1999. In an opinion by Justice Thomas, the Court holds that a State generally may impose a nondiscriminatory tax upon a private company’s proceeds from contracts with the Federal Government, when the federal contractor renders its services on an Indian reservation. PDF Version

DEPARTMENT OF THE ARMY, PETITIONER v. BLUE FOX, INC., US SupCt, No. 97—1642, January 20, 1999. The Supreme Court unanimously reversed the Ninth Circuit’s panel decision in our Blue Fox case. In an opinion authored by the Chief Justice, the Court held that the APA does not waive sovereign immunity to permit an unpaid subcontractor to bring an action against the United States. The Court ruled that as a form of substitute and not specific relief, Blue Fox’s action to enforce an equitable lien fell outside the scope of the APA’s waiver of sovereign immunity for relief "other than money damages." The Court noted that its decision was consistent with long-standing precedent establishing that sovereign immunity bars creditors fr10 The United States, as amicus curiae, challenges the District Court’s analysis. The Government argues that there is no basis in the text of the FCA for distinguishing between a fraudulently inflated bid and a fraudulently deflated one, and maintains that FCA liability should attach to claims under any fraudulently induced contract. See Br. for the United States at 14-15. The United States further claims that there are at least two reasons why the Government might reject a low bid if it knew it was fraudulent. First, the Government has an interest in preserving the integrity of the bidding process. Second, a low bid carries the risk of the bidder’s default if it wins the contract. See id. at 21-23. We need not resolve this dispute. Because we conclude that, on the evidence in this case, no reasonable jury could findom attaching or garnishing funds in the Treasury and from enforcing liens against property owned by the United States. PDF Version

Hughes Aircraft Co. v. U.S. ex rel. Schumer , US SupCt, No. 95-1340, 6/16/97. Court holds that 1986 amendment to False Claims Act did not apply retroactively to pre-1986 conduct.

Circuit Courts

Dennis Larson v. Granite Re Inc., 8th Cir. No. 07-1186/1188, July 07, 2008. Payment bond claim disputes between surety and subcontractors to a BIA contract with The Chippewa Band of Indians. Circuit court affirms the District Court decision that claims arising prior to the contract guaranteed by the bond are not recoverable. [Is this the way business is conducted?-jaw]

Nelson v. NASA, 9th Cir. No. 07-56424, June 20, 2008. Earlier January 11, 2008 opinion vacated and replaced. Not a contract case, but interesting. CALTECH employees challenge NASA’s recently adopted requirement that “low risk” contract employees like themselves submit to in-depth background investigations. In summary the court finds “Appellants have demonstrated serious questions as to their informational privacy claim, and the balance of hardships tips sharply in their favor. We therefore conclude that the district court abused its discretion in denying Appellants’ motion for a preliminary injunction, and we reverse and remand.”

US v. DAVID H. SAFAVIAN, DC Cir. No 06-3139, June 17, 2008. The court overturns the conviction of the former OFPP Administrator and orders a new trial.

Taylor v. Sturgell, Acting Administrator, Federal Aviation Administration, et al, SC No. 07-371, June 12, 2008. FOIA case. The court rejects the theory of preclusion by “virtual representation” relied upon by the DC Circuit and vacates and remands the case. Appellant was precluded by the lower courts from litigating an FOIA request because an “associate” had lost an earlier FOIA appeal for the same documents.

US ex rel. Wilson v. Graham County Soil et al, Fourth Cir. No.07-1322, June 09, 2008. False Claims Act case. Court vacates and remands noting that “We conclude that the public disclosure bar applies to federal administrative audits, reports, hearings or investigations, but not to those conducted or issued by a state or local governmental entity. Factual questions remain in this case, however, about whether an investigation and report issued by a federal agency satisfy certain other requirements of the public disclosure bar, and those factual issues must be resolved by the district court in the first instance. Accordingly, we vacate the district court’s decision rejecting Wilson’s claims and its decision denying the defendants’ request for attorneys’ fees, and we remand for further proceedings.”

Lane et al v. HALLIBURTON, et al, 5th Cir. No. 06-20874, May 28, 2008. The 5th Circuit reverses and remands the district court decision which had dismissed tort actions against Halliburton from deaths and injuries in Iraq as nonjusticiable under the political question doctrine. The circuit court concludes “that the case needs further factual development before it can be known whether that doctrine is actually an impediment.” Good discussion of the political question doctrine and the Supreme Court decision in Baker v. Carr, 369 U.S. 186, 217 (1962).

UNITED STATES OF AMERICA ex rel. DAVID L. WILSON, JAMES WARREN, Plaintiff-Appellant, v. KELLOGG BROWN & ROOT, No. 07-1516 INCORPORATED; KBR, INCORPORATED; KELLOGG BROWN & ROOT SERVICES, INCORPORATED; SERVICES EMPLOYEES INTERNATIONAL, INCORPORATED, Defendants-Appellees, Fourth Circuit Court of Appeals, No, 07-1516, May 16, 2008. Qui tam False Claims Act case, LOGCAP contract. Relators claim, among other items, that the signing of a DD 1155 was a false claim. The court affirms the district court denial for leave to file a third amended compliant. Judge Wilkinson begins the opinion with this paragraph-“Since initiating this litigation, Relators have consistently sought to shoehorn what is, in essence, a breach of contract action into a claim that is cognizable under the False Claims Act. This misguided journey must come to an end. If every dispute involving contractual performance were to be transformed into a qui tam FCA suit, the prospect of litigation in government contracting would literally have no end. The district court properly recognized this danger, and we affirm its judgment.”

MARIE BERNADETTE MENDIONDO v. CENTINELA HOSPITAL MEDICAL CENTER, 9th Cir. No. 06-55981, April 01, 2008. Retaliation claim under the Federal and California False Claims Acts. Ninth Circuit reverses the District court and holds “that the notice pleading standard in Federal Rule of Civil Procedure 8(a) applies to claims for wrongful termination under the FCA and CFCA.”

BIODIVERSITY CONSERVATION ALLIANCE v. RICHARD C. STEM, US Forest Service, 10th Cir. No. 07-1061, March 18, 2008. EAJA case. Court reverses the award by the District Court of attorney fees based on the lower court’s finding that Biodiversty was a prevailing party. Following Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) the Circuit court holds that neither the mootness of the case below or the issue of a preliminary injunction resulted a judicial determination that “must lend judicial teeth to the merits of the case.”

In re "Agent Orange" Prod. Liability Litig., 2nd Cir. No. 5-1760-cv, Decided 02/21/08, Eratta March 25, 2008. The 2nd Circuit affirms the lower court upholding the government contractor defense in these Agent Orange cases.

United States of America, ex rel, ROBERT DANIEL MARCY, on behalf of the United States of America, c/o James Letten & John Ashcroft Plaintiff - Appellant v. ROWAN COMPANIES INC; NEWFIELD EXPLORATION GULF COAST, INC, formerly known as EEX Corporation; NEWFIELD EXPLORATION CO; REMINGTON OIL & GAS CORP, Fifth Circuit No. 06-31238, March 05, 2008. Qui tam False Claims Act case. Appellant appeals the dismissal of its case for failure to state a FCA claim. Appellant argued that when “Defendants intentionally failed to report the discharge of oil or hazardous substances as required ..., and that Defendants intentionally omitted a record of the discharges ... ” it committed a FCA violation under defendants’ oil and gas lease granted by the US. The Fifth Circuit affirms finding that appellants fails the materiality test holding that “Because the environmental requirements that Marcy references were not prerequisites to continuation of the lease, Marcy fails to state a claim under Section 3729(a)(2).” Regarding the reverse FCA issue the court notes that the “allegation that Defendants submitted the false certification to avoid potential environmental liability is legally insufficient to make a reverse false claim under Section 3729(a)(7).”

MICHELLE HOYTE, BRINGING THIS ACTION ON BEHALF OF THE UNITED STATES OF AMERICA, APPELLANT, UNITED STATES OF AMERICA, APPELLEE v. AMERICAN NATIONAL RED CROSS, DC Cir. No. 06-5230, March 04, 2008. Qui tam False Claims Act case. Hoyte appeals the dismissal by the district court after the government moved to dismiss pursuant to 31 USC 3730(c)(2)(A). Following Swift v. United States, 318 F.3d 250 (D.C. Cir. 2003), which concluded that the government had an unfettered right to dismiss under 3730(c)(2)(A), the court affirms the dismissal. The court rejects the request “to recognize a new exception for a dismissal ‘clearly contrary to manifest public interest,’” The court also rejects the retaliation claim, for which Judge Tatel dissents.

John Timson v. Sophia M. Sampson, et al, and THE UNITED STATES Ex. Rel. 11th Cir. No. 07-12797, February 27, 2008. Qui tam case. 11th Circuit affirms the dismissal if this pro se case. The court agrees with the 7th, 8th and 9th circuits which have held that a pro se plaintiff may not maintain a qui tam action as the real party in interest is the United States.

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION, 2nd Cir. No. 05-1760-cv, February 22, 2008. Plaintiffs are military veterans who claim injury from “Agent Orange” manufactured by defendants under government contracts. Court affirms summary judgment for defendants on the government contractor defense. (See companion case, Isaacson v. Dow Chemical Co., affirming the decision to refuse to remand to the state courts and agreeing that district court had jurisdiction over these actions under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Good discussion of the Government Contractor Defense as set out in Boyle v. United Technologies Corp., 487 U.S. 500 (1988).

Canadian Commercial Corporation And Orenda Aerospace Corporation, Appellees V. Department Of The Air Force, Appellant, DC Cir. No. 06-5310, January 29, 2008. FOIA case, Air Force contract. The DC Circuit court affirms the decision by the district court which, upon finding that the Air Force’s decision to disclose prices was arbitrary and capricious, had enjoined the Air Force from releasing line-item price information. The court rejects the argument of the Air Force that line-item prices do not come within Exemption 4 of the FOIA. The court also rejects the argument that FAR 15.503(b)(iv) requires the disclosure of unit prices pointing out that 15.506(e)(1) precludes the release of any information ... exempt from release under the Freedom of Information Act. Judge Tatel writes a concurring opinion

Nelson et al v. NASA et al, 9^th Cir. No. No. 07-56424, January 11, 2008. Not a contract case, but interesting. CALTECH employees challenge NASA’s recently adopted requirement that “low risk” contract employees like themselves submit to in-depth background investigations. The court states “The district court denied Appellants’ request for a preliminary injunction, finding they were unlikely to succeed on the merits and unable to demonstrate irreparable harm. Because Appellants raise serious legal and constitutional questions and because the balance of hardships tips sharply in their favor, we reverse and remand.”

SCHOOL DISTRICT OF THE CITY OF PONTIAC, et al., Plaintiffs-Appellants, v. SECRETARY OF THE UNITED STATES DEPARTMENT OF EDUCATION, Defendant-Appellee. Sixth Cir. No. 05-2707, January 07, 2008. Financial assistance case. 6^th circuit reverses the district court which had dismissed this challenge to the “No Child Left Behind Act of 2001(NCLB)”. The court examines 20 USC 7907(a) which prohibits the Federal Government from mandating a State “to spend any funds or incur any costs not paid for under this chapter.” and reverses noting that “Because statutes enacted under the Spending Clause of the United States Constitution must provide clear notice to the States of their liabilities should they decide to accept federal funding under those statutes, and because we conclude that NCLB fails to provide clear notice as to who bears the additional costs of compliance ... ” Judge McKeague dissents.

TINA MARIE GONTER; CHARLES WILLIAM GONTER, bringing this action on behalf of the United States of America, as relators, Plaintiffs-Appellants (06-4184)/ Cross-Appellees, UNITED STATES OF AMERICA, Interested Party, v. HUNT VALVE COMPANY, INC., et al., Defendants, GENERAL DYNAMICS, MARINE SYSTEMS DIVISION, ELECTRIC BOAT, Defendant-Appellee/ Cross-Appellant (06-4256), NORTHRUP GRUMMAN NEWPORT NEWS, formerly known as Newport News Shipbuilding, Defendant-Appellee/ Cross-Appellant (06-4266), Sixth Circuit Nos. 06-4184/4256/4266, December 18, 2007. False Claims Act fee litigation. Plaintiff law firm appeals the district courts determination of fees arguing that greater fees were justified. Defendants appeal arguing the plaintiff does not have standing to appeal and that fees awarded by the distract court were excessive. The 6th Circuit affirms the district court’s fee determination as within the discretion of the judge, but does increase the amount claimed for the fee litigation portion of the case. Recognizing that is a case of first impression for the 6^th Circuit, the Circuit court also finds that plaintiff law firm does have standing, as the real party of interest, following decisions of the 5^th and 7^th circuits.

UNITED STATES OF AMERICA FOR THE USE AND BENEFIT OF E & H STEEL CORPORATION vs. C. PYRAMID ENTERPRISES, INC.; FIDELITY & DEPOSIT COMPANY OF MARYLAND; and ZURICH AMERICAN INSURANCE COMPANY, 3^rd Cir. No. 06-4209, November 27, 2007. Miller Act case. Pyramid was the prime on an Air Force construction contract. Pyramid issued a purchase order to Havens Design-Build to provide custom fabricated structural steel. Havens contracted with E&H Steel to fabricate the steel and deliver it to the construction site. Havens was paid by Pyramid but went bankrupt before paying E&H. E&H brought suit against Pyramid and its sureties, asserting entitlement to reimbursement from the Miller Act payment bond. The Circuit court reverses the district court that had held that “Havens was a material supplier and not a ‘subcontractor’ under the Miller Act. Therefore, E & H was not entitled to recover on the bond.” In finding that Havens was a subcontractor Judge Weis’ opinion presents a good discussion of the issue and case law.

ABHE & SVOBODA, INC. v. ELAINE CHAO, SECRETARY, UNITED STATES DEPARTMENT OF LABOR, DC Cir. No. 06-5305, November 23, 2007. Appellant challenges the withholding of contract payments for violation of the Davis-Bacon Act. The court affirms “that the district court correctly dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) the contractor’s claims of estoppel, failure to follow Department regulations, and denial of due process by failing to give fair consideration to the contractor’s challenges to the job classification determination.” The court dismisses for lack of subject matter jurisdiction the contractor’s claim that a limited area practice survey was not supported by substantial evidence. The court also affirms “the grant of summary judgment to the Secretary on the contractor’s claim that the Department violated due process by failing to give fair notice of the requirement to abide by local practices regarding job classifications.” Regarding notice to the contractor the court first notes that parties dealing with the government are expected to know the law, and then states that a commercial reporter (CCH) carried a relevant Wage Appeals Board decision. The court notes “While this case is not officially published, its inclusion in a commercial reporter and its treatment in subsequent judicial and administrative cases provide adequate notice that contractors must use the job classifications of signatory unions when wage determinations are based on collective bargaining agreements.”

Jeanette McMahon et. al. v. Presidential Airways, 11^th Cir. No. 06-15303, October 05, 2007. Plaintiffs in the District court were representatives of Army soldiers who were killed when the aircraft operated by Presidential under contract to DOD crashed in Afghanistan. Presidential now appeals the denial by the district court of its motion that “the suit is barred by the principles of Feres v. United States, 340 U.S. 135, 71 S. Ct. 153 (1950), the political question doctrine, and the combatant activities exception to the Federal Tort Claims Act (FTCA).” In a 72 page opinion the 11^th circuit affirms the lower court. Good discussions of derivative Feres immunity and the political question issues.

EXPERIMENTAL HOLDINGS, INC. v. Secretary of Commonwealth of Kentucky Finance and Administration, 6^th Cir. No. 06-6394, September 25, 2007. Bid protest of contract for lease of real property. The Circuit court affirms the District Court’s dismissal of EHI’s claim based on a deprivation of property without due process, brought under 42 U.S.C. § 1983. EHI had alleged that the State had limited discretion under the Kentucky procurement statutes and it abused that discretion. The Circuit court notes that even if it assumes “that the procedural requirements outlined in the statute were not followed, EHI’s claim fails because it ‘cannot have a protected property interest in the procedure itself.’” Lacking a substantive right to the contract the to the contract, EHI has not asserted a cognizable property interest, and the district court was therefore correct in dismissing plaintiff’rsquo;s federal law claim.

UNITED STATES OF AMERICA v. BARBARA LESSNER, 3^rd Cir. 06-1030, August 08, 2007. Defendant was a Procurement Contracting Officer, Team Leader, at the Defense Supply Center in Philadelphia and pled guilty to 21 counts of wire fraud, defense procurement fraud, and obstruction of justice. She appeals several elements of her 51-month sentence and a $938,965.59 order of restitution. The court affirms, upholding all of the trial judges actions. Good case detailing procurement issues.

UNITED STATES OF AMERICA ex rel. LOUANNE BOOTHE, Plaintiff-Appellant, v. SUN HEALTHCARE GROUP, INC., 10^th Cir.No. 06-2156, August 07, 2007. False Claims Act case. The court reverses the district court which had dismissed the case after determining that it had no jurisdiction finding that three of plaintiff’s ten allegations were based upon information already in the public domain and that plaintiff was not an original source of that information. In reversing and remanding the 10^th circuit notes “We agree jurisdiction is lacking with respect to the three claims the district court analyzed. While we have not yet had occasion to address whether, as the district court’rsquo;s holding suggests, a deficiency in one claim precludes jurisdiction over all claims joined in the same lawsuit, today we clarify that it does not. Just as finding three bad apples does not necessarily warrant discarding the barrel, we hold that an independent jurisdictional analysis of each of Ms. Boothe’s remaining seven claims of fraud is necessary, and accordingly remand for further proceedings.”

UNITED STATES OF AMERICA, EX REL; PHIL HEFNER, UNITED STATES OF AMERICA, EX REL. v. HACKENSACK UNIVERSITY MEDICAL CENTER; CENTER FOR INFECTIOUS DISEASES, P.A.; NORTH JERSEY PRIMARY CARE ASSOCIATES, P.A., 3^rd Cir. No. 06-2287, July 17, 2007. FindLaw Synopsis: In a qui tam action under the False Claims Act involving, inter alia, alleged false Medicare claims and invoices, an order denying reconsideration of summary judgment for defendants and denying an alternate remedy pursuant to 31 U.S.C. section 3730(c)(5) is affirmed where: 1) the district court properly found that plaintiff did not present sufficient evidence for a reasonable jury to conclude that defendants' conduct satisfied the FCA's scienter requirement; 2) there was no evidence that plaintiff's employer knew that he was acting in furtherance of an FCA claim when it fired him, for purposes of a retaliation claim; and 3) the district court properly rejected a claim to a share of money repaid by defendant to the government. A relator is not entitled to a share in the proceeds of an alternate remedy when the relator's qui tam action under section 3729 is invalid.

UNITED STATES OF AMERICA ex rel. EDWARD BOGART et al v. KING PHARMACEUTICALS et al., 3^rd Cir. No. 06-2098, July 16, 2007. FindLaw Synopsis: In qui tam litigation brought against pharmaceutical companies, a district court's ruling rejecting plaintiff's claim for additional attorney's fees following certain settlements is affirmed over plaintiff's meritless contentions that he was entitled to be paid up to one-third of those settlements' total as attorney's fees under a common fund theory of recovery.

DUNN & BLACK, P.S., Plaintiff-Appellant, and FIDELITY DEPOSIT COMPANY OF MARYLAND, a Maryland corporation; AMERICAN GUARANTY & LIABILITY INSURANCE COMPANY, a New York corporation, Intervenors, v. UNITED STATES OF AMERICA, Defendant-Appellee, and ENVIRONMENTAL RECLAMATION INC., an Idaho corporation, 9^th Cir. No. No. 05-35766, July 11, 2007. Interesting case. Underlying contract with the FHWA. The court describes the case as “We must decide whether a law firm can bring an action against the United States to recover attorney’s fees from monies that its client was awarded as a result of a settlement with the Federal Highway Administration, but never received because the Internal Revenue Service requested that payment be withheld to offset unpaid tax liabilities.” The court vacates the district court’s summary judgment for the government and orders the case to be dismissed as the court lacked jurisdiction to hear the law firm’s case.

Donald Greer v. Elaine Chao, Secretary of the United States Department of Labor, 8^th Circuit No. 06-2246, July 09,2007. Appellant Greer filed an complaint with OFCCP alleging that his employer, Eaton Corporation, failed to comply with the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). OFCCP investigated and notified Greer that it would not seek enforcement actions as it had not found sufficient evidence that Eaton had violated VEVRAA. Greer filed suit in the district court seeking APA review of the agency action. The District Court granted summary judgment to the Secretary of Labor and Greer appeals. In an opinion by Associate Justice O'Connor, sitting by designation, the 8^th circuit affirms holding that “the Secretary of Labor’s response in this case represents a decision committed to agency discretion and is, therefore, immune from judicial review.”

United States of America, ex rel; PATRICIA LAIRD; ET AL, Plaintiffs, United States of America, ex rel; JAMES MAYFIELD, Plaintiff-Appellant, versus LOCKHEED MARTIN ENGINEERING & SCIENCE SERVICES CO. Defendant-Appellee, 5^th Cir. No. 06-20225, June 27, 2007. FCA qui tamcase, NASA CPAF contract. Court affirms the grant of Lockheed’s motion for summary judgment by the District court which found that “(1) there was no evidence that Lockheed submitted a false bid within the meaning of the FCA; (2) the parties had established a postcontract relationship that precluded FCA liability; (3) Lockheed’s 533 cost projections were neither false nor material and therefore not false claims; and (4) NASA ratified Lockheed’s facilities overcharges.“

UNITED STATES OF AMERICA v. JOHN VITILLO, VITILLO CORPORATION and VITILLO ENGINEERING, INC., 3^rd Cir., Nos. 05-4330/4331/4332, June 25, 2007. Vitillo and the named firms were convicted under 18 USC 666 , “Theft or bribery concerning programs receiving Federal funds.” Vitillo (and the named firm) was a contractor for the Reading Regional Airport Authority (the Authority or RRAA), a local government agency that received significant funding from the Federal Aviation Administration. The court affirms the conviction and holds that an independent contractor, such as Vitillo, is an agent under 18 USC 666 which governs conduct of “an agent of an organization, or of a State, local, or Indian tribal government or any agency thereof”

UNITED KINGDOM MINISTRY OF DEFENCE, Secretary of State for Defence, as represented by the United Kingdom Ministry of Defence, Defence Procurement Agency, v. TRIMBLE NAVIGATION LIMITED, 4^th Cir. No. 06-1062, May 10, 2007. See earlier 4^th circuit opinion which had held that the CDA did not apply to a suit by a third party beneficiary. The Fourth Circuit now affirms a district court decision which held a foreign government is not a third-party beneficiary of a contract for military goods between the United States and a domestic military contractor, where the foreign government agreed to purchase those goods from the United States under the Foreign Military Sales program. The majority concludes “In sum, recognizing a beneficiary right of UK MOD to enforce the U.S.-Trimble agreements would be contrary to the intent and structure of the AECA[Arms Export Control Act], as well as contrary to the intent of the United States, as evidenced by the U.S.-Trimble agreements and the LOA[Letter of Agreement]. Because underlying statutory law prohibits the recognition of third-party beneficiary status and because the intent of the United States was not to create such status for UK MOD via the U.S.-Trimble agreements, the district court was correct in dismissing UK MOD’s complaint.” Judge Traxler dissents

UNITED STATES OF AMERICA v. GEORGIA L. THOMPSON, 7th Cir No. 06-3676, April 20, 2007. State procurement official’s conviction over turned by the Seventh Circuit. Interesting case. Also see blog discussing this case.

In Re: BALTIMORE MARINE INDUSTRIES, INCORPORATED, Debtor. ALAN M. GROCHAL, Appellant, and MAERSK LINE, LIMITED; MILITARY No. 06-1206 SEALIFT COMMAND, Plaintiffs, v. OCEAN TECHNICAL SERVICES CORPORATION; MCALLISTER TOWING OF BALTIMORE, INCORPORATED, Defendants-Appellees, 4^th Cir. No. 06-1206, February 09, 2007. Bankruptcy case. Fourth Circuit vacates and remands a decision that “awarded the funds directly to the subcontractors and thus excluded the sums from the contractor’s bankruptcy estate.” The court distinguishes Pearlman v. Reliance Insurance Co., 371 U.S. 132 (1962), relied upon by the District court and notes that Pearlman dealt with the rights of a surety, not subcontractors. The decision holds “Because an unpaid subcontractor is not subrogated to the contractor’s interest in the funds, the contractor’s interest remains and must be included in the bankruptcy estate. Consequently, the bankruptcy court and district court erred in relying upon Pearlman to award the interpleaded funds directly to OTS.”

UNITED STATES OF AMERICA, ex rel., PAUL E. ATKINSON; EUGENE SCHORSCH v. PA. SHIPBUILDING CO.; FIRST FIDELITY BANK, N.A.; SUN SHIP, INC., 3^rd Cir. No. 04-3374, January 12, 2007. False Claim Act case, Navy shipbuilding contract. Th court affirms the dismissal by the District Court of all counts for jurisdictional reasons, The court concludes “We hold that Atkinson’s FCA action must be dismissed in its entirety under FED. R. CIV. P. 12(b)(1) for want of jurisdiction. All of the allegations and transactions involved in each of the counts were publicly disclosed under § 3730(e)(4)(A). Moreover, Atkinson is not an original source of any of the allegations or transactions including the defendants’ failure to record, and failure to ensure recordation, of the instruments named in the Trust Indenture. We conclude that a plaintiff/relator cannot rely solely on information available in the public domain to substantiate original source status under § 3730(e)(4)(B). Such a relator does not have direct and independent knowledge of the information that forms the basis of the FCA claim. 31 U.S.C. §§ 3730(e)(4)(A)-(B).”

UNITED STATES OF AMERICA ex rel. ROGER L. SANDERS and ROGER L. THACKER, v. ALLISON ENGINE COMPANY, INC., GENERAL MOTORS CORPORATION, GENERAL TOOL COMPANY, and SOUTHERN OHIO FABRICATORS, 6^th Cir. No. 05-3502, December 19, 2006. False Claims Act case, Navy contract. Relators allege false claims submitted by a second tier subcontractor that were ultimately paid by the government. The district court found for the defendants because the allegedly false claims were not presented to the government, following the DC Circuit in US ex rel Edward L. Totten v. BOMBARDIER CORPORATION AND ENVIROVAC, INC.,DC Cir. No. 03-7128, August 27, 2004. The Sixth Circuit reverses disagreeing with Totten. Judge Gibbons’ opinion held- “ The plain language of the statute, the legislative history, and the decisions of the Supreme Court and other courts lead us to conclude that the district court and the Totten court erred in reading a presentment requirement into all subsections of the False Claims Act. We hold that while liability under § 3729(a)(1) turns on whether a claim has been presented to the government, subsections (a)(2) and (a)(3) do not require such a showing. Rather, a relator under these two subsections must show that government money was used to pay the false or fraudulent claim. This requirement comports with the policy rationale behind the FCA—protecting the government fisc—while ensuring that the statute applies only to claims submitted to the government and not to private entities.” Judge Batchfelder dissents.

UNITED STATES OF AMERICA, ex rel., Plaintiff, and CHARLOTTE RAE BLY-MAGEE, Plaintiff-Appellant, v. BRENDA PREMO; CATHERINE CAMPISI; JIM KAY; WARREN HAYES, a/k/a Ronald E. Glousman, MD; KEITH S. FOSTER; EDNA LARSON; KENNETH SMEDBERG; VERNE ALBRIGHT; LOS ANGELES COUNTY DEPARTMENT OF MENTAL HEALTH, e/s/a County of Los Angeles; LOS ANGELES COUNTY OFFICE OF EDUCATION, 9^th Cir. No. 05-55556, December 13, 2006. False Claims Act case. The Ninth circuit, agreeing with the Eighth Circuit, holds that a published audit report by a state agency is a “public disclosure” under 31 U.S.C. § 3730(e)(4)(A).

THE UNITED STATES v. Capital Sand Co., Inc. in rem, 8^th Cir. No. 05-3405, October 25, 006. Admiralty case. Court affirms the District court decision awarding Corps of Engineers overhead as an element of damages resulting from the allision of a barge with a lock. The majority opinion states that “We hold that the Corps need not establish a direct connection between overhead charges and a particular repair project, but may recover overhead charges that are justified by a reasonable relationship to the repair work.” Judge Bye dissents, reasoning that precedent requires that “the overhead arose naturally and is factually related to the particular breach.” [I learn something new-“allision” is a noun meaning -the striking of one ship by another.-jaw]

THE UNITED STATES v. T&W EDMIER CORP, 7^th Cir. No. 06-1237, October 10, 2006. Corps of Engineers contact. Edmier filed a claim with the CO who decided that Edmier was due $3.5 million and the government paid that amount. Edmier appealed that decision and the ASBCA found that Edmier was only entitled to $1.9 million. The government then filed a collection action in the District court to recover the excess $1.6 million. The District court found for the government. Edmier argues that the suit should be dismissed for lack of jurisdiction because the CDA required the government to submit the dispute to the CO for an administrative decision. The 7^th Circuit, finding Edmier’s CDA argument a “mystery”, holds otherwise noting that “Because the Contract Disputes Act allows the [ASBCA] to make an independent decision and decrease as well as increase the award, there is no reason to rerun the process before the United States may collect any net balance in its favor.”

Brooklyn Legal Services Corp. B and Legal Services for New York City, et al. v/. Legal Services Corporation, 2^nd Cir. Nos. 05-0340-cv(L), 05-0360-cv(CON), 05-0787-cv(CON), 05- 0792-cv(CON),05-0925-cv(XAP), September 08. 2006. The Second Circuit Court of Appeals ruled earlier this month in an ongoing Legal Services Corporation case dealing with limitations on Federal grantees' activities involving non-Federal funds. Some LSC grantees sued on constitutional grounds to prevent LSC from enforcing a regulation requiring grantees to separate themselves physically and financially from any “affiliate” organizations that perform work prohibited by an appropriations law. Some of the restrictions include participating in class action suits, seeking attorneys' fees, and personally soliciting clients. The Second Circuit did not resolve the constitutionality issue, but vacated a preliminary injunction entered by a district court and ordered that court to apply a different legal standard to the rule. The case has also been known as Velazquez v. Legal Services Corp. or Dobbins v. Legal Services Corp.

UNITED STATES OF AMERICA; STATE OF CALIFORNIA, ex rel. ROMAN ZARETSKY; ROBERT YARDLEY, Plaintiffs-Appellants, v. JOHNSON CONTROLS, INC.; MICHAEL MATHES; RICHARD BEDDIE, Defendants-Appellees, and MICHAEL PUTICH, 9^th Cir. No. 04-55536, August 09, 2006. Federal and California False Claims Act case. Relators filed a civil action in state court alleging bid rigging which was voluntarily dismissed. Relators subsequently filed a qui tam action which was dismissed by the District Court. “The district court granted [Johnson Control’s] motion on the ground that there was no subject matter jurisdiction under 31 U.S.C. § 3730(e)(4). The court held that to qualify as an ‘original source’ under the FCA, a prospective relator must provide the government with the pertinent information prior to the ‘public disclosure’ at issue if, but only if, the ‘public disclosure’ occurs through a private lawsuit brought by the prospective relator.” The Ninth Circuit reverses holding “ the federal and state statutes do not require that an individual report relevant information to the government prior to the ‘public disclosure’ at issue to qualify as an ‘original source.’” [Good discussion of issues and cases-jaw]

PATRICIA A. LUNA v. THE UNITED STATES, 7th Circuit No. 04-4143, July 17, 2006. Court affirms judgment in favor of the U.S. in a suit arising out of injuries to a contractor employee on a Naval base where the U.S. Navy was the plaintiff’s “borrowing employer,” and thus immune to tort suits under the Illinois Workers Compensation Act.

MISTICK PBT, D/B/A MISTICK CORPORATION v. ELAINE CHAO, SECRETARY, UNITED STATES DEPARTMENT OF LABOR DC Cir. No. 04-5340, March 17, 2006. The Court affirms the District Court’s dismissal of this action involving the Department of Labor’s conformance regulations, 29 C.F.R. § 5.5(a)(1)(ii)(A), which explain how the Secretary of Labor determines the wages for a type of job that is left out of the Department’s pre-bid wage decision for Davis-Bacon Act prevailing wage determinations. The Court, however, disagrees with the District court which held that under “United States v. Binghamton, 347 U.S. 171, 176-78 (1954), ... the courts have no jurisdiction to review whether the Secretary’s wage determination correctly represents the ‘wages . . . prevailing, ... ’ ” Instead, while finding that the actions of Labor were not arbitrary and capricious under the APA, the court holds that “In accordance with our prior decision in Ball, Ball & Brosamer, Inc. v. Reich, 24 F.3d 1447, 1451 (D.C. Cir. 1994), we conclude that the Davis-Bacon Act does not provide clear and convincing evidence that Congress sought to preclude review under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq., of violations of Department regulations.”

BONNEVILLE POWER ADMINISTRATION v. MIRANT CORPORATION, 5^th Cir. No.04-11264, February 13, 2006. Bankruptcy case. The court affirms a District court decision finding that BPA violated the automatic stay and rejects the argument by BPA that the Bankruptcy Code “permits it to terminate the executory contract pursuant to the contract’s ipso facto clause. See § 365(e)(2)(A).” The informative Fifth Circuit opinion addresses “the intersection of three relevant statutory provisions: 11 U.S.C. § 362(a) (the automatic bankruptcy stay); 11 U.S.C. § 365(e)(2)(A) (permitting a nondebtor party to an executory contract to terminate or modify such contract when applicable law excuses the nondebtor from accepting or rendering performance to the trustee or an assignee); and the Anti-Assignment Act (or “the Actrtdq b), 41 U.S.C. § 15 (prohibiting transfer of contracts to which the United States is a party).”

UNITED STATES OF AMERICA, ex rel. DR. BRENT GEAR v. EMERGENCY MEDICAL ASSOCIATES OF ILLINOIS, INC., and ILLINOIS/INDIANA EM-1 MEDICAL SERVICES, S.C., 7^th Cir. No. 05-2235 & 05-3202, February 01, 2006. FCA qui tam case. Court affirms the dismissal by the District Court under the public disclosure bar. The court holds that even though the particular defendants here were not named in earlier government reports addressing the type of fraud disclosed here, the action is still barred by the public disclosure provision of the FCA. The court notes “The disclosures at issue here were of industry-wide abuses and investigations. Defendants were implicated. Industry-wide public disclosures bar qui tam actions against any defendant who is directly identifiable from the public disclosures." (citations omitted)

JEFF WALBURN v. LOCKHEED MARTIN CORPORATION; LOCKHEED MARTIN UTILITY SERVICES, INC., 6^th Cir. No. 04-3458, December 20, 2005. False Claims Act qui tam case. Court affirms the dismissal by the District Court under the first-to-file bar of 31 U.S.C. § 3730(b)(5). Plaintiff files a False Claims Act suit based on facts disclosed four years years earlier in 1996 when plaintiff sued Lockheed for compensatory and punitive damages as a result of his exposure to gases at [a plant operated by Lockheed]. In affirming the dismissal the court concludes -“Walburn’s failure to report his allegations of fraud to the federal government before filing his 1996 suit precludes him from enjoying original source status.”

WENDY RENEE BENNETT-NELSON; JOY MARIE BOYKIN v. LOUISIANA BOARD OF REGENTS, Etc.; ET AL., 5^th Cir. No. 03-31198, November 28, 2005. Court reverses District Court which had dismissed action as barred by the Eleventh Amendment. Appellants, hearing impaired students, brought this action under Title II of the Americans with Disabilities Act of 1990 (“ADA”) and § 504 of the Rehabilitation Act of 1973. Circuit court holds that “the University, as a recipient of federal financial assistance, has waived its Eleventh Amendment immunity.”

UNITED STATES OF AMERICA ex rel. Jeffrey E. Main, v. OAKLAND CITY UNIVERSITY, 7^th Cir. No. 05-2016, October 20, 2005. False Claims Act Case arising from 20 USC 1094 which conditions institutional eligibility on a commitment to refrain from paying recruiters contingent fees for enrolling students. The District Court held that even willful falsehoods in the phase one application process do not violate the FCA because no payment from the Treasury is made in that phase of the application. The Circuit Court reverses. After noting that no published decisions exist on “whether a multi-stage process forecloses liability for fraud in the first stage, the answer is No. 05-2016 3 straightforward. The False Claims Act covers anyone who ‘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’ . 31 U.S.C. §3729(a)(2). The University ‘uses’ its phase-one application (and the resulting certification of eligibility) when it makes (or ‘causes’ a student to make or use) a phase-two application for payment. No more is required under the statute.”

Autery v. US , 9^th Cir. No. 04-35105, September 12, 2005. Plaintiffs invoke the Federal Tort Claims Act (FTCA) to alleging negligence by DOE for the failure to maintain firebreaks which resulted in fire damages. DOE had contracted with Fluor, which turn had subcontracted for fire prevention services. The Court affirms the the dismissal by the District Court on the grounds that independent-contractor exception bars this FTCA suit against the United States.

McNutt, ex rel., v. Haleyville Med. Supplies, 11^th Cir., No. 04-14458 11th Cir.,September 09, 2005. MediCare case. The Court answers affirmatively the following question for interlocutory appeal: “whether a violation of the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)[,] can form a basis for a claim pursuant to the False Claim[s] Act, 31 U.S.C. § 3729(a)(1) and 31 U.S.C. § 3729(a)(3).”

UNITED KINGDOM MINISTRY OF DEFENCE, Secretary of State for Defence, as represented by the United Kingdom Ministry of Defence, Defence Procurement Agency, v. TRIMBLE NAVIGATION LIMITED, 4^th Cir. No. 04-1129, September 06, 2005. Fourth Circuit reverses the District Court which found that the Contract Disputes Act (“CDA”) divested district courts of jurisdiction in this Foreign Military Sales case. Writing for the Fourth Circuit, Judge Traxler finds that the procedures mandated by CDA do not apply to a suit by a third-party beneficiary as the CDA only applies to the parties of a government procurement contract. A very interesting case of first impression.

TIMM ADAMS, et al. v. US, 9^th Cir., Nos. 04-35129, 04-35247, 04-35248 and 04-35154, August 23, 2005. Federal Tort Claims Act (“FTCA”) case. The Bureau of Land Management (“BLM”) contracted with helicopter firms to apply herbicide to certain BLM managed lands in Idaho. Plaintiff’s, farmers and landowners, sued the contractors and BLM alleging that improper application of the herbicide had caused it to drift onto their land causing damages. The contractors petitioned the government to certify them as government employees under 28 USC 2671 of the FTCA which defines employees of the United States as including “... persons acting on behalf of a federal agency in an official capacity,...” The government rejected the petition on the ground that certification was not available corporate entities and the District Court affirmed the government’s denial. The Ninth Circuit affirms. Judge Thompson notes that even though the Dictionary Act, 1 USC 1, states that persons includes corporations, the exception “unless the context indicates otherwise”, applies here. Following the guidance of Rowland v. California Men’s Colony, 506 U.S. 194 (1993), the Court determines that the intent of Congress was to individuals, not corporations or other entities.

PATRICK CAMPBELL, M.D., United States of America and State of California ex rel., Plaintiff-Appellant, UNITED STATES OF AMERICA, Intervenor-Appellee, v. REDDING MEDICAL CENTER, a California corporation; et al., 9^th Cir. No. 03-17082, August 22, 2005. False Claims Act case. The first-to-file bar of 31 USC 3730(b)(5) does not bar the “filing of a subsequent related action when the first action is jurisdictionally defective because the relator was not an original source of publically disclosed information.”

United States of America, ex rel, DOUGLAS W. WILLIAMS, v. BELL HELICOPTER TEXTRON INC., 5^th Cir. No. 04-10468, July 13, 2005. False Claims Act case, Marine contract. The government did not intervene. Fifth Circuit affirms the District Court’s dismissal of relator’s case for failure to plead with particularity. The US appeals the District court decision that also dismissed the complaint against the United States with prejudice. In dismissing the complaint the District court stated that it believed “the United States has had ample opportunity to participate in the prosecution of those claims if she had any notion that any of them has the slightest merit.” The Circuit court disagrees and modifies the judgment to be without prejudice to the US. The opinion finds that the dismissal “was unwarranted where, as here, the relator’s claims were dismissed on a Rule 12(b)(6) motion based on a lack of specificity in the complaint as required by Rule 9(b).”

UNITED STATES ex rel. SANFORD GROSS v. AIDS RESEARCH ALLIANCE-CHICAGO, 7^th Cir. No. 04-2566, July 06, 2005. NIH sponsored research grant. Qui tam case.Court affirms the dismissal of the case for the failure to plead with specificity that “a false statement is used to get a false or fraudulent claim paid or approved by the Government.” The court also notes “It was not incumbent upon the district judge to become an expert in all of the regulations governing NIH grant compliance so that he could piece together a theory on why any particular form listed in the second amended complaint might have fraudulently caused the government to cut a check. False claim allegations must relate to actual money that was or might have been doled out by the government based upon actual and particularlyidentified false representations. On this, the complaint is silent.”

JEROME STEVENS PHARMACEUTICALS, INC. v. FDA, DC Cir. No. 04-5238, April 08, 2005. Trade Secrets, not a contract case. Plaintiff submitted trade secrets and confidential information to the FDA as part of a New Drug Application. The government subsequently published the information on a publicly available web site. Plaintiff brought FTCA and APA claims in the district court, which dismissed the claims. The Circuit court reverses the dismissal of the tort claims and remands to the district court. The court finds that the disclosure of the information may have violated several statutes, including 18 USC 1905, and that the pleadings should not have been construed as linking the disclosure to other actions of the FDA which were properly discretionary functions of the government.

AMERICAN JEWISH CONGRESS, APPELLEE v. CORPORATION FOR NATIONAL AND COMMUNITY SERVICE, APPELLANT UNIVERSITY OF NOTRE DAME, APPELLANT, DC Cir. No. 04-5317, March 08, 2005. Financial assistance case involving grants to educational institutions which trim AmeriCorps participants. DC Circuit reverses the District Court which had “found that the practice of permitting individual participants to teach religion in addition to secular subjects and the $400 cash grants to sponsoring organizations result ‘in impermissible government indoctrination in violation of the establishment clause of the First Amendment.’ ” In reversing the court relies on recent decisions upholding programs of true private choice, particularly Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002), which it believes controls this case. The court concludes “The government does not promote religion in violation of the Establishment Clause when it reimburses all grantees, religious and secular alike, for a portion of the costs they incur in complying with the requirements of the AmeriCorps program.”

KEVIN O’ROURKE v. SMITHSONIAN INSTITUTION PRESS and THE SMITHSONIAN INSTITUTION, 2^nd Cir., No. 04-0151-cv, February 16, 2005. Plaintiff appeals a District Court decision dismissing its claim for copyright infringement against the Smithsonian Institution for lack of jurisdiction. The District Court held that 28 USC 1498(b) provided the US Court of Federal Claims with exclusive jurisdiction for copyright claims against the United States. The Circuit court rejects the arguments by O’Rourke that the Smithsonian should not be included within the phrase “United States” in 1498(b). The Court concludes “... that the Smithsonian is within the term "the United States" in 28 U.S.C. § 1498(b). That section waives sovereign immunity with respect to copyright infringement claims brought against the United States, but only to the extent that such claims are brought in the United States Court of Federal Claims. Accordingly, we affirm the judgment of the district court, dismissing the present action for lack of subject matter jurisdiction.” Good discussion of legislation establishing and the status of the Smithsonian.

DAVID E. RIDENOUR; JEFFREY B. PETERS; MARK GRAF, Plaintiffs-Appellants, UNITED STATES OF AMERICA, ex rel., Plaintiff-Appellee, v. KAISER-HILL COMPANY, L.L.C., and Statutory Agent: Corporation Services Company; WACKENHUT SERVICES LIMITED LIABILITY COMPANY, and Statutory Agent: James A. Dierker; EG&G ROCKY FLATS, INC., and Statutory Agent: C.T. Corporation, 10^th Cir. No. 01-1510, February 09, 2005. Qui Tam case. Court holds that “... the FCA does not require the Government to intervene prior to moving to dismiss a qui tam action... ” Judge Egan dissents stating: “I dissent only on the basis of the majoritys determination that the FCA does not require the Government to intervene prior to moving to dismiss a qui tam action. In my view, where the Government has declined to intervene during the sixty-day seal period, it is required to intervene upon a showing of good cause under 31 U.S.C. § 3730(c)(3) before moving to dismiss the action. I believe a plain reading of the statute requires it, canons of statutory construction support such a result, and such a reading does not render the FCA unconstitutionally infirm.” However, he concurs in the result in the result “because, here, the Government has shown good cause to intervene under 31 U.S.C. § 3730(c)(3), as the district court found, and the reasons for intervention support dismissal under any standard.”

UNITED STATES OF AMERICA EX REL. ALVA BETTIS, APPELLANT v. ODEBRECHT CONTRACTORS OF CALIFORNIA, INC., ET AL., DC Cir. No. 04-5051, January 11, 2005. Qui Tam case, Corps of Engineers contract. The relator relies on the fraud-in-inducement theory arguing that contractor “fraudulently induced the Corps to award it the disputed contract by submitting an intentionally undervalued bid and making other false representations in order to win the contract, with the intention of subsequently obtaining upward modifications to the contract price.” The District Court had granted summary judgment for the contractor on two grounds: one that as a matter of law “where it is alleged that the defendant has submitted a fraudulently deflated bid in order to obtain a contract, a FCA action cannot succeed without proof that one or more requests for payment under the contract were fraudulent in themselves.” (the government filed an amicus contesting this ground); and secondly that relator’s evidence was insufficient to show that the Corps was fraudulently induced to award the contract. The DC Circuit affirms the District Courts decision, but only on the lack of sufficient evidence ground. The Court discusses the fraud-inducement argument but does not resolve that argument as it concludes “that on the evidence in this case, no reasonable jury could find that Odebrecht fraudulently induced the Corps to enter into the contract, we do not address whether a fraud-in-the-inducement claim based on a fraudulent low bid can succeed absent proof that one or more requests for payment under the contract induced by the low bid were false in themselves.”

ex rel. JACK J. GRYNBERG, v. PRAXAIR, INC. and NIELSON & ASSOCIATES, INC., and UNITED STATES OF AMERICA, Intervenor, 10^th Cir. Nos. 01-1214 & 01-1242, November 15, 2004. Qui tam case. Circuit court affirms the District court decision that dismissed the case finding no subject matter jurisdiction as the claim was based on publicly disclosed information and that relator was not the original source. The court, however, reverses the district court’s denial of attorney fees to Praxair. In an opinion by Judge O’Brien, the court follows the 7^th Circuit case in Citizens for a Better Env’t v. Steel Co., 230 F.3d 923 (7th Cir. 2000), and holds that the district court has jurisdiction to decide the attorney fee issue even if it does not have subject matter jurisdiction for the underlying case. Noting that the district court found that there was “...no evidence indicating any Praxair involvement ... other than providing accurate volume and price data...” and concluded that “Praxair was thus totally irrelevant to the royalty underpayments that Grynberg alleges.” the court remands to the district court requiring it to articulate its reasons why Praxair was not entitled to attorney fees.

RUSSELL E. DINGLE, THOMAS L. REMPFER, UNITED STATES OF AMERICA, EX REL.,v. BIOPORT CORPORATION, ROBERT MYERS, 6^th Cir. No. 03-1841, October 28, 2004. Court affirms the dismissal of a qui tam false claims action for lack of jurisdiction due to the public disclosure bar. Court discusses the algebra of transactions referenced in 31 USC 3730(e)(4)a as represented by the DC Circuit as “If X + Y = Z, Z represents the allegation of fraud and X and Y represent its essential elements. In order to disclose the fraudulent transaction publicly, the combination of X and Y must be revealed from which readers or listeners may infer Z, i.e., the conclusion that fraud has been committed.” Finding that “...the allegations and transactions discussed in the public disclosures are sufficiently definite to give the government enough information about possible fraud... ”, the Court affirms the dismissal.

US ex rel Edward L. Totten v. BOMBARDIER CORPORATION AND ENVIROVAC, INC., DC Cir. No. 03-7128, August 27, 2004. Qui Tam False Claims Act case. Statutory interpretation case. In an opinion by Judge Roberts the DC Circuit affirms the district court's dismissal of an alleged false claim submitted to Amtrak. Judge Garland writes a lengthy dissent. Judge Roberts holds that since Amtrak is not a part of the government, the requirement of 31 U.S.C. § 3729(a)(1) that the claim “be presented to an officer or employee of the United States Government ” is a bar to the action. Judge Roberts rejects the statutory interpretation arguments by the government and the dissent that the claim definition of § 3729 (c) which provides that a claim “ includes any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.” mandates an interpretation which allows the claim even if not presented directly to the government. Judge Garland, in dissent, describes the majority as applying the “cannons of statutory destruction.”

United States of America, ex rel., TONI R. BARRON; VICKY J. SCHEEL, v. DELOITTE & TOUCHE, L.L.P.; DELOITE & TOUCHE CONSULTING GROUP, L.L.C.; DELOITTE & TOUCHE CONSULTING GROUP HOLDING, L.L.C.; MEDICAID CLAIM SOLUTIONS OF TEXAS, INC.; NATIONAL HERITAGE INSURANCE CO. 5^th Cir. No. 03-50507, August 11, 2004. False Claims Act case. Court reverses the district court’s holding that National Heritage Insurance Company's (NHIC) role as a Medicaid fiscal intermediary is barred by Texas’s Eleventh Amendment immunity. The court applies the six factor Clark test —1. Whether the state statutes and case law view the agency as an arm of the state; 2. The source of the entity’s funding; 3. The entity’s degree of local autonomy; 4. Whether the entity is concerned primarily with local as opposed to statewide problems; 5. Whether the entity has the authority to sue and be sued in its own name; 6. Whether the entity has the right to hold and use property.— and determines that Texas would not be liable for judgment against NHIC. [Citing Clark v. Tarrant County, 798 F.2d 736, 744-45 (5th Cir. 1986).

UNITED STATES FOR THE USE AND BENEFIT OF SPECTRUM CONTROL SYSTEMS, INC., v. STAFFCO CONSTRUCTION, INC., Defendant-Appellee, ECLECTIC COMPANY, INC., Defendant-Appellant, 6^th Cir. No. 03-3651, July 22, 2004. Unpublished decision. Suit by subcontractor against prime for breach and under the Miller Act. Eclectic was a sub to Staffco and had litigated a claim on Staffco’s behalf before the ASBCA. Court affirms the grant of summary judgment by the district court in favor of Staffco. The court notes that the ASBCA’s determination of a particular issue had a preclusive effect on Eclectic’s Miller Act claim. Issue preclusion “dictates that once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving any party to the prior litigation.”

McDONNELL DOUGLAS CORPORATION v. US DEPARTMENT OF THE AIR FORCE and F. WHITTEN PETERS, SECRETARY OF THE AIR FORCE, DC Circ. No. 02-5342, July 27, 2004. Court reverses, in part, the earlier District Court decision and holds that the option year prices and vendor CLIN prices are protected from disclosure. Judge Garland writes a lengthy decision concurring in part and dissenting in part. McDonnell had argued both an APA and Trade Secret Acts violation in the District Court, but only pursues the APA claim on appeal.

MARK E. HANSON, Esq. v. USAID, 4^th Cir. No. 03-2305, June 16, 2004. FOIA case. Court affirms the District Court’s grant of summary judgment that held that the document fell under the FOIA exemption for attorney work product prepared in anticipation of litigation. USAID was funding a water treatment project in Egypt and had hired CDM to provide construction, administration and management services for the project. At USAID’s request, CDM hired Roy, an attorney, as a neutral third party to provide advice and consultation on a request from the project contractor (JV) for additional funds due to delay. Roy’s contract directed him to provide a report to USAID and the Egyptian government’s agent, NOPWASD. Roy provided his report to USAID and a copy of a draft report to JV. Plaintiff, an attorney representing JV filed an FOIA request with USAID for a copy of the report. The request was denied as falling within the exemption 5 USA § 552(b)(5), as an attorney work product prepared in anticipation of litigation. Plaintiff sued in the District Court. The Fourth Circuit addressed three issues—... whether USAID enjoyed an attorney client relationship with Roy, such that the attorney-client privilege would even apply to communications between them.(*citations omitted). Second, ... whether the Roy Report fell under the attorney work product exemption to FOIA. See 5 U.S.C. § 552(b)(5). Third, ... whether Roy’s unilateral release of the report to the JV amounted to a waiver of this privilege.” The court answered the first two questions in the affirmative and found that the release of the draft did not waive the privilege as to USAID.

PUBLIC UTILITY DISTRICT NO. 1 OF SNOHOMISH COUNTY, WASHINGTON v. FEMA, 9^th Cir. No. 03-35104, June 14, 2004. FEMA provided disaster relief grants pursuant to the Stafford Act to plaintiff in 1996 and 1997. The FEMA IG subsequently audited the grants and disallowed certain costs primarily based on overhead for fringe benefits which plaintiff had applied to overtime hours even though the fringes benefits generally remained constant and were not subject to overtime hours worked. Plaintiff brought suit alleging violations of the APA. The District court granted summary judgment for the government. Plaintiff appeals. The Circuit Court affirms on all counts concluding-“In sum, there is no basis in law to support the District’s contention that FEMA acted in an arbitrary and capricious manner when it conducted post-award audits of the District’s federal disaster relief grants. In times of emergency and where disaster relief is needed urgently, FEMA should be permitted to act reasonably and consistently with applicable Federal laws and regulations in making a preliminary determination as to an applicant’s eligibility for federal disaster relief. At the same time, FEMA should not be constrained by concerns that such preliminary calculations are subject to res judicata, or that FEMA is without authority to conduct an audit to ensure that its calculations are consistent with applicable Federal laws and regulations. Were we to accept the District’s argument, we would needlessly hamper FEMA’s goal that “eligible assistance be delivered as expeditiously as possible consistent with Federal laws and regulations.” 44 C.F.R. § 206.200(b) (1996). This would be unacceptable and is not required by law. The agency’s decisions that have been challenged, all of which relate to its audit process, are not arbitrary and capricious and do not conflict with the law. The agency’s audit determinations and the district court’s judgment upholding the agency show no legal error.”

US ex rel. Karen T. Wilson v. Graham County, 4^th Cir. No. 03-1122, May 25, 2004. False Claims Act retaliation case. Court reverses the district court and holds that the six year limitation period of the FCA applies to retaliation claims. The court finds “no ambiguity undermining the conclusion that Congress intended the revised limitations period of § 3731(b)(1) to apply to all claims under § 3730, including retaliation claims under § 3730(h). We are unpersuaded that Congress’s addition of language referring to "the date on which the violation of section 3729 is committed" was intended to exclude § 3730(h) from the ambit of § 3731(b)(1), and that the consequences of the resulting statutory scheme are not absurd, but are in keeping with the FCA’s purpose.” One judge dissents.

Coalition for Government Procurement, et al. v. Federal Prison Industries, Inc., et al., 6^th Cir. No. 01-2231, April 12, 2004. Challenge to the Federal Prison Industries (FPI) by the Coalition for Government Procurement (CGP) on claims based on the UNICOR organic statute, the APA and Fifth Amendment takings. Except for one moot claim the 6^th Circuit affirms the district courts grant of summary judgment for the government. Good discussion of the historical background of the FPI/UNICOR. The court finds that CGP cannot prevail on its APA claims as it has not shown that the action of the agency was arbitrary capricious or otherwise not in accordance with law. Although recognizing that the Federal Circuit has held that as a NAFI the FPI is not subject to jurisdiction under the Tucker Act for a claim for monetary damages, the court declines "... to construe the requested relief as seeking monetary damages; therefore, the district court properly asserted its jurisdiction over the Coalition’s takings claim." The court discusses the standards for regulatory non-categorical takings and "... employs an "ad hoc, factual inquiry," into three significant factors: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action." Finding that CGP had failed to prevail on these factors, summary judgment to the government was properly awarded to the government.

UNITED STATES OF AMERICA, ex rel, DONALD PATRICK J ADRIAN, V. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., 5^th Cir., No. 03-30243, March 30, 2004. False Claims Act case. The complaint alleged that the Regents of the University of California as manager of the Lawrence Livermore National Laboratory violated the FCA. Court affirms the district court’s holding that the Regents of the University of California are not persons under the FCA even though the Regents may have competed against private companies for the contract to operate the Livermore lab

US v. REITMEYER et al.. 10^th Cir., No.02-5151, February 4, 2004. Major Fraud Act case. Corps of Engineers contract. Court affirms the district court which had dismissed the government’s indictment on statute of limitations grounds. The Corps had awarded a fixed price contract for a groundwater treatment plant. Contractor filed a $4 million dollar differing site conditions claim on May 16, 1994. On February 15, 2003, more than seven years after the claim was filed he government filed an indictment under the Major Fraud Act charging the companies and certain officers with executing and attempting to execute A scheme to defraud the US. The court rejects all of the government’s argument that there was a continuing scheme which extended the limitations period. The court held that the execution was complete when the claim was filed on May 16, 1994 and seven year statute of limitations had expired when the indictment was filed.

WICKWIRE GAVIN, P.C. v. US POSTAL SERVICE, 4^th Cir. No. 02-2310, January 30, 2004. FOIA case. Court affirmed the district court and held that the Postal Act Reorganization Act provision at 39 USC 410(c)(2) which provides that " information of a commercial nature, including trade secrets, whether or not obtained from a person outside the Postal Service, which under good business practice would not be publicly disclosed;" was a statute within the scope of 5 USC 552(b)(3) and therefore the Postal Service did not have to disclose the information requested by Wickwire or show that competitive harm would be caused by such disclosure.

LION RAISINS INC. v. UNITED STATES DEPARTMENT OF AGRICULTURE, 9^th Cir., No. 02-16696, January 15, 2004. Not a contracts decision, but an FOIA case about a firm who has been a party in recent contract cases. Court reverses a portion of a district court decision that relied on in camera review of the government’s sealed declaration as the sole factual basis for its “law enforcement” decision. 5 U.S.C. § 552(b)(7)(A). The court remanded to the district court to require the government to submit detailed public declarations or other material in support of its “law enforcement” exemption. The court held that “..the district court’s reliance on in camera review as a substitute for public affidavits deprived both the district court and this court of the informed advocacy upon which the fairness of adversary proceedings depends. Because the district court failed to require that the government submit as much information as possible in the form of public declarations before relying on in camera review, it lacked an adequate factual basis for its decision.”

ROLE MODELS AMERICA, INC., v. LES BROWNLEE, ACTING SECRETARY OF THE ARMY, DC Cir., No. 02-5037, January 13, 2004. Plaintiff, a non-profit educational organization, seeks EAJA fees for its work in an earlier case where the court had enjoined the Army from disposing of certain property until it had corrected procedural errors which had deprived plaintiff of the opportunity to compete for the property. The government opposes arguing that plaintiff was not the prevailing party as it had not yet acquired the property, the government’s position was substantially justified and the fees are so excessive that they should be drastically reduced.. The court finds that plaintiff was the prevailing party as it obtained what it sought, the correction of errors by the Army so plaintiff could compete. The court discounts the government’s argument that its litigation position was substantially justified and looks at the underlying administrative action where Judge Tatel finds that "... the regulations were so clear and the Secretary’s failure to comply with them so obvious that his actions could not ’appear correct to a reasonable person. The court does however, agree that the fees requested are not reasonable. Judge Tatel notes that plaintiff "...seeks compensation for the work of two partners, one counsel, one associate, six legal assistants, one law clerk, two research librarians, and a legislative specialist. Their hourly rates range from $495 for the lead partner to $285 for the associate to $165 for the law clerk. According to Role Models, these fourteen individuals logged a total of 1058 hours in connection with the appeal and with the preparation of its fee petition. Multiplying the appropriate rates and the number of hours, Role Models requests $342,741.25 in legal fees. It also seeks $12,773.44 for expenses...." The requested fees even include two hours of a partner’s time in completing the application for admission to the D.C. Circuit Bar. After a complete discussion of the fees and expenses issues the court awards a total of $83,236.

US EX REL. EDWIN P. HARRISON v. WESTINGHOUSE SAVANNAH RIVER COMPANY, 4^th Cir., Nos. 02-2020, 02-202, December 19, 2003. DOE False Claims Act case. Court affirms the district court holding that a certification of no organizational conflict of interest was material. Westinghouse had used an employee of a subcontractor, GPC, to prepare a recommendation to DOE that a project be subcontracted rather than be performed by Westinghouse. The GPC employee apparently was intimately involved in preparing Westinghouse procurement sensitive documents. DOE approved and Westinghouse issued an RFP and received four offers, one from GPC. The same employee that assisted Westinghouse with the recommendation to DOE worked on preparing GPC’s proposal for the project. GPC certified that it had no OCI and Westinghouse selected GPC for the award and submitted to proposal and the no-OCI certification to DOE for approval. Plaintiff, a former vice-president of GPC brought the case alleging that the submission of a no-OCI certification was false claim.

NISH; RCI, Inc., v. RUMSFELD and NEW MEXICO COMMISSION FOR THE BLIND; ROBERT VICK, Intervenors, 10^th Cir. No. 02-2089, November 14, 2003. Air Force contract. Court affirms district court decision finding that the procurement of mess hall cafeteria services were included in the Randolph-Sheppard Act ("RS Act"). Plaintiffs previously had the contract for full food services at the Kirtland AFB under the provisions of the Javits-Wagner-O’Day Act ("JWOD Act"). Before executing options to extend plaintiff’s contract, the Air Force determined that the RS Act applied to mess hall contracts and took priority over the JWOD Act. The Air Force then awarded a contract to intervenor the state licensing agent under the RS Act. Plaintiff filed suit seeking declaratory and injunctive relief. The Court rejects plaintiff’s arguments that the RS Act (1) applies only to vending facility concessions and may not be applied to procurement contracts for military mess halls; (2) confers no authority on the Department of Education to regulate military procurement through application to military mess halls; and (3) does not constitute an exception to the open competition requirements of the Competition in Contracting Act ("CICA"). The Court finds that the statutory definition of vending facilities in the RS Act as including cafeterias was not ambiguous and that the Department of Educations interpretation was owed Chevron deference. The court also held that the definition of "procurement’ in 41 U.S.C. "is sufficiently broad to encompass the award of the cafeteria contract authorized by the RS Act in this case." Finally, insofar as the RS Act and JWOD Act may be in conflict, the court held the RS Act prescribes a priority for blind vendors in the operation of cafeterias on federal property, whereas the JWOD is a more general procurement statute. Following the maxim that the specific intention takes precedence over one of general intention, the court holds that "the RS Act must control."

LEBOEUF, LAMB, GREENE & MACRAE, L.L.P. v. SPENCER ABRAHAM, SECRETARY, UNITED STATES DEPARTMENT OF ENERGY, DC Cir. No. 02-5265, October 28, 2003. Bid protest. [From a district court decision that we touted as most likely the last bid protest decision from a district court.] In an opinion by Judge Roberts, the DC Circuit vacates and remands to the District Court to determine the adequacy of DOE’s determination of the awardee’s apparent conflict of interest. The court finds that "because Leboeuf raised a material issue of disputed fact regarding the adequacy of the Department’s regulatory compliance, summary judgment to the Department was inappropriate". Judge Roberts also directs that "the district court also shall address LeBoeuf’s contention that awarding the Yucca Mountain contract to [awardee] violated Nevada’s Code of Professional Responsibility."

SHERBROOKE TURF, INC. v. MINNESOTA DEP’T OF TRANSP., 8^th Cir., Nos. 02-1665 and 3016 October 06, 2003. Court affirms district court decisions that found that Minnesota and Nebraska’s implementation of DOT’s Disadvantaged Business Enterprises (DBE) program met the strict scrutiny standard of Adarand. The court rejected "appellants’ contention that their facial challenges to the DBE program must be upheld unless the record before Congress included strong evidence of race discrimination in construction contracting in Minnesota and Nebraska." However, the court did hold that "On the other hand, a valid race-based program must be narrowly tailored, and to be narrowly tailored, a national program must be limited to those parts of the country where its race-based measures are demonstrably needed. To the extent the federal government delegates this tailoring function, a State’s implementation becomes critically relevant to a reviewing court’s strict scrutiny." Finding that the States’ implementation met the strict scrutiny test, the district court decisions were affirmed.

US Ex Rel Sean Bledsoe v. Community Health Systems, Inc.; Sparta Hospital Corporation d/b/a White County Community Hospital, 6^th Cir., No.01-6375, September 10, 2003. False Claims Act case. Court reverses district court’s dismissal of relator’s complaint with prejudice for failure to comply with Rule 9(b), finding that such dismissal was an abuse of discretion as relator did not receive sufficient notice of the defects in its complaint. Court also reverses the district court’s denial of relator’s motion to recognize a settlement between the government, which did not intervene in relator’s case, and the defendants. As a matter of first impression in this circuit the court holds "..that "alternate remedy" [of 31 USC 3730(c)(5)] refers to the government’s pursuit of any alternative to intervening in a relator’s qui tam action." Because the court finds that the relator may be entitled to a share of the settlement agreement proceeds the matter us remanded back to the district court for further proceedings.

US v. TABER EXTRUSIONS, LP, et al. 8^th Cir. No. 02-2965, August 27, 2003. Army case. False Claims Act case. Summary judgment for government in a False Claims Act suit is reversed, as defendant, a subcontractor, created genuine issues as to whether pro forma invoices it submitted were false or fraudulent under 31 U.S.C. section 3729(a), and whether defendant knew contractor would use its pro forma invoices in a manner to defraud the U.S. (Based on Find Law synopsis.)

INFORMATION HANDLING SERVICES, INC. v. DEFENSE AUTOMATED PRINTING SERVICES, el al.. DC Cir., No. 02-5192, August 12, 2003. DC Circuit finds that commercial publisher had standing to allege that DEFENSE AUTOMATED PRINTING SERVICES("DAPS") an element of DoD, violated 10 U.S.C. 2462 and implementing procurement regulations by maintaining maintaining a DAPS Internet accessible database without undertaking a cost comparison study to determine whether DAPS could "develop and maintain a digitized database for DoD documents more economically than commercial sources." The court reverses the DC District Court decision grant the government’s motions to dismiss and for summary judgment and remands.

US EX REL LAIRD v. LOCKHEED MARTIN ENG’G AND SCIENCE SERVS. CO., 5^th Cir., No. 02-40504, June 24, 2003. Plaintiff did qualify as an "original source" of the information publicly disclosed in his prior state court lawsuit. Thus, the district court did not lack subject matter jurisdiction pursuant to the "public disclosure" provisions of the False Claims Act.(Find Law synopsis)

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ET AL. v. US, DC Circuit affirms district court decision finding that Section 8014 of the Defense Appropriations Act for fiscal year 2000, which granted an outsourcing preference for firms under 51 percent Native American ownership, is rationally related to a legitimate legislative purpose and thus constitutional.

CERVANTES v. US, 9^th Cir., No. 01-56929, June 2, 2003. [Not a contract case, but evidence that justice does prevail, but no thanks to the US Attorney.] The "detention of goods" exception to the sovereign immunity waiver under the Federal Tort Claims Act cannot apply to the government’s negligent failure to remove 119 pounds of marijuana hidden in a car sold to plaintiff, who was later incarcerated for transporting those drugs. (Find Law synopsis)

HUDGENS v. BELL HELICOPTERS/TEXTRON and DYNCORP., 11^th Cir., Nos. 02-12357, -13284, April 25,2003. Court affirms district court holding that government contractor defense applies to service contracts.

SCAFAR CONTRACTING, INC. v. SECRETARY OF LABOR; OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, 3^rd Cir., No. 02-3335, April 15, 2003. Court holds that “The language of, and policy behind, the EAJA counsels that the term “final disposition” means final and unappealable. Thus, an application for attorney’s fees pursuant to 5 U.S.C. § 504 is timely if filed prior to the expiration of 30 days from the date the decision of the agency becomes final and unappealable.”

UNDER SEAL v. UNDERSEAL, 4^th Cir., No. 02-1683, 1684, April 14, 2003. FCA case. Court affirms order unsealing a FCA complaint originally filed as a qui tam action. Court holds that sealing under the FCA is only justified in order that the government may investigate. [Most of the opinion addresses whether or not the court has jurisdiction under the collateral order doctrine.]

United States ex rel. Patrick M. Hays v. Luverne Hoffman, et al. 8^th Cir., Nos. 01-3888 -3891, April 09, 2003. Minnesota Department of Human Services reports were public disclosures underlying qui tam claims under the FCA, and plaintiff was the original source of only one of those disclosures, therefore district court lacked jurisdiction over most of the qui tam claims. Relator did establish that he was original source that defendants falsely claimed that apples given as gifts to employees were a Medicaid-reimbursable food expense.

Sullivan v. Shimp, 6^th Cir., No. 01-4193, April 01, 2003. Air Force contracts trial attorney Shimp was working at WPAFB for 4 hours on Sunday preparing documents for a trip to California on Monday to litigate a contract dispute. On the way home from the base he had an auto accident and injured appellant. Court affirms District Court decision that Shimp was not acting within the scope of his employment when the accident took place. [Therefore US is not a party to the suit for damages to appellant.]

UNITED STATES OF AMERICA EX REL. JOSEPH T. SIEWICK, v. JAMIESON SCIENCE AND ENGINEERING, INC., ET AL., DC Cir., No. 02-7035, March 28, 2003. DC Circuit affirms that a corporate shareholder and director is not the “employer” of a corporate employee within the meaning of the False Claims Act, 31 U.S.C. § 3730(h).

Susan J. Swift v.US, DC Cir., No. 01-5312, February 11, 2003. False Claims Act case. US need not intervene before requesting dismissal

US, ex rel. MARY L. HOLMES v. CONSUMER INS. GROUP, No. 01-1077 10^th Cir. February 10, 2003. Government employee who obtains information about fraud and who is required to report that fraud, may still be a “person” entitled to bring a civil action under the False Claims Act, 31 U.S.C. § 3730(b)(1).

Trifax Corp. v. District of Columbia, DC Cir., No. 01-7195, January 14, 2003. Trifax appeals from the grant of summary judgment denying its Fifth Amendment’s Due Process claim that the District of Columbia Inspector General, by releasing an allegedly defamatory audit report, deprived it of liberty to engage in its chosen business. Trifax claims to have suffered "broad preclusion" from government contracting. The court affirms. Judge Tatel notes that although "...government stigmatization that broadly precludes individuals or corporations from a chosen trade or business deprives them of liberty in violation of the Due Process Clause", Trifax failed to show anything remotely close to "broad preclusion."

Randolph Wilkins v. St. Louis Housing Authority, 8^th Cir., Nos. 02-1332/02-1471, December 31, 2002. Eighth Circuit holds that a municipal corporation is an employer under the whistle blower provisions of the False Claims Act and is subject to suit under 31 U.S.C. § 3730(h).

The Human Development Corporation of Metropolitan St. Louis v. HHS, 8^th Cir., No. 02-1986, December 5. 2002. Court reverses in part and affirms in part a District Court decision. The Circuit Court found that the decision of HHS Departmental Appeals Board was not supported by substantial evidence on one of the claims.

UNITED STATES OF AMERICA ex rel. Martin Becker v. WESTINGHOUSE SAVANNAH RIVER COMPANY, 4^th Cir., No.01-2452, September 27, 2002. False Claims Act case. Fourth circuit joins several other circuits and holds "...that the government’s knowledge of the facts underlying an allegedly false record or statement can negate the scienter required for an FCA violation."

United States of America ex rel. Brett Roby v. Boeing, 6^th Cir., No. 00-4157, September 12, 2002. A High-Value Items Clause ("HVIC"), set forth in FAR 52.246-24, 52.246-24, Limitation of Liability-High-Value Items, did not serve as a defense to damages for loss of the helicopter, under the False Claims Act.

DELTA FOUNDATION, INC. v. HHS, 5^th Cir., No. 01-60592, August 20, 2002. In affirming a decision of a District Court which had upheld a decision of the HHS Departmental Appeals Board ("DAB") the Fifth Circuit holds that "...that there is a sufficiently adversarial nature to HHS proceedings so as to impose an issue exhaustion requirement to those proceedings. A claimant must therefore exhaust all issues in a request for review by the DAB in order to preserve judicial review of those issues."

Courtney v. Smith, 6^th Cir. No. 00-4554, July 23, 2002. Sixth circuit follows Federal Circuit in finding that government employees do not have standing to challenge an A-76 decision. Dissenting, Judge Merritt argues that because the Circular defines federal employees as "Directly affected parties ..." that such employees are "adversely affected or aggrieved" persons who should have standing. [Interestingly, the majority gives considerable weight to the current circular’s "preference" to rely on private contractors. Would it have made a difference if the preference language is eliminated, as the Administrator of OFPP has indicated it will be in a future revision of the Circular?]

Building and Construction Trades Department, AFL-CIO, et al. v. Joe Allbaugh, Director, Federal Emergency Management Agency, et al., DC Cir. No. 01-5436. E.O. 13202 and Project Labor Agreements case. Court reverses the District Court and concludes "... that the President acted within his constitutional authority in issuing Executive Order No. 13,202 and that the Executive Order expresses a proprietary policy that is not subject to preemption by the NLRA. Therefore, the judgment of the district court is reversed and its injunction is vacated."

PETER VEECK, doing business as Regional Web v. SOUTHERN BUILDING CODE CONGRESS INTERNATIONAL, INC., 5^th Cir., No. 99-40632, June 7, 2002. A copyright rather than a public contract law case, but interesting just the same. In an en banc decision the court reverses the earlier ruling of a panel and finds that there is no infringement where a party publishes a copyrighted work (a building code) when such code had been adopted as law by a community. Those list members who work with establishing recommended codes, such as the ABA Model Procurement code, may find this opinion of particular interest.

MD Public Service v. US, 4^th Cir., No. 01-1792, May 31, 2002. Fourth Circuit adopts the holding of the Federal Circuit in American Fed. of Gov’t Employees, AFL-CIO v. United States, 258 F.3d 1294 that an interested party under the ADRA is limited to an "actual or prospective bidder or offeror" as provided in CICA §S 3551(2). Because the Maryland Public Service Commission was not a bidder, and the actual bidder in the case below did not appeal, the Public Service Commission has no standing and the appeal is therefore dismissed.

PAMELA WOOD, GLENROY WOOD v. US, 1^st Cir., No. 01-2028, May 10, 2002. Federal Tort Claims case. Discretionary exception to FTCA protects government from a claim that government’s failure to ensure that contractor was performing in a safe manner was actionable.

United States of America, ex rel.; Edward T. Augustine v. Century Health Services, Inc., et al.. 6^th Cir. No. 01-5019, May 7, 2002. FCA Case. Court affirms the District Court, which found for the government, and adopted the theory of liability "...that a false implied certification may constitute a false or fraudulent claim even if the claim was not expressly false when it was filed. Instead, liability can attach if the claimant violates its continuing duty to comply with the regulations on which payment is conditioned."

US v. SOUTHLAND MANAGEMENT CORPORATION; ET AL, 5^th Cir., No. 00-60267, April 11, 2002,