Three new FCA relator cert. petitions have landed in the past few weeks,
covering the gamut of FCA legal issues.
First, the relator in U.S. ex rel.
Harper v. Muskingum Watershed Conservancy District, 16-1278,
takes us back to 1L Property, alleging that the Army in 1949 granted the
defendant water district a “determinable fee simple estate subject to a
possibility of reverter interest retained by the United States.” In other
words, the government gave the water district government land to keep so long
as the land was used for recreation, conservation, etc. The relator contends
that when the defendant entered into oil and gas leases on the land but kept
the land and the lease income, it knowingly and improperly avoided an obligation
to return the property and income to the government—i.e., a conversion reverse
false claim. The question presented to the Court is whether, for a reverse
false claim, the relator needed to plead that the defendant subjectively knew that
it was violating the terms of the deed and had not committed a mistake of law. A
potential difficulty for this petition, however, is that neither Sixth
Circuit’s majority nor the dissent focused on the question of subjective
knowledge of mistake of law, but rather on whether the relator pleaded
sufficient facts from which the court could infer that the defendant “knew or
should have known” of the requirement to return the property. The response is currently
due June 26, 2017.