False Claims Act Cert. Monitor: Mid-Term Review of Pending FCA Cert. Petitions
With the Supreme Court’s last conference before the holidays past us, we
wanted to catch up with the many FCA petitions for certiorari that remain
pending. We have written about most of these previously, so without further ado:
Pennsylvania Higher Education Assistance Agency v. U.S. ex rel. Oberg, No. 15-1045; U.S. ex rel. Kreipke v. Wayne State University, No. 15-1419; U.S. ex rel. Willette v. University of Massachusetts, No. 15-1437
Issue: Whether an entity created by the state for purposes of providing
financial aid to students, but which is also one of the largest providers of
student loans across the country, is an arm of the state immune from FCA
liability or an independent political subdivision subject to FCA liability.
Status: The Court issued a call for the views of the Solicitor General
(CVSG) in May 2016 in the Oberg case,
and the SG filed a brief in opposition to cert.
on December 6, 2016. The SG’s opposition is not a death knell, however. An empirical
study has confirmed that, even when the SG recommends against review, the
odds of a grant remain much higher for cases that have been the subject of a
CVSG than other paid petitions. The other two petitions, filed by relators,
appear to be held for Oberg.
U.S. ex rel. ABLE v. U.S. Bank, N.A., No. 16-130
Issue: Whether an FCA claim can be barred by a public disclosure if the
public disclosure does not identify the specific fraud asserted in the relator’s
complaint, but instead only describes the same general type of conduct.
Status: The Court issued a CVSG in October 2016. The SG has not yet filed its brief.
U.S. ex rel. Purcell v. MWI Corp., No. 16-361
Issue: Whether a plaintiff can show knowledge through proof of the
defendant’s subjective understanding of an ambiguous contractual or regulatory
requirement when the defendant can show that there is an objectively reasonable
interpretation under which its claim was not false and it was not warned away
from that position by the government.
Status: The United States submitted a brief opposing relator’s petition for
cert. The Court scheduled the
petition for conference on January 6, 2017.
Kmart Corp. v. U.S. ex rel. Garbe, No. 16-408
Issue: Whether the pre-FERA requirement to show that false statements
were made with the intention of getting a false claim paid applies to “claims”
submitted for payment after June 7, 2008, or FCA “claims” filed in court after
Status: The Court scheduled the petition for conference on January 6,
U.S. ex rel. Bishop v. Wells Fargo Bank, N.A., No. 16-578
Issue: Whether the Court should grant, vacate, and remand a lower court
decision issued after Universal Health
that did not expressly consider Universal
Status: A response is due December 28, 2016.
U.S. ex rel. Jallali v. Sun Healthcare Group,
Issue: Whether the Court below
improperly applied Universal Health.
A response is due December 21, 2016.
U.S. ex rel. Gage v. Davis S.R. Aviation, LLC,
Issues: (1) Whether the lower courts
improperly applied Universal Health. (2)
Whether the lower courts should have allowed relator leave to amend his
complaint to meet Rule 9(b). (3) Whether the lower court should have evaluated
relator’s jurisdictional public disclosure bar issue before reaching the Rule
A response is due December 27, 2016.
U.S. ex rel. Lee v. Ernst & Young,
Issues: (1) Whether a case
dismissed for failure to state a claim can bar a qui tam under the public disclosure bar. (2) Whether sealing evidence
presented by relator violates the First Amendment. (3) Whether sanctions
against plaintiff’s counsel were appropriate.
A response is due January 5, 2017.
Farmer v. Eagle Systems and Services, Inc.,
Issue: Whether the reporting of a
single case of theft of night vision goggles, which is arguably not FCA
activity, is protected activity under the FCA retaliation provision.
The Court scheduled the petition for conference on January 6, 2017.