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False Claims Act Statistics, News & Analysis

False Claims Act Cert. Monitor: Six FCA Cert. Petitions Bite the Dust, Five Remain

Denied petitions for certiorari are a dime a dozen. So it should not come as a surprise that most FCA cert. petitions that we write about fail. But still, we hate to see ’em go. Yet, here we are, in this first Cert. Monitor post of 2017, saying bon voyage to six FCA cert. petitions from our mid-term review, leaving just five more that remain pending.

We start with a quick eulogy to the lost causes. U.S. ex rel. Purcell v. MWI Corp., No. 16-361, would have presented the question of how Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016), affected the knowledge standard for FCA defendants charged with breaching an ambiguous contract or rule. Interestingly, the United States opposed cert. even though the relator lost below, perhaps signaling a fear that the relator’s aggressive position on ambiguous requirements would be rejected by the Court. Petitions in Kmart Corp. v. U.S. ex rel. Garbe, No. 16-408, which would have raised the question of retroactivity of FERA, as well as the retaliation case Farmer v. Eagle Systems and Services, Inc., No. 16-518, also were denied. Lastly, a call for the views of the Solicitor General (CVSG) could not save Pennsylvania Higher Education Assistance Agency v. U.S. ex rel. Oberg, No. 15-1045, or its two companion cases, U.S. ex rel. Kreipke v. Wayne State University, No. 15-1419, and U.S. ex rel. Willette v. University of Massachusetts, No. 15-1437. The Court followed the Solicitor General’s advice in Oberg and denied all three. The petitions would have raised the question of what types of state-affiliated entities may be subject to FCA liability.

Turning to the future, what’s left pending? U.S. ex rel. ABLE v. U.S. Bank, N.A., No. 16-130, asks 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. The Court issued a CVSG on this petition, and the Solicitor General has yet to submit his brief. Three other petitions question lower courts’ early applications of (or failures to apply) Escobar, requesting either that the Supreme Court grant, vacate, and remand to the lower courts to reconsider in light of Escobar, or that the Court take up the case for full, plenary review. U.S. ex rel. Bishop v. Wells Fargo Bank, N.A., No. 16-578; U.S. ex rel. Jallali v. Sun Healthcare Group, No. 16-669; U.S. ex rel. Gage v. Davis S.R. Aviation, LLC, No. 16-694. Lastly, U.S. ex rel. Lee v. Ernst & Young, No. 16-735, asks the Court to weigh in on whether a dismissed case is a public disclosure, among other issues.



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