False Claims Act Cert. Monitor: Supreme Court Will Consider Four FCA Petitions Today
Today, at the Supreme Court’s 2016 “long conference,” the justices will consider some 1,600 petitions for certiorari in a single day. There are four FCA cert. petitions up for review. We covered those petitions in an earlier FCA Cert. Monitor post. In short, two of the petitions raise questions related to the public disclosure bar, U.S. ex rel. Cause of Action v. Chicago Transit Authority, No. 16-131; U.S. ex rel. Advocates for Basic Equality, Inc. v. U.S. Bank, N.A., No. 16-130. The remaining two petitions concern the application of Rule 9(b), U.S. ex rel. Walterspiel v. Bayer AG, No. 16-8, and what preclusive effect, if any, a prior determination that the government is not entitled to restitution has on the government’s right to seek damages in an FCA case, Anghaie v. United States, No. 15-1456. We are watching these cases closely and will report on the Court’s decisions.
There are four other FCA cert. petitions we have written about in previous posts, but those petitions are not yet up for review. One petition regarding whether claims to state-affiliated entities can provide a basis for FCA liability remains on hold while the Court waits for the Solicitor General’s brief to be filed. Pennsylvania Higher Education Assistance Agency v. U.S. ex rel. Oberg, No. 15-1045. The other two petitions on that topic have been marked as “rescheduled” from the long conference, presumably pending the SG’s brief in Oberg. U.S. ex rel. Kreipke v. Wayne State University, No. 15-1419; U.S. ex rel. Willette v. University of Massachusetts, No. 15-1437. Lastly, the petition raising questions about the FCA’s scienter requirement that we reported on Friday, U.S. ex rel. Purcell v. MWI Corp., No. 16-361, will not be distributed for conference until the defendant responds or waives its response.