623 Fed.Appx. 622 (5th Cir. 2015), 14-50704, United States ex rel. Gage v. Davis S.R. Aviation, L.L.C.

Docket Nº:14-50704
Citation:623 Fed.Appx. 622
Opinion Judge:STEPHEN A. HIGGINSON, Circuit Judge:
Party Name:United States of America, ex rel, GEORGE GAGE, Plaintiff - Appellant v. DAVIS S.R. AVIATION, L.L.C., doing business as Challenger Spares and Support; CHALLENGER REPAIR GROUP, L.L.C.; ORION AIR GROUP, L.L.C.; BOMBARDIER, INCORPORATED; NORTHROP GRUMMAN CORPORATION; STEVE DAVIS, Individually; NORTHRUP GRUMMAN DEFENSE MISSION SYSTEMS; NORTHROP GRUM...
Attorney:For George Gage, Plaintiff - Appellant: Donald Edward Little, Lakeway, TX. For Davis S.R. Aviation, L.L.C., Challenger Repair Group, L.L.C., STEVE DAVIS, Individually, Defendants - Appellees: Roger James George Jr., Trial Attorney, John Robert McConnell, George Brothers Kincaid & Horton, L.L.P., ...
Judge Panel:Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
Case Date:July 14, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 622

623 Fed.Appx. 622 (5th Cir. 2015)

United States of America, ex rel, GEORGE GAGE, Plaintiff - Appellant

v.

DAVIS S.R. AVIATION, L.L.C., doing business as Challenger Spares and Support; CHALLENGER REPAIR GROUP, L.L.C.; ORION AIR GROUP, L.L.C.; BOMBARDIER, INCORPORATED; NORTHROP GRUMMAN CORPORATION; STEVE DAVIS, Individually; NORTHRUP GRUMMAN DEFENSE MISSION SYSTEMS; NORTHROP GRUMMAN SPACE AND MISSION SYSTEMS, INCORPORATED, Defendants - Appellees

No. 14-50704

United States Court of Appeals, Fifth Circuit

July 14, 2015

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1

Appeal from the United States District Court for the Western District of Texas. USDC No. 1:12-CV-904.

For George Gage, Plaintiff - Appellant: Donald Edward Little, Lakeway, TX.

For Davis S.R. Aviation, L.L.C., Challenger Repair Group, L.L.C., STEVE DAVIS, Individually, Defendants - Appellees: Roger James George Jr., Trial Attorney, John Robert McConnell, George Brothers Kincaid & Horton, L.L.P., Austin, TX.

For Bombardier, Incorporated, Defendant - Appellee: Ron Alan Sprague, Esq., Brian G. Saucier, Gendry & Sprague, P.C., San Antonio, TX; Eric Xinis Fishman, Danielle Vrabie, Pillsbury Winthrop Shaw Pittman, L.L.P., New York, NY.

For Northrop Grumman Corporation, Defendant - Appellee: Michael L. Waldman, Sarah Wendy Carroll, Robbins, Russell, Englert, Orseck, Untereiner & Sauber, L.L.P., Washington, DC; Katherine Patrice Chiarello, Ratliff Law Firm, Austin, TX.

Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.

OPINION

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STEPHEN A. HIGGINSON, Circuit Judge: [*]

The False Claims Act is a potent remedial statute. As a counterweight to the statute's power and as a shield against fishing expeditions, FCA suits are subject to the screening function of Federal Rule of Civil Procedure 9(b). Relator George Gage raises allegations about the maintenance and operation of military aircraft in a war zone; however, despite repeated opportunities, he has not complied with the FCA's pleading requirements. For that reason, we AFFIRM the district court's dismissal of his complaint.

FACTS AND PROCEEDINGS

The following allegations come from Gage's Third Amended Complaint

Page 624

(" TAC" ). In 2009, Northrop Grumman contracted with the United States Air Force (" USAF" ) to provide the Battlefield Airborne Communication Node (" BACN" )--a system critical to interservice troop communication--and to operate three Bombardier aircrfaft containing the BACN. Orion Air Group, L.L.C., in turn, subcontracted with Northrop to operate and maintain the BACN aircraft. Gage alleges that the critical nature of the BACN missions and the heavy use of the aircraft required Orion to acquire replacement parts, many of which were not readily available from original equipment manufacturers. One of the sources to which Orion looked was CSS.1

In April 2008, CSS, assisted by Bombardier, acquired a civilian Bombardier aircraft (Serial Number 9211) that had crash landed in Canada (the " 9211 Aircraft" ). Gage alleges that parts from the 9211 Aircraft, including Rolls Royce engines and a Variable Frequency Generator (" VFG" ), were defective and could present a potential safety risk. Indeed, many parts were listed as " suspect" on a Worldwide Communication issued by Rolls Royce following the crash. Gage alleges that CSS sold parts from the 9211 Aircraft to Orion, which installed them on BACN aircraft. On June 28, 2010, an Orion-operated BACN aircraft containing the 9211 Aircraft's VFG suffered a " catastrophic incident" over Afghanistan after the VFG exploded. Gage alleges that defendants were part of a scheme to defraud the government whereby CSS and Bombardier supplied non-conforming parts to Orion, who installed them on aircraft as Northrop's subcontractor in violation of contractual or regulatory requirements.

Relator Gage's involvement in this case stems from his participation in a prior lawsuit that also arose from the crash of the 9211 Aircraft. In May 2010, CSS sued Rolls Royce in the Western District of Texas, alleging that Rolls Royce made false statements in the Worldwide Communication about the condition of the engines acquired by CSS in an attempt to prevent CSS from selling the engines on the open market. CSS alleged that it was damaged because it was forced to lease the engines to Orion for less than CSS would have received had Rolls Royce not issued the advisory. Gage asserts that he learned of defendants' false claims during his review of Rolls Royce documents while employed as an expert for Rolls Royce during that litigation.

On September 27, 2012, Gage filed his initial qui tam complaint. After Gage filed a First Amended Complaint, the government declined to intervene. Gage then filed a Second Amended Complaint. After a hearing, the district court granted defendants' motions to dismiss but...

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