857 F.3d 174 (4th Cir. 2017), 13-2190, United States v. Triple Canopy, Inc.

Docket Nº:13-2190, 13-2191
Citation:857 F.3d 174
Opinion Judge:SHEDD, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Intervenor/Plaintiff -- Appellant, v. TRIPLE CANOPY, INC., Defendant -- Appellee. and UNITED STATES ex rel. OMAR BADR, Plaintiff, UNITED STATES ex rel. OMAR BADR, Plaintiff -- Appellant, v. TRIPLE CANOPY, INC., Defendant -- Appellee
Attorney:Charles W. Scarborough, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Earl N. Mayfield, III, DAY & JOHNS, PLLC, Fairfax, Virginia, for Appellants. Tara Melissa Lee, QUINN EMANUEL URQUHART & SULLIVAN, LLP, Washington, D.C., for Appellee. Benjamin C. Mizer, Principal Deputy Assistant Attor...
Judge Panel:Before SHEDD, AGEE, and WYNN, Circuit Judges. Judge Shedd wrote the opinion, in which Judge Agee and Judge Wynn joined.
Case Date:May 16, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 174

857 F.3d 174 (4th Cir. 2017)

UNITED STATES OF AMERICA, Intervenor/Plaintiff -- Appellant,

and

UNITED STATES ex rel. OMAR BADR, Plaintiff,

v.

TRIPLE CANOPY, INC., Defendant -- Appellee.

UNITED STATES ex rel. OMAR BADR, Plaintiff -- Appellant,

v.

TRIPLE CANOPY, INC., Defendant -- Appellee

Nos. 13-2190, 13-2191

United States Court of Appeals, Fourth Circuit

May 16, 2017

Argued January 26, 2017

On Remand from the Supreme Court of the United States. (S.Ct. No. 14-1440).

ARGUED:

Charles W. Scarborough, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Earl N. Mayfield, III, DAY & JOHNS, PLLC, Fairfax, Virginia, for Appellants.

Tara Melissa Lee, QUINN EMANUEL URQUHART & SULLIVAN, LLP, Washington, D.C., for Appellee.

ON BRIEF:

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Joyce R. Branda, Acting Assistant Attorney General, Stuart F. Delery, Assistant Attorney General, Michael S. Raab, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, United States Attorney, Richard W. Sponseller, Peter S. Hyun, Gerard Mene, Christine Roushdy, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant United States of America.

Paul A. Prados, Milt C. Johns, Christopher M. Day, DAY & JOHNS, PLLC, Fairfax, Virginia, for Appellant Omar Badr.

Joseph C. Davis, Reston, Virginia; Paul D. Schmitt, DLA PIPER LLP (U.S.), Washington, D.C.; Jonathan G. Cooper, QUINN EMANUEL URQUHART & SULLIVAN, LLP, Washington, D.C., for Appellee.

Before SHEDD, AGEE, and WYNN, Circuit Judges. Judge Shedd wrote the opinion, in which Judge Agee and Judge Wynn joined.

OPINION

Page 175

SHEDD, Circuit Judge:

On remand from the United States Supreme Court, we are asked to consider whether the Government stated a claim under the False Claims Act (FCA), 31 U.S.C. § 3729(a) against Triple Canopy, Inc. Applying Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S.Ct. 1989, 195 L.Ed.2d 348 (2016), we conclude that the Government properly alleged an FCA claim.

I.

The facts and procedural history are recounted in detail in our earlier opinion. See United States ex rel. Badr v. Triple Canopy, Inc., 775 F.3d 628, 632-33 (4th Cir. 2015). In brief, the Government awarded Triple Canopy a one-year contract to provide security services at Al Asad Airbase in Iraq. As part of that contract, Triple Canopy was required to meet certain " responsibilities," including " ensur[ing] that all employees have . . . qualified on a U.S. Army qualification course." (J.A. 99). According to the relator, Omar Badr, Triple Canopy brought in guards from Uganda who were unable to meet this marksmanship requirement. Rather than inform the Government of this deficiency, Triple Canopy falsified the scorecards on several occasions throughout the year. Triple Canopy submitted invoices

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for its guards on a monthly basis but was not required to certify that its guard services complied with the contract's responsibilities.

Badr brought an action against Triple Canopy under 31 U.S.C. § § 3729 & 3730. The Government intervened and filed a two-count complaint, alleging, inter alia, that Triple Canopy knowingly presented false claims, in violation of 31 U.S.C. § 3729(a)(1)(A) because it " billed the Government for the full price for each and every one of its unqualified security guards." (J.A. 24). The district court granted Triple Canopy's motion to dismiss. United States ex rel. Badr v. Triple Canopy, Inc., 950 F.Supp.2d 888 (E.D. Va. 2013). In doing so, the court " decline[d] recognition of an implied certification theory of liability." 1 Id. at 899.

We reversed in relevant part, concluding that the implied certification theory was valid in certain circumstances: " we hold that the Government pleads a false claim when it alleges that the contractor, with the requisite scienter, made a request for payment under a contract and withheld information about its noncompliance with material contractual requirements." 775 F.3d at 636 (internal quotation marks omitted). To guard against the potential for abuse, we...

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