USA ex rel v. Jamieson Science and Engineering
| Decision Date | 30 June 2000 |
| Docket Number | No. 99-7090,99-7090 |
| Citation | 214 F.3d 1372 |
| Parties | (D.C. Cir. 2000) United States of America ex rel. Joseph T. Siewick, Appellant v. Jamieson Science and Engineering, Inc., et al.,Appellees |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia(No. 92cv00045)
Joseph J. Aronica argued the cause for appellant. With him on the briefs was Robert B. Norris.
Gary Howard Simpson argued the cause and filed the brief for appellees.
Before: Williams, Henderson and Randolph, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Any person can initiate a lawsuit in the name of the United States for substantive violations of the False Claims Act (the "Act" or "FCA"). See 31 U.S.C. 3730(b) (). Such violations include presenting to the government "a false or fraudulent claim for payment or approval." See id. 3729(a) (establishing liability). Here the non-government person (known as the relator), Dr. Joseph T. Siewick, a physicist hired by Jamieson Science and Engineering, Inc. ("JSE") in May 1990 but laid off in December 1991, presses a claim against JSE and two of its officers at the relevant time, Vincent T. O'Connor and Dr. John A. Jamieson. He argues that the monthly invoices that JSE submitted to the government for payment under government contracts were false claims. They were false, in his view, because JSE filed them notwithstanding alleged violations by O'Connor of a criminal statute aimed at "revolving door" abuses by former government employees, 18 U.S.C. 207.
Siewick proposes two theories to support the alleged falsity. First, he says, the certified invoices implicitly declared "compliance with applicable law, including Section 207," and thus were "impliedly false." Appellant's Br. at 11. Second, Siewick argues that a violation of 207 renders a government contract unenforceable. From this supposed unenforceability he reasons that both O'Connor and Jamieson knew that JSE was not entitled to the payments JSE requested, so JSE's invoices claiming that JSE was entitled to payment were false.
Neither of Siewick's theories convinces us that the alleged 207 violations transformed JSE's invoices into the type of false claims made actionable by the qui tam provisions of the FCA. We affirm the district court's grant of partial summary judgment.
In 1986, the Strategic Defense Initiative Organization ("SDIO") sought proposals for a project assessing its infrared sensors and related technology. O'Connor was the contract officer assigned to the project and consequently received the proposal submitted by JSE. Although he didn't have the power to choose the winning bidder, he was assigned the task of negotiating JSE's fee and the final contract price. After a day of negotiations, the contract was signed on December 8, 1986 by O'Connor for the United States and Jamieson for JSE. O'Connor retained some role in administering the contract, but the parties disagree as to its scope.
In the summer of 1987, O'Connor decided to leave government service. He filed the requisite notice indicating his intention to retire and began discussing employment opportunities with government contractors. A technical representative within SDIO, Peter Franklin, mentioned to Jamieson that O'Connor was retiring and that he would be a helpful addition to JSE's staff. And after Jamieson and O'Connor met, Jamieson offered O'Connor the job of Executive Vice President of JSE, which he accepted as of November 1, 1987.
JSE bid on and received a second and third contract as the previous contracts expired. Siewick alleges that in representing JSE in matters related to these contracts, O'Connor repeatedly violated 18 U.S.C. 207. According to Siewick, these violations began even before O'Connor had fully parted company with the Navy (he had been on terminal leave from November 1, 1987 to January 1, 1988) and continued through to the period covered by the third contract. Siewick claims that these violations taint nearly every invoice submitted on the three contracts.
The district court granted summary judgment in favor of the defendants on the claims premised upon 207 violations. The court found both that Siewick's evidence was insufficient as a matter of law to prove a violation of 207 and that even if 207 had been violated, the violation did not transform the invoices into false claims. But it denied the defendants' motion for summary judgment on Siewick's claims premised upon padding and falsification of time sheets; those claims remain before the district court. Siewick requested that the district court enter final judgment pursuant to Fed. R. Civ. P. 54(b) on his 207 claims, and the district court granted this request after explicitly finding no just reason for delay. Siewick filed a timely appeal.
After hearing oral argument we ordered this case held in abeyance pending the Supreme Court's decision in Vermont Agency of Natural Resources v. United States ex rel. Stevens, ___ U.S. ____, 120 S. Ct. 1858 (2000); the Court had expressed interest in standing in qui tam actions generally, Stevens, 120 S. Ct. at 523 (expanding cert. grant). As the Court ultimately found no generic lack of standing, Stevens, 120 S. Ct. at 1863, 1865, and as we see no particular infirmity here, we turn to the merits.
We review a district court's grant of summary judgment de novo; a party is not entitled to summary judgment if a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). We assume in favor of Siewick that his case could withstand summary judgment on the proposition that JSE violated 207. But we find that 207 violations would not in themselves render JSE's invoices "false claims" covered by the Act.
The Act establishes liability for anyone who "knowingly presents, or causes to be presented, to an officer or employee of the United States Government ... a false or fraudulent claim for payment or approval." 31 U.S.C. 3729(a)(1).Siewick's problem is that because of defects in his theories and the evidence, a reasonable jury could not find that JSE knowingly presented a false or fraudulent claim.
For both theories it is essential that the vouchers and invoices at issue here constitute "claims" within the meaning of the Act. They do. A "claim" is "any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient." Id. 3729(c). Indeed, any request for payment is properly considered a claim for purposes of the FCA. See United States v. Neifert-White Co., 390 U.S. 228, 233 (1968); see also United States ex. rel. Schwedt v. Planning Research Corp., 59 F.3d 196, 203 (D.C. Cir. 1995).
Siewick's first theory--that the vouchers made an "implicit certification" of non-violation of 207--is a non-starter. It is doomed by the rule, adopted by all courts of appeals to have addressed the matter, that a false certification of compliance with a statute or regulation cannot serve as the basis for a qui tam action under the FCA unless payment is conditioned on that certification. As the Ninth Circuit said,
Violations of laws, rules, or regulations alone do not create a cause of action under the FCA. It is the false certification of compliance which creates liability when certification is a prerequisite to obtaining a government benefit.
United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir. 1996) (second emphasis added). Courts have been ready to infer certification from silence, but only where certification was a prerequisite to the government action sought. See, e.g., Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 793 (4th Cir. 1999) (). See also United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456, 461 (5th Cir. 1977); compare United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 902 (5th Cir. 1997) (). Siewick points to nothing suggesting that JSE was required to certify compliance with 207 as a condition of its contract. Thus his claim of implied certification fails.
The assessment of Siewick's second theory--that JSE's invoices contained "expressly false" statements--turns in part on the FCA's definition of "knowingly." It says that a defendant acts "knowingly" if he "(1) has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information." Id. 3729(b).The key issue, then, is whether (assuming violations of 207) JSE's claims were knowingly false or fraudulent.
The invoices in the record request that the U.S. Government pay JSE "the sums owing for all work performed" under the relevant contract and certify that (1) "all these charges are for work authorized and performed under the referenced contract and that payment has not been received," (2) "all claims are consistent with this clause," and (3) "the required deliveries ... have been made to the distribution specified in the contract." The parties agree that these statements "inform[ ] the government that work which entitles JSE to reimbursement has been performed." See Appellee's Br. at 27....
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