Varljen v. Cleveland Gear Co., 99-4312

Citation250 F.3d 426
Decision Date28 November 2000
Docket NumberNo. 99-4312,99-4312
Parties(6th Cir. 2001) Ivan Varljen; Milena Varljen; Euclid Welding Co., Inc.; United States, ex rel., Plaintiffs-Appellants, v. Cleveland Gear Co., Inc.; Dana C. Lynch; Vesper Corporation; James Krava, Defendants-Appellees. Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 96-01651, Paul R. Matia, Chief District Judge. [Copyrighted Material Omitted] Angeline R. Brozovich, Shaker Heights, Ohio, for Appellants.

John Winship Read, David J. Tocco, VORYS, SATER, SEYMOUR & PEASE, Cleveland, Ohio, for Appellees.

Irene M. Solet, Douglas N. Letter, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION, APPELLATE STAFF, Washington, D.C., for Amicus Curiae.

Before: NELSON, SILER, and CLAY, Circuit Judges.


SILER, Circuit Judge.

Plaintiffs, Euclid Welding Co., Inc., and its owners, Ivan and Milena Varljen ("Relators"), appeal the Federal Rule of Civil Procedure 12(b)(6) dismissal of this qui tam action for recovery under 31 U.S.C. §§ 3729(a)(1) and (a)(2) of the False Claims Act ("FCA"). The district court granted the motion to dismiss filed by the defendants, Cleveland Gear Co., Inc., Dana C. Lynch, Vesper Corporation and James Krava (hereinafter "Cleveland Gear"), because the Relators had not alleged that the United States had suffered an injury in its dealings with Cleveland Gear. For reasons stated hereafter, we REVERSE.


Relators had a contract with the United States Department of Defense to build 400 winches. They subcontracted with Cleveland Gear to produce worm gears for inclusion in the winches. The subcontract required that Cleveland Gear submit the first batch of ten gears to Relators for inspection and approval of one gear in the batch. Upon approval, subsequent batches were to be produced by the same manufacturing process. Pursuant to the "Quality Assurance Requirement" for this contract, Relators had to be notified of changes in the manufacturing process that would "affect fit, function, or service life of the item" and samples of gears so produced had to be approved by the Relators. Government inspection and approval of all gears were required before they left Cleveland Gear's plant.

In 1992, Cleveland Gear produced an initial batch of ten gears and shipped them to Relators. After further manufacturing, Relators submitted one item from this batch to the government for approval, which was obtained. Thereafter, Cleveland Gear produced additional batches and presented each group for government inspections prior to shipment to Relators. The government accepted some of these items and rejected others. Approved items were shipped to Relators, incorporated into the winches and shipped to the government. The government was billed and paid for winches containing the approved gears.

Relators filed this qui tam1 action, alleging violations of the FCA and pendent state common law claims of fraud and breach of contract. With regard to the FCA claims, Relators alleged that Cleveland Gear had changed the worm gear manufacturing process without notice after the approval of the initial batch of gears. They alleged that this change violated the contract specifications and was an attempt to produce gears more cheaply that would nonetheless pass government inspection. The Relators' amended complaint, which the district court denied leave to file, alleged that winches containing the gears produced under the different process "could, if they have not already, pose serious injury to persons connected with the Department of Defense." The amended complaint also alleged that the government would have rejected the gears produced by the changed manufacturing process if the different process had been known at the time of inspection.

The government declined to intervene in the case. The district court granted Cleveland Gear's motion to dismiss for failure to state a claim, denied leave to file an amended complaint as futile, held that the Relators' motion for summary judgment was mooted by the dismissal and concluded that it lacked subject matter jurisdiction over the state common law claims. The government filed a brief as amicus curiae in support of the Relators and of reversal.


This court reviews de novo a district court's dismissal for failure to state a claim upon which relief can be granted. See Glassner v. R.J. Reynolds Tobacco Co., 223 F.3d 343, 346 (6th Cir. 2000) (citing Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir.1996)). "To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a 'complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'"Id. (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988)).

For purposes of this review, the court must consider as true the well-pleaded allegations of the complaint and construe them in the light most favorable to the plaintiff. However, this court "need not accept as true legal conclusions or unwarranted factual inferences." Gregory v. Shelby County, Tennessee, 220 F.3d 433, 446 (6th Cir. 2000) (citing Mixon v. State of Ohio, 193 F.3d 389, 400 (6th Cir.1999)). "In order for a dismissal to be proper, it must appear beyond doubt that the plaintiff would not be able to recover under any set of facts that could be presented consistent with the allegations of the complaint." Glassner, 223 F.3d at 346.


The Relators sued under FCA provisions that provide for treble damages and civil penalties up to $10,000 for each violation when someone:

(1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; [or] (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government.

31 U.S.C. § 3729(a)(1) and (a)(2).

The broad language of these provisions provides the somewhat unique contours of a sustainable qui tam action under the FCA. Consistent with these provisions, recovery under the FCA is not dependent upon the government's sustaining monetary damages. See S. Rep. No. 99-345, at 8 (1986), U.S. Code Cong. & Admin.News 1986. 5266; Schwedt v. Planning Research Corp., 59 F.3d 196, 199 (D.C. Cir. 1995). Likewise, the failure to comply with government contract specifications can result in an FCA "injury" to the government, even if the supplied product is as good as the specified product. See United States ex rel. Compton v. Midwest Specialities, Inc., 142 F.3d 296, 304 (6th Cir. 1998). The government's inspection and acceptance of a product do not absolve a contractor from liability for fraud under the FCA. See United States v. Aerodex, Inc., 469 F.2d 1003, 1009 (5th Cir. 1972) (affirming FCA liability because products did not conform to contract specifications, even though the supplied product had the same basic performance characteristics). Finally, even the government's knowledge of a fraud does not necessarily absolve a contractor from liability under the FCA. See United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th Cir. 1991). The parties to this action agree upon these points of law.

"Parties that contract with the government are held to the letter of the contract -- irrespective of whether the contract terms appear onerous from an ex post perspective, or whether the contract's purpose could be effectuated in some other way -- under the maxim that '[m]en must turn square corners when they deal with the Government.'" Midwest Specialities, Inc., 142 F.3d at 302 (emphasis added).

The Relators and the government argue that the district court erred by granting Cleveland Gear's motion to dismiss because it incorrectly: (1) held that the Relators had not alleged that the government had been injured by Cleveland Gear's conduct and that the complaint was therefore legally insufficient under the FCA; (2) held that the government had not been injured because the inspection and acceptance of the gears precluded Relators from showing that the gears were defective; and (3) disregarded Relators' allegation that gears produced by the manufacturing method different from that used to produce the...

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