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Tort/Negligence – False Claims Act – Insufficient ‘Presentment’ Allegations – Air Force Maintenance Contracts

By: Teresa Bruno, Opinions Editor//September 18, 2017

Tort/Negligence – False Claims Act – Insufficient ‘Presentment’ Allegations – Air Force Maintenance Contracts

By: Teresa Bruno, Opinions Editor//September 18, 2017

United States ex rel. Grant v. United Airlines, Inc. (Lawyers Weekly No. 002-136-17, 17 pp.) (David Norton, J.) 2:15-cv-00794; D.S.C.

Holding: Despite detailed allegations about defendant’s purported failures to properly maintain U.S. Air Force planes, the relator has failed to describe the time, place and contents of any false representations made by defendant to the government.

The court grants defendant’s motion to dismiss plaintiff’s False Claims Act complaint.

The relator, a maintenance technician for defendant United Airlines, Inc. (United), alleges a complex multilayer agreement among United, Boeing, and Pratt & Whitney, the manufacturer of the engines for the Boeing C-17 Globemaster III aircraft used by the U.S. Air Force. But what the relator fails to allege is (1) whether United’s “pencil-whipped” maintenance work was actually presented to the government and, if so, which entity presented the claims and (2) that these deficient repairs were not caught and remedied by a company at a higher level in the subcontractor agreement, namely by either Boeing or Pratt & Whitney. Furthermore, the complaint alleges no payments, dates, or other indicia of reliability by which to determine if United actually submitted claims to the government.

An Inspector General report which states that Pratt & Whitney’s conduct “may have” resulted in the Air Force paying unreasonable prices for engine sustainment services does not necessarily implicate United in the investigation regarding price reasonableness for maintenance of the C-17 engines—indeed, the report does not allege any wrongdoing by United at all.

When, as here, a defendant’s actions could have but need not necessarily have led to the submission of false claims, a relator must allege “with particularity” that specific false claims actually were presented to the government for payment. The relator does not include any evidence of a claim actually being submitted to the government.

The relator also alleges that United violated 31 U.S.C. § 3729(a)(1)(B) by keeping false records, including job information cards, customer maintenance tags, and certificates of conformance. However, where the relator has not alleged a false claim, his false records claim fails as a matter of law.

With regard to the relator’s retaliatory discharge claim, protected activity includes both (1) acts done in furtherance of an FCA claim and (2) other efforts to stop one or more violations of the FCA. Mere reporting of concerns to supervisors does not amount to protected activity under the FCA.

While the relator’s email to United’s managing director of maintenance, repair, and overhaul, Mark Eldred, expresses his concern with the method by which United was conducting repairs on the C-17 engines, it does not indicate that the relator was reporting his concern because he was concerned about fraud on the government as a result of United’s tool maintenance. An employer is entitled to treat a suggestion for improvement as what it purports to be rather than as a precursor to litigation. There is no allegation of impropriety or illegality by United that the relator includes in his email to Eldred.

Raising concerns is not the same as warning of impending FCA litigation. The relator has not sufficiently pled that he engaged in protected activity.

Motion granted.

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