The purpose behind the False Claims Act, or FCA, is to help the government combat fraud perpetrated by persons or organizations that provide goods or services to the federal government. See United States ex rel. v. John Doe Corp, 960 F.2d 318, 319 (2nd Cir. 1992). Section 3729(a)(1) of the FCA establishes liability against those who submit false claims for payment by the government and contains several different measures designed to enhance both deterrence and enforcement. United States ex rel. Kirk v. Schindler Elevator Corp., 601 F.3d 94,99 (2nd Cir. 2010).

The elements of a qui tam include: (1) a false claim was made; (2) to the United States government; (3) which is false or fraudulent; (4) knowing of the claim’s falsity; and, (5) seeking payment from the federal government. Id. at 114, citing Mikes v. Straus, 274 F.3d 687, 695 (2nd Cir. 2001). There are several variations to the way a claim is defined as “false” under the FCA. For example, a claim submitted to the government may be factually false or legally false. A factually false claim occurs when a government contractor supplies “an incorrect description of goods or services provided or a request for reimbursement for goods or services never provided.” Mikes v. Straus, 274 F.3d at 697. A legally false claim, in contrast, occurs “where a party certifies compliance with a statute or regulation as condition to government payment.” Id.

A factually false claim typically arises when a contractor bills for something it never provided. In these instances, the “application of the FCA is fairly straightforward.” Schindler Elevator, 601 F.3d at 114. Legally false claims, however, may not be as “cut and dry.” Legally false claims can be broken down further into express false certification and implied false certification claims. An express false certification claim arises where a claimant, or “relator,” falsely certifies compliance with a particular statute, regulation or contractual term where compliance is a prerequisite to payment. Schindler, 601 F.3d at 114. In contrast, under an “implied certification theory,” there can still be liability against a government contractor even though no express certification is required.

The Second Circuit in Mikes v. Straus explained “implied certification” liability in qui tam litigation as follows:

Implied false certification is appropriately applied … when the underlying

statute or regulation upon which the plaintiff relies expressly states the

provider must comply in order to be paid … Liability under the act may

properly be found therefore when a defendant submits a claim for [payment]

while knowing … that payment expressly is precluded because of some

noncompliance by the defendant.

Schindler and Mikes illustrate the varying ways to establish liability under the False Claims Act. In Schindler, for example, the Second District found that the relator had established a valid claim under the FCA when he alleged Schindler, a government contractor, failed to file required reports in accordance with federal regulations.

The regulation at issue in Schindler required Schindler certify that it had submitted certain reports at the time it made a bid for government business. The required report, titled a Vets-100 Report, lists the number of veterans employed by a government contractor. These reporting requirements, the court noted, were important enough that Congress made fulfillment of the report a precondition for payment to the contractor. Schindler, 601 F.3d at 117; see also, 31 U.S.C. § 1354(a)(1). The relator in Schindler alleged a valid claim, the court held, by alleging Schindler filed reports that “purported to detail the number of covered veterans in its workforce while in fact the company took no measures to identify such veterans.” Id. at 117.

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Jason Cornell is an attorney who represents whistleblowers with the law firm Clark Fountain LaVista Prather Keen & Littky-Rubin. Clark Fountain represents plaintiffs in various matters throughout the United States. If you have questions regarding the issues addressed in this or other posts, you can reach Jason at 561 899-2111, or jcornell@clarkfountain.com.