# The United States of America ex rel Jesse M. Polansky, M.D., M.P.H. v. Geisinger Holy Spirit

> District Court, M.D. Pennsylvania · April 30, 2025

URL: https://www.frixlaw.com/law-library/cases/10900372

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** April 30, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

THE UNITED STATES OF
AMERICA ex rel. JESSE M.
POLANSKY, M.D., M.P.H.,

Plaintiff, CIVIL ACTION NO. 1:20-cv-00599

v. (SAPORITO, J.)

GEISINGER HOLY SPIRIT, et al.,

Defendant.

MEMORANDUM
This is a False Claims Act (“FCA”) action brought on behalf of the
United States by a relator, Jesse M. Polansky, M.D., M.P.H.
The relator, Dr. Polansky, is a licensed physician with broad-based
Medicare, Medicaid, and commercial health insurance experience in
evidence-based medicine, utilization review, and informatics. The
amended complaint alleges that, after spending eight years as a senior
medical officer at a federal agency, the Centers for Medicare & Medicaid
Services (“CMS”), Dr. Polansky was employed in this same field by a
series of private-sector employers: Executive Health Resources, Inc.
(“EHR”) for a two-month period between December 2011 and February
2012; Health Management Systems, Inc., for a period of months between
the fall of 2012 and the summer of 2013; Holy Spirit Health System for a

six-month period between December 2013 and May 2014; Delmarva
Foundation for an unspecified period during 2014; and Summit Health,
for a period of months between the spring of 2015 and August 2015.

Dr. Polansky alleges that the defendants—Geisinger Holy Spirit,1
Geisinger Community Medical Center,2 Geisinger Medical Center,3 and
Spirit Physician Services, Inc.4—participated a years-long scheme to

submit fraudulent claims for payment to the United States government.
The gist of the amended complaint is that the defendants relied on the
fraudulent policies and practices of a billing vendor—Dr. Polansky’s

former employer, EHR—to exploit differences in reimbursement rates for

1 So named in the amended complaint. Geisinger Holy Spirit,
formerly known as Holy Spirit Hospital, is a not-for-profit hospital
located in Cumberland County, Pennsylvania. It became a Geisinger
affiliate in 2014. It was later acquired by Penn State Health in 2020, and
it is now known as Penn State Health Holy Spirit Medical Center.
2 Geisinger Community Medical Center is a not-for-profit hospital
located in Lackawanna County, Pennsylvania, operated by Geisinger
Health System.
3 Geisinger Medical Center is a not-for-profit hospital located in
Montour County, Pennsylvania, operated by Geisinger Health System.
4 Spirit Physician Services, Inc., is a not-for-profit organization that
manages primary care and specialty physician practices in affiliation
with Geisinger Holy Spirit. The amended complaint alleges that it is
owned by Geisinger Health System.
inpatient and outpatient services, causing them to systematically bill

Medicare and Medicaid for medical services provided to thousands of
patients at higher inpatient rates, instead of lower outpatient rates.
“The FCA’s provisions authorize private persons to bring

civil enforcement actions on behalf of the United States and to collect a
portion of damages that may be awarded if an FCA violation is proven.”
, 327 F. Supp. 3d 358, 361

(D. Mass. 2018).
The [FCA] requires a [relator], before
proceeding with suit, to disclose to the government the
information on which the claim is based. The
government then has sixty days to investigate the
matter and to decide whether to intervene. The
government also has the option to step into the action
at a later date. In either case, the relator is not entitled
to a recovery under the [FCA] if the action is one which
runs afoul of the jurisdictional bars contained in 31
U.S.C. § 3730(e).
, 123 F.3d 734, 738
(3d Cir. 1997) (citations omitted).
The defendants here have moved to dismiss this action under one
of these jurisdictional bars, the government action bar,5 which provides

5 The defendants assert several other grounds for dismissal as well,
which we do not reach.
that: “In no event may a person bring [a False Claims Act action]

which is based upon allegations or transactions which are the subject of
a civil suit or an administrative civil money penalty proceeding in which
the Government is already a party.” 31 U.S.C. § 3730(e)(3). Although the

FCA’s financial incentive encourages whistle-blowing relators with
genuinely valuable insider information to expose fraud, it also attracts
parasitic suits based on information already known to the government.

, 559 U.S. 280, 294 (2010);
, 9 F.4th 269, 271–72 (5th Cir. 2021); , 327 F. Supp.

3d at 361. The government action bar is intended to discourage such
opportunistic behavior. , 9 F.4th at 271–72; , 327
F. Supp. 3d at 361–62. Thus, this statutory provision “must be analyzed

in the context of the twin goals of rejecting suits which the government
is capable of pursuing itself, while promoting those which the
government is not equipped to bring on its own.”

, 292 F. Supp. 3d 570, 576 (D.R.I.
2017) (internal brackets omitted) (quoting
, 24 F.3d 320, 326 (1st Cir. 1994), and
, 14 F.3d 645, 651

(D.C. Cir. 1994)).
The defendants contend that the instant action is barred
because it is duplicative of a prior action initiated by this same

relator concerning the very same allegedly fraudulent scheme,
( ), 422
F. Supp. 3d 916 (E.D. Pa. 2019), , 17 F.4th 376 (3d Cir. 2021), ,

599 U.S. 419 (2023). To prevail on their motion to dismiss, the defendants
must show that: (1) the instant action is “based upon” the same
“allegations or transactions” involved in the prior litigation; and (2) the

government “is already a party” to that prior litigation. , 327
F. Supp. 3d at 362.
In , the relator alleged that EHR exploited a difference

in reimbursement rates for inpatient and outpatient services,6 causing
its approximately 2,400 client hospitals to fraudulently bill Medicare and
Medicaid by falsely designating patient admissions as inpatient when

6 , 422 F. Supp. 3d at 919 n.3 (noting the relator’s
allegation that “Medicare generally pays about $4,000–$5,000 more for
inpatient services . . . than it does when the same services are provided
to a patient classified as outpatient observation”).
they should have been marked as outpatient instead.7 The relator filed

his original complaint in under seal on July 26, 2012, and the
government declined to intervene on June 27, 2014. The then-operative
second amended complaint was served on EHR and other defendants.

Those defendants filed a motion to dismiss, which was denied on July 26,
2016.8
The parties conducted extensive discovery. This apparently

included several discovery motions, one of which resulted in the
imposition of sanctions against the relator for his belated production of a

7 , 422 F. Supp. 3d at 919 n.4 (“[T]here are two
potential levels of review for a physician’s initial determination of
whether a patient should be classified as inpatient or outpatient. At the
first level, a review is conducted by an internal hospital committee using
standard industry criteria. If the internal committee determines that a
patient does not qualify for inpatient designation, many hospitals then
have a physician advisor, such as [EHR], conduct a second level review.
After physician advisor review, the hospital—not the physician advisor—
submits the claim to Medicare or Medicaid. Relator alleges that [EHR],
as a physician advisor conducting second level reviews (i.e., reviewing the
determination of the internal review committee that a patient does not
qualify for inpatient status), ‘knowingly misconstrued regulations when
reviewing hospital admission determinations, fraudulently certifying
‘thousands upon thousands of cases’ for hospitals to submit to Medicare
and Medicaid as inpatient claims rather than outpatient as
appropriate.’”) (citations and internal brackets and ellipses omitted).
8 , 196 F. Supp. 3d
477 (E.D. Pa. 2016).
DVD containing approximately 14,000 documents he had obtained while

employed at a federal agency, CMS.9
While the parties were litigating that sanctions motion, the
government notified them by email in February 2019 that it intended to

exercise its authority under 31 U.S.C. § 3730(c)(2)(A) to dismiss the case.
The parties and the government then entered into negotiations, and in
May 2019 the government notified the court that it did not

intend to exercise its dismissal authority, provided that the relator
proceeded on his claims under a significantly narrowed framework. But
the government reserved its right to reevaluate whether dismissal was

warranted based on future developments.
The relator then filed his third amended complaint, purportedly
adhering to that narrowed framework negotiated with the government,

and discovery continued. Soon, however, it became apparent that
disagreements remained between the government and the relator as to
the appropriate scope of the relator’s claims under the narrowed criteria

they had negotiated.

9 The relator was also admonished regarding an attempt to
unilaterally change the selection of claims for a bellwether jury trial.
In August 2019, a special master recommended that the

government produce certain documents that it had withheld on the basis
of the deliberate process privilege, and that it produce responsive
documents for additional custodians. The government filed objections to

the special master’s report. The court overruled the objections
with respect to some of the documents, and directed the parties to provide
supplemental briefing as to the rest. On August 20, 2019, apparently

finding the cost of permitting the litigation to continue now outweighed
its potential benefit, the government moved to dismiss the
action pursuant to its authority under 31 U.S.C. § 3730(c)(2)(A). On

November 5, 2019, following briefing and a hearing, the court
granted the government’s motion and dismissed the action. The dismissal
was affirmed on appeal by the United States Court of Appeals for the

Third Circuit on October 28, 2021, and by the Supreme Court of the
United States on June 16, 2023.
While the judgment was pending on appeal, the relator

commenced the instant FCA action, filing his original complaint under
seal on April 10, 2020. In November 2023, the government completed its
investigation of the relator’s claims and declined to intervene, and the
complaint was unsealed and served on the defendants. The defendants

moved for dismissal of that original complaint, and the relator filed his
amended complaint, which is the currently operative pleading in this
matter. The defendants now move for dismissal of the amended

complaint.
We are compelled to conclude that the instant action is indeed based
upon the same allegations or transactions involved in the prior litigation.

The amended complaint alleges the allegedly fraudulent
scheme as the one at issue in , except instead of being directed
at EHR itself, this action is directed at a small subset of EHR’s

approximately 2,400 hospital clients who allegedly overbilled Medicare
and Medicaid in reliance on EHR’s policies and procedures. There is,
frankly, very little daylight between the two cases, with the relator

simply recycling many of the allegations originally asserted in
. , Defs.’ Br. Supp. 23–27 (chart comparing allegations of
and the amended complaint in this case), Doc. 79; Defs.’ Reply

Br. 14–16 (further discussing the same), Doc. 84.
[T]he government action inquiry is essentially a test
of factual similarity. If a relator’s allegations are the
same as allegations already made by the government,
or are similar enough to be characterized as feeding off
of the government’s allegations, the government action
bar applies. By contrast, if a relator’s case is seeking to
remedy fraud that the government has not yet
attempted to remedy, the government bar does not
apply.
, 438 F. Supp. 3d 246, 262 (E.D. Pa. 2020)
(footnote and internal quotation marks omitted).
“When considering the commonality between these ‘allegations [or]
transactions,’ the Court focuses specifically on the ‘allegations or
transactions of .’”

, 531 F. Supp. 3d 247, 264 (D.D.C. 2021) (quoting
, 764 F.3d 699, 707 (7th

Cir. 2014)), , 34 F.4th 29 (D.C. Cir. 2022). Thus, the
FCA’s government action bar “‘prohibit[s] actions when
either the allegation of fraud or the critical elements of the fraudulent

transaction themselves’ are the subject of a governmental civil action or
penalty proceeding.” , 764 F.3d at 707–08 (quoting , 14 F.3d
at 654); , 123 F.3d at 740 (“It is clear that the FCA’s reference

to ‘allegations or transactions’ is in the disjunctive, so that disclosures
which reveal either the allegations of fraud or the elements of the
underlying fraudulent transaction are sufficient to invoke the
jurisdictional bar.”) (considering the FCA’s public disclosure bar under

§ 3730(e)(4), which uses the same “allegations or transactions” language).
If an allegation of fraud has already been made, the
analysis is straightforward. But even if no allegation of
fraud has been made, the [§ 3730(e)(3) government
action bar] may still apply so long as facts disclosing
the fraud itself are in the government’s possession . . . .
In this latter case, the court must determine whether
facts establishing the essential elements of fraud—
and, consequently, providing a basis for the inference
that “fraud has been committed”—are in the
government’s possession . . . .
, 764 F.3d at 708 (quoting , 14 F.3d at 654). As the Third
Circuit has recognized, “the inference of fraud requires recognition of but
two elements: ‘a misrepresented state of facts and a true state of facts.’”
, 123 F.3d at 741 (quoting , 14 F.3d at 655).
Here, we are presented with a “straightforward” case under the
government action bar. It is beyond dispute that the prior FCA action,
, alleged a fraudulent scheme in which EHR and its
approximately 2,400 hospital clients sought to defraud the United States
by overbilling Medicare and Medicaid for medical services provided to
thousands of patients, misclassifying them as inpatient services rather

than less remunerative outpatient services. The instant FCA action
simply asserts these very same of fraud against three of those
2,400 hospital clients, alleging that the three hospital defendants in this

case utilized EHR and its allegedly fraudulent billing policies and
procedures to submit a subset of the very same allegedly fraudulent
transactions—the submission of allegedly fraudulent claims for payment

to Medicare and Medicaid—that were at issue in .10
The relator argues that the instant action nevertheless is not
“based upon” the action because it involves different

defendants,11 and thus seeks to “remedy fraud that the government has
not yet attempted to remedy,” , 438 F. Supp. 3d at 262. But
this argument by the relator is based on a false premise—the fraud

10 Indeed, although it was not named as a defendant in that action,
factual allegations about the billing practices and conduct of Geisinger
Holy Spirit were specifically and extensively pleaded in the
complaint, holding Holy Spirit out as an exemplar of EHR hospital
clients. These facts apparently were known to Dr. Polansky because he
was employed by Holy Spirit as a physician advisor for a six-month period
prior to its affiliation with Geisinger Health Systems.
11 In , the named defendants included EHR, several of its
corporate parent companies, and two of EHR’s client hospital systems
located in California and Connecticut. Although it was not a named
defendant, the complaint included extensive factual
allegations regarding the conduct and practices of Holy Spirit, as
observed by Dr. Polansky while employed there. Although not specifically
identified in the complaint, based on the facts alleged in this
case, Geisinger Community Medical Center and Geisinger Medical
Center were evidently among the 2,400 hospital clients of EHR described
in the complaint.
alleged in the case is the very same fraud alleged in this case,

and thus this case seeks to remedy the very same fraud as the earlier
one. In , it was alleged that EHR conducted second-tier
utilization reviews for its approximately 2,400 hospital clients—

including the three hospital defendants named in this case—reversing
internal review committee decisions that patients did not qualify for
inpatient status. It was alleged that EHR misconstrued applicable

federal regulations to certify thousands of such cases to permit its
hospital clients to submit those claims to Medicare and Medicaid as
inpatient claims. In this case, the three hospital defendants are alleged

to have relied on EHR and its billing practices and procedures to conduct
these same utilization reviews, obtaining allegedly fraudulent
certifications for hundreds of cases, which they then submitted to

Medicare and Medicaid for payment as inpatient claims. This second FCA
action merely shifts the target of litigation from EHR itself to three of its
hospital clients who actually submitted some of those same allegedly

fraudulent EHR certifications in support of their claims for payment to
Medicare and Medicaid.12 Thus, it is clear to the court that, irrespective

of the particular defendants named in the instant amended complaint,
the instant FCA action is based upon the very same allegations or
transactions as those involved in

, 552 F.3d 503, 514 (6th Cir. 2009) (where the
primary focus of fraud allegations in a FCA action were contained
in a prior lawsuit, the action was based on the same allegations

or transactions, despite the inclusion of additional factual detail and
different or additional defendants in the second action) (considering the
FCA’s public disclosure bar under § 3730(e)(4), which uses the same

“allegations or transactions” language),
, 3 F.4th 813 (6th Cir. 2021);
, 84 F. Supp. 3d

12 The amended complaint in this second FCA action adds some
factual allegations to suggest that officials at Holy Spirit knew that the
billing practices at issue were questionable, but the fraudulent scheme
itself remains the same as in the prior FCA action against EHR. It also
adds a non-hospital defendant affiliated with Holy Spirit Hospital, Spirit
Physician Services, Inc., which allegedly participated in this very same
fraudulent scheme, benefiting from Holy Spirit Hospital’s systemic
misclassification of patients as inpatients rather than outpatients, which
in turn permitted the physician group to bill related physician services
to Medicare at higher inpatient rates as well.
575, 590 (S.D. Tex. 2015) (same).

The relator further argues that the government action bar does not
apply to this case because, at this point, the government is no longer a
party to , as that case has been dismissed by final order.13 The

relator points to the language of the statute, which uses the present tense
in referring to the government’s status as a party to the prior action,
contending that the government ceased to be a party to the

action when that action was dismissed. 31 U.S.C. §3070(e)(3)
(barring a later FCA action “based upon allegations or transactions which
the subject of a civil suit . . . in which the Government already a

party”) (emphasis added). But “[t]he opposite conclusion comports more
with the reality of litigation: a person remains a party to his suit, even
after the suit’s conclusion.”

, 876 F.3d 1011, 1017 (9th Cir. 2017). Unlike a neighboring
provision—the FCA’s first-to-file bar, 31 U.S.C. § 3730(b)(5)—the
statutory language of the FCA’s government action bar contains no

language to suggest any limitation to actions.

13 “At this point” because was still pending on appeal at
the time when the original complaint in this second FCA action was filed.
§ 3730(b)(5) (“[N]o person other than the Government may . . . bring a

related action based on the facts underlying the action.”)
(emphasis added), § 3730(e)(3) (“In no event may a person bring [a
False Claims Act action] which is based upon allegations or

transactions which are the subject of a civil suit or an administrative civil
money penalty proceeding in which the Government is already a party.”);
, 876 F.3d at 1018 (“Congress could have utilized the

term ‘pending’ to express the intention for § 3730(e)(3) to lose effect once
the prior action was dismissed.”); , 292 F. Supp. 3d at 579 (“Had
Congress wanted the government action bar to have the same reach as

the pending case bar, it likely would have included [the word
“pending.”]”). Indeed,
[i]f the reading of the statute were as the [relator]
suggests, such that a government action bar dissolves
whenever a suit in which the Government is a party is
dismissed, the central policies behind the government
action bar would be undermined. For example, after
the Government is made aware of, investigates,
intervenes in, and settles a suit, subsequent
original source relators . . . could allege the same fraud,
bring identical lawsuits, and bring no additional
benefit to the Government except the recovery of
additional funds. This would be plainly contrary to the
purpose of the government action bar: to promote the
exposure of additional fraud while weeding out
duplicative suits the Government is capable of
pursuing on its own. Where the Government already
has been party to a suit based on the same allegations,
the Government is clearly capable of pursuing the suit
itself, and the government action bar should prohibit
these duplicative successor suits.
, 292 F. Supp. 3d at 580; , 876 F.3d at 1016 (“Both
common sense and statutory language demonstrate that the Government
remains a ‘party’ even after the cessation of its enforcement action. . . .
[T]he government-action bar applies even when the Government is no
longer an active participant in an ongoing lawsuit.”). Thus, we

find the government action bar applicable to this case, despite the
ultimate dismissal of .

Finally, the relator argues that the government action bar is limited
to allegations or transactions in a prior suit
, rather than a relator. But that proposition finds no support

in the statutory language of the government action bar, which contains
no such restriction, providing only that a FCA action is
jurisdictionally barred if it is “based upon allegations or transactions

which are the subject of a civil suit . . . in which the Government is
already a party,” 31 U.S.C. § 3730(e)(3).
In support of his argument, the relator cites to in three case
law decisions: (1)

, 24 F.3d 320, 328 (1st Cir. 1994); (2)
, 153 F.3d 667 (8th Cir. 1998); and (3)

, No. 09-4230, 2013 WL 3327505 (E.D. Pa.
July 2, 2013).
In , the First Circuit considered a FCA action

involving the acquisition by the Federal Deposit Insurance Corporation
(“FDIC”) of certain promissory notes issued by an insolvent company, S.
Prawer & Co. (“Prawer”).

In July 1991, serving as a receiver, the FDIC supervised a transfer
of assets from a defunct bank to Fleet Bank of Maine (“Fleet”). The
contract between the FDIC and Fleet—the “Assistance Agreement”—

provided that Fleet had the right to “put,” or cause the FDIC to
repurchase, any loans acquired by Fleet from the defunct bank. Among
the assets transferred to Fleet from the defunct bank were five

promissory notes given to the defunct bank by Prawer, representing $1.1
million that Prawer had drawn against a $2 million line of credit issued
by the defunct bank. Prawer entered into a new agreement with Fleet for
a $2 million line of credit. Prawer drew upon this new line of credit to

fully satisfy its obligations under the original notes, and it continued to
draw on that line of credit. By May 1992, Prawer had drawn $1.6 million
against its $2 million line of credit with Fleet, represented by seven

promissory notes. On May 1, 1992, Prawer informed Fleet that it had sold
virtually all its assets to another company. On May 6, 1992, Fleet
exercised its right under the Assistance Agreement’s put-back provision

to cause the FDIC to purchase the $1.6 million in Prawer promissory
notes. In November 1992, the FDIC brought an action against Prawer
and other defendants, seeking to collect upon the notes put back to it

pursuant to the Assistance Agreement. It also alleged that the sale of
Prawer’s assets was a fraudulent conveyance because Prawer had been
insolvent and peddled its assets for less than full value to settle debts to

certain creditors. After responding to the FDIC’s complaint, Prawer filed
a third-party complaint against Fleet and one of its subsidiaries,
asserting that the notes were not putable under Fleet’s contract with the

FDIC. The collection case was settled before the court issued a ruling on
any of the parties claims and defenses. , 24 F.3d at 323.
In June 1993, the relators filed a FCA action,
alleging that Fleet, a corporate subsidiary of Fleet, a law firm and

individual lawyers that represented Fleet and its subsidiary, and an
FDIC staff attorney had created and used false records and statements
to cause the government to pay Fleet $1.6 million for the Prawer notes

pursuant to the put-back provisions of the Assistance Agreement. Shortly
after it was filed, the action was dismissed by the court
, relying on the government action bar. at 323–24.

On appeal, however, the First Circuit reversed the district court’s
decision, concluding that the action was not “parasitic” of the
prior collection action—i.e., the action before it was not based

upon allegations or transactions of fraudulent conduct that were the
subject of the earlier collection action. The appellate court identified two
facts that combined to compel its decision. First, the appellate court noted

that the earlier collection case brought by the FDIC did not involve any
claims whatsoever by the FDIC against Fleet or the other
defendants, much less fraud claims against them.14 Second, the appellate

14 As noted above, the FDIC’s prior action sought to collect on the
notes put back to it by Fleet. The only fraud alleged was the fraudulent
conveyance of assets from an insolvent Prawer to another company for
less than full value. The action was based on an entirely separate
court noted that the two cases involved entirely different transactions—

the action involved Fleet’s put-back of the Prawer notes pursuant
to its contract with the FDIC, and the collection action involved Prawer’s
making of the notes and alleged failure to satisfy them. In , the

appellate court contrasted the case before it against the prototypical case
it imagined Congress had in mind when it drafted the government action
bar: “i.e., a action based upon allegations or transactions

in an attempt to recover for fraud committed against
it.” at 328.
The relator primarily relies on an Eighth Circuit decision, ,

which quoted this in out of context, refashioned into a
more restrictive rule by adding the word “only,” for reasons that are
unclear. , 153 F.3d at 676 (“[T]his section will typically bar

only a ‘ action based upon allegations or transactions pleaded
in an attempt to recover for fraud against it.’”). But, as
in , this observation by the court was .

involved a FCA action against various contractors based upon

and distinct allegation of fraudulent conduct by Fleet and others involved
in Fleet’s exercise of the put-back provision.
allegations of fraud involving the submission of false claims for payment

for environmental remediation work completed at a particular Superfund
site. The defendants sought dismissal under the government
action bar, pointing to a long history of federal and state litigation and

administrative proceedings involving the assessment of liability for the
cost of environmental remediation at that same Superfund site.
at 671–73. The appellate court rejected that argument, holding that the

false claims action simply was not based upon any allegations or
transactions of fraudulent conduct that were the subject of these prior
environmental cleanup liability proceedings. at 676.

The of both of these out-of-circuit opinions was the
same: a FCA action cannot be precluded under the government
action bar where the allegations or transactions of fraudulent conduct

upon which the action is based were simply not present in earlier
litigation or administrative proceedings. The passages relied upon by the
defendants in this case are .

The relator also cites an Eastern District of Pennsylvania case,
, in support of his argument. While the court referenced
the in passing, quoting it in summarizing the FCA’s
government action bar, , 2013 WL 3327505, at *9 (“This

section will typically bar only a action based upon allegations or
transactions pleaded by the government . . . .”) (ellipses in original)
(quoting , 153 F.3d at 676), the court’s recitation of the

rule is itself as well, playing no role whatsoever in the
court’s ultimate determination that the complaint before
it simply did not rely on the same facts and evidence included in an

earlier U.S. Department of Labor (“DOL”) investigation.15 *12–13.
Thus, we find the relator’s argument on this final point
unpersuasive and entirely unsupported by the statutory text of

§ 3730(e)(3).
Accordingly, we find that our exercise of jurisdiction in this

15 In , the relator alleged that the defendant contractor
systematically misclassified a significant number of its workers on
federally funded transit projects for the purpose of paying those workers
a lower wage than required by federal labor laws, permitting it to
underbid competitors. The defendant argued that the action was
precluded by the government action bar, pointing to an earlier DOL audit,
in which the only violation found was the underpayment of holiday wages
to four employees who performed carpentry work over a holiday weekend.
, 2013 WL 3327505, at *11. Ultimately, the court
concluded that government action bar did not apply because, although
the action and the prior DOL investigation involved some similar
underlying facts, the earlier investigation did not involve any allegations
or transactions of fraudulent conduct at all. at *12–13.
FCA action is precluded by the government action bar, 31 U.S.C.

§ 3730(e)(3), as it is based upon allegations or transactions of fraudulent
conduct which are the subject of a prior civil suit in which the government
is already a party, . The defendants’ motion to dismiss will be

granted and this action will be dismissed for lack of subject matter
jurisdiction.
An appropriate order follows.

Dated: April 30, 2025
JOSEPH F. SAPORITO, JR.
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10900372. Public record. Not legal advice.