# Opposition Brief — United States ex rel. Willis v. General Dynamics Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1104

## Text

No. 95-1167

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995

UNITED STATES OF AMERICA, ex rel.
MURRAY W. LINDENTHAL; DONALD WILLIS

Petitioners,
Vv.
GENERAL DYNAMICS CORPORATION

Respondent.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit

BRIEF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI

MARK R. TROY
Counsel of Record
MICHAEL T. KAVANAUGH
SUSAN A. MITCHELL
McKenna & Cuneo, L.L.P.
444 South Flower Street
8th Floor
Los Angeles, California 90071
(213) 243-6170

Attorneys for Respondent,
GENERAL DYNAMICS CORPORATION

oY _
F et

i
QUESTIONS PRESENTED

General Dynamics takes issue with the questions
presented in the petition, which merely summarize

petitioner's arguments. General Dynamics believes the
questions to be as follows:

1. Is an award of "costs" under Fed.R.Civ.P. 54(d) to
the prevailing defendant in a qui tam action brought under
the civil False Claims Act, 31 U.S.C. §§ 3729 et seq.,
precluded by 31 U.S.C. § 3730(d)(4), which provides for an
award of attorneys’ fees and expenses if the action is proved
to be "clearly frivolous?"

2. Did the courts below err in concluding that General
Dynamics did not submit any false claims to the
government?

‘i
PARTIES TO THE PROCEEDING

The petition did not identify the parties to the
proceeding. The parties are pro se petitioner Donald B.
Willis (hereafter referred to as "Mr. Willis") and respondent
General Dynamics Corporation ("General Dynamics"). It
appears that Murray W. Lindenthal, a co-plaintiff in the
action below, is not a party to this proceeding.

For purposes of further clarification, General Dynamics
notes that this action was brought under the so-called "gui
tam" provisions of the civil False Claims Act (31 U.S.C.

§ 3730), which enable a private citizen (often referred to as a
"relator") to bring a false claims action on behalf of the
federal government. The United States, which is identified
in the case caption, has a right of intervention in all gui tam
actions. In this action, "[tJhe relators prosecuted the action
on their own after the Government declined to intervene."
Petition Appendix A-2 (Ninth Circuit Opinion). Pursuant to
the government's request -- and as reflected on the proof of
service -- the parties serve copies of all filed papers upon the
government, even though the government is not a party to
the proceeding.

CORPORATE DISCLOSURE STATEMENT
Respondent General Dynamics Corporation has no
parent company, subsidiaries or affiliates which have issued

shares to the public.

TABLE QF CONTENTS
Page
STATUTORY PROVISIONS .......csssccsscssssssscsseeseeeeeecccc. l
STATEMENT OF THE CASE.Q0....scccccccssssssscssseeeeeeeececc..... 2
REASONS FOR DENYING THE ht 6, ea 7
I. THE AWARD OF Costs UNDER RULE
OT i 7
Il. GENERAL DyNaMIcs Dip NOT VIOLATE
THE FALSE CLAIMS ACT......ssssscssssecesessssssscesssssseeeecs.., 12
A. Mr. Willis' Claim Merely
Condemns General Dynamics’
Performance Under Its Contracts
Which Is Not Actionable Under
the False Claims Act ..........ccccsccsceesssseesoss-...... 12
B. Mr. Willis Presented No Credible
Evidence To Support Either His
cs'
Reneate Or His Claims Of
Deficient Performance.............eeccccseecseeec..... 14

sp vi aah oe PES TR A TE 22

iv

TABLE OF AUTHORITIES
Page
Cases

General Atronics Corporation,
ASBCA No. 37923, 91-3 BCA ¥ 24, 047
CRDDE) sci cniitsasscindbihpesesibaitinteasitbitiasantnbeiapubiianalsenmeiaamapee 15n

Hollinger v. Title Capital Corp.,
914 F.2d 1564 (9th Cir. 1990).cccsccccscecseesscseseeesenee 13n

National Information Services, Inc. v.
TRW, Inc.,
RA RTs FL A. | ee ceaereeericoneee 9n

Serna v. Manzano,
GEG FA 2 AGS Cie CA, Be crrcsitcnsetsntnecccatinccnsioncerse 9n

Smith v. Southeastern Penn. Transp. Auth.,
Ce Rm he” is |...) SRE Cem 9n

United States v. Halper,
Te a tildes cahcnbaliecennsaeianestin 12

United States v. Mapelli,
RFE Fe Cr tes BI Natncstecaruictimsssnoniistntenssantions 13n

United States ex rel. Butler v. Hughes
Helicopter Company,
ig ef 5-2. Ts 2. . | Sanne eemnEn 18, 19

United States ex rel. Hagood v. Sonoma

County Water Agency,
929 F.2d 1416 (9th Cir. 1991)................sccscccssrceseseess 12, 13

United States ex rel. Stinson, Lyons, Gerlin &
Bustamante, P.A. v. Prudential Ins. Co.,
ge RE BE fi 5 AGRE PE ersenmenncens 2n

nn nen ee en ne ee

Vv

United States ex rel. Weinberger vy.

Equifax, Inc.,

557 F.2d 456 (5th Cir. 1977), cert. denied,

midleg Bog 5 NOR EE 12
Wang ex rel. United States v. FMC

Corporation,

975 F.2d 1412 (9th Cir. |) nee 6, 13, 14, 19
Statutes
15 United States Code

EE IE vionithinihatic see eracen he A Sens 9

ils cntitictecsananenmincautioctacn, cat. ce 9

cea le Sg g 5 REE ETE oe RE 9
28 United States Code

eb aR Te SRS SANS R RE 10n

co, a, _ SRC A MD eet ate 9
31 United States Code

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1. itil A an eR 13

Section 3730(d)(4) .......c.cececcecececesescevesesees 7, 8, 10n, 11, 12
Federal Rules of Civil Procedure

| Sl a SRR al RRO aS Ia ona 9

LASSE Eee. 2, 6, 7, 8, 9, 10n, 12

STATUTORY PROVISIONS

(Not already noted in the petition)
The Civil False Claims Act, 31 U.S.C. §§ 3729 et seq.
§ 3729. False Claims
(a) Liability for certain acts. Any person who --

(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 . . .

is liable to the United States Government for a civil
penalty of not less than $5,000 and not more than $10,000,
plus 3 times the amount of damages which the Government
sustains because of the act of that person... .

(b) Knowing and knowingly defined. - For purposes of
this section, the terms "knowing" and "knowingly" mean that
a person, with respect to information --

(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,

and no specific intent to defraud is required.

2
STATEMENT OF THE CASE

Petitioner Willis, along with his co-plaintiff,
Mr. Lindenthal, brought this gui tam action alleging that
General Dynamics defrauded the government under the civil
False Claims Act, 31 U.S.C. §§ 3729 et seg./ Mr. Willis’
claims arose from General Dynamics’ submission of a
technical data package to the Air Force which Mr. Willis
believes was non-compliant with General Dynamics’
contractual requirements. The courts below found that
Mr. Willis' claims were unsupported, and in any event
amounted merely to a condemnation of General Dynamics'
performance -- an allegation which is not actionable under
the False Claims Act which requires proof that a defendant
knowingly submitted to the government that which it knew
to be a false or fraudulent claim for payment. The court also
awarded costs to General Dynamics under Fed.R.Civ.P.
54(d). Mr. Willis, without presenting any authority in
support of his views, nor any conflict in the law, now
requests that the Court grant certiorari to consider reversing
those decisions.

At issue was a contract between the Air Force and
General Dynamics for the development and production of
eight mobile, ground-based radar systems called MUTES
(Multiple Threat Emitter Systems), a highly complex set of
electronic components that are used to train Air Force pilots
by simulating and emitting signals to pilots which duplicate
those of an enemy attack. The contract also called for
delivery to the Air Force of a technical data package
reflecting the MUTES design. Some, but not all of the
MUTES components were to be depicted in the technical

l/_ The history, background and legislative purpose behind the qui tam
provisions of the False Claims Act are summarized in United States
ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins.
Co., 944 F.2d 1149 (3d Cir. 1991).

3

data package by engineering drawings prepared in
accordance with a military specification called "Level 3"
which would enable the Air Force to use those drawings later
on to buy additional components through competitive
bidding.2/

During the course of General Dynamics' performance,
the Air Force reviewed, audited and evaluated the technical
data package, including the Level 3 drawings to determine
whether it was satisfactory. Deficiencies, i.e., drawing errors
and areas of inadequate descriptive detail, were noted by the
Air Force and corrected by General Dynamics to the
satisfaction of the Air Force which accepted the technical
data package. Petition Appendix B-5 to B-8.

The Air Force later used the General Dynamics’
technical data package to purchase spare component parts
from General Dynamics and other contractors through
competitive bidding. The Air Force also used the technical
data package as the basis for a competition for a contract to
build fourteen additional MUTES systems. That contract
was won by Aydin Corporation, for whom Mr. Willis was
employed as an engineer. Aydin's contract required it to rely
exclusively upon the technical data package the Air Force

2/ Level 3 is described in a military specification called MIL-D-
1000A which states in pertinent part that Level 3 drawings "shall
provide engineering definition sufficiently complete to enable a
competent manufacturer to produce ... item(s) . . . interchangeable
with those of the original design . . . without resorting to additional
product design effort ...." The specification further states that
Level 3 drawings shall: “reflect the end product . . . provide the
engineering data for the support of quantity production . . . [and]
provide the necessary data to permit competitive procurement . . .
of items substantially identical to the original item(s) ...." See
district court's paraphrasing of this specification at Petition
Appendix B-4.

4

received from General Dynamics. This is referred to as a
"build-to-print" contract, which requires the contractor to
build the product precisely according to the technical data
package supplied by the government, and requires the
government to pay additional sums every time the contractor
has to change a drawing because of an error or omission.
Petition Appendix A-4.

According to Mr. Willis, Aydin encountered difficulty
in manufacturing the MUTES because the technical data
package lacked sufficient information to manufacture all of
the components, and some of the drawings contained errors.
The Air Force agreed to increase the price of Aydin's
contract in exchange for converting the contract from
requiring Aydin to "build-to-print” to one which obligated
Aydin to produce MUTES that satisfied the Air Force's
performance requirements. This is referred to as a
"performance specification” contract which obligates the
contractor to produce a system, for the contract price, that
meets the performance requirements of the contract,
regardless of whether the technical data package -- which is
supplied merely as a guide -- is accurate and complete.
Petition Appendix A-4.

Mr. Willis filed this action alleging that the amount of
money which-the Air Force paid to Aydin in accordance with
converting Aydin's contract to a performance specification
contract constituted damages incurred by the United States as
a direct result of General Dynamics providing a deficient
technical data package to the Air Force. Mr. Willis, who was
not a party to the contracts between General Dynamics and
the Air Force, nor involved in any way in those contracts,
alleged (and restates in his petition) that General Dynamics
was required to provide a technical data package that would
be sufficient for another contractor to build entire MUTES
systems under a build-to-print contract. Since the technical
data package ultimately was not used in that manner, but was
instead used first by the Air Force to buy spare parts and then
as a guide to assist Aydin in building entire MUTES systems
under a performance specification contract, Mr. Willis

5

asserted that General Dynamics must have defrauded the
government.

In essence, Mr. Willis would hold General Dynamics
liable under the False Claims Act -- which imposes liability
(in the form of treble damages and penalties) on one who
"knowingly presents, or causes to be presented . .. a false or
fraudulent claim for payment" (31 U.S.C. § 3729(a)(1)) -
solely on the theory of deficient performance under a
‘government contract. Mr. Willis views the primary issue of
this case as one of contract interpretation. According to
Mr. Willis, since General Dynamics' technical data package
did not meet Mr. Willis’ own interpretation of General
Dynamics’ contract requirements, the submission of the
technical data package was a per se violation of the False
Claims Act.

The courts below disagreed with Mr. Willis' factual
assertions about General Dynamics’ contract requirements
and its performance, finding: (a) General Dynamics'
technical data package, including the Level 3 drawings, met
the Air Force's expectations despite the presence of a small
number of minor errors, (b) the technical data package was
never intended to be used for building entire MUTES
systems on a build-to-print contract (in part because the
contract did not require Level 3 drawings for the entire
MUTES system), and (c) General Dynamics did not
knowingly or recklessly submit any false information to the
government in connection with the technical data package or
in connection with anything else. Accordingly, the courts
found that the technical data package was not the basis of
any "false claims" (Petition Appendix A-8). In support of
that finding, the courts relied upon the Air Force's own
acknowledgment that it originally intended the Aydin
contract to be a performance specification contract, not a
build-to-print contract, and that the decision to convert it
back to a performance specification contract was not caused
by any act or omission of General Dynamics. Petition
Appendix B-19.

6

The courts also disagreed with Mr. Willis’ legal theory,
holding, as a matter of law:

Allegations or evidence which amount
merely to a condemnation of a government
contractor's performance of its contracts,
including engineering efforts performed
under those contracts, does not rise to the
level of fraud or liability under the False
Claims Act.

Petition Appendix B-22 (citing Wang ex rel. United States v.
FMC Corporation, 975 F.2d 1412, 1420 (9th Cir. 1992).

In his petition, Mr. Willis asserts that the courts erred
in not adopting his interpretation of General Dynamics'
contract requirements. He disagrees with the finding that
General Dynamics met the government's expectations,
maintaining it was based on Air Force testimony of
"questionable admissibility." Furthermore, Mr. Willis
continues to ignore the elements of proof required to
establish liability under the False Claims Act. His petition --
like his case at trial -- is devoid of any evidence that General
Dynamics violated the False Claims Act. As discussed
below, Mr. Willis' factual and legal assertions are
unsupported, and his petition presents no grounds for
reviewing the case on the merits.

Following the district court's entry of judgment in favor
of General Dynamics (Petition Appendix B), General
Dynamics submitted a bill of costs totaling $246,321.00,
consisting of standard categories of recoverable costs,
including clerk fees, service and subpoena costs, court
reporter/transcript costs, witness fees, exhibit copying costs,
and costs incident to the numerous discovery and trial
depositions which occurred. Relators presented line-item
objections, and the court, after examining in detail the
categories and amounts claimed, ordered an award of costs
under Fed.R.Civ.P. 54(d) in the amount of $50,271.27.
Petition Appendix A-10.

7

Mr. Willis does not question the sufficiency of proof
with regard to the costs; nor does he contest the categories of
costs or the particular amount of the award. Rather, he
asserts, without any supporting authority, that costs under
Rule 54(d) are expressly precluded by the False Claims Act's
provision for "attorneys' fees and expenses" (31 U.S.C.

§ 3730(d)(4)), and that General Dynamics, therefore, was not
entitled to recover any of its costs.3/

The petition presents no conflicting authorities on
either question presented; therefore, there is no basis for
granting a writ of certiorari.

REASONS FOR DENYING THE PETITION

For convenience, the two questions are presented below in
the same order in which they were presented in the petition.

THE AWARD OF Costs UNDER RULE
54(d)(1) WAS PROPER

Petitioner Willis contests General Dynamics’
entitlement to costs under Rule 54(d)(1), which provides that
costs are allowed as of course to the prevailing party
"[e]xcept when express provision therefor is made ... ina
statute ...." He asserts that section 3730(d)(4) of the False
Claims Act -- which provides for an award of "attorneys' fees
and expenses" to a defendant if the qui tam relator’s claim is
proved to be frivolous -- is an express provision that

3/_ Mr. Willis’ petition drops the argument, raised with and rejected by
the Ninth Circuit, that even if the district court had authority to
award costs, it abused its discretion in doing so. Petition Appendix
A-14.

8

displaces the authority the court would otherwise have under
Rule 54(d). Since the district court did not find the action to
be frivolous, and therefore, did not award General Dynamics
its attorneys’ fees and expenses (Petition Appendix B-24),
Mr. Willis asserts that the court had no authority under Rule
54(d) to award costs.

While on its face, section 3730(d)(4) provides
expressly for attorneys’ fees and expenses and does not
contain any provision regarding "costs," Mr. Willis suggests
that the term "expenses" used in section 3730(d)(4) is the
same as the term "costs" used in Rule 54(d). Accordingly,
Mr. Willis believes that a prevailing defendant in a qui tam
action is entitled to recover its costs only if it defendant
proves the relator’s action to be frivolous.

As the Ninth Circuit opinion correctly held:

... we reject this argument because under
the FCA, fees, expenses, and costs are three
distinct categories. ‘Costs,’ under the FCA,
is not a subset of ‘expenses.

Petition Appendix A-12.

Mr. Willis’ petition repeats the unsupported arguments
made below, first pointing to cases in which courts used the
term "costs" in a way which appeared to Mr. Willis to be
interchangeable with the term "expenses." Petition, p. 9.
However, as the Ninth Circuit noted, none of those cases
raised any issue whatsoever regarding the award of costs.
Therefore, those decisions simply do not support Mr. Willis’
view. Petition Appendix A-13. He further claims that "all
prior district courts have denied such costs to prevailing
defendants,” but he does not cite any such decision.
Accordingly, there is not a single conflicting decision upon
which to base the petition for certiorari.

Mr. Willis further contends that since Congress, in
amending the False Claims Act in 1986, intended to

9

encourage more relators to bring qui tam actions, they did
not intend to penalize relators with liability for defendants'
costs, except where their action was frivolous.4/ Again, there
is no citation to any legislative history to support that view.

In fact, there is nothing either in the express language
or in the underlying intent of the False Claims Act, that
precludes a prevailing defendant from recovering Rule 54(d)
costs against a relator. Congress has passed "express
provisions" denying successful litigants recovery of costs.
See, e.g., 15 U.S.C. § 77v(a) (Securities Act) ("No costs shall
be assessed . . ."); 15 U.S.C § 78 (Securities Exchange Act):
15 U.S.C. § 79 (Public Utility Holding Company Act), and
28 U.S.C. § 2465. But in each instance, Congress has used
the precise term "costs" when crafting the limitation on Rule
54. In enacting the 1986 amendments to the False Claims
Act, Congress undoubtedly would have specifically crafted
the Act to limit a prevailing defendant's entitlement to costs
if that had been their objective.

Mr. Willis' efforts to convey an "interrelationship of the
terms fees, expenses and costs" based on his review of

4/ Mr. Willis suggests that the award of costs is an unjust penalty,
given the court's finding that his action was not clearly frivolous.
That perspective is misplaced. Denial of costs to a prevailing party
~ even in a case brought in good faith and closely litigated — is an
abuse of discretion unless the unsuccessful party proves that
prevailing party is guilty of some fault, misconduct, or default
worthy of punishment. See, National Information Services, Inc. v.
TRW, Inc., 51 F.3d 1470, 1472 (9th Cir. 1995) (denial of costs is a
penalty against the prevailing party). Smith v. Southeastern Penn.
Transp. Auth., 47 F.3d 97, 99-100 (3d Cir. 1995) (per curiam);
Serna v. Manzano, 616 F.2d 1165, 1167 (10th Cir. 1980).
Accordingly, the award of costs is not so much a penalty against
Mr. Willis, as the denial of costs would be characterized as a
penalty against General Dynamics.

10

"hundreds of authorities and literature" (Petition, p. 11) is
without legal support.4/ The clear distinction between
"costs" and "expenses" was articulated by the district court:

Costs and expenses are not synonymous, as
costs generally include only those amounts
paid for items specified in 28 U.S.C.

§ 1920.9/ Hairline Creations, Inc. v.
roe 664 F.2d 652, 655-56 (7th Cir.
1981). ... Expenses not properly taxable as
"costs" a are considered "

Dickerson v. Pritchard, 551 F. Supp. 306,
312 (W.D. Ark. 1982) (cited by plaintiff[s]).
Therefore, a court may deny certain
expenses while granting others as costs. A
motion for costs under 28 U.S.C. § 1920 is

5/ Mr. Willis also asserts that when he commenced this action, he did
not intend to risk liability for defendant's costs, asserting that he
could not possibly have been aware of potential liability for costs
under Rule 54(d), which he characterizes as "some obscure
undesignated rule.” Petition, p. 9. Notwithstanding the irrelevance
of Mr. Willis' intent, General Dynamics notes that Mr. Willis was
represented by counsel from the time of commencing his action
through the award of costs.

6/ 280U.S.C. § 1920 states that a judge or clerk of any court of the
United States may tax as costs the following: fees of the clerk or
marshal; fees of the court reporter for all or any part of the
stenographic transcript necessarily obtained for use in the case; fees
and disbursements for printing and witnesses; fees for
exemplification and copies of papers necessarily obtained for use in
the case; and docket fees. These are the categories of costs
recovered by General Dynamics. They are far more narrow and
distinct from the "expenses" which were incurred and which would
have been awarded under section 3730(d)(4) had the court found
the action to be frivolous.

11

governed by Rule 54(d). Crawford F itting
Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-
42 (1987).

Petition Appendix D-2 to D-3.

Section 3730(d)(2), for instance,
establishes that when a relator proceeds on
his own behalf and prevails, he shall receive
“an amount for reasonable expenses which
the court finds to have been necessarily
incurred, plus reasonable attorneys’ fees and
costs." 31 U.S.C. § 3730(d)(2). Similarly,
section 3730(g) provides that when the
government intervenes but does not prevail,
28 U.S.C. § 2412(d) shall apply. Section
2412(d), as does section 3730(d)(2),
distinguishes between fees, expenses, and
costs. See 28 U.S.C. § 2412(d)(1)(A) ("a
court shall award to a prevailing party other
than the United States fees and other
expenses, in addition to any costs"). The
language of these two sections strongly
Suggests that costs, under the FCA,
constitute a category distinct from expenses:
as a matter of logic, a court could not award
costs in addition to expenses if costs were
merely a subset of expenses.

Petition Appendix A-12 (emphasis in opinion). Since the
False Claims Act distinguishes between expenses and costs,
the Ninth Circuit correctly held that it would be
"incongruous to conclude that section 3730(d)(4), which
refers only to ‘fees’ and ‘expenses’ constitutes an

provision regarding ‘costs,' despite that it is silent regarding
‘costs. Petition Appendix A-13.

12

The statutes and rules cited above make it clear that an
award of costs under Rule 54(d) is distinct from an award of
attorneys’ fees and expenses under section 3730(d)(4) of the
False Claims Act. Petitioner Willis lacks support for his
contention that such costs are expressly precluded by the
False Claims Act. Accordingly, his arguments are without
merit and present no legal conflict upon which to grant a writ
of certiorari.

Il.

GENERAL DYNAMICS Dip NoT
VIOLATE THE FALSE CLAIMS ACT

A. Mr. Willis' Claim Merely Condemns General
Dynamics’ Performance Under Its Contracts
Which Is Not Actionable Under the False
Claims Act

The False Claims Act is not a remedy for challenging a
contractor's performance under a government contract.
Performance issues are matters of contract administration
which are left to the sole discretion of the government, and
are not within the purview of the False Claims Act. To
prove liability a plaintiff must prove that a defendant
knowingly submitted a false or fraudulent claim for payment
or made false statements knowing them to be false, thereby
cheating the government. United States ex rel. Hagood v.
Sonoma County Water Agency, 929 F.2d 1416, 1421 (9th
Cir. 1991). Indeed, the civil False Claims Act has been
referred to as a fraud statute that is "quasi-criminal” in
nature. See, e.g., United States ex rel. Weinberger v.
Equifax, Inc., 557 F.2d 456, 460 (Sth Cir. 1977), cert.
denied, 434 U.S. 1033 (1978); United States v. Halper, 490
U.S. 435, 449-50 (1989) (applying double jeopardy analysis
to penalty provision).

The False Claims Act defines the "knowing"
submission of a false claim as "actual knowledge,”
"deliberate ignorance,” or "reckless disregard” of the falsity

13

of the information, definitions which uniformly require a
showing of much more than mere negligence. 31 U.S.C.

§ 3729(b)./ Courts have further defined the standard of
liability under the False Claims Act. "The requisite intent is
the knowing presentation of what is known to be false . ae
Innocent mistake is a defense to the criminal charge or civil
complaint. So is mere negligence." Hagood, supra, 929 F.2d
at 1421.

Applying this standard, courts have held, as did the
district court in this action (Petition Appendix B-22), that
allegations or evidence which amount merely to a
condemnation of a government contractor's performance of
its contracts, including engineering efforts performed under
those contracts, do not rise to the level of fraud or liability
under the False Claims Act.

In Wang ex. rel. United States v. FMC Corp., 975 F.2d
1412, 1420 (9th Cir. 1992), the court found that False Claims
Act liability could not be established when allegations
amounted to nothing more than criticisms of defendant's
engineering efforts. There, the qui tam plaintiff alleged that
defendant's engineers made faulty calculations, lacked
engineering insight and produced a defectively designed
product. /d. at 1420-21. The court, taking the allegations as
true, held that the alleged conduct might constitute a mistake
or even negligence, but found that there was no evidence that

V/ The district court also relied upon the correct definition of
“deliberate ignorance” and "reckless disregard.” See Petition
Appendix B-21 to B-22, citing United States v. Mapelli, 971 F.2d
284, 286 (9th Cir. 1993) ("deliberate ignorance” means purposely
contriving to avoid learning true facts or “willful blindness”), and
Hollinger v. Title Capital Corp., 914 F.2d 1564, 1570 (9th Cir.
1990) (“reckless disregard” means conduct that represents an
extreme departure from the standards of ordinary care to the extent
that the defendant must have been aware of it).

14

defendant showed deliberate ignorance of false claims for
payment based on its contract performance: "Proof of ones
mistakes or inabilities is not evidence that one is a cheat” and
“bad math is no fraud." Jd.

Mr. Willis’ allegations amount merely to criticisms of
General Dynamics’ drawing preparation and engineering
efforts. Thus, even if he had proved that General Dynamics’
technical data package was non-compliant with its contract --
which, as discussed below, he did not prove -- he offered the
courts below no evidence which could have given rise to
liability under any of the standards set forth in the False
Claims Act. As discussed below, his petition is similarly
devoid of such evidence.

B. Mr. Willis Presented No Credible Evidence To
Support Either His Interpretation of General
Dynamics’ Contract Requirements Or His
Claims Of Deficient Performance

Notwithstanding that Mr. Willis’ underlying premise of
deficient performance does not rise to the level of fraud or
liability required under the False Claims Act, that premise is
itself unsupported. The courts below found that no false
claims had been made and that General
performance was squarely within the Air Force's contract

requirements and expectations. Nothing in Mr. Willis’
petition casts doubt on that holding.

First, Mr. Willis asserts that the Level 3 specification
unambiguously required the submission of drawings
adequate for building MUTES systems on a build-to-print
contract. (And, according to Mr. Willis, since the technical
data package was not put to that use, General Dynamics must
have defrauded the government.) Yet the Ninth Circuit,
quoting the pertinent language from the specification,
correctly held that it does not contain the words “build-to-
print." "Nowhere does MIL-D-1000A state that Level 3
drawings must be . . . adequate to support a ‘build-to-print’
contract." Petition Appendix A-7. Thus, while Mr. Willis

the specification is not found on its face; rather it is a product
of his (erroneous) interpretation.8/

In addition, Mr. Willis’ interpretation is not supported
anywhere else in the record.9/ He fails to cite any testimony
or evidence which supports his view. His general references
to one witness, Col. Schuster, and a so-called "interpretation

“Level 3” means “build-to-print.” Petition, p. 12 (citing General
Atronics Corporation, ASBCA No. 37923, 91-3 BCA 4 24, 047

9/ In fact, the Air Force witnesses testified that the Level 3
specification is by nature ambiguous. Joseph Giangrosso, the Air
Force Program Manager for the MUTES program, testified, "the
military specification for Level 3 does not tell the contractor or the
Air Force everything that needs to go into the drawings. It leaves a
lot to be interpreted.” Similarly, Col. Thomas Devenny, head of
the Air Force division which oversaw the MUTES program,
testified that a Level 3 requirement only “sets a framework or
spectrum. ... (t}here is a wide range of alternative points within
the system.” in addition, Dr. John Amold, the former chief
civilian in Air Force Range Systems (the office responsible for the
MUTES program), testified that MIL-D-1000A does not
specifically tell a contractor every piece of information that is
required for the drawing; rather, it only gives the contractor a
feeling of the breadth of information required.

16

agreement" are not supported with citations or quotations
because the record does not reflect Mr. Willis’ assertions.

The record reflects the overwhelming evidence
presented by General Dynamics and the Air Force, as to the
meaning of their contract, including the Level 3
specification. First, the contract required Level 3 drawings
for only General Dynamics-built equipment and not for
components bought from vendors. Petition B-5. Mr. Willis
never disputed that contract provision. Thus, even if
Mr. Willis were correct that Level 3 means “build-to-print,"
he ignores the fact that not all of the drawings were required
to be Level 3, and therefore, the technical data package as a
whole could not possibly have been a "build-to-print”

package.

Next, the Air Force witnesses testified that the
technical data package was intended to be used by the Air
Force to buy spare parts through competitive bidding, and
not for buying entire MUTES systems on a build-to-print
basis. Petition Appendix A-9; B-4 to B-5.10/ Mr. Willis
himself quotes Air Force personnel who oversaw the
MUTES program as saying that the technical data package
was not intended for building MUTES systems on a build-to-
print basis, but he fails to rebut that testimony. Petition, pp.

10/ The court relied upon the testimony from Col. Devenny, who stated
that while MIL-D-1000A defines Level 3 as permitting
“competitive procurement, data for competitive reprocurement is
different from data for a build to print contract.” Similarly, Mr.
Giangrosso testified that drawings adequate to support a
“competitive procurement” are not necessarily adequate for a
competitive build to print procurement. Earl Anderson, chief of the
Air Force's reprocurement team responsible for buying the
additional MUTES from Aydin, testified that "[hjaving a Level 3
package and doing an acquisition build to print absolutely does not
mean the same thing.”

17

14-15. Instead of rebutting testimony with citations to the
record, Mr. Willis merely labels testimony that he disagrees
with as "inadmissible," "questionable," and “orchestrated,”
thereby requesting the Court to review the credibility and
admissibility of their testimony. Petition, p. 14.

Further, the evidence established that the completeness
and accuracy required for a Level 3 drawing is tailored
through negotiation and drawing review to fit the needs of a
particular procurement. Petition Appendix B-4. The district
court summarized that process, describing how General
Dynamics and the Air Force worked together on the project:

Both prior to and after the award of the
. .. Contract, General Dynamics and the Air
Force met regularly and frequently,
attempting to reach agreement as to the
scope and specific kind of information that
was required to be placed on the General
Dynamics Level 3 drawings.

**++%

The Air Force regularly monitored and
inspected all aspects of General Dynamics’
performance . . . including . . . the
preparation of the Level 3 drawings.

**+*

The intent of the Air Force's in-process
drawing reviews was to drive major errors
from the drawings. What is considered a
major error depends on how the drawings
are going to be used. In the case of the
MUTES drawings, major errors are those
errors which would prohibit a competent
contractor from reprocuring spares.

**#*

18

[T]he Air Force conducted a series of
Physical Configuration Audits in which
General Dynamics participated. The
Physical Configuration Audits constituted
the formal examination and comparison of
the MUTES hardware with the Level 3
engineering drawings.

***

During the final Physical
Configuration Audit, the Air Force audit
team discovered discrepancies between
General Dynamics’ drawings and the
hardware. The Air Force considered some
of these discrepancies to be minor in nature,
and other discrepancies were noted and
disclosed to General Dynamics on
individual discrepancy sheets.

***

[D]espite the presence of some errors
in the drawings sampled by the Air Force,
the Air Force determined that all of the
drawings, whether or not specifically
reviewed during the audit, satisfied General
Dynamics’ obligation under the . . . contract.

Petition Appendix B-4 to B-7.

Neither Mr. Willis' appellate brief nor his petition
attempts to refute the court's recitation of those events which
show that General Dynamics could not possibly have cheated
the government under those circumstances. The level of
government scrutiny of a contractor's performance has been
considered as a factor in negating claims of fraudulent
conduct by the contractor. In United States ex rel. Butler v.
Hughes Helicopter Company, 71 F.3d 321 (9th Cir. 1995),
another qui tam action, the court found:

19

[T]he overwhelming evidence
established a pattern of cooperation between
the Army and [the defendant] during the
course of a complicated, sophisticated, and
highly technical military procurement
program. ... The evidence established that
all information upon which [plaintiff] bases
his case was not only available to the Army,
but in the Army's possession.

Id. at 326 (quoting the district court's opinion). In Wang, ex.
rel. United States v. FMC Corp., supra, 975 F.2d at 1421,
the court noted the government's own knowledge of
defendant's engineering shortcomings, which supported the
finding that defendant had performed in a manner consistent
with the government's expectations.

The government knew of FMC's
mistakes and limitations, and that FMC was
open with the government about them,
suggests that while FMC might have been
groping for solutions, it was not cheating the
government in the effort. Without more, the
common failings of engineers and other
scientists are not culpable under the Act.

In the instant action, the district court held that "General
Dynamics’ drawings met the Level 3 requirements . . . [and]
[t]he Air Force accepted General Dynamics’ [technical data
package] with full knowledge of the condition of the data
contained therein ...." Petition Appendix B-9. While the
condition of the drawings was not perfect -- as Mr. Willis
insists it was required to be --

[uJnder the contract interpretation
shared by defendant and the Air Force, there
was no expectation that General Dynamics’
drawings would be error-free. The Air
Force and General Dynamics recognized this

20

impossibility and applied practical solutions
aimed at driving out major or significant
errors from the drawings.

Petition Appendix B-23. This finding was
supported by the testimony of Col. Devenny:

I have never bought [a Level 3
drawing package] that was without errors.
These packages contain literally millions of
opportunities for error and current contractor
data systems cannot produce an error-free
data package. . . .[I]t would be unreasonable
for anyone to expect an error-free package
on a complex product such as the MUTES.

In fact, of the claimed errors which Mr. Willis
personally selected to demonstrate the kinds of errors that
were made, about half were not in need of correction by
Aydin (and therefore not subject to Mr. Willis’ claimed
damages); the other half, as the court found, "could fairly be
characterized as minor clerical or typographical errors." Still
others, Mr. Willis eventually admitted, were not caused by
General Dynamics. Petition Appendix B-10. In short, they
did not suggest fraud. Nor did those claimed errors or
anything else suggest that General Dynamics was in any way
responsible for the Air Force's decision to pay additional
sums to Aydin to convert Aydin's contract to a performance
specification contract.

ll/ Regarding that decision by the Air Force, the court found that the
Air Force originally had intended for Aydin to receive a
performance specification contract and use General Dynamics’
technical data package only as a guide. All of the testifying
officials involved in the award of Aydin's contract and Aydin's
performance (except for the contracting officer) testified that the

(Footnote cont'd on next page)

21

In contrast, the evidence showed that the Air Force
received from General Dynamics precisely what it sought,
and that the technical data package was of a very high quality
which the Air Force has used successfully. As Joseph
Giangrosso, Air Force Program Manager for the MUTES
program, testified, "the Air Force was satisfied that the
drawings were meeting the Level 3 standards" and "[bJased
on my experience with various drawing packages, I believe
that GD's drawing package was as good as any other Level 3
drawing packages that I have worked with in the past.”

In sum, despite Mr. Willis' personal and unsupported
assumptions about what General Dynamics was required to
provide -- an error free package suitable for building entire
MUTES systems on a build-to-print basis -- General
Dynamics provided that which the Air Force required. Thus,
even if Mr. Willis could state a cause of action under the
False Claims Act stemming from deficient contract
performance, there is no support in the record for any such
finding.

(Footnote cont'd from previous page.)

contracting officer made a mistake in awarding the Aydin contract
as a build-to-print contract. Thus, the additional sums paid to
Aydin were the result of the Air Force's mistake and had nothing to
do with General Dynamics. Petition Appendix B-15, B-19.

22

CONCLUSION

For the foregoing reasons, the petition for certiorari
should be denied.

Respectfully submitted,

Mark R. Troy

Counsel of Record

Michael T. Kavanaugh

Susan A. Mitchell

McKenna & Cuneo

444 South Flower Street

8th Floor

Los Angeles, California 90071
(213) 243-6170

Counsel for Respondent
General Dynamics Corporation

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1592%3A2. Public record. Not legal advice.