# Petition for Writ of Certiorari — United States v. North American American Bus Industries, Inc. (No. 08-1249) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0377%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text Supreme Court, U.S. \ FILED No. 6-8 1.249 APR 7 - 2009 OFFICE OF THE CLERK In The Supreme Court of the Gnited States UNITED STATES OF AMERICA, ex rel. THORNTON G. SANDERS, Petitioner, V. NORTH AMERICAN BUS INDUSTRIES, INC-.; DELOITTE & TOUCHE USA, LLP; NORTH AMERICAN BUS INDUSTRIES KFT., Respondents. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit PETITION FOR WRIT OF CERTIORARI Of Counsel: THE CULLEN LAW FIRM, PLLC JAMES A. MOODY JOSEPH A. BLACK 1101 30th Street, NW Counsel of Record Suite 300 1101 30th Street, NW Washington, D.C. 20007 Suite 300 (202) 298-4766 Washington, D.C. 20007 (202) 944-8600 COCKLE LAW BRIEF PRINTING CO (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED Respondent NABI performs final assembly of transit busses using bodies produced in Hungary. NABI falsely claimed the bus shells had enough additional components to qualify for “duty free” entry as finished buses while at the same time qualifying for “Buy America” subsidies by falsely claiming to the Department of Transportation that 60 percent of the component value was added in the United States. The court of appeals imposed a materiality requirement not found in the False Claims Act and imposed an impossible burden requiring a relator to prove what Customs would have done in the absence of the false claims. The court applied the short six-year statute of limitations even though the government had no knowledge of the false claims prior to relator’s com- plaint. 1. The statute of limitations for actions under the False Claims Act (“FCA”) is the later of (1) six years after the false claim, or (2) ten years after the FCA violation when an action is filed within three years after the government learned of the underlying false claims. Was Petitioner Sanders permitted to rely on the ten-year limitations period when the government had no knowledge of the facts and chose to allow Sanders to litigate on its behalf? QUESTIONS PRESENTED - Continued 2. This case invclves the Customs classification of imported bus shells where Customs stated that the classification was governed by the “substantial amount of equipment and components” represented to be on the bus shells by the Respondents. The Respondents lied about the equipment and compo- nents contained on the bus shells to obtain a more favorable classification and to avoid paying Customs duty. Were such lies “material” to Customs’ classifica- tion decision? 3. Whether, under this Court’s analysis in United States v. Wells, 519 U.S. 481 (1997), and Neder v. United States, 527 U.S. 1 (1999), the FCA contains a materiality element. 4. Whether this Court’s decision in Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409 (2005), regarding the appropriate sta- tute of limitations for retaliatory discharge claims filed under 31 U.S.C. § 3730(h) of the FCA should be overruled. TABLE OF CONTENTS QUESTIONS PRESENTED TABLE OF CONTENTS OPINIONS BELOW JURISDICTION STATUTORY PROVISIONS INVOLVED STATEMENT A. Background . TRRRRR CII ois cic secekscsesestanceascnsinss C. D. Facts Related to Materiality REASONS FOR GRANTING THE PETITION ... A. The Court Should Grant the Petition to Resolve the Conflicting Positions of the Lower Courts Regarding the Statute of Limitations Applied to FCA Actions When the Government Does Not Intervene The Court Should Grant the Petition to Resolve the Conflicting Positions of the Lower Courts Regarding the Appropriate Standard for Materiality, if any, to be Ap- WOPOOEE 10S PER COIN 5 oes scsceiccstsccssceactnecsnns 18 1V TABLE OF CONTENTS -— Continued Page C. The Court Should Exercise Its Supervisory Powers to Correct the Lower Courts’ Im- proper Application of the Materiality Ele- ment Based on the “Natural Tendency” g UN ENED e Rg e er RO ON PEED MERE ea ee eA PN Meee 23 CEN bess de 5 crsakcckcdunecasee kacspiisabcoecceswbonseas 29 APPENDIX United States ex rel. Sanders v. North Amert- can Bus Ind., Inc., 546 F.3d 288 (4th Cir. United Siaies ex rel. Sanders v. North Ameri- can Bus Ind., Inc., No. 07-1773 (Oct. 30, 2008) (Order denying motion to take notice of iii declan 2pnidatonm dendiatmavietadealons App. 28 United States ex rel. Sanders v. North Ameri- can Bus Ind., Inc., Civ. No. JFM-02-3084, slip op. (D. Md. June 25, 2007)............0.0. App. 30 United States ex rel. Sanders v. North Ameri- can Bus Ind., Inc., 2007 WIL 80922 (D. Md. STs ST iviictslecdne an aceaoe App. 34 United States ex rel. Sanders v. North Ameri- can Bus Ind., Inc., Civ. No. JFM-02-3084, slip op. (D. Md. Dec. 19, 2005)....................... App. 42 United States ex rel. Sanders v. North Amert- can Bus Ind., Inc., Civ. No. JFM-02-3084, Slip Op. (D. DEG. Mar. 7, BOOS) ..........sccssecseesiees App. 46 TABLE OF CONTENTS — Continued United States ex rel. Sanders v. North Ameri- can Bus Ind., Inc., No. 07-1773 (Jan. 7, 2009) (Order denying petition for hearing en 31 U.S.C. §§ 3729-32 (excerpts) In the matter of the Search of the Premises Known and Described as: North American Bus Industries (NABI), 106 National Drive, Anniston, Alabama 36207, No. MAG 08 133 (July 31, 2008) (Application and Affidavit for Search Warrant) Page TABLE OF AUTHORITIES Page CASES Costner v. URS Consultants, Inc., 153 F.3d 667 I a dh pcan sean 19 Dobbs v. Anthem Blue Cross & Blue Shield, 475 eB FR OR) 5 yp 26 Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409 as ce arse cess aceniiuabeees 26 Neder v. United States, 527 U.S. 1 (1999) .....19, 20, 21 Philip Medical Sys. International, B.V. v. Bruetman, 982 F.2d 211 (7th Cir. 1992)................. 26 Rabushka ex rel. United States v. Crane Co., Re te Ee Gy BED vanininsicdeccisccsscsccscscesccsss 19 Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702 (10th Cir. 2006)........0..00c... 15 United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428 TN ai ins casedicsavadugussionsacebanahnsensses 18, 19 United States ex rel. Bahrani v. Conagra, Inc., 465 F.3d 1189 (10th Cir. 2006)......................... inaeoie 18 United States ex rel. Berge v. Trustees of Univ. of Alabama, 104 F.3d 1453 (4th Cir. 1997) ............ 18 United States ex rel. Bidani v. Lewis, 1999 WL EE oc ekicugncscsichsceidecsecebnas scsesines 14 United States ex rel. Colunga v. Hercules, Inc., 1998 WL 310481 (D. Ut. 1998)....................008 Sabie 1 A | TABLE OF AUTHORITIES — Continued United States ex rel. Downy v. Corning, Inc., 118 F. Supp.2d 1160 (D.N.M. 2000) United States ex rel. El Amin uv. George Washington Univ., 26 F. Supp. 2d 162 (D.D.C. United States ex rel. Finney v. Nextwave Telecom, Inc., 337 B.R. 479 (S.D.N.Y. 2006) United States ex rel. Fisher v. Network Software Assocs., Inc., 180 F. Supp. 2d 192 (D.D.C. 2002) United States ex rel. Gonzales v. Fresenius Medical Care North America, 2008 WL 4277150 (W.D. Tx. 2008) United States ex rel. Harrison v. Westinghouse Savannah River Co., 352 F.3d 908 (4th Cir. United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211 (9th Cir. 1996) United States ex rel. Kreindler & Kreindler uv. United Technologies Corp., 777 F.Supp. 195 (N.D.N.Y. 1991) United States ex rel. Lewis v. Walker, 2007 WL ee PO ED, MM. UNO F occscidbiuda.cckcaucindvasccednnciseccees 15 United States ex rel. Lowman v. Hilton Head Health Care Sys., L.P., 487 F. Supp. 2d 682 (D.S.C. 2007) Vili TABLE OF AUTHORITIES — Continued Page United States ex rel. Pogue v. Diabetes Treat- . ment Centers of America, 474 F. Supp. 2d 75 Csi da diniid online davatnercsdWexeustaeicebinesdiiasetes 13 United States ex rel. Saaf v. Lehman Bros., 123 ae WT CRD CE, RE PF vcnvcssivecesacenivsccsiiscntarivacesesas 14 United States ex rel. Salmeron v. Enterprise Recovery Sys., 464 F. Supp. 2d 766 (N.D. Ill. | MRE eth IPSS SR ire ee PraPeen R TR END Pear eI 15, 17 United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702 Se IE ini. ohcacreuscsecissineibuiswecsdibanneivusihioras 12 United States ex rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 6 F. Supp. 2d 263 ics cictiteciaedipcncnsandusibanicisandakasedssivenes 12 United States ex rel. Vosika v. Starkey Labs., Inc., No. Civ. 01-709, 2004 WL 2065127 (D. PN Ns. We I aes sbisuh suds tac casa stnchiovés Joiveaee 12 United States ex rel. Wilson v. Graham County Soil & Water Conservation Dist., 2002 WL eS 0 OR Fa, sven kvcckeccisccedececsccdseocscsscs 14 United States ex rel. Wilson v. Graham County Soil & Water Conservation Dist., 367 F.3d I ogi vn nckce dance ccevencinccvaradecavses 5, 14 United States v. Bourseau, 531 F.3d 1159 (9th chy Meee AEN eg CE sed Te 18 United States v. Rogan, 517 F.3d 449 (7th Cir. a arts acne naan uieeavead 18 United States v. Wells, 519 U.S. 481 (1997)......... 19, 20 1X TABLE OF AUTHORITIES — Continued STATUTES 31 U.S.C. § 3729(b) 31 U.S.C. § 3730(b)(5) 31 U.S.C. § 3730(e)(4)(A) 31 U.S.C. § 3730(h) 31 U.S.C. § 3731(b) 49 U.S.C. § 5323(j) 49 U.S.C. § 53823G)(2C)(i) REGULATIONS 49 C.F.R. Part 661 OTHER AUTHORITIES James B. Helmer, Jr., False Claims Act: Whistler Blower Litigation, § 2-4(d) (5th ed. S.Rep. No. 345, 99th Cong., 2d Sess., 30 (July 28, 1986), reprinted in 986 U.S.C.C.A.N. 5266, 5295 S. 2041, False Claims Act Corrections Act of 2007, 155 Cong. Rec. S$11506-509 (Sept. 12, U.S. Customs Priv. Ltr. Rul., HQ962065 (Nov. 1 OPINIONS BELOW The opinion of the Fourth Circuit Court of Ap- peals (App. 1) is reported at 546 F.3d 288 (4th Cir. 2008). One decision of the district court is unreported but available at 2007 WL 80922. App. 34. Three other decisions of the district court are unreported and not available electronically but are appended at App. 30, App. 42 and App. 46. JURISDICTION The order of the Court of Appeals for the Fourth Circuit denying petitioner’s motion for rehearing en banc was entered on January 7, 2007. App. 49. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254. STATUTORY PROVISIONS INVOLVED The relevant provisions of the False Claims Act, 31 U.S.C. §§ 3729-3731, are set out in the appendix to this petition at App. 51. 2 STATEMENT The qui tam provisions of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733 permit private parties to bring suit in federal court to recover treble damages and penalties on behalf of the United States. This Petition presents two questions of considerable importance regarding the application of the FCA. First: is the statute of limitations in “non-intervened” cases six or ten years? Second: does the FCA silently impose a materiality requirement, and if so, what is the proper standard? On both of these issues the lower courts have issued diverse opinions. Legislation has been introduced in Congress which would resolve both of these issues by: (1) creating a uniform statute of limitations for all causes of action under the FCA; and (2) explicitly stating that the FCA is a statutory cause of action and that no additional elements, such as materiality, are required to prove liability. With regard to the appropriate statute of limitations for retaliatory discharge claims filed under § 3730(h), the Court should review its decision in Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409 (2005), because of the inequitable and inconsistent treatment accorded whistleblowers resulting from the application of this decision. A. Background The Respondents, North American Bus Industries, Inc. of Anniston, Alabama, and its Hungarian parent, North American Bus Industries, Kft. (collectively 3 “NABI”) are in the business of producing transit buses for American transit authorities. See generally App. 3-4. NABI engages in a two-step manufacturing process. It first produces bus shells or bodies in its plant in Hungary and then, using American compo- nents, completes the assembly of the buses in the United States. Jd. In doing so, it certifies that the buses qualify for Buy America grants or subsidies under 49 U.S.C. § 5323(j) and 49 C.F.R. Part 661, which require that “the cost of components and subcomponents produced in the United States is more than 60 percent of the cost of all components... .” 49 U.S.C. § 53239 )(2C)G). Id. B. NABIP’s False Claims In the process of importing its bus bodies from Hungary for use in the production of finished buses, NABI made three different types of false claims actionable under the FCA. First, NABI Hungary undervalued the bus bodies by falsely claiming that it provided valuable engineering and_ technology (“E&T”) services to NABI USA. It billed NABI USA for these non-existing services, thereby reducing the cost of the foreign content of the finished bus and allowing NABI’s buses to qualify for Buy America subsidies. Since the actual domestic content of the finished buses was less than 60 percent for many of the buses, NABI was not qualified to receive any part of the subsidy. Second, since the payments were not declared to the U.S. Customs Service, now USS. Customs and Border Protection, (“Customs”), NABI 4 avoided the payment of Customs duties on the E&T payments. Finally, in a successful effort to eliminate the payment of all Customs duties on imported bus shells, NABI, with the assistance of Respondent Deloitte & Touche, LLP (“Deloitte”), falsely claimed that they were sufficiently complete to be classified as duty-free finished buses. NABI made the opposite representation to the Federal Transit Administration to obtain “Buy America” subsidies, i.e. that 60 percent of the value of the components of finished busses was added in the United States. Petitioner Sanders was the Chief Financial Officer and President of NABI USA from 1993 until April 1997. App. 6. His employment was terminated by his Hungarian based superiors after he raised questions about the legality of the undervaluation of the imported bus shells. C. Facts Related to the Statute of Limitations Petitioner Sanders filed his original complaint on September 17, 2002. That complaint contained only one count alleging false claims made to obtain Buy America subsidies. The complaint also cor.tained allegations that Mr. Sanders was wrongfully dis- charged, but did not contain a formal count regarding that discharge. After the Government declined to intervene in the original complaint Mr. Sanders filed an amended complaint on June 23, 2004, adding two Customs’ counts and a retaliatory discharge count filed under 31 U.S.C. § 3730(h). On March 7, 2005 the district court denied NABI’s motion to dismiss Sand- ers’ Customs’ counts and his wrongful discharge claim on statute of limitations grounds. App. 46. The court found that false claims made to Customs were action- able under the FCA and that Sanders’ discharge claim related back to his original complaint, and that they were thus within the six-year statute of limita- tions for such claims. Id. See United States ex rel. Wilson v. Graham County Soil & Water Conservation Dist., 367 F.3d 245 (4th Cir. 2004). Subsequently, after conducting initial discovery and learning of Respondent Deloitte’s role in the Customs classifica- tion fraud, Sanders amended his complaint to add Deloitte as a defendant on June 30, 2005. On December 19, 2005, the district court granted Deloitte’s motion to dismiss the complaint against it on statute of limitations grounds. App. 42. The dis- trict court found that in a non-intervened case Sand- ers was entitled to only a six-year statute of limitations instead of the ten-year period if the gov- ernment had intervened in his action. The objective of NABI’s Buy America scheme was to fraudulently obtain substantial subsidies for finished buses by understating the value-added in Hungary in order to comply with Buy America re- quirements. The district court initially found that Sanders could not show that the government sus- tained actual damages under the test established by the Fourth Circunt decision in United States ex rel. Harrison v. Westinghouse Savannah River Co., 352 6 F.3d 908 (4th Cir. 2003). App. 46. The district court entered judgment on the issue of damages, but held that NABI could still be subject to penalties under the FCA. The false claims related to the Buy America fraud all occurred before 1996 and more than six years before Sanders filed his original complaint. Subsequently, the court dismissed all of these ailega- tions on statute of limitations grounds. App. 30. The court of appeals affirmed the district court solely on the basis of the statute of limitations decision. App. 18. Thus, the issue of damages was not addressed by the court of appeals. As noted, Sanders’ First Amended Complaint contained a retaliatory discharge claim filed under § 3730(h) of the FCA. That allegation was ultimately dismissed by the district court (App. 26 n.6) following the Court’s decision in Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409 (2005), which reversed a prior decision of the Fourth Circuit Court of Appeals. On September 12, 2007, technical amendments were introduced in the Senate that would overrule Graham County. These amend- ments were reintroduced in the Senate on February 24, 2009. In the interest of preserving his rights, Sanders appealed the dismissal of his discharge claim in the event that the proposed amendments become controlling law. 7 D. Facts Related to Materiality For many years before 1998, NABI imported bus shells from Hungary into the United States under subheading 8707.90.50 of the Harmonized Tariff Schedule of the United States (“HTSUS”), dutiable at 4 percent of their declared value. This provision provides for “Bodies (including cabs), for motor ve- hicles of headings 8701 to 8705: Other:, Other.” On June 29, 1998, Deloitte & Touche filed a protest on behalf of NABI with Customs challenging the classifi- cation of the bus shells as “bodies.” The protest claimed refunds cf customs duties on past shipments of bus shells. NABI asserted that the bus shells should be classified under subheading 8702.10.30, which provides for “Motor vehicles [with diesel en- gine] designed for the transport of [16] or more per- sons including the driver.” The rate of duty under this provision was 2.4 percent during 1997 and was sub- sequently reduced to 2 percent. More importantly, NABI imports from Hungary classified under this provision were eligible for Generalized System of Preferences (“GSP”) treatment, which made them duty free. NABI falsely claimed that a number of components were imported with the bus shells — when they were not — to obtain the duty-free classifi- cation. The evidence proves beyond any genuine dispute that many of the key components claimed to be imported with the bus shell — components that could theoretically result in the classification of the imports as finished buses — were not complete or not even imported with the shell at all. 8 Customs granted the protest on November 20, 1988, finding explicitly: The bus shells when imported contain a sub- stantial amount of equipment and number of components necessary for a completed transit bus. ... Accordingly, the bus shells are classi- fied as motor vehicles for the transport of 16 or more persons, including driver; since, in its unfinished state, the article has the es- sential character of such a motor vehicle. (emphasis added) U.S. Customs Priv. Ltr. Rul., HQ962065 (Nov. 20, 1998) Thus, when Customs granted NABI’s claim for a refund of duties it stated that its decision was based on the “substantial amount of equipment and number of components” claimed in the protest. The Govern- ment declined to intervene following the filing of Sanders’ First Amended Complaint, which added his Customs related counts and his retaliatory discharge claim. However, after reviewing the papers and supporting exhibits filed in connection with the parties’ cross motions for summary judgment, the Government sought additional time from the district court to consider those documents and reevaluate its intervention decision before the court rendered its rulings on summary judgment. The court denied that request in its summary judgment order in which it found that NABI’s false claims were not material to the Customs’ classification decision. App. 37-40. Independently, without informing Sanders at the time, the Government began an investigation of NABI’s continuing bus shell imports, and as a result, 9 reclassified the bus shells from finished buses to bus bodies. Sanders became aware of this investigation and reclassification while the appeal was pending. Sanders requested the Fourth Circuit to take judicial notice of the Government’s affidavit used to secure a search warrant of NABI’s facilities, which detailed the Government’s position.’ App. 56. In affirming the district court’s materiality decision, the court of appeals denied this request. App. 27. The affidavit filed in support of the search warrant stated that NABI’s misrepresentations regarding the components included in the bus shell were “material” to Customs’ classification decision. ' Based on the time line contained in the Gevernment affidavit, it is quite clear that NABI was aware that Customs had in fact changed the classification of its bus shells prior to the time that the district court entered judgment and before it argued to the court of appeals that false claims could not affect the classification decision 10 REASONS FOR GRANTING THE PETITION A. The Court Should Grant the Petition to Resolve the Conflicting Positions of the Lower Courts Regarding the Statute of Limitations Applied to FCA Actions When the Government Does Not Intervene. The court of appeals erroneously affirmed the district court’s decision that NABI’s false claims are only actionable for six years prior to Sanders’ com- plaint when the government does not intervene. Courts in the D.C., Second, Fifth, Seventh, and Eleventh Circuits apply a uniform ten-year statute of limitations in non-intervened cases where there is no evidence of government knowledge of the fraud. The statute of limitations provision of the FCA, 31 U.S.C. § 3731(b), contains two limitations periods which must be read together to determine the appro- priate period to be applied to any action. The limita- tion period is either a minimum six-year period or a longer ten-year period, provided that the government has not been aware of the fraud for more than three years, “whichever occurs last.” It is the government’s knowledge of the false claims that stops the clock on an action filed by either the government or relator at the greater of six years or three years from the date of knowledge by an official of the United States. A whistleblower has up to ten years (depending on the knowledge of a responsible governmental official) but has an incentive to file as early as possible or risk losing jurisdiction (by prior public disclosure or pre-emptive filing by the government or another 11 whistleblower). Since these provisions must be read together, and since there is no indication that the government was aware of NABI’s false claims, Mr. Sanders should be entitled to the longer ten-year period. The lower courts are in a state of chaos as to which of three different interpretations of the 31 U.S.C. § 3731(b) applies to relator-filed FCA actions. The current statute states: (b) A civil action under section 3730 may not be brought — (1) more than 6 years after the date on which the violation of section 3729 is com- mitted, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the cir- cumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last. 31 U.S.C. § 3731(b). The decision in this case is typical of a number of decisions that base the limitation period on question- able policy considerations rather than the literal text of the statute and a re-writing of the provision to 12 implement those considerations.” The court begins by asserting that it would be “problematic” to read the statute any other way except limiting relator actions to six years. App. 11. Focusing on the language of § 3731(b)(2), the court notes that it refers only to the government and states that it would “produce the bizarre scenario in which the limitations period in a relator’s action depends on the knowledge of a non- party to the action.” App. 11-12. The court therefore rewrote § 3731(b)(2) by adding “in actions filed by the government.” While the court may describe this as a “bizarre” result, it would also be a very rare result. The reason why relator-filed FCA cases are called “whistleblower” actions, is that the government is unaware of the fraud until a relator blows the whis- tle. The court’s hypothetical concern is not such a common event that it requires limiting the words of the statute. Of note, none of the cases discussing the statute of limitations describe a set of facts in which a responsible government official with knowledge of the fraud would have limited the relator’s action to six * See United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702 (10th Cir. 2006); United States ex rel. Fisher v. Network Software Assocs., Inc., 180 F. Supp. 2d 192, 194 (D.D.C. 2002); United States ex rel. El Amin v. George Washington Univ., 26 F. Supp. 2d 162, 172-73 (D.D.C. 1998); United States ex rel. Finney v. Nextwave Telecom, Inc., 337 B.R. 479, 486 (S.D.N.Y. 2006): United States ex rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 6 F.Supp. 2d 263, 265 (S.D.N.Y. 1998); United States ex rel. Vosika v. Starkey Labs., Inc., No. Civ. 01-709, 2004 WL 2065127, at *2-*3 (D. Minn. Sept. 8, 2004). 13 years. If this possible result were indeed “problemati- cal,” one would expect it to have arisen in the almost 25 years since the current statute has been in effect. The court may not rewrite the FCA to implement its own policy considerations, at least without a finding not made here that the plain reading is absurd. It seems entirely rational for Congress to extend the limitation period for both relator- and government- filed actions when the government lacks knowledge to act. After all, the essence of wrongdoing actionable under the FCA is concealment. The court continued with other policy reasons for ignoring the words of the statute. Included was the supposed concern that a relator would wait ten years until his monetary claims built up thereby increasing his potential recovery at the expense of taxpayers. Again, these concerns are unrealistic, and again the court can point to no case where this has occurred. The FCA contains potent incentives for the relator to file as quickly as possible. No relator would delay to let his claims build up, risking another party or the government filing a case before him or that a public disclosure of the fraud might bar a subsequent relator action. Either event would cut off all of his rights in his claim, and he would be left with nothing. 31 U.S.C. §§ 3730(b)(5), 3730(e)(4)(A). Because of this danger, once a relator with strong evidence of fraud connects with an experienced FCA attorney, there is a rush to the courthouse. See United States ex rel. Pogue v. Diabetes Treatment Centers of America, 474 F.Supp. 2d 75 (D.D.C. 2007) (“This hypothetical 14 scenario is too implausible to provide a justification for tweaking the straightforward words of a sta- tute.”). The leading case for the second interpretation is United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211 (9th Cir. 1996) in which the Ninth Circuit held that the tolling provision of section 3731(b)(2) does apply to relators, but that the timing of the relator’s knowledge controls its application to his qui tam action.” In Hyatt, the court based its decision on the rationale that the reference to an “official of the United States” in (b)(2) must by implication include relators, because in other parts of the statute and the legislative history, that conclusion is unmistakable. Hyatt, 91 F.3d at 1214-15. Under this interpretation, the relator would be covered by (b)(2), but would be subject to the three-year tolling provision. This interpretation is not supported by the text (which expressly starts the clock on the “date when facts material to the right of action are known or reasona- bly should have been known by the official of the United States charged with responsibility to act in the * See also United States ex rel. Lowman v. Hilton Head Health Care Sys., L.P., 487 F. Supp. 2d 682 (D.S.C. 2007); United States ex rel. Saaf v. Lehman Bros., 123 F.3d 1307 (9th Cir 1997): United States ex rel. Downy v. Corning, Inc., 118 F. Supp. 2d 1160 (D.N.M. 2000); United States ex rel. Bidani v Lewis, 1999 WL 163053 (N.D. Ill. 1999) and United States ex rel. Wilson v. Graham County Soil & Water Conservation Dist., 2002 WL 31455718 (W.D. N.C. 2002) (rev’d and vacated on other grounds 367 F.3d 245 (4th Cir. 2004)) 15 circumstances”), or the legislative history. While the words “government” and “United States” may have been used loosely in other parts of the statute or legislative history, here they use the very specific “official within the Department of Justice with the authority to act in the circumstances” (legislative history)’ and “official of the United States with re- sponsibility to act” (statute) when describing the relevant person for statute of limitations purposes. See Pogue, 474 F. Supp. 2d at 87. The Pogue decision represents the third line of cases interpreting § 3731(b) and is the most faithful to the words of the statute and contains the most careful analysis of the statute and its legislative history. The same position was adopted by the courts in United States ex rel. Lewis v. Walker, 2007 WL 2713018 (M.D. Ga. 2007) at *5-*6; United States ex rel. Gonzales v. Fresenius Medical Care North Ameri- ca, 2008 WL 4277150 (W.D. Tx. 2008) at *7-*8; United States ex rel. Salmeron v. Enterprise Recovery Sys., 464 F. Supp. 2d 766 (N.D. Ill. 2006); United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 777 F.Supp. 195 (N.D.N.Y. 1991); and United States ex rel. Colunga v. Hercules, Inc., 1998 WL 310481 (D. Ut. 1998), overruled by Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702 (10th Cir. 2006). These courts held that the ten-year limitations period of § 3731(b)(2) does apply to relators, but that * S.Rep. No. 345, 99th Cong., 2d Sess., 30 (July 28, 1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5295 16 its tolling provision does not implicate relator know- ledge. Instead, the relevant knowledge for purposes of calculating time is the date when an official of the United States learned of the fraud. Under this inter- pretation, the statute of limitations would be the same for the government as the relator, and if an official of the United States never learned of the fraud, the relator would have ten years to bring his action. As noted in Pogue, the Court should begin any analysis with the language of the statute itself. As Pogue explains, the prefatory language of § 3731(b), “a civil action under section 3730” includes both the government and relators. Pogue, 474 F. Supp. 2d at 84. In order to have different limitation periods for actions brought by relators and government, differen- tiating language must be found in the subordinate clauses. Jd. An examination of subsection (b)(2) does not reveal “any negative words or words of exclusion.” Id. The Pogue court concluded that “the language of § 3731(b) includes relators, and the language of (b)(2) does not exclude them.” Jd. It criticized other courts that attempted to find implicit exclusion by reference to the words “official of the United States,” pointing out that if that were the intent of Congress, it could have done so explicitly. /d. Finally, the last clause of the section, “whichever occurs last,” applies to both subordinate clauses and obviously means that they should be read together. Jd. at 85. The court of ap- peals decision and those like it essentially ignore the last clause of the statute, forgetting “that it is the 17 later of the two alternatives that establishes the time bar.” Salmeron, 464 F. Supp.2d at 469 (emphasis in the original). The fact that the court of appeals and other courts have erroneously applied the statute and misconstrued the legislative intent of the 1986 amendments to the FCA has prompted legislative attempts by the last and current Congresses to cor- rect this and other erroneous court interpretations.’ Congress is again considering legislation that would eliminate any confusion caused by the current statute by creating a uniform ten-year limitations period.’ This bill was introduced by Senator Grassley, the sponsor of the 1986 amendments to the FCA which contained the current limitations period. With these new amendments, Senator Grassley seeks to overturn a number of judicial decisions that have ° See S. 2041, False Claims Act Corrections Act of 2007, 153 Cong. Rec. S11506-509 (Sept. 12, 2007) (introduced by Senators Grassley, Durbin, Leahy, Specter and Whitehouse) (Senator Grassley states in his introductory remarks: “Recent decisions by Federal courts have limited the False Claims Act in a way that was not envisioned when I[ authored the 1986 amendments. These court decisions threaten to undermine both the spint and intent of the 1986 amendments.”). * The proposed Senate amendment of § 3731(b) states simply: (b)1) A civil action under section 3730 may not be brought more than 10 years after the date on which the violation of section 3729 or 3730 is committed. (S 458 §6 reintroduced Feb. 24, 2009. ) 18 interpreted the FCA in ways not intended by the drafters of the 1986 amendments.’ Since the Court has not decided this issue, it should accept Senator Grassley’s guidance and reach a result that is consis- tent with the current legislative proposals. B. The Court Should Grant the Petition to Resolve the Conflicting Positions of the Lower Courts Regarding the Appropriate Standard for Materiality, if any, to be Ap- plied in FCA Actions. The FCA does not include a specific requirement for alleging or proving the materiality of a false claim. The lower courts, however, have engrafted two differ- ent standards for materiality onto the FCA. The first is typified by the decision in United States ex rel. Berge v. Trustees of Univ. of Alabama, 104 F.3d 1453 (4th Cir. 1997), adopting the “natural tendency,” test expressed as “whether the false statement has a natural tendency to influence agency action or is capable of influencing agency action.” Jd. at 1459. At least four other circuits have adopted the “natural tendency” test. See United States v. Bourseau, 531 F.3d 1159, 1171 (9th Cir. 2008), cert. denied, __ US. ___ (2009): United States v. Rogan, 517 F.3d 449, 452 (7th Cir. 2008); United States ex rel. Bahrani v. Cona- gra, Inc., 465 F.3d 1189, 1204 (10th Cir. 2006), cert. denied, 128 S. Ct. 388 (2007); United States ex rel. A+ " 153 Cong. Rec. S11506. 19 Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428, 445-46 (6th Cir. 2004), cert. denied, 546 U.S. 1063 (2005). As noted by the court in A+ Homecare, “(t]he Eighth Circuit has adopted a more stringent ‘outcome materiality’ test, which requires a showing that the alleged fraudulent actions had ‘the purpose and effect of causing the United States to pay out money it is not obligated to pay, or those actions which intention- ally deprive the United States of money it is lawfully due.’” A+ Homecare, 400 F.3d at 445 (citing Costner v. URS Consultants, Inc., 153 F.3d 667, 677 (8th Cir. 1998)). Under the “outcome materiality” test, the Eighth Circuit held that the plaintiff was required to show that the government agency would have acted differently had it known of the omission and con- cluded that, “‘there is no false claim because [the agency’ action] would have occurred regardless of [the defendant’s] actions.’” Id. (citing Rabushka ex rel. United States v. Crane Co., 122 F.3d 559, 563 (8th Cir. 1997), cert. denied, 523 U.S. 1040 (1998)). In seeking to resolve the conflict between the lower courts, this Court should first address the question of whether the FCA includes a materiality element at all. Based on this Court’s decisions in United States v. Wells, 519 U.S. 482 (1987) and Neder v. United States, 527 U.S. 1 (1999), a materiality requirement should not be read into the FCA. The Wells-Neder framework presents a three-step analysis for determining whether materiality is required by a statute. First, if the statute does not specifically include a materiality element, without more, it is not 20 required. Wells, 519 U.S. at 489-90; Neder, 527 U.S. at 20 (citing Wells). A materiality element may be implied, however, if the statute uses terms that have well-settled common law meanings that include materiality. Wells, 519 U.S. at 491; Neder, 527 U.S. at 22-23. Finally, this presumption may be rebutted if the text or the structure of the statute shows that the addition of a materiality requirement would create an inconsistency with the rest of the statute. Neder, 527 U.S. at 22-25. The application of this framework to the seven different provisions of the FCA imposing liability for false claims, demonstrates that most of those provi- sions should not require an implied materiality element. Starting with the first prong of the Wells-Neder analysis, the FCA does not specifically require mate- riality. Therefore, the seven provisions of the FCA have to be analyzed separately to find a materiality requirement. Sections 3729(a)(1) and (a)(2) are the two most often cited provisions of the FCA and use the terms “false or fraudulent claims.” App. 51. The Wells Court determined that the term “false statement” did not create a presumption that materiality was an ele- ment of a statute.” Analyzing the term “fraud,” the Court in Neder determined that it did require a * Wells, 519 U.S. at 491. 21 showing of materiality.’ Therefore the use of the word “fraudulent” could imply that Congress intended that materiality be an element of subsections (a)(1) and (a)(2). The term is used, however, in the disjunctive with the term “false,” which suggests that more analysis is required. Since both words are used, a party would only have to prove that a claim is false and not fraudulent. While ali fraudulent claims are probably false, not all false claims are necessarily fraudulent. Therefore, a plaintiff could avoid the requirement to prove materiality in an FCA action by just alleging that the defendant made false claims rather than fraudulent claims. Even if the focus is on the term “fraudulent” the remaining language of the statute demonstrates that materiality should not be required. Both (a)(1) and (a)(2) require a showing that a false claim is made “knowingly.” This term is defined as follows: Knowing and knowingly defined. For pur- poses of this section, the terms “knowing” and “knowingly” mean that a person, with respect to information — (1) has actual knowledge of the infor- mation; (2) acts in deliberate ignorance of the truth or falsity of the information; or ‘Neder, 527 US. at 21-25 22 (3) acts in ree :ess disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required. 31 U.S.C. § 3729(b). In establishing this relaxed standard for know- ledge, Congress in 1986 overturned several decisions which had required heightened proof of scienter. See James B. Helmer, Jr., False Claims Act: Whistler Blower Litigation, § 2-4(d) (5th ed. 2007). Specifically, by eliminating the requirement for specific intent, Congress was demonstrating that it was creating a statutory basis for remedying false claims against the government.” Sections 3729(a)(3)-(a\(5) use the term “defraud” to describe the type of wrongdoing those provisions were attempting to remedy. Moreover, these three provisions do not use the term “knowingly.” There- fore, a stronger case can be made for the requirement of materiality when these provisions are invoked. '° In this regard, Sanders notes also that included in the proposals to amend the FCA is a provision that would eliminate any materiality requirement. Ths* provision states: Statutory Cause of Action. -. Liability under this sec- tion is a statutory cause of action all elements of which are set forth in this section. No proof of any ad- ditional element of common law fraud or other cause of action is implied or required for liability to exist for a violation of subsection (a). Section 3729 (c), HR 1788, The False Claims Act Corrections Act of 2009. (Introduced March 30, 2009). 23 However, these provisions are invoked rarely and they were not part of Petitioner Sanders’ complaint. Neither sections 3729(a)(6) and (a)(7) use the terms “fraud,” “fraudulent,” or “defraud.” Therefore, under the Wells-Neder analysis, there is no require- ment for a demonstration of materiality. Two of Sanders’ Customs counts were pled under section 3729(a)(7) since they involved false claims to avoid paying money to the government. The different “materiality” tests used by lower courts require this Court’s guidance on the proper materiality test to be applied in FCA actions, if any. Absent clear guidance from the current Congress, the Court should take this opportunity to address this question. C. The Court Should Exercise Its Supervi- sory Powers to Correct the Lower Courts’ Improper Application of the Materiality Element Based on the “Natural Tendency” Test. If the Court determines that the FCA includes a materiality element and that element should be governed by the “natural tendency” test, the Court should exercise its supervisory powers to ensure that the test is applied correctly. While both the district court and the court of appeals purported to apply the “natural tendency” test, both effectively adopted the “outcome materiality” test. Both courts determined 24 what Customs would have done had it known the true facts instead of what Customs could have done. The district court concluded: I would find that the Customs decision could not have been affected by the alleged false statements relating to permanent installa- tion because the decision would have been the same whether or not the components had been permanently installed. I note, however, that in my judgment a more precise formula- tion of the proper inquiry is whether, even in the absence of permanently installed compo- nents, Customs still would have classified the NABI imports as unfinished buses rather than bus shells. App. 39. The court’s assumption about what Customs would have done had NABI honestly described its bus body imports is expressly contradicted by the Cus- toms ruling itself which explicitly stated that its decision to reclassify the imports as finished busses was based or representations that the shell contained a “sudstantial amount of equipment and number of components necessary for a completed transit bus.” App. 23. The court had no way of knowing that Cus- toms would have made the same decision in the absence of the false claims. Given the facts presented and the stated position of Customs, the most that the court could determine is that Customs “could have” classified the bus shells in either provision. The court's absolutist position is also called into question 25 by its refusal to consider the government’s belated attempt to reconsider its intervention decision. App. 35-36 n.1. Certainly, given the government’s demon- stration of uncertainty, the court should have drawn the opposite conclusion and acknowledged that Cus- toms was at least considering classifying the shells as bus bodies. If Customs was considering that decision, then as a legal matter, it could have imposed that classification, and NABI’s false statements would have been material. Similarly, the court of appeals minimizes the components that Sanders alleges to be missing and then concludes: Assuming for purposes of argument that NABI’s statements were false, Sanders has given us no reason to believe that when Cus- toms considered a protest that listed twenty imported components those false statements regarding one or two missing components — much less subcomponents — were material to Customs’ decision. App. 22. Again, this conclusion flies in the face of the standard that Customs used to determine the proper classification: the “substantial amount of equipment and number of components necessary for a completed transit bus.” This conclusion also ignores the fact that the components about which NABI lied were four of the most important operating systems containing many components and subcomponents. Given that this was a protest of the classification of previous importations, it was at the very least a close question. 26 Obviously NABI thought so, giving it a strong motive to falsely describe its bus shell imports. How could the court possibly know whether the false claims could not have affected the classification decision? Further, the decision deliberately ignored the government’s affidavit used to secure a search war- rant of NABI’s facility. The search warrant reflects Customs’ belated investigation of Sanders’ allegations and concludes that he was correct App. 76. Even though it had the power to do so under Fed. R. Evid. 201(f)," the Panel refused to consider this informa- tion, because it was “outside” the record in this case. App. 27. The Panel chose to ignore information that contradicted its findings and issued an opinion that was demonstrably at odds with that of the agency based solely on the fact that Customs’ search warrant was released after the district court’s decision. Ulti- mately, had the court of appeals accepted the gov- ernment’s affidavit, it would have mooted the entire question of materiality, because the affidavit demon- strates that the false claims were material under ' See e.g. Philip Medical Sys. International, B.V. v. Bruet- man, 982 F.2d 211 (7th Cir. 1992); Dobbs v. Anthem Blue Cross & Blue Shield, 475 F.3d 1176, 1179 (10th Cir. 2007) (“Although notice is not required under Rule 28(j), good advocates neverthe- less file such notice out of respect for this Court and a commit- ment to resolving disputes in an _ expeditious manner. Particularly when a legal development is controlling, as it is here, we admonish counsel to bring the relevant authority to the Court’s attention.”). 27 either the “natural tendency” or “outcome materiali- ty” tests. Beyond the fact that the district court and the court of appeals got the decision wrong, an important consideration for this Petition is the methodology the courts employed in reaching that decision. The Cus- toms ruling does not say what components were important to its classification decision. The protest listed 20 components that were on the imported shell.” Sanders alleges, and the record shows, that at least four of those components were not complete or not imported with the shells. The incomplete or missing components were the front suspension, rear suspension, power steering, and brake chamber. Effectively, the Panel held that since NABI lied about only 4 of the 20 components, the lies were not materi- al. This defies the concept of materiality based on the “natural tendency” test. What would be material — 5 of 20, 8 of 20, 10 of 20? There is no way to determine from the Panel’s decision how many lies would be material. If this decision is followed by other courts, it effectively tells those courts that they can ignore legal requirements and issue judgments based on the subjective feeling of the court. Far beyond Customs ‘* Those components were: the base structure; body; axles; front suspension; rear suspension; mms; wheels; power steering; brake chamber; fuel tank; engine cradle; flooring; partial door system including the door panels; windshield; outside body trim; corrosion protection paint; steering wheel; tracking for interior lights; air duct system; and destination sign door and enclosure. App. 22, n.4. 28 cases, it gives no guidance to future courts in apply- ing the natural tendency test, substituting a slippery slope and judicial arbitrariness for the easily unders- tood and applied “could have” test. It effectively states that lies are not necessarily material even when they go to the core of the government’s decision making process. According to the Panel, apparently, the natural tendency test must involve some sliding scale of weighing the lies in order to determine materiality. Customs tells us in their ruling that they focused on the components to determine the classification. A showing that NABI hed about one or two, or as in this case, a minimum of four of those components, is sufficient evidence to demonstrate that Customs potentially could have classified the shells as bus bodies. The Panel improperly substituted its assump- tions about what Customs would have done instead of showing deference and respect to what Customs could have done, and in fact did after the district court’s decision. The lower courts effectively applied the “outcome materiality” test by assuming that there was only one legal conclusion that could have been made. This is the wrong application of the “natural tendency” test. This Court should grant the Petition if only to give guidance to the lower courts on the proper application of the “natural tendency” test. ST ¢ 29 CONCLUSION The petition for writ of certiorari should be granted. Respectfully submitted, Of Counsel: THE CULLEN LAW FIRM, PLLC JAMES A. MOODY JOSEPH A. BLACK 1101 30th Street, NW Counsel of Record Suite 300 1101 30th Street, NW Washington, D.C. 20007 Suite 300 (202) 298-4766 Washington, D.C. 20007 (202) 944-8600 App. 1 546 F.3d 288 United States Court of Appeals, Fourth Circuit. UNITED STATES of America ex rel. Thornton G. SANDERS, Plaintiff-Appellant, v. NORTH AMERICAN BUS INDUSTRIES, INCORPORATED; Deloitte & Touche USA, LLP; North American Bus Industries Kft., Defendants-Appellees, and North American Bus Industries, Rt.; American Ikarus; Peter Z. Rona; The First Hungary Fund, Defendants. Taxpayers Against Fraud Education Fund, Amicus Supporting Appellant. No. 07-1773. Argued: Sept. 24, 2008. Decided: Nov. 5, 2008. ARGUED: Joseph A. Black, Cullen Law Firm, P.L.L.C., Washington, D.C., for Appellant. James Patrick Ulwick, Kramon & Graham, Baltimore, Maryland; Amelia Toy Rudolph, Sutherland, Asbill & Brennan, Atlanta, Georgia, for Appellees. ON BRIEF: Daniel E. Cohen, Cullen Law Firm, P.L.L.C., Washington, D.C., for Appellant. Melissa H. Maxman, Baker & Hostetler, L.L.P., Washington, D.C., for Appellees North American Bus Industries, Incorpo- rated and North American Bus Industries, Kft. Mike Bothwell, Sara Vann, Bothwell & Harris, P.C., Ros- well, Georgia; James W. Moorman, Joseph E.B. App. 2 White, Taxpayers Against Fraud Education Fund, Washington, D.C., for Amicus Supporting Appellant. Before WILKINSON, Circuit Judge, HAMIL- TON, Senior Circuit Judge, and JAMES C. CACH- ERIS, Senior United States District Judge for the Eastern District of Virginia, sitting by designation. Affirmed by published opinion. Judge WILKIN- SON wrote the opinion, in which Senior Judge HAM- ILTON and Senior Judge CACHERIS joined. OPINION WILKINSON, Circuit Judge: This appeal arises from a qui tam action under the False Claims Act brought by Thornton G. Sanders against his former employer, North American Bus Industries, Inc. (“NABI”). Sanders alleges that NABI defrauded the United States by underpaying duties on bus frames that NABI imported from Hungary and by falsely certifying that the buses that NABI manu- factured using those frames were eligible for federal “Buy America” subsidies. Sanders also alleges that Deloitte & Touche USA, LLP, participated in NABI’s fraud. The district court rejected all of Sanders’s claims on various grounds. Sanders now challenges each of those dismissals, asserting myriad defects of both fact and law. We agree, however, with the district court that plaintiff has failed to establish the necessary App. 3 elements of an FCA claim. We thus affirm the judg- ment. I. A. NABI is an Alabama corporation that manufac- tures and sells transit buses. The manufacturing process occurs in stages. First, the bus frames, or “shells,” are constructed by NABI’s corporate parent, North American Bus Industries, Kft. (“NABI Hun- gary”). NABI Hungary then ships the shells to NABI’s headquarters in Alabama. The shipments include a number of components, like the wheels, some of which are fixed permanently to the shells prior to shipment. NABI then completes the assembly, using both the shipped components and additional Ameri- can-made parts. NABI distributes the completed buses to munici- palities and transit authorities throughout the United States. The federal government subsidizes these local entities for purchases of buses that meet federal “Buy America” requirements. See 49 U.S.C. § 5323(j); 49 C.F.R. §§ 661.1-.21. Local entities receiv- ing subsidies require NABI to certify that its buses satisfy the Buy America provisions. In particular, NABI must certify that more than sixty percent of the components in its completed buses (by cost) are produced in the United States. App. 4 The bus shells and components that NABI im- ports from its Hungarian parent are taxed according to the Harmonized Tariff Schedule of the United States (“HTSUS”), which provides the various classi- fications and corresponding rates of duty for imported merchandise. See 19 U.S.C. § 1202. Prior to June 1998, NABI’s bus shells were classified under the HTSUS subheading for “Bodies (including cabs), for . motor vehicles.” HTSUS subheading 8707.90.50. That classification carried a duty of four percent of the value of the imported bus shells and components. In June 1998, NABI hired Damon Pike, a director at Deloitte, to file a protest on NABI’s behalf with the U.S. Customs Service (currently U.S. Customs and Border Protection). See 19 U.S.C. § 1514 (Customs protests); 19 C.F.R. pt. 174. NABI sought to have its previous imports reclassified under the HTSUS subheading for “Motor vehicles [with a diesel engine] ... \djesigned for the transport of 16 or more persons, including the driver.” HTSUS subheading 8702.10.30. In other words, NABI sought to have the imports that previously had been classified as mere bodies of buses reclassified under the subheading for completed motor vehicles. Under the latter classification, NABI’s imports would have been eligible for duty-free treat- ment under the Generalized System of Preferences because the imports were from Hungary. See 19 U.S.C. §§ 2461-2467. NABI’s protest relied primarily on General Rule of Interpretation 2(a) of the HTSUS. Rule 2(a) pro- vides that “[aJny reference in a heading to an article App. 5 shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article.” Based on that rule, NABI argued that its bus shells should be reclassified because they had tne “essential character” of finished motor vehicles. NABI supported that argument by listing twenty compo- nents that it asserted were “permanently installed” on the bus shells at the time of importation. NABI’s protest did concede that, when compared with the imports in a prior Customs ruling on trolley bus shells, NABI’s imported components were somewhat fewer and had a somewhat lesser value. NABI’s protest further expressly listed twelve components that NABI acknowledged were installed only after importation. But NABI argued that those differences and missing parts did not alter the “essential charac- ter” of NABI’s imports. In November 1998, Customs issued a decision granting NABI’s protest and holding that NABI’s imports should have been classified under subhead- ing 8702.10.30 as “motor vehicles” eligible for duty- free treatment. The decision cited the components listed in NABI’s protest and noted that the remaining components were installed after importation. Cus- toms then stated its finding that “[t]he bus shells when imported contain a substantial amount of equipment and number of components necessary for a completed transit bus.” Customs concluded that App. 6 NABI’s imports, even in their “unfinished state,” had the “essential character” of motor vehicles. Based on the successful protest decision, NABI received refunds of duties that it had paid on bus shells imported between April and August 1997; statutory deadlines prevented NABI from seeking refunds for earlier imports. Apparently based in part on the advice of Damon Pike of Deloitte, NABI also began classifying its subsequent imports under the duty-free subheading for motor vehicles. B. Thornton G. Sanders, the gui tam relator in this action, is a former executive of NABI. NABI hired Sanders as Vice President and Chief Financial Officer in 1993. In 1994, Sanders became President and Director of NABI.’ During his employment at NABI, Sanders raised questions within the company about certain contracts between NABI and NABI Hungary. NABI and its parent company entered into two separate contracts for each set of bus shells that NABI imported in the years from 1993 to 1997. Under the first contract, NABI paid NABI Hungary for the bus shells and their components. Under the second contract, NABI At that time, NABI was known as American Ikarus, Inc. Any distinctions between NABI and its predecessor corporation are immaterial to this case. App. 7 paid NABI Hungary for engineering and technology services. NABI characterized those services as con- sisting of both tangible designs and intangible techni- cal information that assisted NABI in assembling the imported shells and parts. Because NABI did not consider the engineering and technology services to be part of the value cf the imported bus shells, NABI did not include the cost of those services when declar- ing the value of the shells to Customs, or when calcu- lating the eligibility of its buses for Buy America subsidies. In 1996, Sanders sent memoranda to others at NABI recommending that NABI discontinue its separate payments for engineering and technology services. Sanders asserted that the company’s pay- ments did not accurately reflect the technical assis- tance that NABI was receiving from NABI Hungary. Apparently acting on Sanders’s recommendation, NABI discontinued its separate contracts for engi- neering and technology services in 1997. NABI also terminated Sanders’s employment in 1997, sho-tly after Sanders proposed that the com- pany be sold to a group of investors that included himself and NABI’s other senior managers. Sanders subsequently wrote a letter to another NABI em- ployee stating that he had been fired because execu- tives at NABI Hungary viewed Sanders’s proposed purchase of the company as an act of disloyalty. App. 8 C. Sanders subsequently filed suit against NABI in 2002 under the qui tam provisions of the False Claims Act (“FCA”). 31 U.S.C. §§ 3729-3733. Section 3729 of the FCA creates liability in the form of treble damages and civil penalties of up to $10,000 for perscns who make false or fraudulent claims for payment to the United States. Id. § 3729(a). And Section 3730 provides that civil actions under the FCA may be brought either by the Attorney General, id. § 3730(a), or by private persons, known as rela- tors, who sue on the federal government's behalf, id. § 3730(b). A relator may recover up to thirty percent of the proceeds of a successful action, plus attorney’s fees and costs. Jd. § 3730(d). The relator must file his complaint under seal and notify the government of his action, and the government may then elect either to intervene in the suit or to allow the relator to continue the suit alone. Jd. § 3730(b). The United States has consistently declined to intervene in Sanders’s action. Sanders stated five causes of action under the FCA. In Count I, Sanders claimed that NABI had falsely certified that its buses were eligible for Buy America subsidies. The district court granted sum- mary judgment to NABI on Count I because Sand- ers’s claims were barred by the FCA’s six-year statute of limitations in 31 U.S.C. § 3731(b)(1) and because the United States had not suffered actual damages. App. 9 In Counts II and III, Sanders claimed that the protest submitted to Customs by NABI and Deloitte in 1998 contained a false description of NABI’s im- ported bus shells. The district court granted Deloitte’s motion to dismiss both counts as time-barred. The district court also granted summary judgment to NABI on Counts II and III. The court held that any alleged false statements in NABI’s protest were immaterial to Customs’ decision to reclassify NABI’s imports. In Count IV, Sanders claimed that NABI had also underpaid its duties by failing to declare to Customs the value of the separate payments that NABI made for engineering and technology services. The district court granted summary judgment to NABI, holding that the successful Customs decision made clear that NABI never owed any duties on its imports. Thus, even if NABI had failed to declare the imports’ full value, the court held that NABI had not violated the FCA because NABI had not deprived the government of any money that it was actually due. Finally, Sanders claimed in Count V that he had been wrongfully discharged in violation of the FCA’s anti-retaliation provision. 31 U.S.C. §3730(h). The district court dismissed Sanders’s claim as time- barred under the Supreme Court’s decision in Gra- ham County Soil & Water Conservation District v. United States ex rel. Wilson, 545 U.S. 409, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005). Sanders did not oppose that dismissal. App. 10 Sanders now appeals the district court’s disposi- tion of each of his claims. We discuss those claims in turn. ik. Sanders first contends that the district court misconstrued the FCA’s statute of limitations, 31 U.S.C. § 3731(b), which provides the following: A civil action under section 3730 may not be brought — (1) more than 6 years after the date on which the violation of section 3729 is com- mitted, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the cir- cumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last. The district court held that the six-year limita- tions period in Section 3731(b)(1) barred Sanders’s claims against NABI in Count I and against Deloitte in Counts II and III. Sanders argues that the district court should have applied Section 3731(b)\(2) to ex- tend the limitations period for those claims. Sanders interprets Section 3731(b)(2) to allow a relator to bring a cause of action within ten years of an FCA App. 11 violation, as long as the relevant government official has not had actual or constructive knowledge of the violation for more than three years. We hold that Section 3731(b)(2) extends the FCA’s statute of limi- tations beyond six years only in cases in which the United States is a party. It would be problematic to read the text of the statute any other way. Section 3731(b)(2) refers only to the United States — and not to relators. Thus, Congress intended Section 3731(b)(2) to extend the FCA’s default six-year period only in cases in which the government is a party, rather than to produce the bizarre scenario in which the limitations period in a relator’s action depends on the knowledge of a non- party to the action. The specific language in the statute bears this out. The limitations period in Section 3731(b)(2) starts when the government knows or should know of “facts material to the right of action.” This language makes perfect sense when referring to an action brought by the government: the limitations period is based on the government’s knowledge of “facts mate- rial to the right of action” because that particular knowledge notifies the government that it has an actionable FCA claim. But applying the statute’s language to a relator’s action makes no sense whatso- ever. The government’s knowledge of “facts material to the right of action” does not notify the relator of anything, so that knowledge cannot reasonably begin the limitations period for a relator’s claims. Further- more, once the material facts supporting a right of App. 12 action are known to the United States, it is doubtful that the government official “charged with responsi- bility to act in the circumstances” could be charged with any responsibility other than to see that the government brings or joins an FCA action within the limitations period. After all, government officials are certainly not “charged with responsibility” to ensure that a relator brings a timely FCA action. All of these textual elements demonstrate that Section 3731(b)(2) makes sense only when read to extend the FCA’s limitations period in actions brought or joined by the United States. Our reading of the statute’s text finds support in the fact that Section 3731(b)(2) is almost identical to another federal statute, 28 U.S.C. § 2416(c). Section 2416(c) tolls the generally applicable statute of limi- tations in actions brought by the United States — and only by the United States — until “facts material to the right of action” are actually or constructively known by an “official of the United States charged with the responsibility to act in the circumstances.” Section 2416 was enacted in 1966. See Pub.L. No. 89- 505, § 1, 80 Stat. 304, 305 (1966). Congress added Section 3731(b)(2) to the FCA in 1986 (the FCA previously had a uniform six-year limitations period). See Pub.L. No. 99-562, §5, 100 Stat. 3153, 3158 (1986). Thus, it appears that when enacting Section 3731(b\2), Congress adopted the language from Section 2416(c) that applies only to actions brought by the government. This apparent transcription of statutory language supports the conclusion that the App. 13 text of Section 3731(b)(2) lengthens the FCA’s limita- tions period only when the government is a party. See United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.8d 702, 724-25 (10th Cir.2006). Sanders proffers a contrary reading of the stat- ute’s text. Sanders argues that Section 3731(b)(2)’s failure to mention relators actually supports the application of that section to qui tam actions. He contends that the phrase “[a] civil action under section 3730” in the preface to Section 3731(b) in- cludes all civil actions under the FCA; he then argues that Section 3731(b)(2) does not contain any language expressly excluding relator actions; and he therefore concludes that relator actions fall within the scope of Section 3731(b)(2). Sanders’s argument fails for two reasons. First, Section 3731(b)(2) does contain language excluding actions by relators because the statutory language makes no sense when applied to an action in which the government is not a party. Second, we also dis- agree with Sanders’s other premise, that “[a] civil action” must be read indiscriminately to encompass all FCA claims in all contexts. In fact, the Supreme Court recently rejected almost exactly the same argument in Graham County Soil & Water Conserva- tion District v. United States ex rel. Wilson, 545 U.S. 409, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005). In Wilson, the Supreme Court held that Section 3731(b)’s reference to civil actions under Section 3730 did not include anti-retaliation claims, even though App. 14 FCA anti-retaliation claims are brought under Sec- tion 3730(h). 545 U.S. at 411, 125 S.Ct. 2444. The Court recognized that “Congress used the term ‘action under section 3730’ imprecisely in § 3731 and, in particular, that Congress sometimes used the term to refer only to a subset of § 3730 actions.” Id. at 418, 125 S.Ct. 2444. And the Court reasoned that when “a civil action” was read in context, Section 3731(b)(1)’s reference to a “violation of section 3729” suggested that the statute did not include anti-retaliation claims because a violation of Section 3729 was not an element of those claims. See 545 U.S. at 415-16, 125 S.Ct. 2444. The same reasoning applies here. When the phrase “a civil action” is read in context, Section 3731(b\(2)’s restrictive language referring to the United States — and not to relators — makes clear that only a subset of civil actions may benefit from the extended limitations period in Section 3731(b)(2) — those in which the government is a party. Sanders’s proposed construction of the statute also generates numerous practical difficulties. Under Sanders’s reading, the statute of limitations in qui tam actions would depend on the knowledge of a nonparty government official. Not only is that result counterintuitive, but it would also cause innumerable headaches for both defendants and the government during discovery. To advance a statute of limitations defense, defendants would be forced to seek out and litigate the identity and knowledge of a govern- ment official not a party to the action. And govern- ment agencies would be subjected to disruption and App. 15 expense in responding to discovery requests in ac- tions in which the government affirmatively chose to avoid those concerns by declining to intervene. We are reluctant to place these burdens on FCA defen- dants and the government absent a clear textual basis for doing so. Sanders’s reading of Section 3731(b)(2) also would allow relators to sit on their claims for up to ten years before filing an action and informing the government of the material facts. Indeed, relators would have a strong financial incentive to allow false claims to build up over time before they filed, thereby increasing their own potential recovery. By empower- ing relators to extend the limitations period at will, Sanders’s reading would render the six-year limita- tions period in Section 3731(b)(1) superfluous in nearly all FCA cases, thereby contradicting “our duty to give effect, if possible, to every clause and word of a statute.” Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (internal quota- tions omitted); see Sikkenga, 472 F.3d at 725-26 (agreeing that the approach advocated by Sanders would render Section 3731(b)(1) superfluous). Moreover, allowing relators to sit on their claims would undermine the purpose of the qui tam provi- sions of the FCA: to combat fraud quickly and effi- ciently by encouraging relators to bring actions that the government cannot or will not — “to stimulate actions by private parties should the prosecuting officers be tardy in bringing the suits.” United States ex rel. Marcus v. Hess, 317 U.S. 537, 547, 63 S.Ct. App. 16 379, 87 L.Ed. 443 (1943); Sikkenga, 472 F.3d at 725. Sanders’s interpretation would instead allow fraud to continue unabated for up to ten years. And a relator’s failure to notify the government promptly of FCA violations might also cause the government to lose out on its ability to bring a criminal fraud prosecu- tion, which must be filed within five years of the violation. See 18 U.S.C. §§ 287, 3282; United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211, 1218 (9th Cir.1996). This issue has admittedly given rise to different approaches in the federal courts. Our interpretation of Section 3731(b) is decidedly the majority approach in the federa] courts of appeals, where no circuit court has accepted Sanders’s view that Section 3731(b)(2) extends the limitations period in qui tam actions regardless of how long the relator has known of the material facts. The Tenth Circuit has expressly held that Section 3731(b)(2) does not apply to qui tam suits in which the government has not intervened. Sikkenga, 472 F.3d at 725; see also United States ex rel. Erskine v. Baker, No. 99-50034, 2000 WL 554644, at *1 (5th Cir. Apr.13, 2000) (same); United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 515, 519-20 (6th Cir.2007) (applying six-year limita- tions period to a relator’s claims); Foster v. Savannah Commce’n, 140 Fed.Appx. 905, 907-08 (11th Cir.2005) (same). But see Hyatt, 91 F.3d 1211, 1214-18 (9th Cir.1996) (holding that Section 3731(b)\(2) applies when the government is not a party but that the relator is the “official of the United States” on whose App. 17 knowledge the limitations period depends); United States ex rel. Malloy v. Telephonics Corp., 68 Fed.Appx. 270, 272-73 (3d Cir.2003) (also interpreting Section 3731(b)(2) to depend on the relator’s knowledge).* The majority of district courts in circuits other than these are also in accord with our interpretation. See United States ex rel. Fisher v. Network Software Assocs., Inc., 180 F.Supp.2d 192, 194 (D.D.C.2002); United States ex rel. El Amin v. George Washington Univ., 26 F.Supp.2d 162, 172-73 (D.D.C.1998); United States ex rel. Finney v. Nextwave Telecom, Inc., 337 B.R. 479, 486 (S.D.N.Y.2006); United States ex rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 6 F.Supp.2d 263, 265 (S.D.N.Y.1998); United States ex rel. Vosika v. Star”ey Labs., Inc., No. Civ. 01-709, 2004 WL 2065127, at *2-3 (D.Minn. Sept.8, 2004). A minority, however, has adopted Sanders’s view. See United States ex rel. Pogue v. Diabetes Treatment Ctrs. of America, 474 FSupp.2d 75, 81-89 (D.D.C.2007); United States ex rel. Salmeron v. Enterprise Recovery Sys., Inc., 464 F.Supp.2d 766, 769-70 (N.D.II].2006); * Because we hold that Sanders cannot seek the benefit of Section 3731(b)(2), we need not and do not decide which specific government official is “charged with responsibility to act in the circumstances” — a question that has perplexed some court.. Compare United States v. Macomb Contracting Corp., 763 F.Supp. 272, 274 (M.D.Tenn.1990) (relevant official must be within the Department of Justice) with United States v. Tech Refrigeration, 143 F.Supp.2d 1006, 1009-10 (N.D-II1.2001) (knowledge of other government officials may be imputed to DOJ). App. 18 United States ex rel. Kreindler & Kreindler v. United Techs. Corp., 777 F.Supp. 195, 204-05 (N.D.N.Y.1991). Based on our interpretation of Section 3731(b), we affirm the district court’s grant of summary judz- ment on Count I to NABI. Before the district court, Sanders limited the scope of Count I solely to claims hat arose outside of the six-year limitations period. We therefore need not reach the question of whether the government suffered actual damages from the Buy America fraud that Sanders alleged in Count I. We also affirm the district court’s dismissal of Counts II and III against Deloitte as time-barred.’ * Sanders tries to circumvent the district court’s holding that his claims against Deloitte under Count III were untimely. Even though all of Deloitte’s alleged misconduct occurred outside of six years, Sanders contends that Deloitte caused subsequent violations by NABI within the limitations period. But that was not the theory of liability expressed in Count IJ] of Sanders’s complaint, which did not allege any independent FCA violations other than the supposedly false Customs protest. See Second Amended Complaint {| 40. Count III as pleaded against Deloitte was therefore time-barred. And even if we were to construe Count III to contemplate additional, independent FCA violations, Sanders’s complaint warranted dismissal for other reasons. For one, Sanders failed to adequately plead the element of causation because Deloitte’s alleged advice to NABI to enter its bus shells duty-free was superfluous to the Customs decision itself. Furthermore, Sanders failed to allege any FCA violations within the statutory period with the particularity required by Federal Rule of Civil Procedure 9(b). App. 19 III. Sanders contends that the district court erred when it granted summary judgment to NABI on Counts II and III of Sanders’s complaint. In those counts, Sanders claimed that NABI violated the FCA because the protest that NABI submitted to Customs in 1998 misrepresented the condition of the com- pany’s bus shells when they were imported, thereby improperly allowing NABI to obtain duty-free treat- ment for its imports. The district court held that Sanders failed to establish that the alleged false statements made by NABI in its protest were mate- rial to Customs’ decision to reclassify NABI’s imports. The elements of an FCA claim are straightfor- ward. “(T]he plaintiff must prove: (1) that the defen- dant made a false statement or engaged in a fraudulent course of conduct; (2) such statement or conduct was made or carried out with the requisite scienter; (3) the statement or conduct was material; and (4) the statement or conduct caused the govern- ment to pay out money or to forfeit money due.” Harrison v. Westinghouse Savannah River Co., 352 F.3d 908, 913 (4th Cir.2003). The standard for mate- riality in the Fourth Circuit is also settled. “Under the FCA, a statement or course of conduct is material if it ‘has a natural tendency to influence agency action or is capable of influencing agency action.” United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 378 (4th Cir.2008) (quoting United States ex rel. Berge v. Bd. of Trs. of the Univ. of Ala., 104 F.3d 1453, 1460 (4th Cir.1997)). App. 20 Sanders did not allege under Counts II and III that NABI made any false statement outside of the protest that it submitted to Customs. Second Amended Complaint [J 37-41. We therefore analyze only the materiality of the protest’s alleged misstate- ments. NABI argued that its bus shells should be reclassified because they had the “essential charac- ter” of finished motor vehicles. And to support that argument, the protest listed twenty components and stated that those compunents were “permanently installed” when the shells were imported. Before the district court, Sanders claimed ini- tially that the protest was materially false because some of the named components were not “perma- nently installed.” Second Amended Complaint 24; Opposition to Deloitte’s Motion to Dismiss at 18 (“The Amended Complaint also sets forth the factual basis for the falsity of the protest, i.e., that at least seven specific components were not permanently in- stalled.”). For example, Sanders contended that the protest was false because the axles imported with the bus shells had to be removed and subsequently reattached after importation. Second Amended Com- plaint ¥ 26. Sanders’s initial argument failed because the issue of permanent installation was clearly immate- rial to Customs’ classification of NABI’s bus sheils. Customs’ decision in favor of NABI did not rely on a finding that any components were installed perma- nently. Instead, it relied solely on a finding that the bus shells “contain[ed] a substantial amount of App. 21 equipment and number of components necessary for a completed transit bus.” A previous Customs ruling (cited by NABI in its protest) also looked only to the presence of components, not to whether they were permanently installed. Sanders therefore eventually acknowledged in his summary judgment motion that permanent installation was immaterial: “For classifi- cation purposes, it does not matter if any of the components were permanently installed.” Sanders’s Motion for Summary Judgment at 14. After conceding on the issue of permanent instal- lation, Sanders nonetheless argues that NABI’s protest was materially false because a few of the components listed in the protest were either them- selves partially incomplete or were not actually imported with the bus shells. But even when the evidence in the record is viewed generously‘in Sand- ers’s favor, it is clear that the protest at most con- tained minor deficiencies. The evidence shows that no more than one or two subcomponents of the suspen- sion and power steering systems were not imported with the bus shells. Most, but not all, of the buses’ wheels and tires were included. And some of NABI’s bus shells (apparently beginning with the ones im- ported in the spring of 1998) did not include brake chambers and were imported with axles that were removed and sent back to Hungary. Sanders does not allege that any other components listed in NABI’s protest were missing or incomplete, nor does the evidence in the record suggest that to be the case. App. 22 When the record evidence is properly character- ized, the flaw in Sanders’s claim is obvious. Assuming for purposes of argument that NABI’s statements were false, Sanders has given us no reason to believe that when Customs considered a protest that listed twenty imported components,’ those false statements regarding one or two missing components — much less subcomponents -- were material to Customs’ decision.” Sanders has focused most of his energy on alleg- ing falsity in the protest by diving into the minute details of the subcomponents of the bus shells. But as Sanders’s claims of falsity become aarrower, the alleged falsehoods become less likely to be material. That is particularly so where the question for Cus- toms was not whether every component and subcom- ponent in the protest was present, but whether the bus shells had the “essential character” of buses. When it answered that question in the affirmative, Customs did not rely on the presence of any specific component. Instead, its decision found in broad terms “ Those components were: the base structure; body; axles; front suspension; rear suspension; rims; wheels; power steering; brake chamber; fuel tank; engine cradle; flooring; partial door system including the door panels; windshield; outside body trim; corrosion protection paint; steering wheel; tracking for interior lights; air duct system; and destination sign door and enclosure. * The protest also acknowledged that twelve components were not installed: the propulsion system; traction system; cooling system; heating and air conditioning; electrical system; bumpers; seats and stanchions; side windows; interior lighting; exterior lamps; passenger signals; and non-standard customer options. App. 23 that the bus shells “contain[ed] a substantial amount of equipment and number of components necessary for a completed transit bus.” Thus, we find no reason to believe that the particulars proffered by Sanders had any bearing on Customs’ holistic analysis. Sanders, however, takes vigorous exception to the actions of both Customs and the district court. First, Sanders attempts to find fault with the district court’s precise expression of the materiality standard. He argues that the district court applied the incorrect test by analyzing whether the missing components or subcomponents in the protest “would have,” rather than “could have,” affected Customs’ decision. But the district court expressly found a lack of materiality under the “could have” formulation pressed by Sand- ers. JA 1430. And regardless, the materiality inquiry does not turn on questions of “would have” versus “could have.” The standard is whether NABI’s alleged false statements had “a natural tendency to influence agency action or [were] capable of influencing agency action.” Berge, 104 F.3d at 1460. Under that standard, the false statements alleged by Sanders were imma- terial to Customs’ decision. Sanders also disagrees with the determination by Customs that NABI’s bus shells were properly classi- fied as motor vehicles. Sanders thinks that the shells were so incomplete that they should have been classi- fied under the alternative subheading for “bodies,” and he goes on at length about 39 components that he asserts were missing from the shells. But of those 39 supposedly missing components, Sanders points to App. 24 only 3 that were listed in NABI’s protest as being present in the bus shells. Brief of Appellant at 10-12. NABI also explicitly told Customs that many more of those 39 components were not included with its shells. And Sanders conceded at oral argument that NABI had made no misrepresentation to Customs regarding most of these 39 components. Furthermore, the Customs decision reflected the agency’s knowl- edge that NABI’s bus shells were far from complete. The decision stated that the bus shells arrived in the United States in an “unfinished state” and that only then were “the remaining necessary parts ... in- stalled to complete the transit busles].” Yet Customs still decided that NABI’s bus shells had the “essential character” of motor vehicles. When Sanders com- plains that too many components were missing from NABI’s bus shells for the shells to be classified as motor vehicles, he is therefore complaining not about misconduct by NABI, but about the Customs decision itself. Sanders may think that Customs’ decision was wrong, but that does not make NABI’s statements materially false. IV. Sanders next contends that the district court erred when it granted summary judgment to NABI on Count IV of Sanders’s complaint. Sanders claimed in Count IV that — prior to its successful protest —- NABI underpaid its duties to Customs because the company failed to declare as part of the vaiue of its bus shells App. 25 the payments that it made to NABI Hungary for engineering and technology services. We agree with the district court that Sanders failed to satisfy the fourth element of a cause of action under the FCA: that NABI’s allegedly false statement or conduct “caused the government to pay out money or to forfeit money due.” Harrison, 352 F.3d at 913. Because Customs determined that NABI’s bus shells qualified for duty-free treatment under the HTSUS subheading for motor vehicles, NABI owed no duties on its imports, regardless of their declared value. Thus, even if NABI declared less than the correct value, NABI did not avoid any obli- gation to pay money to the government, 31 U.S.C. § 3729(a)(7), and the government forfeited no money that it was due. Sanders responds with a creative — yet erroneous — argument. Sanders points out that when NABI filed its protest with Customs in 1998, statutory deadlines prevented the company from obtaining refunds of duties that it had paid before April 1997. Had NABI declared a larger value for its imports prior to April 1997, therefore, Sanders observes that NABI could not have recovered any of the extra duties that it would have paid. From this, Sanders concludes that the government suffered a loss in the additional amount that it would have received — and kept — had NABI declared the full value of its imports prior to April 1997. App. 26 Sanders’s argument fails because the availability of a refund is irrelevant to the issue of whether the government forfeited money that it was due in the first place. Even if NABI could not obtain a refund of past duties, the Customs decision demonstrated that NABI should have been paying no duties all along. Thus, NABI cannot be said to have cheated the government out of anything that it was due. In fact, the earlier misclassification of NABI’s imports worked in the government’s favor by erroneously subjecting those imports to taxation. And the only reason that the limitations period on refunds bears any significance is that it saved the government from making NABI whole on its overpayments. Sanders essentially argues that NABI should be liable for failing to provide the government an additional windfall. That argument cannot sustain the fourth element of an FCA claim, so we affirm the district court’s grant of summary judgment on Count IV. ° Sanders also appeals the district court’s dismissal of his anti-retaliation claim under Section 3730(h). Sanders concedes, and we agree, that the district court correctly dismissed that claim as time-barred under the Supreme Court's decision in Graham County Soil & Water Conservation District v. United States ex rel. Wilson, 545 U.S. 409, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005). Sanders contends that his claim should be reinstated if Congress enacts legislation to overrule the result in Wilson. No such legislation has been enacted, so we affirm on this claim also. App. 27 V. While this appeal was pending, Sanders submit- ted what he styled as two pieces of supplemental authority regarding developments within the past year: claims that Customs reclassified certain bus shells that NABI imported in December 2007, and claims that the government is investigating NABI for possible criminal violations relating to the classifica- tion of its imports. Our decision expresses no view whatsoever on these contentions. They are not part of the record before us, and we refuse to speculate as to the potential outcome of any ongoing investigations. Our decision tenders no general assessment on NABI’s past, current, or future conduct. We hold only that on the record in this case, the district court properly granted the defendants’ motions to dismiss and for summary judgment. The district court’s judgment is therefore AFFIRMED. App. 28 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1773 (1:02-cv-03084-JFM) UNITED STATES OF AMERICA, ex rel. Thornton G. Sanders, Plaintiff-Appellant, v. NORTH AMERICAN BUS INDUSTRIES, INCORPORATED; DELOITTE & TOUCHE USA, LLP; NORTH AMERICAN BUS INDUSTRIES KFT., Defendants-Appellees. and NORTH AMERICAN BUS INDUSTRIES, RT; AMERICAN IKARUS; PETER Z. RONA; THE FIRST HUNGARY FUND, Defendants. TAXPAYERS AGAINST FRAUD EDUCATION FUND, Amicus Supporting Appellant. ORDER (Filed Oct. 30, 2008) App. 29 Upon consideration of appellant’s motion to take judicial notice of affidavit, the Court denies the motion. For the Court /s/ Patricia S. Connor Clerk App. 30 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND CHAMBERS OF 101 WEST LOMBARD STREET J. FREDERICK MOTZ BALTIMORE, MARYLAND UNITED STATES 21201 DISTRICT JUDGE (410) 962-0782 (410) 962-2698 FAX June 25, 2007 Memo to Counsel Re: Sanders v. North American Bus Industries Civil No. JFM-02-3084 Dear Counsel: I have reviewed the memoranda submitted in connection with defendant’s motion for summary judgment as to count I. The motion is granted. It is undisputed that plaintiffs’ claim concerning the 121 buses that were sold to Miami Metro Dade, Maryland MTA, and WMATA arose more than six years before the filing of the complaint in this action. Therefore, the sole question presented by defendant’s motion is whether the six-year limitations period established by 31 U.S.C. §3731(b)(1), or the ten-year limitations period established by 31 U.S.C. §3731(b)(2), applies in a case brought by a relator in which the Government decides not to intervene. As you know, by a letter ruling dated December 19, 2005 I held (in connection with a claim asserted by plain- tiffs against Deloitte & Touche) that the six-year limitations period applies in such a case. However, App. 31 since the time I rendered that decision, Judge Lam- berth has held the ten-year limitations period applies in all False Claims Act cases, whether or not the Government has brought or chosen to intervene in the action. United States ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 474 F. Supp. 2d 75 (D.D.C. 2007). . Although Judge Lamberth’s opinion is well considered, I remain of the view I previously ex- pressed. This view is in line with the greater weight of authority that follows the approach established by United States ex rel. Thistlethwaite v. Dowty Wood- ville Polymer, Lid., 6 F. Supp. 2d 263 (S.D.N.Y. 1998) and United States ex rel. El Amin v. George Washing- ton University, 26 F. Supp 2d 162 (D.D.C. 1998). Judge Lamberth’s opinion in Pogue _ resuscitates United States ex rel. Colunga v. Hercules, Inc., 1998 U.S. Dist. LEXIS 21811, NO. 89-cv-954B (D. Utah Mar. 6, 1998, a decision that was buried by the Tenth Circuit in United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F. 3d 702 (10th Cir. 2006)). Furthermore, I find that the Thistlethwaite/El Amin approach is consistent both with the language of § 3731(b\(2) and, unlike the Pogue/Colunga ap- proach, the section’s legislative history. As for the statutory language, it is truc, as Judge Lamberth points out, that section 3731(b)(2) is not expressly limited to cases which are brought by the Government or in which the Government chooses to intervene. However, I continue to believe (as I stated in my December 19, 2005 letter ruling), that the App. 32 reference in § 3731(b)(2) to the knowledge or imputed knowledge of an “official of the United States” is sufficient to demonstrate that when _ enacting §3731(b)(2), Congress contemplated that the section applies only in such suits. After all, it is only where the Government itself is actively pursuing the litiga- tion that the knowledge or imputed knowledge of a Government official may fairly be said to be material to the issue of whether an extended limitations period should apply. The Senate report on the 1986 False Claims Act amendment, which added §§(b)(2) to §3731, confirms that this is what Congress envi- sioned. The report expressly stated that the purpose of the new section was to “permit the Government to bring an action within” the extended limitations period. S.Rep No. 345, 99th Cong., 2d Asses., 15 (July 28, 2986), reprinted in 1986 U.S.C.C.A.N. 5266. In Pogue Judge Lamberth observed that the Thistlethwaite/El Amin approach enables the Gov- ernment to determine what limitations period applies by deciding whether or not to intervene in the rela- tor’s action. 474 F. Supp. 2d at 88. Judge Lamberth went on to express a concern that this would be a “vexing scenario.” /d. I do not share this concern. The Pogue/Colunga approach would enable a relator to benefit from a ten-year limitations period if he or she decided not to advise the Government of a potential False Claims Act claim until seven years after it arises. As a general proposition, a ten-year statute of limitations for private litigants is quite exceptional; the six-year limitations period set forth in §3731(b\(1) App. 33 is much more in accordance with the norm of Ameri- can jurisprudence. With this premise in mind, it is reasonable, rather than “vexing,” to construe section 3731(b)(2) as authorizing the Government to deter- mine the applicable limitations period when deciding whether or not to intervene in a relator action. After all, the Government is the victim of a False Claims Act violation. Moreover, in its sovereign capacity, when making its intervention decision, the Govern- ment can appropriately determine whether the important policy interest in providing repose to a putative wrongdoer is outweighed by other factors, such as the flagrancy of the alleged misconduct or the amount of loss to the public fisc. I am entering herewith a separate order granting defendant’s motion for summary judgment as to count I. Despite the informal nature of this letter, it should be flagged as an opinion and docketed as an order. Very truly yours, /s/ J. Frederick Motz United States District Judge App. 34 2007 WL 80922 (D.Md.) United States District Court, D. Maryland. UNITED STATES of America, ex rel. Thornton G. SANDERS v. NORTH AMERICAN BUS INDUSTRIES, INC., et al. Civil No. JFM-02-3084. Jan. 3, 2007. Joseph A. Black, Daniel Eric Cohen, The Cullen Law Firm PLLC, Mark Scott London, London and Mead, Washington, DC, for Thornton G. Sanders. Mark I. Bailen, Melissa H. Maxman, Baker and Hostetler, Washington, DC, Andrew Jay Graham, James P. Ulwick, Kramon and Graham, PA, Balti- more, MD, for North American Bus Industries, Inc. ORDER J. FREDERICK MOTZ, United States District Judge. For the reasons stated in the accompanying memorandum to counsel, it is, this 3rd day of Janu- ary 2007. ORDERED 1. Plaintiff’s motion for summary judgment is denied; App. 35 2. Defendant’s motion for summary judgment is granted in part and denied in part; 3. Defendant’s motion is denied as to count I relating to the 121 buses that were sold to Miami Metro Dade, Maryland MTA, and WMATA; 4. Defendant’s motion is granted as to counts II and III and judgment is entered in favor of defendant against plaintiff as to those counts; and 4. Defendant’s motion is denied as to count IV. Memo To Counsel Re: United States of America, ex rel. Thornton G. Sanders v. North American Bus Industries, Inc. Dear Counsel: As I indicated at the conclusion of the hearing held on December 8, 2006, my schedule unfortunately does not permit me to write an extensive opinion. Instead, I am issuing this memorandum opinion, stating my rulings and the reasons for them. I hope you understand that the form of my opinion does not reflect that I have not taken your arguments seri- ously.’ ‘ On December 20, 2006, counsel for the United States wrote a letter requesting that I delay my decision until February 1, 2007, in order to give the United States an opportunity to reconsider its decision not to intervene in this action. The United States’ request is denied. This action has been pending since 2002, and the United States has twice been invited to intervene and has twice declined to do so. The United States (Continued on following page) App. 36 Defendant’s motion for summary judgment will be granted in part and denied in part. Plaintiff’s motion for summary judgment will be denied. 5. Count I Plaintiff’s “Buy America” claims asserted in count I are based upon the contention that NABI’s payments to NABI Hungary for Engineering and Technology (“E & T”) services were provided “in sham contracts designed to disguise the true purpose of these payments, i.e., to enable NABI to qualify for the federal subsidy and to shift taxable income to the parent company in Hungary.” (Relator Sanders’ Mem. of Law in Supp. of Cross Mot. for Partial Summ. J. as to Liability on Counts I, II, III, & IV of his Second Am. Compl. and Sanders’ Opp’n to Def.’s Mot. for Summ. J. at 28 [hereinafter Pl.’s Mot. for Summ. J.]).’ I am satisfied that genuine issues of fact exist as to received copies of all the electronic filings in this case, including the memoranda submitted in connection with parties’ cross- motions for summary judgment. While the motions were pend- ing, the United States madc no effort to intervene, and it chose not to attend the hearing held on December 8, 2006. Under these circumstances, the time has come for this court to rule without hearing from the United States. * Plaintiff now limits his Buy American claims to a total of 121 buses that were soid to Miami Metro Dade, Maryland MTA, and WMATA. Plaintiff thereby acknowledges that even if the cost of the E & T services were added to the buses sold to other entities, the requirement under the Buy America Act that 60% or more of the component value of the buses be of United States origin would have been met. App. 37 whether the services for which the payments were made were fictitious. Accordingly, both parties’ sum- mary judgment motions as to count I are denied. I also understand that plaintiff is abandoning his claims that (1) defendant made a false statement with respect to the CompoBus body, and (2) defendant made a false state- ment with regard to the articulated joint as- sembly. However, as defendant argues, there is no evi- dence in the record that any other company would have sold the buses for any less tiian defendant charged or that the purchasers did not receive the buses for which they contracted. Therefore, under Harrison v. Westinghouse Savannah River Co., 352 F.3d 908, 923 (4th Cir.2003), plaintiff has no claim for actual damages. On the other hand, Harrison also makes clear that the incurring of actual damages is not a requirement for a claim under the False Claims Act. Jd. at 75 n. 7. If a false statement caused the United States to pay out money, a False Claims Act claim will lie even if the United States did not suffer actual damages. Under those circumstances, the defendant would be liable only for the civil penalties imposed by the Act, see 31 U.S.C. § 3729(a). Il. Counts II and III The gravamen of plaintiff’s claims in counts II and III is that defendant obtained a refund of cus- toms duties and, after the refund was obtained, App. 38 avoided further customs duties by falsely stating that certain component parts were permanently installed on the frames of the buses being imported from Hungary. Defendant contends, inter alia, that any misstatements concerning alleged permanent instal- lation were immaterial because even if the compo- nents had not been permanently installed, the imported items would have been classified as “unfin- ished buses” (that were free from customs duties) rather than “bus shells” (to which a 4% customs duty applied).” Plaintiff argues that the very fact that false statements were made demonstrates that they were material. The obvious conceptual fallacy in this argument is that it necessarily conflates the element of materiality with the elements of inaccuracy and scienter. If plaintiff’s argument were accepted, the very fact that false statements were knowingly made would mean that they were material despite the well established law that falsity, scienter, and materiality are separate elements of a False Claims Act claim. See Harrison v. Westinghouse Savannah River Co., 352 F.3d at 913. Plaintiff further argues, however, that Harrison supports his position because it holds that the element of materiality requires only that the alleged false statements have “a natural tendency to ’ Defendant also argues that plaintiff's proof of scienter is insufficient to withstand defendant’s summary judgment motion. | need not reach that issue because | find that the alleged misstatements were not materia! App. 39 influence or [are] capable of influencing the govern- ment’s funding decision[.]” Jd. at 917. According to plaintiff, the critical issue is “whether the [alleged] false statements could have affected [the] Customs decision.” (Pl.’s Mot. for Summ. J. at 19). Even accept- ing this formulation as accurate, I would find that the Customs decision could not have been affected by the alleged false statements relating to permanent instal- lation because the decision would have been the same whether or not the components had been perma- nently installed. I note, however, that in my judgment a more precise formulation of the proper inquiry is whether, even in the absence of permanently installed components, Customs still would have classified the NABI imports as unfinished buses rather than bus shells. The summary judgment record makes clear that the answer to this inquiry is “yes.” Under a 1993 Customs ruling concerning the classification of trolley yus shells being imported into the United States from Canada, (cited by Damon B. Pike, the customs broker who submitted the protest letter for NABI), the critical question is whether imported items had “the essential character of public transport vehicles” at the time they were imported. Customs Priv. Ltr. Rul. N.Y. 802788 (Feb. 24, 1993). This depends upon whether the shell had been shaped into the form of a public transportation vehicle and whether important com- ponents were present at the time of importation. Plaintiff acknowledges that this is the appropriate inquiry: “(flor classification purposes, it does not App. 40 matter if any of the components were permanently installed. A bus that is imported with all of its com- ponents, but completely disassembled, would still be classified as a bus.” (Pl.’s Mot. for Summ. J. at 14.) Moreover, it is undisputed that the imported frames were in the shape of buses, and the evidence in the summary judgment record makes clear that impor- tant component parts were present when the frames were imported. Plaintiff’s own industry expert, Richard Cooper, who was NABI’s vice president of engineering at the time the protest letter was writ- ten, supports this assessment in his declaration and deposition testimony. (Cooper Decl. { 10, Ex. E of Pl.’s Mot. for Summ. J.; Cooper Dep. 118:15-119:18, Ex. 6 of D.’s Mot. for Summ. J.))’ * Defendant has presented the testimony of Stuart P. Seidel, who previously served as “an attorney, supervisory attorney, and Senior Executive with the United States Customs Service” and who has 37 years of experience in customs and international trade, to support its position that the alleged false statements were immaterial. (Seidel Dep. at 1, Ex. 2 of Def.’s Mot. for Sum. J.) Plaintiff challenges the qualifications of Mr. Seidel, arguing that because he “is qualified as a Customs legal expert and not as an industry expert, he should have no role in assisting this or any Court in determining the common or commercial meaning [of] the terms of the tariff schedule.”(Pl.’s Mot. for Summ. J. at 20). I find this argument unpersuasive. However, even if Mr. Seidel’s testimony is disregarded, for the reasons I have stated, the summary judgment record is clear that the alleged false statements were not material. App. 41 Ill. Count IV In count [V plaintiff claims that by declaring only the contract prices and not the allegedly fictitious cost for E & T services, defendant underpaid Customs duties. This claim is unavailing as to the buses that were the subject of defendant’s successful protest to Customs and to buses imported thereafter because “unfinished buses” are not subject to any Customs duty regardless of their price. Plaintiff asserts in his reply brief, however, that “the ruling on the protest only provided duty-free treatment for entries of bus shells with the date of April 12, 1997 or later. NABI is required to pay duties on all bus shells before that date.” (Pl.’s Rep. Mem. in Supp. of Pl.’s Cross Mot. for Summ. J. at 13). Defendant has not responded to this argument in writing, and the record is unclear as to what buses (if any) were imported prior to April 12, 1997, or whether other issues are presented as to any such buses. Under the circumstances, I will deny defendant’s motion for summary judgment as to count IV but permit defendant to file another summary judgment motion as to that count if it chooses to do sO. Despite the informal nature of this letter, it should be flagged as an opinion and docketed as an order. App. 42 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND CHAMBERS OF 101 WEST LOMBARD STREET J. FREDERICK MOTZ BALTIMORE, MARYLAND 21201 UNITED STATES (410) 962-0782 DISTRICT JUDGE (410) 962-2698 FAx December 19, 2005 Memo To Counsel Re: U.S. ex rel. Thornton G. Sanders v. North American Bus Industries, Inc. Civil No. JFM-02-3084 Dear Counsel: Although I went into the hearing last Friday expecting to give a brief oral opinion after considering your oral arguments, by the conclusion of the hearing plaintiffs arguments had sufficiently unsettled my thinking that I was not comfortable with ruling without further reflection. I have now decided, how- ever, that the tentative opinions I expressed at the beginning of the hearing were correct. Therefore, in order to prevent unnecessary further delay in this litigation [ am prepared to rule without requiring the additional briefing I requested. As to the service issue, plaintiff may well be correct that it has proffered (and could prove) a good faith effort to effect service on NABI Rt. by serving process on Andras Racz, the chief executive officer of NABI, Rt., when he was in Alabama. I nevertheless am of the view that service under Maryland Rule 2-121(c) would be inappropriate. I App. 43 have always understood that rule to be one of last resort, to be used only when all other means to effect service have been futile. Here, another means to effect service expressly contemplated by Fed. R. Civ. P. 4(f)(1) remains available to plaintiff. While I recog- nize that requiring service under the Hague Conven- tion wili further delay these proceedings, such delay is required by the Convention itself. Moreover, from the perspective of the efficient administration of justice, the delay that will occur is outweighed by the fact that were I to order service under Maryland Rule 2-121(c), I would be making a ruling which, if re- versed on appeal, would be entirely disruptive of the litigation process. As to the limitations issue raised by Deloitte & Touche, I continue to hold (or perhaps, more accu- rately, have reverted to) the tentative view I ex- pressed at the outset of the hearing that the Thistlethwaite or ElAmin approach to interpreting 31 U.S.C. $3731 is correct. See United States ex rel. Thistlethwaite v. Dowty Woodville Polymer, Lid., 6 F. Supp. 2d 263, 265 (S.D.N.Y. 1998); United States ex rel. Kl Amin v. George Washington Univ., 26 F. Supp. 2d 162, 172-73 (D.D.C. 1998). I believe that courts have properly rejected the holding in United States ex rel. Colunga v. Hercules, Inc., No. 89-CV- 954, 1998 W.L. 310481 (D. Utah Mar. 6, 1998), be- cause the approach taken by the Colunga court might, in a given case, undermine the public policy of encouraging prompt disclosure of fraud by relators to the government. See United States ex rel. Downy v. App. 44 Corning, Inc., 118 F. Supp. 2d 1160, 1170 (D.N.M. 2000). Likewise, I find the approach taken in United States ex rel. Hyatt v. Northrop Corp., 91 F. 3d 1211, 1214-18 (9th. Cir. 1996), to be unacceptable because that approach requires that the phrase “official of the United States” be construed as including private citizens. To me, such a construction violates common sense. The Thistlethwaite/ElAmin approach, on _ the other hand, is fully consistent with sound public policy and does little (if any) violence to the statutory language. I recognize that section 3731(b) begins with the words “[a] civil action,” drawing no distinction between actions in which the government intervenes and those in which it does not. Thus, there can be no question that the primary limitations period estab- lished by section 3731(b)(1) applies to all actions, regardless of whether the government intervenes. However, in my view it is entirely reasonable to infer that the distinction is a necessary one in considering the extended limitations period provided by section 3731(b)(2) because the knowledge or imputed knowl- edge of an “official of the United States” is material only in actions in which the government chooses to intervene. Thus interpreted, the statute makes perfect sense, requiring false claims actions to be brought within six years, whether or not the govern- ment intervenes, but providing an extended period of up to ten years if an official of the United States learns of the alleged fraud for the first time more than three years after the fraud occurred. App. 45 In light of my rulings, the briefing schedule I set at the conclusion of the hearing is rescinded as moot, and the time is ripe to hold a scheduling conference. The conference will be held at 10:00 a.m. on January 20, 2006. Please bring your calendar with you to the con- ference. If any of you would prefer to hold the confer- ence by conference call, please call my chambers to make the necessary arrangements. The conference will be held in my chambers located in Room 510 on the fiftn floor of the Court- house. Despite the informal nature of this letter, it should be flagged as am opinion and docketed as an order. Very truly yours, /s/ J. Frederick Motz United States District Judge App. 46 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND CHAMBERS OF 101 WEST LOMBARD STREET J. FREDERICK MOTZ BALTIMORE, MARYLAND 21201 UNITED STATES (410) 962-0782 DISTRICT JUDGE (410) 962-2698 FAX March 7, 2005 Memo To Counsel Re: U.S. ex rel. Thornton G. Sanders v. North American Bus Industries, Inc. Civil No. JFM-02-3084 Dear Counsel: I have reviewed the memoranda submitted in connection with defendant’s motion to dismiss. The motion is denied without prejudice to defendant rearguing the issues it has raised by way of a motion for summary judgment at the conclusion of discovery. Briefly stated, the reasons for my ruling are as follows: 1. It appears to me that the claim asserted in count II is a traditional FCA claim rather than a “reverse FCA claim.” Defendant allegedly made false statements in order to induce the government to pay a claim for refund of customs duties. As to defendant’s contention that the imposition of a customs duty requires the exercise of discretion by customs offi- cials, I am not persuaded by the present briefing that this is so insofar as regular import duties are con- cerned. App. 47 2. Counts III and IV do assert “reverse FCA claims.” I am persuaded, however, that the claims are the equivalent of an action debt at common law and are therefore maintainable. See Am. Textile Mfrs. Inst., Inc. v. The Limited, Inc., 190 F.3d 729, 736 (6th Cir. 1999). I recognize that when defendant made the allegedly false statements upon which count III is based, the defendant did not then “owe [] to the government an obligation sufficiently certain to give rise to an action of debt at common law.” Jd. However, plaintiff alleges that defendant reaffirmed these false statements by certifying that the buses were properly classified at the time each subsequent shipment was imported into the United States. This appears to be sufficient for the purpose of establishing a reverse FCA claim. It appears to me that plaintiff did far more than make generalized allegations of mischarging and that his conduct was “protected activity” sufficient to give rise to an action for wrongful termination. Compare Zahodnick v. IBM, 135 F.3d 911 (4th Cir. 1997). However, any wrongful termination claim might well be time barred. As you know, the Supreme Court has granted certiorari in Wilson v. Graham County Soil & Water Conservation District, 367 F.3d 245 (4th Cir. 2004), cert granted, 125 S.Ct. 823 (Jan. 7, 2005), to answer the question “whether the six year limitation period set out in 31 U.S.C. §3731(b) should be applied to retaliatory discharge actions under the False Claims Act or whether courts should apply the most closely analogous state limitation period.” If the App. 48 Supreme Court holds that the state limitation period is applicable, plaintiff’s retaliatory discharge claim certainly is time-barred since the most closely analo- gous Maryland limitations period is thee years. Moreover, it is not clear that plaintiff’s claim is timely even if the limitations period set forth in 31 U.S.C. §3731(b) applies, since that claim, which was not added until the amended complaint was filed, relates back to the filing of the original complaint. All of this said, I am not persuaded that permitting the retalia- tory discharge claim to proceed will substantially broaden the scope of discovery, and I do not want this litigation delayed pending the Supreme Court’s decision in Wilson. 4. I am fully satisfied that plaintiff’s allega- tions are sufficient to meet the particularity require- ments of Fed. R. Civ. P. 9(b). Despite the informal nature of this ruling, it shall constitute an Order of Court, and the Clerk is directed to docket it accordingly. Very truly yours, /s/ J. Frederick Motz United States District Judge App. 49 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1773 (1:02-cv-03084-JFM) UNITED STATES OF AMERICA, ex rel. Thornton G. Sanders Plaintiff-Appellant v. NORTH AMERICAN BUS INDUSTRIES, INCORPORATED; DELOITTE & TOUCHE USA, LLP; NORTH AMERICAN BUS INDUSTRIES KFT. Defendants-Appellees and NORTH AMERICAN BUS INDUSTRIES, RT.; AMERICAN IKARUS; PETER Z. RONA; THE FIRST HUNGARY FUND Defendants App. 50 TAXPAYERS AGAINST FRAUD EDUCATION FUND Amicus Supporting Appellant (Filed Jan. 7, 2009) The petition for rehearing en banc was circulated to the full Court. No poll was requested. The Court denies the petition for rehearing en banc. For the Court /s/ Patricia S. Conner, Clerk App. 51 TITLE 31. MONEY AND FINANCE SUBTITLE III. FINANCIAL MANAGEMENT CHAPTER 37. CLAIMS SUBCHAPTER III. CLAIMS AGAINST THE UNITED STATES GOVERNMENT § 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 Govern- ment or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a Iaise record or statement to get a false or fraudulent claim paid or approved by the Govern- ment; (3) conspires to defraud the Government by getting a false or fraudulent claim allowed or paid; (4) has possession, custody, or control of property or money used, or to be used, by the Government and, intending to defraud the Government or willfully to conceal the property, delivers, or causes to be deliv- ered, less property than the amount for which the person receives a certificate or receipt; (5) authorized to make or deliver a document certi- fying receipt of property used, or tv be used, by the Government and, intending to def-aud the Govern- ment, makes or delivers the receipt without completely knowing that the information on the receipt is true; App. 52 (6) knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the Government, or a member of the Armed Forces, who lawfully may not sell or pledge the property; or (7) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government, 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, except that if the court finds that — (A) the person committing the violation of this subsection furnished officials of the United States responsible for investigating false claims violations with all information known to such person about the violation within 30 days after the date on which the defendant first obtained the information; x * 1K (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 App. 53 (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required. * * * § 3730. Civil actions for false claims (a) Responsibilities of the Atiorney General. The Attorney General diligently shall investigate a viola- tion under section 3729. If the Attorney General finds that a person has violated or is violating section 3729, the Attorney General may bring a civil action under this section against the person. (b) Actions by private persons. (1) A person may bring a civil action for a violation of section 3729 for the person and for the United States Government. The action shall be brought in the name of the Government. The action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their rea- sons for consenting. * > *K § 3731. False claims procedure (a) A subpoena requiring the attendance of a wit- ness at a trial or hearing conducted under section 3730 of this title [31 USCS § 3730] may be served at any place in the United States. App. 54 (b) A civil action under section 3730 may not be [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0377%3A1. Public record. Not legal advice.