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Government Law (State/Federal)

Universal Health Services v. U.S. ex rel. Escobar - Post-Decision SCOTUScast

SCOTUScast 7-12-16 featuring Richard A. Samp
Richard A. Samp July 12, 2016

On June 16, 2016, the Supreme Court decided Universal Health Services v. United States ex rel. Escobar. This case involves the federal False Claims Act, which allows a private party to bring a “qui tam” action alleging that the defendant defrauded the federal government. In a “qui tam” action the government remains the actual plaintiff, but the private party--referred to as the “Relator”--typically litigates the case for the government’s benefit and receives a specified share of any recovery.  

Here, Relators alleged that their daughter--who died of a seizure in 2009--was treated by various unlicensed and unsupervised staff at Arbour Counseling Services, a facility owned by Universal Health Services, in violation of Massachusetts regulations. They argued that Arbour's alleged noncompliance with various supervision and licensing requirements rendered its reimbursement claims submitted to the state Medicaid agency actionably false under both the federal and Massachusetts False Claims Acts. The district court dismissed the complaint for failure to state a claim, holding that regulatory noncompliance alone was inadequate to render Arbour’s reimbursement claims “false.” The U.S. Court of Appeals for the First Circuit, however, reversed that judgment and remanded the case. Compliance with the regulations at issue, the court concluded, was a condition of government reimbursement to Arbour. By submitting reimbursement claims, the Court reasoned, Arbour implicitly certified compliance with that condition. Thus, by pleading regulatory noncompliance Relators adequately pleaded falsity.

By a vote of 8-0, the Supreme Court vacated the judgment of the First Circuit and remanded the case for further proceedings. In an opinion delivered by Justice Thomas, a unanimous Court agreed that the implied false certification theory can be a basis for liability under the False Claims Act--when a defendant submitting a claim makes specific representations about the goods or services provided, but fails to disclose non-compliance with material statutory, regulatory, or contractual requirements that make those representations misleading with respect to those goods or services. But liability under the False Claims Act for failing to disclose violations of legal requirements, the Court explained, does not turn upon whether those requirements were expressly designated as conditions of payment. What matters is not the label the Government attaches to a requirement, but whether the defendant knowingly violated a requirement that the defendant knows is material to the Government’s payment decision. 

To discuss the case, we have Richard A. Samp, who is Chief Counsel at Washington Legal Foundation.

Heffernan v. City of Paterson - Post-Decision SCOTUScast

SCOTUScast 5-17-16 featuring Adele Keim
Adèle Keim May 17, 2016

On April 26, 2016, the Supreme Court decided Heffernan v. City of Paterson. Jeffrey Heffernan was a police officer for the City of Paterson, New Jersey. A fellow police officer observed Heffernan picking up a campaign sign for the mayoral candidate running against the incumbent. Although Heffernan disclaimed any political motives and said he was merely picking the sign up for his mother, his supervisor demoted him. Heffernan sued Paterson claiming a violation of his First Amendment rights, but lost on the grounds that, his supervisor’s erroneous belief notwithstanding, the fact that Heffernan was not actually engaged in political activity doomed his claim. The U.S. Court of Appeals for the Third Circuit affirmed the trial court’s judgment. The question before the Supreme Court was whether the First Amendment bars the government from demoting a public employee based on a supervisor's perception that the employee supports a political candidate.

By a vote of 6-2, the Supreme Court reversed the decision of the Third Circuit and remanded the case. Justice Breyer delivered the opinion of the Court, which held that when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer's actions are based on a factual mistake about the employee's behavior. Justice Breyer was joined by the Chief Justice and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion, in which Justice Alito joined.

To discuss the case, we have Adele Keim, who is counsel at The Becket Fund for Religious Liberty.

Kingdomware Technologies v. United States - Post-Argument SCOTUScast

SCOTUScast 3-30-16 featuring Michael Toth
Michael Toth March 31, 2016

On February 22, 2016, the Supreme Court heard oral argument in Kingdomware Technologies v. United States. Kingdomware Technologies is a certified, service-disabled veteran owned small business, or SDVOSB--a special type of veteran-owned small business, or VOSB. In 2012, Kingdomware filed a bid protest with the Government Accountability Office (GAO) when the Department of Veterans Affairs (VA) awarded a contract to a Federal Supply Schedule (FSS) contractor who was not a VOSB.  Kingdomware argued that the award violated 38 U.S.C. § 8127(d)’s “Rule of Two.” That provision directs that VA contracting officers, except under certain circumstances, “shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.” 

Although the GAO agreed with Kingdomware and recommended a re-bid, the VA declined to follow the GAO recommendation and Kingdomware sued the VA in the Court of Federal Claims. That Court ruled in favor of the VA and Kingdomware appealed to the U.S. Court of Appeals for the Federal Circuit.  A divided panel of the Federal Circuit affirmed the judgment of the Court of Claims, concluding that Kingdomware’s interpretation of “shall award” failed to account for qualifying provisions elsewhere in the statute. 

The question before the Supreme Court is whether the Federal Circuit erred by adopting a construction of § 8127(d)'s mandatory set-aside for VOSBs that arguably rendered the “Rule of Two” discretionary at the option of the VA.

To discuss the case, we have Michael Toth, who is a lawyer in Washington, D.C.

Campbell-Ewald Company v. Gomez - Post-Decision SCOTUScast

SCOTUScast 3-11-16 featuring Mark Chenoweth
Mark Chenoweth March 11, 2016

On January 20, 2016, the Supreme Court decided Campbell-Ewald Company v. Gomez. This case concerns a complaint by Jose Gomez that Campbell-Ewald Company, a marketing consultant for the U.S. Navy, allowed a third-party vendor to send him unsolicited text messages in violation of the Telephone Consumer Protection Act. The case presents two questions for the Supreme Court: (1) whether a case becomes moot when a plaintiff receives an offer of complete relief on his claim, including in a class action, and (2) whether the doctrine of derivative sovereign immunity for government contractors is limited to claims arising out of property damage caused by public works projects. The U.S. Court of Appeals for the Ninth Circuit had held that Gomez’s individual and class claims were not mooted, and that Campbell-Ewald was not entitled to derivative sovereign immunity.

By a vote of 6-3, the Supreme Court affirmed the judgment of the Ninth Circuit, holding that (1) an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case, so the district court retains jurisdiction to adjudicate the plaintiff’s complaint, and (2) a federal contractor is not entitled to immunity from suit for its violation of the Telephone Consumer Protection Act when it violates both federal law and the government's explicit instructions. Justice Ginsburg delivered the opinion of the Court, in which Justices Kennedy, Breyer, Sotomayor, and Kagan joined. Justice Thomas filed an opinion concurring in the judgement. Chief Justice Roberts filed a dissenting opinion, in which Justices Scalia and Alito joined. Justice Alito also filed a dissenting opinion.

To discuss the case, we have Mark Chenoweth, who is General Counsel at Washington Legal Foundation.

The Safety Net and Poverty - Event Audio/Video

2016 National Student Symposium
Christopher C. DeMuth, William A. Galston, Julia Mahoney, David A. Super, John C. Harrison, Thomas Sanford March 04, 2016

Most agree that society should take care of its neediest members. The question is how this should be accomplished. Our current federal safety net was designed for a different era and is becoming increasingly outdated, ineffective, and expensive. How can we reform it to be both successful and fiscally sustainable? To what degree does our current entitlement system stretch well beyond the actual needs of those in poverty? And to what extent should we rely on state governments and civil society instead of a one-size-fits-all national approach?

This panel was presented at the 2016 National Student Symposium on Saturday, February 27, 2016, at the University of Virginia School of Law.

Panel III: The Safety Net and Poverty
Caplin Auditorium

  • Mr. Christopher DeMuth, Distinguished Fellow, Hudson Institute
  • Dr. William Galston, Senior Fellow, Governance Studies, The Brookings Institution
  • Prof. Julia Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
  • Prof. David Super, Professor of Law, Georgetown University Law Center
  • Moderator: Prof. John Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law
  • Introduction: Mr. Thomas Sanford, Vice President for Special Events, University of Virginia School of Law Student Chapter

University of Virginia School of Law
Charlottesville, VA