False Claims Act - The "Presentment Requirement"

The other day, the petitioners in Allison Engine Co., Inc. v. United States ex rel. Sanders, No. 07-214, cert. granted Oct. 29, 2007, 128 S.Ct. 491, filed their initial merits brief authored by Ted Olson of Gibson, Dunn and Crutcher. This case presents the question whether the Plaintiff in a False Claims Act case under section 3729(a)(2) or (3) is required to prove that a false claim was submitted to the federal government, or whether it is sufficient to establish that the claim was paid using federal monies. This is the so-called Totten issue, referring to United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C. Cir. 2004) where the now Chief Justice held that the FCA requires presentment to the federal government directly of a false claim.

Upon return from the holiday, we will discuss and dissect the issues presented by this case at greater length.