RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0282p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA ex rel. SNAPP,
Plaintiff-Appellant, --
INC.,
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No. 09-1654
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v.
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Defendant-Appellee. -
FORD MOTOR COMPANY,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-11848—Avern Cohn, District Judge.
Argued: August 4, 2010
Decided and Filed: September 1, 2010
Before: BOGGS and CLAY, Circuit Judges; and WISEMAN, District Judge.*
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COUNSEL
ARGUED: David H. Fink, THE MILLER LAW FIRM, P.C., Rochester, Michigan, for
Appellant. Francis R. Ortiz, DICKINSON WRIGHT PLLC, Detroit, Michigan, for
Appellee. ON BRIEF: David H. Fink, E. Powell Miller, THE MILLER LAW FIRM,
P.C., Rochester, Michigan, for Appellant. Francis R. Ortiz, Kenneth J. McIntyre, Jodi
Munn Schebel, DICKINSON WRIGHT PLLC, Detroit, Michigan, for Appellee.
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OPINION
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BOGGS, Circuit Judge. SNAPP, Inc. (“SNAPP” or “Relator”) appeals from an
order of the district court denying its motion to alter or amend a final judgment so as to
permit it to file an amended complaint in litigation brought pursuant to the False Claims
*
The Honorable Thomas A. Wiseman Jr., United States District Judge for the Middle District of
Tennessee, sitting by designation.
1
No. 09-1654 United States ex rel. SNAPP v. Ford Motor Co. Page 2
Act (“FCA”), 31 U.S.C. § 3729 et seq. SNAPP argues that the district court erred in
concluding that the proposed amended complaint, which included a list of contracts that
the Government allegedly entered into as a result of fraudulent representations on the
part of Ford, did not allege with sufficient particularity the existence of a “claim” as
defined by the FCA.
I
This case is before us for the second time. See United States ex rel. SNAPP, Inc.
v. Ford Motor Co., 532 F.3d 496 (6th Cir. 2008) (“SNAPP I”). In SNAPP I, we set forth
the relevant factual and procedural history, as it existed to that point, as follows:
According to Relator, Ford is a “prime contractor” to the United States,
and is accordingly required to comply with certain federal laws
governing the use of small and minority-owned businesses as
subcontractors. Among these requirements, a prime contractor may not
contract with the federal government unless they establish a plan to
“provide[] the maximum practicable opportunity” for small businesses
and minority-owned businesses to subcontract with the prime contractor.
Failure to develop such a plan can render a prime contractor ineligible to
receive federal contracts.
Relator alleges that, from 1991 until 1999, Ford fraudulently
exaggerated the extent of its dealings with small and minority-owned
businesses, and that these exaggerations induced the federal government
to contract with Ford, even though Ford never implemented a plan to
“provide[] the maximum practicable opportunity” to such businesses.
According to Relator, during this eight-year period Relator was
controlled entirely by Ford. Ford nominated the majority of Relator’s
board members, its organization charts included Relator and its
employees, and Ford had full control over its dealings with Relator.
Though Relator was nominally owned and managed by a person of color,
Relator maintains that this nominal control was a sham, and that Relator
actually operated as a subdivision of the Ford Motor Company.
Moreover, Relator claims, even if it did qualify as a minority-owned
business during its dealings with Ford, from 1995 until 1999, Relator had
too many employees to qualify as a small business.
Despite Relator’s claims that it functioned entirely as a
subdivision of Ford, Ford filed official reports with the government
stating that, between 1991 and 1998, Ford made significant
improvements in the amount of business it subcontracted to small and
No. 09-1654 United States ex rel. SNAPP v. Ford Motor Co. Page 3
minority-owned businesses. As a prime government contractor, Ford
was required to file yearly reports documenting what percentage of the
subcontracts related to its government contracts were made with small or
minority-owned businesses. . . .
The crux of Relator’s complaint is that, despite Ford’s reports
claiming that it had enacted and was successfully implementing a plan to
“provide[] the maximum practicable opportunity” to small and minority-
owned businesses, Ford had inflated the extent of its dealings with such
businesses by fraudulently declaring money paid to Relator as a
subcontract with a small and minority-owned business. . . . Ford, Relator
claims, would subcontract with a large, majority-owned business; Ford
would then launder its payments to that large, majority-owned business
through Relator. Under this scheme, Relator would receive those
payments only for the purpose of passing them through to the large,
majority-owned subcontractor, but Ford would still report these
transactions to the government as a subcontract with a small, minority-
owned business.
....
In light of these alleged sham payments, Relator claims that had
the federal government been aware that Ford was exaggerating its
dealings with small and minority-owned businesses, it would not have
permitted Ford to act as a prime contractor. Accordingly, Relator argues,
none of the federal government contracts Ford received during the period
that it was allegedly inflating its dealings with small and minority-owned
businesses would have been awarded to Ford. Because these contracts
were allegedly awarded to Ford as a direct result of Ford’s fraudulent
statements, Relator further claims that none of the payments made to
Ford under these contracts would have been made had Ford not deceived
the government.
....
On April 30, 2003, Relator filed its original complaint, under seal,
in the Southern District of Ohio. That complaint was unsealed on July
19, 2004, when the United States declined to intervene. . . . On April 14,
2006, the parties . . . stipulated to a transfer of this case to the Eastern
District of Michigan.
On September 7, 2006, the district court issued an order
dismissing a portion of Relator’s claim and ordering Relator to file an
amended complaint. . . . Additionally, the district court held that
Relator’s original complaint did not comply with the particularity
requirements of Fed. R. Civ. P. 9(b), finding that this complaint “contains
no allegations as to which claims submitted by Ford would not have been
No. 09-1654 United States ex rel. SNAPP v. Ford Motor Co. Page 4
paid” but for Ford’s alleged fraudulent statements. Accordingly, the
court ordered Relator to amend its complaint in order to bring it into
compliance with Rule 9(b).
Relator filed its First Amended Complaint on October 4, 2006,
and shortly thereafter, it filed copies of the annual reports Ford had
submitted to the government in order to retain its eligibility as a prime
contractor. In a February 1, 2007 order, the district court dismissed this
amended complaint, holding that it still had not “identified any contract
that Ford was allegedly wrongfully awarded as a result of being a Prime
Contractor.” On February 9, 2007, Relator filed a motion, which the
district court construed as a motion to vacate its dismissal of this case
under Rule 59(e) and to permit Relator to subsequently file a Second
Amended Complaint. Accompanying this motion were additional copies
of Ford’s 1991–99 reports to the federal government. Although Relator
argued that these reports constituted new evidence justifying the
reconsideration of its case, the district court concluded that it had already
considered these reports in the context of its decision dismissing the First
Amended Complaint, and denied Relator’s motion.
Id. at 499–502 (citations and footnotes omitted). Following the district court’s dismissal
of SNAPP’s First Amended Complaint and its denial of SNAPP’s motion to file a
Second Amended Complaint, SNAPP filed its appeal in SNAPP I.
On appeal, we affirmed the dismissal of SNAPP’s First Amended Complaint on
Rule 9(b) grounds, finding that the complaint’s allegation that “[f]rom 1991 through at
least 2001, Ford was awarded contracts on an annual basis by the General Services
Administration,” coupled with an estimate of the approximate value of those contracts,
failed to comply with the Rule 9(b) requirement that a relator “state with particularity
the circumstances constituting fraud or mistake.” SNAPP I, 532 F.3d at 504–06.
Specifically, we observed that the portion of the FCA under which SNAPP now
alleges a cause of action1 “imposes liability on a person who ‘knowingly makes, uses,
or causes to be made or used, a false record or statement to get a false or fraudulent
1
Originally, SNAPP’s Second Amended Complaint also claimed that Ford violated 31 U.S.C.
§ 3729(a)(1), which imposes liability on any person who “knowingly presents, or causes to be presented,
to an officer or employee of the United States Government or a member of the Armed Forces of the United
States a false or fraudulent claim for payment or approval.” That claim was withdrawn by SNAPP before
the district court and is not before us.
No. 09-1654 United States ex rel. SNAPP v. Ford Motor Co. Page 5
claim paid or approved by the Government.’”2 SNAPP I, 532 F.3d at 504 (quoting 31
U.S.C. § 3729(a)(2)). We then noted that a cause of action under that portion of the FCA
contained several elements, including: (1) that the defendant make a false statement or
create a false record with actual knowledge, deliberate ignorance, or reckless disregard
of the truth or falsity of the information; (2) that the defendant have submitted a claim
for payment to the federal government; (3) that the defendant’s false statement have been
made with the purpose of getting a false or fraudulent claim paid or approved by the
Government; and (4) that the false statement or record have been material to the
Government’s decision to make the payment sought in the defendant’s claim. Id. at
504–05. We found that SNAPP had adequately pleaded the existence of a false
statement or record, and that Rule 9(b) did not require SNAPP to plead the elements
dealing with Ford’s state of mind with particularity.
However, we further observed that, given that SNAPP had alleged a “complex
and far-reaching fraudulent scheme,” it was subject to a rule of law recently established
in United States ex rel. Bledsoe v. Community Health Systems, Inc., 501 F.3d 493 (6th
Cir. 2007) (“Bledsoe II”). Under the rule of Bledsoe II, a relator who alleges such a
complex and far-reaching fraudulent scheme need not state with particularity all of the
false claims made over the course of the scheme, but must nevertheless “include specific
examples of the defendant’s claims for payment” that are “characteristic example[s] . . .
illustrative of [the] class of all claims covered by the fraudulent scheme.” SNAPP I, 532
F.3d at 506 (quoting Bledsoe II, 501 F.3d at 510–11) (internal quotation marks omitted).
With that in mind, we held in SNAPP I that:
2
We note that, since the filing of this case, Congress has changed the language of this portion of
the FCA. The Fraud Enforcement Recovery Act of 2009, Pub. L. No. 111-21, § 4, 123 Stat. 1617
(“FERA”), renumbered it as § 3729(a)(1)(B) and altered it so as to impose liability on any person who
“knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or
fraudulent claim.” 123 Stat. at 1621. FERA also provided that this new language “shall take effect as if
enacted on June 7, 2008, and apply to all claims under the False Claims Act (31 U.S.C. § 3729 et seq.) that
are pending on or after that date.” 123 Stat. at 1625. It is unsettled, however, whether the retroactive
effect mandated by Congress applies to “claims” in the sense of demands made via litigation or “claims”
as defined by the FCA. See Hopper v. Solvay Pharms., Inc., 588 F.3d 1318, 1327 n.3 (11th Cir. 2009)
(concluding the latter). We find that our reasoning in this case is unaffected by the difference, and
presume that the language that existed in 2003, when SNAPP filed its original complaint, governs.
No. 09-1654 United States ex rel. SNAPP v. Ford Motor Co. Page 6
Despite the requirement that Relator must provide specific examples of
claims submitted to the government as part of Ford’s alleged fraudulent
scheme, Relator does not provide a single example of a specific claim
made by Ford. Instead, Relator merely alleges that “[f]rom 1991 through
at least 2001, Ford was awarded contracts on an annual basis by the
General Services Administration.” Although Relator also provides an
estimate of the approximate value of these contracts during the years
1991–2000, Relator does not identify any individual representative claim
for payment made by Ford to the federal government during this time
period. Accordingly, we hold that Relator has not complied with Bledsoe
II’s mandate that “‘[i]n order for a relator to proceed to discovery on a
fraudulent scheme,’ it must ple[a]d with specificity ‘characteristic
example[s]’ that are ‘illustrative of [the] class’ of all claims covered by
the fraudulent scheme.”
SNAPP I, 532 F.3d at 506 (citations omitted). Thus the dismissal of the First Amended
Complaint was affirmed in the first instance because SNAPP failed to identify with
particularity any claim for payment by Ford (as required by the second element
discussed above), and in the second instance because it failed to demonstrate that any
such claims they might be able to identify were illustrative of the class of claims alleged
to exist between 1991 and 2000.
Despite affirming the dismissal of SNAPP’s First Amended Complaint, however,
we vacated the district court’s decision denying SNAPP’s motion to file a Second
Amended Complaint “[b]ecause the district court did not have an opportunity to consider
our holding in Bledsoe II before denying the motion.” SNAPP I, 532 F.3d at 507. We
also observed that the proposed Second Amended Complaint “provide[d] far greater
detail” in that it identified many of the specific contracts allegedly entered into because
of fraud by their “Ford Contract Nos.,” but we nevertheless indicated that the question
of whether to grant the motion to file a Second Amended Complaint in light of Bledsoe
II was within the district court’s discretion. Id. at 507–08. Accordingly, we remanded
to the district court so that it might reconsider the motion to file SNAPP’s Second
Amended Complaint in light of Bledsoe II, specifying that the “governing principle”
guiding that consideration “should be whether vacating its order dismissing Relator’s
complaint, and allowing the amended complaint, ‘is required in order to prevent an
No. 09-1654 United States ex rel. SNAPP v. Ford Motor Co. Page 7
injustice.’” SNAPP I, 532 F.3d at 508 (quoting Davis by Davis v. Jellico Cmty. Hosp.,
Inc., 912 F.2d 129, 133 (1990)).
Significantly, we did not decide the question of whether the list of contracts
provided by SNAPP, together with the amounts of payments alleged to have been made
by the Government pursuant to those contracts, qualified as “claims” within the meaning
of the FCA or sufficed to meet the Rule 9(b) requirement that allegations of fraud be
pleaded with particularity. See SNAPP I, 532 F.3d at 507 n.8 (arguing that “the new
details included in the Second Amended Complaint include several examples of false
claims”); id. at 510–11 (Suhrheinrich, J., concurring) (joining the lead opinion “except
to the extent footnote 8 suggests that the Second Amended Complaint, as drafted,
complies with” Rule 9(b), and stressing that remand “should not be taken to imply . . .
that the Second Amended Complaint, as drafted, is sufficient”); id. at 511 (Cook, J.,
concurring in part and dissenting in part) (“Because the Second Amended Complaint
also identifies no false claim, I see no reason to remand to the district court so that it may
reissue the same decision.”).
On remand, the district court directed the parties to file briefs on whether, in light
of Bledsoe II, dismissal pursuant to Rule 9(b) was appropriate; it also heard oral
arguments on the issue. On April 7, 2009, the district court issued its Memorandum and
Order on Remand. In so doing, the district court observed that “[t]he rub of this case has
been, and remains, whether SNAPP has identified an actual ‘claim’ under the FCA.”
United States ex rel. SNAPP, Inc., No. 06-11848, 2009 WL 960482, at *6 (E.D. Mich.
April 7, 2009). In concluding that no such claim had been identified, the district court
held that Bledsoe II did not alter the requirement that the relator “plead at least one claim
which is characteristic of the type of claims” being asserted, and that nothing in that case
“makes a ‘listing’ of contracts awarded to Ford, the value of the contracts, and the
number of vehicles awarded to Ford the same as a ‘request or demand, whether under
a contract or otherwise, for payment.’” Id. at *8 (quoting 31 U.S.C. § 3729) (emphasis
supplied by district court). Accordingly, the district court held that SNAPP’s proposed
Second Amended Complaint, like its First Amended Complaint, failed to meet the
No. 09-1654 United States ex rel. SNAPP v. Ford Motor Co. Page 8
requirements of Rule 9(b) because it failed to identify with specificity a claim for
payment.3
This timely appeal followed.
II
The parties to this appeal differ as to the appropriate standard of review to be
applied in this case. SNAPP would have us review the district court’s judgment de novo,
as we generally do for orders dismissing a case for failure to state a claim. See, e.g.,
Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
Ford, however, asserts that the matter before the district court was a motion to alter or
amend the district court’s judgment pursuant to Federal Rule of Civil Procedure 59(e),
and thus should be subject to the more deferential abuse-of-discretion standard. See,
e.g., Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1047 (6th Cir. 2001).
We agree with Ford. “The basic tenet of the mandate rule is that the district court
is bound to the scope of the remand issued by the court of appeals.” United States v.
Campbell, 168 F.3d 263, 265 (6th Cir. 1999). In SNAPP I, we did not remand to the
district court for a de novo look at whether SNAPP’s proposed second amended
complaint was sufficiently particularized to pass muster under the Federal Rules.
Rather, we “remand[ed] the matter to allow the district court to decide whether to
exercise its discretion in light of Bledsoe II.” SNAPP I, 532 F.3d at 508 (emphasis
added). Moreover, SNAPP’s attempt to file its Second Amended Complaint occurred
after the district court’s final order dismissing the First Amended Complaint, a judgment
3
In addition to remanding in light of Bledsoe II, we also remanded to the district court for
consideration of an intervening Supreme Court decision, Allison Engine Co. v. United States ex rel.
Sanders, 128 S.Ct. 2123 (2008). In so doing, we observed that the Sanders case made “the law in this
Circuit . . . less friendly to qui tam plaintiffs than it was prior to that decision” by holding “that a qui tam
plaintiff may only prevail upon a showing that the defendant made a false statement with the purpose of
getting a false or fraudulent claim paid or approved by the Government.” SNAPP I, 532 F.3d at 509
(internal citation and quotation marks omitted). We further indicated that it would be “inappropriate for
us to impose our view of whether Sanders prevent[ed] Relator from filing his Second Amended
Complaint” before permitting the district court to address the question. Ibid. The district court did not
substantively address the effect of the Supreme Court’s decision in Sanders on remand, however,
presumably because it felt no need to determine whether that case made the law “less friendly” to SNAPP
given that the district court found that SNAPP’s complaint was insufficient under the already-existing law
of the circuit. On appeal, both parties agree that Sanders does not materially affect the outcome of this
case, and we therefore likewise do not consider the question.
No. 09-1654 United States ex rel. SNAPP v. Ford Motor Co. Page 9
we did not vacate and thus one that remains in effect. As we observed in SNAPP I, when
a party moves to file an amended complaint after final judgment, “we allow a district
court discretion to set aside a prior judgment under Rule 59(e),” which permits setting
aside judgment, among other times, when there has been “‘an intervening change in
controlling law.’” Id. at 507 (quoting Henderson v. Walled Lake Consolidated Schs.,
469 F.3d 479, 496 (6th Cir. 2006)) (emphasis added by SNAPP I). Such setting aside
is a necessary precondition before a district court can grant leave to amend a complaint
following a judgment dismissing the case. See Oleson v. United States, 27 F. App’x 566,
570 n.1 (6th Cir. 2001).
Thus, consistent with the terms of the remand and our previous case law, we
construe the district court’s denial of SNAPP’s motion to file its Second Amended
Complaint as a denial of a motion to alter or amend its earlier judgment pursuant to the
specific portion of Rule 59(e) that permits setting aside of judgment in the event of an
intervening change of controlling law. Accordingly, we review the district court’s
decision for abuse of discretion.
III
In order to decide the question before us, we necessarily compare the basis for
the district court’s initial decision to deny SNAPP’s motion to file its Second Amended
Complaint with the holdings of Bledsoe II.
In Bledsoe II, a qui tam relator alleged that a hospital in which she worked as a
respiratory therapist had engaged in “upcoding” and other serious billing irregularities,
the result of which were to increase the amount billed to the Government under
Medicare and Medicaid. Bledsoe II, 501 F.3d at 497–98. Though the relator in that case
claimed to have knowledge of multiple practices designed to increase billing amounts,
we affirmed almost all parts of the district court’s dismissal of her allegations because
she “d[id] not identify any specific instance where Medicare or Medicaid was
wrongfully billed.” Id. at 514.
No. 09-1654 United States ex rel. SNAPP v. Ford Motor Co. Page 10
In constructing our analytical framework in Bledsoe II, we made several holdings
of general relevance to relators who are attempting to prove complex and far-reaching
schemes under which multiple instances of false claims are alleged to have been made.
Given the parties’ arguments, three of those holdings are of particular importance here.
First, we held that, even in situations in which the relator pleads such a false
scheme, “pleading an actual false claim with particularity is an indispensible element of
a complaint that alleges a FCA violation in compliance with Rule 9(b).” Bledsoe II, 501
F.3d at 504. Such a requirement “emerges from the conjunction of Rule 9(b) and the
statutory text of the FCA.” Ibid. Therefore, we concluded, a 9(b)-compliant complaint
“must include an averment that a false or fraudulent claim for payment or approval has
been submitted to the government.” Ibid. Although we “[did] not intend to foreclose
the possibility of a court relaxing this rule in circumstances where a relator demonstrates
that he cannot allege the specifics of actual false claims that in all likelihood exist, and
the reason that the relator cannot produce such allegations is not attributable to the
conduct of the relator,” id. at 504 n.12, neither did we express any opinion “as to the
contours or existence of any such exception.” Ibid.
Second, mindful of the fact that “[w]here the allegations in a relator’s complaint
are ‘complex and far-reaching, pleading every instance of fraud would be extremely
ungainly, if not impossible,” we held in Bledsoe II that “where a relator pleads a
complex and far-reaching fraudulent scheme with particularity, and provides examples
of specific false claims submitted to the government pursuant to that scheme, a relator
may proceed to discovery on the entire fraudulent scheme.” Bledsoe II, 501 F.3d at 509,
510 (internal quotation marks and citation omitted) (emphasis added).
Finally, in addressing the question of when such examples would suffice to meet
Rule 9(b), we held
that the examples that a relator provides will support more generalized
allegations of fraud only to the extent that the relator’s examples are
representative samples of the broader class of claims . . . . In order for
a relator to proceed to discovery on a fraudulent scheme, the claims that
are pled with specificity must be characteristic examples that are
No. 09-1654 United States ex rel. SNAPP v. Ford Motor Co. Page 11
illustrative of the class of all claims covered by the fraudulent scheme.
The examples of false claims pled with specificity should, in all material
respects, including general time frame, substantive content, and relation
to the allegedly fraudulent scheme, be such that a materially similar set
of claims could have been produced with a reasonable probability by a
random draw from the total pool of all claims.
Bledsoe II, 501 F.3d at 510–11.
None of these holdings altered the basis on which the district court denied
SNAPP’s motion to file its Second Amended Complaint. The first Bledsoe II holding
reaffirmed a preexisting general requirement for FCA claims. See Sanderson v. HCA-
The Healthcare Co., 447 F.3d 873, 878 (6th Cir. 2006) (“the fraudulent claim is the sine
qua non of a False Claims Act violation”) (internal quotation marks and citation
omitted). Far from being an intervening change in the law, this requirement formed part
of the basis for the district court’s decision denying SNAPP’s motion to file its Second
Amended Complaint. See United States ex rel. SNAPP v. Ford Motor Co., No. 2:06-cv-
11848 (E.D. Mich. Mar. 16, 2007) (denying leave to file the Second Amended
Complaint because “[t]he Court already found that these contracts do not constitute a
‘claim’ under the FCA”). Nor does our first holding in Bledsoe II abrogate in any way
our circuit’s established holding that “Rule 9(b) ‘does not permit a False Claims Act
plaintiff merely to describe a private scheme in detail but then to allege simply . . . that
claims requesting illegal payments must have been submitted, were likely submitted or
should have been submitted to the Government.’” Sanderson, 447 F.3d at 877 (quoting
United States ex rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1310 (11th Cir.
2002)). The second and third of the relevant Bledsoe II holdings, meanwhile, presume
the existence of at least one valid claim and discuss only the circumstances under which
a relator may plead the existence of a broader class of such claims through the use of
representative examples. Thus none of the holdings of Bledsoe II alter the requirement
that at least one claim be pleaded with specificity, or provide support for the argument
that a contract—even an especially well-identified one—is a “claim” within the meaning
of the FCA.
No. 09-1654 United States ex rel. SNAPP v. Ford Motor Co. Page 12
Because no holding of Bledsoe II affected the circuit’s law on the questions at
issue before the district court, the district court did not abuse its discretion in holding
that its original rationale for not permitting SNAPP to file its Second Amended
Complaint pursuant to Rule 59(e) still obtained and that permitting such a filing was not
otherwise “required in order to prevent an injustice.” Although we note that the parties
vigorously contest the question of whether a listing of contracts might, under some
circumstances, suffice to meet the requirement that an FCA complaint plead a false claim
with particularity, we are simply not called upon in this appeal to decide that issue.
Rather, we hold only that the district court did not abuse its discretion in determining
that nothing in Bledsoe II changed the controlling law in this case.
IV
For the foregoing reasons, the decision of the district court denying SNAPP’s
motion to file a Second Amended Complaint is AFFIRMED. We note that SNAPP has
also moved this court for reassignment of this case to a different district judge on
remand; that motion is DENIED AS MOOT.