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United States Court of Appeals for the Tenth Circuit
August 4, 2010, Filed
[*1165] KELLY, Circuit Judge.
Plaintiff-Appellant Jolene Lemmon appeals from the district court's dismissal with prejudice of her complaint alleging false claims against the government. See Aplt. App. 705. The district court dismissed under Rules 8(a), 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. She contends that the district court overlooked her implied-certification [**2] (of false claims) theory and erred in rejecting her express-certification theory. Our jurisdiction arises under 28 U.S.C. § 1291 and we reverse.
Brought under the False Claims Act ("FCA"), 31 U.S.C. § 3729(a)(1) and (2), this suit involves qui tam claims against Defendant-Appellee Envirocare of Utah, Inc. ("Envirocare") 1 by one of its former [*1166] employees 2 and two former employees of an Envirocare subcontractor ("Plaintiffs"). Aplt. App. at 452-54. The suit arises from Envirocare's hazardous-and-radioactive-waste-disposal contracts with the federal government ("government"). Id. at 452-56. Plaintiffs allege that, between June 2000 and June 2001, Envirocare repeatedly violated its contractual and regulatory obligations by improperly disposing of the contracted-for waste. Id. at 468-86. In spite of these violations, Plaintiffs contend, Envirocare falsely represented to the government that it had fulfilled its obligations and, based on its false representations, improperly received payment from the government. Id. at 462-64, 486-87.
Specifically, Plaintiffs' claims allege that they observed and--at the direction of Envirocare superiors--participated in Envirocare's improper disposal of waste. Id. at 464-65. Plaintiffs allege that Envirocare's government contracts required it to "receive and dispose of the contaminated materials in accordance with all applicable, relevant and appropriate federal, state and local regulations . . . ." Id. at 457. The contracts further obligated Envirocare to, inter alia, (1) periodically submit written reports detailing its receipt and disposal of waste, (2) submit follow-up reports detailing any problems encountered, (3) maintain records sufficient to allow the government to confirm compliance with the contractual provisions, (4) report all contractual violations to the government, and (5) provide and maintain an inspection system for government review. Id. at 457-61.
Plaintiffs assert that Envirocare breached its obligations by, inter alia, (1) ignoring its reporting, recording, regulatory, and maintenance requirements, (2) violating the contractual and regulatory disposal requirements pertaining to location [**4] and size of buried debris, (3) violating the contractual and regulatory disposal requirements pertaining to exposed waste materials, (4) failing to remediate and report waste spills, (5) disposing of waste without proper work orders, (6) violating disposal requirements regarding the construction and maintenance of waste-containing cells, and (7) failing to report the improper mixing of waste. Id. at 462-86.
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614 F.3d 1163 *; 2010 U.S. App. LEXIS 16117 **; 31 I.E.R. Cas. (BNA) 38; 40 ELR 20203
UNITED STATES OF AMERICA, ex rel. JOLENE LEMMON, as personal representative of the estate of Roger Lemmon, Plaintiff - Appellant, PATRICK COLE; KYLE GUNDERSON, Plaintiffs, v. ENVIROCARE OF UTAH, INC., Defendant - Appellee; UNITED STATES OF AMERICA, Amicus Curiae.
Subsequent History: Motion denied by, Motion granted by United States ex rel. Lemmon v. Envirocare of Utah, 2012 U.S. Dist. LEXIS 188513 (D. Utah, Mar. 16, 2012)
Prior History: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. (D.C. No. 02-CV-00904-BSJ).
United States ex rel. Lemmon v. Envirocare of Utah, 2008 U.S. Dist. LEXIS 29619 (D. Utah, Apr. 9, 2008)
violations, contractual, certification, compliance, requests, false claim, obligations, third amended complaint, contracts, disposal, allegations, district court, implied-false-certification, regulations, payee, fraudulent, knowingly, express-false-certification, breaches, factual allegations, contract provision, amended complaint, false certificate
Civil Procedure, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Pleadings, Heightened Pleading Requirements, Fraud Claims, Labor & Employment Law, False Claims Act, Scope & Definitions, Qui Tam Actions, Complaints, Requirements for Complaint