                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                     PUBLISH
                                                                       FEB 10 1998
                    UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                            Clerk
                                TENTH CIRCUIT



 THE UNITED STATES OF
 AMERICA, ex rel. TODD AAKHUS,
 personal representative of the Estate of
 Miles Aakhus,

       Plaintiff-Appellant,
 v.
                                                       No. 97-2017
 DYNCORP, INC.,

       Defendant-Appellee.




                     Appeal from United States District Court
                         for the District of New Mexico
                             (D.C. No. CIV-92-1435)


Duff H. Westbrook (Maureen A. Sanders with him on the brief), Sanders &
Westbrook, P.C., Albuquerque, New Mexico, for the appellant.

Peter J. Adang, Peter J. Adang, P.C., Albuquerque, New Mexico, for the appellee.


Before KELLY, BARRETT, and BRISCOE, Circuit Judges.


BRISCOE, Circuit Judge.
      Relator Todd Aakhus, personal representative of the Estate of Miles

Aakhus, appeals the district court’s entry of a directed verdict in favor of

DynCorp, Inc., on qui tam claims under the False Claims Act, 31 U.S.C. §§ 3729-

33. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

                                          I.

      From approximately 1974 through September 1990, DynCorp operated and

maintained, under contract with the federal government and using government

equipment, the Radar Target Scatter (RATSCAT) facility at the United States

Army White Sands Missile Range in New Mexico. DynCorp was required to

track and control government-issued property, including additions and deletions

in inventory that occurred each year. At the end of each fiscal year, DynCorp

submitted a report of inventoried property, listing additions and deletions during

the preceding year. It was the government’s responsibility to audit and verify the

accuracy of DynCorp’s property inventory records. Specifically, the Defense

Contract Administration Services Management Area performed quarterly or semi-

annual audits of the records, physically checking the records against inventoried

items to insure that the records were accurate. Between 1974 and 1990, the

government issued over 8,100 property items to DynCorp. As of July 1990,

DynCorp possessed approximately 5,700 inventory items with an original value of

approximately $25 million.


                                          -2-
      DynCorp was paid on a “cost-plus” basis, and the government reimbursed

DynCorp for its costs of operating the RATSCAT facility. In addition, the

government reviewed DynCorp’s performance on a semi-annual basis and

awarded DynCorp a fee based on the perceived quality of its work.

Approximately five percent of the semi-annual award fee was based on a

“general” category encompassing property management, logistics, quality

assurance, and training. 1 During each semi-annual review period, DynCorp was

allowed to make a presentation concerning its performance to the award fee

review board. DynCorp received an award fee of $171,819 for October 1989

through March 1990, and $151,047 for April 1990 through September 1990 (the

end of DynCorp’s contract).

      Miles Aakhus was hired by DynCorp as a systems engineer. He was

subsequently transferred to the administrative department and was assigned the

role of office automation coordinator, where he was responsible for installation of

hardware and software on personal computers as well as the design and

maintenance of personal computer software. During late summer or early fall of

1989, Miles Aakhus used dBASE III PLUS (relational database management

software) to design a new inventory tracking system for the facility. The purpose



      1
         Witnesses at trial were unsure how the five percent was allocated among the four
categories.

                                           -3-
of the new system was to allow inventory records to be maintained at the facility

rather than on an off-site corporate computer, and to allow DynCorp to track

inventory using a bar coding system. In the fall of 1989, Miles Aakhus

transferred the inventory records from a computer in DynCorp’s corporate offices

to the new system installed on a personal computer at the facility. After a brief

testing period, the system became the operational system used by DynCorp to

internally track inventory.

         According to Miles Aakhus, DynCorp conducted a physical inventory

between December 1989 and February 1990, during which DynCorp employees

attempted to place adhesive bar code stickers on all inventory items and

simultaneously scan each item of inventory into the new computer database.

Beginning in late December 1989 or early January 1990, Miles Aakhus’

supervisor, Dolores Stoll, asked him to print a missing items report on a weekly

basis. According to Miles Aakhus, Stoll distributed copies of the report to

various DynCorp employees responsible for the missing items so they could

conduct physical searches for the missing items. The first report allegedly listed

818 missing items. As of March 1, 1990, the report allegedly listed 519 missing

items.

         There were two methods for deleting inventory items from Miles Aakhus’

inventory system. The “normal” method allowed users to delete items by bar code


                                         -4-
number or DynCorp number (DynCorp assigned a unique number to each

inventory item, separate from the bar code number). To utilize this method, users

were required to key in a deletion voucher number for the item to be deleted.

Deletion vouchers were internally issued by DynCorp to keep track of deletions

from inventory. When a user utilized the normal method of deletion, Miles

Aakhus’ system removed the item from the master inventory file and

simultaneously created a new record in what Miles Aakhus named the “deleto”

file. Each record in the “deleto” file contained information about the item

deleted, including the deletion voucher number. The second method for deleting

items, referred to as the “Control U/Pack” method, required users to exit from the

main menu to a DOT prompt. The user typed “Browse,” hit the enter key, and the

database appeared on the computer screen. The user highlighted the particular

item to be deleted and holding down the control key, typed “U”. A small

indicator appeared on screen indicating the record was a candidate for deletion.

The user then hit the Escape key and typed “Pack.” This caused the system to

delete the highlighted item from the database. Unlike the normal method of

deletion, the Control U/Pack method did not require a user to key in a deletion

voucher number and it did not create any record in the “deleto” file. It simply

deleted the item from the master inventory file. It is uncontroverted that the




                                         -5-
Control U/Pack method was faster than the normal method because it allowed

users to delete multiple items at the same time.

      Only Miles Aakhus and Ted Duran, DynCorp’s property clerk, knew how to

use the normal method for deleting inventory items. Miles Aakhus testified in his

deposition that he informed Stoll about the existence of the Control U/Pack

method sometime in 1990. He further testified that sometime between March 1,

1990, and July 1, 1990, Stoll asked him to instruct other DynCorp employees

(Angie Ramirez, Vicky Holly, Angie Batig, and Faye Harriston) on how to use the

Control U/Pack method of deletion because the normal method was too slow.

Stoll denies knowing anything about the Control U/Pack method of deletion prior

to October 1990 and further denies instructing Miles Aakhus to teach anyone to

use it. Miles Aakhus testified that he personally observed several employees

delete inventory items using the Control U/Pack method and Stoll was present on

at least one of those occasions. Miles Aakhus acknowledged he did not ask why

the employees were deleting items and he could not say they did not have

authorization to delete the items.

      In July 1990, Earl Thompson, division manager for DynCorp at the

RATSCAT facility, announced DynCorp had lost the contract to operate and

maintain the facility. Thus, DynCorp had to finish its operations so the winning

bidder, EG&G, could take over the facility as of October 1, 1990. According to


                                         -6-
Guy Galloway, the phase-out coordinator, DynCorp employees were under

“extreme time pressure” to finish up the inventory and get the inventory

information transferred to EG&G. Miles Aakhus testified that on September 27

and 28, 1990, Stoll asked him to delete items from the inventory database using

the Control U/Pack method. He testified that Stoll watched over his shoulder as

he performed the deletions and appeared to be directing him to delete items she

saw on the computer screen. Miles Aakhus acknowledged Stoll told him she had

authority from Captain Joliffe, a government contracting officer representative, to

remove the items from the database. Miles Aakhus did not know whether deletion

vouchers had been issued for any of the items.

      EG&G hired many DynCorp employees to continue in their positions.

Although Miles Aakhus sought employment with EG&G, he was not extended an

offer. On August 27, 1990, his wife wrote to EG&G on behalf of Miles Aakhus,

offering computer consultant services at the rate of $130 per hour, but that offer

was not accepted.

      On his last day of work, September 28, 1990, Miles Aakhus assisted Stoll

and Galloway in printing an inventory list. According to Ted Duran, the property

clerk for DynCorp, Miles Aakhus subsequently worked alone on the property

computer for approximately two and one-half hours. Duran testified he observed

Miles Aakhus deleting information from the inventory, although Duran was


                                         -7-
unsure what the information was. Duran testified that Miles Aakhus shut off the

computer, retrieved his briefcase, and left the facility. In his deposition, Miles

Aakhus acknowledged he took computer disks containing the property inventory

system he had developed for DynCorp when he left the facility on September 28,

1990. Included on those disks were all of the programs comprising the system, as

well as the database of inventory information.

      On October 1, 1990, the first day of EG&G’s operation of the facility,

Duran had problems starting up the property computer that contained the

inventory system. He tried to contact Miles Aakhus at home but Miles Aakhus

refused his calls and would not return his calls. Stoll hired Larry Vandine, a

computer consultant, to work on the computer. Although Vandine fixed the

system so it would work, Duran testified they continued to have problems.

According to Duran, a primary problem occurred when they transferred a piece of

property from one account to another (i.e., from one department to another), as

the system would erase the record of that item and the data would be lost.

Ultimately, EG&G quit using the inventory system and obtained a new inventory

program.

      At the conclusion of its contract, DynCorp submitted a missing items report

for sixty-one items, and the government accepted this representation. Frank

Drews, DynCorp’s property administrator, remained on-site at the facility and


                                          -8-
located fifty-three of the missing items. On November 6, 1990, Barbara Miracle,

the government’s property administrator, sent a letter to DynCorp granting relief

from accountability for the eight missing items.

      Miles Aakhus filed this complaint on December 17, 1992, alleging

DynCorp improperly deleted 519 items of inventory valued at $1,380,599.18 from

the computer database, that allegedly appeared on the March 1, 1990, missing

property list. It was apparently Miles Aakhus’ theory that DynCorp, through Stoll

and other employees, used the Control U/Pack method to delete the 519 items

without authorization from the government. Miles Aakhus died in February 1995

and his son took over the litigation. At some point, either Miles Aakhus or his

son realized the original claim of 519 missing items was incorrect. At trial, Miles

Aakhus’ son, acting on his behalf as the relator, alleged 209 items with an

original value of approximately $131,903.56 were missing and had been

improperly deleted. He arrived at his conclusions by comparing various computer

records and reports he received during the litigation.

      Various DynCorp employees, most notably Drews and Duran, testified that

the 209 items were not in fact missing nor were they deleted without

authorization. According to Drews, all of the 209 items were present on a

September 1989 inventory produced prior to DynCorp shifting to Miles Aakhus’

inventory program. Approximately 140 of the items were various items of metal


                                         -9-
furniture DynCorp had acquired over the years from the government. In the

spring of 1990, the government remodeled the RATSCAT facility and replaced all

of the furniture. Duran testified he personally turned over the old furniture to a

government agency responsible for salvaging old government equipment and in

turn received authorization to delete the furniture. Similarly, approximately 14 of

the 209 items were old computer disk packs for which DynCorp had received

authorization to destroy and delete. 2 The relator reduced his claim to 205 missing

items at trial. DynCorp alleges witnesses were able to specifically account for

approximately 176 of the items, leaving approximately 29 missing items. 3

However, in his reply brief, the relator alleges this evidence is supported by

exhibits admitted over his objections.

                                           II.

      We review the district court’s grant of a directed verdict de novo, applying

the same standard used by the district court. Oja v. Howmedica, Inc., 111 F.3d

782, 792 (10th Cir. 1997). A directed verdict is appropriate only if the evidence,

viewed in the light most favorable to the nonmoving party, points but one way

      2
         There is evidence indicating DynCorp had authorization to delete all 18
computer disk packs but on appeal DynCorp suggests it could only locate documentation
pertaining to 14 of the disk packs.
      3
         Although the government was responsible for maintaining the official property
records for RATSCAT, many of those records were either lost or destroyed after 1990.
Thus, DynCorp was placed in the difficult position of having to justify the whereabouts of
various property items without having records.

                                           -10-
and is susceptible to no reasonable inferences supporting the nonmoving party.

Id. However, a mere scintilla of evidence is insufficient to create a jury question.

Id.

      Before specifically addressing the claims, we pause briefly to outline the

mechanisms provided in the False Claims Act (FCA). “The FCA sets out civil

and criminal penalties for persons who knowingly submit false claims to the

government.” United States ex rel. Dunleavy v. County of Delaware, 123 F.3d

734, 738 (3d Cir. 1997); see also Avco Corp. v. United States Dept. of Justice,

884 F.2d 621, 622 (D.C. Cir. 1989) (FCA “is the government’s primary litigative

tool for the recovery of losses sustained as the result of fraud against the

government.”). “A private person with knowledge of fraud against the

government, acting as a de facto ‘attorney general,’ can instigate litigation on the

government’s behalf against the parties responsible. Such suits are known as qui

tam actions.” Dunleavy, 123 F.3d at 738. The FCA provides a built-in incentive

for the private plaintiff, referred to as the relator, to bring suit. Id. Specifically,

the FCA provides the relator shall receive between fifteen and thirty percent of

the proceeds of the action, plus reasonable expenses, fees, and costs. 31 U.S.C.

§§ 3730(d)(1), (2).




                                           -11-
Claim under 31 U.S.C. § 3729(a)(4)

      The relator contends the district court erred in concluding there was

insufficient evidence to support his claim under 31 U.S.C. § 3729(a)(4), which

makes it unlawful for any person who

      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 delivered, less property than the amount for which the person
      receives a certificate or receipt.

We have found one published case discussing this subsection of the FCA. See

United States ex rel. Stinson v. Provident Life & Accident Ins. Co., 721 F. Supp.

1247, 1259 (S.D. Fla. 1989). Based upon the plain language of (a)(4), we agree

with Stinson that the essential elements of a cause of action thereunder include

(1) possession, custody, or control of property or money used, or to be used, by

the government, (2) delivery of less property than the amount for which the

person receives a certificate or receipt, (3) with intent to defraud or willfully to

conceal the property. Although Stinson suggests a plaintiff must also prove

damages suffered by the government, there is authority to the effect that the

government need not prove damages to establish liability under the FCA, but can

instead recover statutory penalties for a violation even absent any damages. See

John T. Boese, Qui Tam: Beyond Government Contracts, 456 Practicing Law

Institute/Litigation and Administrative Practice Course Handbook Series 7, 32


                                          -12-
(March 1993). We find it unnecessary to decide whether proof of damages is an

essential element under (a)(4) because, as discussed below, the relator here cannot

satisfy one of the other essential elements of his claim.

      After carefully reviewing the record on appeal, we conclude there is no

evidence demonstrating DynCorp received any type of certificate or receipt from

the government within the meaning intended by (a)(4). Although the relator

contends DynCorp received a receipt each time it was issued a piece of property

from the government, the record on appeal does not support this. At best, the

record indicates DynCorp employees created internal receiving records each time

they received an item of property from the government. In our view, the language

of (a)(4) clearly suggests the certificate or receipts at issue must be created by the

government. We therefore fail to see how the internal records pointed to by the

relator can support a claim under (a)(4). Even overlooking this flaw, there is a

separate problem with the “receipts” relied upon by the relator. The plain

language of (a)(4) makes clear the certificate or receipt at issue must have some

connection or relationship to the defendant’s return of property. 4 In other words,



      4
          Assume, for example, a government contractor such as DynCorp is issued twenty
metal desks by the government for use in carrying out a government contract. If the
government issued a certificate or a receipt to the contractor at the time the desks were
returned indicating how many desks were returned, such certificate or receipt would
satisfy the provisions of (a)(4) because it would indicate how much property was
allegedly returned to the government.

                                          -13-
the certificate or receipt must indicate how much property defendant allegedly

returned to the government. Here, the “receipts” pointed to by the relator were

issued each time DynCorp received items of property from the government.

Accordingly, they bear no relation to the amount of property returned by DynCorp

to the government at the conclusion of the RATSCAT contract. We conclude the

district court properly granted a directed verdict in favor of DynCorp on the

relator’s claim under (a)(4).



Claim under 31 U.S.C. § 3729(a)(7)

      The relator contends the district court erred in concluding there was

insufficient evidence to support his claim under 31 U.S.C. § 3729(a)(7), which

makes it unlawful for any person to “knowingly make[], use[], or cause[] 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.” This

subsection has been referred to as the “reverse false claims provision” of the

FCA. Rabushka ex rel. United States v. Crane Co., 122 F.3d 559, 565 (8th Cir.

1997). The term “knowingly,” as used in (a)(7), “mean[s] 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 (3) acts in

reckless disregard of the truth or falsity of the information.” 31 U.S.C. § 3729(b).


                                          -14-
“[N]o proof of specific intent to defraud is required.” Id.; see also United States

v. Krizek, 111 F.3d 934, 941 (D.C. Cir. 1997) (holding an aggravated form of

gross negligence, or “gross negligence-plus,” is equivalent to reckless disregard

for purposes of FCA).

      In support of his claim under (a)(7), the relator contends DynCorp

employees deleted 205 items from inventory without government authorization

prior to the conclusion of DynCorp’s contract. The relator contends DynCorp

then created and submitted a false record at the end of its contract in order to

conceal, avoid, or decrease its obligation to transfer the 205 inventory items to the

government upon termination of its contract. To prove his claim, the relator had

to demonstrate, in part, that DynCorp deleted the 205 items from inventory

without authorization. We have reviewed the record on appeal and conclude the

relator failed to present sufficient evidence to allow a reasonable jury to reach

such a conclusion. Every witness at trial who was familiar with the DynCorp

inventory system testified no items were deleted without authorization. When

questioned on cross-examination, Todd Aakhus could not state that DynCorp

lacked authorization to delete the items in question from inventory. Although

many of the official government records pertaining to DynCorp’s inventory had

been lost or destroyed, the evidence demonstrated DynCorp specifically received

government authorization to delete most of the 205 items at issue. As to the


                                         -15-
remaining items, the only evidence presented by the relator that even remotely

touched upon the issue of government authorization was Miles Aakhus’

deposition testimony that he and other DynCorp employees were directed to use

the Control U/Pack method of deletion. Assuming, arguendo, that Miles Aakhus’

testimony is sufficient to demonstrate the remaining items were deleted by the

Control U/Pack method, we conclude the evidence is not sufficient by itself to

allow reasonable jurors to conclude DynCorp lacked government authorization to

delete those items.

      We also note there was a provision in DynCorp’s contract with the

government which provided DynCorp was not liable for loss or destruction of

government-issued property absent willful misconduct or lack of good faith on the

part of DynCorp managerial personnel (namely Earl Thompson, the division

manager in charge of the RATSCAT facility). Thus, even if DynCorp had lost or

misplaced the items and could not account for their whereabouts, it would not

have been contractually liable for those items absent willful misconduct or lack of

good faith on the part of Thompson. Because the relator presented no evidence of

any such wrongful conduct on the part of Thompson, any failure on the part of

DynCorp to include the items on the final inventory listing could not have

affected any obligation it had to the government. Thus, there would have been no

incentive for DynCorp to submit a false record to the government. We conclude


                                        -16-
the district court properly granted a directed verdict in favor of DynCorp on the

relator’s claim under (a)(7).



Claim under 31 U.S.C. § 3729(a)(2)

      Subsection (a)(2) of the FCA makes it unlawful for any person to

“knowingly make[], use[], or cause[] to be made or used, a false record or

statement to get a false or fraudulent claim paid or approved by the Government.”

31 U.S.C. § 3729(a)(2); see United States ex rel. Thompson v. Columbia/HCA

Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1997). To establish a claim under

(a)(2), a person must demonstrate that (1) a “claim” was presented to the

government by the defendant, or the defendant “caused” a third party to submit

the “claim,” (2) the claim was “false or fraudulent,” (3) the defendant presented

the claim knowing it was “false or fraudulent,” and (4) the defendant made or

used a false statement which the defendant knew to be false, and which was

causally connected to the false claim. See generally Rabushka, 122 F.3d at 563;

Young-Montenay, Inc. v. United States, 15 F.3d 1040, 1043 (Fed. Cir. 1994).

      The relator contends DynCorp violated (a)(2) by seeking and receiving

award fees that included a component for property management when, in fact,

DynCorp was unable to account for many missing items. More specifically, the

relator alleges DynCorp represented to the review board that they were


                                        -17-
performing adequately in the area of property management when, in fact, they

were unable to locate many items of property. The record on appeal reveals the

relator failed to introduce any evidence of specific representations made by

DynCorp to the board (or to any other government official or agency) concerning

its performance with regard to property management. Although the testimony at

trial indicated DynCorp had the right to make a “sales pitch” concerning its

performance, there was no evidence whatsoever that DynCorp did so. More

specifically, there was no evidence DynCorp made any representations to the

board concerning its performance in property management. Thus, there is no

evidence DynCorp made any false claim or statement to the government to receive

payment on a false claim. Accordingly, we conclude the district court properly

granted a directed verdict on the relator’s claim under (a)(2).



Remaining arguments

      Because we conclude the relator failed to present sufficient evidence to

support any of his claims, we find it unnecessary to address his remaining issues.

                                         III.

      The judgment of the district court is AFFIRMED.




                                         -18-
