     Case: 15-51086      Document: 00513606896         Page: 1    Date Filed: 07/25/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-51086                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            July 25, 2016
United States of America, ex rel; GEORGE GAGE,                             Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

DAVIS S.R. AVIATION, L.L.C., doing business as Challenger Spares and
Support; CHALLENGER REPAIR GROUP, L.L.C.; ORION AIR GROUP,
L.L.C.; BOMBARDIER, INCORPORATED; NORTHROP GRUMMAN
CORPORATION; STEVE DAVIS, Individually; NORTHROP GRUMMAN
DEFENSE MISSION SYSTEMS; NORTHROP GRUMMAN SPACE AND
MISSION SYSTEMS, INCORPORATED,

              Defendants - Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:12-CV-904


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       In this qui tam action, Relator George Gage appeals the district court’s
denial of his Rule 60(b) motion and his motions for recusal and reconsideration.
We AFFIRM.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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      George Gage brought this False Claims Act (“FCA”) lawsuit against
Davis S.R. Aviation, L.L.C.; Challenger Repair Group, L.L.C.; Orion Air Group,
L.L.C.; Bombardier, Inc.; Northrop Grumman Corp., and related entities; and
Steve Davis (collectively, the “defendants”). Gage’s relevant complaint (the
third amended) alleged that the defendants, who are government contractors,
used defective parts in repairing and maintaining military aircraft.        Our
previous decision detailed Gage’s allegations. United States ex rel. Gage v.
Davis S.R. Aviation, L.L.C., 623 F. App’x 622, 623–24 (5th Cir. 2015). The
district court dismissed with prejudice, holding that most of Gage’s claims were
foreclosed by the public disclosure bar and none of his claims were adequately
pled under Federal Rule of Civil Procedure 9(b). We affirmed, resting our
decision solely on the conclusion that Gage’s pleading fatally neglected to
“alleg[e] with particularity the who, what, when, where, and how of the . . .
fraudulent scheme . . . .” Id. at 625–28. We declined to decide whether the
public disclosure bar applied. Id. at 628.
      While the appeal was pending, Gage filed a Rule 60(b) motion for relief
from final judgment with the district court. The district court dismissed the
Rule 60(b) motion, concluding this court alone had jurisdiction over the case.
We vacated and remanded for the district court to consider Gage’s Rule 60(b)
motion on the merits. United States ex rel. Gage v. Davis S.R. Aviation, L.L.C.,
613 F. App’x 445, 2015 WL 5012569 (5th Cir. 2015). The district court on
remand denied Gage’s Rule 60(b) motion, and later separately denied motions
for recusal and Rule 59(e) reconsideration. Gage appealed again.


                                DISCUSSION
I.    Rule 9(b) Deficiencies
      Gage argues in part that the district court erred in determining that his
claims were inadequately pled under Rule 9(b), and in invoking “hypothetical
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jurisdiction” to reach the Rule 9(b) issue without first ruling on whether the
court lacked jurisdiction because of the public disclosure bar. Under a former
version of the FCA, the public disclosure bar prohibited qui tam cases “based
upon the public disclosure of allegations” unless the person bringing the action
was an “original source of the information . . . . on which the allegations are
based . . . .” 31 U.S.C. § 3730(e)(4) (1988). 1
       The merits of the district court’s judgment are not before us because “the
denial of a Rule 60(b) motion does not bring up the underlying judgment for
review.” See In re Ta Chi Navigation (Pan.) Corp. S.A., 728 F.2d 699, 703 (5th
Cir. 1984). Moreover, we have already ruled that the district court correctly
concluded Gage’s third amended complaint was deficient under Rule 9(b); we
declined to address the implications of the public disclosure bar. Gage, 623 F.
App’x at 625–28.
       In a Rule 28(j) letter, Gage contends that a recent Supreme Court
decision undermines our 2015 decision in this case by changing the pleading
standard. See Universal Health Servs., Inc. v. United States, 136 S. Ct. 1989
(2016).    Not so.      The Supreme Court reiterated that in FCA litigation,
“plaintiffs must . . . plead their claims with plausibility and particularity” in
compliance with Rules 8 and 9(b). Id. at 2004 n.6. The Court held that when
a plaintiff is pursuing a theory of an implied false certification, it is not
necessary to plead that the “contractual, statutory, or regulatory” requirement
the defendant violated is “expressly designated [by the Government as] a
condition of payment.” Id. at 2001. The Court in no way discredited our



       1 The public disclosure bar was amended in 2010, but the amendment does “not apply
retroactively to suits pending at the time they became effective.” United States ex rel.
Jamison v. McKesson Corp., 649 F.3d 322, 326 n.6 (5th Cir. 2011). The district court held
that “the bulk of [Gage’s] claims accrued prior to” the amendment, making the version of the
statute applicable “to all but the four allegedly false claims presented after” the effective date
of the amendment.
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holding that Gage did not identify any statute or “contract provision . . .
violated” by the defendants, which caused his claims to fail. See Gage, 623 F.
App’x at 625–26. Our previous conclusion that Gage’s complaint is deficient
still stands.


II.    Rule 60(b) Motion
       Rule 60(b) provides, in part, that a district court “may relieve a party
. . . from a final judgment” for any one of six enumerated reasons. FED. R. CIV.
P. 60(b).      Gage moved on the basis of “newly discovered evidence” and
extraordinary circumstances. See id. 60(b)(2), (6). Denial of a Rule 60(b)
motion is reviewed for an abuse of discretion. Goldstein v. MCI WorldCom, 340
F.3d 238, 257 (5th Cir. 2003).
       The first ground that Gage alleges justified granting relief from
judgment was the existence of newly discovered evidence. To obtain relief from
judgment on that basis, Gage must show that he “exercised due diligence in
obtaining the information,” and “that the evidence is material and controlling
and clearly would have produced a different result if present before the original
judgment.” See Hesling v. CSX Transp., Inc., 396 F.3d 632, 639 (5th Cir. 2005);
see also FED. R. CIV. P. 60(b)(2).
       Here, the new evidence submitted is a subpoena issued to Gage by the
Air Force Office of Special Investigations in December 2014. Gage asserts that
the subpoena shows that information in his third amended complaint caused
the Air Force to initiate an investigation into the defendants’ contract work.
Thus, Gage argues, the district court erred in applying the public disclosure
bar because he was the “original source” of the information supporting the
allegations.
       As an initial matter, it is unclear whether Gage acted with “diligence”
concerning the subpoena and investigation. Evidence qualifying as “newly
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discovered” must be discovered after issuance of the underlying judgment. See
Longden v. Sunderman, 979 F.2d 1095, 1102–03 (5th Cir. 1992).                 Gage
concedes that he found out about the investigation shortly after filing his third
amended complaint in March 2014, but did not disclose it at that time because
he feared “violat[ing] a directive” to keep the information confidential. Gage
said he perceived the subpoena to be an independent disclosure, which released
him from his obligation to remain silent.
      Regardless, we agree with the district court: even if the subpoena and
investigation eliminate application of the public disclosure bar, it does not cure
the other Rule 9(b) deficiencies in Gage’s complaint identified in our previous
decision. Gage, 623 F. App’x at 625–28. Because the result would not be
different even if the district court considered the subpoena and related
investigation, Rule 60(b) relief is not warranted. See Hesling, 396 F.3d at 639.
      Gage next argues that the district court erred in refusing to review in
camera certain undisclosed documents relating to the Air Force investigation
that he asserts would have cured his pleading deficiencies. Gage has made no
effort, though, to explain to the district court or to us on appeal how these
documents could push a fourth amended complaint into Rule 9(b) compliance.
Furthermore, as the district court notes, outside “materials providing
additional details are not . . . relevant at this stage in the proceedings.” A
motion to dismiss for failure to state a claim considers the face of the pleadings
without reference to extrinsic evidence. See United States ex rel. Grubbs v.
Kanneganti, 565 F.3d 180, 185–86 (5th Cir. 2009). The district court did not
abuse its discretion in denying Gage’s Rule 60(b) motion based on newly
discovered evidence.
      Gage also moved under a catch-all section of the rule that provides relief
from judgment for “any other [justifiable] reason . . . .” FED. R. CIV. P. 60(b)(6).
There must be “extraordinary circumstances” for relief under that subsection.
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Ruiz v. Quarterman, 504 F.3d 523, 533 (5th Cir. 2007). Under the facts of this
case, we cannot conclude that the district court abused its discretion in finding
no extraordinary circumstance warranting relief.


III.    Motions for Recusal and Reconsideration
        Gage also contends that the district court erred in denying his motion for
recusal.    A party may request recusal if, among other reasons, a judge’s
“impartiality might be reasonably questioned,” or if a judge “has a personal
bias or prejudice concerning a party . . . .” 28 U.S.C. § 455(a), (b)(1). We review
denials of motions to recuse for abuse of discretion. Andrade v. Chojnacki, 338
F.3d 448, 454 (5th Cir. 2003).
        Gage argues that recusal is necessary because the district court judge
denied his Rule 60(b) motion very quickly and without considering evidence
Gage asked to be reviewed in camera. The judicial ruling alone, though,
“almost never constitute[s] a valid basis for a bias or partiality motion,” and
Gage provided no other source of bias against him personally. See id. at 455.
Gage’s motion for recusal, moreover, was reviewed by a different district court
judge, presumably to ensure it was given careful, independent consideration.
        As to the speed of the denial of his Rule 60(b) motion, Gage contends that
the district court ruled on the motion “within only hours” of issuance of the
mandate remanding for consideration on the merits. The date of the mandate
aside, we filed our decision on August 25, 2015, giving the district court notice
of our conclusion and instructions on that date. Gage, 613 F. App’x 445, 2015
WL 5012569. The district court did not file its order on the merits of Gage’s
Rule 60(b) motion until October 19, almost two months later. Denial of Gage’s
motion for recusal does not constitute an abuse of discretion.
        Finally, Gage asserts that the district court erred in denying his Rule
59(e) motion for reconsideration, which was filed with his motion for recusal.
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We review such rulings for an abuse of discretion.       Midland W. Corp. v.
F.D.I.C., 911 F.2d 1141, 1145 (5th Cir. 1990). His Rule 59(e) motion merely
repeats arguments asserted in his motion for relief from judgment, which we
have already held lacks merit. The district court did not abuse its discretion
in denying the motion for reconsideration.
      AFFIRMED.




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